Kaplan v State of Victoria

THE EVIDENCE AND SUBMISSIONS 20 The trial was conducted by way of oral evidence, save for expert reports. 21 In addition to the five applicants themselves, the applicants called 30 lay witnesses. These witnesses were: (a) family members of the applicants: (i) Rochelle Arnold-Levy, mother of Liam; (ii) Janet Abadee, mother of Joel and Matt; (iii) Zac Kaplan, brother of Joel and Matt; (iv) Sarit Cohen, mother of Guy; (v) Natalie Snelling, mother of Zack; and (vi) Courtney Snelling, sister of Zack; (b) students currently at BSC at the time of the trial: (i) Ryan Barrett; (ii) Dane Foster; (iii) Max Joho; and (iv) Jasmine Karro; (c) students formerly at BSC: (i) Matthew Austen; (ii) Lilly Curnow; (iii) Corey Fooks; (iv) Alma Goldberg; (v) Ariel Katz; (vi) Epaminondas Notis Korkoneas; (vii) Elliot McMahon; (viii) Ruby Micheli; (ix) Jules Paul; (x) Bella Saffer; (xi) Nathan Shulman; (xii) Angus Tranter; and (xiii) Howard Zezula; (d) madrichim (see terminology section, below): (i) Danny Feigen; (ii) Leah Hain; (iii) Jemma Katz; and (iv) Gabriel Lefkovits; and (e) a number of witnesses from other organisations: (i) Esther Meltzer, from Liebler Yavneh college; (ii) Dr Dvir Abramovich, from the Anti-Defamation Commission; and (iii) Detective Senior Constable William Lordanic. 22 In the course of the trial the applicants made applications to call two further witnesses. I refused those applications in Kaplan v State of Victoria (No 5) [2022] FCA 909 and Kaplan v State of Victoria (No 6) [2022] FCA 1048. 23 In addition to the three individual respondents, the respondents called 22 lay witnesses. These witnesses were: (a) former BSC principal Julie Podbury; (b) assistant principals: (i) Kaye Sentry; (ii) Olympia Angelidis; and (iii) Pasquale Gargano; (c) student managers (see terminology section, below): (i) Anh Thi Trinh; (ii) Carolyn Dunn; (iii) Jan Chan; (iv) Lana Goldstone; (v) Shae Hower; (vi) Nathan Hutchins; (vii) Rebecca McMahon; (viii) Sokrurm Drechsler; (ix) Lindsey Nash; and (x) Mali Lewis; (d) other teaching staff at BSC: (i) Elizabeth Bolton; (ii) Bryan Lynch-Wells; (iii) Michael Lyons; and (iv) Despina Sarikizis; (e) chaplains and wellbeing team staff: (i) Karen Gibson; (ii) Peter Mangold; and (iii) Tania Vairamuttu; and (f) Karen Kearney, who at the relevant time worked in the front administration office at BSC. 24 The applicants called six expert witnesses: (a) Dr Amanda Scott, a general practitioner; (b) Dr Kristy-Anne Adnams, a clinical psychiatrist; (c) Dr Maria Andrzejewski, a consultant psychiatrist; (d) Stephen Paul, an educational consultant; (e) Dr Matthew Tagkalidis, a consultant psychiatrist; and (f) Professor Suzanne Rutland, for her specialisation in research into Australian Jewry. 25 The respondents called one expert witness: Michael Whine, a senior consultant at the World Jewish Congress. 26 The evidence in the proceeding included a significant number of documents. The consolidated court book tendered and marked as an exhibit at the end of trial contained over 1,100 individual documents, many of which were compilations of multiple individual documents, including emails, student records, teacher and counselling notes, and other school records such as plans, school newsletters and other similar documents. 27 The parties sought to include a number of affidavits in the court book. These related mostly to discovery, but also to various applications brought by each party throughout the course of the trial. These included applications to suppress the names of certain individuals, to seek leave to amend pleadings, to rely on witness outlines, and to call further witnesses. The parties did not rely on those affidavits for the purposes of their closing submissions, with the exception of two affidavits: one in relation to discovery by Liam, and one in relation to the applicants' application for costs-capping in the proceeding. With the respect to the latter affidavit, the respondents initially objected to the tender of that affidavit, but later withdrew that objection. Though the affidavits were not formally read for the purposes of the trial itself, no party objected to their inclusion in the court book. They were therefore admitted as part of the exhibit comprising the court book, as agreed between the parties. Absent any substantive reliance on those affidavits by the parties in their submissions, the utility of these affidavits to the Court's fact-finding is limited. 28 A number of objections were made throughout the trial as to witness evidence. I gave rulings on those objections, which are recorded in the transcript of the trial, or which were recorded in written reasons provided to the parties directly. I also provided written reasons for ruling, and made orders, directing that certain evidence may only be used for certain purposes, and not for any other purposes, pursuant to s 136 of the Evidence Act 1995 (Cth). In addition, there were objections during the trial as to the content of certain expert reports. I gave rulings on those objections in Kaplan v State of Victoria (No 3) [2022] FCA 728 and Kaplan v State of Victoria (No 4) [2022] FCA 897, and in written reasons provided to the parties directly. The parties' objections to the tender of documents were dealt with prior to the court book being consolidated and marked as an exhibit. 29 In addition to their oral openings and closings, the parties each filed opening and closing written submissions, as well as submissions on the application of the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298. The parties also filed chronologies, and the applicants provided a 'Chronology of Minister's wrongs' and 'Chronology of swastikas and antisemitic bullying', which were placed on the Court's file as submissions, as well as a number of additional aide memoire documents. The respondents provided the Court with a document detailing the number of classes, and size of those classes, at BSC across the relevant period. That document was marked as an exhibit.

Antisemitism 30 This case is about alleged contraventions of the RDA. The RDA uses race, ethnicity and national origin as the attributes giving rise to differential treatment of the kind it prohibits. It does not use the term 'antisemitism'. In some ways, 'antisemitism' may carry an imputation that is more extreme than "racially motivated conduct". In s 9, the RDA makes no distinctions about the severity or gravity of conduct; only about its basis. Compare s 18C where, as I explain elsewhere in these reasons, there is an aspect of gravity or severity inherent in the prohibition. In their closing written submissions, the respondents eschewed the term 'antisemitism' (or "antisemitic conduct") in favour of the term "racially motivated conduct". They submitted the use of the terms "may obscure the kind of analysis required by the RDA". 31 I accept that the term needs to be used carefully, conscious that it may encompass much more than the analysis required by the RDA. So much is apparent from my next findings about Professor Rutland's opinions about a wider meaning of antisemitism. Professor Rutland's opinion is that the term can also be used to encompass "anti-Zionism that seeks to delegitimise the State of Israel". It is apparent from the definition used in her own report that this is an opinion she holds that lies outside the accepted definition of antisemitism. Since I have largely rejected the elements of the applicants' case that turn on alleged statements about the State of Israel, it is not necessary for me to enter into any discussion on this issue. The RDA includes national origin, and to the extent that I have found the national origin of Guy as an Israeli citizen was a reason for Mr Varney's conduct, those findings are based squarely on the terms of s 9 of the RDA, without any need to examine Professor Rutland's opinion about an extended definition of antisemitism. 32 Therefore, when in these reasons I use the term antisemitism, I have done so bearing in mind the definition advanced by Professor Rutland in her evidence, which was not challenged by the respondents: Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities. 33 The definition above is the working definition adopted by the International Holocaust Remembrance Alliance. Professor Rutland explains in her report that this definition has been adopted by 37 countries, including Australia, and "hundreds" of non-governmental organisations. It was adopted by Australia after Australia became a full member of the IHRA in 2019. Professor Rutland states that at the Malmo Forum on Antisemitism in 2021, the then Prime Minister of Australia, Scott Morrison, made a formal statement adopting the definition as part of Australia's pledge to fight antisemitism. 34 This definition sits comfortably with the conduct the RDA seeks to prohibit in s 9, and in s 18C subject to exceptions. It suggests, relevantly, the perception of a person or group as Jewish as being the reason for the conduct directed at them. That perception of being Jewish may plainly encompass the race or ethnicity of that person or group. In the context of the allegations made in this proceeding, I consider it is appropriate to use the term antisemitism as a descriptor for the student conduct in question. I do not use it as a substitute for the terms of the RDA, because I do not use it in relation to those alleged to have contravened the RDA in this proceeding, such as Mr Minack.

Names of student perpetrators 35 On 20 May 2022, the Court dismissed an interlocutory application made by the respondents: Kaplan v State of Victoria [2022] FCA 590. In that interlocutory application, the respondents had sought the suppression of the identities of 34 individuals whose names appear in the applicants' pleadings and whose names also feature in the evidence. Many of those names are those of students who were at times referred to during the hearing as "student perpetrators" - students who engaged in, among other things, verbal and physical assaults, taunts, criminal conduct, Nazi salutes, racist assaults, battery and bullying of the applicants. Those students were not called as witnesses in the proceeding. They also were not named as respondents. Although there was insufficient justification for the making of suppression orders of the kind sought by the respondents in that application, neither is there are a need for the names of those students to appear in full in these reasons. Accordingly, in these reasons I will refer to those students only by their first names.

Other terminology used in these reasons 36 I have used the term leadership cohort in these reasons, usually together with a reference to Mr Minack and to BSC teachers. By this phrase I refer to those BSC teachers in leadership positions, namely Ms Podbury (while she was at BSC), Mr Minack (while he was principal and vice principal), Ms Angelidis, Mr Gargano and Ms Sentry. I do not include the relevant year level student coordinators (also referred to as student managers) in this description, because the evidence suggested they were often quite junior teachers. It was common ground that the year level coordinators were responsible for disciplinary decisions up to a certain level, beyond which the relevant decision (eg suspension) rested with Mr Minack as principal. However, in my opinion the year level coordinators did not, on the evidence, play a leadership role. 37 I use the terms Chronicle entries, Chronicle records or Compass records to refer to the records of student welfare and behaviour recorded by teachers at BSC, largely but not exclusively of negative student behaviour, within the digital management system Compass. 38 I use the term BSC records in these reasons to refer to the documentary evidence adduced as business records from the school, which includes emails, Chronicle records, teacher diary notes, counselling notes, forms and notices (relating to suspensions, for example), school reports, student learning plans or other types of plans, school newsletters and other similar school records. 39 I have used the term relevant period to describe the period covered by the applicants' allegations; namely 2013 to 2020. 40 The applicants sought to employ a comparator (as is discussed further below in these reasons) in their arguments. The comparator for Jewish students was said to be students at BSC described interchangeably as "LGBT", "LGBTQI", "LGBTQI+" and "LGBTQIA+" in oral and written submissions. In these reasons, I will use the term LGBTQIA+ as a reference to lesbian, gay, bisexual, transgender, queer (or questioning), intersex, asexual, or other sexually or gender diverse people. 41 UJEB is a reference to the United Jewish Education Board, a not-for-profit organisation, that was described in the following terms by Jemma Katz, who was a UJEB madricha: UJEB is a non-profit organisation that provides Jewish education for students who don't go to a private Jewish school and J-Lunch is a program offered to those students at lunchtime where two youth leaders, for example, myself, would go into the school and provide - provide some casual - casual - yes - education, some fun games relating to Jewish festivals or Jewish law, traditions, things like that. 42 J-Lunch was also described as UJEB lunch in the evidence. 43 There were various madrichim who gave evidence as witnesses called by the applicants. Madrichim, also referred to individually as madrich or madricha, were described in the evidence as "youth leader[s]", or "leader[s]" or "facilitators". One madricha, Leah Hain, described her role as follows: I would go into the schools and teach kids at public schools all about Judaism, what's coming up in the Jewish calendar, what was going on with events concerning Australian and Israel, anything that they needed to know that was coming up, educate on traditional values and how Judaism works, as well as making sure that their welfare and health were taken care of in regards to their religion, making sure that the school environment was a safe environment and that they knew that they had a community and people to talk to. 44 I use the applicants' first names throughout these reasons, which is broadly consistent with how the applicants were content to be identified during the trial. I have done the same for student witnesses where those witnesses indicated they were content to be identified by their first names.

RDA s 9 45 Section 9 of the RDA provides: 9 Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (4) The succeeding provisions of this Part do not limit the generality of this section. 46 In Wotton v Queensland (No 5) [2016] FCA 1457 at [530] and [531] I explained my understanding of s 9, which I apply in these reasons: It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of "elements", as the respondents' submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if "effect" is the focus; or on what was intended, in a purposive sense, to be the outcome, if "purpose" is the focus. The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened. (Original emphasis.) 47 In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply: Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 ("to a more limited extent") rather than the language of s 9 ("nullifying or impairing the recognition … on an equal footing"), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference. 48 As I explain below, even if a "comparator" is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment. 49 There was no debate between the parties that the applicants' case under s 9 was largely an 'omissions' or 'failures' case, relying on the terms of s 3(3) of the RDA, which provides: For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure. 50 As senior counsel for the respondents accepted in closing submissions, the three broad categories of omissions or failures which were repeated in the applicants' pleadings, concise statement, evidence and submissions were failures to remove antisemitic graffiti (mostly, but not exclusively, swastikas), failures to "discipline" perpetrator students and failures to "educate" students as a cohort, including student perpetrators but not limited to them. 51 The respondents contended in writing: The RDA also requires the basis for the conduct to be identified; what is sometimes called the "true basis". There is no requirement to show a "strict causal nexus", but the applicants must show a "close relationship between the designated characteristic and the impugned conduct". This gives rise to particular complexities where the allegation is a person omitted to do something based on race; that would seem to require some evidence the person first turned their mind to the matter. (Original emphasis, footnotes omitted.) 52 In oral closings, senior counsel for the respondents developed this at various points. For example, he submitted: But our short point there will be in an omissions case where it's based - where you have to have a connection with - based on race, there needs to be at least some element of awareness, knowledge turning the mind. It can't just be a pure omission case in the absence of any knowledge otherwise you won't get the necessary based on race connection. And so in order for an omission case - no doubt omission cases can succeed, but frankly there aren't that many of them. … … it's difficult to hold someone like the principal liable for a section 9 omission, absent something that suggests that he turned his mind to the point of decided not to do it or refused to do it or didn't do it, omitted to do it, but for some reason it was based on race. And so that's why we do emphasise that the applicant's case really had not paid any attention to who is the person that did the act, what were the circumstances in which they did that act, what knowledge did they have at the time that they did that act? By simply aggregating it altogether and lumping it altogether under the label of "the school", it makes it all completely impenetrable and completely impossible to analyse properly for the purposes of section 9. 53 Senior counsel also accepted, by reference to some of the authorities on negligence and the law in Victoria on Crown immunity, that much of the legal responsibility (and therefore the factual focus) comes back to the conduct of Mr Minack. In my opinion, this reality also arises from the very nature of a principal's legal duties and functions at a school: in terms of the implementation of policies, the setting of standards of behaviour in students, and the setting of standards, tone and culture in terms of how staff at a school behave, react to various circumstances and deal with student behaviour. The leadership responsibility falls directly on a principal. 54 Appropriately, in his cross-examination, Mr Minack accepted this was the case, and the respondents' submissions did not seek to walk away from that reality either. 55 I accept, as the respondents submitted, that since s 9 is about conduct, when in a given case allegations relate to refusal or failure, there must be some element of consciousness, or choice, in the actor. The justification for that, as senior counsel suggested, is that s 9 is concerned with the reason or basis for conduct - whether that conduct is positive conduct or a refusal or failure to do an act. In other words - the question is either - why did a person act as they did; or why did they refuse to act? The inquiry into that question may encompass some examination of the state of mind of the actor. 56 To take the simplistic example of the provision of a rideshare service. Suppose a Japanese person calls a rideshare, and either: (a) the driver then charges the person twice the appropriate fare (the positive conduct being the charging of an inflated fare); or (b) the driver then refuses to allow the person to get into the car (the conduct being a refusal within the terms of s 9 by reason of s 3(3)). 57 Putting to one side the effect on human rights for the purposes of this simplistic example, for a contravention of s 9 to be established an applicant will need to prove that the basis for either the positive conduct of charging an inflated fare involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin (ie the less favourable treatment), or the omission/refusal of not allowing the person to get into the car, involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin, was that the person was Japanese. The evidence may be circumstantial, but as the respondents submitted, in the second set of facts, at some point the Court will need to be persuaded about why the rideshare driver refused to allow the person to get into the car. That is likely to involve, as a forensic reality, some assessment by the Court of the state of mind of the actor - their attitude, their reasoning; their choices. 58 In the present proceeding, the applicants must prove that the failures they ascribe largely to Mr Minack as the principal of BSC had an element of (assuming failures can be proven) consciousness or choice in them, in order to be able to satisfy the Court that the basis for the distinction, exclusion or preference arising from the failures was race. 59 It is important to underscore that in the circumstances of the present proceeding, this exercise - asking whether the distinctions involved in the failures were based on race - is not confined to asking whether the failures were because the applicants are Jewish. That would not be accurately to apply s 9. The question is whether the failures involved a distinction based on race. Here, the Jewish race. The failures and distinction might be proven by reference to the applicants' Jewishness being a factor in the failures to discipline student perpetrators appropriately, or failures to take adequate action to reduce the likelihood of bullying and harassment, in the sense of not as much regard being paid to the protection of Jewish students. 60 However, some of the allegations - such as the failures to remove graffiti - employ race in a different way, a way I consider permissible under s 9. In those examples, it is not so much the race of the applicants, as the race of the people who are the subject of the graffiti. In other words, the s 9 question is whether the failure to remove graffiti that is offensive to Jewish people (not just the applicants) involved a distinction (tolerance of graffiti) based on the graffiti being about Jewish people or being graffiti particularly offensive and triggering for Jewish people, rather than, for example, graffiti about sexual topics, or homophobic graffiti. 61 In terms of the approach to the evidence in deciding whether on the balance of probabilities conduct was "based on" race, there are at least two observations by Kiefel J (as her Honour then was) in Toben v Jones [2003] FCAFC 137; 129 FCR 515 which should be noted. 62 First, at [58], her Honour described the relationship between the s 9 act and race as subject to an inquiry whether "anything suggests race as a factor" in the act, or conduct. 63 This might also be expressed as the need to identify a sufficient connection between the restriction/distinction/preference produced by the conduct, and race or ethnic origin. In Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; 107 NSWLR 544 at [68], Basten JA said: The necessary and sufficient connection between the restriction and race (ethnic origin) in the case of a disparate impact is the fact that it adversely affects persons of one ethnic group disproportionately. That is the fundamental criterion of disparate impact discrimination, founded on "effect", not purpose. 64 Second, Kiefel J's observations in Toben v Jones at [63] are helpful, with respect: The inquiry is as to the true reason or true ground for the action (see Banovic at 186 per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions. (Original emphasis.) 65 As I observed in Wotton, by reference to the reasons of Allsop J (as his Honour then was) in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 at [37], s 9 ultimately must be approached in its whole form. Dividing it into elements can tend to remove the focus from the purpose of the provision as a whole, which is to prohibit less favourable treatment on the basis of (relevantly) race, where that treatment had particular effects on human rights. See also Hamzy at [53], Basten JA. 66 Provisions such as s 9 are intended to operate in the real and often messy world of human experience and human engagement. They have a critical but not complicated objective - to make unlawful (and thus discourage) the differential and negative treatment of individuals because they happen to belong to one race, or have one kind of ethnic origin, rather than another. 67 There is a question about which attribute nominated in s 9 and s 18C is the correct attribute for Jewish people. The respondents accepted "national origin" was the applicable attribute to those aspects of the allegations that involved some of the applicants identifying as Israeli citizens, or as Israeli. The respondents also submitted that "ethnic origin" was an appropriate attribute to describe Jewish people. In Toben v Jones, the Full Court accepted both race and ethnic origin could be applicable, the primary judge having used both, and there being no debate on the appeal about that approach: see at [22], [37]-[38] (Carr J), [57] (Kiefel J), [153]-[154] (Allsop J). See also Hamzy at [59] (Basten JA) and the authorities there referred to. I propose to use the formulation of race in these reasons. 68 In her cross-examination, Professor Rutland said: And being - the - how to define a Jew is so complex, because not all Jews are religiously observant. The Jewish identity can include national, ethnic, cultural - you know, all the cultural factors. I mean, culture includes religion, ethnicity, food. There's so many elements to it. And there are so many different ways today that Jews identify as being Jewish. So it can - it is definitely ethnic from a Jewish perspective. You can have someone who's totally irreligious, rather, and yet identifies strongly as being Jewish. 69 This holistic sense of Jewish identity came through in the evidence of many of the applicants' witnesses. Being Jewish was for the applicants, I find, a way of identifying that was not restricted to their religious faith, but encompassed many aspects of their lives - how they dressed, who they associated with, what they were interested in, how they viewed the State of Israel, and how they saw themselves in their families and in the wider Jewish community. 70 The respondents correctly submit, and the applicants accept, that s 9 does not contain any requirements for proof of the circumstances of a comparator before a contravention can be found. That does not make comparators irrelevant, as the respondents appeared to suggest. Discrimination is about differential treatment. This raises the question - different from whom? The whole purpose of a comparator in a discrimination context is to assist in focusing on first whether there was differential treatment, and second on the reason for that treatment. Using a comparator who has different attributes, or who does not have a nominated attribute, can assist in a forensic and reasoning sense in identifying why a person was treated differentially (assuming that has been established).

The human rights relied on by the applicants 71 The applicants relied on a plethora of human rights for the purposes of their s 9 arguments in particular. The human rights relied on were expanded in submissions from what appeared in the statement of claim and the concise statement. 72 The rights pleaded or referred to in the statement of claim and the concise statement, as far as I can discern, included: (a) the right to education; (b) the right to security of person and protection (including from violence); (c) the right to equality before the law; (d) the right to access a public service; (e) the right to equal participation in cultural activities; (f) the right to freedom of thought, conscience and religion; (g) the right to freedom of expression; and (h) the right to preserve Jewish identity. 73 None of the applicants' human rights were "nullified" by any of the conduct I have found proven. The term "nullified" in s 9 connotes circumstances where a person's human rights are abrogated. The applicable effect in the circumstances of these proceedings is impairment, which connotes damaging or adverse effects on a person's human rights. Further, the circumstances of this proceeding concern the enjoyment or exercise of human rights by the applicants, while they were students at BSC and in the context of their attendance at a state secondary school. 74 In the present circumstances as I have explained them, it is unnecessary to address all the human rights relied upon, because I am satisfied there were three human rights which were impaired in ways that had differing effects and therefore should properly result in distinct consideration in the Court's awards of compensation. Even if there were other human rights of the applicants that were impaired, in my opinion they did not result in any different kind of harm that flows through to the awards of compensation. The arguments by the applicants' counsel about the multitude of human rights contended to be engaged were scattered, undeveloped and little more than assertions. It is neither efficient nor necessary for the Court to trawl through them in an already lengthy judgment such as this. 75 Some of the human rights relied on, such as the right to freedom of thought, conscience and religion, were not impaired at all by the conduct I have found to have contravened s 9 of the RDA. There was no prohibition imposed on any of the applicants that impaired their rights to freedom of religion. They were free to wear religious clothing, and I have found that the only times in the evidence there were any incidents about their religious clothing (kippah, necklace etc) were either anomalous examples of conduct by an individual teacher, or part of the antisemitic harassment by students, who are not respondents to this proceeding. BSC policies appropriately recognised freedom of religion in students, and the evidence does not suggest any denial of this freedom in practice. 76 The three human rights I propose to consider in more detail are: (a) the right to security of person and protection; (b) the right to education; and (c) the right of the applicants to preserve their Jewish identity. 77 The right to security of person and protection is expressed in that form in art 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination, and so is expressly picked up by s 9(2) of the RDA. In full, art 5(b) provides: The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; 78 The right appears in various forms across international instruments, most prominently in the first sentence of art 9(1) of the International Covenant on Civil and Political Rights: Everyone has the right to liberty and security of person. 79 Though the remaining paragraphs of art 9 relate to deprivation of liberty, the right to security of person is considered a distinct right which applies regardless of whether a person is detained or not detained. The right protects individuals against intentional infliction of physical or mental injury, and carries with it an obligation to protect individuals from threats to life or bodily harm, from either government or private actors. See chapter 11 of Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd edition, 2013), and the Human Rights Committee's General Comment No 35 at [9]. See also Wotton at [1514]. 80 The applicants in their written closing submissions repeatedly refer to the right to "security of person / protection from violence". For the latter component, the applicants also rely on art 19 of the Convention on the Rights of the Child. For example, the applicants submit at [21]: Moreover, the Applicants' right to security of person and protection (Art 5(b)) was violated by the Swastikas. Lerner states that the purpose of Art 5(b) is 'to avoid any distinction in the protection of individuals against any violence, whoever inflicts it.' (p59). Relevantly, Art 19 CRC delineates a poignant model for prevention of violence in all its forms, including mental violence (Art 19(1))), and the States' obligations to respond to harm, for children. Art 19 is the core CRC provision for protection of children. Art 19 CRC binds people who have 'the care of children', including 'education', 'school' and institutional/government personnel. The definition of 'violence' extends to intentional and non-intentional acts of commission or omission by caregivers, causing physical, psychological or emotional harm. (Emphasis in original, footnotes omitted.) 81 Article 19 of the CRC is expressed as follows: 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. 82 The respondents dispute the characterisation of art 19 as a "right", in a footnote to paragraph [13] of their written closing submissions: On the other hand, several of the "rights" the applicant relies upon impose obligations on the State Party to take specific action or to agree aspirational concepts, for example: Article 19 of the CRC places an obligation on a State Party to "take all appropriate legislative, administrative, social and educational measures to protect the child" from certain conduct. 83 While art 19 of the CRC is more expansive in setting out the measures to be taken, art 24(1) of the ICCPR does express a related concept as a "right": Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 84 Though their submissions frequently elide art 5(b) of the ICERD and art 19 of the CRC, the applicants have not clearly developed the relationship they appear to submit exists between the right to security of person and the right of the child to protection (or, on the respondents' contention, the obligation of the state to protect children). I agree that art 19 has some relevance to the right to security of person in the context where the victims of harm are children. However, I find that the right to security of person, as it is expressed in art 5(b) of the ICERD, is sufficient to capture the nature of the impairment alleged by the applicants, being physical and mental harm. To the extent that art 19 of the CRC, and the related rights of the child to protection, such as art 24(1) of the ICCPR, give content to the nature of the protection that should be afforded to children in protecting them from physical and mental harm, I have had regard to those articles to that extent only, and need not decide whether art 19 itself provides an independent right that is capable of being impaired for the purposes of s 9 of the RDA. 85 The right to education (or the right to education and training as it is expressed in art 5(e)(v) of the ICERD) is enshrined in art 28 of the CRC, art 13 of the International Covenant on Economic, Social and Cultural Rights and art 26 of the Universal Declaration of Human Rights. The right is articulated differently between these conventions, but not in ways materially relevant to the content of the right for present purposes. See the commentary of Christian Courtis and John Tobin in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) at p 1059. The most detailed articulation of the right is found in art 13 of the ICESCR and is elaborated upon in commentary produced by the Committee on Economic, Social and Cultural Rights. Article 13(1) provides: 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 86 The right to education is recognised as a right enabling the enjoyment of other rights and one that "epitomizes the indivisibility and interdependence of all human rights": General Comment 11 of the CESCR at [2]. The CESCR further elaborates on the content of the right in General Comment 13, adopting the "four A" framework of availability, accessibility, acceptability and adaptability: see General Comment 13 at [6]. The applicants make submissions in respect of the latter three of these features: see, for example, the applicants' written closing submissions at [31] and [49]. I agree that "availability" in the sense of the ICESCR is not in issue in this proceeding. Accessibility requires educational institutions to be accessible to everyone without discrimination on any prohibited grounds. Acceptability requires the form and substance of education to be relevant, culturally appropriate and of good quality. Adaptability requires education to be flexible to adapt to the needs of a changing community and respond to the needs of students in diverse social and cultural settings. The right to education, like all rights under the ICESCR, imposes the tripartite obligation on the state to respect, protect and fulfil: see General Comment 13 at [46]-[48]. In the circumstances of this proceeding, the Court's findings on the impairment of the applicants' human right to education concern accessibility, insofar as it encompasses a safe educational environment, and acceptability and adaptability insofar as they encompass an educational environment that encourages respect of Jewish traditions as it might any other religious or racial or ethnic traditions, and discourages student behaviour and attitudes that involve insult, offence and humiliation towards students because they are Jewish. 87 The CRC expands on the right to education in art 29 by setting out the agreed aims of the education of the child, including "the development of respect for … his or her own cultural identity" (art 29(1)(c)). However, I agree with the submissions of the respondents that art 29 reflects an agreement between State Parties, and does not recognise an individual human right. To the extent that the applicants rely upon art 29 as a distinct right that can be impaired for the purposes of s 9, that contention is misconceived. 88 The right of the child to preservation of identity is unique to the CRC. It is not one of the rights expressly included in the remit of s 9 through s 9(2) because it is not listed in art 5 of the ICERD. However, art 5 of the ICERD is not to be treated as an exhaustive list of rights; rather, as stated in General Recommendation 20 of the Committee on the Elimination of Racial Discrimination, art 5 "does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights": at [1]. It is therefore legitimate to look to other international instruments to give content to the phrase "any human right or fundamental freedom" in s 9(1). See Iliafi v Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; 221 FCR 86 at [62] (Kenny J, Greenwood and Logan JJ agreeing). 89 The text of art 8 of the CRC reads: 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. 90 The article explicitly protects certain elements of a child's identity, being "nationality, name and family relations as recognized by law". Here, "nationality" is clearly engaged by the applicants who identify as Israeli. The term "identity" is otherwise undefined, and the Committee on the Rights of the Child has not published any definition of the term. The applicants submit that "identity" includes "matters of 'cultural' and 'religious' identity". The applicants rely on the work of John Tobin and Jonathan Todres in their commentary on art 8 in the CRC Commentary in support of this submission. 91 Tobin and Todres provide useful insight into the drafting history of art 8, which reveals that the word "including" was used "so that other elements of identity will not be excluded": see CRC Commentary at p 291. Construing the article in the context of surrounding articles would support a broader reading of the term, particularly the right of the child to be heard (art 12), the right to freedom of thought, conscience and religion (art 14) and the rights of indigenous children and those belonging to minority groups to enjoy their own culture, profess and practise their religion and use their own language (art 30). This is the position argued by Tobin and Todres in the CRC Commentary: see at pp 285, 295-6. 92 There is limited jurisprudence on the content of the right outside of the explicitly protected categories, but what case law there is tends to support a broader interpretation of the term "identity". From the United Kingdom, in J v B and the Children [2017] EWFC 4 the Court relied on art 8(1) in finding that the preservation of the children's Jewish identity outweighed the importance of contact with their transgender parent: at [185], [187]. J concerned three young children who were being raised in an ultra-orthodox Jewish community. Their father had transitioned to female and left the community. They and their mother remained in the community. The case concerned access by the father to the children. In a compassionate and insightful judgment, Jackson J found (with some reluctance) that only indirect contact should be permitted, and as part of his reasoning noted (at [185]): These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. 93 The New South Wales Court of Appeal found that art 8(1) was relevant to the issue of "cultural identity" in Re Tracey [2011] NSWCA 43; 80 NSWLR 261 at [48] (Spigelman CJ, Beazley JA agreeing), although the Court did not give any detailed reasoning. In Re Alex [2009] FamCA 1292; 248 FLR 312 at [180], Bryant CJ included art 8 as one of the rights being "particularly apposite" to a case regarding a child's gender dysphoria. 94 In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1, the applicant invoked art 8 as one of the bases for an (unsuccessful) s 9 claim regarding the impact of youth detention on the applicant's Aboriginal identity, but the Court did not make any findings on this matter. 95 I am satisfied that "identity" is broad enough to incorporate the applicants' Jewish identity and therefore that the right is engaged. In art 8, "identity" is about more than being given the capacity to prove a person is who they say they are: it is about more than identity documents and recognition of where a child belongs. It extends in my opinion to cultural and religious identity - to a child being able to develop and express who they are in terms of their race, their culture and their religion. In my discussion of Professor Rutland's evidence, I have accepted her opinions about how important it can be for Jewish young people to be able to express and be proud of their cultural and racial identity. Doing so is an expression of their CRC art 8 rights. 96 Clearly, as with many human rights, the manner in which rights can be expressed or manifested may be justifiably limited or restricted in certain circumstances. Some of BSC's rules and policies about uniforms for students from various racial and religious backgrounds are examples. As I have explained, there is no persuasive evidence that there was anything unlawful about the nature of those rules or polices or their implementation. In the context of the allegations I have found proven, the right to Jewish identity is engaged in terms of Mr Minack, and through him the leadership cohort and teachers at BSC, failing to take adequate steps to protect Jewish students from antisemitism, so that they did not have to hide or conceal their Jewish identity, or feel ashamed or humiliated because they were Jewish. 97 Therefore, for each of the individual applicants, I have considered any contraventions of s 9 in respect of these three human rights, and have considered the effects of impairing these rights in considering the appropriate compensation that should be given, where I have found a contravention of s 9.

RDA s 18C 98 Section 18C of the RDA provides: 18C Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. (Original emphasis.) 99 Again, there were alleged contraventions of s 18C which were said to be systemic and in that sense to affect all the applicants, and others which were specific to some of the individual applicants. 100 It appears to be common ground that, for the purposes of s 18C, all of the acts and omissions alleged were done "otherwise than in private", the school environment being a public environment. 101 In my opinion, some of the applicants' common or systemic allegations misconceive the purpose and object of s 18C. While the student conduct which forms the underlying factual substratum for the applicants' allegations against the respondents might well be captured by the terms of s 18C, the alleged failures and omissions by Mr Minack (directly or through BSC staff whom he managed) are not. 102 The exception to this, in the common allegations, is the March 2019 speech by Mr Minack. I accept that is capable of being a contravention of s 18C, at least on the applicants' allegations. The same is true, in theory, of the allegations by Matt and Guy against Mr Varney and Ms Flessa. 103 The reason for my opinion is relatively straightforward. By s 3(3) of the RDA, failures and omissions are deemed incorporated into the concept of an "act", and as I have explained above Mr Minack's failures and omissions could contravene s 9, because there could be a direct relationship between the failure or omission and race; namely, that antisemitic student conduct was tolerated to a far higher degree than other forms of wrongful student behaviour. 104 In contrast, it is not Mr Minack's failures as principal to react appropriately to antisemitic conduct (including antisemitic graffiti) which was "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". It was the antisemitic conduct (including the making of graffiti) itself. 105 The applicants' case fails to appreciate this difference between s 9 and s 18C. That is why, although by s 3(3) it is conceivable that s 18C could be contravened by an omission or a failure, it is difficult in reality to see how that might occur. The principal focus of s 18C is on the positive conduct of an individual and its effect on another person (or group), provided that objectively the reason for that conduct is the race, colour or national or ethnic origin of the other person (or of some or all of the people in the group). As French J (as his Honour then was) explained in Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [70], the legislative intention behind s 18C (and 18D) in the second reading speech introducing these provisions was "to close a gap in the legal protection available to the victims of extreme racist behaviour", and to balance the principles of free speech against the need for this protection. His Honour quoted the second reading speech: Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act. 106 That is why, as I have noted, the antisemitic conduct of the BSC students may well have in theory fallen within the terms of s 18C, subject to the matters of sufficient seriousness in any given act, to which French J in Bropho referred at [70]. 107 This is not an irrelevant point, but its relevance is not as suggested by the applicants' arguments. Its relevance is to the attitude of Mr Minack and BSC staff to the antisemitic conduct perpetrated on the applicants during the relevant period. I include the drawing of swastikas in this, especially when those swastikas were deliberately drawn for one or more of the applicants to see. But I refer more pointedly to much of the other antisemitic conduct which I have found proven - the disgusting taunts about ovens and chimneys, the taunts about money and coins - these kinds of behaviour promote racial hatred of Jewish people. So much is obvious. But it did not appear obvious to Mr Minack or to BSC staff. This kind of conduct is what the federal Parliament sought to give people such as the applicants protection from, by the enactment of s 18C and s 18D, and their offence equivalents. The law of Australia gave them this protection, but the conduct of Mr Minack, and through his lack of appropriate leadership on this matter, the other staff at BSC, impaired that protection. The existence of provisions such as s 18C and s 18D (and for that matter, equivalents in Victorian State law - see, for example, Racial and Religious Tolerance Act 2001 (Vic) s 7), should have marked out to any reasonable principal and teaching staff that they needed to take complaints about this kind of behaviour more seriously than they did. The irony of imposing the study of Maus on BSC students while this kind of behaviour went on, and was dealt with inadequately and sometimes not at all, is a stark one. 108 The circumstances in which an omission could have the effect of offending, or insulting, humiliating or intimidating, are more difficult to conceive. The applicants did not develop at all in their argument how this novel approach to s 18C fell within the text, context and purpose of the provision. 109 Unsurprisingly, the vast majority of cases dealing with s 18C have involved positive conduct: see, for example, Bropho; Toben v Jones; Bharatiya v Antonio [2022] FCA 428; Haider v Hawaiian Punch Pty Ltd (t/as The Honeypot Club) [2015] FCA 37; Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475; Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352; Hagan v Trustee of Toowoomba Sportsground Trust [2000] FCA 1615; Murugesu v Australia Post (No 2) [2016] FCCA 2355; Barnes v Northern Territory Police [2013] FCCA 30; Kanapathy v in de Braekt (No 4) [2013] FCCA 1368; Campbell v Kirstenfeldt [2008] FMCA 1356. While there have been at least one, and possibly two, cases where the Court has considered an omission, failure or refusal was capable of engaging s 18C, the circumstances concern internet posts and are quite different from the present circumstances: see Silberberg at [34]; Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307; 201 FCR 389 at [108]-[110]. 110 Thus, s 18C is in principle readily applicable to Mr Minack's March 2019 speech. The making of the speech, in the context it was made and with the content it had, was clearly an "act" to which it is possible to apply the terms of s 18C(1)(a) and ask if it was, objectively, reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate one or more of the applicants, or Jewish students at BSC, or BSC students more generally (or some other relevantly defined group). The same is true of the positive statements and conduct alleged by Matt and Guy against Mr Varney and Ms Flessa. Otherwise, the bulk of the applicants' s 18C allegations are misconceived.

NEGLIGENCE: THE CORRECT APPROACH AND SOME GENERAL FINDINGS 111 The respondents correctly submitted that the way the applicants' counsel had approached the liability of the State, in terms of submissions throughout the trial, in cross-examination and in final submissions, was misconceived. The misconception was, the respondents submitted, apparent from the repeated references to "the school" and "BSC", as if through these descriptors some liability could attach either to individuals, or to the State. 112 In Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22, a case about the liability in negligence for the conduct of independent contractors, Gleeson CJ described (at [6]) the character of a non-delegable duty of care: A conclusion that, in given circumstances, a defendant who is sued in negligence owed a duty going beyond a duty to exercise reasonable care to avoid injury (or injury of a certain kind) to a plaintiff, and extending to a duty to ensure that reasonable care to avoid injury to the plaintiff was exercised, is commonly described as a conclusion that a defendant was under a non-delegable duty of care to a plaintiff. It is a proposition of law concerning the nature or content of the duty of care. A duty of this nature involves what Mason J described in Kondis v State Transport Authority as "a special responsibility or duty to see that care is taken". (Footnotes omitted.) 113 The common law "non-delegable duty of care" in relation to school authorities and their pupils was confirmed in Commonwealth of Australia v Introvigne [1982] HCA 40; 150 CLR 258. It was described by Gleeson CJ in the following terms in New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [2]: A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence. (Footnotes omitted.) 114 In Lepore at [105], Gaudron J expressed the general common law position in this way: If a pupil is injured on school premises during school hours because reasonable care has not been taken to provide a safe school environment, the school authority is thereby shown to be in breach of its personal or non-delegable duty to provide a safe environment. And that is so no matter whose act or omission was the immediate cause of the pupil's injury or whose immediate task it was to do that which would have eliminated the risk of injury or to refrain from doing that which created that risk. 115 In the extracts from Lepore, the person who owed the duty of care was described as a "school authority". Similar expressions can be found in Introvigne, usually there by the use of the term "the school" as well as "the school authority". Of course, in Introvigne, the High Court found that the Commonwealth itself had a non-delegable duty of care, and apparently was content to ascribe to the Commonwealth the role of "school authority". The particular question that arises in this proceeding, which was underdeveloped by counsel for the applicants, was: insofar as Victoria is concerned, who or what is the "school authority" to which this non-delegable duty of care is to be applied? 116 The ambiguity in the term "school authority" must be resolved by reference to the particular legal situation in Victoria. 117 Section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) provides: the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him. 118 The contention of the respondents is that, by this provision, the only liability the State of Victoria has in tort is vicarious liability. If there is a non-delegable duty of care, it resides, the respondents submit, with Mr Minack as the principal of BSC, with the State being vicariously liable for any negligence proven against the principal. 119 In State of Victoria v Subramanian [2008] VSC 9; 19 VR 335 at [9], Cavanough J said: A primary or personal duty of care may attach to several parties within a school system: individual teachers, the school principal, and the school authority itself. Highvale Secondary College was conducted by the appellant, the State of Victoria. Ordinarily, the duty of a school authority to the pupils is a "non-delegable" duty. However, under the law of Victoria, the relevant liability of the appellant could only be a vicarious liability for the torts of its servants and agents, because the State of Victoria is generally immune from direct liability in tort. (Footnotes omitted.) 120 Cavanough J referred for the last proposition to s 23(1)(b), further adding the position was common ground before him and noting a comparison with the position at common law as set out in Introvigne at 264, 269-71 (Mason J), 280-281 (Brennan J). 121 The respondents submit this approach was confirmed in Pateras v State of Victoria [2017] VSCA 31 at [58]-[59] and Salt v State of Victoria [2017] VSC 6; 52 VR 130 at [24], [32]. I agree those authorities should be understood in that way. 122 I accept the respondents' submission that by reason of s 23(1)(b) of the Crown Proceedings Act, the position in Victoria is that the State has no direct liability in tort but has vicarious liability for its employees and agents. In the present circumstances, as senior counsel for the respondents submitted, it was Mr Minack as the principal of BSC who was "relevantly in the same position" and "effectively, had the same kind of non-delegable duty of care" as that explained by the High Court in Lepore (and in Introvigne). 123 The respondents also accepted, as Cavanough J explained in Subramanian, that an individual teacher may also owe an individual student a duty of care: see [19] of their written closing submissions where they contend, referring to Richards v State of Victoria [1969] VR 136: A duty of care arises from the relationship of teacher and student. The teacher must take reasonable care for students' safety, whilst the students are under the teacher's control and supervision. It is a positive duty to take reasonable care to provide a safe school environment, but is not one which insures against injury. The teacher must only take reasonable steps to protect a student against risks of injury which ex hypothesi should have reasonably been foreseen. 124 Unlike the non-delegable duty reposed (relevantly in Victoria) in a principal of a school or "school authority", if there is one, the duty of care owed by an individual teacher remains premised on individual failure to take reasonable care. That is, there must be alleged and proven conduct by an individual teacher said to constitute a breach of their individual duty of care to a student, as described in the respondents' submissions. There must also be alleged and proven a causal link between that breach of duty by the individual teacher concerned and damage suffered by a student. In contrast, the non-delegable duty is recognised as an exception to direct fault-based principles in negligence: see Leichardt at [6], [23], Gleeson CJ. 125 Of course, no broad generalisations can be made about the circumstances in which the duty of care owed by an individual teacher to an individual student will arise, let alone be breached. These matters are highly fact-dependent. 126 Many of the applicants' allegations as pleaded against individual teachers were too generalised to give rise to any clear allegation on the pleadings of the content of the positive duty of care owed by an individual BSC teacher and how it was breached. To take an example, despite many factual allegations being levelled at Ms Gibson about the way she dealt with Liam in her counselling sessions, the applicants do not plead that Ms Gibson, as an individual teacher, owed Liam a duty in the way she performed her role as counsellor to take reasonable care to provide a safe school environment so as to avoid reasonably foreseeable injury to Liam, nor how she breached any such duty, nor how any breach caused any particular damage to Liam. Nor, for example, was there any allegation that Ms Gibson owed Liam a duty to take reasonable care in passing on information revealed by him during counselling sessions to the BSC leadership cohort so as to avoid reasonably foreseeable injury to Liam, nor how she breached any such duty. There are simply no pleadings to any such effect. Therefore, the kind of duty of care contemplated in Richards and Subramanian in respect of individual BSC teachers does not arise, save (perhaps) for the allegations against Mr Varney and Ms Flessa. In those cases, the allegations related to one or more of the applicants and were referable to particular factual events. I deal with these allegations later in these reasons. 127 It may well be that many of the allegations made by the applicants against Mr Minack more closely approximate to an individual duty of care, because they often do involve failures or omissions by him, in his role as principal of BSC, to take the steps a reasonable principal would have taken to protect Jewish students from the high levels of antisemitic student conduct. Whether there were different characteristics in the duty of care owed by Mr Minack was not explored by either party, I assume because of the respondents' concessions. However, as Gleeson CJ makes clear in Leichardt at [9], certain duties of care may also be "non-delegable" because "it is of their essence that they be performed by a particular person". That may well be the true character of the duty of a principal of a school. Since the Crown Proceedings Act reposes only vicarious liability in the State, then at least insofar as a principal of a Victorian school is concerned, and depending on the factual situation in issue, the duty of care might be "non-delegable" in the sense I have just described, by reference to the extract from Leichardt at [9], as well as in the sense of a true "duty to ensure that reasonable care is taken". Much will depend on the nature of the allegations made in a given case. In my opinion, the kind of "non-delegable" duty of care described by Gleeson CJ at [9] in Leichardt is also applicable to the applicants' allegations. Since none of this was explored by the parties in light of the respondents' concessions on liability for the conduct of Mr Minack if negligence was proven, I say no more about it. Either way, the outcome is the same on the Court's findings. 128 Senior counsel for the State accepted that the description given by Murphy J in Introvigne at 274-275 and quoted by Gleeson CJ at [27] of Lepore was an appropriate description of the content of the duty of care owed by Mr Minack to students at BSC: To take all reasonable care to provide suitable and safe premises … [and] [t]o take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out. 129 To this could be added the following observations. In Introvigne at 270-271, Mason J described the duty of the "school authority" - which here can be read as Mr Minack on the respondents' concession: It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated. … There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. … The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants. 130 Brennan J put it in the following terms at 279-280: Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority. The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him. That duty is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen. (Footnotes omitted.) 131 Referring then to the "foreseeable folly of youthful exuberance", in a passage that can, with the respondents' concession, be equally applied to Mr Minack, Brennan J stated at 280: The circumstances of the case required positive action to discharge the duty to take reasonable steps to protect the pupils from foreseeable risks of injury. The necessary steps were not taken, the duty resting on the Commonwealth as the school authority was breached and the plaintiff was injured. The fact that the necessary steps were not taken establishes the breach of the duty for which the Commonwealth is liable. 132 I consider these passages applicable to the Court's assessment of the applicants' negligence allegations, which are to be understood on the basis that it is the principal of BSC who owed each of the five applicants a non-delegable duty of care, the content of that duty being described in the passages I have extracted above. The more precise articulation of the content of that duty is a matter I return to below. Here, however, it should be emphasised that, as Brennan J observes in the passage above, if the positive steps required to discharge that duty were not taken, then the non-delegable duty owed by a principal in the position of Mr Minack is breached. 133 I accept, as the respondents submitted, there is then a separate assessment required of the causal link between any breach (failure to take positive steps) and the alleged injury, and that this causation aspect poses some challenges for the applicants in terms of how their case was framed and developed (or not developed). 134 In the negligence section of the applicants' pleadings, there are two relevant pleadings; one which is consistent with the respondents' concessions, and one which is problematic. The pleading at [377] is consistent with the respondents' concessions: The First Respondent is vicariously liable for the negligence of the Second, Third and Fourth Respondents. 135 The problematic negligence pleading, in terms of the authorities, and the Crown Proceedings Act, is the pleading at [375]: The First Respondent owed each Applicant a non-delegable duty as pupils of the School to ensure that reasonable care was taken of them whilst they were at School during School hours. It was a duty to ensure that reasonable steps were taken for their safety, the performance of which could not be delegated. 136 That proposition is inconsistent with the Crown Proceedings Act, and the authorities to which I have referred. It is not the State that owes such a duty in Victoria. The applicants' counsel did not attempt to work through the authorities in writing or orally. In reply this was the submission: There's one issue which I just have to fly through. In terms of the Minister and the duty of care, Mr Young has referred you to Richards [and] [Subramanian]. Now, the point is this: the ultimate authority for the school is the State of Victoria. There is the Crown Proceedings Act, but that's about vicarious liability. The actual authority is the State of Victoria, and that's clear on those cases. HER HONOUR: But the pleading is vicarious liability. MR BUTT: Well, we plead in negligence that there's a non-delegable duty of care owed by the school authority. And the way it's in the submission is the State. HER HONOUR: You must accept that the school is not a person. MR BUTT: A school is not a person. The State is the school. The State is the school because they're the ultimate authority. The relevance of it is when I'm referring to those matters concerning the departmental officers, they are the school. They're part of the school authority. And that's relevant to either liability or aggravated or exemplary damages because the top of the school is not mister - he is subject to a non-delegable duty of care. But to the extent that departmental officers are doing things that are aggravating or negligent etcetera then it is liability. And the Minister is liable under the Racial Discrimination Act under section 6. 137 This submission cannot be accepted. Perhaps there are cases in NSW, or other jurisdictions, where identifying a "school authority" (depending on the legal character of the entity that operates a school) will be the appropriate course. However, this approach is not consistent with Victorian authorities. The position is as I have described it, and the Court proceeds on that basis. The correct position highlights the importance of a focus in the Court's findings on the conduct of Mr Minack, and the impermissibility of the applicants' broad allegations against "the school" or "BSC". 138 To the extent there are references in overseas authorities, such as Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, on which the applicants relied, about a "school" owing a duty of care, they must be seen through the particular legal lens applicable in Victoria. Even in those cases, where specific propositions are being discussed, it is clear the duty is often expressed by reference to the duty of the "head teacher" and other teachers. Under Victorian law, that is the correct approach. And for the purposes of the applicants' claim in this Court, it is Victorian law which is to be applied for the tort of negligence: Judiciary Act s 79; and see Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 at [63], [96]-[97] (Bell, Gageler, Keane, Nettle and Gordon JJ); Masson v Parsons [2019] HCA 21; 266 CLR 554 at [30] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 at [3610]-[3612], [4864]. 139 Further, and deviating to the RDA for a moment, there was no authority cited to the Court for the proposition of that a Minister of the Crown in right of the State of Victoria is "liable" under the RDA because of the terms of s 6 of the RDA. Section 6 provides that the RDA binds the Crown "in all its capacities". The purpose of this provision is to make clear the legislative intention that the Crown in right of the Commonwealth and the States (and their instrumentalities and agencies) were bound by the terms of the RDA and the prohibitions in that legislation could be applied to conduct engaged in by or on behalf of the Commonwealth and the States: see generally Bropho v Western Australia [1990] HCA 24; 171 CLR 1. For a recent example, see Fisher v Commonwealth of Australia [2023] FCAFC 106. For a Minister of the Crown to be "liable" (to use counsel's description), an applicant would need to plead out conduct said to fall within (for example) s 9 of the RDA in which that Minister engaged. The same is true for departmental officers, referred to by counsel in the extract above. Those individuals would need to be respondents to the proceeding. None of that has occurred here. In this case, there are no allegations under the RDA made against the State of Victoria itself. It is not alleged, nor could it be on the facts, that the Crown in right of the State has done any "act" said to contravene s 9. Nor is there any pleaded allegation against any Minister of the Victorian Government in the statement of claim. No individual Ministers or departmental officials have been named as respondents. Some of the expansive submissions and assertions made by counsel for the applicants during final oral submissions find no grounding in the pleadings and need not be the subject of any further comment or findings. 140 Therefore, the Court proceeds on the basis articulated by the respondents, which I accept - that it is the principal of BSC who owed each of the applicants a duty to take reasonable care of the kind I have described above. 141 One consequence of this which was not adequately appreciated or explored by the applicants' counsel, until briefly touched on in final submissions, was that Mr Minack was not principal of BSC during Liam's time at the school. Ms Podbury was. Ms Podbury was a witness, but not a respondent. No pleaded allegations are made against her. This has real consequences for the prospects of success of Liam's case, as I explain later in these reasons. 142 The circumstances of the applicants' negligence case raise a number of difficult legal issues, and issues of legal principle, about the nature and scope of the non-delegable duty of care in a school setting, where the factual allegations said to give rise to the breaches of duty of care involve bullying and harassment by other students. There are at least three issues that should be identified before descending into the detail of each applicant's case: (a) there is no single incident in focus (cf Introvigne), so that the questions of what is the appropriate content of such a duty in relation to bullying and harassment across a number of years is a challenging one; (b) where, as is generally the case with omissions or failures, the allegation is a failure to take steps to prevent bullying and harassment, the moving party will need to prove what steps were reasonable for (relevantly) a principal to take, and should have been taken, providing an evidentiary basis for that contention; and (c) a moving party will need to prove that the taking of the asserted reasonable steps would have been effective to prevent, or at least restrict or reduce, the bullying and harassment suffered by a student. 143 Frequently, as I explain in these reasons, the applicants' forensic approach paid insufficient heed to these challenges. In part, I consider that can be explained by the unnecessarily broad and somewhat scattergun approach taken, and the plethora of criticisms levelled at an inappropriately wide range of people about what happened at BSC over the relevant period. The lack of discipline in what allegations were presented, and how they were developed, did not assist the applicants' overall case. The proceeding had, at times, on the applicants' side, the air of a Royal Commission or a political inquiry - which it was not. 144 Nevertheless, I have been assisted by the observations in two particular authorities on which the applicants relied, concerning the correct approach to allegations of failures to prevent harm to school students from bullying and harassment. The first is the Bradford-Smart decision, which, while dealing with the law as it stands in the United Kingdom, includes some matters of general principle and approach that should remain at the forefront of the Court's consideration in this case. The first observation relates to the challenges faced by principals and teachers in relation to student behaviour. At [30], the Court of Appeal referred with approval to the statements of Lord Slynn in Phelps v Hillingdon London Borough Council [2000] 3 WLR 776 at 792: The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded. 145 I respectfully agree with those observations. 146 Also in Bradford-Smart, the Court of Appeal made the following observations at [35]-[38], which are consistent with the three particular challenges for the applicants' negligence cases that I have highlighted above: The question is whether it was a breach of this school's duty of care towards Leah to fail to take any action against the pupils she said were bullying her outside school. The usual factors are all relevant in determining what a reasonable school might be expected to do: the extent to which it was foreseeable that failure to do so would result in actual harm to the victim, the extent of the risk, the magnitude of the harm, and the practicability and likely effectiveness of any steps which might be taken. We also accept the point made by Mr Faulks QC, on behalf of the school, that the school's duties arise because of its educational duties towards the child. Indeed those duties are also owed to all the other children in the school. Like any parent, the school will often be faced, in this or in any other context, with the problem of balancing one child's interests with another's. There will also be difficult questions of judgment as to how far the school should seek to step in where the parents or other agencies such as the police and social services have not done so. Above all, an ineffective intervention may in fact make matters much worse for the victim because she cannot be protected while she is out of school. It cannot be a breach of duty to fail to take steps which are unlikely to do much good. All of these considerations are also subject to the Bolam principle: if a reasonable body of professional opinion would not take such steps, then this school is not liable for failing to do so. Hence, although we accept that a school may on occasions be in breach of duty for failing to take such steps as are within its power to combat harmful behaviour of one pupil towards another even when they are outside school, those occasions will be few and far between. Mr Watling agreed that there were differences of view as to how far to go. The experts did agree that where an incident between pupils outside school carried over into school a reasonable headteacher should investigate if it had a deleterious effect upon the victim. In this case there were no adverse effects upon Leah's educational performance and development clearly attributable to what was going on. There was manifestly impressive evidence from Mrs Ashworth of the steps she did take to protect but not over-protect Leah. It is clear that a responsible body of professional opinion would have agreed that enough had been done. We thus conclude that the judge would have reached the same conclusion had he directed himself a little less restrictively upon the law. We would add that in all these cases it is necessary to identify with some precision any breach of duty found. It is also important to consider whether the steps proposed would have been effective in preventing the bullying. It is not enough to find that there has been bullying, to find some breach of duty, and then to find that the bullying caused the injury. There must be a causal connection between the breach of duty and the injury. That will often be difficult to prove. There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. In seeking to combat this it is always helpful to have working definitions such as those contained in the documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to have policies and practices in place to meet it; indeed, this school developed just such a policy in 'Working Together'. We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil and whether that breach caused the particular harm which was suffered. (Emphasis added.) 147 I respectfully agree with those observations as well. 148 The second authority is the single Judge and appellate decisions in Oyston v St Patrick's College [2011] NSWSC 269; Oyston v St Patrick's College [2013] NSWCA 135 and Oyston v St Patrick's College (No 2) [2013] NSWCA 310. 149 In Oyston at [152] (Tobias AJA, Macfarlan and Barrett JJA agreeing), in terms of the content of the duty of care: It is true, as the College submitted, that it was not required to ensure or guarantee that the appellant was not bullied. However, as her Honour recognised at [15] of her reasons, the College was obligated, in performing its duty of care towards the appellant, to take reasonable steps to ensure that the appellant was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. 150 This description of the content of the duty of care is consistent with the earlier authorities to which I have referred, but is more precisely drawn in a manner that is of assistance in the present proceeding. I respectfully agree with the formulation expressed. 151 In terms of the steps that should be taken, Tobias AJA said at [154]: In my view, the steps, such as they were, taken by Mrs Ibbett during 2004, did not provide a reasonable response to the not insignificant risk of harm to students such as the appellant if the bullying of them continued. In accordance with the College's own policies, it was insufficient merely to request teachers to keep an eye out for bullying; once a complaint of bullying was received, it required investigation and, if substantiated, action against the perpetrator. So far as the appellant was concerned, the evidence established that she was regularly bullied by JP and LM and to a lesser extent, AM. Reasonable steps should have been taken by Mrs Ibbett to carefully investigate the appellant's allegations and to act on them if she was satisfied that they were justified. 152 As to causation, in Oyston (No 2), Tobias AJA said at [15] (Macfarlan and Barrett JJA agreeing): The appellant was required to prove that it was more probable than not that but for the failure of the College to deal with the students who were bullying her, she would not have suffered the psychological injury which was the subject of the medical evidence. 153 With respect, all of those statements of principle, and observations, are ones I apply to the determination of the applicants' negligence claims in this proceeding. 154 At least in relation to one incident involving Liam and one (or possibly two) incidents involving Zack, the applicants contend there was a failure to take reasonable care to prevent what was on their case foreseeable intentional (and perhaps criminal) behaviour. There are some challenges apparent from recent authorities about the scope of liability for injuries arising from intentional or criminal conduct: see, for example, Prince Alfred College Inc v ADC [2016] HCA 37; 258 CLR 134; Lepore; DP v Bird [2021] VSC 850, affirmed by Bird v DP [2023] VSCA 66; 323 IR 174. There is also the issue of whether, if the Court finds there was a failure to take reasonable care on the part of any or all of the individual respondents or any other teacher, the respondents' liability extends to conduct not on school premises, such as the assault by BSC students on Zack in a local park outside school hours (park incident). I return to these matters in my findings below.

Observations regarding the causes of action and key allegations 155 The applicants' case was something of a movable feast throughout the trial, in terms of how it was put, what details were relied upon, and how arguments were advanced. In general, counsel for the applicants only provided more detail when pressed to do so. I accept the respondents were at some level of disadvantage in responding to the allegations because of this lack of clarity. 156 The applicants' closing written submissions were difficult to follow. There was no clear identification of the arguments on the different causes of action. Factual propositions were somewhat randomly alleged and it was challenging to connect them with the case as pleaded, and as advanced in the applicants' concise statement. It was difficult to follow entirely which factual propositions were said to go to which causes of action. 157 It is the applicants' case as pleaded, and as advanced in the applicants' concise statement, which is what the Court must decide upon, and what the respondents have been required to defend. These reasons are structured around those documents, as were the respondents' responses. That said, some realistic latitude in how allegations are expressed needs to be given in factually complex discrimination cases, which, as I noted in Wotton at [117], tend to involve a cause of action relying heavily on inference. The respondents did not take an overly pedantic approach in this proceeding, which was appropriate. 158 The lack of clarity continued into final oral submissions, pitched as they were at a high level of generality and assertion. While I accept there is some place for generalities and broad assertions in any persuasive exercise, it is not the Court's role to become a detective and search through the applicants' factual allegations and the evidence said to support them, and itself try to connect those factual allegations with various cases of action, or various elements of causes of action. 159 Therefore, this description of the applicants' case flows from the Court's consideration of the pleadings and the concise statements, with their opening and closing submissions being read in that context. 160 A number of allegations made by the applicants must fail at the outset, for the reasons set out below. 161 There are five individual applicants. Some of the allegations made were common to all applicants and concerned more systemic acts. Broadly, these were allegations of contraventions of s 9 and s 18C of the RDA by some of the school-wide acts and omissions, which the applicants each experienced to different degrees, and which had different effects on each of them. Others allegations of contraventions of s 9 and s 18C of the RDA were specific to one or more individual applicants. 162 Counsel for the applicants accepted in closing oral submissions that each applicant had to prove the individual contraventions they alleged, although he stressed the evidence needs to be looked at holistically. That latter proposition can be accepted. 163 The structure of the pleadings is partly responsible for the challenges in understanding the case being put. The statement of claim commences with a long series of factual allegations about each individual applicant. For example for Liam, the factual allegations extend from [4]-[63] (excluding a few factual allegations in respect of non-applicant students from [42]-[51]). Sometimes, mixed up in these factual allegations are allegations such as at [36] (about Liam's complaints): Liam was consistently ignored in a racially discriminatory and negligent fashion. 164 The same process of allegations of fact is undertaken for each individual applicant, by school year. Generally however, the causes of action said to arise from these pleaded facts are grouped towards the end of the statement of claim, from [346] onwards. 165 Working from this structure, in order to describe the causes of action, and how they are alleged, it is this latter part of the statement of claim - read fairly, and read also with the applicants' concise statement - that should be taken to set to the applicants' case in this proceeding. 166 At a high level, three categories of allegations can be discerned, and each is addressed in turn below. These are: (a) allegations common to more than one of the applicants; (b) individual allegations; and (c) rolled up or generalised allegations.

Allegations common to more than one of the applicants 167 On the case pleaded by the applicants, there are four categories of common allegations: (a) the content of the speech, or speeches, delivered by Mr Minack to school assembly, or assemblies, at BSC; (b) the presence of, and failure to remove, swastika graffiti, and other antisemitic graffiti, at BSC; (c) the failure to provide adequate disciplinary consequences, adequate behaviour encouragement and adequate education to BSC students to make it clear that antisemitic behaviour was unacceptable and would not be tolerated; and (d) the way in which the text Maus was taught at BSC. 168 The common allegations appear to be put as alleged contraventions of s 9 and s 18C and as breaches of the duty of care owed to the applicants. Precisely who owed the applicants a duty of care is a matter I explore later in these reasons. For the moment, those matters can be put to one side as I attempt to describe the factual categories of the allegations. 169 Patterns of conduct form a key theme of the applicants' cases on these common allegations. There are many factual allegations which are said to have amounted to a "tolerance of antisemitism" - see, for example, [60] of the applicants' closing submissions: In any event, from weeks into Matt's Year 7, he was immediately confronted with Nazi salutes, Swastikas and Heil Hitlers in locker bays. 602:33. This was scary and concerning for a Jewish boy. 603:39. Teachers were present. 603:20-21. Matt discussed this with Mr Tran who did nothing. 603:26. It started as 2 or 3 times a week and escalated or normalized. During March-June 2017, Matt was physically assaulted unprovoked, spat at and subjected to random antisemitic slurs by several children of which the upper BSC echelon were aware. On 20 June, Ms Abadee wrote to Matt's Coordinator referring to the growing problem of "antisemitic bullying" affecting "several children" and it needs to be "stopped immediately" and Matt is "scared to come to school". Tab 236. Even Mr Minack conceded Matt encountered a clear safety concern for a year 7 entering BSC (1471:38). The Court should find that BSC's conduct in dealing with Matt's antisemitic bullying was inadequate under s9 RDA /negligent because: (1) Mr Minack conceded that by mid-2017 he should have taken educative and proactive measures to protect Jewish students including Matt which he did not do (1474:2-1476:13), the type of treatment BSC implemented for other minority students including LGBTQIA+ (2) Mr Minack also conceded that should have happened in 2018, which never did (1428:1-32). (3) See also S Paul and Prof Rutland on this, above [50]. (4) BSC's records for antisemitic conduct were inadequate, as conceded, and its treatment inadequate where records existed. (5) Indeed by mid-2017 BSC, be it the Principal, Mr Mangold, or coordinators, there was clear written evidence of verbal ("Heil Hitler", Santa/chimney taunt, "get in oven") and physical antisemitic assaults to act on, which was not adequately done. Slater's spitting and "fucking jew" incident, was in close succession to his prior abuse and should have been seriously addressed but was denied. Similarly the Lucas [redacted] investigation by all BSC actors downplayed and denied serious antisemitism concerned since (a) no investigation was done into Mr Tran or witness Ron Sidelman (Tab 250), (b) Ms Hower and Mr Hutchins should have suspended Lucas for "Heil Hitler" as admitted by each of Ms Hower (1253:39), Mr Minack (1472:26ff) and Mr Varney (Tab 799). (c) Lucas's antisemitic pattern was not considered (e.g. chimney taunt (1253:27)) (d) Mr Mangold never stood up for Matt in the investigation and informed of antisemitic bullying as he should. He accepted perhaps he should have (2720:19-30). This downplaying and tolerance of antisemitic behavior was characteristic of the treatment BSC staff exhibited throughout the Period (and after), witnessed for example by Ms Lewis's non-punishment of antisemitic displays, while punishing obviously less serious matters as admitted (2174). The tolerance of antisemitism was well exemplified by Ms Sentry's mindset (2879:18-2880:10), coupled with Mr Minack's, loyally supported by Mr Gargano. The phenomenon is explained by Prof Rutland, p29. Further whereas Ms Hower, Year 7 coordinator, had no idea what UJEB was (1242:11-30), she/BSC well supported the SSA. (Original emphasis, footnotes omitted.) 170 There are also allegations by both Matt and Guy in relation to: (a) Ms Flessa; (b) Mr Varney; and (c) Mr Lyons. 171 Those allegations appear also to be put as alleged contraventions of s 9 and s 18C and as breaches of the duty of care owed to the applicants. 172 In terms of all the common allegations relating to the RDA, as I understood it, the applicants' position is as follows: (a) the acts (or, more correctly, failures/omissions) were said to "involve" distinctions, exclusions or preferences because they were all acts (failures/omissions) that singled out Jewish students for different treatment from other students; (b) school staff were not enforcing behaviour rules only when it came to Jewish students and behaviour about Jewish people; the applicants submitted there was a repeated theme during the period of a "poisoned educational environment", which is a phrase the applicants take from the Canadian decision of Ross v New Brunswick School District No 15 [1996] 1 SCR 825; (c) relying on Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, the applicants say they must only establish that the acts were "referable to" the applicants as Jewish people; and (d) the human rights nullified or impaired by the acts and omissions were said to be those I have set out above at [72] (at least in the pleadings).

Individual allegations 173 A significant number of allegations were made by individual applicants. Most of these allegations involve conduct by other BSC students, complaints the applicants contend they made about that conduct, and what the applicants contend was the inadequate response by the teachers or staff they (and/or their parents) complained to, and ultimately the inadequate response from the school leadership, in particular Mr Minack. 174 The individual allegations span a wide range of incidents, including the making of racist taunts and 'jokes', physical shoving and kicking, cyberbullying and physical assault. The applicants plead that these incidents were often reported to staff at BSC, or that BSC staff witnessed incidents. At times the pleadings specify to whom, and when, the applicants made complaints, but at other times these details are not specified. That is consistent with the evidence I heard from the applicants; namely, that on occasions they could clearly recall who they complained to, and on other occasions they could not recall. 175 In some instances, specific complaints regarding incidents were not pleaded - rather, the applicants at times made more general assertions that reports or complaints were made at various instances and over an extended period of time.

Rolled up or generalised allegations in the pleadings 176 At several points in the pleadings, the applicants make rolled up allegations which in my opinion should be struck out, and should not be the subject of any determination by the Court. 177 Over the respondents' objections at times, the applicants were given considerable leeway in relation to their pleadings in the early stages of this proceeding, on the basis that, as a claim in the Court's human rights jurisdiction, coming from the Australian Human Rights Commission, there should be a reasonable and flexible approach taken so that access to justice is facilitated and there is no chilling effect created about what can be challenging factual allegations to formulate. The Court took an approach that the real issues in dispute between the parties would be refined during the preparation for trial, and by way of documents such as concise statements. To some extent, this refinement occurred, but to some extent it did not. The applicants' counsel fell back, time and time again, on generalised allegations. This was apparent in the submissions filed before trial, in the opening and in argument on many objections to evidence. The generalised nature of some of the allegations placed the respondents and the Court in an invidious position. In these aspects of the applicants' case, no attempt was made to put forward further properly articulated allegations which were said to be incorporated into the generalised allegations. This position continued through final oral submissions. 178 It is not appropriate for the Court to consider and determine any allegations which remain at a generalised level. I explain below which allegations I consider fall into this category. To do so would involve a denial of procedural fairness to the respondents, and it would mean the Court has to engage in speculation about precisely what is covered by the allegations, a process which is wholly inappropriate in a long and resource-intensive trial. 179 Further, I consider that as far as these generalised allegations have been explained by counsel for the applicants in the course of submissions, they appear to duplicate many of the more specific allegations I have set out above. Where they seek impermissibly to go further is where they cast the net of principal liability for the alleged conduct more widely to individual teachers without any specific allegations of conduct being made, capture various Ministers or Ministerial staff, or cast liability on those who conducted the Worklogic inquiry, or seek to assert liability in entities which cannot in law be the subject of such liability let alone be capable of being identified as having engaged in any specific conduct, such as "the Department". For all these reasons, the pleadings are embarrassing in the legal sense and should be struck out. 180 The following generalised allegations fall into this category.

Failure of all BSC staff to take action in response to complaints/notification of certain alleged bullying 181 As I have described above, at [366] of the statement of claim there are summary allegations against Mr Minack for contravention of s 9 of the RDA, in relation to each applicant individually. Those have been adequately particularised, and Mr Minack was a respondent to the proceeding, so there is no difficulty in the Court proceeding to determine those allegations. 182 Then there are further and problematic pleadings at [367]-[368] which roll up these allegations and extend them to all BSC staff. Those paragraphs allege: The same failures apply in relation to all staff to whom reports/notification of the kind in the paragraph immediately above were made by the Applicants as pleaded (and to any other relevant staff including those whose failure was by omission). The same failures apply in relation to all staff and principal that were aware of the verbal and physical bullying, racism or discrimination without having been notified. 183 The generality is perpetuated at [369(b)], where it is alleged: By reason of the conduct referred to in paragraphs [366] - [369] above: … b. Other relevant staff members at the School breached s 9(1) and 3(3) of the Act; and c. the First Respondent is vicariously liable for said breaches. 184 An allegation of this kind is embarrassing in the legal sense. It is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against [him or her]": Meckiff v Simpson [1968] VR 62 at 70, cited in Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270 at [9]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]-[19]. Despite the leniency extended to the applicants' legal representatives, the flaws in these generalised allegations were not corrected before trial, nor in opening submissions. For the reasons I expressed earlier, this allegation must be confined to those staff members who have been specifically identified as having failed to take allegedly appropriate action, and who were given the opportunity to deal with the applicants' fundamental contention that the staff members treated Jewish students differently in relation to antisemitic bullying. Similarly, where there are specific allegations about the existence of a duty of care against individual staff members that is different from the non-delegable duty that the State accepted was owed by Mr Minack as the principal of the school (see, for example, [390] of the statement of claim), these can be considered by the Court. However, the more generalised allegations of negligence cannot and should not be considered. 185 The allegations were given no more specificity in the applicants' concise statement. For example, at [6], what is alleged is: The SOC pleads a plethora of (1) complaints, and (2) incidents, of which staff were aware, involving all Applicants suffering anti-Jewish and anti-Israeli bullying/harassment and conduct at School, comprising activities of both staff and students which breached ss3(3), 9(1) and 18C of the Act, and breached the School's policies (which existed from at least 2017), which were not actioned by staff adequately or at all. This ties in with the School's negligence. (Original emphasis, footnotes omitted.) 186 The width of the allegations against unnamed staff, and staff who were not named as respondents, is apparent. Further, this theme of the "School" being negligent is apparent in many parts of the concise statement. For example, at [13] and [14] where the "School" is alleged to owe the applicants a duty of care, and "the School" is alleged to have breached that duty and the allegations of failure are said to be those of "the School". These allegations disclose no proper legal foundation. In final submissions, the applicants' counsel was unwilling to face this reality, but it is the case. 187 Paragraphs [367] and [368], and [369(b)] and [369(c)], to the extent it relates to [369(b)], will be struck out.

Allegations concerning Corey Fooks 188 At [123]-[131] of the statement of claim are some allegations relating to complaints by a BSC student, Corey Fooks, about swastikas he said he had seen around the school grounds of BSC. As far as I can ascertain, there are no further pleadings which are connected to a cause of action in relation to Corey. For example, even with the "rolled up" pleadings, no connection is expressed with these paragraphs. 189 Corey was called as a witness for the applicants. His evidence was that he is a Jewish person. Consistently with the statement of claim, his evidence concerned the swastikas he had seen at BSC, as well as outside school grounds on a nearby street, and the complaints he had made about their presence. 190 Corey also gave some evidence about the level of comfort he had about being openly Jewish while at BSC, and about some antisemitic comments made to him by other students during class. He also gave some evidence about his attendance at UJEB lunches, his perception of the way staff at BSC approached LGBTQIA+ issues, and about his subsequent experiences at Swinburne as a Jewish person. 191 Corey is not an applicant. In my opinion, Corey' evidence is relevant to some of the applicants' common allegations, which I have set out above. There is no independent cause of action to be determined by the Court in relation to Corey. It is not appropriate to strike those paragraphs out, but they should not be subject to any separate determination of liability. At best, and generously to the applicants, they plead facts relevant to the common and individual allegations.

Allegations regarding Ashley Meehan 192 Paragraph [373] of the statement of claim contains an allegation about Ashley Meehan, a former BSC student. That allegation relates to Mr Minack telling Mr Meehan he could not keep his beard. At [72], the applicants plead: During late 2016 (Year 10) to early 2017 (Year 11), a Jewish student at the School, Ashley Meehan, started growing facial hair in accordance with Jewish tradition and law. Richard Minack pulled Ashley aside, including in front of other students, when he noticed Ashley was growing facial hair. From the first instance of this, Ashley asserted to Mr Minack that he was not shaving for religious reasons. Mr Minack questioned the boy at length and dismissed the explanation Ashley gave him. Between Ashley's late Year 10 up until early Year 11[], Mr Minack pulled Ashley aside and intimidated him about shaving on about half a dozen occasions. This usually occurred at lunchtime, roughly fortnightly, including in front of other students. Mr Minack continued to pressure Ashley to shave his face and continued to question his motives and undermined his reason for not shaving. This intimidated Ashley and he began trying to avoid the Principal as a result. It caused Ashley to become panicky and anxious. Mr Minack stopped bothering the boy in early-mid March 2017 after Ashley's father Terry Meehan essentially told Mr Minack to leave Ashley alone and to stop interfering with his VCE studies and stop discriminating against him on religious grounds. 193 Mr Meehan was not called as a witness, so unlike Corey Fooks, there is no evidence which could at a minimum be considered in determining the applicants' common allegations, nor in the context of what is alleged by the applicants to have been the "culture" at BSC. 194 Mr Meehan is not, but could have been, an applicant. The applicants have no standing to bring a complaint on his behalf. This is not a representative proceeding. These parts of the statement of claim should therefore be struck out. They could also be dismissed on the basis of standing. Accordingly, during the trial, evidence relating only to incidents concerning Mr Meehan, including complaints by his parents, were ruled inadmissible. Paragraph [373] will be struck out.

Allegations regarding Ms Flessa's actions with respect to Ariel Katz 195 The applicants' pleadings include allegations against Ms Flessa in 2017 about conduct they contend breached s 9(1) and s 18C of the RDA with respect to Ariel Katz. Ariel Katz was a Jewish student. He is not an applicant. 196 The applicants plead: In 2017, Ms Demi Flessa taught an English as a Second Language class (ESL) for the Year which included in it a Jewish-Israeli student, Ariel Katz. Ms Flessa knew Ariel Katz was a Jewish-Israeli. Particulars a. The ESL class was a small class of about 6-8 students only. b. There were student introductions in the class wherein Ariel's background was revealed to Ms Flessa as Israeli. During that ESL class, on at least three separate occasions, Ms Flessa injected her personal anti-Israel opinions about the Israel/Palestine conflict onto Ariel that had nothing to do with the classes' study on any occasion. On all occasions when these comments were made in Ariel's presence: a. they were offensive to Jewish Israelis and resulted in insult and humiliation in front of the class. b. on all occasions, thus, including the first and second occasions, Ariel conveyed his disagreement and disapproval of the situation (resulting in argument ensuing) and he was cut off by Ms Flessa in front of the class on each occasion. After the first occasion it was manifest that Ariel had taken offence to Ms Flessa's acts (which also were entirely unrelated to class discussion). Despite that, Ms Flessa persisted to impose her opinions on Ariel in the face of rejection and offence taken by Ariel, asserting that a. Israel is an "illegitimate" or "illegal" state, b. that Israel is in fact "Palestine", c. that Ariel was "Palestinian," and that d. Palestinians have a right to Israel as a whole. Ariel was not comfortable to, and did not, raise these matters with his coordinators, as he felt they would do nothing except get Ms Flessa angry and that this would lower his grade or cause revenge. 197 Ariel gave evidence remotely from Canada. He is Jewish. He was a student at BSC in was a student for grade 7 and the first third of grade 8, in 2017 and 2018. He described himself as a good friend of Matt's. There was evidence that in quite a few of the alleged acts of discrimination in this proceeding involving Matt, Ariel was also present. 198 The respondents sought, and the Court made, a direction under s 136 of the Evidence Act in respect of Ariel's evidence about some of Ms Flessa's alleged comments concerning Israel and Palestine, on the basis that the evidence was only relevant as tendency evidence, allegedly probative of the events in 2018 involving Ms Flessa and Matt and Guy. The Court ruled that the evidence was relevant to the applicants' allegations about a culture at BSC that tolerated and did not discourage antisemitic behaviour. Counsel for the applicants did not contend the evidence was relevant because there were independent or separate allegations of contraventions of the RDA, or negligence, to be determined in relation to Ariel. 199 Nor, reasonably, could counsel have so contended. Like Mr Meehan, Ariel is not an applicant. The applicants have no standing to raise alleged contraventions of the RDA in respect of Ariel, nor to make allegations of breach of any duty of care owed to him. 200 Therefore, insofar as [116]-[122] of the statement of claim might be understood as involving separate allegations of liability of any of the respondents in relation to conduct involving Ariel, those allegations are struck out. Insofar as the facts alleged in those paragraphs are supported by Ariel's evidence or the evidence of other witnesses, and are relevant either to the applicants' common allegations, or to individual allegations, the Court will examine the facts alleged in those two contexts. Insofar as Ariel's evidence may be said to reveal some tendency on the part of Ms Flessa to make pejorative remarks about Israel, or goad students about the topic of Palestine, and so be probative of the 2017 allegations on this topic, as I explain later in these reasons, I do not consider the applicants have proven these allegations, even with the addition of Ariel's evidence, and a tendency use in any event is impermissible in these circumstances. Those paragraphs will be struck out.

THE RESPONDENTS' DEFENCE 201 It is not necessary to set out the defence in detail. The only reason I have spent time on the applicants' allegations is because they were somewhat difficult to untangle. In summary, the respondents either deny the allegations of fact, or where they admit that some events occurred (such as the March 2019 speech by Mr Minack) they deny the pleaded effect of the events. It is fair to say the respondents join issue on the majority of factual allegations made by the applicants, and join issue on all of the pleaded effects of those factual allegations. 202 On the negligence allegations, the respondents admit Mr Minack owed students at BSC, including the applicants, "a non-delegable duty to take reasonable care for their safety and wellbeing whilst they were students at the School". The respondents expressly deny the scope of the duty of care alleged by Zack - this pleading is, as I understand it, aimed at a denial of any liability in negligence for the park incident. 203 Properly, the respondents admit that if Mr Minack or any of the individual teachers are liable in negligence to the applicants for any of the pleaded conduct, the State of Victoria is vicariously liable for that conduct under the Crown Proceedings Act, as I explain earlier in these reasons. As I understand their submissions, the respondents accept that the State may be liable under s 18A of the RDA for any contraventions of s 9 or s 18C found to have occurred. In any event, the respondents made no positive submission that s 18A was not engaged if the Court were to uphold any of the applicants' RDA complaints against the three individual respondents. There is also no pleaded reliance on the terms of s 18A(2) of the RDA. 204 Therefore, I proceed on the basis that the State accepts vicarious liability in negligence, in the way I have described, and vicarious liability under s 18A of the RDA for any contraventions of s 9 or s 18C by any of the three individual respondents. 205 The respondents described this a "document heavy case" because their overall response was that if incidents were not documented, the Court should find it is more likely than not that they did not occur. This led to the respondents suggesting to Liam that he was not bullied or harassed because he was Jewish and only conceding that on some minor occasions he may have been bullied for a non-racist reason. It led to the respondents rejecting as fabricated any narrative from Joel, Matt, Guy and Zack that was not documented in BSC records. It led to the respondents rejecting any contention about the number of swastikas at BSC unless there was a record of a complaint or record of observation of them. That is despite Mr Minack accepting that the staff responsible for cleaning graffiti (including swastikas) kept no records of the graffiti they removed. 206 The applicants' case was that they all complained regularly, and nothing was done, or inadequate steps were taken. 207 To the extent that I have accepted some of the applicants' allegations, that acceptance involves a rejection of the respondents' 'documents case'. In turn that means that a considerable number of the respondents' submissions that were built upon their documents case also cannot be accepted: for example, that Mr Minack, the leadership cohort and the teachers acted adequately on every complaint that was made and therefore there could be no contravention of the RDA nor any negligence. 208 Accordingly, the divergence in the parties' cases from the outset, and my findings, means that the respondents did not have an alternative answer to much of the narrative put by the applicants.

RESOLUTION: GENERAL ISSUES TO BE RESOLVED 209 In order to keep these reasons as accessible as possible, I do not propose to set out the parties' various and voluminous oral and written submissions. The nature of the applicants' case made for a challenging task on each side in making submissions. I have carefully considered the written and oral submissions of the parties, and where appropriate I refer to them throughout this section. The fact I do not refer to a particular submission does not mean I have not taken it into account; rather, some discretion needed to be exercised in what on any view will be a lengthy set of reasons. The same is true of the evidence - I have taken care to look at all the evidence, but in these reasons I refer either to examples to support particular findings of fact, or to what I consider to be the most probative evidence, rather than every single conceivable evidence reference for every factual finding.

The applicants' final submissions 210 The applicants' final written and oral submissions posed some challenges for the Court, and for the respondents. One matter which should be specifically noted is the tendency in counsels' submissions to describe evidence from a respondent witness as a "concession", when in fact it was not. As an example, at [42(g)] of their written closing submissions, the applicants submit that "[s]imultaneously, BSC leadership conceded: (1) Liam 'no doubt experienced antisemitic bullying at BSC'". This cites, among other things, the following evidence of Ms Podbury. However, in her evidence Ms Podbury only made that 'concession' after puttage by the applicants' counsel: Yes. So this is a fairly serious report, isn't it?---It's a - it's a report. I - I - I don't - I can't see the whole context, so I can't really comment. Sure. But the vice principal is involved, and if I put to you that Liam has mentioned Rory's name and other boys' names, numerous times, to Ms Gibson, you would see - you would agree there's a pattern ..... I can show you them, but, at a basic level, you can see he's reporting this. You would agree that he's reporting this to his counsellor, and he would be vulnerable, wouldn't he, at this point as a religious Jewish kid?---There's no doubt. 211 This tendency occurred quite frequently, and generally arose when a respondent witness had been asked to assume a fact or factual proposition and then was asked a further question on the basis of that assumption. In final submissions, the answer tended to be used as a concession of fact when of course it was not, because the witness had been asked to assume the fact, and generally then asked to express an opinion on the basis of the fact (for example, whether an assumed event or incident was a contravention of BSC policies). While asking a witness to assume a fact and then asking further question might sometimes yield evidence with some probative value if the fact assumed is proven, the way this technique was used by the applicants' counsel generally did not yield evidence of much probative value. In my fact-finding I have given little weight to such so-called "concessions".

Standard of proof 212 In Wotton at [112]-[114], I set out s 140 of the Evidence Act and the authorities which make it clear that no third standard of proof is created. I observed at [114] that: the applicants' allegations against the respondents can be described as "serious". To allege that individuals performing public functions and exercising public powers did so on the basis of race is to make an allegation that reflects poorly upon those individuals. 213 The same is true here of the individual respondents in particular. The applicants make serious allegations against them. I wondered at times during the trial whether the seriousness of what was being alleged, especially in relation to the classroom teaching about Israel and Palestine, was entirely appreciated by the applicants and their legal representatives. 214 In determining what matters of fact I am satisfied about on the balance of probabilities, I have borne in mind the factors set out in s 140(2). Those factors are not exhaustive, and I have not confined myself to considering those factors. I have also reminded myself that each of the individual respondents remains employed as a teacher and that there are reputational and professional considerations which may flow from the findings of this Court. In relation to Mr Minack, I have borne in mind that he remained the principal of BSC at the time of trial, and that his professional and personal reputation has been very much placed in issue by the applicants' allegations. I have been mindful, in making the findings that I have, of the possible consequences for Mr Minack of my findings. I have therefore sought to ensure I have an appropriate level of satisfaction about the findings of fact I make relating to his conduct. 215 Finally, it is of some relevance in this proceeding to recall the observations of Branson J in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [138], that the "the inherent unlikelihood of an occurrence of a given description" (citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362) is a consideration which may affect the answer to the question whether an issue has been proven to the reasonable satisfaction of the Court. That particular factor has some relevance to the applicants' allegations about the classroom conduct of Mr Varney, Ms Flessa and Mr Lyons. 216 This is not a proceeding where the allegations I have found proven concern "inexact proofs, indefinite testimony, or indirect inferences", in the sense those phrases are used in Briginshaw at 362. The respondents made many submissions about the imprecision in the applicants' allegations, and I have agreed with some of them. However, on the allegations I have found proven, some level of imprecision is inherent in the nature of the allegations and the time that has elapsed since the events occurred. As I explain in my findings, this is more a proceeding where there was a competition of recollections - between the applicants and the student witnesses on the one hand, and the respondents' documents and witnesses on the other. The applicants' case drew a lot of support from the documentary evidence as well - both in terms of what was in the BSC records, and what was not. In a trial by oral evidence, it is open to a Court, having considered all the evidence (both oral and documentary), to prefer and believe, and be sufficiently persuaded by, oral testimony, even if that testimony is not perfect, and at times generalised. If the Court approaches its fact-finding bearing in mind the principles I have outlined above, as the finder of fact a Court is able to prefer oral evidence where it considers that evidence is given from genuine and reliable recollection.

The use of certain aspects of the evidence 217 The Court encouraged the parties to exercise some discipline over the tender of documents, by allowing them to agree on a final version of the court book to be tendered shortly before the commencement of final submissions. 218 Nevertheless, the applicants' counsel persisted in the tender of voluminous documentation, which was then not referred to. The Court was not addressed on how it should use many of the documents. Indeed, many were not referred to at all in written or closing submissions. 219 As I have observed elsewhere, the Court's role is not that of a detective, or an investigator, combing through documents to find material that might be seen as supporting the case of one party or another. In an adversarial system, where both parties are fully represented by counsel and solicitors, as here, it is the responsibilities of the legal representatives of the parties to draw the Court's attention to the aspects of the evidence which they contend support their respective cases. Where a party has not referred the Court to a document in evidence, in general I have not placed any real weight on it, unless its forensic value was clear on its face, and unlikely to have been affected by submissions or further witness evidence. There are very few documents in this category. 220 A good example is some of the attachments to the Worklogic inquiry. One attachment is a statement from the then Deputy Premier of Victoria, and then Minister for Education, James Merlino, announcing the completion of the inquiry and the publication of the report. There are passages in that statement which might be said to support aspects of the applicants' case. However, the forensic value of such a document is limited, when Mr Merlino was not called, and the way the applicants' allegations are put in this proceeding were not put to him. At best, a public statement like that is a recognition, as Mr Merlino himself says, that: The inquiry into reported incidents of antisemitic abuse has shown that the schools' responses to reports of antisemitism fell short of community expectations. 221 An admission of that nature, even if it be described as such, does not go very far towards proving the applicants' allegations in this proceeding. 222 I turn now to consider and make findings about the evidence of four important witnesses: Professor Rutland, Dr Abramovich, Mr Paul and Mr Minack. My findings in these sections about their evidence inform many of my subsequent findings and conclusions on the common and individual allegations.

Professor Rutland's evidence 223 Professor Rutland gave evidence remotely from Israel. I did not find that method detracted from her evidence in any way. 224 Generally, I found Professor Rutland's evidence helpful and persuasive. I was especially persuaded by her evidence, and the source studies, about the studies of antisemitic bullying in Australia. Her opinions resonated closely with the evidence of the applicants and the student witnesses. 225 At times Professor Rutland appeared somewhat over-zealous, although as her evidence developed I consider she adopted a more measured and objective approach, and I put that initial over-zealous tone to a combination of some unease at giving evidence remotely combined with her obvious passion for her subject matter. 226 In cross-examination, Professor Rutland was tested about how much of her opinions depended on the applicants' accounts being accepted as true. Since generally I have accepted those accounts to some extent, this cross-examination is no longer material. However, I note two aspects of Professor Rutland's answers which indicated that the assumptions of the truth of the accounts put forward by applicant witnesses were not all she relied upon. First, she emphasised she relied upon her years of research and knowledge looking at the reactions of teachers and students. I accept that the research and studies she has carried out informed the opinions she expressed about how teachers should and should not behave in circumstances where there are allegations of racially-motivated bullying and harassment, especially antisemitic bullying and harassment. And as she pointed out, there was "enough" evidence from the teachers themselves to show they were aware there was a problem. I accept that opinion and agree with it. Even on the respondents' evidence (which in my opinion revealed only part of the true picture), there was a problem of some proportions, of which Mr Minack, the leadership cohort and BSC teachers were aware. 227 Professor Rutland emphasised that her research had shown that denial was a common reaction to allegations of antisemitic bullying and harassment, and I accept her opinion that there was an aspect of denial and minimisation in the reactions of Mr Minack, the leadership cohort and BSC teachers. 228 There were aspects of her report which were not developed at all on behalf of the applicants (such as "ecological mapping" and the wider effects of antisemitic bullying) and, accordingly, I have not placed any real weight on those aspects of her report. There were also a number of aspects of her report in which she expressed opinions based on material that was not tendered in evidence, or material ruled inadmissible. An example is the material from the McIntosh family, none of whom were called as witnesses in the proceeding and some of whose correspondence was ruled inadmissible. I have disregarded those parts of Professor Rutland's report based on inadmissible material. 229 Professor Rutland displayed a good knowledge of the factual source material she was briefed with, and she was able to justify the observations and opinions she expressed by reference to that source material. Professor Rutland spent quite a lot of her report expressing her conclusions on the applicants' factual allegations. However, I have not relied upon or adopted any of her conclusions on factual matters to any greater extent than I express in my reasons. I have made my own findings on the applicants' factual allegations independently of Professor Rutland's opinions. 230 There was no challenge to Professor Rutland's qualifications and expertise. She has qualifications and long experience as a school teacher, before moving into tertiary and adult education, and then into research into educational theory and practice in the field of Jewish education, as well as continuing research into Australian Jewish history. She became Chair of the Department of Semitic Studies at the University of Sydney in 1999. A strong focus of her research in Australian Jewry has been the issues of migration, multiculturalism and ethnicity, and since the early 2000s issues relating to sociology and multiculturalism in Australia, after she was jointly awarded an ARC/Linkage grant in 2004. Professor Rutland describes the development of her work into the area of antisemitism in schools in the following way: Based on this background research, I have published a number of key articles dealing with issues relating to antisemitism and religious bullying in the playground. I have undertaken research relating to Muslims and Jews in Australia and my article 'Creating effective Holocaust education programmes for government schools with large Muslim populations in Sydney' was published in a special issue dealing with Holocaust education in the UNESCO journal, Prospects: Quarterly Review of Comparative Education. One reviewer commented on this article as follows: 'This subject area is most relevant to the field of comparative and international education. The fact that the practice of Holocaust education is under-researched worldwide makes this empirical contribution even more vital. It has potential to make a direct impact on policy and practice in Australia and elsewhere in the world'. This research was extended with the publication of a chapter, 'Genocide or Holocaust Education: Exploring Different Australian Approaches for Muslim School Children', in Gross, Zehavit and Stevick, E. Doyle (eds), As the Witnesses Fall Silent: 21st Century Holocaust Education in Curriculum, Policy and Practice, Geneva: Springer, 2015, pp.225-243. 231 It was through this work that she wrote, as joint author with Professor Zehavit Gross from Bar Ilan University in Israel, an article entitled 'Combatting Antisemitism in the School Playground: An Australian Case Study', Patterns of Prejudice, London: Taylor & Francis Online, vol 48, no 3, 2014, pp 309-330. That article was tendered in evidence in this proceeding. Professors Rutland and Gross have gone on to present their work in many different places. Professor Rutland also described some work that was forthcoming at the time of trial concerning Holocaust education in Australia and a history of antisemitism in Australia. 232 Professor Rutland was briefed with 84 outlines of evidence filed in this proceeding by the parties. While the trial was conducted by oral evidence, the respondents had an opportunity to put to her any material differences between the information she considered and the oral evidence to the point of trial. Neither in cross-examination of Professor Rutland nor in final submissions did the respondents suggest that Professor Rutland's opinions were based on facts not adduced in evidence, or facts that diverged from the evidence adduced. 233 Of course, some of Professor Rutland's opinions were based on evidence that I have not accepted. This is especially so in relation to Matt and Guy's allegations against Ms Flessa and Mr Lyons, and some of the allegations against Mr Varney. Since I have made different findings of fact on these allegations, I do not consider Professor Rutland's opinions in relation to those incidents. Rather, I focus on her opinions on the matters I have found proven by the applicants, as well as some of her more general opinions on the issues in this proceeding. Her more general opinions are relevant to the question of damages and compensation. They are also relevant to: (a) the nature and content of antisemitic conduct in Australian schools as presented in her research, which resonates closely with the evidence of the applicants and student witnesses; (b) an understanding of the gravity of the student perpetrators' conduct and the size of the problem at BSC; (c) the phenomenon of Jewish student victims not complaining; and (d) the nature of steps that should be taken by BSC school authorities. 234 In cross-examination, Professor Rutland explained that antisemitic bullying has its own characteristics, and cannot be addressed only from the same perspective as more general student bullying. I accept that opinion. The evidence in this case demonstrated a number of particular characteristics, both in terms of the nature and content of the bullying and harassment, and the vulnerability of the students who were victims of it.

Nature and content of antisemitic conduct in Australian schools 235 Professor Rutland observes that all the applicants are male, and notes that research has demonstrated that antisemitic bullying and vilification is much more common in boys of co-educational schools than in girls-only schools. She cites another opinion with which she agrees, that the gender of the students appears to be an important determinant in whether antisemitism and/or racism is likely to appear in the classroom or not. 236 The evidence in this case certainly bears out those opinions. Aside from the fact all of the applicants are male, the evidence I have accepted indicates that almost all of the student perpetrators were male, and the main student perpetrators were all male. The student conflict and altercations as revealed by the evidence I have accepted is almost entirely between male students. The BSC records disclose no consciousness of this factor, or of the need - in my opinion an obvious need - to particularly address the drivers of behaviour of and between male students in this respect. 237 Professor Rutland describes one of the "classical" stereotypes that have driven antisemitism in Australia: the image of the Jews being greedy and only thinking about money[.] 238 She refers to early publications as setting this stereotype: This was particularly the case with The Bulletin, a weekly founded in 1880 to espouse Australian nationalism, and whose masthead read 'Australia for the White Man' until 1960. From its foundation, The Bulletin featured cartoons depicting the traditional Jewish stereotype, with hooked nose and foreign accent, motivated by greed and a desire to control the world. One of these antisemitic cartoons featured a non-Jewish boy wanting to fight a Jewish boy, who refused to move because he had his foot on a coin (see Figure 1). This relates to the 'coin story', which has been passed down from generation to generation and which we found was the most common manifestation of playground antisemitism. (Footnotes omitted.) 239 As Professor Rutland observes, this was one of the common taunts used at BSC. I agree. 240 Another common insult to which Professor Rutland refers is the use of the word "Jew" coupled with a derogatory term, such as "fucking Jew", "Jewish shit", as well as simply "Jew", the latter term of course being a gross form of categorising a person by reference only to race. Professor Rutland observes, and I agree, that this was another regular form of insult used at BSC, both towards the applicants and towards other Jewish students. 241 Next are the kinds of racially-motivated slurs and conduct that invoke Nazi symbols. As Professor Rutland explains, this is most obvious in the use of the swastika graffiti, but also the use of the words "Heil Hitler" and the use or depiction of the Nazi salute. Again, the evidence I have accepted is littered with examples of this form of abuse. 242 Next, and in my opinion, most acutely disgraceful and hurtful, are what Professor Rutland describes as the "Holocaust taunts". She explains how students may learn these from older students, or from social media. She expanded upon her opinions about the use of social media in cross-examination, and I accept her opinions that the rise of social media has contributed to the increase in Holocaust taunts. I add to this, that students may learn these from what they are taught at school, as the evidence in this proceeding about the teaching of Maus demonstrates. Professor Rutland explains: Such taunts are particularly hurtful and insulting to children whose grandparents survived the Holocaust. Given the high proportion of Holocaust survivors and their descendants in Melbourne, this is particularly relevant for Jewish children in government schools in Melbourne and is specifically relevant for Brighton Secondary College and some of the specific applicants in this case, including the Kaplans. 243 In my opinion it is a fair inference to draw from the evidence the Court heard that no Jewish student at BSC during the relevant period was, in a family and community sense, very far removed at all from the intergenerational trauma associated with the Holocaust. It was, and remains, the lived experience of their families, whether immediate or extended, and of their communities. For example, Matt's evidence was: And you mentioned, I think, a bit about your background. So what is your background? Where does your family originate from?---So my grandmother on my dad's side is Russian. She was in the Red Army as a nurse and then my grandfather on my dad's side had family in Poland. He was one of five brothers and all five of his brothers - all four of his brothers, sorry, were murdered in Poland. And he escaped Poland and fled. I believe he fled to Russia, then to Israel. I'm not really sure. No one is really sure on how that went. And then later in the late 90s before he died, he went back to Poland to make sure that his brothers weren't there. So he went to search for them to make sure that before he died, they weren't there and that his family weren't there. And they weren't, so he went back to Israel. He visited his old house and they - to get some closure and they went back to Israel and he passed away in the early 2000s. 244 The evidence in this proceeding about Holocaust taunts was of an extreme nature. This category of taunts and insults should have evoked high levels of disgust and, frankly, outrage in Mr Minack, the leadership cohort and BSC teachers. I accept all the teachers had been prepared to give evidence by the respondents' lawyers and were likely to have had some of the specific taunts put to them during this process, and during the Worklogic inquiry. Nevertheless, I found their reactions muted, mostly devoid of outrage and somewhat resigned to the content of what was being put to them. It struck me as odd, and surprising, that even by the time of trial, Mr Minack, his leadership cohort and BSC teachers still could not join in expressing but the mildest condemnation of the antisemitic student behaviour and did not appear at all shocked about it. 245 For example, Mr Hutchins' evidence was as follows: And you would agree that the chimney taunt is hardly a joke to a Jewish student?---I - I think I said yesterday that it would be offensive, yes, I agree that it's offensive. It's not a joke?---Well, I don't find it funny personally, but that wasn't my words, "the joke". They were yours. You wouldn't describe it as a joke?---No, I don't think it's funny, so no. If it's not funny, it's not a joke. 246 While Mr Hutchins properly recognised the inappropriateness of using the word 'joke' to describe these taunts, and while he was correct to point out that the applicants' counsel used the word (as did all of the applicants' counsel, in my view often inappropriately), my impression of his evidence when speaking about these matters was the impression I had from most of the BSC teachers. They were not especially moved. They were not outraged. They were not horrified. That is because, I infer, they had heard these Holocaust taunts and insults at BSC on a regular basis. Further, there had been no leadership at BSC during the relevant period to encourage teachers to be outraged by this kind of student behaviour, to focus on the fact it was unlawful and not only inappropriate, and to focus on the fact of how hurtful and extreme this kind of abuse is for Jewish students who have, in their close or extended families, Holocaust victims. 247 Some teacher witnesses almost sounded like apologists for the antisemitic student behaviour. Ms Goldstone said: It doesn't - it doesn't sound unbelievable, and I think a lot of young people, perhaps when they make jokes like that, maybe don't fully understand the implications of - and the seriousness of that. 248 That may well be the case, in the initial instances of such behaviour. However, it is the role of teachers, the leadership cohort and the principal to swiftly and clearly address the understanding of students, so that they do appreciate why nothing about this behaviour is a "joke", and why it is of the most serious nature, carrying as it does, images and memories of the extreme and horrific suffering of the Jewish people during the Holocaust. 249 Professor Rutland also discussed the vulnerability of Jewish students who openly displayed their Jewish identity, usually through religious clothing. She points out that male students are especially vulnerable because traditionally there are not the same outwards signs of Jewish identity for female students. The evidence is replete with examples of two of the applicants in particular being bullied because of the outwards signs of their Jewish identity they displayed: namely, Liam and Joel.

Gravity of the student perpetrators' conduct and the size of the problem at BSC 250 Professor Rutland observed that Melbourne received the highest percentage of Jewish Holocaust survivors on a pro rata population basis after Israel - 60% of Jewish Holocaust survivors migrating to Australia settled in Melbourne. She also observed that the geographic location of BSC is in a part of Melbourne with a significant cohort of the population who identify as Jewish. That was apparent from the evidence of the applicants and their families as well, including the relatively close location of Jewish schools as alternatives for Jewish students. 251 The connection - in some but by no means all cases - of a person's Jewish identity to their religious belief was something noted by Professor Rutland. Irrespective of whether there was such a connection (and she noted that for a person like Matt, who was non-religious, there was no such connection), the overarching feature emphasised by Professor Rutland, and which I accept, is that being Jewish can be a critical part of the identity of a young person and their sense of self. I accept that opinion and it is consistent with the evidence before the Court. While the Court also heard from some BSC students who identified less strongly as Jewish, such as Bella Saffer who stated she was ethnically half-Jewish and half-English but identified ethnically as "[j]ust English - Australian", or Zac Kaplan who identified as "Jewish atheist", the key point is that for each of the applicants, being Jewish was an important part of their identity and their sense of self. When that was attacked, ridiculed and belittled by the antisemitic bullying, their sense of themselves was diminished, and they became fearful of showing to their school community who they were. 252 Professor Rutland also explained the gravity of the symbol of the swastika for Jewish people, as a symbol of evil.

Phenomenon of Jewish student victims not complaining 253 Professor Rutland explained the effects of antisemitic bullying in the following way in her report: the slurs and taunts discussed above contributed to their feeling that they were not accepted by their peers or supported by the teaching staff at BSC. Such religious and ethnic bullying significantly undermines the sense of a belonging for the Jewish at the School. 254 She expressed agreement with research that demonstrates that a: [']sense of belonging has shown to be an important schooling outcome, and for some students, is indicative of educational success and long-term health and well-being'. The report explains that this is because of the centrality of schooling in a child's life so that peer acceptance and having a strong sense of being part of the school community contribute to the development of self-esteem and motivation. (Footnotes omitted.) 255 She expresses the opinion that this was not the case for Jewish students at BSC. Insofar as the applicants are concerned (I limit my findings that way, although there was persuasive evidence supporting a wider proposition), I agree. I also accept her opinion that teachers have an important role in helping students to feel part of a school community, by developing good relationships with their students. In this proceeding, many teachers testified to believing they had a good relationship with one or more of the applicants. In many cases, one or more of the applicants agreed that was the case, and sometimes they explained that is why they complained to a particular teacher about the antisemitic bullying. My findings later in these reasons indicate that those complaints were not taken as seriously as they should have been. I accept Professor Rutland's opinion that such an outcome can lead to students such as the applicants feeling "undervalued by the fact that their reports of antisemitic bullying were not taken seriously or followed up". 256 Professor Rutland's opinion is that the: pattern of Jewish students' underreporting of playground antisemitism is very common[.] 257 Her own research found that non-reporting of antisemitic incidences in schools: is very common, and indeed was the majority response. 258 She explained that this outcome was also found in a study in Canberra, when the: problem of antisemitic bullying was only revealed through a chance comment by one student during the Sunday School classes at the Canberra Jewish Centre, leading to the teacher asking more questions. 259 That is despite a follow up study finding that: antisemitic bullying was a problem in both government and private schools, but the students were reluctant to report such incidences. 260 I accept those opinions. Professor Rutland maintained them in her oral evidence. They are also consistent with the findings of fact I have made in this proceeding, in particular the 'complaint fatigue' (my expression) experienced by all of the applicants, as well as the fear expressed by some of them, especially Zack in his early years, of the consequences for their own safety if they were to complain - fears that in Zack's case proved well-founded. In cross-examination, Professor Rutland made the point, which I accept, that the fear of being targeted for reporting is greater when the bullying is of students being targeted for an attribute they share - here, being Jewish. The point she was making, as I understood it, was that the student victims became identifiable as Jewish and so more visible as targets. That is, as a group Jewish students could be labelled as difficult, complainers, or too sensitive. In that sense, the perpetrators' conduct tends to become more orchestrated than individual bullying. In turn, the fear of retaliation was likely to be more well-founded. I consider that is precisely what was happening at BSC. 261 Referring to some British studies, Professor Rutland explains how Jewish students may try to mask their Jewish identity at school, and therefore be particularly anxious and upset if they are 'outed'. She refers to the example of Guy and the way Mr Varney addressed him. I agree with this particular example, as my findings later in these reasons reflect. I find that Guy felt particularly 'outed' as both Jewish and Israeli by Mr Varney's persistent use of a Hebrew greeting, and felt singled out and uncomfortable by this inappropriate teacher behaviour.

Steps that should have been taken at BSC 262 Professor Rutland emphasises that current scholarship in educational research stresses the importance of listening to student voices. She indicates her agreement with another researcher's opinion that listening to students' voices is "a hallmark of judicious schools". 263 She explains that, in her opinion: in the staff's testimonies there are enough examples of incidences being reported but not followed up to indicate that antisemitic bullying and swastika graffiti were severe problems, given that those reported were the tip of the iceberg. While there have been reports of swastika graffiti in other government schools in Victoria and New South Wales, in the testimonies from student interviews I have conducted, they were not as prolific or having occurred as consistently in other schools as compared with BSC, even though the staff's denial is so strong. (Footnotes omitted.) 264 That opinion was expressed by reference to the witness outlines and the BSC records provided to Professor Rutland. It accords with my own views of the oral testimony and my own conclusions on the BSC records. The level of swastika graffiti at BSC was extremely high, and I accept the evidence of the applicants and student witnesses that in their direct observations in other educational environments (their primary schools, and the educational places they went to after BSC), the amount of swastika graffiti was much higher at BSC than anywhere else they had experienced. 265 At p 51 of her report, Professor Rutland criticises the response of Mr Minack to the reports of antisemitic conduct made to him, including those made by Mr and Mrs Snelling. She criticises his focus on securing names of perpetrators, especially in circumstances where student victims (such as Zack) were reluctant to give them. Her opinion is that Mr Minack's: general approach to the problem of antisemitic bullying was to investigate and impose some sanctions in specific cases but not to ensure an educational approach condemning antisemitism on an ongoing basis at the school. 266 That opinion is consistent with my findings. I accept that BSC had student discipline policies that employed a method of investigation dependent on identifying individual students, and this was in large part because such policies were designed and required by the State through the Victorian Department of Education. Nevertheless, what the evidence reveals is a failure by Mr Minack to come to grips at all with the reasons why students might not wish to name their bullies. The reasons should have been obvious: retribution. This is hardly a new phenomenon, and certainly not in a high school setting. It was incumbent upon Mr Minack as principal to come up with other ways of attempting to change student behaviour, and the positive campaign implemented at the school for LGBTQIA+ students is an example. The sporadic, minimal lectures on antisemitic bullying and harassment at school or year level assemblies were obviously ineffective. Instead, Mr Minack, and through him the leadership cohort, year level coordinators and BSC teaching staff doggedly adhered to an investigation approach that required names. It was a method ill-fitted for the problem they were facing. Further, the evidence demonstrates that even with an investigation method, it was not applied consistently - the failure to take meaningful steps upon Ms McMahon's discovery of a large number of swastikas in a classroom setting being a prime example.

The respondents' submissions about Professor Rutland's evidence 267 The respondents contended Professor Rutland agreed that school-based racism and bigotry is under-researched and a relatively new area, and accordingly "BSC cannot be held to a standard of education which in and of itself does not exist in public schools and is still being developed and researched". I do not agree. It was apparent form the steps taken to combat bullying and harassment of LGBTQIA+ students that Mr Minack and the leadership cohort, assisted by the State through the Department, were aware of the kinds of strategies that could be implemented to reduce and minimise the risks of discriminatory student bullying and harassment. The principles are the same. The strategies are not ones that call for elaborate analysis in academic research before they can be implemented. They are common sense, proactive approaches to adolescent student behaviour, and common sense support mechanisms for affected students. Mr Paul explained such matters, and I turn to his evidence below. 268 I have taken into account and adopted my findings in this part of these reasons about Professor Rutland's evidence in making the findings in favour of the applicants later in these reasons.

Dr Abramovich's evidence 269 I found Dr Abramovich an impressive witness. He was clear and straightforward, and measured in his answers. Aside from being Chairman of the Anti-Defamation Commission, he told the Court he is: the head of the program in Jewish culture and society at the University of Melbourne. I am the author of seven books. I have written books about the Holocaust. I have talked of the Holocaust for more than 20 years and I've written encyclopaedia entries and journal articles about the Holocaust and its representation. 270 Dr Abramovich described around 10 or 11 different people approaching him about the situation at BSC for Jewish students, between around 2015 and 2019, but with none wanting to go public about it. He described the complaints in this way: Yes, so first of all, a lot of Nazi swastikas around the school. Apparently, it was, you know, wall-to-wall. There was a lot of Nazi swastikas. Heil Hitlers, slurs, anti-Semitic slurs, stereotyping, aggression, belittling of Jewish students. You know, they - they were being targeted; they were harassed, victimised and intimidated simply because they were Jewish. 271 He described accounts of people having inadequate responses from the school administration and expressing dissatisfaction with Mr Minack. I do not refer to this evidence because I have relied on it in making my factual findings about what occurred at BSC. Rather, the fact that Dr Abramovich was approached, and asked to assist, itself indicates the seriousness of the situation for those affected. There was some cross-examination on this evidence, and the non-identification of those who approached him, but I did not understand the respondents to suggest Dr Abramovich was fabricating his evidence about having been approached. I accept he was approached as he described. 272 Dr Abramovich described his involvement in the campaign in Victoria to prohibit public displays of the swastika. He explained his motivation for spearheading this campaign: Well, for - for the Jewish community, given that Melbourne has one of the largest per capita survivor communities, the Nazi swastika represents the ultimate emblem of evil. For some people, whether it is Holocaust survivors but also their descendants, children and grandchildren, seeing the Nazi swastika is as threatening as being faced with a gun. It symbolises the extermination of six million Jews. It symbolises atrocities, murder, suffering. There - in my view, there is nothing more threatening for a Jewish person than to see the Nazi swastika. 273 I found this evidence persuasive. I find that this is the kind of strength of feeling, and of impact, that Mr Minack appeared incapable of appreciating over the relevant period, and continued in the witness box to appear incapable of appreciating. 274 Dr Abramovich explained the 'Click Against Hate' program run by the Anti-Defamation Commission: What is Click Against Hate?---So Click Against Hate is a program that we introduced about 12 years ago. It is essentially an anti-bias, anti-racism educational program taught both at primary and secondary schools. We offer it for free; we don't charge for it. And we go into more than 100 schools across Victoria, teaching students about all forms of racism, sexism, Islamophobia, anti-Asian bigotry and anti-Semitism, and we equip them - equip them with the tools to fight online bigotry/harassment. It's a very popular [program]. In fact, we are credited by the Victorian Government. When, if ever, have you delivered that program at Brighton Secondary College?---In 2017, we taught it to year 7s. Why has it - has it continued?---Hasn't continued. We had no response from the school asking us to come back. 275 In cross-examination, Dr Abramovich explained that Anti-Defamation Commission approached BSC to offer to run the program, partly because of the complaints received. He was, unsurprisingly, unable to answer a question about what the facilitators and educators who administer the program in schools may or may not have said to BSC staff about why the program might be worthwhile at BSC. 276 Dr Abramovich was cross-examined on his understanding about how the Holocaust began, I infer with an intention of supporting Mr Minack's narrative about why he gave the March 2019 speech in the way he did. Dr Abramovich gave the following evidence: They [said] more than that?---They dehumanised the Jews. I mean, you've got the 1935 - 1935 Nuremberg laws which essentially made Jews second class citizens. Stripped them of many of their rights. But also from the beginning of 1933 where Nazi soldiers were stationed outside Jewish shops not to buy them. You then have 1938. You have ..... so it was a continuum of dehumanisation and marginalisation of the Jews. Yes. But it began with words. Precisely. It began with words?---The Holocaust did not begin with the bricks and mortar of Auschwitz. It began with words that dehumanised Jews and pretty much put them on the periphery. And it's important, isn't it, to talk about those words in a modern society?---It is important to talk about the Holocaust. Well, no. I want to go a bit deeper than that?---Okay. It's important to talk about the words used in the propaganda, because you need to be able to warn people against what to look out for in case it happens again?---I think - - - Do you agree with that?---Yes, yes. I think you have to be very sensitive on recycling and weaponising those words, and you have to understand the context in which it is being used. But it is appropriate, particularly in an educational context, to talk about Nazi propaganda, isn't it?---Yes. You should talk about Nazi propaganda. But a good educator would be very selective, would put a lot of thought into how you present. I've taught the Holocaust, and I can tell you that I'm very careful. In the same way that if you're talking about Islamophobia, you would be very careful in showing certain cartoons, for example, of the Prophet Muhammad. Yes. But there will be times when you do use examples of precisely what was said. I mean, I think there's things like movie posters from the 1930s involving some very famous and prominent movies. And it's appropriate in an educational context to talk about those things, isn't it?---If you were teaching a class about Holocaust education across several weeks, for instance, and you gave the students the context, and you explained to them about the rise of Hitler to power and the Third Reich, at one point you might be - you might elect to show certain things. But the context is paramount here, and who you're actually teaching it to. Is it fair to say that someone who described the Holocaust as an abomination is condemning it?---If you described the Holocaust as an abomination, yes. You would be condemning it. (Emphasis added.) 277 The parts of the evidence I have highlighted in bold indicate that Dr Abramovich did not accept the underlying implication in the cross-examination. As my findings about the March 2019 speech indicate, Mr Minack applied no real thought in advance to what he said and did not even prepare speaking notes. He was not careful. He was not sensitive. He used highly emotive language. His lack of care illustrates in my opinion a complete lack of understanding of the matters Dr Abramovich was trying to emphasise. 278 Returning to Dr Abramovich's evidence about the singular participation of BSC in the Click Against Hate program, Mr Minack attempted to explain his position on the use of the program at BSC. 279 He agreed it was Ms Abadee who first suggested it to him. There was a note in his diary to this effect dated 15 May 2017. That concession is not unimportant. By mid-2017, despite what had happened to this point with various students, Mr Minack was not proactively searching for any educational tools he might use to address antisemitic behaviour at BSC. 280 His evidence was that in 2017, "we declined to use those services". He said: I felt that the services were designed to educate whole schools or certainly the minimum entire cohorts of students, and I was satisfied that the behaviour - the anti-Semitic behaviour that we had seen was perpetrated by a very small number of students, and therefore a whole-cohort intervention wasn't required[.] 281 He added that BSC did run the program, he thought in 2018. And then he volunteered that BSC had run the program again for students and staff in 2022. I found Mr Minack's explanations unpersuasive, and consistent with my view that he sought to minimise and ignore what was going on at BSC. The antisemitic bullying and harassment was regular and affecting a number of students. The swastika graffiti was at high levels. He appeared unable or unwilling to grapple with the issue at a systemic level. The fact that BSC reintroduced the program in 2022 after the Worklogic report, when on any view of the evidence there was a much smaller problem with antisemitic graffiti and student behaviour, is telling. It appears that Mr Minack and the leadership cohort may have finally accepted that something beyond individual disciplinary actions is required. 282 I have taken into account and adopted my findings in this part of these reasons about Dr Abramovich's evidence in making the findings in favour of the applicants later in these reasons.

Mr Paul's evidence 283 The first two expert reports by Mr Paul, filed on behalf of the applicants, were subject to a successful objection by the respondents and ruled inadmissible: see Kaplan (No 3). Subsequently, a further report was filed and served. This further report was not objected to in whole, and was admitted, with some parts ruled inadmissible: see Kaplan (No 4). Mr Paul was cross-examined on the basis of this further report. 284 Amongst other matters, Mr Paul's report deals with the concept of restorative justice, the use of expulsion as a sanction, and steps that a state school like BSC, acting reasonably, might take to address antisemitic conduct by students, and antisemitic behaviour in schools. His report included a number of other matters, such as commentary on the Worklogic recommendations, but I have not placed any substantial reliance on those other aspects of his report and do not set them out in these reasons. 285 There was no challenge to Mr Paul's experience or expertise as a principal, a deputy principal and a consultant to the education sector since 2008. His evidence was that since 2008 he had consulted across a range of areas including governance, management audits, and recruitment. In the last seven or eight years, he has prepared a significant number of reports dealing with matters of negligence in school settings; he estimated up to 50 such reports. His educational experience was in Queensland rather than Victoria, but I did not see that as making any material difference to the weight I was prepared to give to his opinions. 286 I found Mr Paul to be a pragmatic proponent of educational strategies; my view of his evidence and report was that his focus is on experience and implementation rather than academic pursuits. That is an appropriate focus for this proceeding, which is all about the real world experiences of adolescent students and their families in a large state school. He was generally measured in his approach, made reasonable concessions in cross-examination and did not exaggerate. At times he became somewhat defensive, especially when being cross-examined about his opinions on expulsion, but overall I consider he gave useful and reliable evidence, to which I have afforded some weight. I find he knew well the material with which he had been briefed, especially the BSC records he had been briefed with, and was able to back up his opinions with answers based on that material.

Restorative justice processes 287 Mr Paul explained that restorative justice is a: mediation process now widely employed in schools to resolve negative interactions (usually bullying) between students and to hopefully prevent any future re-occurrence of that interaction. 288 He described the process as involving: the two parties, in the form of the aggressor and the victim, meeting in a context usually chaired by the school principal (or a senior administrator) of prescribed civil discourse to allow the victim to outline the negative impact on him or her and to allow the perpetrator to explain the reasons for his or her actions. Given that the punishment or penalty for any offence has usually been undertaken before this meeting there is no blaming but rather an attempt to forge a mutual agreement for co-existence between the protagonists going forward. This usually involves an apology from the perpetrator, an acceptance of that apology by the victim and a commitment by the perpetrator (which may be in writing) that there will be no future repetition of the negative interaction by them. 289 He emphasised that such a meeting should occur as soon as practicable after the incident in question. His opinion is that it is best used between students and staff, without family involvement. He expressed the opinion that: During the period in question in relation to this matter (i.e., 2013-2020), restorative justice procedures grew in importance to the point where, in my opinion, they were what I would term standard industry practice in most Australian schools. They were usually deployed in serious cases of bullying at the individual level and this, in my view, is where they are most effective. In the "Bully Stoppers" component of the Victorian Department of Education website, I note that the pamphlet entitled "The 6 Methods of Intervention" (annexed to this report as Annexure A) provides a guide to the process and benefits of "Restorative Practice". This document is dated 2013. In addition, the Victorian departmental policy document cited as 4.5 above and dated 2009, describes "utilising a restorative justice approach" in its schools. 290 In light of that material, Mr Paul expressed the opinion that: I find it very concerning that a restorative justice process was employed at BSC 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. 291 Consistently with some studies from the UK to which he referred, Mr Paul expressed the opinion that a restorative justice approach was successful in approximately 60-70% of cases. 292 In cross-examination, he described the term as an "umbrella term", and said it was up to a principal in a given situation to decide what form of restorative justice might be appropriate. He accepted it encompassed mediation and conflict resolution. Although pressed about the fluidity attaching to the term and how a process might be shaped in a given situation, Mr Paul adhered to his opinion that such a process should have been employed by Mr Minack at BSC and "would most likely have happened in virtually most of the schools of which I'm aware in a situation similar to this". He emphasised that part of the process involved asking participating students for more maturity in their behaviour, even if they had not demonstrated much maturity to that point. His experience was that it was very rare for victims not to want to be involved in such a process. He was frank about the process not always working: Well, they need to see that the current behaviour, which is the cause of that, is unacceptable and you give the reasons why it's unacceptable and you indicate that this is part of a continuum and there were certain - maybe further consequences if this process doesn't work. It's not the see all - it doesn't always work and I think I quoted in my report a figure of 60 per cent which I was very interested to see is replicated in the document - the Victorian Department of Education document you referred to earlier. And I would say 60 per cent is about right. So it doesn't always work and I've not made that claim. And one of the reasons can be a lack of maturity. So it's not - it is - it is - and I think it was described in the Goldsmiths report as moderately successful and I would agree with that. 293 His view is that perpetrators can develop better insight into their behaviour through this process. He resisted the implication that a principal might reasonably not consider the process worthwhile: But it's going to be the case, isn't it, that someone, presumably the principal, will need to form a judgment about whether it's going to be successful in light of those matters about maturity, insight, empathy, respect?---That would be an individual decision as a principal. My view would be that most principals, the vast majority, would give it a try particularly in cases of bullying. If you have a 60 per cent success rate in dealing with young adolescent males, it's - you know, that's a pretty good strike rate. 294 Mr Paul's opinion was that these processes should have been tried by Mr Minack, although he conceded he could not say they would have succeeded. That of course was a proper concession when the processes were fundamentally about attempting to change adolescent behaviour. 295 Mr Paul explained that his opinion about where such processes should be attempted needed to be considered together with his opinion evidence about the use of expulsions. As I explain below, Mr Paul had no doubt that some of the BSC student perpetrators were candidates for an expulsion process, a process that the evidence demonstrated was not even commenced for any of them at BSC. He explained that in some cases of extreme violence (for example where a weapon had been used), an expulsion process might be preferred by a principal to restorative justice. My findings are that Mr Minack sought to use neither. Mr Paul also explained that one should not pre-empt the outcome of a restorative justice process by labelling a student as a recidivist and assuming they might not be amenable to such a process. Again, he emphasised that if there were recurring suspensions then an expulsion process might be more appropriate. 296 The ongoing theme in his oral evidence, consistently with his report, is that a high level of proactivity is both reasonable and required from a principal in considering how to deal with bullying and harassment. His opinion was that Mr Minack failed to undertake any such strategies in relation to antisemitic student behaviour. I agree. 297 He was tested on his views about some of the particular student perpetrators, and whether he had sufficient information to make any judgments about whether restorative justice processes should have been used, and might have been appropriate. He accepted he did not have all relevant information about the student perpetrators. He accepted a principal needed all such information, and he was firm that in any modern school such information is available to a principal. Despite the cross-examination, I do not see this recognition by Mr Paul as affecting the persuasiveness of his opinions, in circumstances where it was not seriously in dispute that Mr Minack did not even consider such processes, and nor did Ms Angelidis. That was the real point Mr Paul was making: these were obvious, well-known, well-established conflict resolution processes that were being used in Australian schools during the relevant period, and no effort at all was made to deploy them in relation to the student perpetrators and victims of antisemitic bullying and harassment. I agree with that opinion. This is the main aspect of Mr Paul's evidence about restorative justice upon which I place reliance. The detail of how it might work, whether it would work, and the like, is immaterial in a situation where it was not even considered or attempted.

Expulsion 298 In his report, Mr Paul described student expulsion as an option of last resort, but a real option that in his view should be explored in practice where circumstances warranted it. Indeed, he stated that in a 2017 investigation into Victorian government school expulsions by the Victorian Ombudsman, the report stated that 278 students (221 male and 57 female) were formally expelled in 2016 from Victorian schools, with boys in years 7 to 10 being the majority. 299 The respondents did not lead any evidence to contradict these figures. 300 Mr Paul also expressed the view that: I have noted the (to me) astonishing number of suspensions applying to several of the bullies repeatedly named by the Applicants at paragraph 63(a) of the Specific Assumptions below provided to me. I have never seen nor are aware of any student receiving the number of suspensions that are recorded at the top end of the scale and detailed in paragraph 18 above in my time in both the state and independent system. … I believe it should be clear to any reasonable educational administrator that, in these cases, this penalty of repeated suspensions at BSC was clearly ineffective in curtailing the bullying in question and that the student attracting these suspensions was a recidivist offender for whom the available option of expulsion was clearly the only remaining option. 301 There was no debate between the parties that there was power in a principal to expel a student, under Ministerial Order 1125 - Procedures for Suspension and Expulsion of Students in Government Schools, provided appropriate processes had been followed. Mr Paul's opinion was that in relation to the student perpetrators at BSC of repeated antisemitic bullying and harassment, the following two criteria were met: (a) "behaves in such a way as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person" (b) "consistently engages in behaviour that vilifies, defames, degrades or humiliates another person on a range of issues including religious belief or activity". 302 He concluded that the option of expulsion was open to Mr Minack. 303 In cross-examination, Mr Paul explained, and clarified, that while expulsion was a last resort, it did not necessarily spell the end of an educational experience for the student concerned. However, it did signify a consequence for the student being unwilling to modify their behaviour after repeated warnings and the exhaustion of all other strategies: They are - they are - they have been asked to leave, and sometimes describe it as an assisted transfer to another school. It is not as if they have been set adrift. Quite often, and this occurs in all systems, there are negotiations with neighbouring principles to see if an assisted transfer can occur knowing, as I've said in the report, that you can return the favour. And quite often, a fresh start in a new environment is - is exactly what is needed. The - they are roleplaying, quite often in the school from which they are being asked to leave. It is not a draconian process of criminal justice. It is a fact - I think I used the phrase, "Saddened resignation", in my report that we've come to the end of the road, "I've given you warnings, we've gone through this, we've done this, I've done everything I can, but you keep offending and you give me little option." And there is discussion with a range of stakeholders and there is a whole - quite a clear process that has to be followed so that due process is observed. It's not a - it's not as you, to me anyway, counsel, infer it's a snap decision and out they go, booted out the door and the door slams shut. That's not - that's not the nature of it at all. It is - it is - in all the documents there, it is the final last resort afforded to a principal where the judgment is made that this can't go on. That the - whatever has been attempted with the student is simply not working. 304 I accept that opinion. Expulsion is not the guillotine the respondents sought to characterise it as. It is a last resort consequence for a principal and a misbehaving student, and as Mr Minack himself said in relation to "assisted transfers" (which he appeared to consider a different process from expulsion), the outcome may be that a misbehaving student has a fresh start at another school. 305 The point to emphasise is that there was no evidence that Mr Minack even raised the prospect of expulsion with the student perpetrators or their families, nor that he actively considered embarking on the process contemplated by the various policies. 306 In cross-examination, Mr Paul accepted he had not worked under Ministerial Order 1125 or the expulsion policy. He accepted the bulk of his experience as a principal was in the private sector in Queensland. Mr Paul was tested on his opinion that one of the student perpetrators, Ramin, should have been expelled, and he conceded he could not articulate, on the basis of the information provided to him, when that should have occurred. He conceded he could not pinpoint which particular conduct should have justified expulsion. 307 Mr Paul's further response was: Well, again, I haven't - I haven't been provided with the detail. If one looks at his behaviour record, it simply describes physical aggression, fighting, abuse of teachers. It - it's, in my view and my experience, irrespective of the Victorian context, quite an appalling record. But as - as to the granular detail to afford me to give you advice as to when he should have been expelled or which particular offence, I mean, an expulsion in a school is a result of an accumulation of things, but never in my experience to the extent of the - the number of suspensions that have been racked up here. … I believe if that - the student we're talking about was a student in a school, either state or independent, that I administered, and demonstrated a record of behaviour such as is described, and had been suspended to the extent where he attracted - I think it's 12 suspensions - it would never have got to that stage. … It's the repetition, the frequency and the number of suspensions. But I have never in my career heard of a student being suspended 12 times. 308 Mr Paul was then cross-examined about the other BSC perpetrators he had identified in an annexure to his report as students who, in his opinion, should have been expelled. Although he accepted he had not been briefed with all the details of all the incidents, and although it was suggested to him his position was "frankly unreasonable", he responded by reference to: as I've said several times now, the nature of the offences, the regularity of the offences and the high incidence of offences. 309 The cross-examination on these themes continued for some time, with the respondents seeking to establish that Mr Paul did not have all relevant information on the individual students, and on what else had been done to address their behaviour. I did not find this line of cross-examination helpful or persuasive. Steps to address the behaviour of the relevant BSC perpetrator students other than suspending them were not a feature of the respondents' evidence. As I have found above, there were no attempts at restorative justice. As far as the evidence drawn to the Court's attention demonstrates, there were no other sustained behaviour management strategies employed. The level of counselling provided to these students was unclear and did not feature in the respondents' evidence as drawn to the Court's attention (accepting that buried in some of the BSC records somewhere there may be references to counselling for students like Ramin). The only other strategy that was drawn to the attention of the Court and witnesses was the "safety plan" for Ramin, which on any view was an utter misnomer and a failure as far as Zack was concerned.

Steps that it is reasonable for principals and schools to take 310 In his report, Mr Paul made the obvious but nevertheless critical point that it is the implementation of anti-bullying and harassment policies that is critical to minimising harm to students at school and seeking to provide protection for students who are victims of such behaviour. His opinion was that successful implementation required constant reminders to staff of the policies at staff meetings and in other formal communications, and constant reminders to staff to be constantly vigilant for transgressions either in classrooms or in the grounds. This should be embedded into the culture of the school. 311 As I explain elsewhere in these reasons, in relation to many policies, there was a culture of policy implementation at BSC. Uniform policy is an obvious one that emerges from the evidence. Ironically, enforcement of uniform policy has little or no direct impact on student welfare or safety, and where enforcement of uniform policy might have a negative impact on student welfare or safety (eg with transgender students or students still exploring gender identity), the evidence shows an empathetic and appropriate relaxation or modification of uniform policies. I refer here to the experiences of Bella Saffer, about which she and others gave evidence. 312 Mr Paul identified education exercises between students to increase awareness about matters such as why students wear religious clothing. His view is that if after such measures harassment continued, that might suggest a "cultural problem" requiring clear leadership from the principal and a "concerted campaign' involving student leaders, senior students and staff (with parents also advised) and characterised by posters, guest speakers and follow-up at year level meetings. He added: Of particular importance would be increased vigilance by teachers and encouragement of the bullied students to report instances of it occurring to them. As indicated above, it is the implementation that students see. 313 I found this aspect of Mr Paul's evidence persuasive, and common sense. It ties in well with Professor Rutland's opinions about why Jewish students may not complain, and the importance of listening to student voices. Visible, strong and consistent implementation of policies and proactive measures designed to assist all students to better understand matters such as the religious dress of minority students, the cultural backgrounds of minority students and why verbal taunts may be especially hurtful, are all measures which can encourage students who are victims to feel more confident in coming forward. None of this occurred at BSC in relation to Jewish students during the relevant period. 314 Mr Paul was not cross-examined to any great extent on this aspect of his report.

Antisemitic behaviour in schools 315 Mr Paul's opinion, based on his long experience, is that swastika graffiti is generally not common in schools. He added: Personally, I have seen it several times in the form of doodling on student notebooks particularly early in my career as a teacher of Modern History and usually while dealing with the topic of National Socialism and Nazism in Germany between 1918 and 1945. 316 This evidence is consistent with the considerable evidence in this proceeding about the increase in antisemitic graffiti and harassment during the teaching of Maus. 317 Even using the most conservative factual assumption available on the evidence (at least 5 to 6 swastikas at BSC at any time/per year during the relevant period, being at least 40 to 48 in total over the relevant period), Mr Paul described this level as "cause for concern". He added: Of greater concern to my mind is that, if they are regularly and promptly removed as they should be, their equally regular and prompt reappearance continues throughout the period in question, clearly suggesting to any reasonable school administrator in my view that this is not a fad or the work of one particular student but that there is clearly an endemic and ongoing problem of antisemitism. It should have been realised that this is not just casual graffiti but the regular depiction of a symbol so objectionable that it is now illegal in the state of Victoria and in many other places internationally. 318 That opinion is consistent with the findings I have made, and the conclusions I have drawn from the evidence. Mr Paul's opinion supports the view of the evidence I have taken and I accept it. 319 In terms of how a principal, and the leadership cohort at a school, should go about addressing an ongoing problem of student antisemitism at a school, Mr Paul's opinion was: Any such program should always start with the education of students. This is not done with a passing mention by a mid-level administrator at a year level assembly. If it is a serious issue that clearly goes against the stated ethos and values of the school, as this ongoing issue of antisemitism clearly is, it requires a co-ordinated and concerted campaign clearly supported and led by the principal. The most effective influence, in my experience, on the younger adolescent male students who are the regular perpetrators of the antisemitic behaviour as detailed in the [assumptions given to him about each applicant] are the senior students in the school. The first step is to enlist the senior students, led by the student leadership group, to the cause, to explain the reasons for it, to be alert for any antisemitic behaviour, to deal with it when detected and to model acceptable behaviour. 320 The antisemitic student behaviour was, as the evidence discloses, endemic at lower year levels in the school. Whatever the perceived level of antisemitism (whether at the levels for which the applicants contended, the levels I have found existed or the levels the respondents conceded existed by reference to their records and concessions made during trial), this obvious, practical strategy for addressing unacceptable student behaviour was apparently not even considered or attempted by Mr Minack and the leadership cohort. 321 The other strategies Mr Paul nominated were: (a) guest speakers at assemblies (eg, those with powerful stories connected to the Holocaust), followed up in pastoral care lessons with prepared resources; (b) reinforcement of messages delivered through posters or banners around the school; (c) requiring staff to be hyper-vigilant for antisemitic taunts and harassment; (d) restorative justice approaches; and (e) warnings about possible expulsion as a consequence for repeated behaviour. 322 I accept Mr Paul's opinion that all of these strategies, as well as the strategy at [319], were available and would have been at least considered by any reasonable principal, and any reasonable leadership cohort, faced with the circumstances I have found existed at BSC during the relevant period. I am also persuaded that even if the factual circumstances about the level of antisemitism at BSC was only what the respondents conceded from the BSC records and during trial (through witnesses), then these strategies would have been at least considered by any reasonable principal, and any reasonable leadership cohort. 323 Mr Minack did not consider any of them. Ironically, and inexplicably, he dismissed one proactive strategy that was briefly trialled - Click Against Hate - only to reintroduce it when he was compelled to implement the Worklogic recommendations. He did not even acknowledge there was a problem. That was, I have found, because for whatever reasons, he did not treat antisemitic bullying and harassment with the seriousness it deserves, and he did not adequately or at all consider the effects of even the level of conduct he was prepared to admit occurred on Jewish students at BSC, including the applicants. 324 I have taken into account and adopted my findings in this part of these reasons about Mr Paul's evidence in making the findings in favour of the applicants later in these reasons.

Mr Minack's evidence 325 As principal, Mr Minack was, as he properly accepted in his evidence, responsible for the administration of BSC in all respects, including the enforcement of policies, discipline of students and the education and encouragement of students about appropriate and inappropriate ways to behave while they were at school, as part of the discharge of his duty of care to students. 326 Both in the applicants' RDA allegations and in their negligence allegations, Mr Minack's responsibilities and conduct feature prominently in this proceeding. It is therefore necessary to make some general findings about Mr Minack's evidence, and the inferences I draw from it. He was plainly a key witness in the trial, and as some of the legal arguments accepted, a key respondent. 327 One overall feature which I consider should be taken into account is that Mr Minack spent a long time in the witness box over a number of days, with his evidence interrupted on several occasions to interpose witnesses who had time constraints, including Professor Rutland who gave evidence from overseas. It was obvious that giving evidence in this case was challenging for Mr Minack, as it would be for any person in such a position. He bore the long period in the witness box with patience and fortitude, including what were sometimes repetitive and generalised questions in cross-examination, sometimes put inaccurately on the basis of the evidence, or expressed without much clarity. 328 As his evidence proceeded, Mr Minack began to make more frequent concessions. I consider this feature of his evidence was a combination of him becoming physically and mentally tired. He became somewhat worn down, no doubt also because the experience was difficult for him. There were many times during his cross-examination where he ended up making concessions despite having said he did not have much active recollection of an event or incident. For example, his evidence at transcript pp 1547-8 and what the applicants described as a "concession" by Mr Minack about Guy and a student named Timur, about the nature of Timur's taunt to Guy. I find there is little probative value in these parts of Mr Minack's evidence: he had little active recollection; he was badgered, and tired. This is not the kind of evidence I have relied on in my findings, although contentions of this kind were prominent in the applicants' submissions. 329 Further, there were times when Mr Minack's evidence demonstrated a growing realisation of the very different way in which his conduct during the relevant period might objectively be viewed, even though he saw (and continued to see) no personal or professional fault with it. While the applicants have sought to make much of his concessions, I have not given them any significant weight, because again I consider they were affected by his tiredness, and he was somewhat worn down. There is sufficient other direct evidence about what occurred during the relevant period to make out the matters alleged by the applicants that I have found proven, without substantial reliance on concessions from Mr Minack. 330 Nevertheless, where with the benefit of hindsight he did make some concessions, I consider those concessions have some role to play in the relief that is appropriate for the Court to grant. Throughout the trial, the public gallery in the Court was full. It was, overwhelmingly, full of members of the public who demonstrably supported the applicants. That was clear to me looking at the public gallery, and indeed, having to remind members of the public to refrain from comments, and from inappropriate visual and audible reactions to witness evidence. These reactions from members of the public were often at their height during Mr Minack's evidence. The trial experience was undoubtedly challenging for Mr Minack. My sense of much of his cross-examination was that there were attempts to extract concessions from him as part of a purging exercise, for the benefit of the applicants, their families and the members of the public who supported them. There was a clear intent to call Mr Minack to public account. That occurred. The Court has found some of his conduct unlawful. Some of his concessions (for example, about failing one or more of the applicants because they left BSC early) are matters I consider I should take into account in deciding what level of compensation is appropriate. The applicants, especially Matt, Joel and Liam, were present through most of the trial and were able to watch Mr Minack being called to account. It was clear to me they drew some vindication from this process. In my view, the trial itself has been part of the compensation for those three applicants. 331 Mr Minack had a habit of smiling and laughing during his evidence. Sometimes this occurred at inappropriate times, including when he was being questioned about the March 2019 speech, which had most grave subject matter on any view. I have reflected on this feature of his oral evidence, but on balance I consider it was likely to have been a reflection of his nervousness, and the anxiety that comes with giving evidence in such a prominent trial in front of what could at times be quite a hostile public gallery. Therefore, I have not used this feature of his evidence adversely to the credibility and reliability of his evidence. 332 I refer later in these reasons to some evidence Mr Minack gave about conflict situations between students and how the existence of a conflict situation might affect disciplinary approaches. To some extent I have accepted that assessment, but I do not consider it is material to the overall thrust of the applicants' allegations against his leadership at BSC during the relevant period. It might, as I accept later in these reasons, be an important consideration in individual disciplinary decisions by Mr Minack, the leadership cohort or individual teachers about what consequences should apply to individual students in a particular situation. 333 For example, Mr Minack gave the following evidence: They were conflict situations. The behaviours [we] saw from other students were very much typically in a conflict situation where Joel was exhibiting behaviours which were also undesirable, and, you know, unfortunately when children in school are in a conflict situation, they sometimes say things that are designed to hurt the other person, and they will say things which they know will sting, and unfortunately in some of these circumstances they include anti-Semitic slurs. 334 Mr Minack returned to this theme at several points in his evidence, and I accept he was making an important overall observation based on his long experience in teaching and in leadership positions at schools. The challenges he referred to in evidence of this kind are one factor that has led me broadly to accept the case put by the respondents on many of the specific interactions between the applicants and other students, in terms of the decisions made by staff about specific consequences for particular incidents, and which student should be assigned which kind of consequence. 335 However, there is another aspect to his evidence. That is, his locating of antisemitic taunts in the same category as any other comment "designed to hurt" a student. Racist taunts and harassment are, by law, in a different category to taunts such as a person being 'ugly', or 'fat' or 'stupid'. That is not to condone any kind of hurtful comment. Rather, it is to recognise, as a fact, that law provides, and BSC policies recognise, that there are categories of taunts and harassment - albeit they are "designed to hurt" - which are prohibited in civil society. Those are, generally, taunts and harassment that single people out because of an attribute they have, notably race, or ethnic or national origin. 336 The law provides, and BSC policies recognise, that racial taunts and harassment are particularly egregious and require particularly strong responses. That is because of the dreadful history of the racist treatment of minorities, both in Australia and overseas. Mr Minack's evidence generally failed to exhibit any consciousness of this kind of distinction. His leadership at BSC, on the evidence, also failed to exhibit any consciousness of this kind of distinction, especially where it came to antisemitism. On the evidence, I find Mr Minack displayed a lack of appreciation of, or a refusal to accept, the comparative seriousness of this kind of conduct. He was selective in his approach to the protection of students from minority groups at BSC. 337 A material example of selectivity in response by Mr Minack was his reaction to the criticism of the March 2019 speech, which was something of a focus of examination-in-chief and cross-examination. In examination-in-chief, Mr Minack was asked about, and described, the various reactions to his March 2019 speech. He emphasised in oral evidence that he had both positive and negative reactions. He explained why he then distributed, through the school's Compass communications system, an apology about his use of the word "nigger". He appeared to suggest he had only received complaints about his use of the word "nigger" and therefore that was all he apologised for. His evidence was: Why did you make the apology to the students in the terms that you did?---Well, I had offended some students, and I don't like offending students, so I thought it was the right thing to do to - to apologise for any offence that I might have - may have caused them. What kind of offence was raised with you about the speech?---Well, that was the - the small number of communications I had, and a couple of them were about the use of the N-word specifically, and one of the emails I received was - it was a bit more general. It was - it was something along the lines of, you know, when you speak on behalf of the school like that, saying, "We don't do this," that's not taking everyone's views into account." It was - it was a slightly unusual email. So yes, it was in response to that feedback I - I had. 338 This was the communication Mr Minack sent: Dear Students, It seems clear that some of you were offended by my use of the "N" word. I hope you understand that I used it to call out and criticise racism and bigotry. I used the term in a way that made clear, I hope, that the term is, and has been, used to marginalise and offend people. That the "N" word still exists in modified form on a common household product was my entire point. Why was the[re] no gasp of breath when I mentioned "Mission Brown?" It is because racism and marginalisation can be subtle, and I want you to be aware of this fact. It is these subtle things that lead to these attitudes being normalised, which is what we must guard against. I know it is uncomfortable, but sometimes we need to use offensive words to explain why they are offensive, and I did so to illustrate how language is used to define "the other." To those students who I have offended, I apologise unreservedly. 339 I make a number of findings about Mr Minack's behaviour in this respect, and his communication. First, this contemporaneous communication demonstrates he was aware of reactions such as intakes of breath during his March 2019 speech, yet he pressed on. The evidence is overwhelming that there were similar reactions to that part of his speech that contained offensive statements about Jewish people. His selectivity in referring to that kind of reaction is telling. 340 In cross-examination, Mr Minack agreed he has never apologised for any offence caused by his speech to Jewish people. He insisted at the time of his speech he did not receive a complaint about the speech being offensive to Jewish students. He maintained that the speech was not offensive "in broad terms" to Jewish people. Yet in cross-examination, he accepted he knew of parents who complained to the Department about what he had said about Jewish people. 341 In my opinion, Mr Minack's apology was selective because he refused to accept, or be troubled by, the reactions of Jewish students, and Jewish parents, or indeed anyone, to the descriptions he had used about Jewish people in his speech, in particular his repeated use of the descriptions "evil" and "sub-human". It defies belief that Mr Minack could select out the word "nigger" and apologise for its use, without reference to the other descriptions he had used. No reasonable principal in these circumstances would have behaved like that. The insensitivity was not accidental, in my view. For whatever reason, Mr Minack was not prepared to be empathetic or sympathetic towards Jewish students, their families, or issues dealing with Jewish people. He would not, or could not, recognise the possible effects of his behaviour where Jewish people were involved. 342 I turn now to consider and make findings about a number of other categories of evidence, variously employed by the parties, which have informed my conclusions on the common and individual allegations.

Findings about BSC policies in existence during the period 343 There were various policies in effect at BSC throughout the relevant period. They were primarily in evidence in the form of attachments to the Worklogic report. Some of the policies date from August 2020, which is right at the end of the relevant period, and after all applicants had left BSC. I do not refer to those policies, as they were not in effect during the relevant period. Neither party suggested these versions had any role to play in the Court's findings and conclusions. 344 There were some BSC policies in effect during the relevant period that were tendered separately. First, the Student Engagement and Wellbeing Policy Manual 2017-2020 (2017-2020 manual), which includes a range of policies. There was also an Inclusion and Diversity Policy 2018-2022. There do not appear to be any policies in evidence on these topics that go back beyond 2017, other than instructions to teachers on bullying and harassment as part of the BSC staff handbooks (of which there were various versions, including draft versions, in evidence for the years 2013 to 2017). The BSC staff handbooks also set out the general expectations and responsibilities of students in a way consistent with later BSC policies. For example, under the heading "Brighton Secondary College Student Code of Conduct", the various staff handbooks state: • Students have the right to work in a safe environment, where they are able to fully develop their abilities, interests and ambitions. • Students have an obligation to behave in a responsible manner and to treat all other members of the College community with respect and courtesy at all times. 345 Here I describe the policies which are material to my findings in this section. The applicants do not suggest any BSC policies were inadequate, or there were insufficient policies. They focus on their implementation in their individual circumstances. 346 As the respondents submitted, non-compliance with policies, or failures in implementing them, is not of itself sufficient to establish any of the applicants' causes of action. For that reason, allegations such as that made at [4(20)] of the applicants' closing submissions that "[n]ot recording Swastikas violated the School's recording policies (itself unlawful discrimination)" cannot be considered as freestanding allegations. It might be that such a failure is evidence of differential treatment for antisemitic student behaviour, which might lend weight to some of the individual or collective pleaded allegations. But the applicants' counsel generally did little more than allege failures to record and ask a witness whether a swastika should have been recorded. The reason for non-recording could be inefficiency, overwork, mistake or inadvertence. The applicants needed to prove the reason for non-recording was the fact that the graffiti concerned Jewish people. Their legal representatives did not seriously attempt to do this. This line of questioning was not one I found probative of any facts tending to support the applicants' pleaded allegations. I do not see the BSC records policies and any alleged non-compliance with them as going anywhere towards establishing the applicants' allegations. Indeed, in many instances, mere non-compliance may be barely relevant. 347 The 2017-2020 manual contains a policy entitled Anti-Bullying and Harassment Policy 2017-2020. In it there are sections on prevention, racial harassment and sexual harassment. There is also a student code of conduct in this manual. Under "unacceptable behaviour" are statements which describe most of the conduct of the student perpetrators in issue in this proceeding. 348 Cyberbullying is included in the scope of bullying behaviour in this document. By its definition ("bullying using digital technologies including mobile phones, email and social media tools"), it is clear that, read with BSC's general bans on the use of mobile phones at school, this policy seeks at least to some extent to regulate or influence the behaviour of BSC students outside school hours. 349 The racial and sexual harassment sections of these policies contain descriptions of how the policies will be implemented. A range of strategies are set out. Restorative justice, or any approach similar it, is not mentioned. Nor are any systemic school-wide strategies referred to, but I accept that may be because these policies are directed at incidents between individual students. That in itself is telling, because the Court's attention was not drawn to any policies which seek to address racial or sexual harassment at a more systemic school-wide level. 350 There are strategies mentioned which do not appear to have been employed in the incidents the subject of evidence in this proceeding. In particular, "counselling support and further education" is rarely mentioned in the BSC records as an outcome, and behaviour agreements do not appear to have been used in the BSC records in evidence, in relation to any student perpetrator subject to the applicants' allegations. Finally, these policies note as the three most serious interventions: • involvement of the Police • suspension - either Internal or External • assisted transfer (in line with DET guidelines) 351 Assisted transfer was explained by Mr Minack. I have found he seemed to suggest it was less coercive than expulsion, and did not require compliance with Ministerial Order 1125. If that is correct, then the BSC policies themselves do not mention expulsion, which in itself seems inconsistent with the terms of Ministerial Order 1125. That is because, as some of the evidence in this proceeding might suggest, especially about Zack's experiences, expelling perpetrators might be the only way to make a school environment safer for victims of racial harassment and bullying, or any other extreme student behaviour. 352 In the racial harassment section of the Anti-Bullying and Harassment Policy 2017-2020 (racism policy), the following points are made: Racism and racial harassment are unlawful and unacceptable at Brighton Secondary College. … Racism is the ill-treatment and/or harassment of another person or group because of their ethnic background or skin colour. 353 Included in the examples of incidents or racism are: verbal abuse/derogatory language, jokes, sarcasm, physical violence, graffiti that denigrates an individual or an ethic group, name-calling, and comments that unfairly label or stereotype characteristics of a particular ethnic group. The evidence demonstrates that the student conduct in this proceeding could be described in one or more of these ways. Teachers such as Mr Varney accepted they knew racist "jokes" were contrary to BSC policies, yet he felt comfortable engaging in the kind of singling out of Guy as Israeli and Jewish that he did. This attitude illustrates the diminishment of the experiences of Jewish students. 354 The obligations on staff are described in the following way: GUIDELINES • All staff need to question/challenge students regarding potentially racist incidents rather than ignoring them. • Since it is vital that we are all seen to be challenging racism, incidents must be dealt with immediately by the teacher/member of staff, even if a referral is to be made. • All staff need to promote non-racist attitudes and model non-racist behaviours in their own interactions with all members of the school community. • All staff should attempt to include multicultural perspectives in curriculum material in order to dispel ignorance and promote understanding and celebration of difference. • All staff need to implement inclusive strategies which are sensitive to the needs of students based on their ethnicity. 355 My findings suggest a failure by Mr Minack to put these policies at the forefront of his interactions with students, his speeches and his school-wide actions, and to encourage the leadership cohort and BSC staff to do the same. The applicants' complaints, and the actual incidents, were generally not even recorded as racist behaviour by students in the BSC records. That in itself demonstrates a diminishing of the student conduct, and ignoring of its true nature, that is inconsistent with BSC policies. 356 The racism policy then provides that complaints should be dealt with in the same way as complaints about sexual harassment. The part of the sexual harassment section of the policy to which the applicants drew the Court's attention was the following: REPEATED AND SERIOUS OFFENCES • After investigation, if it is established that repeated or serious sexual harassment has occurred, the following procedures or sanctions may be implemented: • Any student found to have exhibited repeated sexual harassment is committing an offence against the law. • Any student found have exhibited repeated sexual harassment will be suspended immediately, and the parents/ guardians of the student will be notified in order to begin a consultation process. Police will be notified. As each situation is unique, in addition to the steps stipulated above, other steps may be taken depending on the individual circumstances of the incident. • At the discretion of the Principal, the students may be encouraged and assisted to find an alternative educational setting. 357 I accept the applicants' submissions that the evidence does not disclose that Mr Minack followed this policy about any incidents involving physical violence (for example, all the kippah incidents), which were relatively frequent, nor about the repeated (and still very serious) swastika graffiti and verbal taunts and harassment. This policy suggests a methodical and strict process. It refers to involving the police, and correctly so because the behaviour is unlawful. Much of the student behaviour revealed by the evidence was likely to have been unlawful, and some was obviously unlawful. 358 My opinion, considering all of the relevant evidence, is that if the student perpetrators had been engaging in sexual harassment with a similar level of seriousness and frequency, this part of the BSC policy would have been swiftly and strictly applied. That was not the case for Jewish students. I have given this aspect of the evidence some weight in forming my conclusions about contraventions of s 9 of the RDA. 359 It is also necessary to say something about the policy and legal framework for suspension and expulsion of students from Victorian state schools. The relevant instrument during the relevant period was Ministerial Order 1125, which relevantly provides: (a) Only a principal has the authority to suspend a student from a school, and that authority is not delegable. (b) There are a number of grounds set out for suspension, including the one seen most frequently in the Chronicle records of the student perpetrators - "behaves in such a way as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person". (c) There is another ground which on the evidence would have been highly relevant, but which does not appear in the BSC Chronicle records, or on the majority of records relating to suspensions (which relevantly set out the grounds on which those suspensions have been made), namely: consistently engages in behaviour that vilifies, defames, degrades or humiliates another person based on age; breastfeeding; gender identity; disability; impairment; industrial activity; lawful sexual activity; marital status; parental status or status as a carer; physical features; political belief or activity; pregnancy; race; religious belief or activity; sex; sexual orientation; personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes[.] (d) Ministerial Order 1125 sets out a procedure for suspension, involving hearing from the student concerned and imposing a range of considerations on the principal. (e) Ministerial Order 1125 makes a distinction between suspensions of three school days or less, and longer periods, with the latter requiring a "Student Absence Learning Plan and Return to School Plan" to be prepared. On the evidence, most suspensions of student perpetrators relevant to this proceeding were less than three days. The maximum without approval from a regional director is five days. (f) There is also a power to immediately suspend a student if "the student's behaviour is such that they are putting the health, safety and wellbeing of themselves, or any other person at significant risk". (g) Similarly, only a principal has the power to expel a student, and that power is not delegable. (h) The same criteria apply to expulsion as to suspension, however with the additional criterion that: the student's behaviour is of such magnitude that, having regard to the need of the student to receive an education compared to the need to maintain the health, safety and wellbeing of other students and staff at the school and the need to maintain the effectiveness of the school's educational programs, expulsion is the only available mechanism. (i) There are a number of specified procedures a principal must follow once expulsion is under consideration. (j) The expulsion decision itself is regulated by a number of specific considerations and steps in Ministerial Order 1125. (k) Specific steps are to be taken after expulsion to ensure an expelled student is provided with "other educational and development opportunities as soon as practicable after the expulsion", which specifically includes enrolment at another school or registered training organisation. (l) There are prescribed appeal procedures available against an expulsion. 360 Locating these powers in the principal suggests they are not intended to be routine disciplinary consequences. However, at least for some of the student perpetrators, as Mr Paul observed, that appears to have been what suspension became.

The relevance of the Worklogic report 361 An investigation was conducted into BSC by Louisa Dickinson of Worklogic in 2020. Although by agreement at least some of the transcripts of interviews conducted by Ms Dickinson during the Worklogic inquiry were tendered as part of the Worklogic report, there was otherwise little contextual evidence about the inquiry. The respondents were granted leave to file affidavits "which go only to matters of background, policy and procedure", rather than adduce such evidence through oral evidence, but they did not take up the leave that was given. Accordingly, the witness evidence went little further than witnesses being asked whether they participated in the Worklogic inquiry, sometimes who was in the room when they were interviewed, and the occasional line of questioning about the provision of documents to the inquiry, or inconsistencies between documents provided to the inquiry and evidence given in this proceeding. 362 Some email correspondence between Ms Dickinson and Mr Minack, or various witnesses, was tendered, where it was contended to be relevant to the applicants' claims. 363 The final Worklogic report was tendered, as were two drafts. These documents were barely touched upon in written or oral submissions, or in the questioning of witnesses. The main point made on behalf of the parties related to Ms Dickinson's recommendations, and the characterisation of them. Each side sought to make something of the recommendations. For the respondents, the general point made was that BSC, through Mr Minack, had implemented all of the recommendations and some BSC policies had changed as a result. For the applicants, the recommendations themselves were characterised as findings supporting their allegations in this proceeding; that is, as the view of Ms Dickinson that the school had failed the applicants, and other students, in many of the ways alleged in this proceeding. 364 The attachments to the Worklogic report included many BSC policies, and other procedural documents such as Ministerial Orders relating to suspension and expulsion. Some BSC policies were tendered separately as well. The attachments were relied on especially by the applicants. There were also other attachments, various emails from parents, teachers' diary notes, emails between teachers, and emails from Mr Minack to parents. The Worklogic report also had attachments comprising Chronicle records for students. 365 The terms of reference for the Worklogic inquiry were in evidence. The scope and purpose of the inquiry were described in the following terms: The inquiry will examine how the incidents of alleged bullying were managed at the school and the regional level (where applicable) and whether the response by the school and Department of Education and Training (the Department) was adequate in addressing the incidents, along with supporting students, their families and the broader school community. Any other concerns of a similar nature that are brought to the attention of the Minister for Education, the Department or investigators during the course of the inquiry will be examined. The inquiry will make findings relating to the above areas. In addition, the inquiry may make any general findings about the facts and circumstances of the various interactions that were the subject of the bullying allegations to the extent such general findings provide necessary context to findings about the subsequent management responses. The inquiry will consider the recommendations announced by the Victorian Government in December 2019 following a review into anti-Semitic bullying at Cheltenham Secondary College and Hawthorn West Primary School, specifically their application in relation to these matters and consideration for further enhancement. Based on the findings, the inquiry will make recommendations to the Department, including any recommendations for system wide improvements that may be translated to this school and other schools. Matters may also be referred to other agencies, including Victoria Police, as appropriate. 366 In closing oral submissions, counsel for the applicants contended the Worklogic inquiry "wasn't independent", and that the inquiry was "partisan": HER HONOUR: Well, I think we're going off track a bit. What I was getting at was you seem to be suggesting there was not an investigation. There clearly was an investigation. MR BUTT: Not the way it was - not the way, for example, the Snellings understood it to be in terms of being - it wasn't independent and it wasn't an investigation for the purposes of discipline, and it was certainly not an investigation - - - HER HONOUR: Well, you didn't put to Ms Dickinson that she didn't conduct - - - MR BUTT: Ms Dickinson - - - HER HONOUR: Ms Dickinson wasn't a witness. MR BUTT: No. HER HONOUR: So there's no allegation that she - what was - what are you saying? She was partisan? MR BUTT: Yes, but she's not the department. HER HONOUR: She hasn't been in this proceeding. MR BUTT: She's not the person we're concerned with. We're concerned with - - - HER HONOUR: Well, you just said the investigation wasn't independent. MR BUTT: Because the department was involved in it. They were paying her, recommending things, editing things. That's on the documents - - - HER HONOUR: Well, you can't make those kinds of sweeping allegations, Mr Butt, in final submissions, when the woman at the centre of it hasn't even been called and given a chance to deal with it. MR BUTT: It's on the documents, your Honour. HER HONOUR: It's not on the documents. Do you understand what a serious professional allegation that is against Ms Dickinson? Do you? MR BUTT: Our - - - HER HONOUR: Do you? MR BUTT: Well - - - HER HONOUR: It is, isn't it? You are saying that she allowed herself to be dictated to by those who were paying her, and you haven't even had the grace to call her and give her an opportunity to deal with that. MR BUTT: She's not the person who is the subject of the complaint. She's not the - - - HER HONOUR: Well, it sounded to me from what you just said that she was precisely the person you were making that allegation against. MR BUTT: She's not the Department. She's not the Department, your Honour. If we were going to make the complaint against her, we would have had her as a respondent. She was involved in the conduct, but the person who paid for it and organised it and is making representations to the public is the Department of Education. That's who our - that's who our grievance is against. … 367 As my response indicated, this submission was inappropriate, to say the least. There is no basis to consider any allegation against Ms Dickinson in this proceeding and the Court will not do so. Counsel's response - that somehow "the Department" was the intended object of the generalised slur he had made - was also inappropriate and legally flawed. These kinds of sweeping statements in final submissions were regrettably far too common. If they were intended to raise some kind of matter for the Court's consideration, they are outside the proper parameters of the applicants' case in this proceeding as pleaded, and will not be considered by the Court. 368 Later in these reasons I discuss what I consider to be the stark difference in the treatment of swastika graffiti at BSC in 2021, after the Worklogic inquiry and publication of the Worklogic report in October 2020. In that limited sense, the timing of the publication of the Dickinson report has some relevance to my fact-finding. 369 Otherwise, and save for the recommendations made and the fact of their implementation by Mr Minack at BSC, I do not consider the Worklogic inquiry or the Worklogic report have much relevance to the Court's task. The findings were made as part of an administrative inquiry, on different material, but with some overlap, although the use made of the overlapping material may have been quite different. Ms Dickinson was not named as a respondent, nor was she called as a witness. Despite this, at [106] of their written closing submissions the applicants make a number of contentions headed "DET's Failures to Investigate and Aggravated/Exemplary". Many are directed at the Department and some of its officers, but some contentions are also directed at Ms Dickinson, such as: The Worklogic Inquiry never addressed the Applicants' key concerns, immunising all BSC personnel from disciplinary action (unbeknown to Applicants)). 370 Other similar allegations were made during oral submissions. None of these allegations are pleaded, and none of the witnesses who would need to be on notice of the allegations and probably either named as respondents or called as witnesses were given any such notice. Further, a considerable amount of the documentation upon which the applicants relied for these allegations was ruled inadmissible during the trial. There could be no fair trial of these allegations in those circumstances, even putting to one side (which I do not) that none of these are pleaded. This proceeding would have been quite different had all these allegations been pleaded, and witnesses called to deal with them. Accordingly, I do not determine any of the contentions made at [106] of the applicants' final submissions.

The Worklogic recommendations 371 The Worklogic recommendations, however, are relevant. Mr Minack was cross-examined on them, correctly in my opinion, to suggest that the fact these recommendations were made indicated there were gaps in the practices and implementation of policies of BSC. The substance of the recommendations in terms of the accuracy of what they identified was not disputed by the respondents, and Mr Minack's evidence was that the recommendations were implemented, but how that implementation occurred was not developed in the evidence. 372 The recommendations, in summary, related to: (a) enhancing reporting and record-keeping practices at BSC; (b) ensuring student voices and experiences are heard and understood; (c) managing antisemitic or other discriminatory or inappropriate graffiti; (d) updating the Student Wellbeing Policy; (e) inviting Courage to Care to deliver its "upstander program" to students; (f) using restorative justice processes; (g) a dispute resolution process for the applicants, the principal, the BSC leadership and the Department to discuss the Worklogic report; (h) teacher education and training about antisemitism; (i) developing an email footer about antidiscrimination and antisemitism; (j) instructions to accompany the study of Maus; (k) exit interviews for all students leaving prior to the end of year 12; (l) annual anonymous student surveys about bullying and harassment; (m) referrals of students reporting antisemitism, bullying or other discrimination to the school's wellbeing department; (n) support for BSC staff; (o) the involvement of UJEB at BSC; (p) support to schools in identifying perpetrators of cyberbullying; (q) adoption of the IHRA working definition of antisemitism; and (r) enhancement of the November 2019 action items announced by the Victorian Government. 373 I note there was little or no evidence about the recommendation summarised at (g). No party submitted it was, for example, relevant to relief granted. 374 The fact that these recommendations were made, and seen as necessary, confirms what the evidence in this trial has shown: there was a series of systemic failures and omissions at BSC during the relevant period, leading to the less favourable treatment of Jewish students in terms of the protection afforded to them by Mr Minack, and through him the BSC staff, from antisemitic student conduct. The recommendations also demonstrate, as the evidence in this proceeding has shown, that as principal Mr Minack failed to take reasonable steps to protect Jewish students at BSC, including the applicants, from antisemitic bullying and harassment.

The comparison with the treatment of LGBTQIA+ identifying students 375 A key part of what I understand to be the applicants' evidentiary case on the "based on" aspect of s 9 of the RDA, and the allegations concerning breach of duty of care, is the way they contend other students with different attributes were protected from prejudicial or bigoted student behaviour. The group that the applicants' evidence and arguments focused on were students who identified as LGBTQIA+, or who identified as non-binary or transgender. 376 In their pleadings, the applicants describe the treatment of these students as "preferential", but as the evidence and argument developed, what I understood the applicants to be contending was rather that this group of students received appropriate protection from teachers and through the policies and processes at the school, including the kind of proactive and educative behaviour management they contend was missing in relation to the conduct experienced by Jewish students. 377 The applicants pleaded that from 2015 to 2018 (at least) rule exceptions were made for students identifying as non-binary, or who were transitioning between genders, about which bathrooms they could use, what uniform they could wear and the like. The applicants also alleged that throughout 2013 to 2020 there was a proactive and positive campaign at BSC showing support for LGBTQIA+ students - including the establishment of a Safe Space Alliance group, which was attended by teachers and promoted during and in speeches at assemblies. The applicants contended teachers showed support for this group of students by using a supportive gay pride banner as their email sign-off or wearing supportive badges or lanyards, organising a Rainbow Day awareness day, and erecting posters educating students about what kinds of taunts were offensive to LGBTQIA+ students and posters designed to normalise or support a student's identification as LGBTQIA+. 378 The applicants allege there was no such support for Jewish students, no school-wide educational campaigns, and no similar attempts at student behaviour modification. The respondents challenged the comparison sought to be made by the applicants. 379 For the applicants to identify a comparator group of students at BSC to establish differential treatment, and the reason for it, for the purpose of their s 9 allegations, was a perfectly permissible forensic exercise. As it turned out, I am persuaded there was merit in their comparison and in their submissions about that comparison. 380 The applicants identified the way Mr Minack, the leadership cohort and the teachers at BSC approached the treatment of LGBTQIA+ students, in various aspects of school life. Although at times there was a focus on matters such as uniforms, since I have not found any of the applicants' allegations about uniform policy made out, I do not consider that evidence in detail. However, there was another aspect to the evidence about how LGBTQIA+ students were treated in terms of uniform. What the allowances or flexibility demonstrated at a systemic level was a consciousness in Mr Minack, the leadership cohort and BSC teachers that a school-wide approach was needed to make such students (and especially transgender students) feel safe and comfortable at school. There was a proactivity, a consideration of ways that students could be accommodated at BSC so that they felt safe and comfortable, and wanted to come and learn at school. That consciousness was absent in respect of Jewish students. 381 Matt, Joel and Guy gave evidence about the culture in relation to LGBTQIA+ issues at BSC. Joel said BSC had "a very good culture towards [LGBTQIA+ issues]" and gave evidence about posters about LGBTQIA+ issues and advertising the Safe Space Alliance around the school from year 8 onwards. Matt also gave evidence about the prominence of LGBTQIA+-related posters, and about the school's lack of tolerance for LGBTQIA+ bullying. He said he heard LGBTQIA+ taunts "[m]aybe once or twice". He also explained: Did you see students speak up against anti-LGBTQI+ taunts?---Yes. How regularly?---Well, the taunts were[n't] very regular at all. It wasn't something that was tolerated by the school. It was known that there was fierce consequences. LGBT at Brighton Secondary College was not only protected, but they were promoted - promoted in health classes, promoted in any way they could. Teachers would wear badges and - and lanyards. I remember in my English class Ms Mali Lewis would wear badges and - and a lanyard and - yes. 382 I find the transcript was clearly erroneous and Matt said "weren't", not "were". Matt contrasted the disciplinary response to an incident he witnessed between a transgender student named Bella Wilson and another student named Elias, which resulted in Elias being suspended, and his own incidents with Elias allegedly throwing swastikas at him. Matt described his feelings: It showed to me that the school really hated Jews. The - I don't know if it was the - which teachers or the principal. I knew that they hated Jews. They - they didn't want to act on - on what happened to me because I was Jewish, but when it was an incident with another student who is in the LGBT community, they acted and they acted hard. Now, that is the correct response. No student should have to get their, you know, possessions played with or ruined or - but I didn't get the same response. I was mistreated because of my religion. 383 Guy explained BSC's culture in relation to LGBTQIA+ students: I think that LGBT students were treated quite fairly. I feel like they were protected by the school, there was a bunch of programs that allowed for LBGT students to meet. I forgot what the - ones - what that one specific program was called. People were - were told off and sent to a coordinator's if they did use any slurs such as the "F" slur during classes. There were - it was a common theme to hear someone call someone else "gay" for random reasons. But if a teacher would have heard it they would have immediately sent them to either the coordinator's or [Ms] Angelidis who was the junior school principal. 384 Other student witnesses gave consistent accounts of a demonstrably supportive and protective environment in respect of LGBTQIA+ issues. Students described the school as "quite supportive", "very supportive", "they were good", "very positive, very accepting", "very … prevalent … they did a really good job in that aspect", and "[v]ery accepting, as it should be, in my opinion". 385 Courtney Snelling's evidence was: Do you remember seeing any posters about LGBTQIA+ issues?---Yes, many. Many, yes. What did you see?---I saw the - you know, like, to support the LGBTQI+ and that, you know - like, I'm - we had, like, a day where we were allowed to wear - casual clothes day for LGBTQ+ community, and many teachers around the school wore, like, lanyards supporting it, and clips and pins. 386 The student witnesses were aware of the SSA and gave evidence about the prominence of posters for the SSA (for example, "[t]here were posters all around the school") as well as frequent announcements at assemblies. Students also confirmed that many teachers included LGBTQIA+ pride symbols in their email signatures and wore rainbow lanyards. Ariel Katz referred to his time at BSC during the same-sex marriage plebiscite and said "in general, the school culture was much more accepting towards that. Everyone was unanimous". 387 Some students noted the school's support of two transgender students. Lilly explained: They definitely protected [LGBTQIA+ students] a lot. There were posters all around the school. In almost every single classroom. The canteen. And when Jordan Wilson - Bella Nobleday - was transitioning they would, basically, just put up, like, a brick wall around him. They - if anything happened they would be - like, the kids that were bullying him - saying anything - they would get in trouble straight away. But with any other issue they would just, basically, let it slide. 388 Notis Korkoneas also recalled: Just I remember in year - I'm pretty sure it was year 10 and year 11, they sent two emails. Mister - I forgot his name, apologies - but he's, like, the leader of the wellbeing team and I remember he sent emails about - individually, about, like, about these two trans-male students and they were just saying how, you know, their new names that they go by and their identity and just, like, spreading awareness about their identity to our year level. … So, for example, they would let the two trans-males - female to males - they would let them use, obviously, like, the correct, like, uniform, being, like, in a male uniform, which is, like, you know, really wonderful to see. 389 Bella Saffer, who identified as transgender during her time at BSC, gave the following assessment of the school's culture: How would you describe the school's culture in relation to LGBTQI+ issues?---I felt it was a topic that students were less likely to bully other students about and less likely to make homophobic comments, because they knew that the teachers were on our sides. And if we felt uncomfortable, we always knew that we can go talk to the teachers or the SSA. And we were able to discuss that and escalate that. How safe did you feel at school?---I always felt safe. How would you describe the school's culture in relation to Jewish issues?---I don't believe it was taken at the same severity as LGBT issues. 390 She also gave evidence about her role as president of the SSA and the involvement of teachers in the SSA: How many people were part of the SSA?---The SSA? The core teachers were four or five, but there was always teachers coming in and attending meetings and I would say there - at any given time, there would probably be maybe 10 to 15 students in the SSA. Okay. And what was - do you know what - how they identified? Was it as LGBTQIA - - -?---Yes. It was. What knowledge do you have of teachers being trained about how to deal with issues relating to gender or sexuality issues?---The SSA would speak to the teachers and we would have conversations with them about how to respect and deal with gender-related or sexuality-related issues as well as bullying. For what period of time was this going on?---Teachers would always attend. It wasn't a mandatory meeting where all teachers had to attend. But most teachers would come and sit in on our meetings. 391 Jasmine gave evidence about the promotion of the SSA club (eg, "messages are posted once a week"), and then gave the following contrasting evidence about the UJEB lunches: And have you - what's UJEB? Do you know what UJEB is?---Yes. Have you ever gone?---No. Why not?---It wasn't - like, it was something that was made fun of. Students would just go to steal the challah and leave, and it was something that if you went, you would be bullied about going. And have you - what advertising of UJEB have you seen?---None. 392 Teachers agreed that BSC had a positive culture towards LGBTQIA+ issues and displayed supportive posters, held "rainbow days", used email signatures and advertised for the SSA at assemblies or over the announcement system. The email signature was in the following form: 393 Mr Minack confirmed that he used such an email signature for part of the period from 2013 to 2020, and often wore a rainbow lanyard. He agreed that BSC had taken action to reduce the use of offensive words like "faggot", and pointed to the school's participation in the Safe Schools Coalition program. He was not sure that the SSA was advertised at most assemblies, but acknowledged it was advertised at some. 394 In cross-examination, Mr Minack suggested that the steps taken by the school should be partially attributed to a push from students, rather than staff: And there should have been posters and all the sorts of instructional material that has meant that the culture in relation to LGBTQIA+ students has improved such that they feel protected at your school. That's the evidence in this court. You should have taken the same types of steps that you used to protect the LGBTQIA+ minority. That's fair, isn't it?---Again, that's a tricky one, because my knowledge of this tells me that it has really actually been the young people that have almost led the change in culture and attitude with LBTQIA+ students. It has almost - it has been one of those rare instances where, yes, the young folk have almost instructed the - the older folk in - in what their expectations are. So I think there's a bit of a difference there. So you're saying the school shouldn't have taken the actions about putting posters up and sending emails and assembly announcements and things of that nature - - -?---About - about the - - - - - - about Jewish issues?---No. That's not what I'm saying. I'm just drawing a distinction between the two cultural changes. That's all. That you're - - - Are you saying that the school has not been helpful in assisting and protecting LGBTQIA+?---No. No. That's not what I'm saying. No. 395 Overall, I consider the evidence disclosed Mr Minack, the leadership cohort and BSC teachers were conscious of the needs and vulnerabilities of LGBTQIA+ students and sought proactively to address them, both at individual levels and at systemic levels throughout BSC. A key theme arising from the evidence was the deliberate strategy to demonstrate acceptance of diversity in gender and sexual orientation identification, and pride in that diversity. There was a deliberate strategy to make students who identified as LGBTQIA+, or who thought they might, feel included in the school community, and feel valued. The methods adopted demonstrate, I find, that Mr Minack, the leadership cohort and BSC teachers well knew how to employ such strategies. That matter is of some weight, because it highlights that it was not ignorance that led to the neglect of the interests of Jewish students who were experiencing antisemitism.

The allegations of an antisemitic culture at BSC 396 This was a particular theme of the applicants' case, especially when dealing with objections to evidence. The applicants' counsel's response to objections was frequently to contend that the evidence was relevant to the existence of an antisemitic culture at BSC, or at least a culture that did not seek to protect Jewish students as it sought to protect other students. 397 There were repeated allegations in the pleadings and concise statement about a "normalised culture" of antisemitism at BSC. Neither party sought to adduce any evidence or make any submissions about how this term "culture" should be understood, and how the term as understood fell within the circumstances of the present proceeding. It was a term employed in questions, especially by counsel on behalf of the applicants, but without any development of what was meant by it. 398 The respondents made the following submissions in their closing written submissions: Each applicant's repeated reliance on "culture" to fill gaps in the evidence and to supply a basis for inferential reasoning is problematic. The alleged culture has never properly been articulated making it impossible to analyse. Sometimes the culture is said to be amongst male students. Is that all male students? If not, how is it qualified? Sometimes the culture is said to be amongst staff or the whole school. Is that all staff, including Jewish members of staff? What comprises the alleged culture? The phrase "normalised culture of antisemitism" is overly generalised for judicial fact-finding and uses emotive and value-laden language. Sometimes the culture is said to comprise acts of students. Sometimes it is said to comprise acts or responses of staff. What is the empirical basis for the alleged culture? A culture can only be said to exist if facts are found about several incidents and it is proved they are linked in some way. No attempt is made to explain how the current and former students who gave evidence are representative of the student body, let alone staff. The conduct is disputed or is so imprecise as to make fact-finding impossible (particularly as to the allegations of ubiquitous swastikas and other racially motivated conduct) and so cannot provide the basis for a finding about culture. And each applicant's deployment of "culture" is ultimately circular: culture is the basis to be satisfied other conduct occurred or that it was "based on" race. (Footnotes omitted.) 399 There is some force in this submission. I agree that at times the applicants' counsel appeared to deploy the asserted existence of an "antisemitic culture at BSC" as a forensic tool to contend that impugned conduct (of the respondents) was based on race, and (relatedly) that each of the applicants was differentially treated from other students by the respondents. 400 I have not taken any evidence about an antisemitic culture at BSC into account in that way - that is, as probative of the basis for the conduct of Mr Minack, the leadership cohort and BSC staff. Rather, I use it in the way Mr Paul used it: namely, that if there is a sufficiently widespread, observable phenomenon of behaviour amongst students at a school, then this might be described as a "culture" amongst students, such that corrective measures need to be taken. 401 Mr Paul expressed an opinion about a different kind of "culture" in schools: Ultimately all schools, irrespective of their jurisdiction, mechanically and operationally do the same thing - they get the right students in the right room with the right teacher at the right time. What differentiates different schools is the culture that envelops this. The culture and the standards implicit in this culture of any school, in my experience, are determined by the values that are consistently supported and reinforced by consistent implementation of these values. If behaviour or practices repeatedly appear that undermine or contradict these values, campaigns or programs such as that described in the paragraphs above are, in schools with a good culture, invariably deployed to deal with this in my experience. In schools with poor culture they are not. (Original emphasis.) 402 Here Mr Paul is describing the attitude of the school leadership and teaching staff. That is what he is describing as a "good culture" - the attitude of the principal, staff and teachers. It is not sufficiently relevant to any of the applicants' allegations for the Court to make any findings on the existence or non-existence of a "good" or "poor" culture amongst BSC leadership and teaching staff. If the applicants' allegations were seeking to invoke a concept such as this, as the respondents submitted, the evidence was insufficiently probative of any overall "poor" or "good" culture. 403 That is quite distinct from what I consider was comfortably established on the evidence of the applicants, the student witnesses, at least some of the BSC records, and some of the admissions by the respondents' witnesses: namely, that amongst a core group of students at BSC, there was indeed a "culture of antisemitism". This culture, or attitude, spread at times to larger proportions of the student population, either because of a herd mentality amongst the friendship groups of the student perpetrators, or because of particular events, like the teaching of Maus, or Mr Minack's March 2019 speech. 404 However, to be clear, the applicants have not established any "culture of antisemitism" amongst the BSC leadership or teaching staff. My findings, mostly but not entirely in respect of Mr Minack, are that the student behaviour was targeting Jewish themes and Jewish students. In failing to address that harassment and bullying, there was some differential treatment of the applicants by Mr Minack as principal on the basis they were Jewish and on the basis that the behaviour they were complaining about was antisemitic student behaviour. However, that is far from any general finding against all or most of the teaching staff at BSC that they were part of an antisemitic culture, when one recalls the definition of antisemitism.

The probative value of BSC records from the period 405 This was a key example of where the parties' cases diverged materially. Consistently with their opening of this case as a "document heavy case", the respondents placed great store on the records of BSC which were tendered. They sought to use them to prove their contentions about the following topics, or rebut the factual allegations of the applicants: (a) how often students complained about swastikas or antisemitic behaviour by other students; (b) what the reaction of the school's leadership team, and individual teachers, was to such complaints; (c) what disciplinary consequences were handed out to students; and (d) the behaviour of the applicants, which the respondents contended often explained the disciplinary outcomes about which the applicants complained. 406 The allegations in this proceeding are not appropriately resolved by affording greatest weight to BSC records. As my findings disclose, the applicants' factual allegations about what occurred at BSC are ones I accept to some degree. While some of these factual allegations are consistent with some of the BSC records, those factual allegations have largely been proven on the balance of probabilities by my acceptance of the witness evidence. 407 There is no probative basis to infer that the BSC records produced by the respondents comprise a complete and comprehensive historical account of the only complaints made about swastikas and antisemitic conduct during the period. 408 That is because, for example, no records were kept of swastika graffiti that was cleaned off, and individual student Chronicle records often did not specify if the misbehaviour had a racial element, even when the respondents accepted it did. Further, a variety of specific incidents did not make their way into the Chronicle records. 409 I accept the evidence of most of the BSC student witnesses, and a proportion of the evidence of the applicants, that: (a) they complained on a number of occasions orally to various office staff, teachers and to the senior leadership team (including Mr Minack) about both the presence of swastikas around the school and their experiences of antisemitic conduct from other BSC students; and (b) there were times when they did not complain (whether orally or in writing) because they were either afraid to do so (in terms of the reaction of the students involved in the antisemitic conduct) or because they did not believe their complaints would be taken seriously and actioned. 410 There is no basis to infer that simply because there is no BSC record of a complaint by a student either about swastikas around the BSC grounds, or about antisemitic behaviour from other BSC students, the complaint was not made. I am satisfied that there were a number of circumstances where the applicants, and occasionally other student witnesses, made complaints and no records were made. I set out those findings in more detail below.

Jones v Dunkel inferences 411 The applicants invoked the principles set out in Jones v Dunkel about a number of witnesses they contended either should have been called by the respondents, or were proposed to be called, and were not in the end called as witnesses. At least the majority were no longer employed at BSC at the time of trial. The relevant individuals were: (a) Dr Helena Riha; (b) Mr Amedeo Astorino; (c) Ms Bronwyn Hart; (d) Mr Rupert Hunt; (e) Ms Ashlee Anderson; (f) Mr David Dobric; (g) Ms Effie Frangoulis; and (h) Ms Fina Panopio. 412 As the applicants contended, the respondents called a number of witnesses who were no longer employed at BSC, or by the Department; namely, Ms Goldstone, Mr Gargano, Ms Hower and Ms Podbury. I accept the mere fact that these individuals are no longer working at BSC, and/or no longer employed by the Department, is an insufficient explanation for their failure to be called, if otherwise the principles in Jones v Dunkel should be applied to the evidence they are likely to have given. 413 It is necessary to be clear about what those principles are, before dealing with each person. 414 In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63], Heydon, Crennon and Bell JJ explained the rule in Jones v Dunkel in the following terms: The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. (Footnotes omitted.) 415 Their Honours explained (at [64]) that these principles must be considered in light of the basic proposition that: A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. 416 The first way in which the absence of a witness might be used requires the party seeking to take advantage of the rule to identify with some level of precision the evidence the absent witness was likely have given, in order to support the contention that evidence "would not have assisted" the party (at [64]). This is the second aspect of Menzies J's statement in Jones v Dunkel at 312 - that is (noting his Honour was speaking of the failure of a party to give evidence, a distinction emphasised in Kuhl): that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence[.] 417 Here, the application of this part of the rule is to specific evidence given by the applicants or their witnesses which, objectively, the Court is satisfied might have been contradicted by one of the witnesses listed above, so that the applicants' specific evidence can be more readily accepted because it has not been contradicted by the witness one would have expected to do so. 418 The second way is where an inference from evidence that has been given is available, and the person whose evidence might have cast doubt on the drawing of that inference is not called. This is the third of Menzies J's statements at 312 in Jones v Dunkel, namely: where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (Emphasis added.) 419 This aspect requires the party seeking to take forensic advantage of the rule to identify first the direct evidence in question, and second the inference that can be drawn from it. 420 Like many aspects of the applicants' case, the applicants' submissions often did not descend to this level of particularity. Rather, they sought to cast a broad brush of forensic disadvantage against the respondents for not calling the listed witnesses. That is not how the rule in Jones v Dunkel operates. As Wilcox J said in Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 411; 43 FCR 100 at 124, endorsed by the Full Court in Commonwealth of Australia v Fernando [2012] FCAFC 18; 200 FCR 1 at [117]: An inference must be founded in evidence. 421 In Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [178], Besanko J summarised and adopted the description set out in Payne v Parker [1976] 1 NSWLR 191: The conditions for the operation of the rule in Jones v Dunkel are as follows: (1) the absent witness would be expected to be called by one party rather than the other; (2) the witness' evidence would elucidate a particular matter; and (3) the witness' absence is unexplained (Payne v Parker [1976] 1 NSWLR 191 (Payne v Parker) at 201-202 per Glass J (with whom Hutley J agreed)). 422 These are the preconditions, or circumstances, so to speak, for applying the rule in Jones v Dunkel. The rule remains as I have explained it above: it must be invoked in relation to specific evidence, or inferences from direct evidence.

Dr Riha 423 A witness outline was filed by the respondents for Dr Riha. She was the year 8 student coordinator for four of the applicants. Liam, Joel, Guy and Matt each referred to Dr Riha in their evidence. The respondents tendered a medical certificate in relation to Dr Riha, dated 13 May 2022, from a medical practitioner in Prague, where it appeared Dr Riha had been staying for some time. The practitioner stated she has: been Helena's family doctor for 20 years (looking after both Helena's parents). 424 The medical certificate stated Dr Riha: has been treated for current mental health issues, and her anxiety levels need regular monitoring. She requires stress management counselling as stress factors have compounded severely. 425 It also states that Dr Riha described three contributing factors to her mental health issues, one of which was: Being exposed to undue pressure in relation to her work as a teacher in Melbourne and to historical events under investigation. 426 The practitioner's opinion was: In my opinion, Helena is currently medically unfit to work in her usual professional capacity. She must avoid any additional pressure and will focus on improving her mental health by attending counselling sessions regularly. 427 The applicants pointed out that the certificate also suggested Dr Riha was returning to Melbourne in "Semester 2 2022". However, there was no suggestion the medical practitioner was of the view she would be fit to give evidence on her return. 428 The medical certificate was not challenged. I find that although there was likely to have been a considerable amount of relevant evidence Dr Riha might have given, especially in relation to Liam's circumstances, there was an adequate explanation for the respondents not calling Dr Riha, despite having provided an outline of evidence from her.

Mr Astorino 429 Mr Astorino was mentioned especially by Joel in his evidence, and in BSC records relating to Joel's circumstances. He was the year 10 student coordinator when Joel was in year 10. The only specific evidence the applicants refer to is a question in an email in the BSC records by Mr Astorino, in response to Mr Minack asking (during the Worklogic inquiry) for his records about Joel, whether Mr Astorino's and Ms Lewis' notes may have been deleted. Contrary to the applicants' contentions, it is not a statement any records were deleted. Nothing can be drawn from his email, certainly not an inference (if this is what is being suggested) that records were deliberately destroyed ahead of this litigation. While Mr Astorino may have been able to give relevant evidence just as Ms Lewis did, it is unclear whether there is a specific inference from direct evidence the applicants seek to have the Court draw, or what evidence that has been given they say Mr Astorino might have contradicted, so that his absence might mean the Court can more readily accept that evidence.

Ms Hart 430 Ms Hart was the co-student manager (with Ms Trinh) of Matt and Guy in year 9 in 2019, and shared a co-ordinators office with Ms Trinh. 431 The applicants refer to only one specific set of notes from Ms Drechsler, referring to a conversation with Ms Hart and Ms Trinh. There was no controversy that Ms Drechsler had made those notes, or spoken to Ms Trinh and Ms Hart, nor was there a controversy about the accuracy about this aspect of her note (though there was about other aspects). I have accepted, as set out further below in these reasons, Matt's evidence that he made complaints since year 7, and gave names at least on some occasions. 432 While Ms Hart may have been able to give relevant evidence just as Ms Trinh did, again it is unclear whether there is a specific inference from direct evidence the applicants seek to have the Court draw, or what evidence that has been given they say Ms Hart might have contradicted, so that her absence might mean the Court can more readily accept that evidence.

Mr Hunt 433 Joel gave evidence of a specific incident with Mr Hunt where Mr Hunt told him to take off his kippah. I have accepted Joel's evidence. 434 Mr Hunt was the principal person who could have contradicted Joel's account. The fact he was no longer employed by the Department at the time of trial is an insufficient explanation. There was no evidence he could not be located. No medical evidence was tendered to explain his absence. This is a situation where I accept that the Court can more readily accept Joel's evidence on this incident in the absence of Mr Hunt.

Ms Anderson 435 Ms Anderson was assistant coordinator and coordinator in years 8 and 9 (2014 and 2015), when Liam was in those years. There is in the BSC records in evidence an email from Ms Anderson to Mr Minack during the Worklogic inquiry in September 2020. Ms Anderson states: I had the pleasure of teaching Liam in my DIV 3 Math Class during part of 2015, being his coordinator in 2015 and assistant coordinator in 2014. I recall him as being friendly, attentive, and keen to do his best. I was aware that Liam had experienced bullying and anti-Semitic abuse prior to starting Year 9. I recall, in 2014, sitting in on several interviews with offending students, conducted by you and Pat Gargano, who were later suspended due to their behaviour. I always felt that anti-Semitic behaviour and intolerance in general was taken very seriously by the leadership at BSC. I do not recall being told about an attack on Liam in the bathroom, either at the end of 2014 (2014-2015 commencement program) or the beginning of 2015. Nor can I find any record of it in my notes from these times. 436 It appears the applicants are submitting that the Court should find Ms Anderson's evidence was unlikely to assist the respondents because she recognised Liam had experienced antisemitic abuse prior to starting year 9. I accept, as the respondents submit, this email was not raised until Mr Gargano's cross-examination. There was no witness outline for Ms Anderson. I find it is certainly possible that, because of what she says in her email, Ms Anderson may have been able to confirm her knowledge in 2014 that Liam had been subjected to antisemitic bullying. However, the way this document was used by the applicants means I do not consider it would be reasonable in the context of this trial to expect the respondents to have called Ms Anderson, or to have sought to do so, in the running of the trial. Based on other exchanges during trial, in my view it is likely the applicants might have opposed such a course in any event. 437 Ms Anderson's email speaks for itself and I have given it some weight in making findings on Liam's allegations. That being the case, there is no place for any additional inference to be drawn.

Mr Dobric 438 In the transcript Mr Dobric's name is, it seems erroneously, recorded as "Dobridge". He was Liam's year 8 maths teacher. It appears correct, as the respondents submitted, that the first specific reference to Mr Dobric by name (albeit an incorrect name as recorded in the transcript) is in Jules Paul's oral evidence. However, Liam did give evidence about experiencing antisemitic taunts and harassment in his year 8 maths class. This was also the class for which other teachers accepted the description "chaotic" could be used: Ms Podbury and Ms Gibson, for example. 439 The fact Mr Dobric was no longer employed by the Department at the time of trial is an insufficient explanation. There was no evidence he could not be located. No medical evidence was tendered to explain his absence. 440 I consider I can more readily accept Liam's evidence, and that of Jules Paul, about what went on in this maths class in terms of antisemitic taunts and harassment directed at Liam, in the absence of Mr Dobric.

Ms Frangoulis 441 A witness outline was filed for Ms Frangoulis. She was Joel's year 11 coordinator. In evidence was one email sent by Joel to Ms Frangoulis, attaching a photo of swastika graffiti on a wall in one of the boys' bathrooms. Joel's evidence about Ms Frangoulis was limited to this incident. 442 The Court was informed on 18 November 2022 that the respondents did not propose to call Ms Frangoulis. I agree this meant the applicants were not able to call her, especially in light of the Court's statements at various time that there had to be an end to witness evidence, and last minute decisions to call new or different witnesses. 443 Joel's email and Ms Frangoulis' email speak for themselves. Joel's evidence was that Ms Frangoulis did not take any action on his complaint and I accept that evidence. Her email shows she drew it to Mr Minack's attention, but I find he took no action. Joel's evidence can be more readily accepted in the absence of Ms Frangoulis, and in the absence of any reasonable explanation for her not being called. 444 Ms Frangoulis' absence also permits the Court more readily to accept that Mr Minack took no action after her (separate) November 2020 report about swastikas.

Ms Panopio 445 The respondents tendered a medical certificate in relation to Ms Panopio. She was a person for whom a witness outline had been filed. The medical practitioner concerned stated she had a "mental health condition of anxiety" but went on to explain why other medical matters concerning Ms Panopio, in combination with this condition, which need not be set out here, meant she should not give evidence. 446 The medical certificate was not challenged. I find there was an adequate explanation for the respondents not calling Ms Panopio, despite having provided an outline of evidence from her.

Mr Minack's speech, or speeches - pleadings 447 Each of the applicants, with the exception of Liam, make claims under s 9 and s 18C of the RDA, and in negligence, relating to speeches delivered by Mr Minack to assemblies at BSC. 448 In their amended statement of claim, the applicants plead that the making of the speeches breached s 9(1) and s 18C of the RDA, as well as constituting a breach of the duty of care owed to them: The principal gave 2 speeches to the students in about October/November 2018, and in early 2019. The speeches referred to his father/grandfather as a Nazi as a good person, and were remorseless towards Jews (and unapologetically so), and in any event: a. immediately precipitated significant spikes in anti-Semitic words and conduct at the School (including in front of teachers who did nothing); and b. were communicated in a manner that constituted[:] i. violations of ss 18C and/or 9(1) of the Act; and/or ii. were negligent and in breach of the School's duty of care to the (remaining) Jewish Applicants. … By reason of the matters set out above at paragraph [345] (and elsewhere), Mr Minack's speeches to the school in late 2018 and early 2019 concerning his grandfather/father as 'a good Nazi' (with the concomitant increases in anti-Semitic words and conduct which followed), comprised acts that: a. involved a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; and[/]or … b. were reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and the act was done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group; and c. thereby breached ss 9(1) and/or 18C of the Act and 3(3); and d. the First Respondent is also vicariously liable under ss 18A and 18E of the Act. By reason of the said breaches, a. Zack Snelling b. Joel Kaplan c. Matt Kaplan and d. Guy Cohen, [have] suffered loss and damage and are entitled to relief under the AHRC Act. 449 By closing submissions, it was common ground between the parties that Mr Minack delivered a speech to an assembly at BSC in March 2019 in which he referred to his father as having been a conscript in the German Army during World War II. In their closing written submissions, the applicants contend that Mr Minack made, "during mid-late 2018 to 2019 … at least 3-5 offensive speeches to BSC students". The respondents submit that only a March 2019 speech is made out on the evidence.

Mr Minack's speech, or speeches - resolution 450 The applicants' allegation in their pleadings was that there were two speeches. By closing submissions, this had become three to five speeches. The latter number was no more than speculation, in my opinion. It was tolerably clear there was some evidence that some students said they had heard a speech by Mr Minack towards the end of 2018, and some said there was an earlier speech in 2019, before the March 2019 speech. 451 I find at most there were three relevant speeches by Mr Minack. The content of the earlier two is unclear.

The 2018 / earlier 2019 speech allegations 452 I find the applicants have not discharged their burden of proof to establish Mr Minack gave a speech (or speeches) in late 2018 or prior to March 2019 in which he made references to Nazis, to his father as a member of the German army or to Jews in a way that could contravene s 9 or s 18C of the RDA. While I am prepared to accept the evidence establishes it is more likely than not that Mr Minack made earlier school assembly speeches where he may have referred to his father, or to the Nazis or Nazi Germany, the evidence is insufficiently clear about what he said for any findings to be made in relation to s 9 or s 18C. 453 The witnesses who gave direct evidence about earlier speeches were: Matt, Joel, Guy, Zack, Jules Paul, Nathan Shulman and Elliot McMahon. Lilly Curnow also gave evidence about hearing multiple speeches during her time at BSC (between 2017 to mid-2020), but she did not specify the timing of these speeches. 454 Jules Paul was in year 12 in 2018. This fact is not unimportant, because it excludes the possibility of Jules having been present at the agreed March 2019 speech. 455 Jules gave the following evidence: So what, if any, speeches stand out to you in 2018?---In 2018, Richard Minack gave a speech at the end of the year to send off the year 12s leaving the school. During this speech, he was listing off examples of role models and good men. And he brought up his father or grandfather, I'm not sure, and mentioned that he served in the German military and I don't know why he did that. It seemed to have no - like, the comment on him serving in the military seemed to have no relation to the topic and it just seemed very off-colour. What - in particular, if you can be as specific as possible, what did he talk about - who, to the best of your recollection, was it the father or grandfather you mentioned?---I remember it as grandfather. And so what do you remember in particular? Be as specific as you can be?---During this assembly at this time of the year, me and the friends I associated with at the time weren't paying attention to the assembly, so we weren't exactly listening in, and then he mentioned what I recall to be his - just out of nowhere, his German grandfather who served in the military, and that immediately caught my attention. Yes. And what did he say about him?---He said he was a good man. 456 Jules was not cross-examined on this evidence. I accept it. The fact this was at the end of his year 12, in 2018, was not contradicted. 457 Jules then gave some further evidence, trying to relate what he had heard to the "Nazi party", and labelling what he had heard as racist, but I find this evidence was speculative and I place no weight on it. 458 Elliot McMahon was clear that he heard two speeches by Mr Minack relating to Mr Minack's father. He described the first occasion in the following way: Can we go into both of those, to the extent you can remember them. So what was the first occasion that you heard one?---The first occasion was when he didn't mention the mission brown paint, he simply just said his father was a Nazi, Nazis are good people, and that was - that was the main point for the first one. 459 Elliot placed this speech in the first term of 2019, when he was in year 9. He described he reaction he observed to the first speech: After it happened the first time, I - I asked - I'm not sure on names, but I - I remember they were, like - well, people who I asked were basically saying, "He always talks about his Nazi dad being a good person." And it was just - yes, it was just really weird for me, coming from my old school, which, like, every - it was a very politically correct school. Every subject was - that was touchy was never spoke about. And I was just surprised that he was out here saying Nazis were good people, you know. 460 Elliot was cross-examined about whether in the evidence above he was conflating the March 2019 speech with earlier speeches: And given time has passed and given you spoke to students about it, it's possible that you are conflating your discussion with other students with what Mr Minack actually said in the speech?---If you're meaning I don't know what was said in the speech when I was present, I know exactly what was said in the speech that I was present. I don't know what was said in the previous speeches, obviously, because I wasn't at the school, but as far as the speeches I was present for and I gave evidence for, I know what was said. Okay. Well, Mr Minack will give evidence that he did not say "Nazis are good people"?---Okay. I mean, you can ask the whole school. The whole school was there. 461 As I have found elsewhere, I did not find Elliot a reliable witness. He was volatile and prone in my view to rushing to express a view. He clearly disliked Mr Minack intensely. I do not accept his evidence that Mr Minack said "Nazis are good people". Mr Minack did not say this in the March 2019 speech, as I find below. I am not persuaded he made this statement in any earlier speech. This is the kind of gloss that has been put on Mr Minack's words by a number of BSC students, and I find this gloss has gained currency as the controversy over Mr Minack's speech continued. As I explain elsewhere, it may be that some listening to the speech subjectively gave his words this imputation. That, in my opinion, is what occurred with some of the applicants, as I explain below. I do not consider this is what happened with Elliot, in relation to either speech. I find his dislike of Mr Minack has led to him adopting versions of both speeches he has heard from others, and I do not consider his evidence came from any active recollection. 462 Nevertheless, I do accept his evidence that there was an earlier speech in 2019 where Mr Minack mentioned his father. I accept this because this evidence is consistent across several witnesses. 463 Nathan Shulman was a witness I found very straightforward and reliable. He was direct in his narrative during his evidence, he did not exaggerate and the emotions he described experiencing in his evidence were, I find, drawn from his actual recollection of his experiences during the relevant period. 464 Like Jules Paul, Nathan was in year 12 in 2018. So once again, this fact is probative of the conclusion that Mr Minack did give a speech in 2018 in which he referred to his father. Nathan's evidence was: When I was in year 12, I think it was early to middle of the [y]ear he did a speech in front of the whole school about - and he - I can't exactly remember what the main topic was, but he started talking about his father and how he was conscripted into the World War 2 army for Germany. And then he went on to say how he was a good person and a good - yes, a good person and a good dad. If you have to put a date on that speech, what's the date?---I think it was about May/June, so almost this time 2018. 2018. When you heard that, how did you feel?---Absolutely shocked. It was awful. It was - it was almost quite embarrassing as I was leaving. Definitely lots of eyes on me after that, being a Jewish person. But, I mean, to go on that long about his father was just - just almost humiliating. Like, he was - yes, yes. It was - it was pretty bad. After that speech, what did you see in terms of reactions of the kids?---It was massive. Walking back to the classroom, everyone was talking about it, saying that, like, "Mr Minack's a Nazi. That's probably why he hates you." That was talking to me. And just, yes, all the Nazi jokes, the heil jokes. Yes. 465 Nathan was not cross-examined on this evidence. I accept his evidence, both as to what Mr Minack said, and the reaction experienced by Nathan afterwards. Nathan's account of what Mr Minack said is consistent with the transcript of the 2019 speech. It has no extra overlay or gloss, unlike some of the evidence from other student witnesses. 466 During his evidence-in-chief, Matt volunteered evidence relating to a speech by Mr Minack in 2018, rather than being asked a direct question about it: Wait, sorry. We missed - there was a - there was a - a speech by Richard Minack in the late of 2018. I remember it was - it was on a Thursday before the Friday the 13th, because the reason the speech was called was, in the school bathroom, there was a drawing of a - of a gun and, "Don't come to school Friday the 13th," so on the Thursday, they had a whole school assembly where he talked about he had a Nazi father and how he's a good man. And I remember my reaction to this was - as a cohort and me personally, we're scared - we were scared already because there was all this talk about a school shooter and then he brings up about his Nazi father. And it was terrifying as a Jewish student in the school. And after that, the anti-Semitic jokes increased, the Heil Hitlers increased, the swastikas increased. Yes. What were the exact words you remember from that speech?---"My father was a Nazi" and I believe there was a sentence in between and that he was a good man. 467 I accept part of this evidence but not all of it. I do not accept Matt's evidence that Mr Minack said - exactly - that his father was a Nazi. The reason I do not accept this is because it accords with how Matt described the March 2019 speech, and yet the objective evidence is that this is not what Mr Minack said. This evidence from Matt is a good example, I find, of how Matt interpreted the words used by Mr Minack. It may well be the case that this is a natural imputation from the description Mr Minack in fact used in March 2019, and I find he is likely to have used on earlier occasions. But it is not what he said. For the purpose of my fact-finding on the applicants' s 18C allegations, the distinction may be important. 468 I do, however, accept that Matt had a genuine recollection of a speech in 2018 made by Mr Minack where he referred to his father, and to his father living in Germany during World War II, and described him as a good man. These aspects are consistent with the evidence of BSC student witnesses I have found reliable, such as Nathan Shulman. 469 Joel's evidence was that he recalled two speeches by Mr Minack. The first one he described as a "few assemblies before the one that was recorded". Joel's evidence was that he didn't recall anything about the speech except that Mr Minack "said his dad was a Nazi … I just remember Minack talking about his dad. He said, 'My dad was a Nazi'". 470 Joel described the atmosphere at the assembly as "very intense". In cross-examination he maintained he was not mistaken about what he heard: All right. It's entirely possible, isn't it, that you're mistaken about him saying that his dad was a Nazi?---No. It was actually quite an impactful statement to me being a descendent of someone who was killed by quite a large - quite - you know, being quite a large lot of my family had been brutally murdered by Nazis. It was - it was quite an impactful statement. I wouldn't have missed it. That's why it actually stands out to me. And you know that's not what he said in the speech that you recorded, is it?---In the speech that I recorded, he said his dad was a German soldier. And to the extent that he spoke about his father previously, that's what he said as well, isn't it?---No, that's not what he said previously. 471 Joel's evidence was that, despite the BSC policy that students were to leave their mobile phones in their lockers, he took his phone to the second assembly: Why did you record it?---Because people didn't believe - like, people outside of school didn't believe he said his dad was a Nazi the first time. People I knew were so taken back by it. They couldn't believe a principal would say it, so I had to - yes. 472 Guy Cohen was not present for the March 2019 speech, but was present for what I find to have been a speech earlier in 2019: There was a speech where I was present where he brought up the topic of his father, who he said although my father was a Nazi and he fought for the Nazi Army in World War II, he was a good man, which I found pretty ridiculous to say that even so - even if he was your father, it doesn't make a Nazi a good person. How serious or how intense was that for you?---Extremely serious. As a Jewish person, as someone saying that someone who dedicated their life to eradicating my people, saying that that person is a good person is totally, like, outrageous. … I don't actually understand what he was trying to put towards us, like what idea he was trying to present to us. He seemed that he was trying to just, like, bring knowledge of the fact that his dad was a Nazi but a good man. I don't know how that connected to whatever was happening during the time. I'm not sure why he did that, really. I'm - I don't know. 473 As with Matt, my findings about Joel's and Guy's evidence concerning the first 2019 speech are similar. I find they have conflated their interpretation, and their focus given how besieged they were feeling at BSC by this time, with their evidence about what was actually said. Whether or not Mr Minack described his father as a "German soldier" is a matter I address below. I reject the evidence that Mr Minack in fact said his father was a Nazi, although I do not discount that Mr Minack may have used the word "Nazi". 474 Zack estimated Mr Minack gave "around two, two to three maybe" speeches about his father. Of those speeches, Zack gave the following description: I remember that he would talk about his father and that, although he was a Nazi, he was a good man, and that he - he was almost protecting his family's name when he would talk about his father and his family. He wouldn't talk about them in a bad way. He would just - it was very neutral, but leaning towards how they were good. 475 His later evidence disclosed - by references to 'mission brown' paint - a recollection more specifically of the March 2019 speech, but I infer the evidence above was a recollection of more than this single speech. I give some weight to that general evidence, as I found Zack to be a persuasive and reliable witness. 476 Mr Minack denied speaking about his father "multiple times" in assembly speeches. The cross-examination was put in terms of Mr Minack referring to his grandfather, which he also denied. I accept that denial - the students who referred to Mr Minack speaking about his grandfather were, I find, mistaken. 477 Mr Minack was initially less unequivocal in cross-examination about whether he had spoken about his father other than in March 2019. He said he could not recall. In examination-in-chief he had clearly put the March 2019 speech as the first time he had spoken about his father. He was less certain when first pressed about it. However, as the cross-examination proceeded, Mr Minack became firmer: And I put it to you that you've expressly used the word Nazi on several occasions in your assembly speeches. Many of our witnesses have given evidence of this. Do you accept that?---The word Nazi? Yes?---I - I don't think so. Well, I'm unsure. I've only ever spoken about my father once. That is certain. I have, over my time as principal, spoken about discrimination and bigotry and its abhorrent nature on a number of occasions. It's possible I may have referenced the Second World War and the horrors of it previously, because it is, unfortunately, the great example of - of this type of abominable behaviour. But I can't - I don't have a specific recollection. I'm sorry, Mr Butt. (Emphasis added.) 478 I do not accept Mr Minack's evidence on this matter. I am persuaded there was sufficient evidence from a range of BSC students, not just the applicants, to establish it is more likely than not that Mr Minack referred to his German father as having been a member of the German army and contextualising this, I infer, as being during World War II. Whether he used the word "Nazi" I make no positive finding about. As I explain elsewhere, there are a number of objectively rational reasons why the memory of a person in Mr Minack's position would not be as clear or acute as the BSC students and the applicants about these kinds of specific occurrences. 479 In summary then, I find Mr Minack gave an assembly speech in the second half of 2018 in which he referred to his German father, to his father having lived in Germany during World War II and having been in the German army, and to his father being a good man. 480 I find Mr Minack gave a speech in early 2019, prior to the March 2019 speech, in which he mentioned his father in substantially the same way as he did in 2018. I find there was some increase in antisemitic behaviour against Jewish students at BSC after, at least, the 2018 assembly speech. 481 The evidence does not establish what the context for either of these speeches was. Nor does the evidence establish with any precision what Mr Minack said. Without evidence of that kind, the applicants cannot and have not discharged their burden of proving any separate contravention of s 9 or s 18C of the RDA in relation to either of these speeches, if indeed that is part of their case. 482 The relevance I ascribe to these speeches is that they form a material part of the context for the March 2019 speech and I take my findings and the evidence above into account in that way.

The March 2019 speech 483 It was Mr Minack's evidence that he asked one of the BSC administrative staff to produce a transcript of the speech from the recording made by Joel. The applicants did not dispute the accuracy of the part of the document tendered that was said to have been transcribed from Joel's recording. 484 The part of the document which is not a transcription reads as follows: The text below is a transcript of a speech I gave at our regular school assembly on the 21th March 2019. Most of this transcript is taken directly from a recording of the speech. The first part, in bold, was not recorded, and I have reconstructed it as best I can from memory. The day in question was the eve of the one week anniversary of the shooting in Christchurch. I wanted to make a strong educative speech to my school community about where this kind of extreme behaviour starts, and how we can be alert to signs of it, and which also affirmed our school values. Thank you. You may not know this, but I am a German citizen. Well actually, I am a dual German-Australian citizen. My father was born in Germany in 1923. Do the maths on that. Hitler came to power when he was 10 years old. He was then drafted into the army as a 19 year old in 1942. He was sent to Africa…. (Original emphasis.) 485 Mr Minack confirmed in his evidence-in-chief that he reconstructed from memory the part extracted in bold. His evidence was as follows: As I understand it - well, there's a part of this text that is in bold and then there's a part that is not. What does that signify?---That's correct. The recording started just shortly after I began speaking, so in the transcript I made it clear to the people reading that document that the first part was constructed from my memory of what I said. That's why it's highlighted in bold. And what was done with this document?---It was sent to my entire school community with a - a brief explanatory note using the Compass communication system. 486 Mr Minack described how he formulated the content of the speech in this way: I had developed a couple of ideas in my mind. I don't actually - well, I do speak carefully, but I don't pre-write out my speech. It wasn't read from a - it wasn't read from a script. But I did have a strong idea in my mind what I wanted to say. 487 It is appropriate to set out the whole of the transcribed part of Mr Minack's speech: ……in 1943 and captured by the Americans. And of the village from which he came from, of which [there] was about 3000 people, he was the only male of service age so, that is, males between 18 & 45ish, who actually survived the war. He was very lucky being captured by the Americans. He never spoke much about his wartime experiences, but he said one thing once, only once, and he said, "You know, people ask the question, how was it that the abomination of the holocaust, how did that come about?' He said 'You know what? When you grow up, and the media tells you that Jewish people are sub-human and are evil, and when your government tells you that Jewish people are subhuman and are evil, and in-fact everyone is telling you Jewish people are sub-human and evil - guess what? Even good people, and my father was a good person, even good people start thinking, 'Oh maybe Jewish people are sub-human and evil.'" It's a process called normalisation - and I want you to think about that word. To 'normalise something' is to make something normal. It's not complicated. So what has this got to do with you and Christchurch? Well, acts like Christchurch and acts like the holocaust come out of a process of normalisation. In particular it comes out of this idea that one group in society is somehow higher - or better - or more important - or more valid than another. But normalisation is subtle, it goes in stages, it takes time. It's a slow and gradual development of intolerance, and it starts with a really simple process - it starts with a process in which we highlight differences, because if I can demonstrate someone is different to me, I'm only saying they're not like me, they're somehow separate to me. Who I am and what I represent is different to who they are and what they represent. Once we've established some difference, then we can start to establish some division. We can start putting people into camps, or tribes, or groups, and so the process goes on until, unfortunately, we end up in a situation where people like the gentleman, he wasn't a gentleman, the person, committed the Christchurch atrocity, because that's what it was. That person came to the conclusion that people of Muslim faith are so different and so below him - that he had some sort of right to actually exterminate them. He's one man, put 150 people like him together and you've got an 'Einsatzgruppe.' The Einsatzgruppe were the group of people who followed the Wehrmacht through Poland and Russia and exterminated up to 2 million people by shooting them. This is where it starts, and it can be really subtle. When you get home tonight, go and google a can of Mission Brown paint from Dulux. You can still get Mission Brown paint. Mission Brown paint was originally called N----- Brown paint - oh yeah it was. How offensive! How inappropriate!- and of course, after the 1960's and the civil rights movements in both America and Australia, it became pretty apparent that N----- Brown paint wasn't going to sell too well - so the name was changed to Mission Brown. Think about that for a minute. In Australia, who did we confine to missions, usually in the rural parts of Australia, right up until the '80's? Yes, it was our Indigenous brothers and sisters, that's who. So Mission Brown paint is only a tiny step in language away from N----- Brown paint, a tiny step. Why am I telling you this? Because, because there's remnants, I'm glad to say this is a remnant, that is a remnant of this stuff in our culture today. The culture that is to make separation and difference a point of emphasis. We reject this stuff entirely. I spoke about Senator Anning's maiden speech when he made it in the middle of last year. We reject difference; we make acceptance one of our core values at this school, because acceptance leads to tolerance. If I can accept difference, at the very least I can tolerate difference. I will allow you to live your life, you will allow me to live my life - we're different and that's okay. But more than that, Brighton Secondary College, and Australia in general, welcomes difference. One of the great triumphs about society in Australia is that it is a multicultural society that welcomes difference. In fact I will go a step further, BSC and Australian in general, celebrates difference; difference in all its forms - whether it be a heritage, a religious belief, a sexual orientation - it doesn't matter; abled or non-abled, it doesn't matter; we celebrate difference and we will continue to celebrate difference. I ask you; you can be intolerant of one thing. Please be intolerant of belief systems that seek to put one group as different / higher / more special than others. Be intolerant of language and behaviour that seeks to separate and divide; because by doing that, we will maintain this school and this nation as the wonderful place that it is. Thank you. (Original emphasis.) 488 Mr Minack was cross-examined about his intention in saying some of the things he said. He generally did not shy away from his intention, for example, to convey to the BSC students that his father was a "good man". He was pressed about the repetition of some of the words and phrases that the applicants' case highlighted as offensive. He insisted the repetition was appropriate. For example: In other words, it was not necessary to repeat the phrase "subhuman and evil" another three times following the first reference. Do you accept that?---No, because in the structure of the speech I was trying to say this is what the apparatus of government is putting and then I was trying to show how that can influence the thoughts of an individual, so as a rhetorical technique, I was trying to show how that - that can become a realisation of a person because of the environment they're surrounded in. 489 There was a great deal of cross-examination about the speech and it is not necessary to address it all, because the themes were similar. That is not a criticism, rather an explanation of why a few extracts suffice to convey the basis for my findings. Mr Minack did not accept there was anything inappropriate about his speech. For example: And you believed that was appropriate whether or not it offended Jewish kids?---It was appropriate to make the point that I was making, yes. Just answer my question?---Sorry. Do you believe that it was appropriate to use those words another three times whether or not it offended Jewish kids?---Well, at the time I was making the speech, I wasn't aware of the offence, Mr Butt. So at the time I thought it was appropriate to say it multiple times. But you've given evidence today that if people were offended, you still maintain the speech was appropriate. So I will ask it again?---Sure. You believed it was appropriate to say the words another three times whether or not it offended Jewish kids?---I still stand by the speech, Mr Butt, so I'm - I'm going to say yes. 490 Mr Minack explained why it was necessary to use Jews as the racial or ethnic group he was referring to: And you could have said that Muslims were "subhuman and evil" four times to make the point, to make sure no one didn't get it?---Well, not quite, Mr Butt, because, again, I was trying to convey the processes of, in a sense, radicalisation that can lead someone to commit the atrocity that Tarrant did, whereas in the early part of the speech I was trying to use my father's experience growing up in Nazi Germany to show how the apparatus of the state can create certain thoughts and attitudes in people's minds. 491 Mr Minack accepted that when he spoke about Muslim people in the speech his language was "more cautious". 492 Two further examples of how Mr Minack sought to explain why he said what he did are the following: In any event, you considered the reference to Einsatzgruppe appropriate?---Yes, because what I was trying to do was to draw the line between how language influences individual beliefs, and then when individuals are aggregated who share that belief, terrible and horrible things can occur at a large scale. And the language you've used in relation to the Muslim people is "different" and "below"?---Sorry, Mr Butt, the language I - - - The language you used when describing Muslim people was "different" and "below", so there was nothing particularly relevant about that to what you're trying to do with the Einsatzgruppe?---Well, I'm trying to show that Tarrant was motivated by the consideration that Muslim people were different and othered and - and not worthy of being given the right to life. … You wouldn't have considered it appropriate to make a reference to Indigenous people as subhuman, would you?---Well, again, I'm not - you know, in terms of the context of the speech and the context of, I suppose, this part of Australian history, I -I - I don't know. I - I'm not in a position to make that characterisation. Now, the speech was about Christchurch, wasn't it?---Yes. Yes. You didn't need to talk about the Holocaust in the speech, did you?---I did, because -or I chose to because I was trying to convey, in a powerful and memorable way, how societal attitudes - and then broken right down to language use - can lead to the othering of people. And that can lead to horrible outcomes at different scales. The scale that Mr Tarrant perpetrated and, of course, the scale that the Nazi regime did in the mid-20th century. 493 The Court's tasks under s 9 and s 18C in relation to the speeches are different, so I express my findings separately.

Findings on s 9 494 There was no real dispute that the making of a speech falls within the doing of an act for the purposes of s 9. This aspect of s 9 is satisfied. It was also not in dispute that Mr Minack was the "person" to whom s 9 is to be applied. 495 The way the applicants put their case on the contentious aspects of s 9 was as follows: In a s9 RDA sense, Mr Minack's speeches manifested and caused a 'poisoned educational environment' for Jewish students in which they experienced impermissible harm on the basis of their Judaism (Ross)[.] 496 The "poisoned educational environment" is again a reference to the decision in Ross. In oral closing submissions, counsel for the applicants submitted: MR BUTT: Only the Jewish minority were subjected to insult/humiliation on several occasions at assembly, over 2018 and 2019, in which Mr Minack was approving his Nazi father as a good man. There was no other minority that was subjected to that sort of public insult, humiliation, fear, etcetera, on several occasions - no one else. The only evidence of any such public insult was for the N word, and there was an apology that came immediately after it. The Jews never got an apology. 497 The applicants submit that the four applicants (excluding Liam, who was not at BSC for the March 2019 speech) were subjected to "distinctions and preferences" in the language used in, and the content of, the March 2019 speech and the absence of an apology (in contrast to an apology given for the use of the "N" word). The applicants submit: His infringing discriminatory conduct is established by inter alia: i. Conceding that he could have communicated his Nazi Germany message about "subhuman and evil" by saying those words once 1346:4, yet he considers it appropriate to repeat the words 4 times. Not only was it objectively offensive proven by the students' evidence, but here the Principal's evidence of standing by this conduct 'whether or not it offended Jewish kids' is also very relevant. 1346:30 ii. Conversely, he conceded he was more cautious to "not offend" Muslims (saying 'different and below' instead of 'subhuman and evil') 1347:38- 45. iii. Mr Minack referred to "N word" 3 times, but was sure to communicate swift rejection of that term when doing so, saying 'How offensive! How inappropriate!'. He never did this express rejection for Jewish offensive caused, which is differential treatment by reference to race. The difference was not lost on Jewish educators Meltzer and Rutland. Prof Rutland, like Ms Meltzer, rejected that 'we reject this stuff' later in the talk, was clear enough to reject all language used 1387:42-47. The merit of that opinion was proven by Alma Goldberg's evidence, who said, in relation to four consecutive sentences "Jews are subhuman and evil" 6:475:38-46, that "Once you hear that repeated to you four times…I, at least, zoned out." She could not physically handle the offence. The same thing occurred for her later in 2019 (after Mr Minack/State had notice of Jewish offence), when he continued to refer to his German father in mid-2019 - she 'zoned out.' 6:476:44-45. Ultimately all the Jewish students experienced the speech/es as unlawful discrimination. iv. Mr Minack referred to indigenous 'brothers and sisters' in affectionate terms, such courtesy and dignity never being extended to Jewish people. Rather, he considered it more important, for Jewish examples to be 'very clear' about the 'Nazi view' towards Jews 1349:11; 1349:30, without any express denunciation, and in cross-examination, without any concern if he had offended Jewish children. v. His reference to Einzatsgruppen (Nazi death squads) was devoid of any positive 'motive'. By his own evidence, Mr Minack tried to show students how an individual might adopt Nazi attitudes and beliefs which would allow them to aggregate likeminded people together to commit crimes. When asked why someone would want to aggregate such people together, he did not know how to answer it. 1348:12. This was far from the dignity Jewish students deserved. (Original emphasis, footnotes omitted.) 498 The applicants then contended: The effect of the Principal's conduct on each occasion was to normalise and increase antisemitism, nullifying or impairing the Applicants' human rights; nullify in that 3 out of the remaining 4 Applicants left because of antisemitism, and impair in that they suffered at School, avoided it, and were subjected to verbal and/or physical abuse. Mr Minack's breaches were egregious, coming from the principal. (Footnotes omitted.) 499 The making of the March 2019 speech is alleged to be a separate contravention of s 9. The applicants must prove that the making of this speech by Mr Minack "involved" a distinction, exclusion or preference connected to the Jewish race, and it was this distinction, exclusion or preference that nullified or impaired the pleaded human rights of the applicants. They must prove, as I explained in Wotton at [534], differential treatment by reference to their race. For this allegation, they must prove that Mr Minack in his speech treated them differently, by reference to the fact they were Jewish. 500 Once this is set out, the major difficulty for the applicants' case about the Mach 2019 speech under s 9 becomes apparent. 501 Mr Minack's March 2019 speech was not an act directed at the applicants. It was not treatment of them, or even of Jewish students at BSC. It was a speech directed at all BSC students. It did not involve any distinction, exclusion, restriction or preference. As given, the speech is not susceptible to constituting a contravention of s 9. That is not to say that the making of remarks can never be a contravention of s 9. At least one case in the authorities expressly explains how it might be. I discuss this case in Wotton at [538]: In Qantas Airways Ltd v Gama, French and Jacobson JJ, with whom Branson J agreed, held that the act in that case - Mr Gama's supervisor making remarks to him in the presence of his colleagues - involved a "distinction." That was because Mr Gama, who was born in India and was of colour, was singled out for these remarks, while other colleagues around him were not. At [76], French and Jacobson JJ stated: The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others…Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then that linkage establishes both the distinction and its basis upon race. That was the present case. (Emphasis added.) 502 It is, therefore, not simply the making of remarks but the fact that those remarks single out a person for differential treatment by reference to their race which was capable of contravening s 9. 503 On the evidence, the four applicants were not singled out by Mr Minack at all. Nor were any Jewish students. There was, I find, no differential treatment of the applicants for the purposes of s 9. The applicants' case in this aspect misconceives the operation of s 9, and must fail.

Findings on s 18C 504 In contrast, the applicants' case about the March 2019 speech in relation to s 18C falls within the operation of that provision. 505 As I have noted, this provision is directed to the effects of conduct, including speeches. In substance, the applicants' complaints are about the effects of the speech, or communications. That is precisely one of the objectives of s 18C. Bropho provides a good example, involving as it did the publication of a cartoon. 506 As French J observed in Bropho at [67], the words "offend, insult, humiliate or intimidate" are open textured. All connote a negative, adverse effect, but the effect need not be at the extreme level of "racial hatred", a point made both in Bropho and also in Toben v Jones: see the references at [68] in Bropho. The authorities recognise, however, that there must be more than "mere slights" and the effect must have some level of seriousness attached to it: see Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [268] and the authorities there referred to. I respectfully agree. The descriptive words used in s 18C must be read together and when that is done, they contemplate a substantial effect, more than fleeting. 507 Section 18C can be engaged in respect of one individual, or a group of individuals. Justice Bromberg made this point in Eatock at [246] and I respectfully agree. In the present case, Mr Minack's speech did not single out any of the applicants, and was, on their own case, offensive and intimidating about Jewish people as a group. It is thus the group aspect of s 18C that is relevant in the present proceeding. However, the audience for Mr Minack's speech was a specific one - it was students at BSC. That is the relevant group, although as I explain below I consider on the evidence there were actually two groups which should be assessed for the purposes of s 18C. While there were also teachers present, and while the speech may have been subsequently distributed more widely (in part by or on behalf of the applicants), it was the making of this speech, in person, to BSC students that is the conduct said to contravene s 18C. For the purposes of the objective test in s 18C, it is the effect on the group of BSC students who were present that must be assessed. 508 In Jones v Toben [2002] FCA 1150; 71 ALD 629, Branson J at [96] described the relevant group as "members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability". Here, the applicants have not expressly pleaded or identified what findings the Court should make about how the group should be described. At some points they use phrases like "hypothetical Jewish student at [a] Victorian public school", but this focuses on the objective aspect of s 18C, rather than the articulation of the group. The way their case has been presented (by adducing evidence from non-Jewish students about their impressions of the content of the speech) might suggest their allegations are not limited to the effects on Jewish students; or it could suggest this evidence was directed more at persuading the Court that objectively the content of the speech fell within the terms of s 18C. 509 In my opinion, the group for the purposes of s 18C should be described in two ways: a) Jewish students at BSC in the audience; and b) non-Jewish BSC students in the audience. Separate findings should be made about each. 510 Contrary to some of the more generalised arguments made by counsel on behalf of the applicants, the relevant group for the purposes of s 18C in relation to the March 2019 speech cannot be Jewish people more generally. Mr Minack's speech was an oral address to an assembled group of BSC students. It was not broadcast live, nor was it a communication through the media (cf Eatock and Bropho). It was not a publication to the world, as in Toben v Jones, of a document on the internet containing what were found (and not denied on appeal) to have been a number of derogatory meanings or imputations about Jews, and whether the Holocaust occurred. 511 Rather, it was a speech by a principal at a school assembly. The group who could be reasonably offended, insulted, humiliated or insulted must have been persons able to hear the speech. The applicants did not seek to allege and prove a case that BSC teaching staff, as a group, were offended, insulted, humiliated or insulted - nor could they have done, given the causal nexus required by s 18C - any such case would have failed. Their case was about the effect of the speech on BSC students listening to it. 512 The fact that Joel recorded Mr Minack's speech and that somehow (the evidence was unclear) the speech content became more widely available does not alter the correct characterisation of the group for the purposes of s 18C, because the wider publication is not the "act" said to contravene s 18C. The act said to contravene s 18C is the making of the speech by Mr Minack. Therefore, the group should be described in one or both of the two ways I have set out at [509] above. 513 The authorities are clear that an applicant need not prove the likely objective reaction or effect in the entire group, but must at least prove the likely objective reaction or effect in most of the group. See generally Eatock at [241]-[252]. So much is also plain from the text of s 18C(1)(b), which expressly directs attention at "some or all" of the people in a group. That is, rationally, how s 18C should be understood to operate in respect of a group - findings must be able to be made about the effect of the conduct (here, the relevant speech) on enough of a group that the purpose of the legislative prohibition is advanced. Provisions such as s 18C are not enacted to protect one or two members of a group who are offended - that is the whole point of an objective test. 514 Nevertheless, each group of students to whom Mr Minack directed his remarks shared some features that should be taken into account in assessing the applicants' case on s 18C. The main general feature to note is the evidence, surprisingly sparse, about the composition of the BSC student body. Mr Minack gave some brief evidence on this, which I accept: can you describe the cohort and in terms of where those major - well, not major, but where the groupings are, and approximately how large they are?---Sure. So, the - the school - as I said, 55 per cent male, 45 per cent female. We have traditionally had quite a large contingent of students with Greek background; a large contingent of students with a Jewish background. We've had probably four to five per cent students who would be BAL, and they're - - - What's BAL?---They have English as an additional language. And they're assessed that their English proficiency requires them to have a separate program of English instruction at the school. We would have a much larger group of families with a second language in their - in their household. BAL is - is determined by how long you've been speaking English for. You describe the students from the Greek background, and from a Jewish background?---Mmm. To the extent that you're able to, and you described them as large, to what extent are you able to be any more specific in terms of numbers?---So students of a Greek background, look, we probably have at least 100, probably plus, in any particular - across the school in any particular year. And students of a Jewish background probably 75 to 80 across the - the school in any particular year. And that has been consistent across the - that journey as well. Are there any other groups that make up the student body that are - - -?---Look, we do have a group of students who are - are gender diverse in a - in a - in a variety of ways. We have probably two or three students, or had two or three students, transitioning at any one time, which we supported. But the - look, I suppose the other main group we had is, because the school had, and it still had a large international student program, we had quite a large cohort of students drawn from North and South East Asia as well. To the extent that you are able to, can you describe that group in terms of numbers?---Yes. So, over the period, that number would have floated somewhere between 100 and 120, 110. Is that across the school, or is that in a year level?---Across the school. Yes, across the school. And, then, of that 110, 120, in the earlier years, sort of towards - back towards 2013, dominated by - excuse me - dominated by students from mainland China, and more in the - in the latter half of period we deliberately diversified that program so a lot more students from Vietnam, Japan, Cambodia, a smattering of students from the European nations, and South American nations as well. 515 My findings are that the first group (Jewish BSC students listening to the speech) was objectively likely, in all the circumstances, to have been offended, insulted, humiliated and/or intimidated by the content of the speech; whereas the second group (non-Jewish BSC students listening to the speech) was not. I am not persuaded that it was objectively likely that non-Jewish students, as a group (or a majority or sufficient proportion of them), were as sensitive to any 'trigger words', nor to the circumstances in which the speech was given. That does not mean I reject the evidence of some of the individual non-Jewish students who gave evidence about the effects of the speech on them. To the contrary, I accept it. However, contravention of s 18C does not turn on the subjective reactions of some listeners to allegedly offensive remarks. It turns on an objective assessment of the nature and effects of those remarks, in all the circumstances in which they were made. The applicants have not persuaded me that, viewed objectively, the group of non-Jewish BSC students listening to Mr Minack's speech was likely to have been offended, insulted, humiliated, or intimidated. Indeed, as I explain below, a reasonable number of them found the speech, and the focus on Nazi Germany and on the Jews, reaffirming of the prejudices they already held and displayed. I further find that, in circumstances where the audience numbered more than 1000 (it was a full school assembly), for a considerable number of BSC students, and perhaps the majority of the audience, there is insufficient evidence to prove on the balance of probabilities that objectively the group was likely, in all the circumstances, to be offended, insulted, humiliated or intimidated. 516 I turn to explain why that is so. In making these findings, I focus on what I consider on the evidence to have been "all the circumstances" for the purposes of s 18C, in addition to the findings I have made above about the characteristics of the first group which are also part of the circumstances in which Mr Minack's remarks were made. 517 The "circumstances" included: (a) the antisemitic bullying which was occurring around BSC, and had been occurring by this time for at least two years; (b) the presence of large numbers of swastikas around the school grounds and in the classrooms; (c) the antisemitic taunts which were occurring in classrooms, locker areas and school grounds; (d) the level of complaints that the applicants and their families had been making about the matters in (a) to (c) and the lack of proactive and systemic responses from Mr Minack and BSC school staff; (e) the very occasion that Mr Minack stated he targeted his speech at - the mass murder of innocent people in New Zealand a year earlier, because of their race and religion - a fact likely to make Jewish students feel even more vulnerable; and (f) the fact that Mr Minack was speaking to a large gathering of students, with the characteristics of developing adults I have set out above, where a 'mob mentality' and immature and extreme reactions were, I find, more likely to develop, and were more likely to be feared to develop by those Jewish students in the assembly audience. 518 The applicants' submissions concentrated on the reaction of Jewish and non-Jewish students. I accept there was considerable evidence on this topic. I accept, as I have explained, that most of that evidence reliably recounted the subjective reactions the students had, including the applicants. It also recounted, reliably, the reactions the witnesses observed in students around them. I find the students were probably reacting to what might be described as 'trigger words' or phrases in Mr Minack's speech that, by 2019 and in the context of the ongoing debate at least amongst a subset of students and families at BSC about the level of antisemitism at the school, was a topic on which considerable student attention was focused, again at least in the sub-set of students from whom the Court heard the evidence. The subjective reactions of a sizeable number of students, which on the evidence included heightened antisemitic behaviour commencing fairly soon after the speech, also included disgust, fear, shock and a sense of disbelief - all contributed, I find, to a very negative and fearful atmosphere at the school on that day, and in the days and weeks after the speech as reactions to the speech continued. The very nature of BSC as a secondary school meant that in the days and weeks following the speech all these reactions - some completely incompatible with others - continued to manifest themselves in student behaviour both in and outside the classroom, and continued to perpetuate the feelings of outrage, fear and shock experienced by the four applicants. 519 There was a high level of antisemitic behaviour at BSC during the relevant period, higher than the evidence reveals was presenting at other schools and educational institutions during the same period. So Mr Minack was, I find, speaking to a student audience which was somewhat heightened to pick up and react to words and phrases associated with the persecution of Jews. 520 In hindsight, it was unfortunate that Mr Minack did not have a prepared speech on such a serious and emotion-laden topic to such an impressionable audience. In my opinion, the absence of a prepared speech, and the fact he was composing as he went along, is likely in part to be responsible for the repetition of some of the phrases to which the applicants took particular offence, such as "sub-human and evil", and which are, I find, objectively offensive. 521 In conclusion, I find that Mr Minack's March 2019 speech met the first limb of s 18C of the RDA. Viewed objectively in all the circumstances, it was reasonably likely to offend, insult, humiliate or intimidate Jewish students in the BSC assembly audience. His speech had this character in all the circumstances due to: (a) Mr Minack's repeated references to Jews as "sub-human" and "evil"; (b) the absence of any warnings or cautions to (impressionable adolescent) students that the words he used were not words they should repeat or adopt; (c) his description of what his father said as "normalisation", which I find was likely to be interpreted by Jewish students as "normal", even if that is not its correct meaning; (d) his reference to his father as a "good person" in the context of talking about people like his father being normalised into believing Jews were sub-human and evil; (e) his comparisons between the Christchurch massacre and the Holocaust; (f) the audible sniggering of students on the recording, while Mr Minack continued to use inappropriate language like "nigger"; and (g) his use of the loaded German term "Einsatzgruppe", which he explained as the "group of people who followed the Wehrmacht through Poland and Russia and exterminated up to 2 million people by shooting them". 522 There will be no contravention of s 18C unless the applicants can prove the second limb - namely, that the contentious aspects of Mr Minack's speech were made "because of" the race of the Jewish students at the assembly. It is clear, and the applicants did not really seek to suggest otherwise, that the whole of Mr Minack's speech was not made "because of" the race of the Jewish students in the audience, or because of Jewish people, or Jewish BSC students. Its main subject matter was the first anniversary of the Christchurch massacre in 2018. 523 Therefore, the applicants' case was properly put on the basis that the specific, offensive, aspects of Mr Minack's speech highlighted in the applicants' case were made "because of" the race of the applicants, and/or the other Jewish students in the assembly audience. 524 As I understood it, the applicants may have intended to submit that Mr Minack made his speech, or used the content of the speech he did, because of the race of Jewish people generally, in the sense of targeting Jews for offensive remarks. It was not clear if the applicants were making this submission. If they were, it does not assist their case. By the terms of s 18C(1)(b) itself, and on the authorities (see Eatock at [307] and the authorities there cited), the requisite causal connection is between (relevantly) the remarks and the race of the person or group reasonably likely to be offended, insulted, humiliated or intimidated. My findings above are that the group reasonably likely to be offended, insulted, humiliated or intimidated by the particular words and phrases used in Mr Minack's speech were Jewish students at BSC present in the audience during the speech, and no wider group than that. Therefore, the question is whether there is a causal connection between Mr Minack's remarks and the Jewish students at BSC who were in the audience. 525 The applicants' contention is that they need only establish that race was "a factor" in (relevantly, given my findings) the March 2019 speech. This is the language used in some of the authorities: see the summary by Bromberg J in Eatock at [308], first dot point. 526 This description does not impose a lesser or different requirement to cases where "because of" may have been summarised using different language. There is always a danger in moving away from the statutory language. The statutory term "because of" clearly directs attention at the reason for conduct. The applicants' submissions recognise, as they must, that whatever the glosses or language employed in other cases, the underlying task conveyed by the use of the phrase "because of … race" in s 18C is that an applicant must prove a reason for the conduct (here, the remarks objectively seen as likely to offend, insult, humiliate or intimidate) was the race of the group found reasonably likely to have been offended, insulted, humiliated or intimidated: see Hagan v Trustees of Toowoomba Sports Ground Trust [2001] FCA 123; 105 FCR 56 at [23]. Motive is not necessary, but in any given factual situation may be relevant, indeed centrally relevant: see Toben v Jones at [151]. 527 In Toben v Jones at [30], where the issue on appeal was the causal aspect of s 18C, Carr J put the relevant issue in this way: In my view, as a general proposition, the words "because of" form the first part of a response to the question "why?" The questions in the present context were - why did the appellant publish the Document? - was one reason for such publication the ethnic origin of the groups referred to in [24] above or some of the people in those groups? 528 At [37], Carr J expressed his conclusion in the following terms, which assist in providing an insight into the operation of this part of s 18C: In my opinion, a fair reading of the Document shows that its whole tenor is to offend and insult those who maintain that the Holocaust occurred and, in particular, Jewish people. But it is not necessary to go as far as that to satisfy the requirements of s 18C(1)(b). It is sufficient to conclude that at least one reason why the Document was published was because of the race or ethnic origin of Jewish Australians whom the appellant concedes were reasonably likely to be offended by that publication. 529 In other words, his Honour found as a fact a motive or intention to offend, insult, humiliate or intimidate, but explained that finding was beyond what was required for s 18C to be made out. 530 Thus, in the present circumstances, the relevant question is why did Mr Minack make the offensive, insulting, humiliating or intimidating statements I have found were contained in the March 2019 speech? Was one reason the Jewish race or ethnicity of some BSC students in the assembly audience (being the group I have found likely to be offended, insulted, humiliated or intimidated)? I am not persuaded that the Jewish race or ethnicity of some students in the assembly audience was a reason why Mr Minack said what he did. I find he was likely to have made the same speech even if no Jewish students were present. 531 The applicants invited the Court to focus on what they described, and fairly put to Mr Minack, as less extreme, inflammatory or offensive language used about Muslims and Aboriginal people. They emphasised what they described as Mr Minack's "affectionate" reference to Indigenous "brothers and sisters" in his speech, in contrast to the language used about Jewish people, and the absence of any encouragement to BSC students to identify themselves as alongside, or supporting, Jewish people. They highlighted his repetition of the phrase "sub-human and evil", and his use of Nazi-associated terms like "Einsatzgruppe". They also highlighted his apology to students for using the word "nigger", but the absence of any apology for what he had said in his narrative about his father's experiences of Nazi Germany, despite complaints from students and parents about the language he had used. 532 The applicants submitted that Mr Minack's conduct could not be characterised as mere thoughtlessness, and - referring to the matters I have set out immediately above - they submit "[o]ther matters": reinforce that at least one reason why Mr Minack acted as he did was because of Jewish ethnicity. (Footnote omitted.) 533 The footnote to this submission records the following contentions: E.g Mr Minack (1) said if he could go back in time he would abandon 'Nigger' for 'N' word (1338:2), but stands by conduct that offended Jews; (2) manifested differential treatment as set out above at [13] (3) he never apologised to religious Liam in 2016, in appalling circumstances (4) he harassed Joel after Joel recorded the 2019 speech as a defensive act (5) he was accused of 'accosting' Ashley Meehan in 2017 for not shaving due to his Judaism (6) Mr Minack has a history of downplaying Jewish student concerns including Swastikas (he tried to do this in evidence but later seemed to abort 1454:11-27) (7) conversely, he treats minorities including the LGBTQI+ community preferentially. (8) He also treats Jewish teachers differently, as seen during Worklogic (1545:32ff; 45ff). 534 Most of these contentions refer to conduct prior to the March 2019 speech, some refer to conduct afterwards (eg the Worklogic inquiry) and some rely on Mr Minack's own evidence, such as the following extract: So it concerns you that they had the reaction that they did. Is that your evidence?---Well, I never want to offend anyone, Mr Butt. So, I mean, if people take offence at what I say or what I said, it always concerns me. Well, that wasn't the answer you gave. Your answer was they didn't understand what you had said. Does it concern you that they were extremely offended and concerned by references to your father?---Yes. If they were - if they were concerned and offended by my references to my father, yes, I'm concerned to the extent that I've offended them. Knowing that to be the case, do you still maintain the speech was appropriate?---Yes, I do, Mr Butt. I do. Yes, I do. … If, as a result of your speech, a Jewish child at your school feels unsafe, can you say that it was an inappropriate speech readily?---That would be a concern to me for sure. No child ever expressed that to me, but, no, I still think it was an appropriate speech. I do … Do you believe that it was appropriate to use those words another three times whether or not it offended Jewish kids?---Well, at the time I was making the speech, I wasn't aware of the offence, Mr Butt. So at the time I thought it was appropriate to say it multiple times. But you've given evidence today that if people were offended, you still maintain the speech was appropriate. So I will ask it again?---Sure. You believed it was appropriate to say the words another three times whether or not it offended Jewish kids?---I still stand by the speech, Mr Butt, so I'm - I'm going to say yes. 535 The applicants' submissions were somewhat light on this causal aspect of s 18C. It is perhaps the most difficult aspect of s 18C for the applicants' case. 536 I have found that Mr Minack contravened s 9 of the RDA in relation to the way he responded, or rather failed to respond, to the presence of swastikas around the school, and although in reaching that conclusion I am persuaded on the balance of probabilities that his omissions and failures involved a distinction based on the fact that the graffiti was antisemitic, and that the targets of the graffiti were Jewish students, in the sense that I have found he displayed a higher tolerance for that kind of student behaviour than was either reasonable or appropriate in the circumstances. However, s 18C(1)(b) asks a different question to s 9, especially in the context of Mr Minack's own speech, as compared to the allegations about swastika graffiti. Section 18C(1)(b) asks why Mr Minack made the speech he did, with the content he chose. It does not look only for a relationship to or connection with race. 537 Accepting that Mr Minack was slower to react, or act, to control or punish antisemitic student conduct, and in that sense more prepared to allow Jewish students to bear the brunt of that antisemitic conduct, in my opinion the applicants have not proven on the balance of probabilities that a reason for the content of the March 2019 speech (in the language of the RDA, "is done") was the Jewish ethnicity of some of the students in the BSC assembly audience. I find Mr Minack was more likely than not to have made the same speech irrespective of whether there were Jewish students in the audience or not. In his work as principal at BSC during the relevant period, he was insensitive to, and uncaring about, the feelings and experiences of Jewish students, but in this speech he was not directing his remarks at them. 538 Mr Minack was insensitively using Jews as a group the subject of historic persecution to make an ill-formulated point about the need for tolerance in contemporary Australian society, and a further ill-formulated point about too ready resort to different identities as a means of fuelling violent and anti-social behaviour based on those differences. I return to this matter of identity below. The content of his speech which I have found reasonably capable of offending, insulting, humiliating or intimidating Jewish students at BSC in the assembly audience was insensitively framed, unnecessarily repetitive, and clumsy. In part, those features led to the objective offensiveness. A more carefully crafted speech could have made the same points with tact and sensitivity. 539 Nevertheless, the content of the speech fell in my opinion within the description given by Kiefel J in Toben v Jones at [69] (recalling Toben v Jones on appeal was a case about the causal aspect of s 18C): Some statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. The making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires. Hagan v Trustees of Toowoomba Sports Ground Trust provides an example. The sign on the spectator stand was capable of offending, but the evidence showed that the reason for the offending description derived from the nickname of the person it had been named after, many years before. Part IIA does not render unlawful insensitive statements or those made in poor taste. 540 The remarks made by Mr Minack during his speech about Jews were not as readily marked by an innocent explanation as the sign in Hagan. Mr Minack had, as I have found, an insensitivity to, and uncaring attitude about, the feelings and experiences of Jewish students. But what he said in this speech was not "plainly calculated to convey a message about Jewish people" - cf Branson J in Jones v Toben at [99]; Toben v Jones at [65] - any more than it was plainly calculated to convey a message about people of colour. 541 While the quality of offensiveness of statements might be used to deduce something about motive and in any given factual situation could perhaps supply the causal connection required by s 18C(1)(b) (see Toben v Jones at [67]), I do not consider the objective offensiveness of parts of Mr Minack's speech to Jewish BSC students present says very much about his motive or intention in using the language he did. Rather, it says much about his lack of foresight and preparation before speaking to the assembly and the clumsiness of how he expressed himself. The insensitive descriptions of how his father's experiences demonstrated Jews were viewed in Nazi Germany and where this led, his descriptions of his father's time in the German army, indeed his choice to use these as examples at all, were an attempt to provide an example to BSC students of how singling out and demonising people by reference to their identity can lead to catastrophic results. To that limited extent I accept the thrust of his oral evidence set out above concerning his intention. The references to 'mission brown' paint and 'nigger' underscore his insensitivity and clumsiness, but he was trying to make the same point about singling people out through a focus on their identity, race or religion. The patronising reference to "indigenous brothers and sisters" was also insensitive. Mr Minack may have held an unjustified opinion of his own ability as a communicator and a speech-maker, but that does not mean he contravened s 18C. 542 Objectively, to that student audience at that point in time, heightened as it was by the high levels of antisemitism at BSC, and the antisemitic graffiti, his clumsy, insensitive and repetitive language was reasonably likely to offend, insult and humiliate Jewish students in that audience. But that was not the reason he used the language. He used it, ill-advisedly and poorly, to make a point that on the first anniversary of the Christchurch massacre might have been important to make to high school students. Any valid point was lost, and backfired, because of his ineptitude. He was not targeting Jewish students in the audience any more than he was targeting students of colour. He was using insulting and offensive descriptions of them for his own misguided and ill-prepared purposes. 543 I should add that, in making these findings that the contravention of s 18C in relation to the March 2019 speech has not been established, I give no real weight to Mr Whine's evidence. It is no more than a flawed opinion about the objective nature of the remarks, which is a matter for the Court. I agree with the thrust of the applicants' submissions about Mr Whine's evidence, and I find that: (a) the contents of his report appear to have been tailored to some degree at the request of the solicitors for the respondents, as his cross-examination revealed; (b) many of his assumptions related to matters after 2019 such as the December 2021 report on antisemitism and the effects of the COVID-19 pandemic; (c) he conceded he knew little or nothing about Jewish students in Victorian state secondary schools specifically; (d) he refused to concede that it was appropriate to describe BSC students listening to the speech as "children", a view I found defied reality and demonstrated an appropriate level of stubbornness, together with a lack of insight into the true characteristics of the audience for the speech, since the year 7 students were around 12 years old; (e) his opinions and evidence failed to take into account the overall atmosphere of antisemitic behaviour at BSC by this time - unsurprisingly, since the respondents' case is there was no such atmosphere. I have found to the contrary; and (f) the premise of his opinion - about students who "were not listening carefully" (at [14]) being those who reached a "wrong conclusion" - not only fails to grapple with the issues in s 18C but fails to appreciate all of the circumstances in which the 2019 speech was given. 544 Given my findings above, it is unnecessary for me to consider in any detail the respondents' reliance on the defence in s 18D. It should be apparent from my findings above that if I had been persuaded on the causal relationship between the offensive, insulting and humiliating remarks made by Mr Minack and the ethnicity of Jewish students in the audience, or Jewish people more broadly, I would not have found the defence of reasonableness and good faith to have been made out. In circumstances such as the present, the finding of a causal relationship would negate the availability of the defence. Further, it should also be apparent from my findings above that I would not characterise anything about Mr Minack's speech as "reasonably" undertaken, It was ill-conceived, poorly prepared, wholly inappropriate and a clumsy attempt to convey a message in a way I am confident very few students would have grasped. It was wholly unsuitable conduct for a principal in Mr Minack's position. The fact he does not regret it, and would not change, demonstrates his lack of insight. It does not, however, mean the applicants have proven that he made the remarks because of the Jewish ethnicity of some students in the assembly audience, or because of Jewish ethnicity more generally. 545 This conduct was not pleaded as a contravention, although it appears in the applicants' closing submissions at [32]. I reject the applicants' allegation that what they describe as Mr Minack's "non-apology" was a contravention of s 18C. As I have explained, because of the purpose and operation of s 18C it is clear a failure to apologise cannot fall within it. Since there is no contravention of s 9 by the 2019 speeches, and since the applicants have failed to prove sufficient facts about any other speeches, a failure to apologise cannot properly be seen as a contravention of s 9 either. 546 I make one closing observation. There were aspects of what Mr Minack said in his March 2019 speech about identity that could, on one view, have given rise to a concern that he was directing an implied message to the Jewish BSC students and their families who were actively complaining about antisemitism at the school. One inference is that he held the view that they should not champion their Jewish identity at BSC so much. That, in my opinion, is one way to read his closing remarks, in particular where he says: I ask you; you can be intolerant of one thing. Please be intolerant of belief systems that seek to put one group as different / higher / more special than others. Be intolerant of language and behaviour that seeks to separate and divide; because by doing that, we will maintain this school and this nation as the wonderful place that it is. 547 The applicants did not put their case about the speech and s 18C in this way, and Mr Minack was not cross-examined about it. Nevertheless, in relation to my findings about Mr Minack's conduct for the purposes of s 9 in relation to the antisemitic graffiti at the school, his attitude to the complaints of the applicants and their families over the relevant period, and his attitude to Liam when he came back to the school seeking some kind of resolution, I find that Mr Minack's own remarks provide some support for my findings. The way Joel was treated for recording the March 2019 speech was disproportionate, and I consider reflected a consciousness on the part of Mr Minack that the contents of the speech were unfavourable to him. However, the disproportionate pursuit of Joel about the recording also reflected, I find, an intolerance of Mr Minack for the robust assertion of Jewish identity. 548 In my opinion, a great deal of the evidence about Mr Minack's attitude and his conduct supports the proposition that he did not care for, and indeed was intolerant of, robust identification by Jewish students of their Jewish identity.

Findings on the negligence claims about the speech 549 This claim is an example of the inappropriately broad brush approach taken by the applicants' legal representatives to some of the allegations that appear to have been pressed and not withdrawn, despite never being formulated with any precision. The respondents' submissions on these matters at [114]-[115] of their written submissions should be accepted. There was no formulation of the nature of the duty of care owed by Mr Minack to the three applicants who were present (Joel, Guy and Zack) in making an assembly speech such as this. Matt only learned about the speech second hand and there was no articulation at all of how a duty of care was owed by Mr Minack to Matt in such circumstances, nor what the content of that duty was. As the respondents contend, the applicants' submissions did not engage with foreseeability of harm, and there was in any event no evidence of compensable sudden shock or personal injury. Dr Tagkalidis, the consultant psychiatrist called on behalf of the applicants and who examined three of the applicants (Joel, Matt and Zack) gave no evidence the speech itself caused any of them any form of mental distress or evidence of personal injury.

Other evidence relied on by the applicants 550 In their written closing submissions, especially at footnote 106, the applicants rely on evidence about a BSC student called George McIntosh. They allege one of the reasons Mr McIntosh left BSC was Mr Minack's "Nazi rhetoric". Mr McIntosh was not called as a witness, nor were his parents. Much of the correspondence from his parents was ruled inadmissible, although the respondents did not press their objections to some of it. The applicants' contentions confirm why the evidence about Mr McIntosh was not admissible: it was tendered to prove the truth of its contents and was plainly hearsay, in circumstances where there was no evidence about why Mr McIntosh could not give evidence. Given that the applicants had demonstrated a capacity to call a large number of witnesses to give direct evidence, including under subpoena, there was no occasion to put the respondents at a significant forensic disadvantage by allowing hearsay evidence on topics such as the present one.

Swastika graffiti and other antisemitic graffiti - pleadings 551 The prevalence (or otherwise) of antisemitic graffiti, and particularly graffiti of swastikas, at BSC was a key feature of many witnesses' evidence during this proceeding, as well as the parties' submissions. 552 All five of the applicants make claims relating to the presence of swastika graffiti and other antisemitic graffiti during their time at BSC. The Court was taken to what were often significantly varying accounts of how many swastikas were present at different time periods at BSC. In their closing submissions, the applicants contend that: The Court should find that during 2013-2020, there were multiple hundreds of Swastikas and other forms of antisemitic graffiti across the School's property. 553 The applicants plead variously that BSC staff saw racist graffiti around the school, and that the applicants reported the swastika graffiti to BSC staff, and nothing, or nothing adequate, was done to remove it and prevent such graffiti re-occurring. The applicants' claims about swastika and other racist graffiti are made under both s 9(1) and s 18C of the RDA, as well as in negligence. 554 In relation to the RDA, the applicants plead that: In the circumstances set out above: a. All reports of any person at the School during 2013 to 2020 to the School and its staff of acts and/or any staff/principal awareness of the presence of anti-Semitic graffiti/drawing including Swastikas, 'Heil Hitlers' and similar as pleaded above, which was not removed in a reasonable time, or b. any acts by the School's principal or staff which caused the said anti-Semitic graffiti/drawing, constituted acts (including by omission): c. which involved a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; and or Particulars i. right to freedom of thought, conscience and religion; and or ii. right to education and training; and or iii. right to security of person and protection d. which were reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and the act was done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group; and e. thereby breached ss 9(1) and/or 18C of the Act (and 3(3)); and f. the First Respondent is also vicariously liable under ss 18A and 18E of the Act. By reason of the said breaches, a. Liam Arnold Levy b. Zack Snelling c. Joel Kaplan d. Matt Kaplan and e. Guy Cohen, [have] suffered loss and damage and are entitled to relief under the AHRC Act. 555 Insofar as s 18C is concerned, the applicants submit (at [23]): The presence of Swastikas in large numbers (let alone small numbers) was reasonably likely to offend etc all the Applicants, or a hypothetical Jewish student at the BSC Victorian public School with characteristics expected of a free and tolerant society; or a reasonable member of the group who might be offended by the acts, including Jewish students vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability. … The constant surfacing of Swastikas across 8 years is telling. Prof Rutland explains BSC response here as 'microaggression' and 'cognitive dissonance'. (Footnotes omitted.) 556 The applicants contend that for a contravention of s 18C, the Court need only find that race was "a factor" in the approach taken by the school to the presence of, and complaints about, swastikas. 557 In relation to negligence, each of the applicants plead (often, though not exclusively, under sub-headings with respect to each individual applicant entitled "Failure to Educate") that the failure to remove swastikas and racist graffiti at the School amounted to a breach of the duty of care owed to them. To take the particulars (whether or not correctly so described) in relation to Liam: r. The School failed to adequately remove Nazi Swastikas or other Anti-Semitic graffiti from its premises during Liam's tenure at the School. s. The Schools failure to educate was highlighted by the voluminous presence of Swastikas on the School's grounds.

Specific instances of reporting of swastikas 558 At some points, the applicants' pleadings refer to swastika graffiti without alleging that that graffiti was reported to BSC staff. I thus understand that to be part of the allegation that this kind of behaviour was tolerated at BSC, and there were inadequate steps taken to discipline and encourage students not to create such graffiti. 559 The applicants also alleged specific reporting by applicants to BSC staff of swastika or other racist graffiti at the school. In particular: (a) Matt alleged that he reported swastikas to Mr Nash and Ms Trinh in 2018 and 2019; (b) Guy alleged that he reported a swastika to Mr Varney, and that he reported a swastika to Ms Michaels (who was his year 8 maths teacher); and (c) Joel alleged that he complained about another student, Charlie, drawing swastikas, and about graffiti in the toilets at BSC, to Ms Frangoulis. 560 The applicants' pleadings also contain allegations that other students at BSC reported swastika graffiti to BSC staff. For instance, the applicants plead that Corey Fooks complained on numerous occasions about swastika graffiti to Mr Minack. Corey was called as a witness but is not an applicant and so this allegation can only be considered as a particular factual example of the overall failures to address swastika graffiti. 561 At trial, some student witnesses gave evidence about reporting swastikas and other racist graffiti to BSC staff. Other BSC staff witnesses gave evidence about their knowledge, or lack of knowledge, of such graffiti. Not all of the evidence correlated precisely to the pleaded allegations, but that is unsurprising with allegations such as these ones, and it does not detract from what I consider to be the underlying merit of this aspect of the applicants' case.

Swastika graffiti and other antisemitic graffiti - resolution 562 As I suggested to the applicants' counsel during opening and closing submissions, the presence of the swastikas around the classrooms, common areas and buildings at BSC is said by the applicants to be actionable under s 9 of the RDA because of the failures to remove them, whether after reports or because the applicants contend the swastikas must have been as apparent to BSC staff as they were to BSC students. However, the applicants' counsel continued to insist that was too narrow a description of how their case about swastikas was put under s 9. 563 The following exchange illustrates this point: HER HONOUR: That's what I was putting to you. That it's the failure to take action - - - MR BUTT: Not only. HER HONOUR: - - - on the reports and the failure to take down the graffiti. Is that what it is? MR BUTT: That is part of it. HER HONOUR: Okay. What else is it? MR BUTT: That is not - I'm saying, though, it's not the totality of it. Yes, the - well, that in (a) talks about: ...and any staff/principal awareness of the presence of the swastikas. I'm suggesting that Jewish kids shouldn't have to complain in the first place when they're there already. It's inherently - - - HER HONOUR: Well, how does that fit into section 9? MR BUTT: Because I'm suggesting that if these - well, there's distinctions in terms of treatment, that there would have been different - these types of symbols would be treated differently if they were a different minority and - - - HER HONOUR: Well, that's the failure again, isn't it? It's a failure to take action. MR BUTT: But it wouldn't necessitate a report by the student. How we get to - yes, there's a failure - there's a failure to remove, there's a failure to educate, and there's a failure to discipline. HER HONOUR: Where's the failure to educate? MR BUTT: We've pleaded in the actual body of the statement of claim, it's in the negligence section. It's - - - HER HONOUR: Well, I'm just asking you what paragraph 371 means. MR BUTT: Yes. The reason you've got the ..... reports and any ..... principal awareness or - so (b) would be - I'm suggesting it's causative where there's no discipline, no removal. When students know that there can be swastikas up, they're not going to get in trouble for it, then more came. And that's what we're saying, that when their teachers - - - HER HONOUR: That's (b), is it? That there's some sort of - - - MR BUTT: Causative - - - HER HONOUR: - - - conduct of the principal and staff encouraged or incited more graffiti and drawing. MR BUTT: Yes. (a) would - yes, (a) is more like the failure to remove and (b) is more the causal connection, but the causal connection is inherent in any event in the ..... circumstances set out above and in the part where I invoke the relevant - (c) where I'm talking about the purpose or effect, if I pleaded all the relevant facts. So that I have spelt it out in (b), but it would arise, in my submission, in any event on the pleaded facts and the invocation of the provision. So it is the failure to remove the causation and not disciplining and that having an effect. See, the alternative would be strong action, firm intervention, and that would put a stop to it the way that other discrimination was put a stop to or - you can't say - if someone can't say one type of insult to one minority and then the Jewish insult is treated as, "Okay, it's not as important, just stop that please," as opposed to, "You're out," or, "you're suspended," or whatever. My submission is that has a causative effect which is why your Honour is looking at eight years. 564 As this extract demonstrates, at no time did the applicants' counsel separate out the way the arguments were put in relation to s 9 of the RDA, s 18C of the RDA and negligence. This is another example of the complexities introduced by the generalised way in which the applicants' case continued to be described by counsel. 565 In my opinion, and despite the contentions by the applicants' counsel apparently to the contrary, the applicants' case about swastikas does centre on the failure of the teaching staff at BSC, and the failure of Mr Minack as principal, to take any or any adequate action to remove the swastikas and to discourage students from continuing to draw or make them. This failure is expressed as a failure to act, whether in response to complaints or in response to the presence of swastikas around the school. I have noted the absence of the necessary specific corresponding allegation against Ms Podbury for the period she was principal. 566 Insofar as it is alleged that other conduct at BSC "caused" an increase in swastikas, this is appropriately dealt with under the allegations about the teaching of Maus, and the allegations about Mr Minack's speech. There was no evidence of any other conduct alleged to have resulted in an increase of swastikas around the school. 567 No further distinct allegations were clearly articulated in the pleadings, in the concise statement nor in the opening. Therefore, I consider the common allegations about swastikas on the basis I have outlined above.

Swastikas: The evidence in summary 568 As with much of the witness evidence in this proceeding, the two competing sources of evidence were from the teachers (present or former) and the students (present or former). The applicants did not call any teacher witnesses to support their allegations. The respondents did not call any student witnesses to support their (different) factual narrative. In that sense, the lines between the two sets of participants in daily life at BSC were drawn clearly in the proceeding. 569 The student witnesses described seeing large numbers of swastikas over the relevant period, although most agreed that the numbers decreased significantly when BSC was renovated and painted in 2020-2021. They described seeing them etched, carved or drawn on desks in classrooms, on pieces of paper and in books, on walls in locker areas, on or inside lockers, in dust on the exterior of classrooms or on windows, in bathroom stalls, and into the footpath near BSC. Some students estimated numbers in the tens, others in the hundreds. 570 In contrast, the teacher witnesses generally denied seeing any swastikas. Teacher witnesses accepted they had seen swastikas only where there was a record they had made about seeing swastikas. Otherwise, all teachers gave evidence they could not recall seeing swastikas around the grounds of BSC or in the classrooms, locker areas or on the buildings.

The respondents' case on swastikas in summary 571 The respondents criticised the lack of precision and vagueness in the applicants' evidence on this topic: Each applicant's case was replete with imprecise allegations and evidence. The evidence given by current and former student witnesses about their largely unreported observations of swastikas and racially motivated conduct are clear examples. 572 The respondents' answer to the RDA claims about swastikas centres on there being no proof by the applicants that individual teachers at BSC (or Mr Minack) knew about the presence of swastikas and failed to act. For example, at [175] of their written submissions, in relation to Joel, they submit: Joel alleged that he saw swastikas in 2018, however he did not give evidence of reporting any of these swastikas. He detailed places where he claimed swastikas were located in the school, such as the D and S Block and claimed they were seen by teachers, but could not name any teacher who he claims saw the relevant swastika. Without more, the applicants have not identified any person who acted or failed to act in such a way so as to give rise to a claim under the RDA or negligence. (Footnotes omitted.) 573 The respondents provide the same general answer to the applicants' claims in negligence: see for example [175] of their written closing submissions. When a student reported seeing a swastikas (whether on a desk, a building or a school book or elsewhere), the report was investigated and if a swastika was found, it was promptly removed. Broadly, the respondents invited the Court to find that unless there was a documentary record of a report, there was in fact no report. They also invite the Court to disbelieve all of the witness evidence about swastika observations by students, unless it is corroborated by a documentary record.

Swastikas: factual findings 574 In this section, I deal with three separate categories of the evidence about swastika graffiti at BSC: the evidence of non-applicant BSC students (present and past); the evidence of the applicants and their families; and the evidence of the teaching staff and the BSC leadership cohort, including Mr Minack.

The evidence of other BSC students 575 I do not accept all of the respondents' submissions about the BSC student witness evidence. While it is correct that some of the evidence was of a generalised nature, in my opinion that is to be expected given the circumstances in which the students were giving their evidence. The relevant period spans eight years. Most students were giving evidence about their experiences over several years, when they were younger, some as young as 12 or 13. As young people, their attitudes to detail differed from the more precise approach taken by many of the teachers. I say more about the approach of the teachers to their evidence below. 576 During cross-examination, it was suggested to at least some of the student witnesses that their evidence was not true, or that they were exaggerating. Insofar as the respondents suggested, and later submitted, that the student witnesses' evidence about the swastikas was made up, or deliberately false, I reject that submission and suggestion. I found each of the student witnesses tried to give genuine evidence about their recollection of seeing swastikas at BSC. Some gave more reliable evidence than others, as I explain below, but that was not because some were entirely making their evidence up. I find it is more likely than not that each of the student witnesses saw several swastikas around BSC during their time at the school, and some saw large numbers. 577 That said, I did not find the evidence of Elliot McMahon reliable. I found Mr McMahon to be intemperate, and angry about what had happened to him at BSC in a way which coloured his evidence about matters such as swastikas. I had no confidence his evidence came from honest and genuine recollections rather than from a sense of wishing to avenge his treatment as he perceived it at BSC. 578 Some students offered no more than a general recollection, and the respondents are correct that this kind of evidence is not in itself probative of the applicants' allegations. For example, Matthew Austen gave the following evidence in examination-in-chief: What, if anything, did you see about anti-Semitic conduct after the speech around the school?---Like, did I see it around the school? Yes?---It didn't - well, it was always there. It wasn't, like, more or less I would say. But, like, there was, like, swastikas and people saying, like - you know, like, derogatory terms, etcetera. … And so when you heard the stuff about Jew, how often were you hearing Jew comments?---Weekly. Yes. And was this happening inside class or outside classes?---Both. How often was it happening outside class?---Weekly. Yes. How many kids did you see do it?---A couple. And which locations?---I couldn't specify. And what about inside class?---Weekly. And what about Heil Hitler salutes? Did you see those things during your time?---Occasionally. … to your knowledge, did - do you remember teachers seeing or hearing these types of comments and salutes?---Sometimes. So which - when do you remember them seeing it?---Seeing it, not very often. But, like, hearing it, maybe, like, every so often. In class or outside of class?---In class. Do you remember which year?---Yeah 9. Can you remember the teacher or teachers?---Like, some teachers did it, but, like, I can't remember, like, exactly, like, who and when they did it. … And in terms of swastikas, what do you remember seeing?---They were, sort of, like, placed in toilets and on tables, sort of, like etched into tables, and stuff like that. So which locations in the school do you remember seeing them?---The D-buildings, which is, like, the, sort of, middle of the school, where the year 9s are, which is where I obviously was. And in what way were they marked or drawn?---They were, like, in the - onto the walls in the toilets and onto the tables and stuff. Try and be as specific as you can, in terms of the locations and what you saw?---The D-buildings. Yes. And where - which properties? You said tables?---Yes, the D-building toilets, the - stuff like that. Like, just in the classrooms. And what about outside?---There might have been, but I can't remember specific locations. … And did any of the teachers ever tell you not to draw them?---I never drew them, so no. Did they tell the student body more generally?---They might have, yes, at one of the class - year level assemblies that we had they might have. Did you - are you talking about what you've heard for yourself?---Sorry? Did you hear that yourself?---I can't remember them specifically talking about it, no, but they might have - at one of the year level assemblies - - - 579 In cross-examination, he gave the following evidence: And you know of Zack Snelling, but you didn't socialise with him?---We talked on the occasion but, like, not, like, friendship. And you didn't spend any time with him at lunch or recess?---No. And you didn't have any classes with Zack?---I think I did. I think I had one or two maybe. Which classes?---I - I couldn't tell you, I'm sorry. It was a long time ago. … In terms of speeches, you've given evidence that there was one speech, or possibly one speech, where you were told not to draw swastikas?---I can't remember. Can't remember. You might have been told not to draw swastikas though; is that your evidence?---I - I could have been, yes. 580 There were few student witnesses whose evidence remained at this level of generality. Notis Korkoneas was another witness whose evidence about the presence of swastika graffiti was at a general level. I give the evidence some probative value because of its overall consistency with the other student evidence I heard, and the evidence of the applicants themselves. This included consistency about the location of the swastikas around BSC grounds and buildings. 581 For example, the following excerpts from the evidence-in-chief of Joel and Notis, respectively: Okay. What, if any, do you recall seeing during your time at Brighton?---During my time at Brighton, I probably have seen over 100 swastikas around the school. I have seen them - especially in year 9, 2018, I have seen them in the D block, which - that was, like, the year 9, I guess, like, building. And I saw them in lockers, building - bathrooms, bathroom mirrors, bathroom stalls. Like, students' - students', like, books, and just all around, like, the school, basically. Even, like, out of, like, year 9, I've seen them, like, you know, around the N block when I was in year 7, and I again saw them all around the building. And I remember even, like, outside on, like, the fences. I've seen so many swastikas around the school. And so if you were to break it down, if you can into, periods of time. Whatever is going to be the easiest for you to remember. Let's say 7 or 7 to 8 or 7 to 9. How would you describe the volume - the number? How did it change over time?---Probably, like, again, just, like, over a hundred around the school, and I probably have seen the most, like, in 2016 to 2019, and when it did come to my final year, so 2020 and 2021, that's when I did not - I saw less, like, swastikas around the school. … Okay. And do you remember how they were drawn or with what device or devices?---They were usually drawn just, like, with pen, pencil, like, whiteout. Just, like, you know, school equipment that, like, students were using. 582 Further, students like Notis who are not Jewish have given evidence in circumstances where they have no stake in the outcome of the proceeding and where the process of giving evidence is not an easy one. All the student witnesses submitted themselves to a considerable degree of public scrutiny in giving evidence. While they were subpoenaed, once they appeared there was no sense that they were reluctant witnesses, indeed many made it clear they wished to 'stand up' with the applicants. 583 Most were able to give evidence that was more direct, and which I find was being given from an active recollection of what they had directly seen. They spoke with conviction, and my impression from looking at them was that they had in their minds a picture of what they were describing. I find that during the relevant period it is more likely than not that there were conversations between student witnesses, and between student witnesses and one or more of the applicants, about the presence of unwelcome swastikas around BSC. 584 For example, Max Joho gave persuasive evidence not only about the swastikas he had seen but about the attitude of students who he believed were responsible for drawing them: Okay. And let's talk about swastikas. I might - would it assist you if I get a map up of the school?---Yes. 1256, volume 4. Max, can you see that?---Yes. So let's try to break it down into timeframes. You were in year 7 in 2017. So, say, in your year 7 and year 8 period, where, if anywhere, did you see swastikas at the school?---During year 7 and 8, I - for the - I had the majority of my classes in the P building, which is 17, and the S building, which isn't numbered. In the P building there were a number of - like, a lot of swastikas on the tables. I remember there was one which was carved out of the side of a chair, and it was basically the size of an entire chair. The ones on the walls - on - there was one on the walls, and then outside the P building there's, like, a little ramp area where you can hang out. And on the wall there I also remember there were, like - yes. I also remember there was one there. And the - also in the P building. There was walls, chairs. And also on the - also on the lockers. There was a lot on the lockers, inside the lockers, outside the lockers. Stuff like that. And in the - and then also there were pipes in the P building that also had them etched on them. And then outside - and then outside the P building on the S building, on the S block which is, like, next to the hockey pitch on the map, there were also - what you call it - there were also a lot of swastikas there. I remember there was one on the wall where I sat down. Where I sat down. And there was just one directly on the wall. There would be the same thing with the P building. It would be on the chairs. It would be on the tables. They would be on the walls everywhere. There was also another one that I - that I remember that was massive, and it covered the whole - what you call it - it was carved - it was out of - it was carved out of dust on the backside of the S building, and it was massive, and it covered the entire - an entire, like, window plane that it was on. And that was the - I would say that would be there for, like, I don't know, a year, year and a half I would say. … What did they say, if anything, to you what was the culture around drawing them?---The culture was kind of an edgy culture. It was kind of you - I'm not sure - the - I'm not sure - Callan [redacted] specifically drew them because it got a reaction out of me, it got a reaction about - around the people around him, you know, that type of thing. And then with the culture, generally, like, with the thing on the back of the S building and outside generally, I believe that would be the, like, cool edgy culture, like, the - what you call edgy culture, it's edgy, it's - yes, cool - cool, edgy, sums it up. 585 Bella Saffer gave similar evidence: If you had to estimate how many you saw across your entire time at Brighton, what would you give as an estimate?---For the entire time I was there, probably - easily 200. With what device or devices were these drawn?---Usually either carved in the wood or desks with protractors, otherwise with pen. And who, if anyone did you know who drew them?---I'm not particularly comfortable naming names, but I did know that some of the bullies around the school would carve them in. How many people did you know that carved them or drew them?---I probably saw, maybe, five people drawing them repeatedly, but there would have had to be more. I - - - How many people?---I would say a large percentage of the - the boys in the school would be participating. So how many people would you estimate for that?---In any given year level, I would probably say around 20. How many people's names do you actually know who did it?---Probably only one name that I can remember the name of. How many people did you recognise at the time, that you knew then?---I could - - - MR JEFFRIE: Your Honour, I'm not sure it's particularly helpful if we don't have the name and then, "How many do you recognise?" - won't lead us to anywhere. HER HONOUR: Well, we may yet have a name, Mr Jeffrie. Let's see. MR BUTT: What, if any names can you tell her Honour?---I remember seeing Damon [redacted] drawing some around the school. And the other people you refer to - well, what, if any other names can you give her Honour?---I - I never knew their names. They were all part of Damon's kind of bully group, but I didn't know them well enough to know their names. And how many people do you say were in that group?---Probably about five people. Now, how would you describe the culture at the school around drawing swastikas?---It was something that was pretty normalised. I never really saw any teachers removing them or anything, telling us to stop drawing them. 586 Corey Fooks said: And what did the - when you saw the swastikas at Brighton, what did that mean to you as a Jewish person? How did that impact you?---As - as a - a Jewish person who has lots of family that was strongly affected by the Holocaust, and a person who lost a lot of their family in the Holocaust and who has great-grandparents who I watched as kid and saw tattoos on their arms of numbers that they got when they were in concentration camps, it was very disturbing to both my identity as a Jewish person and to my family. And so what happened to your family in the Holocaust?---Yes. My - my two great - my three great-grandparents that I met as well as one of their children are the only ones that made it out of the Holocaust as - as part of my family. We've later found out that some - some people moved to America, but majority - majority did not make it out of the Holocaust. … Can you try to be as specific as you can in terms of the locations that you had these conversations - - -?---Yes. - - - and what was said. Pretend it's like a transcript?---Sure. "I said, he said." Can you be - - -?---Sure. I remember one pretty well. I went into his office. His office - he had just moved into some sort of - his office wasn't where it used to be because they were renovating the building that his office used to be in, so he was in these other classrooms. And so I went in there and waited till he was ready to see me, and I went in and I said, "Hi, Mr Minack. I found a swastika in the hall." The - the hall was a hall and was now - and - and was turned into a bunch of classrooms, where they put dividing walls up, because they needed extra classrooms as they were renovating the - the N building. And I said, you know, in - in - in close - close words, "Hi, Mr Minack. I found another swastika on the wall in the hall and would like it removed," and - and he - he would reply with, "No worries. We will get to it as soon as possible," and I saw him write some notes - some notes on a piece of - on a - on a piece of paper or a - or a notepad. And what action did you see, if any?---That swastika was never removed, though I do remember at least once or twice repeating to him that, "That swastika is still there and has not been removed." And what did he say when you said that?---"No worries. We will get to it as soon as possible," which didn't end up happening. Yes. And do you remember any other conversations in other places?---Many of them were in his office, as I - as I was trying to find him, though I do recall seeing him in the yard and going up to him and - and either reminding him of a previous one or telling him that I found a new one. And you said it was about 15 times. How many swastikas did it relate to that you were talking about?---I would say that I spoke to him about 10 swastikas, but I saw many more that I didn't speak to him about, as it came to a stage where I noticed nothing was being done. Yes. How did you feel as a Jewish person when you saw that?---Disrespected. That - that, you know, I've - I've taken the time to tell him that I find it offensive, and he has made it look to me as if he really cares and he's going to write notes and - and, you know, he's going to get to it right away, but that doesn't happen. … How safe did you feel at Brighton as a Jewish person?---Year 7 and 8 I felt safe, as if it was just a normal school. Year 9 and 10, swastikas started showing up around the school and comments were made and definitely not so much. I wasn't openly Jewish. I didn't go around telling people I was Jewish, but, you know, I went to, you know, the Jewish lunch groups and - and so people sort of knew. Why didn't you tell people you were Jewish?---Throughout my whole life, I've never really felt safe telling people that I was Jewish, just because, you know, I just - I know of history and - and I - I've, both myself and family have had situations were it hasn't sort of been a positive thing to tell people that we're Jewish. So it's safer and easier to just keep it quiet. And so how comfortable at Brighton were you to discuss your Judaism?---Not very and I didn't do it very often. Did you wear a Magen David?---I did, but it was hidden underneath my shirt and was never taken out. Why was that?---Two reasons, though the main one is that I didn't feel safe people seeing it, because I didn't feel safe people knowing that I'm Jewish and openly Jewish as well as we weren't supposed to have jewellery out of our shirts. … Let's talk about anti-Semitic conduct beyond the swastikas and comments?---Yes. Did you experience anything like that?---I had two main ones. Once I was - once I had money thrown at the ground and by, if I remember correctly, it was a boy called Nino [redacted] and a couple of his friends and they just looked at me and sort of laughed and waited for me as if I was going to pick up - pick up the money; that was the first one. Which year was that?---that was 2017 when I was in year 9. Okay. And do you remember what he said or what the conversation?---There was nothing said. He - he - they just sort of looked at me and laughed and waited. I - I answered with something like, "You know, do you think that's funny?" You know, something like that, because I didn't find it funny. I found it just rude and silly. Did you complain about it?---I did not, no. Why not?---Because I was hoping that what I said was maybe enough to have them think about it and I also didn't want to give them the attention that they were looking for, because I don't believe that that helps my case. I reckon it makes it worse. … If I asked you how would you describe the school's culture in relation to LGBTQI+ issues, what would you say?---Very supportive. They - they basically wanted to make the school as safe a place for people of the LGBT community. And how would you describe the school's culture in relation to Jewish issues?---Personally, from my experiences, the complete opposite, as I left the school not feeling safe letting people know that I'm a Jew. Since you left the school and went to Swinburn and elsewhere, how many swastikas have you seen in a public place?---None. 587 He gave a good explanation of how he came to the number of 50 swastikas, in terms of what he had seen: What, if any, swastikas did you see at Brighton Secondary College?---Yes, I - I reckon I saw about 50 swastikas around the school, on tables, scratched into tables, written on walls in black marker, written on posters. Yes. How were they drawn?---Often - often if they were on a wall, they were drawn in black permanent marker, and on tables, either in blue or black pen or literally scratched in with scissors or whatever they used to scratch them into a table. What about in the vicinity of the school? Did you see anything in the vicinity of the school?---Yes, I saw two swastikas on the pavement maybe 100 or 200 metres just down the street on the exact same street that - the exact same way I walked to and from school every day. … Now, you've given some evidence about swastikas. I think you said about 50 swastikas. How do you arrive at that figure?---Well, I mean, I didn't go around the school counting them. But when you see - you know, when you know that there's - you saw two or three in this room, and two or three in this room, and you think about how many rooms there are and all the different places that you saw them, that's how I came up with the number. 588 There is some documentary and oral evidence about complaints, including a written complaint, from Corey. Corey's evidence was that he emailed Mr Minack complaining about swastika graffiti, and that he wanted to make sure the graffiti was removed. He was shown, and referred in his evidence to, an email he sent to Mr Minack about swastikas on the path outside the BSC grounds. His evidence was that he made regular complaints in-person to Mr Minack: Mr Minack and I became - often - often saw each other purely because I was going up to Mr Minack, either to his office or when I saw him in the yard, and I was reminding him, "Hey, I found another one," or, "Just double-checking. I - I realised that that swastika hasn't been removed yet. How's that going? What's happening? When is this going to be done?" So how many times did you complain to Mr Minack, roughly, about it?---Roughly 15 - 15 times. And to your knowledge, how many times was the complaint actioned?---I would say maybe half, maybe just below half were actually removed. 589 Corey added, later in his evidence: I went straight to Mr Minack, because he seemed like the person that would be the - he seemed to me like the person that would actually - if anyone was able to have something done, it's sort of the head of the school. 590 He also explained why he stopped complaining: there were more swastikas there that I didn't complain about as I stopped complaining at a certain point because I realised that no matter how much I complain, they were not being removed and they were still there when I left the school. 591 Corey's evidence was detailed, and I do not reproduce it in full here. I accept it, and find it was given from his genuine recollection. 592 The applicants pointed out that the day after Corey made this complaint, there was another swastika graffiti report at BSC. A student was punished, by being given yard duty for the following conduct (as reported by Dr Riha in an email): Here are a number of images from the back west carpark taken at lunchtime today. Can they please be cleaned ASAP. Jimmy was drawing these- there are three swastika's two at one end of the car park and one at the other. The text on one image also reads- "When out of hope, use the rope" and the other "the only genders" referring to male/female. I confiscated the green chalk Jimmy was using- he claimed he didn't do the swastika[s]. 593 Mr Minack was cross-examined about this incident, because he was copied in on the email from Dr Riha, but he said he had no recollection, which is understandable and I accept that evidence. What is significant, however, is the focus of the punishment meted out. The focus was on the other disciplinary conduct the student was actually caught engaging in. The swastikas were to be removed, but apparently the student's denial was accepted at face value. No inquiries were made, no investigations conducted. No educative or proactive follow-up with students in the student's year level was undertaken. I infer the student was not punished for the swastikas at all, as he denied drawing them. He was punished for his other conduct. Mr Minack, although copied in, took no further leadership action, as I find he reasonably should have. This was mid-2017, when there were multiple complaints and incidents at BSC (many involving Matt) where antisemitic conduct, and swastika graffiti, was being raised. Mr Minack was directly involved in many of those incidents. Yet he continued to do no more than deal in a mechanical way with each incident as it arose, and to focus on the behaviour of the Jewish students, and appropriate punishment for them. 594 That is not to suggest anything inappropriate in a principal considering the circumstances of an incident, and student behaviour, and forming a view about appropriate disciplinary measures for each participant. That is part of the conflict management of which Mr Minack spoke in his evidence. The critical fact here is the absence of any apparent recognition there might be a more systemic problem at BSC, which needed to be addressed. In my view Mr Minack was simply not prepared to recognise that possibility, or deal with it. He had a unique sense of inertia about antisemitism. 595 Jasmine Karro was at the time of trial a current BSC student. I accept it was particularly difficult for current BSC students to give evidence. Ms Karro did so with firmness and in a straightforward way. Her evidence was not vague, although the topics of her evidence had a generality to them which was inherent in the topic - that is, her recollections of observing swastikas around BSC over a number of years. Evidence that was highly precise and detailed on a topic of recollection like this might raise its own suspicion in a different way. Ms Karro was also able to volunteer for the first time in the evidence to that point a description of how BSC was renovated and repainted while she was in year 10 and how most of the swastikas disappeared during this renovation. That places the clean-up at a time after the Worklogic recommendations. The fact she volunteered this I found probative of the reliability of her memory about what the school looked like before this occurred. 596 At the time of her observations, I find Jasmine was disturbed and upset by what she saw, in particular because she is also Jewish. I find it is more probable than not she has an active recollection of what she saw, even if her recollection is not a day-by-day, location-by-location description of where she saw swastikas. There were, however, aspects of her descriptions of what she saw which persuade me she was actively recollecting what she had directly observed: And so I want to talk about swastikas?---Mmm. And have you seen swastikas at the school since you've been a student there?---Yes, a lot. Okay. So where have you seen them?---Like, carved into tables, drawn on tables, drawn on walls, carved into toilets, like, around the bathroom areas, just graffitied a lot in most public spaces. … How many swastikas have you seen since you've been at Brighton?---Probably over 200. And so if you can break it down by - you've given some - just to be complete. So in year 7 do you remember where you may have seen them?---That would have been in the P block. Yes. Where?---On the tables. On the lockers. On the chairs. Year 8?---In the D block on the chairs, on the walls, on the tables, in the bathrooms. Year 9?---In the E and D block in the - on the chairs and tables and walls. Year 10?---Stopped seeing them in year 10. They got removed. There were still, like, minimal on some of the tables, but it wasn't a big issue. So when you say they got removed, can you explain what are you talking about?---Like, new tables were brought into the classrooms. The walls were repainted. Chairs were replaced. And things that had anti-Jew things on them were taken out of the school. And what about property of students. Have you seen anything there?---Yes. Like, kids would draw swastikas on my book when they were sitting next to me or something. So my property was damaged, as well as others that were drawn on their books and stationary and - - - And with what devices have people carved or drawn swastikas?---Scissors, pens, Textas, sharpies. Yes. And so, as a Jewish girl, how do you feel seeing these swastikas?---It's quite an offensive symbol, and it makes me feel unsafe in the environment that I was in. And, when you first saw them, how did you feel?---Like, alarmed by the fact that they were everywhere and scared of maybe what was going to happen. How many of them would it take for you to feel scared like you just said?---Even one or two. So how does 200 feel?---Really scary. What about have you seen anything with sanitary pads? Have you seen that?---Yes. There was a swastika with the sanitary pads in the girls' bathrooms. Who was that?---Diana Gonzales and Nova Cole. How do you know that?---There was a photo on Diana Gonzales' story of Nova Cole standing in front of the swastika. Do you remember when you saw that photo?---Maybe early last year. Have you ever seen a teacher remove one?---Yes. There was one teacher who I said there was a swastika on the table, and they got spray and wipe and removed it from the table. Who was the teacher?---Rosemary Clarkson. Have you seen any other teacher ever remove one?---No. To your knowledge, did teachers know about the swastikas?---Yes. Why do you say that?---Because they were very large and in public places, and many people would say that there were swastikas on tables and swastikas on chairs. And what about in classrooms?---Yes. It was very visible for them, like, sitting on a - sitting in their desk. There were many even on their tests as tables and chairs would get moved around during the day. On whose tables?---On the table - on the teacher's tables there would be. And did you ever complain about the swastikas?---No. Except to the one teacher. Right. So why didn't you complain about the other ones?---Because it just - they kept coming. It wasn't like they could remove them all. It wasn't - like, it was my -like, people in my classes that were doing it as well. I didn't want to, like, make people, like, upset at me. Well, how safe did you feel to complain about them?---Not safe at all from, like, the aspect that, like, my fellow peers would get upset at me as well as, like, the teachers who weren't going to try and remove it. … Have you ever seen graffiti that relates to an LGBTQIA+ nature around the school?---Maybe once or twice the word "gay," but not as frequent as the anti-Jew. Have you ever seen any graffiti relating to an Asian issue?---No. What percentage of the graffiti that you have seen at the school would you say was anti-Semitic?---Probably around 60 to 70 per cent. 597 I found her a persuasive witness. 598 While Jasmine's estimate was that over her time at BSC until the clean-up in 2020 she saw about 200 swastikas, other witnesses gave lower estimates. For example, Lilly Curnow estimated she saw around 25-30: Okay. Let's talk about swastikas. What do you remember seeing, if anything, at Brighton?---I remember walking around the school seeing on buildings, seeing in the bathrooms, drawn on - like, scribbled into tables - swastikas. And just anything that was a joke or offensive to Jewish people. Do you remember the names of the buildings? Would it help if I show you a map?---Yes, please. One-two-five-six, please. I think you had the right one just before?---I would see them around the E buildings, specifically around the E122 building. The S buildings and in the public bathrooms next to the canteen. How were they drawn?---They were scribbled into the paint with, like, sticks picked up from the ground, sharpies, knives that people brought to school, just any type of object that you could scribble into the paint mainly. So for what - for what period of time that you were a student did you see them?---I saw them basically the entire time that I was there. But they did increase and decrease throughout the years that I was there. When you saw them, what did you think?---I thought that they were plain out disrespectful. They were very rude. And I just don't understand how people could do that and think it was a joke. Did you ever see any of them removed?---No. And did you ever try to remove them yourself?---Yes. What did you do?---I tried to scribble them out with sharpies. I tried to chip away the paint so you wouldn't really see it anymore. Or I would - if there was a lot of them and I couldn't really do anything about it, I would warn my Jewish friends about it. Just so that if I did walk past a specific building or a specific wall, that they would be warned that they would be there on the wall. How many did you see roughly during your time there?---During my time there, I saw roughly about 25 to 30. To your knowledge, did teachers see these?---Yes. Can you explain?---On yard duty mainly, you could definitely notice that all of the teachers would see them. It was basically kind of common knowledge that you would just walk past a specific building and everybody would see them. They were very, very noticeable. And I don't understand how teachers would just walk past it and not see it or not do anything about it. Did you ever raise it with any teachers?---I raised it with one teacher. I do not remember her name. But I do remember that she was a substitute teacher. And she was on yard duty. And I noticed that she noticed it. I walked up to her and I told her about it, hoping that she would do something or tell the principal or vice principal. But nothing happened. And a week later, they were still there. Did you ever hear any teachers tell you in class or assembly not to draw swastikas?---No. Did you ever hear the principal tell you not to?---No. Did you ever see anyone get punished for it?---No. Did you ever see anyone get investigated for it?---No. 599 In cross-examination, she stated the swastika she had mentioned to a teacher was not removed: Now, you've also given evidence that you saw one teacher possibly inspect a swastika; is that right?---Yes. But no other teachers?---No. And do you know what happened after you reported that swastika to the teacher?---I do not remember because she was only a substitute teacher, so my general teacher - I think she had some family emergency or she was sick, so she wasn't there that day, so that's when the substitute teacher came in. She was only there for one day, which is partly the reason why I don't remember her name; I only remember mainly general basic of what she looks like. But I do not remember that there was any, like, change in what happened to those swastikas. Like, if they were removed, if they were painted over, if there was a conversation about it. There was nothing. Understood. But you don't know whether that swastika was, in fact, removed after you reported it?---A couple weeks later, there was still there. So it was not removed. But you don't know if it was removed after that? You weren't tracking this swastika, I imagine?---This happened, I'm pretty sure, in 2018, so I still had another one and a-half years there at Brighton, and they were still all around the school. They were never removed. Nothing. Nobody ever talked about it. Besides the students at the school, we would be the only ones that would talk about how terrible it was, but no teachers, no staff, nothing would remove them. And I would notice that they wouldn't remove them because I would see them a week later, two weeks later. I'm just going to ask you to try and focus on the question and just answer the question if that's okay. Now, there will be evidence in this proceeding that when swastika graffiti was brought to the attention of teachers, that they took steps to remove it. You're not in a position to contradict that, are you?---From what I saw, I didn't see them removed, but I can't really say what other students saw or what teachers did. 600 I accept her evidence. I find she was recalling directly what she had seen and what she had done. The fact she could not recall who the teacher was, or recall dates, is hardly surprising, given the context I have explained above. 601 Other student witnesses could give a little more detail around their observations. Alma Goldberg was one such student: When we talk about swastikas, do you remember seeing swastikas at Brighton?---Yes, I do. Do you want to elaborate? What do you remember?---Well, during my time at the school, there were two specific places that I remember seeing swastikas. The one were in the hall in the performing arts centre. So back then when the new building was being renovated - I think, now it's called the N Block - when that was being renovated, they made the hall into additional classrooms. So they put on just temporary walls, so they weren't painted or anything, but on the desks in the hall and on these walls were a lot of swastikas drawn in sharpies and permanent markers. And on the desks, there were some drawn in pencils. But also in the D Block. I remember during a history lesson that we had there, I was sitting and on my desk, there was a swastika drawn in pencil. And I remember that I took personal offence to it because as I sat down, I just immediately took my rubber out and erased it from the desk. So how many swastikas or which locations - have you answered that? So which locations around the school?---So the hall. So that was above the performing arts centre and in the D Block. And I think I saw around 10 to 20 overall. How long were these swastikas there for, do you recall?---So the ones in the hall were there until the temporary walls were taken down. And the ones in the D Block- the majority of my classes back then were in the - this was during year 10, so the majority of my classes were in the VCE building, so every time we went to the D Block, I saw them. So I guess about a year. When, if ever, did you see them removed?---I didn't see them being removed, unless I obviously rubbed one off. Yes. How did that make you feel?---Unsafe, to be honest. How many swastikas would it take to make you feel like that?---Even one would be enough. Yes. Did you ever hear any staff tell you not to draw them at Brighton?---I haven't. I haven't. Did you ever hear the - sorry?---That's okay. Did you ever hear the principal tell you not to draw them?---No, I haven't. Did you ever see students disciplined for drawing them?---No. Not that I recall. Did you have any knowledge of students being investigated in relation to swastikas?---No. Why - did you complain about them?---No. I didn't complain. Same as the assemblies, I just thought it would be futile or - you know, I assumed the students were putting - the students that actually drew the swastikas thought it would be some kind of joke, so I thought that my complaint wouldn't be taken seriously either. … MR BUTT: When - you said you removed some, did you?---Yes. I removed the one I saw on my desk. How long did it take you to remove it?---Instantly. As soon as I sat down, I just took the rubber out of my pencil case. 602 In cross-examination, she gave the following evidence: And you've also given some evidence about swastikas. And I think your evidence was 10 to 20 swastikas?---Yes. And that was over a period of 2016 to 2019 you were at the school?---Yes. Sorry. Sorry. And when you saw those swastikas, were they common with other graffiti?---Some were in the hall, so the hall was divided into four classrooms. The classroom that was closest to the front of the school - so the sign of the Performing Arts Centre, to the right, that one had quite a few swastikas and near some of them, there were Heil Hitlers written in permanent markers. Yes, and you didn't report any of that graffiti?---No, I didn't. 603 Ariel Katz was a witness whom I found generally reliable. He often used the word "disgusted" in his oral evidence and I find this was an accurate reflection of the intensity of the reaction he had to what he saw and experienced at BSC as a Jewish student. In cross-examination he was clear and consistent about what he could recall, and what he could not; he did not seek to exaggerate and he made appropriate concessions. His evidence-in-chief was as follows: And you've mentioned the swastikas, and which area did you see them?---Generally all around the school. I remember one in the art room in that sort of new-looking building, and they were everywhere. They were usually on desks or doorframes, etched out sort of thing. Did you complain about them?---Or drawing and so. No. Again, I didn't think it would do too much. And so now looking back that you're in Canada, how do you feel about these incidents?---Again, disgusted. I don't take personal offence to them because I don't want them to get to me, but again, I generally don't feel like the - generally, I just don't feel like they - anything I should consider as sort of actual - as - I feel as like they gave me something so dumb and so offensive that I shouldn't take it personally, but I - I am disgusted by them. At your Toronto school, how often have you seen swastikas since you've been there? MR JEFFRIE: Your Honour - - - THE WITNESS: Well - - - MR JEFFRIE: - - - just before - - - HER HONOUR: I will allow it. … MR BUTT: Well, Ariel, since you've been at the Toronto school, how many swastikas have you seen?---In my four years of being in my current school, it's generally more accepting, but I've seen exactly one in the middle of a book that no one else would see. 604 His evidence under cross-examination was as follows: The final questions I want to ask you about swastikas, which you've given some evidence about to Mr Butt. During the year and a half or year and a third you were at the school, did you write down any notes or take any notes on your computer about the number of swastikas you saw?---I never - I never counted them personally. I told you already I was so - I always want to just ignore them and turn myself away, so ..... count them. I can make a rough estimate of the sort of in the tens, so underscore, but I never sort of document ..... tallied them individually. Did you ever report any of these swastikas to staff?---No, I - I believe I already answered that question. Okay. Did you ever see this conduct reported to staff by others?---No. In terms of action from the school to deal with the swastikas, you're not in a position to give evidence about what the school did when it became aware of swastikas, are you?---I never - I don't - I never seen them do anything. I don't know what you're suggesting - saying. Sure. And, Ariel, there will be evidence in this proceeding that when swastika graffiti was reported to the school, that the school took action to remove it. You're not in a position to contradict that, are you?---I never saw the school or any of the swastikas get taken down. Whenever I saw a swastika it stayed there, so I'm not sure about that. What - I never reported swastikas if that's what you mean. 605 Jules Paul gave what I consider to be genuine and reliable evidence about his observations of swastikas during his time at BSC. I found his evidence on this topic persuasive. He was understandably nervous to begin with, but settled down, and approached the task of trying to give the Court an honest recollection of his observations with care and seriousness. He was careful in his answers, and made appropriate concessions under cross-examination. He remained firm in his estimates about the large number of swastikas he had seen. Yes. Where did you see Nazi swastikas at Brighton?---Everywhere around the school. Mostly drawn with marker in the bathroom stalls, under desks, on top of desks, on lockers. Sometimes they were carved in with scissors or some other sharp implement. Over what period of time did you see them?---The entirety of my time at Brighton. And how many did you see across the entire time you were there, approximately?---I would say hundreds. Sorry. Say that again?---I would say hundreds. Right?---Do I need to be more specific? No. No?---Or - - - Well, can you be as specific as you can be?---Around five to 600. Where - you said that already. Now, in terms of the years, would you say that - are you able to break it down, in terms of more or less across that period of time? Is that - - -?---It seemed pretty consistent to me throughout year 7 to 12, if not getting worse towards the end. So it - I didn't see ..... increase or decrease at all. Okay. When you saw them, what - how did that affect you, if at all?---It didn't really affect me. I thought it was stupid. And I just disregarded it as something that was normal. 606 Later, he gave the following evidence: MR BUTT: Where were the swastikas location?---Primarily they were kept out of sight. So bathrooms and locker bays. But there were some carved into - drawn and carved into desks in classrooms. And how many classrooms do you recall seeing this in?---I'm trying to remember how many classrooms were at the school to give it a reference point. Take it year by year. In year 7, do you recall roughly how many?---Not exactly. I would say throughout my time in probably 20 classrooms. 607 Over an objection from the respondents, Jules gave evidence about how many times, outside BSC, he had seen swastikas in public places: THE WITNESS: I can't recall any times where I've seen one in a public place. Maybe I've walked past one on a - a roadside that someone stuck some onto or graffitied it on a wall somewhere, but nothing major. MR BUTT: How many years has it been since you left Brighton?---Four. 608 I consider that evidence has some relevance. It is comparative, from this witness' observation. Obviously in isolation it is not to be given much weight, but it is indicative of the contrast between what this witness saw while a student at BSC and what the same witness describes not seeing after he left BSC. 609 In cross-examination, Jules was asked whether he took any notes of his observations of swastikas. With respect to the cross-examiner, I consider that to have been a fruitless and unrealistic line of questioning, if it was designed to suggest Jules' evidence should not be accepted because he took no contemporaneous notes or photographs. Jules was at the time of his observations one of hundreds of teenage students at BSC, engaged in the many day-to-day activities of teenage students while they are at school. At this point, he, like many of the other BSC student witnesses, was a bystander to the unease and upset, I find, being experienced by some of the Jewish students at BSC, including the applicants. He had no 'skin in the game'. 610 As to the estimate he had given, this was the cross-examination: And so when you say 500 to 600 or hundreds, you're really just guessing at a number here, aren't you?---I stand by my - that there were hundreds at the school. But I was asked to give a more precise number. It is an estimate, but - so yes. It's a guess. And are you personally aware of any direct reports of anti-Semitic graffiti being made to the teachers of the school at Brighton over your time 2013 to 2018?---A few. Okay. And so you're not in a position to give evidence one way or the other as to what the school did when it received complaints of anti-Semitic graffiti?---Can I ask you to rephrase that? Yes?---I'm not sure I understand. You're not aware of any reports of anti-Semitic graffiti being made to the teachers of the school, are you?---There were few reports. Okay. And, when they were made, there will be evidence in this proceeding that they were addressed expeditiously once the reports were made to the school. You're not in a position to dispute that, are you?---I guess not. And if there was swastika graffiti, it's often in places that are difficult to see, isn't it?---I believe that's what I said before. 611 I accept Jules' evidence. He was pressed in examination-in-chief to put a number on the number of swastikas he saw, and he did so, I find his attempt to be helpful. I accept it was no more than an estimate (as he said himself) and there is nothing to suggest Mr Paul's number of 500-600 is any more objectively reliable than another number such as 200-300. Mr Paul was not able to justify the number he had given. Therefore, I accept the number itself is not reliable evidence. What I find is reliable evidence is his response to the cross-examiner: there were hundreds at the school. 612 That evidence is consistent with the evidence of a large number of other student witnesses, both Jewish and non-Jewish, and is consistent with the evidence of the applicants. 613 Other student witnesses, while again honestly not being able to put precise numbers on the swastikas they saw, were able to give what I find to be genuine recollections of where they saw them, when asked. Angus Tranter's evidence in cross-examination was as follows: Okay. In relation to swastikas, you've given evidence that they were at the D building in the boys bathroom?---Yes. And behind the S building; is that right?---Yes. And sometimes these swastikas would be in difficult positions to see, weren't they? For instance, under tables?---Sometimes. More common for the - I can recall the ones in the D building bathroom and behind the S building. Yes?---I definitely saw those. Yes. And sometimes they would be in difficult spots to see; that's what I'm putting to you?---Not in the D building bathroom and not behind the S building. They were clear to see. Okay. And you didn't report to the teachers that there were any swastikas in the D building?---No, I wouldn't feel comfortable doing that. 614 I accept this evidence. Mr Tranter was firm in his response to the cross-examiner, and rejected the suggestion the swastikas were so hidden that, I infer, it was probable and reasonable teaching staff would not have seen them. While it is likely to have been the case that some of the numerous swastikas were more visible to students - for example, those drawn on the underside of desks and the like, I find that the evidence establishes many were in places that were quite visible to teaching staff. Whether or not they in fact saw them, and what they did if they did see them, were not matters established by the evidence at any widespread level, because of the teachers' denials. 615 I do not accept those denials as evidence that they in fact did not see any swastikas. I find at the general level, at best, the teacher witnesses were not able to give positive evidence they recalled seeing any. Since, as I find elsewhere, they were not positively encouraged to search for swastikas, to investigate swastikas and to actively discourage students from drawing them, I find it is understandable they might not recall them unless their memories were promoted by notes. That does not mean the swastikas were not there. I find they were there throughout BSC, in unacceptably large numbers. 616 Finally, Howard Zezula gave straightforward and what I consider to be unexaggerated evidence about this: What do you remember about that at Brighton?---Yes, there were quite a few. Yes, they were on, like, tables, like, under tables, scribbled on chairs. They were in bathrooms sometimes. I know one was graffitied in the girls' bathrooms one time. Yes, there were quite - quite a few. So talk about across the period of time. In total, if you had estimate how many you actually saw during your time there, what would you say?---I would say I saw about - I would say 100. Yes. And across the period - so just to - you were there 2016 to 2021; is that right?---Yes. So, say, across the period of time, how did the numbers change, if at all?---Well, I would say they definitely increased. I would say, yes, throughout year 9 and especially year 10, they increased after the incident with the principal and, like - - - We will get to the incident, yes?---Okay. Yes, sorry. Yes, yes. They increased, but I - I only saw them in year 9 and 10. In year 11 and 12, I wasn't really at school, so I can't really vouch if they were still there or not there. Did you ever see anyone get punished for drawing swastikas?---No. Did you ever see anyone get punished for drawing swastikas?---No. I should ask you, how were they - with what devices did people - - -?---I think - - - - - - make them?---I think they were just, like, scratched into tables or with, like, permanent markers or, like, graffiti pen or, like, markers. Did you ever know of any investigations into these issues?---No. Did the staff ever tell you not to draw them?---Not that I can remember, no. Did the principal ever tell you not to draw them?---Not that I can recall. Did you ever have any knowledge of the school removing them?---No. 617 In terms of the contrast with other forms of discriminatory student behaviour, his evidence was: How would you describe the school's culture in relation to LGBTQI+ issues?---So the LGBT community, it was very, like, prevalent. Like they did a really good job in that aspect of upholding, yes, LGBT to, like, a high standard. Like, you were not allowed to say - I mean, yes, obviously you're not meant to, but you weren't like to say, like, yes, "gay" or "fag" and it was, obviously, okay to be gay and you could - like, they would support, like, trans and, yes, and there were lots of posters saying, "It's okay to be gay," like, plastered around the school. For what period of time when you were a student did you see those?---It was the whole time I was there. Yes. How many places? Can you think of a place?---Like, in every building I went to there was, like, there's posters. 618 Howard agreed in cross-examination that he did not report the swastikas he saw, nor take notes or photos of them. As I have explained, I do not find this detracts from the persuasiveness of his evidence about what he observed. Nor, as I explain, do I consider that the failure of what might in this context be described as 'ordinary BSC students' during the relevant period to actively complain to teaching staff about seeing swastikas exonerates Mr Minack and his teaching staff, which is the crux of the respondents' contention about the absence of student complaints. Howard also agreed in cross-examination that he wasn't in a position to contradict any evidence given on behalf of the respondents about what action was taken by Mr Minack or the teaching staff in response to swastika graffiti. I do not consider that (appropriate) concession detracts from his evidence about what he observed. Nor does it preclude an inference being drawn, which I do draw for reasons I explain further below, that Mr Minack and the teaching staff at BSC over the relevant period are likely to have observed swastikas around the school, in excess of the specific examples about which they gave evidence, without any or any adequate action being taken to remove them or to address the ongoing student behaviour in drawing them. 619 There was consistent evidence from the BSC students about the failure to encourage and educate students concerning antisemitic graffiti, and swastikas in particular. 620 An example is the evidence from Notis: During your time as a student at Brighton, did you ever hear a teacher say you're not allowed to draw swastikas or something to that effect?---From my recollection, I have not - you know, no teachers at all have, you know, said that. From your recollection, did you ever hear the principal say something like that?---No, I have not. What, if any, recollection do you have of seeing them removed by staff at Brighton?---I have not seen any swastikas around the school being removed by any staff at all. 621 And in cross-examination: I should be clear. In relation to the whole period that you've given evidence - and I think Mr Butt asked you for your recollection of the whole period - - -?---Yes. - - - you're not in a position to give evidence of what the school's response was, are you?---Well, you know, in my response to that, it's, like, you know, what I've seen, and I have seen over 100 swastikas around the school, you know, being there for a long time, or even just, like, still, like, you know, being there, so that's just, like, what I've seen the school done, and in my personal opinion, they haven't really done a good job. Okay. There will be evidence in this proceeding that when swastika graffiti was reported to the school, the school took action to remove those swastikas?---Okay. You're not in a position to contradict that, are you?---Again, in my response, it's, like, you know, what I've seen, because I have physically seen the swastikas, but with reporting, no. 622 The respondents criticised this kind of evidence, but I reject the criticism. I consider some weight should attach to evidence from BSC students like Notis, who have been prepared to attend a trial, expose themselves to public scrutiny and media reporting, and to cross-examination, in a matter in which they have no personal stake, and relate to the Court their experiences while at BSC. Their evidence was generally careful and measured, with appropriate concessions. Their recollections are, I find, more likely to be reliable because the events they were describing disturbed and worried them, and/or affected them because they watched students in their friendship group being affected by them. They had cause to recall what they did.

Conclusions on other student evidence about swastikas 623 The evidence demonstrated, I find, that students saw swastika graffiti in a wide range of locations. Many of these were, I find, in places where it was probable teachers may not immediately observe them. For example, many students (and the applicants) gave evidence of swastikas being etched into, or drawn on, student desks in classrooms, tables, stalls in student bathrooms, and students' books (whether their own or in some cases books belonging to Jewish students). Although some students gave evidence of the swastika graffiti being relatively large (the size of a hand) many more students gave evidence from which I infer the graffiti was often quite small and in places where students were spending more time than teachers - again, more likely than not it was less visible to teachers than to students. I find that is consistent with one of the overall themes in the evidence: that this graffiti was directed by students at other students. 624 I do not accept the respondents' overall contention that from an absence of written records of complaints the Court should infer that students did not see what they have sworn in evidence they saw. As I explain elsewhere in these reasons, I am not persuaded the records management system at BSC was so accurate, and so comprehensive, that such an inference could be drawn. I find there was discretion exercised by teachers about what they put into Compass. I find that the views of the teachers who gave evidence, including the then senior leadership team at BSC, and Mr Minack, were not inclined to, and did not, treat complaints about swastikas as seriously as they treated complaints or reports of other graffiti. I find there was a level of tolerance to the presence of swastikas which was, on the evidence, peculiar to BSC. 625 Aside from the findings I have made above about the reliability of a considerable number of BSC student witnesses, and the genuineness of their recollections as they gave their evidence in the witness box, the other feature that makes this evidence probative in my opinion is the number of students who gave the evidence, and the relative consistency of what they described. 626 Granted, the evidence was not given by reference to specific dates and times, but that could hardly be reasonably expected given the lapse in time between the events and them giving evidence, their ages at the time, and the fact that although seeing this graffiti disturbed them, there was no good reason or justification for them to continue to maintaining any particularised memory, let alone records (they were high school students) of exactly what they saw where, and when.

Applicants and their families 627 I turn now to the evidence of the applicants and their families about swastika at BSC. 628 Aside from the applicants, I deal here with the evidence of Zack's sister Courtney and Matt and Joel's brother Zac. 629 Zac's evidence was, in my opinion, quietly supportive of the claims made by his brothers, although I had a sense he was something of a reluctant witness. I found the restraint in the manner in which he gave evidence to be persuasive. He described himself as a Jewish atheist - a description which I find combines his continued self-identification culturally and/or ethnically as a Jewish person with the absence of an active belief in God. He described himself as not having been at all "openly Jewish" at BSC, but nevertheless gave evidence about the antisemitic taunts he received from other students. 630 Zac's evidence about swastikas began as follows: Yes. Let's talk about swastikas. Your - what do you remember about swastikas at Brighton Secondary?---They were everywhere. Yes. Yes. Be more specific. Everywhere literally?---Almost - I'm - on a lot of tables, if not most tables. They're in the bathroom, like, drawn on the walls. They were, like, etched into, like, the walls of the classrooms occasionally 631 Eventually, Zac was properly directed to describing, in a year-by-year way, what he had seen in terms of swastika graffiti. In years 7 and 8 (2013 and 2014), his evidence was: In year 7, it was primarily in the - in the north block and the P blocks. I would say there was a lot of them in the north block that were scribbled on tables. I can't - I remember that in the P block, there were some that were scribbled on the lockers, which were outside the classrooms, and there were others scribbled on the - on the tables in the P block, and there was also some drawn in the bathrooms within the N block, but I believe it has been demolished. Yes. So which N block are you talking about?---The - the main building, which is the one adjacent to Marriage Road. Was there - when was the change, to your knowledge?---I'm not - not sure. I think it was towards the end of my schooling. And then - - - When - yes. Where were you being taught in year 7 or year 8?---Primarily in the N block, in the part that's adjacent to Marriage Road, and then in year 8, I think it was a mix of the N block and the P block. 632 Zac's evidence is important corroboration of Liam's evidence about seeing swastikas. Zac and Liam were in the same year levels. 633 In years 9 and 10 (2015 and 2016), his evidence was: In year 9, it was in the D block. I would say there was - it was a pretty similar situation. There was swastikas, like, etched into tables, etched into lockers and drawn within the toilet stalls. I think in - in the two major art classrooms, which are D1 and D3, there was quite a few. Yes, and while we're on that, what sorts of devices were the swastikas drawn or made?---Well, I imagine people were using pens or pencils to etch them, or maybe scissors to etch them into the table. And the ones in the bathrooms were - were done with either Sharpies or Textas or felt-tipped pens. 634 In years 11 and 12, his evidence was: That was in the E block, and I would say it was probably a similar situation, although I think the E block was quite new or had been refitted, so it was - when I started, there was probably less, and then there was more that were etched - like, drawn or etched as I went on. 635 In terms of numbers, Zac's description was: Uncountable. Within the mid-hundreds. … Like, around 500. Somewhere between, like, three and seven hundred. 636 In cross-examination, when asked about numbers he said: There were so many I couldn't count them. 637 Subject to one matter, I accept Zac's evidence. His evidence was careful, not exaggerated, and I did not find him to be a witness who was giving evidence in any overenthusiastic effort to support his brothers or the applicants more generally. I found him a serious young man who was recollecting experiences that had disturbed him, but which he had attempted to deal with by putting to one side, and not reacting to them as much as he could. That is an understandable coping mechanism in the circumstances, not the only one - as my findings about Joel and Matt explain - but one I find was employed by Zac, and goes some way to explaining why, unlike his brothers, he did not complain to the teaching staff or leadership cohort at BSC. 638 The one matter I do not accept, in terms, from his evidence, is the same matter I do not accept, in terms, from many of the other student witnesses. Namely, the estimate of 500 swastikas as a raw number. As with many of the other student witnesses, I find that the number nominated was a guess. However, the inference I draw from the number, taken cumulatively with all of Zac's evidence on this, as with the other student witnesses, is that he gave a number like "500" as his way of emphasising that there was a very large number of swastikas that he observed over his time at BSC. Using a figure such as "500", in common parlance, signifies to the listener a very large number. That is, I find, what Zac intended to convey and to that extent I accept his evidence that over the period at BSC he directly observed, in every year he was there, a very large number of swastikas around the school grounds, in the classrooms, and in places such as toilets and locker areas. 639 Courtney's evidence about swastikas should be seen through the lens that she was until not long before trial still a student at BSC. She was the youngest of the student witnesses. She was at BSC through years 7 and 8, and only a few days of year 9 before she left. She gave evidence about a specific swastika incident in one of her year 8 classes: I've told them an incident that happened with my friend where they wrote - where boys in her class wrote swastikas on her book. And I told the teacher with my friend, and he said he would do something about it when - after a while he didn't, and we kept on asking, and he hasn't. He didn't do anything. 640 Courtney gave the name of her friend whose book was written on, and the names of the boys who drew the swastikas. She identified the teacher coordinator she told as well, a Mr Chalk, who otherwise did not feature much in the evidence. She then described the punishment she knew the boys received: Did anything happen to the boys at all?---They - as a punishment, they - they got to go on an excursion to the Holocaust Museum for the whole day and when they came- and when the boys came back, they basically made fun of the place and laughed at it. And how did you feel when they laughed at you?---Pretty frustrated, to be honest. 641 There was no evidence from the respondents about this incident. They did not, for example, tender a Chronicle entry to demonstrate that Courtney's complaint had been recorded. They did not tender any Chronicle records to demonstrate this disciplinary consequence had been imposed. I infer there was no record of this complaint and the disciplinary consequence, because the respondents were otherwise astute at tendering any Chronicle records which contained disciplinary consequences imposed for complaints about antisemitic conduct. 642 In terms of her direct evidence about the swastikas she saw around BSC, Courtney's evidence was: MR BUTT: And what about swastikas, did you see those at school?---Yes, I saw them across the building in year 8 in 2021 when I was there. Sorry?---In year 8 and I saw them on the walls and in the bathrooms and so, in year 7. … Maybe when you see the map, tell us what you saw in year 7 and tell us what you saw in year 8?---In year 7, in the - in the N building, around - in year 7 and 8 there was in N2-22 and N2-23 there were a lot of swastikas on the tables and the chairs, like, the whiteboards. And there were some on, like, the side of the lockers and next to N2-23, where the bathrooms were, inside, like, in cubicles, there were swastikas on the back of the door. How big were these swastikas?---Probably like four to five centimetres. Yes. How were they drawn?---I think they were drawn with Texta and pencil and then in year 9, in the nine days I was there, I saw some in the D building around D7 and in the bathrooms next to D2 and D1. … And how many did you see - well, while you were a student there?---There were, like, 40 to 50. And did - how did that - was it consistent across the time or was there more or less in different times?---When I - in year 7, there was less than the other years and it got, like, gradually worse as, like, as in going into year 9. 643 Courtney was then asked if she told anyone: Yes. I told Mr Chalk and most of the time when there were - and it came up, I often didn't really say anything because I didn't want attention to be drawn to me, because they I would be called many things when I have, like, "You're a snitch," and swear words to me. Where did you tell - where did you have that conversation with Mr Chalk?---In his office and when - and, like, recess and lunch. So when you told him, what did he say?---Pardon? Sorry. Did he say anything? What did he say when you told him?---He said, like, "Yes, we will look into that or we will try and get it removed," and after a year, two years, it's still there. 644 Like many of the other BSC student witnesses, Courtney gave evidence that she did not hear Mr Minack and BSC teachers ever telling students not to draw swastikas, and that aside from the one incident she did not see students being punished for drawing swastikas. She added: They [the teachers] didn't comment on the swastikas. I didn't hear one teacher say that it was disrespectful and that they should remove them, them being Jewish or not. 645 She explained why she did not complain: Because even though I already complained many times before, I felt like there was no need to any more, because they weren't going to do anything about it, and because of past experiences. And if I did go to them, I would get called many things if I did, and it seems like the principal just wouldn't do anything, so I gave up and just let it go and had to deal with it. 646 In cross-examination, Courtney was asked about the complaints she made to Mr Chalk: Okay. And it was just a report to Mr Chalk, no other teachers?---Yes. And you reported it once?---Yes. Okay. And what - do you recall what you said to him?---I said - from what I can remember, I said that there were swastikas around the school, and I didn't feel comfortable, and they were pretty disrespectful. Did you tell him the location of the swastikas?---Yes. Did you take him to them and show him?---No. Where were they located? Where did you tell him they were located?---Bathrooms, walls, chairs, tables. Did you give him a specific area, or did you just say bathrooms, walls, tables?---I gave him specific areas. … So you said you did give specific locations. Do you recall the words you used when you were telling him the specific locations?---From what I can remember, I told him specific, like, rooms, in 222 and - and 223 around where I was mostly doing my learning, and in the year 8 building as well, with the rooms and the bathrooms. Is that what you told Mr Chalk, or - - -?---Yes 647 Courtney was cross-examined about her estimate of 40 to 50 swastikas that she observed, and that the number was no more than a guess. She responded: Well, mostly from being - in the start of year 7, I could definitely say there were about 20, 30, and then going into year 8, there were more than that. And from what I can remember, I can definitely ..... say that there were 50. But you didn't count them?---No. 648 With respect to the cross-examiner, to put to this witness that she did not count them ignored the context of her evidence. Her evidence ranged across two years. I do not see how, and in what context, she would have had any reason, contemporaneously, to count all the swastikas she saw. This is but one example of some of the unrealistic aspects of the cross-examination of the student witnesses. 649 Mr Chalk was not called to give evidence. I draw no inference about that omission because Courtney volunteered her complaint evidence for the first time in the witness box and the respondents were not on notice of it through her witness outline. The respondents' main submission about Courtney's evidence is that her evidence concerned events outside the relevant time period and was irrelevant. That is because the events occurred in 2021. 650 I do not accept that Courtney's evidence about her specific swastika complaint and what occurred is irrelevant. To the contrary. First, it is clear and probative evidence of the kind of student antisemitic behaviour that occurred in a classroom at BSC. In that sense it is consistent with the applicants' own evidence about similar classroom conduct. Second, by 2021, the tragic treatment of Courtney's brother Zack, at the hands of a group of BSC students and motivated (as I find elsewhere) by the fact Zack was Jewish, was likely to have been, I infer, well known amongst BSC staff. It was unsurprising, but appropriate, that Courtney's complaint about the swastikas was taken seriously by Mr Chalk. The year 2021 was also the year after the Worklogic inquiry, which was completed in October 2020. I infer all BSC teachers were by 2021 well aware of the need to respond appropriately to complaints about antisemitism. I find this illustrates the stark differences in approach at BSC between what occurred during the relevant period and what occurred after the applicants' complaints and the Worklogic report. 651 I find that, prior to the end of 2020, there was not in the evidence to which the Court's attention was drawn a single example of a disciplinary consequence where students who had engaged in antisemitic behaviour were sent for a study trip to the Melbourne Holocaust Museum. Not once. Although this was, I find, not the only appropriate disciplinary consequence, it was an obvious one, and an educative one. Whether or not it had the desired impact (Courtney's evidence may suggest it might not, especially without appropriate teacher follow-up), it was a proactive attempt to educate students about the impacts and context of their antisemitic behaviour. This approach was not present, on the evidence, during the relevant period. These findings are consistent with the other evidence, including from Mr Minack, that suggests BSC as a school, and Mr Minack and the leadership cohort in particular, have sought to ensure the recommendations made by Ms Dickinson were implemented, and acted upon. That was because, I infer, Mr Minack was required to ensure that occurred, rather than because he necessarily wished to. 652 Both Zac and Courtney were cross-examined, as the other student witnesses were, about whether they reported what they saw, whether they took notes or photographs, and their inability to give any evidence about the response of "the school" to any reports that were received. Like most of the other student witnesses, they responded appropriately, essentially accepting all the propositions put to them. As I have found for the other BSC student witnesses, I do not consider those (appropriate) concessions detract from their evidence about what they observed, which I accept. Nor does it preclude an inference being drawn, which I do draw for reasons I explain further below, that Mr Minack and the teaching staff at BSC over the relevant period are likely to have observed swastikas around the school, in excess of the specific examples about which they gave evidence, without any or any adequate action being taken to remove them or to address the ongoing student behaviour in drawing them. 653 The applicants' evidence about swastikas was not uniform. It is fair to say this aspect of antisemitic behaviour featured larger in some of the applicants' evidence than others. This was especially so for Joel and Matt. That feature is consistent with the fact, I find, that it was Joel and Matt who did most of the complaining about the presence of swastikas, and were the loudest voices to Mr Minack and BSC teaching staff about the presence of this graffiti at BSC. 654 Liam's evidence was that he saw swastikas: Everywhere. In the male bathroom. I couldn't say if they had in the female bathroom, but they were all over the cubicles, all over the mirror, in the classroom, on the table, underneath the table, on chairs. They were everywhere. … So how did that feel seeing it around the school?---Terrifying that this was normal. It was a normal culture to walk around the school and see swastikas everywhere. And for what duration of time did you see those while you were there?---The entire time that I was there. How did the numbers change?---Increased. Increased. There was - I remember there were maybe 15 swastikas in one of the cubicles that I went in, and - I mean, obviously I didn't go into the same cubicle every time, but there were numbers more throughout the years that I was there. If you had to put an approximate figure on it, what would you put?---I would say over the two - two and a bit years that I was there, from 15 it probably went up to about 40. And what about your property, your personal property. What, if anything, happened to that?---My locker was graffitied on a lot. Phrases such as heil Hitler was written on my locker. Luckily, it wasn't used with permanent marker, so I was able to take it off quite quickly. What was it used with?---Sorry? What was it used with?---Like, a pencil - a grey lead pencil, which I was able to rub off with a standard rubber. And I went again to the administration office to complain that my locker had been defaced with "heil Hitler" on it. They didn't say, "Can you come show us? Would you be able to take a picture of it for us and show it to us? We will have a look at it later." Nothing. They just said, "We will write it down and we will give it to the principal." 655 I return later in these reasons to this kind of evidence given by Liam about what happened when he went to the BSC office to complain. 656 In year 8, Liam's evidence was that the graffiti became worse: My locker, again, was defaced, on the inside this time as well. Cubicles - I mean, it's not my property, but cubicles, the - the swastikas were everywhere, more so than the previous year. The - the phrase "Heil Hitler" was written on my locker, again in pencil, so I was able to rub it out. And I - I went to the administration office so many times to tell them that my locker had been defaced again, that people are starting to go inside my locker and - and draw stuff in there. And it was my property and I didn't feel comfortable knowing that people were able to get into my locker and to get to my stuff. … And so what was the standard process that you - you're going - you're saying you're going a lot to - what was the process?---I would go to the administration office. I would tell them what had happened. On more than one occasion I would ask them to come down and have a look. I wouldn't have rubbed out the - the swastika or the -the "Heil Hitler" sign yet, because I wanted them to see. And I just recall days of waiting for something to happen. But every morning I would come back to my locker and still see the "Heil Hitler" sign on there and a swastika, to - to the point where I just rubbed it off myself. 657 I accept Liam's evidence. I explain below why I consider his evidence was generally honest and reliable, contrary to the respondents' submissions. His evidence has the additional attribute of establishing the way he was targeted by other students, with this kind of graffiti being specifically directed at him. I infer that is because he was easily identified as a Jewish student. I accept, and find, as I explain in more detail below, that Liam may also have been targeted for bullying because he was a quiet and somewhat shy young man. Nevertheless, it is clear on the evidence that the kind of bullying he was subjected to had an overwhelmingly antisemitic flavour and therefore it was the fact he was Jewish which can be identified as the principal reason for the disturbing treatment he experienced. 658 Guy's evidence described how his first visit to BSC as a sixth grader, for orientation, was the first occasion when he observed a lot of swastikas around the school. That was at the end of 2016: And when we came in, immediately, you could see that there was swastikas everywhere, which, at the time, I wasn't sure of their meaning fully, but I was aware that it had something to do with Jews and Nazis which I had learned about previously, and there were students - many students from higher year levels that we had met that - they introduced themselves and we would talk to them and they would make some jokes that were - at the time, to me - I didn't know that they were highly offensive, but I quickly realised as I learned more and more about what it is to be Jewish and what - what happened during World War II and the significance behind those things and why they were eventually hurtful. 659 This was a specific recollection Guy had, and I found it persuasive in terms of how different the swastika graffiti situation at BSC was from other school environments. 660 Guy gave specific evidence about swastikas being drawn on his books, such as the following: And in terms of swastikas, what, if anything, happened to your property or books?---Yes. So I just said in class, Timur [redacted], in Year 7, at least, he would draw swastikas on our books. Just at random times, he would say, "Guy, can I see your book?" And then he would draw it, and there was nothing really I could do to stop him because I - I was quite scared of him, so I just allowed it to happen. 661 He explained why he did not complain: we had the idea that the bigger kids - and the bigger kids would tell us that, if we told on them, or if we - yes - if we told on them, that they would just bash us or beat us up, and I believed them, and the students in our year level, they were all bigger than me, so I - they - they also took - took up that sort of mindset that, if someone would tell on them, they would tell them that they would beat them up. … in year 8 there was a group consisting of a kid name Elias [redacted], Jack [redacted], Lucas [redacted] and Timur [redacted], and there were some others, but I don't exactly remember their names. And so that was a group that kind of - that was controlled anti-Semitism in the school as they - they were, like, the biggest kids and the scariest kids. 662 I accept that evidence. As I have explained elsewhere, Guy was a persuasive, careful and reliable witness, in my view. He was clearly reasonably small in stature and I accept that he felt unable to complain against the other students he identified. 663 Guy also gave evidence about his direct observations of swastikas around the BSC grounds and building: So generally, they were all over the school, but there's ones that I can remember because I saw them every single day where - and so in the W building, so W11 and 10. They were drawn on - on the desks with permanent marker and on the tables, the legs of the tables. There was a swastika there as well. There was - on, like, two of the tables. There was two on one and one on one - another one in W10. And W11, there was one I remember drawn underneath the desk. In terms of the P buildings, in P4, there was one carved into the desk ..... that I saw drawing in class was Paul Varney that I had reported to him. I told him that there was one literally carved into the top of a desk. And there was - - - Which year was that? Guy, which year was the report?---Year 8. And what did you say to Mr Varney?---I told him that there's a swastika literally carved into the desk. What did he say?---He said he will tell someone about it. Did - did anything happen?---To the - from the, like, to the day that I left the school a year later, it was still there, so - - - Right. Sorry, continue, please?---There was, on the P buildings behind - facing towards the hockey pitch, there was swastikas drawn with permanent marker on the wall of the buildings. There was one that was, like, carved into the radiator of the fan that was outside the P Building. They, like, pushed in the fins of the radiator into a swastika. In the - the S buildings, the old S buildings, there were a couple of windows that you could reach from behind where there was a small bench and you could walk up to the windows which were always dusty, due to the woodwork building being near and the sawdust being on the - on the windows. So there - the - the swastikas were, like, drawn on using the dust on the windows, so that you could see them from inside the classroom. How big was it - how big was it?---It was pretty big, it was about, say, the size of a notebook that's open, I guess. Like, how can I describe how big it is. The size of a basketball, I would say. Okay?---The - in - the woodwork and metalwork buildings, which were S1Pand S2, in S2, which was the metalwork room, there were - there - it said that students had used the tools from the metalwork to file a swastika onto the top of the desk - one of the desks which I sat on, and in the woodwork room, it's the same, that they had carved the swastika into the desks using the tools. On - there was one which I remember seeing every day on the stairs leading to the L4 classroom, that was drawn on the railing using permanent marker, and I think those were the ones I remember most. And so, in terms of the size of them, what were the ranges of - do you remember the bigger ones and the smaller ones? Where were the bigger ones, where were the smaller ones?---The bigger ones were mostly on the dusty windows and the rest were only, like, the size of, like, a 50 cent coin or, like, the palm of your hand, it ranged from that. And how many did you see across your three years?---I would say 100. 664 As well as the report to Mr Varney, Guy described reporting the swastikas drawn into the dust to his maths teacher, Ms Michaels: I had told her that there was a swastika the size of, like, a basketball drawn on the window that I was facing and she - she said that she would get someone to look at it or to do something about it. What, if anything happened?---Nothing. 665 He described the number of swastikas as increasing over his time at BSC: It definitely increased as there were - the old swastikas that you would - you saw from Year 7 and then there was new - new swastikas, like, every week, up until Ninth Grade, when I left. 666 Guy explained that he now attended the American School of Milan, in Italy. His evidence was that he had not seen a swastika at that school. Many of the applicants and the other BSC student witnesses gave similar comparative evidence about schools or learning institutions they attended after BSC. That comparative evidence is a matter to which I give some weight. The situation at BSC during the relevant period was abnormal. That in itself tends to indicate a failure by Mr Minack, the leadership cohort and the teaching staff to adequately address antisemitic behaviour. It also suggests, in my view, an inappropriate level of tolerance for such behaviour. 667 In cross-examination, Guy was challenged directly about his evidence-in-chief. Unlike some of the other student witnesses, he was prepared to take on that challenge: Now, you gave some evidence about there being swastikas, I think you said,' all over the school', was your evidence. You did have the - a phone with you at school and it - as I understand it, you even sometimes got into trouble for taking it to class, didn't you?---That's correct. You never took a photo of any of these swastikas, did you?---No. That would have been a very easy thing to do, wouldn't it?---Sure. But - well - the evidence from the school will be that, when swastikas came to the attention of staff, they were removed. You're not in a position to dispute that, are you?---Yes. Well, why do you say you're in a position to dispute that?---Because they were there. Because it's true that they were there. Well, I think we might be talking about different things, Guy, so I just want to be clear about this. I'm talking specifically about swastikas that came to the attention of staff by way of report or because they saw them. Those swastikas were removed, having come to the attention of staff. You can't dispute that, can you?---With - I mean, I - as I said, one instance of me reporting a swastika, for example, Mr Varney, I told him that there was a swastika carved into the desk and I saw that throughout the years, all the way until I left the school and that was in Year 8 when I reported it. We will come specifically to the one that you say that you reported to Mr Varney. Leaving that one to one side, though, are you in a position to dispute that any other of the swastikas that came to the attention of staff were removed?---I'm not sure what you mean by that. Well, I will try and start you differently, Guy. The teachers will also be giving evidence about what - that they did not see these swastikas around the school save for the ones that they reported and then were removed. You're not in a position to dispute what they saw and didn't see, are you?---Do you mean that I have physical evidence or do you mean that I - I know that they were there and I saw them with my own eyes? I'm trying to be careful to distinguish between things that you saw and things that the teachers will say. Okay. So - - -?---Okay. The teachers will say that save for the ones that came to their attention they did not see any around the school and you're not in a position to dispute what the teachers say about what they saw or didn't see, are you?---I would say that I would disagree with the teachers. Just to be clear. You disagree in the sense that you say that there were swastikas around the school?---Yes. HER HONOUR: I don't think it's worth pursuing any further, Mr Young. MR YOUNG: I understand, your Honour. HER HONOUR: It's a difficult question. MR YOUNG: I wasn't planning to. 668 While in one sense the respondents were quite entitled to pursue this line of cross-examination, as they did with every student witness, I do not consider the answers given by the students to be as probative in favour of the respondents as the respondents appear to suggest. This is especially true of Guy's evidence. What I infer from Guy's evidence is that he did not accept at all that the swastikas were not visible to the teachers, and he did not accept the teachers did not see them. That was, I find, his honest evidence based on the number and location of the swastikas. He refused to concede or accept that the teachers could have not seen the swastikas. 669 I give some weight to his state of mind on this matter. As I explain elsewhere, the teachers' evidence was by and large a reconstruction because I do not accept most of them had any real active recollections of their day-to-day observations at BSC during the relevant period. They had many other matters to focus on, at all times of the day. Their denials and their evidence to the effect that they "would have" reported swastikas, or "would have" stopped anyone they saw drawing them, is, I find, no more than wishful thinking in hindsight, given the context of a hotly contested proceeding where their attitude to antisemitic behaviour was under challenge. It is a human reaction to assert one would have reacted strongly. We all like to think in such situations that we would do so. However, I am satisfied on the balance of probabilities that the teachers, at the time and in the moment, did not in fact react as their evidence suggested they would have wished they had. 670 As for the two specific reports Guy said he made - one to Mr Varney and one to Ms Michaels - I make the following findings. 671 Mr Varney could not recall Guy reporting a swastika to him in class. His evidence was that he did not believe it would have happened because he was "pretty sure I would recall that" because it would have been "such a big event". The respondents submitted the Court should accept Mr Varney's evidence and disbelieve Guy. I disagree. I have explained elsewhere why I found Guy to be a reliable witness, and to have taken a serious approach to his evidence in this proceeding. However, he may have appeared to some teachers at BSC during his time there, at the time he gave evidence he was several years older, and I find he had reflected maturely and seriously on his experiences at BSC and had committed to participating in this proceeding, including giving evidence from overseas, because he had a truthful narrative to give the Court about what had happened to him at BSC. I also give some weight to the contemporaneous complaints by his mother Sarit Cohen to BSC, and her evidence about those complaints, and about what her son had told her at the time was happening to him at BSC. I also found Mrs Cohen to be a serious and reliable witness, who was at the time of these events very concerned about the attitude of Mr Varney towards her son, and about the reports her son was giving her about antisemitic behaviour at BSC and the apparent tolerance of it. 672 In contrast, I did not find Mr Varney a reliable witness. I set out my reasons in detail below where I deal with Guy's individual complaints. On this particular issue, I accept Mr Varney has no active recollection of the incident, and that is unsurprising, for reasons I have explained about the circumstances of teachers at a busy secondary school like BSC. I do not accept his speculation about why he "would" have remembered. In my opinion this was nothing more than wishful and defensive speculation given with hindsight, in the trial context. Contrary to his speculation, I find Mr Varney did not, during the relevant period, take antisemitic behaviour from students especially seriously, and was not sensitive at all to students with Jewish identity, or who were developing and exploring their Jewish identity as young people. My findings below about his use of "shalom" to greet Guy contributes to my reasoning here. As to Guy's evidence about his complaint to his maths teacher, Ms Michaels, the respondents did not call Ms Michaels. The applicants made no Jones v Dunkel submissions about her. I draw no adverse inference because she was not called. However, I do accept Guy's evidence. For the reasons I have explained, he was a reliable witness. The respondents submitted the Court should not accept Guy's evidence on this matter "without any corroborating evidence". They did not develop why that should be so. This was a submission repeated for several of the applicants' witnesses. It is unclear what objective basis the submission has. I reject it. There is nothing inherently or objectively improbable or unreliable about Guy's evidence, and nothing about his circumstances at the time of this event, or when he was giving evidence, that would suggest the Court should not accept his account without corroboration. 673 I therefore find that, on two occasions, Guy Cohen complained about swastikas he observed in classrooms and on both occasions the swastikas were not removed, no inquiries or investigations were undertaken about who might have drawn them, and no broader, proactive and educative steps were taken by Mr Minack, the leadership cohort or BSC teachers to discourage such antisemitic graffiti. 674 Zack's evidence was that he saw swastikas around BSC from the start of his time there in year 7, but they increased. He described where he saw them, by reference to a map of the school that was in evidence as tab 1256 of volume 4 of the court book (school map). Most of the student witnesses and the applicants used the school map to indicate where they saw swastikas. When they were giving their evidence by reference to the school map I am satisfied they, including Zack, were describing what they saw from an active recollection. They had no difficulty in identifying the places where they saw the swastikas. As students, and unlike the teachers, these places were where they spent most of every day, five days a week. They were, I find, very familiar with these surroundings. 675 Zack's evidence was: I would see them around the D Rooms, under 18, I would see them a lot around the bike shed, and there was actually a little passageway that came off the bike shed that went through the back of the - I'm pretty sure the E classrooms and it went all the way back around - sorry - it went through the back of the - between the S rooms and the E rooms and on the left of the bike shed, all the way up to the D rooms, there was a little passageway where the classrooms weren't used and they were all throughout there. The windows were always broken through, it was graffitied etched onto walls. Yes. I was going to say which locations did you see them in specifically. Can you be - - -?---Yes. So especially around that area, because I guess it wasn't patrolled a lot by teachers. No one really went back there a lot, and yes, so it was just on walls and windows and chairs, tables. How were they marked?---Some were, like, graffitied with sharpies, some were etched on with, like, a pencil. Some looked to be etched in which knives but I'm not sure. But anything that they could use, any pen or anything. And across your time, how many swastikas did you see?---Throughout my whole years? Yes. Have - have you just been confining this to Year 7 or is this - - -?---This is general. Yes?---I would say around 50. 676 I accept this evidence. While his estimate of the total number of swastikas is lower than most of the other applicants and student witnesses, it is to be expected that students may have observed different numbers of swastikas. Indeed, in my assessment of the witnesses, some of the students were more intent on noting them, or being on the lookout for them, than others. Zack struck me as a young man who did his best through his time at BSC to ignore or put to one side the antisemitism he experienced, and tried not to focus on it. This is apparent from his answers about how seeing swastikas made him feel: And how did your - was that feeling you had constant throughout your time, or how did it change?---I feel like, over time, it became so normal that I almost got used to it, and so, after a while, it would affect me still, but would be more at the back of my head, because it was just a normal experience for me. How do you feel about that, looking back now that you're out of Brighton?---Can you repeat that, sorry? How do you feel about that, looking back now that you're out of Brighton?---I feel the same way, but I wish more people would feel like they have the voice to speak up. 677 Therefore, I accept Zack was giving his best recollection of the number of swastikas he saw, but I nevertheless accept that based on all of the evidence, the correct finding is that there were more than 50 swastikas at BSC across the period, and that it is more likely than not that there were more than a hundred. 678 Zack was another witness who, like many of the other student witnesses, stated that he could not recall seeing a swastika in a public place outside BSC. 679 Zack was cross-examined by senior counsel for the respondents along the same lines as other witnesses about his evidence on swastikas. I find he firmly, and persuasively, rejected the suggestion he was mistaken about the number he had seen. 680 I found Joel Kaplan's evidence about the number of swastikas he witnessed to be somewhat exaggerated at some points in his evidence. He began his descriptions of them by saying "[t]hey were pretty much everywhere", adding that in year 7: They were also pretty much everywhere as well on almost every surface. So what - well, give - be precise. Where were they?---Desks, tables, chairs, walls. Some in the floor. And did it change in terms of year 7 and 8? Was there differences?---No. There was still swastikas everywhere on the walls and desks, floors. 681 A little later, he attempted to put a number on what he had seen: upside of hundreds. Probably eight, nine hundred. 682 He was able to give evidence that he removed some of them himself: Did you - you didn't - - -?---I - I did remove a few myself. How did you do that?---I had a - a permanent marker that I carried with me. Sorry?---I would have a permanent marker - - - Okay?--- - - - and normally I would scribble them out or if they were scratched into something, I would scratch them out with scissors or something. It was just easier for me to remove them. 683 This kind of evidence is probative, I find, of Joel's active recollection of seeing large numbers of swastikas. This is specific evidence about specific actions he undertook himself to try and deal with them, and that he carried a permanent marker for the purpose of drawing over swastikas he came across. 684 While I generally found Joel's evidence to be honestly given, and I found his accounts of at least most of the specific incidents to be generally reliable, I find he was given to some exaggeration in his evidence, borne no doubt of how passionately he felt about the issues in this proceeding, and how angry he was about his experiences at BSC. His descriptions of how many swastikas he saw is a good example of this exaggeration. The way I consider it is appropriate to understand the evidence I have extracted above is that Joel saw a lot of swastikas, and he saw them in a lot of different places. I do not consider his estimate of seven to nine hundred is reliable. I do not consider his evidence that there were swastikas "everywhere" can be taken as literally as he may have intended it to be taken. 685 That said, I do accept Joel's evidence that he saw large numbers of swastikas over the relevant period, in a variety of locations. By reference to the school map, he was able to give descriptions of the locations of the swastikas he saw, including what was called the "N block" that was demolished in 2017: In the N block, they were on - on the walls, a lot of the classrooms. And the locker bay. This is the new map, so the building - the building has changed a bit, but in the old map, there was one long corridor down the centre of the building. There was often swastikas there. Who was that accessible to?---That was the year 7 corridor, but other year levels had classes to it. There was also teachers' offices there as well. 686 He continued his description by reference to places he referred to as the S block, P block, E block and D block, where he did maths in year 9: All right. And where did you see - what, if any, swastikas did you see there?---Often on the tables, and they had - the tables had little pockets in them that you could put your books. They were often inside those pockets as well. So just explain what are you talking about? Pockets?---So they had, like - like little cubbies in them. So they were a square table. They sat four, and they had somewhere just under the table where you could slide your books in during class, and they had swastikas. They also - some of them would lift up as well like the old fashioned desks, and there were swastikas under those as well. 687 Joel gave some examples of specific incidents. One was as follows: Okay. And what about Ms Sarikizis? Do you remember that incident?---Yes. So I was in - she was the substitute for one of my teachers. She was in the east building. I'm pretty sure the classroom was E101. We walked into class, everyone sat down and on - on the front of the class, there was a - like, a metal panel over - I think it was one of the gas valves or something because it was in the science building and on it was a big, red swastika made out of plasticine. It was probably 30 centimetres by 30 centimetres. It was - it was quite big and I reported it to Ms Sarikizis in front of class and she - instead of removing it, she told us how swastikas were - used to be a good thing and they used to be symbols of peace and she didn't take any action to remove it. So I had to take it down. How did that make you feel?---It made me feel quite bad. Quite, you know, alone. Isolated. Because not even a teacher would remove the swastikas quite obviously placed in the classroom. 688 Ms Sarikizis had a different recollection of this incident, and her evidence was that it took place in the art room. Her account of what occurred was also quite different. It did not involve her observing a swastika; and instead involved her walking into a class where the students were in the middle of an animated and heightened discussion about swastikas, and observing Joel - out of character, according to her - waving a piece of paper around and shouting that there was a swastika. Her evidence then concentrated on her attempts to settle the class down, and that she had said to Joel words to the effect 'Did you also know that it was an ancient symbol for victory?' and that, in substance this had further heightened Joel. Her evidence was that she did not see a swastika and thought it was a joke. 689 Ms Sarikizis was tested considerably in cross-examination about the reliability of her recollection, and whether indeed she had any active recollection or had been essentially prompted by the respondents' lawyers to give the evidence she had given. 690 Ms Sarikizis was quite uncertain, and unclear about her interactions with the respondents' lawyers, who she had interacted with and when and about what. Eventually she did appear to concede that the bulk of her evidence about the incident consisted of recollections that came back only after she had spoken to the respondents' lawyers: What I am trying to ascertain is the date. Mr Young said in court in cross-examination of Joel on 7 June: Ms Sarikizis will be giving evidence, and she will say that she does not recall that incident at all - what Joel was testifying about. So is it fair to say that your recollection now of whatever it is that you recall came after 7 June?---It came after. I didn't remember initially. So, in essence, your explanation for what you're remembering with Joel waving the paper is caused by the communication you've had in recent months?---Yes. 691 This is how she explained what had been put to Joel (that she did not recall any swastika incident) and why this varied from her sworn evidence. She gave the following evidence in examination-in-chief: Ms Sar[i]kizis, if you had your time again, what, if anything, would you have done differently in that situation?---In hindsight, I should have documented it. I should have documented it in my Chronicle. I should have reported it maybe to a coordinator. But as I said, his behaviour was unlike him, so I thought it was a joke. 692 She repeated this sentiment during cross-examination. Ms Sarikizis became quite upset during her evidence. She tended to look at the respondents' counsel, I find, apparently seeking reassurance and support. I have no confidence she had an active recollection of the incident at all. In my view she was reconstructing, and doing so after having been briefed on several occasions by the respondents' lawyers. I do not say that critically of the respondents' lawyers; but rather to explain why I consider her evidence is unreliable. I consider she was genuinely trying to piece together, in a reconstructive way, accounts put to her in briefing sessions with the respondents' lawyers, and fragments of her own memory, which I find was not a reliable memory about this incident. All that was combined with her obvious distress, and uncertainty about the consequences of what she was saying in her evidence. 693 Therefore, I do not accept Ms Sarikizis' account as reliable. By the same token, I am not persuaded by aspects of Joel's account. Doing the best I can on the evidence, I find it is more likely than not that: (a) Joel did see a swastika in a class being supervised or taught by Ms Sarikizis; (b) it was quite a large one, coloured red and stuck onto a panel in the classroom as Joel described; (c) Joel was heightened and upset when he complained about it in class to Ms Sarikizis; (d) there was some commotion in the classroom about the swastika; (e) Joel's behaviour was out of character as he was generally a quiet student; (f) Ms Sarikizis did not arrange for the swastika to be removed; (g) Ms Sarikizis said something about swastikas that was not negative, but tended to put their use in a positive light, which further heightened and upset Joel; and (h) Ms Sarikizis did not report the incident, or the swastika, no investigation was undertaken and no student was identified and disciplined for the display of the swastika. 694 While a single incident, the evidence about this incident is a good example of what was wrong in the environment at BSC at this time. First, it is clear evidence of a school environment in which students felt sufficiently free to create a display of a large swastika in a classroom. That in itself says something about the levels of tolerance for antisemitic behaviour, and something about the lack of inhibition felt by students in engaging in antisemitic conduct, including in a classroom. Next, the reaction of the teacher in charge of the class was a wholly inappropriate one. This incident occurred in 2019, that being the year Ms Sarikizis says she taught Joel. That was the year of Mr Minack's speech. By this stage, I find, there was a generally heightened atmosphere at BSC about the presence of swastikas around the school, and about antisemitic conduct, if for no other reason than by this time the complaints of the applicants and their families were relatively regular. 695 There is no evidence of any communications to staff from Mr Minack about swastikas and what staff should be doing about them. I find this was simply not an issue to which any attention was paid by Mr Minack, and staff were therefore not encouraged to take the issue seriously. That approach shows in Ms Sarikizis' response. She should have been outraged. She should have understood why Joel was outraged. She should have made it clear to the entire class that the graffiti of that kind was not acceptable under any circumstances, and was abhorrent. She certainly should not have said anything that sought to cast the clearly antisemitic use of a swastika in a positive light. But at this point, at BSC, there was no leadership from Mr Minack or his leadership group on this issue. As I explain elsewhere in these reasons, the Jewish students who were complaining, and their families, were treated as nuisances, as if it was they who were in the wrong, and their complaints were either ignored or not taken seriously. The evidence about this incident is a clear illustration of what a great deal of the evidence reveals. 696 Joel also gave evidence of sending at least two email complaints to BSC staff about swastikas he had seen. One was sent on 6 March 2019, not long before Mr Minack's speech, to Mali Lewis. Joel wrote: Today (6/3/19) in class (enrichment maths), Charlie [redacted] was saying very anti-Semitic comments like: "I don't think we should allow the Star of David and if I see one I will draw a swash sticker on it" and "Jews just use the holocaust as an excuse when anything happens" when I asked what he was drawing he said "swash sticker" see attached above (evience.m4a) with an audio recording[.] 697 The audio recording was in evidence and played in court. I accept this is Joel trying to provide as much 'proof' as possible to his teacher about the incident. I accept the recording bears out his email complaint. This was what he said about this incident: It made me feel, like, quite isolated. I know it sounds like I'm repeating the same words, but isolated and degraded. Because I went out and I had to - I had to get evidence before the teachers would even listen to it. And I sent them the evidence. I sent them proof of him saying it, and nothing came from it. Perhaps as a preliminary question: why did you choose, on this occasion, to send an email and a recording?---Because I've told the teachers multiple times about anti-Semitism happening, and they - they would ignore it. They wouldn't do anything about it. And I thought, you know, if I was able to get a recording then I could give it to the teachers, and the teachers had to do something. They couldn't say, "You know, we couldn't prove it." They would have it there. The evidence. Everything. 698 I accept that was how Joel felt, and in the circumstances his feelings were entirely justified. He was seen as a nuisance and a complainer, instead of the Mr Minack taking systemic action in response to a and worrying trend of other students engaging in antisemitic conduct, directly at Jewish students and in class, being taken as seriously as it should have been. 699 Joel was cross-examined on this incident: But in the email that you sent to Mr Astorino and Ms Lewis, you didn't say that, did you, that this thing has been going on - this kind of thing has been going on in this class before?---Well, it would be a waste of my words telling them stuff they already knew. And you didn't say anything along the lines of, you know, "Here's some evidence. Now do you finally believe me," did you?---Well, again, I was doing it out of desperation. I didn't really think of the exact wording as I was saying it. I wasn't as literate when I was in year 9 or year 10. Year 10. And you didn't say anything in the email about, "I've been complaining about this kind of thing for years," did you?---Again, I wasn't writing the email to prepare for a lawsuit; I was writing it - as you say, I sent it straight away. I didn't plan out what I was writing. I wasn't a lawyer. Don't have the amazing email-writing skills that you guys do. Just wrote it down and sent it off. But these are all things from your evidence this morning and from yesterday that, as you told her Honour, you feel very strongly about, don't you?---I do. And the only thing that you reported was this one thing that happened - and I'm not trying to diminish it, but this one thing that happened involving Charlie in this one class, isn't it?---It wasn't the only thing I reported. Well, I mean in that email?---In that email. Well, that's the only thing that I was sending them evidence about. 700 Again, the theme of this cross-examination was unrealistic, and undertaken with the benefit of hindsight. As Joel said, he was a year 11 student complaining about antisemitic conduct. He was not setting about to establish a forensic trail to lead to a trial occurring some four years later. He was not doing anything but, I find, desperately trying to make his teachers believe what he was saying, and do something about it. 701 Joel gave evidence about a second email he sent to Ms Frangoulis in 2020. Ms Frangoulis was the year 11 coordinator. Joel's evidence was that, at this time, he had started doing an elective subject at Holmesglen TAFE: And everyone there, the staff, the students, they were all very friendly. They were all very accepting of my religion. 702 However, at BSC, Joel's evidence was that the antisemitic conduct continued. The behaviour was especially targeted at his kippah: Physical. I know people ripped by kippah off, even girls, boys, people I knew, people I didn't know. I couldn't go get something from my locker without my head being touched. 703 Joel sent Ms Frangoulis a photo of a swastika drawn in the boys' bathroom, on the wall next to the sinks, which had been up for quite a few weeks before he reported it. His evidence was that nothing was done after he reported it. He was cross-examined about his evidence: In your email you didn't say anything like "there's hundreds more at the school," did you?---Again, I wasn't writing my emails to prepare for a future court case. I was writing them to point out the issue at hand which was the - - - Precisely, you were writing them to point out an issue with swastikas and you pointed out one, didn't you?---There was hundreds of swastikas, I previously informally reported. This swastika, not only did I actually have to take a photo of it for anything to be done, I was also told off for using my phone at school. Well, no, you had an exception to use your phone in class, didn't you?---I had my exception, but it was only in class, not outside of class. I was told that I shouldn't be using my phone outside of class. All right. Well, you didn't say to Ms Frangoulis, "There are hundreds more and I can show you," did you?---Well, she should - she was a teacher at the school, she could have very well looked around and seen them. You didn't say, "They're in every room in the school," something to that effect, did you?---Again, as her job, being the coordinator, it's her job to look after the - where we have our lockers. It's not - it shouldn't be my job to go around and police the swastikas. It is inherently her job as a teacher to be looking out for that. I shouldn't have to spoon-feeded them evidence like I had to do with the Jay [redacted] and finding who sent the email. It should have been - they should have looked after it, not me. 704 I reject the suggestion in the line of cross-examination that because there were only two emails sent by Joel, the Court should disbelieve his evidence about what he observed, and disbelieve that he complained verbally to teachers about what he observed. The suggestions put to Joel seek to apply an inappropriately forensic lens to the approach taken by an early year 11 student who was experiencing distress at the antisemitism he saw around him. 705 If the other suggestion in this line of cross-examination (which was not limited to Joel) is that the Court should not find any failures or omissions by Mr Minack, the leadership cohort at BSC and the teaching staff because there were no written complaints made with sufficient frequency to justify anything but isolated reactions to those individual written complaints when they were made, I reject that contention as well. Like the other applicants, when Joel complained he was not at this point constructing a forensic case against the school. He was a year 11 student in some distress due to the atmosphere at the school, trying to make his teachers take action about the antisemitism surrounding him. I accept his evidence and I reject the insinuations that either, first this was the only swastika Joel observed because it was the only one he reported, or second that because he did not respond on this occasion with a wider suite of allegations, his evidence about the presence of swastikas elsewhere, with nothing being done about them, should not be accepted. 706 Since there was a record of this particular complaint, the respondents did not dispute the fact of the complaint, and therefore did not dispute the presence of the swastika. Joel's evidence that the swastika had been there for some weeks was not challenged. I accept that evidence. Joel's response, extracted above, is an appropriate one. It was not his responsibility to document swastikas, or to monitor how many there were. These matters were the responsibility of Mr Minack, and his teaching and administrative staff. 707 It was not suggested to Joel in cross-examination that Ms Frangoulis took any action on receipt of the email referred to above. Ms Frangoulis was not called as a witness, although an outline had been filed and served. She is one of the witnesses about whom the applicants submit a Jones v Dunkel inference can be drawn, and I have accepted that submission. 708 Joel's evidence that nothing was done by Ms Frangoulis, or any other members of BSC staff (including Mr Minack), about his report - and photo - of a swastika stands unchallenged. I accept it. 709 Matt's evidence was, like Joel's, at times prone to some exaggeration. Like Joel, it was clear Matt feels terribly wronged by what happened to him at BSC, and of all the applicants he struck me as the most determined to bring Mr Minack and the teaching and other staff at BSC to account. At times, in my opinion, this led to his evidence becoming overly dogmatic. It also meant he was prepared to make his point with a level of exaggeration or emphasis that I do not consider constituted an active recollection of events, but more of a reconstruction, fuelled by his palpable sense of injustice. 710 That said, much of Matt's evidence I accept. In general, and I explain, I accept most of his evidence about the presence of swastikas around the school, his complaints about them and the failure of Mr Minack and the BSC staff to take adequate or appropriate action to remove them, and to proactively encourage BSC students to change their behaviour to reduce the levels of antisemitic conduct at the school. 711 This was Matt's description of where he saw swastikas in year 7: So year 7, I was only - the only buildings I was really in was the P block, which is 17. I was - I also attended a few classes in the library and in the east block, but that was only in E111 and E119, which was my science class and my art class. And in all - all of those, like, and I was also around the oval and that grassy area I spoke about before at lunchtime and there was swastikas at all of those locations. The most common ones in the - were in the P block, which were - they were either scratched into the surface of the table or on the edge of the - the tables were the most common ones and the edge, they were scratched in quite deeply, because it was - the tables were made out of timber, but they had a - like, a protective surface on the top, but on the edge it was exposed, so students would get scissors or something sharp and scratch it in there and also on chairs. We had grey plastic chairs. They would use whiteout or a black Sharpies to draw swastikas on them. And this is all in the P block, sorry. And then on - on the walls, there - they were white walls, but behind them were - there was - I don't know what it was, but it was black, so when you scratched the paint off, it came up black underneath it, so students would scratch in swastikas onto the walls and you could clearly see the black swastika. And is there anywhere else in year 7?---Yes. So in the library, a similar situation with the desks and not at the walls in the library at that time, because they had been doing - they had been making classrooms in the library, because, when they closed the north corridor, they we remaking classrooms. So they - all the - it was all renovating at that time. But in E111, again, they had - they had tall plastic stools and on the back of the stools they would use - students would use scissors and - and whiteout to scratch it in to the stools and also it had, like, a plastic, like, resin floor that they would scratch swastikas into. And then in the art class, they had unlimited things to draw swastikas with and they did it everywhere, students. Sorry. 712 And in years 8 and 9: They were all drawn, like, with the same sort of tools I just mentioned, but as the years got later there was more swastikas came up, even in the - I had more classes in the P block and in E111 and E119 and even in those rooms. 713 And on complaints he made: It's okay. What, if any, complaints did you make about them at that time?---I made complaints to the classroom teachers. I remember one being Mr Tran. And I also made complaints to Nathan Hutchins. And what did he do about it, if anything?---Nothing to my knowledge. 714 In terms of numbers (I infer, in year 7 and possibly year 8), Matt's evidence was: And how many are we talking about in year 7 or year 8 in that period of time approximately?---At that time, I wasn't in much of the school, I would say 80 to 130. Sorry, it's a bit rough. 715 Matt was taken back to the location of swastikas he saw later in his examination-in-chief, again by reference to the map of the school that was in evidence. Again, he gave a detailed description of where he saw swastikas, what they were drawn on and what they looked like. He described reporting what he saw to his year level coordinators - in year 8, this was Mr Nash. He explained why he stopped reporting them as much as time went on: Earlier on, it was more often. Earlier in year 8, it was more often, but as I saw nothing was being done, I - I stopped reporting the swastikas as much. 716 In terms of numbers, Matt's evidence about the numbers by year 9 was: How many swastikas are you talking about by year 9, roughly?---By year 9, probably 450. Sorry, by year 9, 450. So, I mean, how are you experiencing that sort of number?---I couldn't - I couldn't spend five minutes at the school without seeing a swastika. Inside the class, outside the class, going to the bathroom. Every corner I went, I was - I was seeing swastikas. If I was getting anti-Semitic abuse in class and I went to leave the class, I would go to the toilet to have a five-minute break, I couldn't have a break from the anti-Semitism, because wherever I went, I would see swastikas. Did you report these?---I remember reporting some in, specifically, D1 to Ms Trinh in my English class, but I didn't report many, because I had been reporting them last year and nothing happened. How visible - if you can be specific, which ones - how visible are they in the relevant areas?---I mean, for an example, in D1, they're on top of the tables; they're on the walls. There was three teachers in there. They were extremely visible. And this was in most classrooms. They were very visible. 717 He gave evidence of observing similar numbers in year 10 (2020), and again gave detailed descriptions of where he saw the swastikas, although he stopped attending BSC in March 2020. It will be recalled this was the commencement in Melbourne of restrictions and lockdowns arising from the COVID-19 pandemic. In terms of what he was seeing at this point in year 10, Matt's evidence was: So by the time you left, how many swastikas approximately had you seen?---I had seen 600 swastikas. 718 Matt then informed the Court he had forgotten some, and went back over his time at BSC and described other places where he had seen swastikas, and what they looked like. I accept that his memory had been revived by other aspects of this evidence and these observations that he had forgotten were genuine recollections. 719 As with many of the applicants, and student witnesses, Matt was asked to compare what he saw and experienced at BSC with his experiences after he left. He said: Since you left Brighton, how often do you see swastikas?---I have never seen a swastika since I've left, and I've been at - I went to Sandringham College for about a year and I went to Holmesglen Institute in Melbourne. 720 Matt was not challenged on this evidence, or the absolute nature of it. I accept it. I accept his evidence, and the considerable amount of other evidence consistent with this from the other applicants and student witnesses, establishes it is more likely than not that the manifestation of antisemitism at BSC was well out of the ordinary, and exceptional. This was not a problem every state high school in Melbourne was having. Indeed, the respondents did not seek to suggest this was the case. 721 I do not accept Matt's estimates absolutely. In cross-examination, Matt's evidence became somewhat exaggerated in an effort by him, I find, to get his point across when he felt under threat: Can I ask you some questions just about swastikas. In your evidence, I think you gave evidence that there was somewhere between 650 and 800 swastikas that you saw over your time at school; is that right?---I don't believe that's correct. No? What would you say, then, was the number?---I thought I said 600. Could we go to the transcript? That number, though, is just - I beg your pardon - is just based on your memory, isn't it?---Yes. I have a - quite a good photographic memory. Well, I've asked you some questions about other topics. Is it fair to say that if your memory is wrong about those topics that it's likely also to be wrong about what you observed of the swastikas?---I - I actually, if I was to estimate, I would say there's close to 1000 swastikas, but because I'm trying to get the most accurate as possible, that's why I said 600, because that's the amount I know was there; that was what I was sure was the amount. 722 However, I do accept there were large numbers of swastikas over the relevant period at BSC, and that Matt was likely to have counted well over a hundred during his time there. I find of all the applicants, and student witnesses, it was Matt who was most 'on the lookout' for swastikas, especially in year 9. He was outraged, felt disbelieved, and was intent on finding as many as he could. This behaviour is entirely understandable in the circumstances. It is a shame his intensity in finding swastikas was not shared by BSC staff. 723 I accept Matt did complain to his teachers, to year level coordinators and on occasion to Mr Minack about the swastika graffiti. For example, in 2019, Matt says that he reported incidents to Ms Trinh and Mr Lynch-Wells in which a student, Elias, drew a swastika on a piece of paper and threw the paper at Matt. He says that no punishment was given relating to the incidents. Both Ms Trinh and Mr Lynch-Wells gave evidence that they do not recall any such incidents being reported. That is understandable but does not affect my satisfaction that Matt made these reports. My reasons are the same as for the other applicants and student witnesses. 724 The respondents sought to connect Matt's regular behaviour difficulties, and the amount of time he was pulled up for them, with a failure on those occasions to complain. Hence the following cross-examination: Just to be clear, Matt, I understand from the answer that you've given that you mean that you did not report that anti-Semitic conduct to those teachers; is that right?---Not - no, sorry, not while they were telling me off or - or - or speaking to me about my behaviour. I did other times to Ms Trinh and Ms Hart, but not while they were speaking to me about my behaviour. 725 Matt's explanation makes perfect sense. He repeated it later and I accept what he said there also. The cross-examination was, once again, unrealistic. A teenage student being pulled up for his behaviour is unlikely, and certainly unlikely on a regular basis, to add to the trouble he is in by repeating complaints about antisemitism and antisemitic behaviour. It simply is not realistic. Indeed, that was how Matt explained it too: Why do you say "no"?---Because - I explained myself just before. If I was being spoken to about my behaviour, they would not tolerate me mentioning any other student's behaviour because they would say, "This is about you, not other students." And I - but I reported it to Ms Trinh at other times. 726 The evidence from the applicants' family members who complained (such as Ms Abadee) was not direct evidence based on their observations, and I give it no weight in reaching my conclusion on the prevalence of swastika graffiti at BSC.

Conclusions on the evidence of the applicants and their families 727 There are three main themes to be drawn from the evidence of the applicants and their families, as with the other student witnesses. First, the very large number of swastikas apparent in and around the classrooms, locker areas and other school buildings at BSC over the relevant period. Second, that complaints were made about them, more complaints - I find - than BSC's records disclose. I favour the evidence of the applicants, their families and the student witnesses in this respect. I find Mr Minack was not the principal recipient of complaints; but his staff, including in particular the year level coordinators, did receive complaints, and I find the complaints were numerous. It is not possible to make findings about the precise timing of the complaints, or how many. The respondents' case appeared to be that without that level of precision, no findings in favour of the applicants on this matter could be made. 728 I disagree. The Court is able to be satisfied it is more likely than not that each of the applicants, and the other student witnesses who gave this evidence, complained to their teachers and did so on numerous occasions. The evidence was direct, genuinely recollected and not challenged in cross-examination in any material way other than for lack of precision. It is also plausible. Teenage school students, living very much in the moment as they do, are mostly likely to speak to a teacher and convey what they need to, in the moment. Teachers being in a position of authority over them, it is reasonable for students to expect that is all they need to do. I find that, at least in the early stages of this whole narrative, that was the expectation the applicants, the other student witnesses and their families had. That expectation was by and large not fulfilled. 729 Third, that no adequate action was taken by Mr Minack, the BSC leadership cohort or the BSC teaching staff. That is so even on occasions where there was a written complaint, and a photo (see Joel's evidence). 730 As the Chronicle entries show, for conduct deemed serious by the BSC staff (demonstrated by the colour red on the Chronicle records), there was an investigation process. However, one of the key points in the applicants' case is that their complaints were not taken seriously, and were not addressed. I find that is what happened, on numerous occasions.

The evidence of Mr Minack, the BSC staff and the leadership cohort 731 The respondents' case in relation to the swastika graffiti allegations was very much based on identifying whether there had been a recorded complaint, and then inviting the Court to assess how that complaint had been dealt with. I have explained why I consider that is an incomplete and inappropriate approach to the applicants' RDA s 9 case on swastikas. 732 Nevertheless, in this section I adopt the distinction made by the respondents, and deal with the specific swastika complaints said by the applicants and student witnesses to have been made, and the respondents' evidence about them, through Mr Minack, the BSC staff and the leadership cohort. I then turn to address what the respondents' evidence was about the presence of swastikas around the school and the reaction of BSC staff to them. 733 On the specific swastika complaints, I make the following findings. Joel's complaint to Ms Sarikizis I have dealt with in detail above. I do not accept Ms Sarikizis' account, or her explanations for the reasons I have expressed. I have also made findings about the two specific complaints made by Guy Cohen. Finally, I have accepted Joel's evidence about his complaint to Ms Frangoulis, and no action being taken. 734 The evidence discloses that Mr Minack did take prompt action to contact Bayside City Council and report the swastikas on the footpath that Corey Fooks had alerted him to. But the evidence does not disclose what steps Mr Minack took to investigate whether the culprits came from BSC, or whether there was a connection between that graffiti and the graffiti around the school (at whatever level the latter was, even on the evidence the respondents ultimately accepted, there was a considerable amount). And Corey's evidence was that only one was removed. 735 Mr Minack conceded he never went out and inspected the footpath. Although that is a small part of Mr Minack's evidence, it is revealing, I find. The swastikas were close to the BSC grounds. It was a Jewish BSC student who had reported them. Mr Minack had notified the Council. Based on Mr Minack's overall evidence, I find that if - for example - what had been drawn on the footpath was the word "faggot", it is more likely than not, Mr Minack would have taken a personal interest in ensuring the graffiti was removed, and is likely to have conducted some kind of inquiry into whether BSC students were responsible for drawing it, and is likely to have said something at assemblies about it. In other words, I find he would have likely been proactive in his response, seeking to change and influence student behaviour in the future. I find Mr Minack was less concerned with swastika graffiti. I find he was not as troubled by it. I refer to my more general findings about Mr Minack's evidence at [325]-[342]. 736 There were a number of specific complaints made by Matt which I deal with in the section on Matt's allegations. I find the responses to these complaints were inadequate, tended to focus on Matt's behaviour rather than the antisemitism, had no proactive component or follow-up, and failed to draw any systemic connections between incidents. There was a real discounting and diminishing of the seriousness of this conduct and its effect on Jewish students. That tone was set by Mr Minack. 737 In the applicants' evidence table about swastikas, the following specific incidents or complaints are recorded: (a) On 30 August 2017, Rebecca McMahon sent an email to Lee Angelidis, copying Jan Chan, referring to "the fact that people had drawn swastikas on … tables". In her evidence-in-chief, Ms McMahon stated that "there had been a fair amount of graffiti - there had been a reasonable amount of graffiti", including swastikas, on tables while setting up for an assembly. Mr Chan indicated in his evidence that he did not recall the email. (b) On 19 August 2020, Mr Minack sent an email to Louisa Dickinson, stating that "[a] teacher did report that [Jack] had drawn a swastika on his leg … she got him to wash it off immediately, and counselled him on the inappropriateness of the act". The email does not record any punishment having been given to Jack relating to the incident. There was a Chronicle record of this incident, but no punishment was recorded. (c) On 26 February 2018, Zoe Veling emailed Pat Gargano to state that "[s]ome of the year 7 boys have alerted me to the fact that there are some Swastikas graffitied in the boys' bathroom". On the same day, Mr Gargano responded to indicate he would look into this. In cross-examination, Mr Minack indicated he had no recollection of the incident, or of whether he was briefed on it or whether there were any sanctions or investigations in relation to the incident. (d) On 2 March 2018, Adrianna Welniak, who was a year 11 assistant student manager in 2018, recorded in a Compass entry that Jovan, a student, drew a large swastika on the back of his hand in a class on Nazi ideology. The Compass entry records that Ms Welniak told Jovan to wash the swastika off, and that she explained the seriousness of his action to him. It does not record any punishment being given in relation to the incident. In cross-examination, Kaye Sentry indicated she did not recall the incident. (e) On 29 August 2018, Harry Dunsby emailed Mali Lewis and Amedeo Astorino, reporting that Alex T had drawn a swastika on his arm and written "Fuhrer" on his knuckles. No evidence of a record of the incident was given, and no record of any punishment relating to the incident was shown. Ms Lewis, when shown the email in examination-in-chief, did not recall what occurred following the report. In cross-examination, she again stated "I can't recall" when asked if any punishment was given to Alex T in relation to the incident. In cross-examination, Ms Sentry indicated she did not recall the email being brought to her attention, but agreed that "it probably should have" been. (f) On 24 October 2018, Ms Lewis recorded a Compass entry for Alex T and Finlay, in which she recorded that Alex T, Finlay and another student named Luka were disruptive in class, including drawing a swastika on Alex T's face. The Compass entry records that all three students were kept behind after school for 15 minutes "to discuss their disruptive, offensive and inappropriate behaviour". In cross-examination, Mali Lewis accepted that to her knowledge, no further punishment was given in relation to the incident, and that she should have the students what the cross-examiner described as "a proper punishment", and that this should potentially have included a suspension. In cross-examination, Ms Sentry also accepted that a suspension may have been appropriate. (g) On 24 March 2019, a teacher, Amanda Hebbard, recorded a Compass entry about seeing Jay and Harrison playing a game of tic tac toe with swastikas in a book. A comment added by Ms Hebbard a few minutes after the Chronicle entry was initially made indicates that "[t]he book was given to AST at the end of the day". The Chronicle entry is marked with a red rating. Ms Lewis and Ms Sentry gave evidence that "AST" is a reference to Amedeo Astorino. No description of any punishment is recorded in the Compass entry. In cross-examination, Ms Lewis indicated she did not recall if she was made aware of the incident, but stated that it should have been escalated. She indicated in her evidence that the students should have been given detentions, if not suspensions. Ms Sentry in cross-examination stated she did not recall the incident being escalated to her, but agreed that it "[p]robably" should have been. She indicated the students "[p]erhaps" should have been suspended. (h) On 11 November 2019, a teacher, Alla Levitt, sent an email to Mr Minack, copying Mr Gargano, Ms Angelidis and Ms Sentry, stating "[t]his swastika was found on one of the back tables in E109", and attaching a photo of a swastika on a desk. Mr Gargano sent a reply email to Ms Levitt shortly after, indicating Ms Levitt should ask Poppi to remove the swastika. Poppi was a lab assistant at BSC. Ms Angelidis stated she did not recall receiving the email. Ms Sentry gave evidence that the swastika was removed. She agreed that the email was addressed to "the entire leadership team", but stated that she was not aware of any investigation or punishment relating to the incident. (i) On 27 November 2019, a Jewish student named Gavi Aleksenitser sent an email to Mr Minack stating that "I went to the bathroom next to E117 and when I walked into the bathroom there was a wall with swastikas all over it". Mr Minack replied to the email shortly after, stating that the wall would be painted over the same day. Apparently that was all that occurred. It should be noted that November 2019 was the time at which Zack was experiencing violent antisemitic bullying, and Ms Snelling was writing directly to Mr Minack about it. (j) On 10 February 2020, Ms McMahon recorded in a Chronicle entry that a student, Jack, drew two swastikas on his leg, and she told him this was inappropriate and to remove them. The entry was marked with a red rating. The Chronicle entry indicates that Ms McMahon told Jack it was inappropriate and to remove it, but no punishment was recorded in the entry. In cross-examination, Ms McMahon indicated she was not aware of any punishment after Jack being told to remove the swastikas. This was the second reported occasion involving Jack. (k) On 13 July 2020, Ms McMahon emailed Mr Minack. In her email, she noted an incident "in Year 9" in which Melody, another student, made sausage rolls in food technology class with swastikas carved into them, and posted them on social media. Ms McMahon's notes indicate "Jan and I followed Lee's advice at the time and made it extremely clear it wasn't appropriate and also let her Dad know". Again, there was no punishment of the student, and no systemic steps taken. (l) On 26 July 2020, Ms Frangoulis sent an email to Mr Minack, in which she referred to the removal of swastikas in a bathroom after, it appears, Joel Kaplan complained about it. The email refers to her recollection that the graffiti was removed, and CCTV footage was checked, in relation to the incident. Mr Minack took no action. (m) On 19 August 2020, in an email she sent to Mr Minack and Mr Chan, Ms McMahon referenced an incident in which she located a swastika on a table in the D3 building after school one day pursuant to a general check, rather than pursuant to a report, and she indicated that she cleaned it off straight away. In cross-examination, it was put to Ms McMahon that Mr Minack had told her to put "one swastika" in this email, and that she was "trying to protect the school against the real numbers coming out". She rejected those suggestions. I make no finding of fact on this suggestion by the applicants. The relevant point again is Mr Minack's failure to take any proactive or systemic action. (n) On 17 November 2020, Emma Holmes recorded an entry on Chronicle for an incident between a student named Lachlan and another student, during the course of which Ms Holmes saw that Lachlan had images of Hitler and a swastika on his computer. The entry indicates that Ms Holmes asked Lachlan to delete the images, and that "neither student considered that there was an issue with their behaviour". The entry does not record any punishment being given. (o) On 27 November 2020, Ms Frangoulis sent an email to Mr Minack, in which she stated "[a]s instructed I am just letting you know whilst cleaning the lockers this morning, there is a swastika symbol in dark texta inside" one of the lockers, and asking for it to be removed. Shortly after, Mr Minack emailed Sal Gargano, asking for this to be attended to urgently. In examination-in-chief, Mr Minack gave evidence that the locker was cleaned. Nothing further was done. (p) On 4 December 2020, Ms McMahon recorded an incident on Chronicle as follows: ~Overview: Possible inappropriate drawings (just documenting) ~Details: I'm just documenting so it's on the record: in class today, during a practical I overheard Omkara say to his group "I'm going to draw (muffled)" and another boy (Riley I think) said loudly "but you're Jewish." I went to the group and saw that Omkara had started to draw what looked like the start of a swastika on his plaster cast (I cannot definitely say that this is what was going to be drawn though). When I was there he quickly scribbled it out. I kept an eye on him and didn't see anything else, but feel it's worth documenting in case anything else comes up of this nature with Omkara. In cross-examination, Ms McMahon did not dispute that there was no punishment given in relation to the incident, though noted "[w]ell, it wasn't a clear swastika. It was only the first part. It was - I couldn't have any evidence that he definitely was drawing a swastika". This was one of the few instances where I was satisfied a BSC teacher had a genuine active recollection of an incident about swastikas, although Ms McMahon also clearly had some memory of the group of swastikas she had found in March 2018. One again, the approach taken was to let the issue go away. That is a reflection on Mr Minack's poor leadership on these matters. 738 There was generally little or no contradictory evidence from the respondents about these incidents. I accept those incidents occurred and should be added to the overall picture about the extent of swastika graffiti at BSC during the relevant period, and the lack of responses, or adequate responses, to the continued creation of such graffiti. 739 To this list must be added an incident involving Ms McMahon, over which considerable time was spent with Ms McMahon, with Mr Minack and with other witnesses. I make some more detailed findings about this incident because of the focus it had at trial, and because of what I consider it reveals about the attitude of BSC teachers, the leadership cohort and Mr Minack. The respondents did not make any written submissions about this incident, although briefly touched on the incident in oral submissions. The evidence about Ms McMahon's observations (and various versions of that evidence) featured prominently in the applicants' cross-examination of many of the respondents' witnesses, and then in their final submissions, principally to support their submission that the overall number of swastikas at BSC during the relevant period was far higher than Mr Minack's estimate of 40 to 48. 740 There was no dispute that, on 19 March 2018, Ms McMahon sent an email to a range of BSC staff (many of whom were witnesses in this proceeding) about swastikas she had observed in a classroom. This is what the email said: Hi All, I was wondering if it was possible for the English Divs to do us a favour. I was going through the Disco Building today and I have noticed a number of Swastikas that have been drawn on the tables-I lost count after 11. I do intend to address it at our next assembly, but I also remember that last year, when we had this sort of issue during the study of the text, the English teachers also supported what Jan and I were trying to stop by addressing this sort of behaviour in class. If my memory is correct, there was sort of a speech prepared that all classes read out? I was wondering if it would be possible to do the same again? Also, I have removed as many of them as I found. If I missed any, please let me know and I will clean them off ASAP. Thanks for your help, Rebecca McMahon Year 9 Student Co-Manager 741 It was also not in dispute that Ms McMahon's reference in this email to "the text" was a reference to the text Maus, though the parties differed as to what the "issue" was: the respondents suggested it related to an incident in 2017 involving a female Jewish student who was the target of antisemitic harassment, whereas the applicants suggested it related to swastika graffiti. In cross-examination, Ms McMahon gave the following evidence: In that email, you refer to noticing numerous swastikas. You said you lost count after 11?---Mmm. So that must mean there were more than 11 swastikas that you saw?---There were more than 11, but I don't recall seeing many more than that. So it could have been 14, 16?---Yes. It could have been. Could be 20?---It could have been, but it - it wouldn't have been much more than that. It - - - So it was about 16, was it?---Yes, 16-ish - yes, 16-ish. Possibly more?---It's possible that it's more but it would - it wasn't - it wasn't significant numbers. 16 is pretty significant, isn't it?---Yes, okay, so not - not, like - not - 16 is - and any of them are wrong, but it wasn't, say, 50 or 100 or anything like that. It wouldn't have been any more than 20. Okay. So no more than 20 on one single occasion?---Yes. That's a fairly large number, isn't it?---Yes. It's a - it's basically double 11, just about?---Yes. 742 When this evidence was subsequently sought to be used by the applicants' counsel in cross-examining other witnesses, counsel was not always accurate or careful about how he put Ms McMahon's evidence to other witnesses. Her evidence is of some importance in the applicants' swastika case, but must be kept in its proper context. 743 I find: (a) The contemporaneous record in Ms McMahon's email suggests there were at least 11 swastikas that she observed. (b) The way she expressed what she had seen suggested she saw more than 11. (c) Her evidence several years after the event was that there may have been around 16, but not much more than that. (d) Her higher estimate of 20 was a number she was somewhat badgered into agreeing to by counsel and is not reliable. (e) Ms McMahon agreed the number she saw on this one occasion was a fairly large number. 744 Ms McMahon also gave this evidence: You would agree that the presence of about 20 swastikas in a class would be offensive and distressing to Jewish children. You would agree with that, wouldn't you?---I would agree with that, yes. And you would also agree that it offends the school's anti-bullying and harassment policy?---Yes. Despite it being so serious, you did not inform the principal about this event, did you?---No. 745 Ms McMahon asserted at one point in cross-examination that she had told Ms Angelidis, the vice principal, about these swastikas. I do not accept that evidence. I consider it is a reconstruction, and a defensive assertion from the witness box. Ms Angelidis did not recall it. In a sense, however, even if it is true, it does not improve the situation for the respondents but makes it worse. If Ms Angelidis as vice principal was notified about what on any view was a large collection of swastika graffiti in a single classroom, the evidence does not disclose that she took any action at all about it. 746 Ms McMahon described herself as being "roadblocked" in identifying who the perpetrators of the graffiti were. She asserted trying to find out who was sitting at desks where they were drawn would have taken "significant detail". When pressed, her evidence was that: there's a range of different issues that we need to respond to, and in the grand scheme of things, it was awful behaviour, but the ability for us to investigate was limited and there are other concerns that student managers typically also need to deal with. 747 I find that by this evidence she did not consider the graffiti a sufficiently serious issue to spend much more time on. That was despite Mali Lewis, in an email, encouraging Ms McMahon to investigate further, saying there was "virtually … a seating plan" for the classroom. Ms McMahon's response essentially rejected Ms Lewis' attempt to help her find out who as responsible. 748 Ms McMahon's attitude is consistent with the attitude of many other BSC teachers during the relevant period, and consistent with the attitude of Mr Minack and the leadership cohort. In her evidence-in-chief Ms McMahon had referred to seeing graffiti of penises. In cross-examination she denied attributing the same level of seriousness to that kind of graffiti as to swastikas, but I do not believe her. I find that she did see the graffiti as in the same category. Her evidence considered as a whole suggests to me that she saw all graffiti as much the same, and saw sexually inappropriate graffiti as no different to swastikas. She did not pause to reflect on the effect of swastika graffiti on Jewish students. She was not encouraged by Mr Minack, the leadership cohort or her colleagues to see it any differently. Her attitude, as revealed in the evidence, reflects in my opinion the attitude across the teaching and leadership staff at BSC during the relevant period. 749 Ms Lewis and Ms Goldstone were also cross-examined about the email sent to Ms McMahon encouraging her to investigate the swastika graffiti. I did not find their evidence persuasive either. In examination-in-chief, Ms Goldstone could not recall any details. In cross-examination she answered most questions about this by saying "I don't recall". Ms Lewis in examination-in-chief also could not recall many details about how Ms McMahon's report was followed up. She then gave this evidence in cross-examination: But looking at Ms McMahon's email, it's clear no investigation was done, was it? And I will tell you that Ms McMahon in evidence said she did not recall asking you for your seating plan, as you had indicated?---I don't recall after this. You would agree that there are no records of any investigation?---Yes. No names were ascertained as perpetrators or suspects?---Yes. And no punishments were given, obviously?---Not to my knowledge. But you would agree an investigation should have happened?---Yes, I do. And they should have been interrogated. Students should have been interrogated, should they?---Yes. I think so. And punished?---Yes. And it was entirely possible to do that, wasn't it?---I believe so. … MR BUTT: You did not take any further action after this email, did you?---I think I - we would have, because we - you can see in the email that I said we were having a discussion with the students, but there's no documentation of it, so I don't know. And you're not in a position to say anything that you actually did after this, are you?---No, I'm not. And I'm suggesting that if it was treated as more serious, you would have done more, and that's fair, isn't it?---Yes. And that was it. My question - thank you. I don't need that. That was in relation to the 2018 swastikas?---Mmm. But it's fair to say that you never investigated anyone in relation to drawing swastikas during 2017 to 2020 at all, did you?---No. That's no, you agree?---Yes. I agree Sorry. I just - it gets - - -?---Sorry. It gets confusing. There's no records of that, are there?---I don't think so, no. Is it your position that you tried to remove swastikas?---I don't think so, no. 750 Ms Lewis gave truthful evidence here, I find. Although she was obviously nervous, and smiling rather nervously, she appeared to me to be a careful and thoughtful witness, who made appropriate concessions, such as the ones set out above. 751 Ms McMahon's evidence was that after she discovered the swastikas in the classroom, she prepared some notes for a talk to the entire year 8 year level. Her notes (on a page dated 12 March 2018) were tendered and she identified them. In examination-in-chief she did not believe 12 March was the date she wrote the entry. Relevantly, those notes read: Assembly info / talking points • Graffiti - consequences for continuation - insensitive / racist / anti-semetic not tolerated (consequence worse) • Uniform - the usual • Signing in • Using correct doors • Camp - share info 752 Her evidence about when she gave this talk was: It was a day or two after the email on the 19th at most. It could - actually, we normally did it on a Wednesday morning, so it would have been the Wednesday morning after. 753 In cross-examination, Ms McMahon was challenged about whether she gave such a talk. It was put to her, accurately, that BSC student witnesses said they had not recalled such a talk - Notis Korkoneas, Howard Zezula and Joel being mentioned. She was challenged on the date discrepancy between her notes and the date she nominated for the assembly speech - being a week later. It was suggested to her she falsified the notes. 754 I found Ms McMahon a difficult witness to assess. She was clearly very nervous, and spoke quickly, becoming defensive fairly quickly in her evidence-in-chief, with long explanations that did not necessarily make much sense and were somewhat garbled - her explanation about why she wrote notes pertaining to a talk she gave within one or two days of 19 March 2018, on a page in her diary labelled 12 March 2018, being but one example. 755 In cross-examination I found she became especially defensive, and reverted to not recalling very much when specific questions were asked. In contrast, at points in examination-in-chief she appeared to volunteer information as if she had a good recollection - again, her long explanation about the 12 March date being an example. 756 I am not persuaded she was a reliable witness on the matters I have set out above. I find she was more likely to have been reconstructing memories from her notes. I did not find her explanation about the 12 March date persuasive. The other pages of her notes around 12 March were not tendered to corroborate her explanation that her diary was so full she needed to write on any page she could find. No other examples of her doing this were identified. 757 I find it is more likely than not that her diary entry on 12 March related to a different incident of antisemitic behaviour, one that she now cannot recall. What I find this entry tends to support is the applicants' case that teachers were likely to have noted antisemitic graffiti around the school. This entry, and the later email of 19 March, reveal that Ms McMahon was one teacher who did so. 758 I accept it is possible that Ms McMahon spoke at year level assemblies about antisemitic behaviour at BSC, and in general terms sought to discourage it. Her diary note confirms this is likely, but I do not accept there is a sufficiently probative link between her discovery of a relatively large number of swastikas in one classroom and any follow up conduct by her, or by Mr Minack or by any of the leadership cohort. 759 What the diary note shows, by its reference to uniforms and other matters, is that when it was mentioned, antisemitic conduct was just one of longer list of matters raised at year level assemblies, without any particular prominence and certainly not part of any specific strategy to reduce and address its prevalence, or to provide BSC students with some education and insight into how hurtful and destructive such behaviour was. 760 Ms McMahon also stated there had been a talk given in 2017, after another young student was the victim of antisemitic bullying. Ms McMahon described this in her evidence: we spoke to Lee Angelidis about the incident, and we - we - we organised for the English teachers to make a speech that reinforced that they should - that this behaviour was completely inappropriate, and if they see anything, they should report it either directly to us or via email if they wanted to be discreet. 761 She was unable to confirm who it was given to, or how many English teachers gave it, save for hearing it being given directly to one class, because her office was adjacent: So I - I remember hearing a - the speech being given. I don't remember the exact content, but it was - the idea being that - what I do remember was that the idea of being a bystander is not okay, and that if they see anything, that they should report it. 762 I find that this, and the diary entry on 12 March, are two of the few positive pieces of evidence about anything being said or done to attempt to combat antisemitic behaviour by students at BSC during the relevant period. They are all the more conspicuous because of their isolation. This is part of the reason I am comfortable inferring a different attitude was taken to antisemitic behaviour. Otherwise, I find, it is more likely than not that there would be far more records in teachers' diaries, in the diaries of the leadership cohort and of Mr Minack, and in other forms of school records, to demonstrate contemporaneously what proactive and educative steps were taken to impress upon students that this kind of behaviour was unacceptable and would be called out and punished. 763 It is notable, for example, that after the discovery by Ms McMahon of what on any view was a large number of swastikas in a classroom, there is still no record or evidence of any strategy being devised to address this behaviour. None at all. 764 The evidence of the remainder of the leadership cohort at BSC did not persuade me that any of them took the issue of antisemitic graffiti (or antisemitic behaviour) especially seriously, and certainly not as seriously as they took incidents of homophobic behaviours. 765 As I find elsewhere, Ms Angelidis had no real recollection of any events during the relevant period. She gave an explanation for this, which at one level is persuasive - namely that she attempted to separate her work life and her personal life, and to deal with matters in her working life at BSC, then put them behind her. In examination-in-chief, Ms Angelidis' evidence was as follows: on numerous occasions you've said you don't recall the incidents. Are you able to explain to the court why it is that you can't recall?---I guess in the - in the nature of my job, I have - the way I deal with things is to deal with the situation at hand at that point in time and then I move on. I am not the best at retaining. I don't recall. I just try to deal with the situation at hand and move on because I deal with so many things on an ongoing basis. It's the way I personally manage my job. 766 And in cross-examination, she stated: Yes. I do not, as I mentioned earlier, retain a lot of what I need to do in my job. I deal with things, and then put it to the side and I move forward. That's how I manage everything in my position. 767 I accept that may have been Ms Angelidis' general strategy to cope with what was on any view probably a stressful and demanding leadership position at BSC. Other members of the leadership cohort did not give any such explanation. Mr Minack certainly did not. I accept teachers in a busy and demanding secondary school may find a variety of coping strategies, and what Ms Angelidis described may be one of them. My difficulty with her evidence is thus two fold. Firstly, her strategy suggests her evidence is not reliable at all, and that she has no active recollection of very much, but rather reconstructs from her notes. 768 She also gave the following evidence in cross-examination: And at the best of times, I don't particularly recall specific details unless I have the notes in front of me. 769 There were times during her evidence where it was apparent she was doing this because she looked at notes she was referred to and said she "would have" then taken particular action. She was, I find speculating when she gave answers in this way. For example: Could I ask that you be shown tab 500, please. Your - yes, sorry. Yes. You will see this is an email from you, 2 April 2019, to Amadeo Astorino and Mali Lewis, the year level coordinators. And - or just take a moment to read that email?---Yes. Thank you. From there, the email chain goes on and various other people become involved. Ms Lewis takes a statement from Joel and it's all then forwarded on to you. Having seen that email, firstly, does that assist with your recollection of the incident?---Not specifically, no. What involvement did you have in the investigation of it or decisions about consequences?---All I can say is with regards to process, I would have asked the relevant student managers to interview the students involved, and then we would have come back and - and made a decision about the consequences, as well as having teachers document what they heard or what they had observed. … And that's the truth, it was not actually safe for Zack to return, isn't it?---We would have put processes in place. But again, we couldn't guarantee his safety. Well, you didn't - well, you say you would have put processes in place, but you didn't actually communicate to her that anything was being put in place?---No. 770 The only substantive answer Ms Angelidis gave about what she recalled about swastika graffiti was the following: If the odd swastika did appear, which it had, then we endeavoured to remove it immediately, but like any graffiti, it wasn't endemic, it was whenever it appeared, we would remove it. 771 I do not accept this evidence. I find Ms Angelidis was attempting to diminish the general level of graffiti around BSC, and in particular swastika graffiti. In any event, based on the remainder of her evidence, she has no active recollection about such matters. I find this evidence is reconstruction, with hindsight, and is nothing more than suggestive of what Ms Angelidis now would like to think occurred on every occasion. The actual situation was, based on the evidence the Court heard in this proceeding, quite different. 772 Mr Gargano's evidence is probative in support of the proposition that there was no discussion at the leadership cohort level about antisemitic graffiti, or antisemitic behaviour. Contrary to the respondents' case, I find this was not because such behaviour or graffiti was not occurring. His evidence was that: All important things get discussed almost daily. 773 Mr Gargano repeated this in various ways throughout his evidence; in other words, that he had a close, daily working relationship with Mr Minack. Yet Mr Gargano could give no evidence at all of any discussion with Mr Minack about swastikas. He was adamant it was, during the relevant period, important to remove any swastika graffiti as soon as it was discovered. The earlier BSC records in evidence to which I have referred suggest this was at least sometimes what occurred. The applicants' evidence satisfies me swastikas were not always removed promptly. Yet he could give no evidence about any discussions with Mr Minack on this topic. Mr Gargano was, I find, a relatively straightforward witness with a reasonable active recollection of key events during the relevant period. He was clear about what he could recall and what he could not. The absence of any discussions on this topic with Mr Minack appeared to be something Mr Gargano was fairly sure about: Well, if you can't recall that, and you can't - so you can recall what Mr Minack told you about swastikas?---Definitely not. 774 He readily accepted he did not know the true or exact number of swastikas at BSC over the relevant period. His evidence was that he recalled seeing about half a dozen. After some impermissibly broad cross-examination, he then gave more precise evidence about the scope of his recollection of half a dozen or so: So if Sal [being a reference to the late Sal Gargano, Mr Gargano's brother and formerly the groundskeeper at BSC] told you about them you didn't really - you're talking about the ones you physically went out?---Yes. And it wasn't your practice when you were informed to go out and look?---No. My practice is normally to get it off as soon as we can - - - Yes?--- - - - by engaging the - Sal to go and do it or Lee. And your practice was not to investigate, was it?---No. It should have been, shouldn't it?---No. It should have been to refer to somebody to investigate, shouldn't it?---No. So it was acceptable to have swastikas with no investigations?---From my point of view, any of the swastikas we had to get rid of straightaway and that's what my job was to do. And so you say that if - is it your evidence that if swastikas keep coming up every year, but they're removed quickly, that that is sufficient?---At the time that was the case, yes. 775 Mr Gargano then agreed he assumed that the student managers (ie year level coordinators) conducted any investigations. 776 Mr Gargano's evidence is probative of the reactive and narrow approach to antisemitic student behaviour taken by BSC during the relevant period. 777 Ms Podbury's evidence was similar about the approach taken to student graffiti: There's always graffiti in a school. Yes. There would have been graffiti and we got it off fast. 778 In cross-examination, Ms Podbury said she found the numbers of swastikas given in the student evidence to be "very hard to believe" because "my staff would never have put up with it". She claimed there should be maintenance records of swastika graffiti when it was cleaned, but volunteered that "a lot of stuff [ie paper records] went missing" when parts of the school were demolished around 2016 or 2017, adding that "the whole school has virtually been renewed, except the art rooms and the library". 779 Ms Podbury denied having ever been told about the presence of swastika graffiti by any other member of staff, including Mr Minack and Mr Gargano. She asserted she also had eyes, walked around the school and never saw any swastika graffiti. She conceded it was possible reports about graffiti were not brought to her attention. 780 Ms Podbury's evidence tended in my opinion to be somewhat absolute, and was generally given with the benefit of hindsight, and not from any definitive recollection of particular events. As with the other teaching staff and leadership cohort, it is readily understandable she has no independent recollection of many events from the relevant period. There is no objective reason for such matters to stick in her memory. I accept she was genuinely taken aback at the proposition that there was a significant amount of swastika graffiti present at BSC during the relevant period. Her reaction does not persuade me the large volume of evidence I have heard from the applicants and the BSC students is unreliable or incorrect. Rather, it persuades me that there was insufficient attention being paid to this student behaviour, at the time. Again, given subsequent events, inquiries, changes in community and government approaches to antisemitism, and the focus of this proceeding, many who were present at BSC during this period may well regret not paying more careful attention, or ask themselves how they did not see it. That does mean it was not there, on the balance of probabilities. 781 Ms Sentry's evidence did not persuade me that I should not accept the evidence of the BSC students and the applicants as reliable, in the way I have explained. I found Ms Sentry to be an overly cautious witness who was slow to make concessions, and generally sought to emphasise the social, health and behavioural challenges of the perpetrators of the antisemitic conduct rather than being prepared to accept, or even consider, the impact of their conduct on the applicants, or the discriminatory nature of the conduct. I do not consider Ms Sentry really appreciated the difference between inappropriate behaviour, and behaviour that targeted other students because of an attribute such as race, and I consider the evidence did not disclose she appreciated that one was unlawful while the other was not, and that this feature had some significance for how a school should approach such conduct. 782 In her evidence, it was obvious Ms Sentry's blanket denials could not be taken at face value. She denied in unqualified terms ever seeing a swastika at BSC. She did not volunteer that swastika graffiti had been reported to her. She was then taken to a contemporaneous document that demonstrated it had been, on one occasion, in November 2019. 783 This report, by a BSC teacher, was accompanied by a photograph of a swastika, drawn or carved into the top of a school desk. It was reported to have been "on the back tables in E109". This is consistent with the evidence of Joel, Zack, Matt, Elliot McMahon, Lilly Curnow, Jasmine Karro and Corey Fooks, each of whom gave evidence of swastikas in the E block building. 784 Ms Sentry had no recollection of this event. This confirms my findings that, understandably, these events are not matters of which BSC teachers are likely to have any active recollection, because of the nature of their jobs at BSC and the myriad of matters they dealt with each day. The applicants and the BSC students who were concerned about this behaviour, on the other hand, have reason to recall it. Evidence of this nature confirms to me that little or no weight should be given to general statements by teacher witnesses, in 2022, about whether or not they had seen swastikas at BSC during the relevant period, in terms of the Court's fact-finding about whether that graffiti was more likely than not present at the school. 785 The evidence of this example is also probative of other aspects of the evidence of the applicants and the BSC witnesses, because the photograph of the swastika resonates with the descriptions given by many of the student witnesses of what they saw, and where they saw it. 786 Further, the reaction, as recorded, was removal, but nothing more. This is also consistent with the findings I have made about a narrow and inadequate response. 787 Mr Minack's evidence on the swastika graffiti, and what he, the leadership cohort and BSC teachers did about it, must be seen in the overall context of his evidence in this proceeding: see [325]-[342] above. Taking that into account, I find Mr Minack's evidence was given very much with the benefit of hindsight, as reflected in some of the concessions he made. For example: So my evidence is that we did detect people doing swastikas and we punished them. I - I - I can't recall who they were, but we did actually punish them. We did detect them and punish them, so we did - when we were able to identify students who were doing that behaviour, we definitely punished them. Have we failed our - our Jewish students? Look, we've certainly - we've failed the students who took offence at those swastikas over time individually. 788 However, Mr Minack denied any overall failures during the relevant period, and emphasised the challenges in responding to student behaviour: So you must accept that your school has failed. If you've had 40 to 48 swastikas over an eight-year period, you surely must accept that that is not good enough in a Victorian school. Surely you accept that?---I don't know what good enough is, Mr Butt, and - and the reason I say that is because, as I mentioned earlier, young people from diverse backgrounds: some of them have got their own behavioural diagnoses, come from very complex, messy family backgrounds. They do conduct behaviour from time to time which is really unacceptable, and we don't want it. The school - and all schools do this. We respond to that behaviour and - when we're able to. So I - I - I don't think we've failed overall as a school, no, I don't 789 His view remained that he and his staff had done the best they could at the time. Although he accepted there was usually a way of influencing student behaviour, he maintained that most students would comply, but not all. He agreed that during the relevant period there was no formal system for notifications of swastikas, whereas after the Worklogic report and recommendations, there was. His evidence was that when he was in a class room, he did personally inspect the desks for graffiti and: it was, I'm confident to say, well understood that such should be reported, as well as other offensive graffiti, and then our facilities people will be instructed to clean it. 790 Mr Minack clarified that his recollection was that there were 4 or 5 swastikas detected and removed every year across the relevant period. He maintained that in the audit conducted after the publication of the Worklogic recommendations, no swastikas were detected. 791 However, he conceded there were no records kept of swastikas that were removed. He later conceded that it was possible that not all swastikas that came to the attention of teachers were necessarily reported to him. He also conceded he did not personally investigate anyone suspected of drawing a swastika during that period. While he appeared to accept there were no records that he had instructed anyone to remove swastikas, he maintained as a matter of his own recollection that he had done so. 792 Thus, there are no complete contemporaneous records which can provide an accurate picture of the level of notifications of swastika graffiti at BSC during the relevant period. This fact has weighed in my consideration of the "documents" case put by the respondents; it is fundamentally flawed in concept. Unsurprisingly so - the evidence as a whole overwhelmingly demonstrates that in a busy state secondary school like BSC, incidents and interactions occur between students, between teachers and students, and not all of these end up being documented. Indeed, it would be bizarre if they could be, and it would mean that staff, the leadership cohort and the principal were spending a disproportionate amount of time and focus on documenting matters rather than engaging with their students, with each other, and contributing to the education purposes of the school. I accept that where there were to be material consequences imposed for student behaviour, and especially where parents or family might need to be notified, there was an attempt to ensure incidents or behaviour were documented. The evidence demonstrates even that system was not perfect - see, for example, Ms Sarikizis' evidence. One would not reasonably expect perfection in a busy state secondary school. The applicants are generally correct, I find, in their contention that antisemitic graffiti (and behaviour) was not taken sufficiently seriously, and was tolerated in a way it should not have been. That is why there are so few records, I find. Not because the swastika graffiti was not present. Not because it was not reported. But because there was an unacceptable level of tolerance for it. 793 I find that Mr Minack's estimate of the number of swastikas was a conservative personal estimate: he was giving his best recollection of the swastika graffiti that was directly brought to his attention. That is, I find, no more than a subset of the actual levels of swastika graffiti around BSC during the relevant period. For example, when the sequence of BSC records in early 2018 was put to him, including but not limited to Ms McMahon's records, he accepted that there was a larger number reported in early 2018 than his own recollected estimates. Those concessions were made, I find, because he was confronted with BSC records. He did not in his evidence accept their estimates given through the applicants' evidence. That was, I find, largely because Mr Minack, as an individual respondent, was well aware the respondents' case was built around BSC records. 794 I am satisfied Mr Minack, the BSC leadership cohort and the teaching staff took no, and certainly no adequate or systematic, action to modify student behaviour, to condemn the swastika graffiti and to implement a clear and consistent discipline program as part of any behaviour modification approach. 795 Matt gave the following evidence: When did you have Mrs McMahon?---It was year 8. Did you ever heard Mrs McMahon tell you not to draw swastikas?---never. Did you have any knowledge of her telling people not to draw swastikas?---No. Did you ever hear the principle tell you not to draw swastikas?---No. Did you see anyone punished for drawing them?---Never. 796 There was plenty of this kind of evidence from the applicants and from other student witnesses. Counsel for the applicants asked most students, and they responded in terms similar to Matt. I accept that evidence, although I accept there may have been isolated examples of teachers reacting in class and admonishing a student. I am not satisfied Ms McMahon gave a talk to any year level about the swastika graffiti issue specifically. The evidence is too unclear. This was an important point for each of the applicants, and their parents, and the other student witnesses. They were all clear and consistent about the absence of any attempts at behaviour modification on a school, year level or even classroom-wide scale. The applicants' parents (and other parents) asked for such measures. It conspicuously did not occur in any systematic way. That is despite teachers like Ms McMahon having been involved in at least a dozen instances of correspondence about swastika graffiti. 797 There was some isolated evidence of times where teaching staff attempted to discuss the inappropriateness of swastika graffiti with particular classes. Mr Nash gave evidence of such an event in a class he was co-teaching with Mali Lewis. He did not agree what occurred was properly described as a reprimand, instead stating: there was a - a discussion that Mali led with support from Ms O'Neill and myself about the importance and sensitive nature of the topics that we're dealing with and that swastikas are inappropriate. 798 Evidence such as this does not persuade me that Mr Minack led any adequate reaction to the amount of swastika graffiti around BSC during the relevant period. Nor does it persuade me that the leadership cohort generally, or the BSC teaching staff, adopted a sufficiently serious, systematic response to swastika graffiti, and the reports of it that I find were made by BSC students, including the applicants.

Conclusions on the teachers' evidence about swastikas 799 In this section I include my findings above about the evidence of Mr Minack. 800 The teachers' evidence contrasted directly with the evidence of the BSC student witnesses and the applicants. I prefer the evidence of the BSC student witnesses and the applicants. I consider it likely the teachers had no real active recollection about this period and the numbers of swastikas around the grounds and buildings. Teachers have many matters on their minds when they are at school, day in day out. The evidence demonstrates a myriad of disciplinary issues faced by many teachers every day; a myriad of responsibilities outside the classroom every day, plus a myriad of classroom responsibilities. Like many members of the community, I can only admire the general attitude of public school teachers to their work, and their commitment to students and learning at a general level. That does not mean they are infallible. 801 In this proceeding, the teachers had, I find, been carefully prepared before giving evidence. I do not suggest they were coached, but it was clear to me they had been carefully prepared. They had been shown any contemporaneous notes they had taken and which were in evidence. They had been carefully taken through other evidence before the Court such as key Chronicle records. No doubt this process assisted with them giving evidence, and that was plain in their frequent references to, and dependency on, their notes in the way they answered questions. However, I also find the teachers were acutely aware of the significance of their evidence about the presence of antisemitic graffiti at BSC and antisemitic behaviour at BSC, especially after the findings of the Worklogic report and the implementation of those findings at BSC, the media attention on the school, and after the commencement of this proceeding. Overall, the teachers were understandably defensive. This led to somewhat absolute and unqualified denials in their evidence, unless a note put in front of them gave no room for a denial. 802 In terms of the respondents' case on swastikas, the final evidentiary matter to mention is the relevance of the school's policies to the drawing of swastika graffiti. I have set those policies out at [343]-[360] above and made general findings about them. 803 Some of the respondents' witnesses accepted there were policies in place that were not always followed. See, for example, Mr Minack's evidence about the requirement in the BSC handbook that teachers inspect the classroom environment, including the desks, as a way of, amongst other matters, checking for graffiti. He accepted that some teachers, such as Ms Hower, had said they did not always undertake this. Ms Lewis made a similar admission. In the real world of a busy secondary school like BSC, their evidence is unsurprising. The weight of this evidence in the present context is, in my view, that it supports the likelihood that teachers did not always see all the graffiti present on desks and in classrooms, but did not take student reports about it seriously unless the student sent "proof". 804 Mr Minack agreed, on more than one occasion during his evidence, that the presence of swastikas violated the BSC's racial harassment policy. So did Ms Angelidis, Mr Chan, Ms Lewis, Ms Sarikizis, Mr Mangold, and Ms Sentry. 805 As Ms Sentry's evidence made clear, the application of BSC policies depended on the level of seriousness with which particular conduct was viewed. She said: Do you accept that, under the school policies, if there are serious incidents of bullying or racism occurring in class then teachers should escalate those to you, particularly if they are in years 10, 11 and 12?---No, I would expect them to initially be escalated to the student manager - - - But it would not be - - -?--- - - - of the particular year level. Do you say that that's a rule or a preference?---I would say that's a general expectation that incidents are initially reported through the student manager. Even serious matters, you're saying they shouldn't come to the assistant principal?---They may eventually come there but not necessarily directly, no. It depends what we define as serious. (Emphasis added.) 806 This is important evidence. It encapsulates the applicants' case on many of their allegations. Antisemitic conduct was not, during the relevant period (as opposed to in hindsight in their evidence) generally defined by Mr Minack, the leadership cohort and the BSC staff as serious. 807 That is despite the clear terms of the BSC bullying prevention policy, whichever version is examined. There were various versions in force during the relevant period. It was not contended by the respondents they were materially different. The bullying prevention policy for 2017-2020 relevantly: (a) described racism and racial harassment as "unlawful and unacceptable"; (b) accepted that the context of the behaviour and the reaction of the "audience" were important; and (c) specifically referred to "graffiti that denigrates an individual or an ethic group". 808 The guidelines required BSC staff to respond in the following ways: • All staff need to question/challenge students regarding potentially racist incidents rather than ignoring them. • Since it is vital that we are all seen to be challenging racism, incidents must be dealt with immediately by the teacher/member of staff, even if a referral is to be made. • All staff need to promote non-racist attitudes and model non-racist behaviours in their own interactions with all members of the school community. • All staff should attempt to include multicultural perspectives in curriculum material in order to dispel ignorance and promote understanding and celebration of difference. • All staff need to implement inclusive strategies which are sensitive to the needs of students based on their ethnicity. 809 The policy explicitly states that: Serious and/or recurring cases of racism should be reported to the Year Level Manager and/or the Sub-School Assistant Principal. Both should be involved in dealing with such incidents. The procedure to be followed in dealing with cases of racism should be the same as that for dealing with sexual harassment. [Reports and complaints by students] will be treated seriously and investigated. (Emphasis added.) 810 The applicants' case made something of the equivalence contemplated in the BSC policy between sexual and racial harassment. They contended that equivalence was not implemented in practice. 811 I agree the evidence shows a different approach taken to swastika graffiti, despite the characteristics of such conduct that I have set out above. It was not treated seriously. It was often not investigated. Inadequate records were kept - that was because, I find, it was not treated seriously. Swastika graffiti was treated in the same way as any other graffiti, such as writing the word 'penis'. It is not equivalent. It is now a criminal offence in Victoria but was always capable of being unlawful, as the BSC policy states. There was under Mr Minack's leadership a tolerance, and diminishment, of swastika graffiti and its effects that should never have occurred.

Overall factual conclusions on the presence of swastikas at BSC and the response to them from Mr Minack and teaching staff 812 At times during the evidence, it seemed to me that the two sides (applicants and student witnesses on the one hand, teachers on the other) could hardly have been at the same school, so contrasting were their accounts. The teachers inhabited a school where there was no antisemitism visible to them, aside from a handful of specific incidents which were thoroughly investigated and sanctions imposed where they could be. A school where there were no swastikas that teachers saw, no records of swastikas, aside from a couple of examples which were clearly perceived as outliers. The teachers professed shock and outrage if they were to encounter antisemitism. 813 The applicants and the students, on the other hand, inhabited a school where antisemitic conduct against Jewish students was a daily occurrence. It went far beyond swastikas, although they were a palpable and constant reminder of how some BSC students felt about Jews, and how they felt able to express themselves with impunity. There was physical behaviour (as described especially by Joel and Liam), there were a wide range of disgusting antisemitic taunts, and there were Nazi salutes. All regular and obvious to the students but - in the other school inhabited by the teachers - curiously absent. 814 In circumstances such as this, the Court must carefully reflect on these different narratives, given by a large number of people who were direct witnesses during the period. Having undertaken that exercise, I generally prefer the evidence adduced by the applicants. 815 Mr Minack, the leadership cohort and the BSC teaching staff have much to lose in this proceeding, if they are not believed. Reputation-wise, the findings for which the applicants contend are serious indeed. 816 The applicants on the other hand stand to gain financially if their allegations are accepted. But I give little weight to this fact. The applicants and their families committed themselves to the Worklogic inquiry process, to the Australian Human Rights Commission process and then to this Court - not so much, I find, in pursuit of financial gain, as in pursuit of principle, and to vindicate the wrongs they feel have been done to them. For five young men to put themselves through what the applicants have been through is no small matter. For all the BSC student witnesses to stand up and participate is also no small matter. 817 Having reflected carefully on all the evidence, and on the testimonies of the many witnesses I heard orally, I am comfortably satisfied that the three elements I have referred to above (at [727]-[729]) have been proven. That is: there was a very large number of swastikas around BSC during the relevant period; complaints were made to Mr Minack and BSC staff in larger numbers than BSC records show; and no adequate action was taken by Mr Minack, the BSC leadership cohort or BSC staff. 818 Why the teachers' evidence was what it was is really in the realm of speculation. However, I do consider it is most unlikely that Mr Minack, the leadership cohort and the BSC staff have the kind of active recollections of the events as those etched on the memories of the applicants and the other students. Their perspective, and therefore what they focused on during those years, was quite different. They had a range of responsibilities to discharge, lessons to plan and deliver, marking to engage in, parents to deal with, grounds and buildings to keep safe, policy matters to attend to, professional development, and collegiate interaction to engage in. Their lives at school were not so much lived in the grounds and classrooms, and they encountered thousands of students over the relevant period. Thousands. For specific periods of time they had to know them well, but those students and their families were soon replaced with a new cohort. And the next year, the same. 819 It would be exceptional, and surprising, if any of the individual respondents, the BSC leadership cohort or staff had much active recollection of the matters that are the subject of the applicants' allegations, in anything but the most general sense. Unlike the students, these were not matters at the centre of their universe. They were not, like Liam, regularly the subject of physical abuse. They were not, like Joel, regularly having their religious headpiece interfered with and made fun of. They were not, like Zack, the constant target of bigotry. The students who experienced this do not forget it; it is etched in their memories as their overwhelming experience of BSC. Their accounts, I find, are more likely to be reliable. 820 Many of the respondents' witnesses may have had their memories jogged by documents they had been shown, but that was in the defensive context of this trial, and I find many of the respondents' witnesses were dependent on what a document said for their evidence. It was not an active recollection; it was evidence which had its origin in the document they had been shown. That is why, repeatedly, in cross-examination, they could only say "I do not recall" or "I don't remember". Their evidence was not from their memory, it was prompted by a document they were happy to accept as accurate because it was a BSC record, and when taken outside the document all they could do was deny, or say they couldn't recall. I do not say that critically of them, for the reasons I have explained above. There were also many occasions when respondents' witnesses deliberately avoided making concessions or accepting facts where they were clearly conscious it was detrimental to the respondents' case. They were, as a cohort, very defensive. 821 I find on the balance of probabilities: (a) There were more than a hundred, and likely hundreds of, swastikas across BSC classrooms, buildings and grounds during the relevant period. I accept there were likely to have been those numbers over the 8 year period, but I also accept there were spikes in this kind of graffiti after the teaching of Maus. I do not accept the evidence is clear enough that there was a spike in swastika graffiti after the March 2019 speech. (b) There were substantially more swastikas than any witness deposed to seeing in any other public environment. (c) There were substantially more swastikas than BSC records disclosed. This is because a substantial number of student complaints were simply not recorded and not acted upon, especially when made by one or more of the applicants. (d) At various points, which differed between individuals, the applicants and other BSC student witnesses became frustrated and stopped reporting what they saw. (e) There was no system in place to record antisemitic conduct, including swastika graffiti. (f) There were few if any consequences imposed upon students who drew swastika graffiti. (g) When there were, they were sporadic and isolated and tended to treat the drawing of such graffiti in the same way as the drawing of any graffiti, without any appreciation or recognition of the particular character and impacts of swastika graffiti. 822 Mr Minack admitted there could, and should, have been a recording system, and that it was not difficult to establish: you accept you could have easily had a better record-keeping system for the anti-Semitic conduct?---So you're asking me to think back now what I know now. Well, yes, I suppose given that we've implemented one, which is out - out of the recommendations of the inquiry, I guess it was - it was feasible for us to do that, thinking backwards. In the Worklogic inquiry, you said to Louisa Dickinson that you could set up a system for anti-Semitic reporting in more or less a week if you wanted to do so. Was that true?---Yes. That I said that to Louisa? Well, is it - firstly, do you accept you said it?---Yes, I accept I said it. I can take you to it if it's disputed?---No. Do you accept that it's a true statement?---Yes. Yes. 823 Mr Minack was cross-examined on one of his explanations for not setting up a system like that during the relevant period: So the one that starts: Yeah, it - and it's a tricky one. I could - so the second sentence there, near where the hand is: ...I could set up that system more or less this week with staff. You can imagine how that would play in the media, potentially, when - and then Louisa Dickinson: Brighton Secondary is so bad, I have to keep a record sheet of all the anti-Semitic behaviour they have. It's so prevalent. Like, it's stuff that you've got to be really careful with, you know. That was a recording of your true opinion at the time, wasn't it?---Yes. You would agree that that shows a reluctance to record anti-Semitic complaints because you don't want actual scrutiny on the topic?---No, I disagree. Well, that's what you were saying there, wasn't it?---I think I was alive to the reputational risk of - I was certainly alive to the reputational risk of anti-Semitic behaviour being reported at the school, but that's a - that's a reality. Sorry, I'm just going to read this for a moment, if that's okay. Have you completed your answer?---I'm just - just rereading the paragraphs before so I can understand. Sorry, Mr Butt. My apologies. Yes, so, look, I'm obviously agreeing that such a - a system is possible, and - and I think I'm agreeing with Louisa's suggestion that it might be a good thing to do in terms of tracking the data and knowing where things sit at in the school, but I'm obviously just alive to the fact that there - there is a possible reputational risk to do with it. And that shows a reluctance or concern to record anti-Semitic complaints because of the potential scrutiny, doesn't it?---No, because our behaviour - we recorded anti-Semitic behaviour and we - and we certainly have been doing so since the last two years, so there's no - - - 824 Mr Minack's evidence discloses that he was more concerned about reputational risk to BSC than he was about fixing what I find to have been a circumstance obvious to him - namely, the amount of antisemitic conduct at BSC, including antisemitic graffiti, and the student and parents complaints about this conduct. His focus was on how recording such antisemitic conduct in detail might play out in the media. That was an inappropriate leadership response for a principal in the circumstances he was faced with. His first concern should have been for the wellbeing of his students, in particular his Jewish students as the victims of this conduct and the students adversely and disproportionately affected by the presence of such graffiti. It was not. 825 I also find and infer, on the balance of probabilities: (a) Mr Minack and the BSC staff were likely to have seen more swastikas than the BSC records disclose, because of the sheer numbers of them. (b) There was no leadership for strong and decisive action to be taken about them and this is the likely explanation for why students continued to see them. (c) There are isolated records of students being punished for swastika graffiti, and the records show students found with them were not subject to any effective discipline, nor was there any school-wide campaign to try to stamp out graffiti of this kind. (d) The swastika graffiti was throughout the relevant period highly visible to BSC students, and displayed in a way that would be highly visible to Jewish students. (e) While there is evidence of some specific examples of swastikas being removed, and of specific reports by teachers, the evidence does not demonstrate any adequate investigation even into that small sub-set of swastikas. 826 Further, I find that, after the Worklogic inquiry and report, the publicity, the response of the Victorian government, the AHRC complaint and this trial, the action of the Victorian government about swastikas and related public debates, it is not surprising that Mr Minack, the leadership cohort who gave evidence and the BSC teaching staff who gave evidence voiced a level of disgust at antisemitic behaviour and swastika graffiti in the witness box. I find they now understand why these symbols are abhorrent and their use needs to be stamped out. They now understand how much effort needs to be put in, in settings such as secondary schools, to ensure students understand how abhorrent those symbols are, what they mean to Jewish people, and the trauma inflicted by their display. They now understand that this cannot be dismissed or ignored or simply tolerated. But that is all with hindsight, give the sequence of events I have described. I am comfortably satisfied that, during the relevant period, the omission and failures I have found to have occurred were directly connected with race, because there was an unacceptable tolerance and a lack of concern about the effects on Jewish students of the display of the kind of antisemitic graffiti referred to in the evidence, and (as I find elsewhere) the perpetration of antisemitic bullying and harassment.

RDA s 9: findings 827 Adopting the factual findings I have made about, I turn now to the application of s 9 of the RDA to those facts. There can be no doubt, and the respondents did not contest, that: (a) the display of the swastika, as a Nazi symbol, is offensive and hurtful to Jewish people; (b) it is a symbol which is capable of instilling fear in Jewish people, including fear for their immediate, medium and long term physical safety; (c) it is a symbol of the persecution of Jewish people by the Nazis, and by others; (d) the use of the symbol singles out Jewish people as targets of hatred; and (e) display or use of the symbol is a quintessential example of antisemitic behaviour. 828 There was no dispute that the Victorian Government enacted legislation making the public display of Nazi symbols an offence in June 2022, with that legislation commencing in December 2022: Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 (Vic). The explanatory memorandum to the amendment states: The purpose of this amendment is to address the recent increase in the public display of Nazi symbols in Victoria and to assist in combating racism, vilification and far-right extremism in our community. 829 The second reading speech for the amendment on 12 May 2022 states: The display of symbols associated with Nazi and neo-Nazi ideology is harmful and offensive to all members of our society, and particularly to the Jewish community. The display of such symbols in Victoria is particularly abhorrent given, outside of Israel, Melbourne has the largest per capita concentration of Holocaust survivors in the world. The Government also acknowledges that the public display of Nazi symbols is used to communicate hatred and cause harm to a wide range of other groups, including Aboriginal and Torres Strait Islander people, LGBTIQ+ people, people with disability and other racial and religious groups. The dissemination of these ideas through the public display of Nazi symbols undermines social cohesion by provoking animosity between Victorians of different ethnic and religious backgrounds, and threatens the viability and success of our democratic, multicultural and multi-faith society. 830 Dr Abramovich described the effect of displays of the swastika in the following terms: Well, for - for the Jewish community, given that Melbourne has one of the largest per capita survivor communities, the Nazi swastika represents the ultimate emblem of evil. For some people, whether it is Holocaust survivors but also their descendants, children and grandchildren, seeing the Nazi swastika is as threatening as being faced with a gun. It symbolises the extermination of six million Jews. It symbolises atrocities, murder, suffering. There - in my view, there is nothing more threatening for a Jewish person than to see the Nazi swastika. 831 I accept that evidence. It is consistent with the evidence given by each of the applicants about their own reactions to seeing swastikas, although I also accept that this symbol may well be even more threatening and disturbing for Jewish people of generations closer to or at the generation of Holocaust survivors. 832 Recalling my approach in Wotton, which I adopt here (see [46] above), as far as the conduct-based limb of s 9 is concerned, it seemed to be accepted on behalf of the applicants during final oral submissions that the person who could be said to have done an "act" for the purposes of s 9, or more accurately failed to act (s 3(3)), was Mr Minack. While Ms Podbury, who was the principal before Mr Minack, was referred to in the evidence, she was not a respondent and no clearly articulated claim was pleaded against her. There were isolated submissions asserting she "should have known" about bullying or swastika graffiti, but nothing that could be understood to support a s 9 RDA claim against her as the person who had done an "act" for the purposes of s 9(1). 833 It was Mr Minack's responsibility as principal of BSC to ensure that the school's then-existing policies about racial harassment were implemented and applied. He accepted this in cross-examination: As the principal, it's fair to say, isn't it, that you are primarily responsible for staffing issues at Brighton?---That's correct. You're ultimately responsible for enforcing the policies at Brighton?---That's correct. I'm assuming you agree that the department's complaint policy says the principal is responsible for efficient and effective organisation, management, administration of the school. You would agree with that?---Yes, I do. And you would agree, as principal, you're responsible for setting up adequate processes to ensure that Brighton Secondary meets its legal obligations?---Yes. With assistance from the department, but yes. You would agree that, if the school's obligations are being violated, you are ultimately responsible for those breaches?---Yes. Alongside there's possible departmental responsibility as well, but yes. Do you accept - or do you understand the phrase a non-delegable duty of care?---Yes. I do understand that phrase. Do you accept that you have - owe one to the students under your care and control?---In - in general terms? Yes?---Yes. … So you would accept, as principal, that you can influence and potentially decrease the presence of racism and discriminatory behaviour at Brighton if you want to do so?---Well, yes. And we've been trying to do so, yes. Well, you would agree it's your job to ensure a safe school for all children free from discrimination, isn't it?---Yes. As much as can be achieved. Absolutely. Yes. 834 In a school environment, with large numbers of teenage students at various developmental, intellectual and emotional levels, with various family and personal circumstances, as Mr Minack appeared to accept, for school leadership to be wholly reactive about racially-based conduct, or other kinds of discriminatory and inflammatory student conduct, is never enough. Indeed, on his own evidence-in-chief, that was one of the purposes of the March 2019 speech: the next topic - the speech that you gave in March of 2019 to the whole school. Firstly, what was your reason for giving that speech?---That speech was the - around the time of the anniversary of the Christchurch massacre, and I felt very strongly about it. I still do. I felt I needed to make a - a powerful, instructive speech that addressed or caused the children at the school to think about how these things might possibly come about and to make them vigilant to those processes so we can avoid that kind of action ever happening again. 835 During cross-examination, Mr Minack stated: Now, you told Ms Dickinson that you considered your assembly speech to be "incredibly appropriate and educative". Do you accept that?---Yes. Has that always been your belief about the speech?---Yes. … You didn't need to talk about the Holocaust in the speech, did you?---I did, because -or I chose to because I was trying to convey, in a powerful and memorable way, how societal attitudes - and then broken right down to language use - can lead to the othering of people. And that can lead to horrible outcomes at different scales. The scale that Mr Tarrant perpetrated and, of course, the scale that the Nazi regime did in the mid-20th century. … In fact, one of the - do you accept that you did, in fact, use foul language in the speech that you gave?---In terms of the use of the N-word, Mr Butt; is that what you're referring to? I'm referring to the N-word. I'm also referring to "subhuman and evil"?---In respect to the N-word, I accept that I used language which is broadly considered to be offensive, and rightly so, but I was using it in an instructive and educative way, which I think is - makes that use permissible. 836 He accepted the same was true of other student behaviour targeting singling out students for personal attributes such as sexual orientation: Well, you would agree it's your job to ensure a safe school for all children free from discrimination, isn't it?---Yes. As much as can be achieved. Absolutely. Yes. Do you agree that, under your control, Brighton Secondary has taken a lot of steps to reduce and prevent the use of offensive words like faggot being a part of the cultural landscape?---We have taken some actions in that area, yes. Do you agree that you've taken a lot of steps?---No more than - I mean, we have taken steps, because the school - because the school linked in with a program out of Deacon University, and we joined what's called the Safe School Coalition. So, as LGBTQI+ issues became more prevalent over the period, I think it's fair to say the school addressed that area with more precision. So I'm just focusing on these words. Do you accept the characterisation the school has taken a lot of steps to reduce the use of offensive words like faggot being a part of the cultural landscape?---I'm not sure what a lot means. Okay?---We have taken steps. All right?---Yes. Well, I will put it to you that you've used that exact phrase in relation to Ms Dickinson during the Worklogic interviews?---Sure. You accepted there that the word "faggot" is used "much less" and - - -?---Yes. - - - "we took a lot of steps - - -?---Yes. - - - over a number of years"?---Yes. So do you stand by that statement?---Yes. I'm happy to stand by that statement. 837 In my opinion, the evidence as a whole comfortably supports a finding that during his time as principal Mr Minack did not, in his role as principal, take a truly proactive and remedial approach to the presence of swastikas around BSC. This is in contrast to the steps he took to address bullying and harassment of LGBTQIA+ students at BSC, and to ensure they were safe. By his leadership, he diminished the seriousness of swastika graffiti, and encouraged the graffiti to be tolerated, in the sense that once a report was escalated to the point where it could not be ignored, it was considered sufficient for a swastika to be removed. 838 The applicants' closing submissions contended: Not a single student was ever investigated. Not a single student was ever punished. Not a single address was given by the Principal denouncing Swastikas. He conceded that that was inadequate. 839 This submission is slightly inaccurate on the evidence. There was at least one isolated example of a student receiving some disciplinary consequences for swastika drawing: namely the incident involving Matt and Oliver. 840 Otherwise there were only two instances of some consequences where some of the misbehaviour involved swastikas: one incident recorded by Ms Lewis on 24 October 2018 (she did no more than speak to the perpetrators), and yard duty being given to a student but mostly for other behaviour. But it is incorrect for the applicants' counsel to make the absolute submission extracted above. 841 Aside from these isolated examples, the applicants' submission is correct, on the evidence drawn to the Court's attention. 842 Even on the numbers of swastikas accepted by some of the respondents' witnesses, there was no full-scale investigation of which students were drawing them, and no systemic disciplinary consequences. As I have found elsewhere, there were more complaints about swastikas than the respondents were prepared to accept. I find on the balance of probabilities that no action was taken on these complaints. As I explain elsewhere (including in my findings about the individual applicants) there was a markedly different attitude taken to complaints about antisemitic conduct. 843 However, Mr Minack did not make a concession of the kind submitted. This is but one of many examples where counsels' written submissions on behalf of the applicants were given to exaggeration and generalisation that was unhelpful to the Court in understanding what findings were truly available on the evidence. Mr Minack was certainly cross-examined by Mr Butt in a manner seeking to extract such a concession. However, in my opinion - and putting to one side some of the badgering and overriding of the witness' answers by Mr Butt - no such clear concession was forthcoming. What Mr Minack did accept can be seen in the following extract: Is that the best the school could have done over the period: not be able - for the principal giving evidence in a litigation in which he's a named respondent - - -?---Yes. - - - to not be able to identify a single person you've ever punished for one swastika over eight years where your evidence is that there were about 40 to 48 - - -?---Yes. - - - possibly 40?---So my evidence is that we did detect people doing swastikas and we punished them. I - I - I can't recall who they were, but we did actually punish them. We did detect them and punish them, so we did - when we were able to identify students who were doing that behaviour, we definitely punished them. Have we failed our - our Jewish students? Look, we've certainly - we've failed the students who took offence at those swastikas over time individually. … So you must accept that your school has failed. If you've had 40 to 48 swastikas over an eight-year period, you surely must accept that that is not good enough in a Victorian school. Surely you accept that?---I don't know what good enough is, Mr Butt, and - and the reason I say that is because, as I mentioned earlier, young people from diverse backgrounds: some of them have got their own behavioural diagnoses, come from very complex, messy family backgrounds. They do conduct behaviour from time to time which is really unacceptable, and we don't want it. The school - and all schools do this. We respond to that behaviour and - when we're able to. So I - I - I don't think we've failed overall as a school, no, I don't. So you consider the actions of Brighton in relation to the swastikas to be acceptable; is that what you're saying?---Yes, to - to the extent that we're able to - to respond to them, yes. Because as I said, students do - they behave very, very badly from time to time. 844 There were further efforts made to extract a similar concession when Mr Minack was recalled (see transcript at p 1397, lines 15-19), but these efforts resulted in evidence of the same character as the extract above. No substantive concessions were made by Mr Minack. 845 After the answer in the extract above, Mr Minack was then challenged by Mr Butt by reference to the efforts by him and his staff to reduce other forms of discriminatory student behaviour. There were some valid objections taken to this cross-examination. The cross-examination was then adjourned to interpose another witness (Professor Rutland, giving evidence remotely by agreement). Mr Butt returned to this line of cross-examination after Mr Minack was recalled, but again no substantive concessions about swastika graffiti were made by Mr Minack. Given my findings, whether or not there were concessions is a distraction. 846 Mr Minack's evidence was that no records were kept at BSC about the removal of swastikas: So may I take it by your answer that an absence of records does not translate to an absence of the presence of swastikas over the period?---Yes. In - in that sense. Because the cleaning crew didn't keep records of those which were cleaned off. So that's correct. We wouldn't necessarily have records of the swastikas that had been removed. Not necessarily. And the person who was in charge of that process: was that Sal Gargano?---Yes. And he died in 2021; is that right?---That's correct, yes. But you would be the person ultimately responsible for records as principal, wouldn't you?---Of his records, yes. Ultimately. 847 Of course, it was other BSC students who were drawing or creating the swastika graffiti around the school. I make that finding, although it was not really in dispute. 848 This fact means that a contravention of s 9 cannot relate to the failure of Mr Minack, himself and through his staff, to eliminate swastika graffiti at BSC. At times, the applicants' case had this flavour, but there could be no reasonable basis for such a contention. The conduct capable of contravening s 9 of the RDA was Mr Minack's conduct in failing to take adequate and appropriate action to discourage swastika graffiti. 849 That is not to say there was no evidence of BSC staff reacting to reports of swastikas or antisemitic behaviour: there was. For example, Guy gave this evidence: Did any of the teachers ever tell you not to say or do anything anti-Semitic?---There was one time where Minack had come to - to our classes during Ninth Grade in the D1 building, and he had, like, a year level assembly for the Ninth Graders. As we were just covering the book mounts, and he - he covered, I guess, you could say, the - the topics of anti-Semitism and treating - treating people only equally. The issues that, the moment that the meeting ended, the number of anti-Semitic, like, occurrences increased. Like, there was - immediately after, people were screaming, like, "Heil Hitler", as if to, like, go against Mr Minack and to, like, show that they were rebels. Did any teacher hear any of this?---Yes. So immediately after that - that meeting, we were walking out of the D1 building towards - there were stairs that led up to, like, dodgeball courts, and - and Ms Flessa had come down just as - as someone screamed, "Heil Hitler," and she did stop and she - she asked, "Who did that? You shouldn't say that." and then she walked away. 850 This would have been, I find, in 2019. Ms Flessa is a respondent. I find it is more likely than not that this incident occurred and Ms Flessa reacted as she did. In other words, she did react to the antisemitic behaviour. But she did no more than that. And that is the applicants' underlying complaint, given the scale of the antisemitic behaviour. This kind of offhand reaction was inadequate and insufficient. I agree. It also indicated a level of tolerance for this kind of behaviour in circumstances where other kinds of discriminatory behaviour were not tolerated by Mr Minack and the BSC teaching staff. 851 In making my s 9 RDA findings, I have also given weight to the respondents' evidence about the disciplinary approaches taken to some of the applicants, in particular to Joel and Matt, such as the incident involving Oliver and Matt and the disciplining of Joel for recording the Minack speech. 852 In making my s 9 RDA findings, I have also given weight to the evidence and the findings I have made on some of the specific incidents and events involving individual applicants, where in my opinion there was a clear departure from the reaction reasonably to be expected of a principal in Mr Minack's position. For example: (a) his attitude to Liam when Liam came back for his meeting after leaving BSC; and (b) his attitude to Zack and his parents, and especially the reaction to the assault in class and the park incident. 853 In making my s 9 RDA findings, I have given some weight to the evidence that suggests Mr Minack took, and encouraged and insisted his staff took, a more proactive approach to ensuring that LGBTQIA+ students did not face bullying of a discriminatory kind while they were at school. 854 Mr Minack denied there was any material difference in the nature of the steps taken by him, or that he encouraged and insisted his staff take. In cross-examination: That you did not take a lot of steps, certainly not by reference to discrimination against LGBTQI+ or in relation to the N word?---No. We definitely took steps. I mean, that's what our student engagement wellbeing policy and procedures is about. So we - we responded to incidents of anti-Semitic behaviour on a regular basis with sanctions that went - ranged from mild through to severe. So we definitely took steps. Except you can't recall a single instance when you've ever sanctioned a person across 2013 to 2020 for graffitiing a swastika?---That - that may be true, but we certainly took serious sanctions for other anti-Semitic behaviour that we became aware of. 855 I do not accept this evidence. Understandably, Mr Minack's recollection about specifics over the entire period was relatively vague. His denials were at a general level, consistent with his denial of liability in the proceeding. I find he was unable to recall enough specific detail for his denial to be probative in face of the more contemporary evidence to which I refer above, and in the face of the witness evidence I accept about the nature and frequency of swastikas around BSC, and the lack of action to remove them. 856 Finally, in making the findings on the applicants' s 9 allegations, I have also given weight to the large amount of evidence from student witnesses and from the applicants about the prevalence of antisemitic taunts and remarks over the relevant period at BSC, as well as the considerable amount of physical conduct directed at Jewish students - notably the applicants but by no means only the applicants. I found the evidence about the prevalence and nature of this conduct to be persuasive, overwhelming and disturbing. It reveals a toxic and hostile environment for Jewish students at BSC during the period. That evidence contributes to my assessment of the reliability of the evidence I have set out above about the presence of large numbers of swastikas around BSC during the relevant period.

Conclusions on s 9 857 Therefore, I find that Mr Minack contravened s 9 by falling to take reasonable and adequate steps to remove the large and unusual number of swastika graffiti around BSC, including in the classrooms, to investigate which students were responsible and to take steps to discipline them, and to encourage BSC students not to draw and create swastika graffiti around the BSC school grounds, classrooms and other buildings (including locker areas and bathrooms). He failed to take any school-wide systemic steps, in contrast to the approach to LGBTQIA+ students at BSC. He failed to show any leadership to his leadership cohort in this regard, he failed to show leadership to the BSC teaching staff and he permitted a tolerance of this graffiti, and a negative attitude to Jewish students who complained. 858 I find there is sufficient evidence for the Court to be satisfied that these failures were more likely than not connected to the fact that this was antisemitic graffiti. I find that Mr Minack was slower to act responsively in relation to complaints about antisemitic behaviour and graffiti than other kinds of behaviour and graffiti, that he was less responsive in terms of investigations and disciplinary responses, and that he demonstrated a higher level of tolerance across the BSC student community for this kind of behaviour. By his own conduct, he modelled an approach that reacted differently, and permitted his staff to react differently, to the Jewish students who complained. He facilitated a focus on any poor behaviour of the Jewish students themselves, rather than on what might be triggering their behaviour. At a personal level as principal, and in his leadership of the school as demonstrated through the evidence about the reaction of the leadership cohort and BSC staff, he facilitated a tolerance of the most deeply offensive symbol to Jewish people, and he facilitated a diminishment of the effects of the display of that symbol on Jewish students, and indirectly on their families. 859 The failures created a distinction in the way Jewish students were exposed to antisemitic graffiti, from the way non-Jewish students were exposed to other forms of graffiti. They were compelled to tolerate high levels of a symbol of evil and hatred that instilled fear and disgust in them. The distinction had the effect of impairing their human rights to education and to their Jewish identity. I refer to and adopt the explanations later in these reasons about how their rights were impaired. In short, Jewish students having to confront these high levels of swastika graffiti, and seeing no real consequences imposed, and no systemic action taken, felt undervalued in their educational environment, they felt less safe, less comfortable to learn and engage, and less able to be visibly proud of their Jewish identities. These findings apply to all five applicants in terms of the effects of the distinction, but there is an insurmountable difficulty in ascribing responsibility to Mr Minack for the failures experienced by Liam, as I describe below. 860 It is not necessary for the Court to ascribe any reasons for this. The distinctions produced by Mr Minack's failures and omissions were, I find, connected to race. The Court does not have to ascribe any subjective motivation to Mr Minack. There was no cross-examination of him about what may have motivated him to be so unconcerned about the presence of swastika graffiti, to be unmoved by the presence of a symbol of evil in many places around the school. The Court does not speculate about what drove his unwillingness to engage in school-wide, proactive educational steps such as those taken for LGBTQIA+ students. What is material is that the Court is comfortably satisfied Mr Minack had a distinct attitude to antisemitic student behaviour, including swastika graffiti, that led to such student behaviour being more tolerated than other kinds of unacceptable student behaviour. In that sense, his conduct was connected to race.

Liam's allegations about swastika graffiti 861 Although the common allegations about swastikas purported to include Liam, the way the applicants presented their contentions glossed over the critical difference in Liam's case: Mr Minack was not the principal at the time Liam was at the school. Ms Podbury was the principal. As I explain in that part of my reasons dealing with Liam's individual claims under the RDA, no evidentiary case was mounted to seek to prove how Ms Podbury failed or omitted to take any or adequate steps to address swastika graffiti at BSC during Liam's time there, in a way which could lead to a contravention of s 9 of the RDA. That is, between 2013 to July 2015. 862 Further, there was no attempt to identify Liam's race, as a Jewish student, as a reason (or a factor) in why there was a failure to take any or any adequate steps to address swastika graffiti. This contrasts with the way the applicants put their case once Mr Minack was principal, where an evidentiary case was mounted to prove that Mr Minack, through his leadership as principal and personally, treated the concerns of Jewish students and their families differently from the way he treated the concerns of other minority students. No such case was mounted against Ms Podbury. Nor, on the evidence that is before the Court, could any such case rationally have been mounted. 863 Therefore, insofar as Liam made the same kinds of allegations about the presence of swastika graffiti as the other four applicants and alleged contraventions of s 9 of the RDA, I do not find he has proven those allegations. I accept he experienced, in reality, the same kinds of distinctions involved in failures to address swastika graffiti as the other applicants, and the same effect on his human rights. But there were no pleaded allegations articulating who the 'actor' was and how that person's alleged failures created the distinction experienced by Liam. Nor were there any pleaded allegations, or any evidentiary case, to demonstrate that while Ms Podbury was principal the distinctions involved and failures to address swastika graffiti were based on race. 864 Therefore, I find Liam's case under s 9 of the RDA about the failures to address the presence of swastika graffiti has not been proven.

RDA s 18C: findings 865 For the reasons I have set out earlier in these reasons, the applicants' allegations under s 18C in relation to swastikas must fail. In failing to respond adequately and appropriately to the presence of large numbers of swastikas around BSC, neither Mr Minack, nor the BSC staff whom he managed and directed, did an "act" which was (objectively) reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicants, Jewish BSC students, or any other group of students. While the drawing of swastikas by some students, in some of the contexts revealed by the evidence, might themselves in theory have contravened s 18C, the inadequate and inappropriate responses to the graffiti did not.

Negligence: findings 866 Adopting the factual findings I have made above, I turn now to the applicants' negligence allegations in relation to swastika graffiti. 867 The warnings expressed in Kuhl at [19] should be repeated here: Two things must be said as to the formulation of a duty of care and its scope and content. First, there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content. In Koehler v Cerebos (Australia) Ltd, McHugh, Gummow, Hayne and Heydon JJ observed that "to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account." (Footnotes omitted.) 868 See also Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [79] (Gordon J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 at [5] (Buss P and Vaughan JA); Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [66] (Emmett AJA); Shultz v McCormack [2015] NSWCA 330 at [71] (McColl JA); Waller v James [2015] NSWCA 232; 90 NSWLR 634 at [72] (Beazley P). 869 The respondents' contention is that Mr Minack's duty (and the duty of the relevant BSC teachers) was: only [to] take reasonable steps to protect a student against risks of injury which ex hypothesi should have reasonably been foreseen. (Footnotes omitted.) 870 The applicants framed the duty in their final written submissions as a duty "to ensure that reasonable steps were taken for their safety". They add: The teachers had a duty to ensure they took reasonable care of the Applicants when they attended School, including not only supervising the children, but inter alia, taking steps to address or adequately address their complaints and taking precautions for their safety. 871 All these formulations go to the majority of the applicants' negligence allegations, without differentiation. As I have sought to explain above, in relation to the swastika graffiti each of the applicants plead (often, though not exclusively, under sub-headings with respect to each individual applicant entitled "Failure to Educate") that the failure to remove swastikas and racist graffiti at the School amounted to a breach of the duty of care owed to them. To take the particulars (whether or not correctly so described) in relation to Liam: r. The School failed to adequately remove Nazi Swastikas or other Anti-Semitic graffiti from its premises during Liam's tenure at the School. s. The Schools failure to educate was highlighted by the voluminous presence of Swastikas on the School's grounds. 872 Doing the best I can to put this in a positive way, the applicants' case is that there was first a duty to take reasonable care to remove swastika graffiti from BSC classrooms, facilities and grounds; and second a duty to take reasonable care to educate all BSC students about why swastika graffiti was offensive and harmful to Jewish students. 873 That duty of care formulated by the applicants could only exist if it was reasonably foreseeable to Mr Minack and the BSC teachers that if they did not remove the swastika graffiti, or educate BSC students to an appropriate level, the applicants would suffer psychiatric injury: cf Oyston at [153]. Any such contention cannot be accepted on the evidence in, and circumstances of, this proceeding. Unlike Oyston, the applicants did not prove (or even seek to prove) that Mr Minack or the BSC teachers knew, or were put on notice, that the applicants might be susceptible to psychiatric injury from the display of swastikas. The case put in cross-examination was that swastika graffiti was offensive, and instilled fear and anxiety. 874 I accept that at least from the behaviour of some of the applicants, like Matt and Joel, Mr Minack and the BSC teachers with whom those two applicants interacted over swastikas were aware they were very upset and angry about the graffiti. It might therefore be possible to conclude that it was reasonably foreseeable, at least at some point during the relevant period, that the four applicants who press a negligence case, would be offended and upset, and (for at least some of them) frightened, at the presence of swastika graffiti. That is quite different from it being reasonably foreseeable that a person may suffer psychiatric injury. The respondents submit (in a footnote to their written submissions): Significant concern, stress, anxiety and stigma, which does not rise to the level of a diagnosable psychiatric disorder is not compensable in a claim in negligence for personal injury: Tame v New South Wales (2002) 211 CLR 317, at 329-30 [7] (Gleeson CJ); 381-2 [193] (Gummow and Kirby JJ); ss 72 and 74-75 Wrongs Act. 875 I accept that submission. 876 The applicants' claims in negligence about swastika graffiti were inappropriately framed, and their evidentiary case did not seek to prove what was necessary to prove to establish even the existence of a duty of care in Mr Minack specifically in relation to swastika graffiti around the school. The way the case was put in negligence about swastika graffiti is a good example of, with respect, the applicants' cases simply seeking to roll up all their grievances in all three causes of action, whether the grievance was well suited to a cause of action or not. 877 Thus, I find the applicants have failed to establish their pleaded duty of care in relation to the swastika graffiti. 878 Even if there was such a duty of care established, as pleaded, and even assuming breach in favour of the applicants through some extrapolation from my findings under s 9 of the RDA, in my opinion the applicants have not proven that any (assumed) breach of duty caused any psychiatric injury they suffered. 879 In relation to the effects on the applicants of the swastika graffiti, for the purposes of the applicants' negligence case, the injury is said to be (at [122] of their closing written submissions): psychological/psychiatric trauma and injury, medical, education and other expenses. 880 As I note elsewhere, ultimately the applicants did not press a negligence case for Guy, in relation to any of his experiences at BSC. The respondents did not directly challenge the psychiatric diagnoses of Dr Tagkalidis in relation to Joel, Matt, Zack and Liam. Dr Tagkalidis had diagnosed Zack, Matt and Joel with adjustment disorder with anxious mood, with an overwhelming attribution of the cause of those diagnoses to their experiences at BSC, in Zack's case 100% of his injury being attributed to his experiences. He also diagnosed Liam with an adjustment disorder with anxious mood, although the causal link to Liam's experiences at BSC was contested more strongly by the respondents. Dr Adnams also diagnosed Liam with post-traumatic stress disorder, a diagnosis which the respondents challenged in cross-examination. I am satisfied that Dr Tagkalidis' diagnosis is sufficient to complete the tort for each of the four applicants in relation to their allegations of antisemitic bullying and harassment, and that I need not make a finding on Dr Adnams' diagnosis. I accept Dr Tagkalidis' evidence generally, including his opinions about the attribution of the cause of the psychiatric injury for each applicant to their experiences at BSC. 881 However, there was no attempt on the part of the four applicants' counsel to separate out, for the purposes of the applicants' negligence cases, how much of the psychiatric injuries experienced by them could be linked to having to experience a school environment with high levels of swastikas. It may be that it was not possible to do so. Yet the applicants' case on swastikas was framed separately from their case on antisemitic bullying and harassment, as the pleadings example I have extracted above demonstrates. That was part of the problem. A duty of care with independent or separate content having been alleged, the applicants needed to prove a breach of that duty, and then a causal link between that duty and their psychiatric injury. 882 If anything, in my opinion, the medical evidence and the applicants' own evidence strongly suggested that their psychiatric injuries were caused by the antisemitic bullying and harassment, and that - separately - the swastika graffiti caused them anxiety, fear, anger and offence. That harm is compensable under the RDA, but it does not constitute injury for the purposes of negligence. 883 A further matter supporting my conclusions is that the respondents may well have been correct that Pt X of the Victorian Wrongs Act is picked up by s 79 of the Judiciary Act, so that the applicants must meet the factual causation test in that part. They contend: As to factual causation, the mere proof by an applicant of the possibility that the respondent's breach caused the applicant to suffer harm is insufficient. The factual causation limb is essentially a statutory requirement to undertake the "but for" analysis. To prove that a change in circumstances might have made a different does not alone prove factual causation. Where the negligence alleged consists of an omission to do something - ie, a failure to educate, failure to punish, failure to have an appropriate system for reporting/recording incidents - the applicants must establish that the performance of the duty would have averted the harm. This requires the applicants to identify and prove a counterfactual hypothesis. (Original emphasis, footnotes omitted.) 884 I accept that submission. There is no federal law that "otherwise applies", and Pt X applies just as the significant injury provisions of the Wrongs Act also apply. The applicants needed to identify and prove a counterfactual hypothesis. See also Wodonga Regional Health Service v Hopgood [2012] VSCA 326; 37 VR 284 at 292 [31] (Maxwell P). They have not attempted to prove how increased removal of swastikas, and better education of BSC students, would have averted the alleged psychiatric injuries they suffered from the presence of swastikas. As I have observed, the negligence case on swastikas was fundamentally misconceived. 885 All applicants alleged and sought to prove harm caused by a range of other antisemitic student conduct, much alleged to have been specifically directed at them. It was the principal's failure, as principal, to take reasonable care to protect them from this conduct, I find, rather than the presence of unacceptably high amounts of swastika graffiti, which caused four of them psychiatric injury. 886 Therefore, there is no liability in negligence in respect of the swastika graffiti at BSC. The negligence cases of Liam, Joel, Matt and Zack on this basis fail. For the reasons I have explained, Joel, Matt, Guy and Zack succeed in their claims under s 9 of the RDA in respect of swastika graffiti, but Liam does not.

Allegations regarding the teaching of Maus - pleadings 887 Joel, Matt and Guy each make allegations regarding the impact of the text Maus. They allege breaches of the duty of care owed to them (see statement of claim at [385] (Joel); [390] (Matt); [395] (Guy)). 888 The applicants plead, under a heading relating to Joel, that: Maus The anti-Semitic abuse for Joel majorly intensified in his Year 9 (about 400%) when his class was taught Maus, by Art Spiegelman, a cartoon book about the Holocaust. It traces the journey of Spiegelman in a death camp that he survived. It depicts Nazis as cats, and Jews as mice. The cartoon book and the School's approach to teaching the Holocaust was negligent. During and after the teaching, many more Swastikas, Nazi comments and salutes, and increased generalised racial hatred and vilification, was manifest at the school. Particulars a. The Nazi salute amplified considerably among students during and after the Maus teaching. b. The Nazi salute was also commonplace at the School especially after Mr Richard Minack said his father/grandfather was a Nazi the next year in 2019. c. After and during the reading of Maus, insults such as "Jewboy," and grabs of Joel's Kippah, increased considerably. d. The School's teaching had the opposite effect of what they presumably wanted to or should have wanted to achieve. Knowing there were some Jewish students at Brighton, no one from the Welfare section at the school or anyone else, when reading a Holocaust text, checked up on or sought to support Joel. At no time did Joel hear any support or empathy about Holocaust matters as a Jewish person from anyone at the School, be it teacher or student. 889 With regard to Guy, they plead: For Guy Cohen, the number of anti-Semitic insults/jokes among students increased more again in 2009 and were normalised as part of School culture. … The increase in anti-Semitic insults and conduct in Year 9 for Guy coincided with him being taught the Maus book in English class. That opened up a whole new chapter for anti-Semitic jokes. Particulars a. Students made up new anti-Semitic jokes/insults based on the book. b. Students would also openly laugh and make jokes of events from the book. There was a chapter in the book where Jewish infants were being swung by their feet into walls to their death. Jokes about that came up a lot in class. Students laughed at that aspect of the book and similar (for instance laughing at gassing, burning, and other forms of brutal actions) The class openly laughed at it. c. Teachers might have said "shoosh" at that sort of thing as it interfered with the progress of reading the book. No one was told off / punished / lectured that laughing at Jewish children's' heads being smashed on walls to death was wrong. d. During such classes students looked towards Guy and Matt and comments made included "Oh, are you the kids that they're hitting against the wall?" e. Maus is a graphic novel using animals to depict different nationalities/races, so where mice were trapped in cages (mice being the Jews in the book) students asked Guy "Oh, are you them? Is that you? Is that your family?" Students would also refer to Jews as rats based on the book. 890 With regard to Matt, they plead: To the extent there was any education at all on Jewish topics at School, it was done in a negligent fashion, which precipitated further spikes and violations of the Act and the School's duty of care: a. Several Applicants and other students from Brighton (Jewish and non-Jewish alike), experienced spikes in anti-Semitic and offensive behaviour when in Year 9 there was teaching of the Holocaust sketch text Maus over about a term or so. b. It was also normal for students in School classes to make holocaust jokes, deny the holocaust (seriously or jokingly), and laugh at tragic descriptions of events such as Jewish babies having their heads smashed on walls. No punishments were meted out by teachers for these incidents. In Year 9 (2019), for Matt Kaplan, the anti-Semitic verbal assaults/insults and physical assaults increased majorly in Year 9 when there was teaching of the Holocaust book Maus, by Art Spiegelman. Particulars a. The book involves a Holocaust story through use of comic style drawings. b. Matt's family went through the Holocaust. The teaching was experienced as unlawful discrimination and negligence. The sentiment was that the same events could just happen again and no one would care. c. No one teaching Maus ever said words to the effect "No anti-Semitic behaviour will be tolerated." The converse was true. d. For Matt when comments were made such as 'Heil Hitlers' in the class, the teachers brushed it aside and kept going. No punishment was meted out. In his Year 9, Matt Kaplan experienced three students saying "Heil Hitler" and related racist actions in the locker bays frequently: Oliver [redacted], Blake [redacted], and Brent. This spiked majorly during or around the Maus teaching period in Year 9. Matt often reported these matters with no consequences. Particulars a. Oliver would do Nazi salutes and walk up and down the locker bays and say words directly to Matt such as "Get get into my oven." b. By the time of one of these occasions, Matt had reported O[l]iver to Thi Trinh and Bronwyn Hart at least eight times. On no occasion did anything happen. c. Matt reported Oliver three times to Ti Trinh and Bronwyn Hard for the "get in my oven comments" and they never did anything about it. d. On the second occasion when Oliver told Matt to "get in my oven", Matt snapped and threw him into a locker. Oliver continued in any event with these comments. There was no reason for him to stop because Matt had reported him numerous times before with no consequence. e. This was soul-destroying because the racism was coming at Matt from both the student and the School that tolerated and endorsed this treatment. For Matt at least, the teaching of Maus occurred with three teachers in English and students yelled out on regular occasions "Heil Hitler" and the teachers never did anything about it. It was treated as normal. 891 There is no distinct pleading about Maus in relation to the RDA. I raised this with the applicants' counsel in final submissions. Counsel sought to rely on the rolled up pleading in [366] of the statement of claim. I do not consider that paragraph contains an allegation of contravention of the RDA (whether s 9 or s 18C or both) by the teaching of Maus. That paragraph concerns the alleged failures of Mr Minack to respond adequately to complaints made by the applicants, and alleges contraventions of the RDA in relation to those failures. Nowhere in that paragraph is the teaching of Maus referred to. 892 Notwithstanding counsel's assertion in oral reply submissions that it was "intended" to include a pleading of contraventions of the RDA by the teaching of Maus, it has not been pleaded. The respondents have not conducted their case on the basis of such an allegation. I proceed on the basis that no such allegation is before the Court. 893 That does not mean that if there were complaints about the teaching of Maus, which are pleaded or have obviously arisen in the conduct of the case, they might not form part of the evidence going to the allegation in [366] of the statement of claim. But that is as far as they can go.

Allegations regarding the teaching of Maus - resolution 894 Thus, the only pleaded allegations on this topic are in negligence. 895 These allegations relate to the year 2019, when Matt and Guy were in year 9, and 2018, when Joel was in year 9. There was no dispute that Maus was prescribed as a year 9 textbook in those years. Like much of the other student evidence on behalf of the applicants, I accept that in 2018 and 2019 at least (and relevantly for Joel, Matt and Guy) the teaching of Maus resulted in a spike in antisemitic conduct directed against them, and a spike in antisemitic conduct they observed, including swastika graffiti. Some examples of their evidence, which I accept, are the following: 896 From Joel: What about salutes and comments touching to you, how did that change outside of the classroom?---After - after Maus it got more regular and was substantially worse. Okay. How much more regular?---I would say it went from - probably doubled, maybe tripled. Yes. Okay. So how effective do you think the class was?---I think it was - it was ineffective. I think it did more damage than it did help. When, if ever, during the teaching of Maus did a teacher come up to you to check up on you?---Never. What, if any, complaints did you make about that teaching?---I didn't make any complaints about the teaching. Why not?---It was - wouldn't - wouldn't have helped. I've made complaints before, and it doesn't help. 897 While, as I have explained elsewhere, I do not necessarily accept that Joel or Matt were reliable estimators in terms of actual numbers, so that "tripled" cannot necessarily be treated as reliable, what I am confident about, and what I consider Joel had a genuine and clear collection about, was a substantial increase in antisemitic conduct in terms of heil Hitler salutes and antisemitic comments during and after the teaching of Maus. They were, I find, able genuinely to recollect such an increase because it was they who felt, acutely, the effects of that increase. 898 Some of the respondents' witnesses, such as Ms Lewis, were prepared to accept Joel's "experience" about this, evidence which I accept suggests she accepts it may have occurred although she was not prepared to admit positively that she recalled witnessing it. That does not mean, as I have sought to explain elsewhere, that I accept teachers did not witness this behaviour. I find it is more likely than not, on the basis of the student evidence, that they often did. However, there was little serious reaction to it, there was a level of tolerance, apathy or perhaps even tiredness in their response to it, and no leadership shown by Mr Minack and his leadership group to motivate teachers to do any more. The problem was allowed to fester and continue, to the detriment of Jewish students. 899 Notis Korkoneas described the environment during the teaching of Maus (bearing in mind that teaching spread over the whole of term 1) in the following way: And how did you find that experience with Maus?---Honestly, the awareness of the holocaust was good. However, the environment of, you know, other students. They took it the complete opposite and were make, like, you know, various jokes about it. And it was honestly overall not that pleasant of studying it, because other students did ruin the experience of studying Maus. So what jokes do you remember hearing or seeing?---I remember hearing various or different jokes about, like, the holocaust, about, you know, Jewish people burning, and just making, like, you know, oven jokes, making, you know, ashes jokes about, you know, the Jewish people that did suffer in the holocaust. To your knowledge, was this audible to teachers?---Yes. This was honestly in the classroom where teachers were present and nearby. And, in my opinion, they honestly didn't really do much about it. Compared - not compared. My bad. But just, like, to the extent where it honestly was very disgusting, because these, you know, students were just making jokes, and teachers were not doing anything about it. Who were the teachers? Do you remember?---In my English class I had Mr Brahn, Ms Goldstone and Ms Lewis. I can't remember if I've asked you, but how regularly did you see this across the teacher?---Well, I remember just seeing it, like, once or twice, like, every week. 900 Notis was an impressive witness, a thoughtful and considered young man who, as this extract demonstrates, was able to give balanced evidence, but had a clear recollection of what he found disturbing in the behaviour of other students, and in the absence of any effective reactions from BSC teaching staff. 901 Lilly Curnow's evidence was: Did you study the - the Maus book?---Yes. What do you remember studying - what do you remember about that?---I remember that I was in Mr Hunt's class for it and around that time when we were studying for it there was a definite increase in all of the jokes, the swastikas around the school and it was just - during the time that we were studying the Maus book it was just an - massive increase on all of that. There would be jokes in the middle of class about it and I was in Mr Hunt's class and he would, basically, just sit back and do nothing about it. 902 Again, I accept this evidence, for the reasons I have explained. 903 Guy's evidence included the following: All right. And so I'm moving to year 9. And how would you describe the school's culture regarding anti-Semitism in year 9?---It definitely increased as the students began to learn - in my year level at least - about Maus and World War II and how Jewish people were treated and things that happened to Jewish people. And how many kids were making anti-Semitic comments in your presence now?---During classes there was around 20 students. In my English class there - there was three - three classes combined into one big class when we read Maus. So at least - there was about 60 students. About 20 of them would like to make comments on certain things that happened during the book in the direction of me and Matt. Can you remember the types of comments? Were they different to what you were hearing at the start? Do you remember the specifics of things people were saying?---So one instance that I remember a lot - like, very clearly is we had gotten to a part in Maus where it showed that Nazis would take the small Jewish kids and pick them up by their legs and swing them against brick walls and it was quite graphic and a student had looked in my direction and had said, "Is that you guys in the book?". And how did - how did you - - -?---So - - - - - - feel about that?---I felt, like, defeated. It felt, like - like, what am I supposed to do in this situation because I can tell the teacher but they're not going to do anything about it, clearly. I already told the coordinators before. … And so what - to your awareness did teachers hear these things?---I think so. I believe so because they would tell students to quiet down and they could hear them. And there was one instance where another teacher who wasn't my teacher - I forgot her name. I know that she was maths - English teacher - and she had said that it wasn't funny what they were saying and that they should stop. Yes, and - but that didn't happen. Did anyone get punished for it that you saw?---No. 904 I am satisfied Guy was speaking here from his direct recollection. There was no exaggeration and I consider this is an accurate account of what he experienced in class. 905 As the applicants correctly point out, Ms McMahon's email about a large number of swastikas she observed in the Disco building in March 2018 was headed "Maus". She said: I also remember that last year [ie 2017], when we had this sort of issue during the study of the text, the English teachers also supported what Jan and I were trying to stop by addressing this sort of behaviour in class. If my memory is correct, there was sort of a speech prepared that all classes read out? I was wondering if it would be possible to do the same again? 906 In 2020, Ms McMahon provided a report about swastikas to Mr Minack by email. She wrote: The year 9s studied Maus in term 1. This occasionally led to students drawing swastikas on tables. Jan and I addressed this at a Year Level Assembly in Mid-March 2018. I have the page from my diary where we wrote a brief list of things we wanted to speak about-a more detailed/articulated list of discussion points would have been posted on Compass or even emailed to parents and students afterwards. 907 She was cross-examined about this email. In my opinion, despite under cross-examination trying to limit her answers to the occasion above, it is apparent that this email was about more of a general pattern Ms McMahon had observed in student behaviour after Maus was taught each year. The email was written, I infer, as part of a response by Ms McMahon to Mr Minack during the Worklogic inquiry process. That is consistent with the evidence of many of the applicants' student witnesses, and with the evidence of Joel, Matt and Guy. 908 The applicants are correct that there was little evidence about any specific steps taken ahead of the teaching of Maus, to try and contextualise the text for students, to sensitise them to the very different effects the text might have on Jewish students, or to keep a closer eye on Jewish students while it was being taught. The following, rather lengthy, extract from the cross-examination of Ms Lewis, one of the key teachers involved in the study of Maus, illustrates how little evidence could be produced to demonstrate any systematic and considered approach by BSC staff to these matters, and certainly no leadership from Mr Minack on it: MR BUTT: Can you see this is making a recommendation that going forward, students should be advised in Maus that the study of the text may be traumatic and they should assistance from the class teacher or the wellbeing department if they require any additional support?---Yes. I'm suggesting the reason it's there is because that had never happened as at mid-2020?---Yes. Perhaps that's correct. I'm not sure why it would be recommended. And if it never happened, it never happened in your class as well because some of my clients were in your class?---I suppose so, but I - I feel as though I remember doing a warning like this, but maybe I - - - You couldn't be sure, though, could you?---I - I'm not sure anymore. And you don't have any documentary evidence?---I'm - I could check my - my - - - Well, you're not aware - - -?--- - - - curriculum documents. - - - of any right now, are you?---Pardon? You're not aware of any right now?---Curriculum documents? You're not aware of anything in writing that warns them about going to welfare or anything of that nature?---I don't think so. And wouldn't it have been the appropriate thing to do with Joel Kaplan - you could see he was wearing a kippah on his head in your class, couldn't you?---Yes. You knew he was Jewish?---Yes. Did you know he descends from Holocaust survivors?---I believe Joel talked about it in class. And so you would have known Matt also did, as his brother?---Yes. And you knew the Holocaust was the topic of the book?---Yes. And that it pertains to Jewish death and suffering?---Yes. You had an obligation to check up on Joel, didn't you?---Yes. When you had Matt and Guy studying Maus in 2019, I put to you Matt's evidence on this, that he said you never told the kids about how bad the events were and how sensitive the topic is, not to make Jewish jokes, not to do Heil Hitlers or Nazi salutes, not to draw swastikas. You never set any consequences for this, that if you say Heil Hitler or draw a swastika, you will be suspended. All of those things would have been reasonable, wouldn't they?---I think that we did say that. It's the same as before, is it, that you're not sure but you think you might have?---I believe that we did. Well, I put it to you that you didn't?---Okay. Do you accept that or - - -?---I reject it. And you have no - but this is the one - this is the one that I say that you had no script or lesson plan; is that correct?---I believe that it's in the curriculum documentation, but it might not be. But even if it's not, I believe that we had that conversation. 909 There was a badgering aspect to this cross-examination, but nevertheless I consider a substantial part of Ms Lewis' evidence was reconstructed rather than recalled. There was a stark contrast between her rather detailed evidence-in-chief about what she "would have done" if she had heard or seen the kinds of antisemitic behaviour the applicants alleged, and her subsequent lack of much recollection during cross-examination, demonstrated that her evidence-in-chief was a reconstruction of what she hoped she would have done. I prefer the evidence of the student witnesses. 910 That said, in the passage above, the most that could be drawn from it is that Ms Lewis may have made some statements at the start of teaching Maus about the need for students to avoid antisemitic remarks and behaviour, and to remember the real effects of the Holocaust. 911 Matt was prepared to concede there could have been some kind of introductory session, but he was clear about its limits: Yes. I should break that down for you. The teachers involved, that is, Ms Lewis and Ms Trinh, will say that they did give introductory presentations to the topic that year in which they did speak about the sensitivity and the seriousness of the matters to be covered, and you deny that, do you?---I don't deny that they gave - had an introductory to the topic, but I deny that - because I don't recall an introduction, but I deny them saying they won't tolerate anti-Semitism. Well, when you say you don't recall the introduction, does that mean it's possible that one did happen, but you just don't recall it?---It is possible. Okay. And it's possible, then, isn't it, because you don't recall it, that at that presentation the sensitivity and the seriousness of the text was discussed?---No. I specifically remember that never being discussed. And Ms Lewis and Ms Trinh will also say that in those presentations they specifically said that they would not tolerate any anti-Semitic behaviour and they did say that, didn't they?---They did not say that. 912 I accept Matt's evidence. As it turned out, neither Ms Trinh nor Ms Lewis gave evidence to the effect put to Matt. 913 Ms Trinh's evidence confirmed there had been a change in practices, although her evidence was quite general: So, with any kind of text that we study with serious themes, we verbally would tell the students that this may come up - we wouldn't - we didn't specifically say the word "trigger warning" back then but we do now. That's what has changed since. However, back then we would say, "Now, there are themes in here that we will touch upon that will be quite sensitive. Please treat them with the utmost respect." It was done verbally from the teacher to the students. 914 She confirmed she did not personally issue any warnings to students about the text, but she was a junior teacher in a team teaching situation at this time, so that is hardly surprising. 915 The Worklogic recommendations demonstrate that there was a perceived gap in the policies and practices at BSC about steps to be taken when teaching a text with as sensitive a subject matter as that of Maus. I consider this supports the applicants' evidence and supports my view that teachers such as Ms Lewis did little or nothing, other than perhaps a short statement of some kind at the very start of the semester when Maus was being taught, to anticipate and seek to counter the rise in student antisemitic behaviour by students, both inside and outside the classroom. 916 Those being the factual findings I am prepared to make, the challenge for the applicants is how they seek to fit this into the framework of negligence. It is necessary here to return to their pleaded case. 917 For each of Matt, Guy and Joel, there is a factual allegation that the teaching of Maus increased antisemitic behaviour amongst BSC students. There is no more than a passing reference in Zack's pleadings which is insufficiently articulated to warrant consideration. I accept the applicants have proven that factual allegation. There were also factual allegations that no or no adequate steps were taken to contextualise and carefully present the material in Maus so as to reduce the risk of students behaving in this way, and that no or no adequate steps were taken to discipline students when they did engage in antisemitic behaviour, including during classes where Maus was being taught. I accept the applicants have proven those factual allegations. 918 From these factual allegations however, the allegations of law then vary as between Matt, Guy and Joel, with some being made amongst the Maus section of the pleadings, but most being made later in the general negligence allegations section. 919 For Joel, the allegation that "no one from the Welfare section at the school or anyone else, when reading a Holocaust text, checked up on or sought to support Joel" could be an allegation of a breach of duty of care, but it is otherwise undeveloped. It is also alleged that at "[a]t no time did Joel hear any support or empathy about Holocaust matters as a Jewish person from anyone at the School, be it teacher or student". I do not regard the second allegation as even attempting to make an allegation of a failure in a duty of care owed to Joel that goes any further than the undeveloped one before it. Finally, later in the pleadings and where the general negligence allegations are made, there is under the heading "Failure to Educate", at particular (l) in [385], the allegation that: More specifically, when teaching the holocaust text Maus, the School failed to teach it in a non-negligent manner to avoid increasing the problem it ought to have targeted. 920 For Matt, there is a sweeping allegation that "[t]o the extent there was any education at all on Jewish topics at School, it was done in a negligent fashion". Otherwise, at [390] under "Education" there is, in a particular incorrectly labelled "(b)", the allegation that: More specifically, when teaching the holocaust text Maus, the text should have been taught in a sensitive manner to avoid increasing the problem it ought to have reduced. Teachers also should have said "no-Anti-Semitic behaviour will be tolerated" and enforced the rules. 921 For Guy, at [395] under the heading "Failure to educate", in a particular incorrectly labelled "(b)", there is the allegation: In particular, the holocaust text Maus should have been taught in a sensitive manner to avoid it escalating anti-Semitic conduct or having children make inhumane jokes/insults in classes without being punished. Teachers should have said "no-Anti-Semitic behaviour will be tolerated" and enforced the rules[.] 922 In the applicants' concise statement, the failures are relevantly put this way (at [14]): 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. The School's failures were linked to discrimination against the Applicants and it failed to have an adequate mechanism for holding accountable offending staff. 923 The concise statement at [17] may also be relevant to the Maus allegations: Firm staff intervention was required but not forthcoming. There was no message to cease anti-Semitic/Nazi graffiti at any time (despite unusually offensive amount) or taunts/gestures. The principal himself failed to respond to requests to remove Swastikas throughout the period, while the School displayed posters and email sign-offs supporting other minorities. There was no School talk to cease anti-Semitic bullying until late 2019, when the principal again referred to his Nazi background, spiking anti-Semitism. 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. (Original emphasis.) 924 What these pleadings and the concise statement disclose is that there is no separate claim for damages for a breach of duty of care for the teaching of Maus. Rather, the way Maus was taught, and its alleged effects, are used by three of the applicants as one example of breach of a more general duty of care owed to each of them. 925 The respondents submitted: The claim by some of the applicants that Maus was negligently taught is novel. It fails to confront that tort law does not impose or recognise a "duty to educate". The chain of events that must be relied upon to show reasonable foresight seems to be long and to involve different actors. There is no evidence as to how Maus ought to have been taught or how that teaching would have averted the risk of harm. There is no acknowledgment that the teachers were teaching to a curriculum. (Footnotes omitted.) 926 My conclusion on this is confirmed by the complete absence from the applicants' final submissions of any development of any articulated content for a separate duty of care owed to each of the three applicants in the way Maus was taught. This is the point made by the respondents, which should be accepted. Without such articulation and careful development, the applicants could not possibly discharge their burden of proving the existence of such a separate duty of care, let alone its breach. And that is before the complication about proving damage, which I have discussed above in relation to swastika graffiti. However, there is an anterior point: namely, that in substance the case as presented is one about an overall duty owed to each of the applicants to take reasonable care to avoid them being subjected to antisemitic bullying, harassment, taunts and other behaviour by other students at BSC. 927 Therefore, the factual findings I have made about Maus are matters I will consider in the individual claims in negligence by each of Joel, Matt and Guy.

The failure to provide adequate disciplinary consequences, adequate behaviour encouragement and adequate education to BSC students 928 In my opinion, these allegations, at least insofar as they are made to sustain a cause of action in negligence, are in the same category as the applicants' allegations about the teaching of Maus. That is, the various factual allegations in the pleadings are not a separate claim for damages for a breach of any separate duty of care for the failure to provide adequate disciplinary consequences to students who engaged in antisemitic bullying and harassment. Rather, the "failure to discipline", as it is often called in the applicants' contentions, is used by them as an example of breach of a more general duty of care owed to each of them.

Matt and Guy's common allegations 929 In this section I have grouped a number of allegations made on behalf of Matt and Guy about the individual teacher respondents. Some are made only by one applicant, some by two, but for readability, I have grouped my findings together in this section.

Matt and Guy's claims against Ms Flessa - pleadings 930 Three main allegations were made against Ms Flessa by Matt and Guy.

Class assignment 931 The first allegation by Matt and Guy against Ms Flessa relates to a class assignment in a humanities class taught by Ms Flessa in 2018. The applicants contend that Ms Flessa contravened s 9(1) and/or s 18C of the RDA and that the State is vicariously liable. They also plead a breach of duty of care with respect to the class assignment. 932 The applicants plead: In 2018, Ms Flessa taught a humanities class that had Guy Cohen, Matt Kaplan and Ariel Katz all as students in it. In one lesson, the students' task was to create a PowerPoint presentation on someone they thought was a great leader. Instantly people began to yell out, "Oh, Miss, can I do Hitler?" She rejected that. Then Matt Kaplan asked if he could do Benjamin Netanyahu, the Prime Minister of Israel. She told him "No." Two days later, the Principal, Richard Minack came into Maths class and pulled Matt and Guy (and a few others) aside individually, and asked them about what happened with [Ms] Flessa. The students variously told Minack what happened and Matt and Guy said they were not comfortable with Ms Flessa's conduct. Mr Minack left and Matt and Guy never heard about it again. Nothing was done to rectify or acknowledge the prevention of Matt being able to conduct a research project on his chosen leader of Benjamin Netanyahu. … Ms Flessa also inserted opinions on the Israel/Palestine conflict into classes that had nothing to do with the substance of classes. This included her humanities subject where she felt a need to insert personal anti-Israel opinions to Jewish/Israeli students out of nowhere, to the effect that Israelis are occupying all of Palestine. The opinions and insults were made with her knowing that Guy (and the others) were Jewish and/or Israeli, and carried out in a way that was inter alia offensive, insulting and humiliating in breach of their Human Rights. 933 The applicants also plead: In 2018, Ms Demi Flessa, as a Humanities teacher, carried out another type of unlawfully discriminatory act against Jewish/Israeli Students when she forbade Matt to do a class project on Israel's Prime Minister, Benjamin Netanyahu. It was said Netanyahu should not be allowed to be studied. This conduct violated the Act and the Applicants' Human Rights. Particulars a. Ms Flessa told Matt words to the effect he was not allowed to choose Benjamin Netanyahu because he is not a famous leader, and the country is Palestine not Israel, and the 3 Israelis in the class are "Palestinians" (she said "you guys are Palestinian"). b. This was a reference to Matt, Guy Cohen and Ariel Katz, all of whom are Jewish and identify as Israelis. They were singled out in the class. c. This took place during class time, in front of the whole class and was a loud incident with Ms Flessa raising her voice to insult the Jewish/Israeli students. This incident was reasonably likely to offend, embarrass and or insult the Jewish/Israeli students. Ms Flessa went out of her way to introduce this 'prohibition.' The Jewish students: a. were offended, insulted, embarrassed and humiliated by this conduct which took place in front of the whole class; and b. consistently on edge or alert to potential attacks against Israel or them because of their Jewish/Israeli identity. Matt attempted to defend his decision to do a project on Mr Netanyahu and was quickly shut down by Ms Flessa. The students reported the incident to the Coordinators at the time. Janet Abadee, Matt's mother, called the School about it. The Coordinators took it as if Matt was lying or similar and did not give him much opportunity to explain the situation and left it unresolved. Matt was forbidden from doing the project on Benjamin Netanyahu and was given a different leader to work on by Ms Flessa, Mahatma Gandhi. This type of incident involving Matt occurred again with Ms Flessa on multiple occasions that year. On one occasion, for no apparent reason during a class on the economics of the Middle East, Ms Flessa referred to Israel as "Palestine." The class did not concern that area of the Middle East but the teacher felt the need to introduce that personal opinion. This offended, insulted and or humiliated Matt (and Guy and Ariel Katz).

Comments about Israel and Palestine 934 The applicants allege that Ms Flessa "inserted opinions on the Israel/Palestine conflict into classes", including "insert[ing] personal anti-Israel opinions to Jewish/Israeli students out of nowhere, to the effect that Israelis are occupying all of Palestine". That allegation is apparent from the pleading I have extracted immediately above. In their concise statement, the applicants say: During early 2018, a Year 8 Humanities class taught by Ms Flessa had Israeli students Matt Kaplan, Guy Cohen and Ariel Katz in it. Ms Flessa twice imposed offensive anti-Israeli opinions on the students, in circumstances entirely unrelated to the class, loudly and forcibly asserting that: (1) Israelis are occupying all of Palestine (2) Israel is "Palestine"; and (3) the students are "Palestinians,", "not Israeli." (Footnote omitted.) 935 The applicants claim that Ms Flessa breached s 9 and s 18C of the RDA, as well as making a claim in negligence.

Heil Hitler taunts 936 Matt and Guy make two allegations with regard to 'Heil Hitler' salutes having been made in the presence of Ms Flessa. The applicants allege two incidents: (a) First, that during a humanities class in 2018 taught by Ms Flessa: Matt Kaplan received a "Heil Hitler!" … in front of Ms Flessa, who simply ignored the issue. (b) Second, that: during Guy's year 9 (2019), a student yelled "you fucking Jew" in the locker area directly in front of Ms Flessa, who walked by, said "Shhh… you shouldn't say that," and never reported the incident. 937 The applicants plead that the response (or lack thereof) to these incidents breached s 9(1) by reference to s 3(3), as well as, on the applicants' pleading, "constitut[ing] offensive behaviour based on race in breach of s 18C". How Ms Flessa could have any liability under s 18C about these taunts is wholly unclear. The applicants also plead a breach of duty of care.

Matt and Guy's claims against Ms Flessa - resolution

Claims against Ms Flessa about the class assignment 938 There are several difficulties for the applicants on this claim, even before the terms of s 9 and s 18C are considered, or before the elements of negligence are addressed. They are factual. 939 The onus of proof being on the applicants, they must establish on the balance of probabilities the version of events for which they contend. I am not satisfied they have done so. I did not find either Matt's evidence, or Guy's evidence, on these events to be reliable in terms of detail. 940 I accept there was a class assignment in 2018, and students were required to select a leader from a list of "key figures or movements", with the students to write a research report on that figure or movement that "should focus on the use of 'direct action' and a desire to overcome social injustice". I accept that a student other than Matt or Guy suggested Hitler during the class. I accept Matt suggested Benjamin Netanyahu. I accept he was not permitted to write about Benjamin Netanyahu. I accept Ms Flessa's evidence that her reasoning for this decision was that: (a) students had to "stick to the list"; (b) students could normally propose a different leader or movement not on the list if they gave advance notice, giving Ms Flessa time to research the proposed leader/movement and discuss it with other members of faculty, but no such notice was given here; (c) she had "lost control of the class by this point, because everybody was yelling and callings things out", and she was "trying to quieten them down to get on with the lesson"; and (d) she didn't take Matt's suggestion seriously, because he was "so inflammatory". 941 In cross-examination, Ms Flessa indicated as follows: So as I understand your evidence, you've accepted that there was no requirement to follow the list. Is that what you're saying?---There is a requirement. We're trying to stick to the list, but we're also flexible with our students, as well, and the protocol is - is that they approach us, we have a discussion about why they want to do something else, we investigate ourselves, we will ask another member of staff that's in the same faculty, and then we will get back to the student and approve it. That's - it's a discussion. 942 Whether Ms Flessa was right or wrong in her assessment of which leaders fell within the topic and which did not, the assessment was hers to make as the classroom teacher. Whether or not she considered she was required to "consult" with other staff in deciding which leaders fell within the scope of the assignment is not determinative. While Matt and Guy may have found the decision unfair, or not to their liking, the ascribing by them of some kind of antisemitic motivation to her decision was, I find, nothing more than a product of their general state of mind at the time, of feeling hounded and treated badly at BSC because they were Jewish. 943 I find this led to both young men becoming hypersensitive, and seeing any reference to matters touching on Israel, or Palestine, or Judaism, or Jewish and Palestinian people, as slights and targeting of them, when objectively it was not. It is understandable they felt unprotected and unsafe at BSC at the time, but I find that both Matt and Guy came to see antisemitism where there was none. This allegation is a good example. It was Ms Flessa's role as classroom teacher to set the assignment, and to do so in a way which she considered reasonably likely to achieve the learning objectives. I am satisfied she approached her decision-making about which leaders students could choose from this perspective, and no other. 944 So much is apparent from her evidence, where she described Matt's level of hostility and this obscuring any chance for her to see a good learning outcome from what he was insisting on: You can't say now that Matt was clearly interested in Israel and Israeli concerns in your class?---My assessment of him in class was that he was hostile and aggressive. That was - I couldn't make the assessment that he truly was interested in that. My assessment was that he was being disruptive, rather than wanting to investigate, explore and create. 945 Contrary to the applicants' submissions (at [63]), whether there was or was not a "list" of leaders, whether there was or was not more than one list, and whether the evidence disclosed several versions of this fact, is barely even tangentially relevant at this distance in time from the events. What matters is, as I have found, that Ms Flessa as classroom teacher had a role in deciding what political leaders she considered appropriate for the learning objectives of the classroom teaching exercise. That Mr Minack backed her judgment, as the applicants contend and Mr Minack accepted, is unsurprising and entirely appropriate. This was a classroom teacher level issue. That Ms Abadee complained demonstrated, as many of her other complaints also demonstrate, that she was always trying to support her son Matt (and Joel, in other circumstances on the evidence). However, neither the making of her complaint, nor the content of it, is probative of the facts as I find them to have occurred. Her complaint was based on what Matt told her, and as I have found, his perspective on these events was skewed by his sense of being oppressed at BSC at this time for being Jewish. He was seeing antisemitism on this occasion where there was, I find, no such motivation, objectively or subjectively, by Ms Flessa. 946 The fact Matt was Jewish, or of Israeli national origin, were not factors in Ms Flessa's decision-making. Nor was the fact that Mr Netanyahu had been the leader of Israel. Ms Flessa sought to have students write on world leaders with particular social agendas. Whether or not she remained consistent in that objective with all students is not persuasive, I find, of any true reason for her refusal to Matt and Guy being based on race or national or ethnic origin. Any perceived inconsistency (and I make no finding that there was any objectively proven inconsistency in the way Ms Flessa made decisions about individual students' completion of the assignment) is much more likely to be explained by the overall pressing nature of being a classroom teacher of year 9 students in a state school, and compromises she felt she needed to make to get the assignment completed by the students. 947 Ms Flessa made a judgment call, and that is all. 948 These allegations must be rejected on the basis the applicants have not discharged their burden of proof in establishing their version of events in the classroom, nor Ms Flessa's true reason for the decisions she made. 949 Notwithstanding those findings, I should clarify that I am also not sufficiently persuaded Ms Flessa's recollection was so accurate as to accept her entire narrative of these events. In my view, like most of the teacher witnesses most of the time, I consider she was reconstructing - either from notes, from the documents in the Worklogic inquiry process, or simply from her memory. 950 Like several other teachers, and reflective of the respondents' whole case in respect of Matt in particular (but also Joel), there was a theme of seeking to paint Matt and Joel as disruptive, difficult, unjustifiably emotional and sometimes violent students, as a way of explaining why their complaints were not addressed differently, or why teachers' reactions to specific incidents developed as they did. Reflecting on the evidence as a whole (of which there was a great deal) and in circumstances where I have gone back to my contemporaneous notes and to the transcript many times, I am comfortably persuaded that Ms Flessa's evidence was affected by this perspective in hindsight, borne of being embroiled in this litigation and, consciously or unconsciously, becoming defensive about her own conduct and thus seeking to place the applicants' behaviour in a more extreme light than the contemporaneous records bear out. 951 I do, however, accept the class was likely to have become disruptive at times during these events - I accept that because I find Matt in particular is likely to have been loud and forceful in his protests and in his expression of his views, and likely to have become quite heated. I have no doubt there was a level of disruption in the classroom. 952 Matt and Guy's claims against Ms Flessa in respect of the class assignment fail at a factual level.

Alleged comments about Israel and Palestine 953 These allegations also fail because the applicants have failed to prove on the balance of probabilities that Ms Flessa said what they allege she said, and second that even if she did use some or all of the language they allege, the true reason for her comments was the race or ethnic or national origin of Matt and/or Guy. 954 Since the allegations fail at a factual level, the s 18C allegation also fails. Even if I were wrong and the applicants had established Ms Flessa said what they attributed to her, the s 18C claim would fail (at least) because the applicants have not established that Ms Flessa's conduct was because of their race or ethnic or national origin. 955 In closing submissions, the applicants allege that in 2018 in her year 9 humanities class: Ms Flessa on at least 3 occasions, imposed offensive anti-Israeli opinions on the students in circumstances entirely unrelated to the class, loudly and forcibly asserting that: (1) Israelis are occupying all of Palestine (2) Israel is "Palestine"; (3) the students are "Palestinians," "not Israeli" and (4) Israel is "not a legitimate State". Ms Flessa had earlier made similar remarks in 2017 to Mr Katz in ESL. (Footnotes omitted.) 956 Matt, Guy and Ariel Katz were alleged to have been in that class and heard these remarks, and responded to them. 957 On Matt's evidence, some of Ms Flessa's remarks were made in the context of the debate about whether Matt could nominate Benjamin Netanyahu as the leader he wished to write about in the assignment I have discussed above. 958 Matt's evidence was: I believe she said that he wasn't a famous leader and that, "It's not Israel; it's Palestine. And that, "You're not Israelis," and, "You're Palestinian." 959 He also gave the following evidence: I remember another incident where - I can't remember the exact topic, but we were on the topic of the Middle East. And she brought up Israel and how it was Palestine and we weren't Israelis. It just felt out of context and targeted at us - told us we weren't Israelis and humiliated us in front of the class. … And what do you recall about that?---We were - I believe the topic was oil. We were talking about the oil and the economics of the oil in the Middle East, which is a topic you cover in a humanities class. And she went out of her way to call Israel Palestine and then seemingly didn't skip a beat and went back on to the topic about oil. Me, Guy and Ariel tried to pull her up on this, but she tried to move on and shut us down. So in the first incident or the second, when you were having these conversations, what was Ms Flessa's reaction to your comments?---She had this odd smirk, like, she enjoyed humiliating us in front of the class. But that's all I could really - - - How long would these conversations go for?---They were very short. But, you know, she would make her point and she - you know, however long she wanted to, but we weren't allowed to speak. She shut us down as soon as we said something. 960 Guy's evidence included the following: Well, Ms Flessa had made it very clear that she does not support, in her words, the State of Israel and that it was illegitimate and she would make that known and I remember on two specific occasions in the L buildings behind the library - in the L4 building as well we had humanities with her and where - I'm not sure why she brought it up during that time. But she would randomly start talking about Israel and Palestine. Give her opinion which was often against Israel and say - yes, saying that it was - illegal. 961 Ms Flessa's evidence can be divided into an earlier narrative she gave in writing as part of the Worklogic inquiry, and her oral evidence. In the former, she gave the following account to Mr Minack, for the purpose of him passing it on to Ms Dickinson: I have never had political discussions with Ariel or with Matthew, and I do not understand what he means by the "west bank" nor have I argued or discussed with Ariel or Matthew over rights to any land..". As I said in my previous statement Matthew yelled out in class and asked me twice about whether Israel/Palestine exists and I replied that they do exist. I cannot recall each incident where Matthew bought up political issues in class, but I do recall once or twice where Ariel joined in with Matthew yelling out to other students about the middle eastern issues. I do not remember details, but I asked both Ariel and Matthew to sit down and be quiet, so that we could continue with the lesson. My only surprise was that Ariel was yelling out and this was out of character, as he was always studious and quiet. Indeed I thought that I had a good working relationship with Ariel. Because I was aware of the passion of the students' beliefs I did not engage in conversations about the middle east. I would even try to curtail any heated debates that Matthew would instigate with other students in the class on these issues, as they were totally irrelevant to the curriculum that we were studying. 962 This account is focused on Ariel's involvement in what occurred in class. Ms Flessa's assessment here of Ariel as generally quiet and studious is consistent with other evidence and my own impressions. However, contrary to the applicants' contentions in their closing submissions, in this account Ms Flessa does refer to the frequency with which Matt sought to raise the topic of "the middle east", which I infer includes Matt raising his views about disputes between Israel and Palestine. 963 Under cross-examination, Ms Flessa insisted that she never interacted with Matt and Guy (nor Ariel) about what she described as "Middle Eastern issues". Rather she described those students as having: heated debates that they would be having on those issues and they were irrelevant to what we were studying … yelling out to other students about the Middle Eastern issues. I do not remember details but I asked both Ariel and Matthew to sit down and be quiet. 964 Ms Flessa added later that "consistently, this [I infer, conversations about Israel and Palestine] would be an issue". It was not long after this that I reminded the applicants' counsel that his cross-examination was "bordering on badgering", and asked him to "reflect in the break about that and ensure that your questions are clear and relevant". 965 Ms Flessa otherwise denied the factual matters put to her, including that she had told Matt, Guy and Ariel that "they're really Palestinians". These kinds of factual allegations are fanciful in my opinion, and there is no basis in the evidence to accept Ms Flessa (or any other teacher) said any such thing. The statements are patently illogical. They are a good example of how exaggerated the applicants' case became in parts, because of the high levels of emotion and anger felt by the applicants, especially (I find) by Matt. 966 While Ms Flessa was somewhat defensive in parts of her evidence, and as I have explained, tended to exaggerate with the benefit of hindsight and the context of this trial the aggression levels displayed by Matt in class, she was also quite clear in her denials of the contentions about what she herself said during these exchanges. I do not consider she was being untruthful or evasive. There were times her evidence was somewhat confused, but that was as much because of the badgering questioning in cross-examination by the applicants' counsel as anything else. 967 Ms Flessa described Matt as "very very often" stopping the class and stopping her teaching. She said: all I knew is that he was angry. 968 This, I find, was in 2018. I find Ms Flessa's description of Matt's behaviour in class is more likely than not to be accurate. Much of Matt's evidence, the evidence of other students, that of his mother, and that of other teachers, is all consistent with Matt being a very angry young man by 2018. He did not dispute it himself. I explain elsewhere how it is more likely than not that much of Matt's anger came from his frustration at the levels of antisemitic behaviour from other students he observed and experienced, and his frustration with the apathy and tolerance shown by the BSC leadership, the BSC teachers and Mr Minack, to this behaviour. 969 Nevertheless, on these specific allegations I do not accept that Ms Flessa said anything of the kind the applicants allege she did. The applicants' evidence is generally insufficiently reliable and specific. Where Matt, for example tried, to be more specific I find he was, in substance, placing his own interpretation on the situation, skewed by his anger and frustration at how he and other Jewish students felt they were being treated at BSC. Anything and everything that was not consistent with their views about Israel and Palestine, and Israel and Palestinian people, and any shutting down of what they wanted to say, was interpreted in a highly emotional and extreme way by them, with motives attributed to the teachers that were simply not objectively present. 970 Ariel's evidence began very generally, with him saying he could not recall specifics. With some objections and some backwards and forwards between counsel and the Court, eventually Ariel gave some more specific evidence including the following: Well, I believe I said this already, but the most specific I can go is ..... saying that Israel is occupying Palestinian land and not clarifying in the West Bank or anything, so whatever that may be, whatever those Palestinian lands may extend to. … I believe it was in the grade 7 class, not the humanities class, but one of the specific topics and ..... the - one of those conversations was about Israel was occupying Palestinian lands, not clarifying where those Palestinian lands are if it's just the West Bank and Gaza or if it's more than that, so I wasn't sure how much was occupying in, that's why I said that she was attacking the legitimacy of the State of Israel, because how far is the State of Israel occupying; that was the sort of question that was in my head at the time. When you or Matthew raised comments back, how did you feel you were treated when that happened?---She was - she definitely didn't like it. Every time a comment was raised, she would try to argue back against it and if she didn't like the conversation keeping on going, she would just cut it off after she answered. And do you recall, how did Matthew look when he was talking to Ms Flessa on these Israel/Palestine issue?---How did he look, like, in terms of, what, the class would see him or how did he - - - How did he look when - - -?---I'm not sure I understand. His body language?---He was definitely angry; that's the best way I can describe him. Angry and trying to contain himself, so - poorly, if I can add. 971 As I have explained elsewhere, I found Ariel to be a reliable, and moderate, witness. The moderation and honesty in his accounts is evident in the extract above, in how he describes his recollections of Matt. 972 That said, I do not consider Ariel had the kind of specific recollection, in terms of context and precise language used, that would satisfy me on the balance of probabilities about what Ms Flessa said. He freely admitted he had trouble contextualising it to years, classes or places. I am prepared to find it is more likely than not that during his time at BSC and while he was in classes with Matt, there was some discussion about Israel and Palestine, and some discussion about Israeli occupation of certain lands. That is subject matter which appears in various forms in the media on a daily basis. It is unsurprising that in a state high school this topic is also raised. 973 I accept "the Middle Eastern issues" or the "Israel/Palestine issue" (or various other descriptors given the evidence) were an emotive topic for Matt, Guy and Ariel. I accept they had, during the relevant period and persisting when they gave evidence, strong personal views about these matters, which were supportive of a perspective on these matters that tended toward a pro-Israeli, anti-Palestinian position. Given what I saw of each of them in evidence, especially Matt, I find it is more likely than not that the three young men were vociferous in class about their views. Mr Hutchins' and Mr Lyons' evidence confirmed this. There is nothing wrong or unusual in that, when teenage students who are forming their own views of themselves, of their communities, of politics and of how they see the world, are given an opportunity to express themselves. Classrooms are one of the appropriate venues for the expression of views. Teenagers sometimes may not be able to moderate their language and behaviour as well as one might objectively hope; they are young people still learning those skills of self-control and respect and tolerance for others. Things can get heated, as the evidence of teachers in this proceeding described. 974 I do not accept the applicants have proven that Ms Flessa expressed any personal views of her own, nor that she did so in any way which was based on, or because of, the fact that students in her class such as Matt, Ariel and Guy were Jewish, or were Israeli nationals. As I have explained above, the objective reason for any discussion that did arise (and the applicants have not proven with any specificity what was said) was no more than the kind of exchange about contemporary issues one might find in any high school classroom.

Heil Hitler taunts by students in Ms Flessa's class 975 The applicants contend that when Matt and Guy were in year 8 and being taught by Ms Flessa, a student identified as "Brent": did Heil Hitler and Nazi salutes in the locker bays and class. 976 It was alleged this occurred in Ms Flessa's class and she failed to discipline the student for this behaviour. Matt's evidence was: And he did one - he did multiple in a class with Demi Flessa. And I could see her. She looked up, acknowledged it and looked back down like she didn't care. 977 Matt's evidence was that he reported these kinds of incidents to Mr Minack, and also to Mr Nash and Dr Riha as his year 8 student coordinators, but there were no consequences he was aware of for the students concerned. No additional evidence or argument was relied on by Guy: see applicants' closing submissions at [86]. 978 Ms Flessa denied the factual allegation about a student called "Brent": I don't know who the student is, and nor did I teach him, and nor did I see that or hear it. 979 She was adamant there was "no Heil Hitler in the class". Ms Flessa was then cross-examined on a hypothetical basis about what she would have done if such a taunt had been given by a student in class, but I found this line of cross-examination unhelpful, and it did not grapple with her clear denial of observing any such conduct occurring as Matt had related it. 980 There was another example put to Ms Flessa from 2019: In 2019, a similar thing to Matt happened, I put to you, with Guy Cohen in year 9. Guy gave evidence, I'm telling you, to the effect that in his presence, on stairs leading to a dodgeball court, someone screamed "Heil Hitler" in your presence, and you asked, "Who did that? You shouldn't say that", and then you walked away, and that's what really happened. That's the truth, isn't it?---I don't recognise that at all. I don't remember anything like that. I - I have personally not had that experience, so I can't say yes to something that hasn't happened in front of me or that I've heard. 981 Guy's evidence on this was: Did any of the teachers ever tell you not to say or do anything anti-Semitic?---There was one time where Minack had come to - to our classes during Ninth Grade in the D1 building, and he had, like, a year level assembly for the Ninth Graders. As we were just covering the book mounts, and he - he covered, I guess, you could say, the - the topics of anti-Semitism and treating - treating people only equally. The issues that, the moment that the meeting ended, the number of anti-Semitic, like, occurrences increased. Like, there was - immediately after, people were screaming, like, "Heil Hitler", as if to, like, go against Mr Minack and to, like, show that they were rebels. Did any teacher hear any of this?---Yes. So immediately after that - that meeting, we were walking out of the D1 building towards - there were stairs that led up to, like, dodgeball courts, and - and Ms Flessa had come down just as - as someone screamed, "Heil Hitler," and she did stop and she - she asked, "Who did that? You shouldn't say that." and then she walked away. … MR BUTT: To your knowledge, did anything happen as a result of that?---No. Did you see anything further than that one comment?---From Ms Flessa? Yes?---No. (Emphasis added.) 982 In my opinion the word "mounts" that I have highlighted in bold in the extract above should be "Maus". Other evidence about when Maus was taught, and when Guy studied it, supports this inference. 983 These two alleged incidents may, I accept, have happened. My general view on the evidence as a whole is that the applicants and student witnesses were reliably recounting specific incidents of antisemitic taunts and behaviour from other students. However, in these allegations, the factual question is more specific: did Ms Flessa see the Heil Hitler taunts and salutes, and if she did, did she do anything to discipline the students involved? 984 As to the first allegation - about "Brent" - Ms Flessa's denials about a student called Brent and the clarity of her denial about this specific incident lead me to conclude that the applicants have not discharged their burden of proof that Ms Flessa saw the Heil Hitler and did nothing. Matt may have persuaded himself Ms Flessa must have seen it or should have seen it - but that is not the same thing. 985 On the second incident, I have accepted Guy as a reliable witness. His account was as detailed as one might expect for an event more than four years ago. He could contextualise the event around an address given by Mr Minack, and explain the relationship to that address. I accept his evidence. I find Ms Flessa observed the Nazi salute, and said what Guy recounted, and did nothing further. The respondents adduced no evidence of any further action being taken. 986 This evidence is a good example of what I have described elsewhere as an inadequate response, without any proactive components, and an apparent tolerance for antisemitic behaviour. In the context in which Guy described it is important in a probative sense. Mr Minack had addressed the year 9 cohort specifically about treating others equally, and about antisemitism specifically. The year 9s were studying Maus - a situation, as my other findings bear out, which had escalated antisemitic behaviour. And yet Ms Flessa, a year 9 teacher, had nothing more than a half-hearted response to a specific example of student behaviour, as Guy observed, really flying directly in the face of what Mr Minack had said. I infer Ms Flessa had not gained any sense from Mr Minack's address, or anything else he instructed his staff about at this point in time, that she should 'come down hard' on this behaviour, and that there should be express disciplinary consequences. Rather, the environment at this time facilitated a weak and half-hearted response. For students, I have no doubt the impression created was that they were free to continue this behaviour without apprehending any real consequences. And that was, I find, what in fact happened, the tragic events later in the year with Zack Snelling being the most outrageous example. 987 That said, there is no basis for to find any individual contravention by Ms Flessa of s 9 of the RDA because of this incident. It forms part of the factual narrative that contributes to the Court upholding both the negligence claims of some applicants, and the overall claims against Mr Minack relating to a contravention of s 9 of the RDA. An inadequate disciplinary response by a single teacher to a single incident, in the circumstances of this proceeding and the period over which the allegations are made, will not have the effect required by s 9 on any of the applicants' human rights. If the applicants had proven a more significant course of conduct by an individual teacher, and had proven the effects of that conduct, that may be a different situation.

Matt and Guy's claims against Mr Varney - pleadings 988 The applicants make a number of allegations regarding Mr Varney. Each relates to events alleged to have occurred during an English class taught by Mr Varney, when Matt and Guy were in that class in year 8. For each of these incidents, the applicants plead contraventions of s 9 and s 18C of the RDA, as well as claiming a breach of duty of care.

Statements in Hebrew 989 The applicants allege Mr Varney: regularly spoke to [Guy] in Hebrew as he knew Guy was from Israel. Varney said cuss words in Hebrew and mocked Guy in front of the whole class using "Hello," [and] "Shalom," to make a joke and humiliate Guy during class times. Mr Varney's provocations of Guy were very frequent. 990 In their concise statement, the applicants also allege Mr Varney "consistently mocked [Guy] in Hebrew cuss words". The applicants allege that Matt and Guy together went to see Mr Varney in his office, and confronted Mr Varney regarding these incidents, that Guy's mother Sarit Cohen also raised concerns regarding these incidents with Mr Varney, and that both Sarit Cohen and Guy raised such concerns also with Mr Nash. They allege that despite this, "the racial discrimination by [Mr] Varney against Guy Cohen continued in classes".

Statements about Israel and Palestine 991 The applicants also allege that Mr Varney made certain comments in the same class in which Matt and Guy were students, in 2018, about Israel and Palestine. Four alleged incidents fall under this allegation: (a) that Mr Varney expressed a view that Israel was actually Palestine; (b) that Mr Varney called Guy "Palestinian"; (c) that Mr Varney stated that "Israel is not better than terrorists"; and (d) that Mr Varney sought to shut down Matt and Guy's objections to his comments about Israel by telling them not to speak or interrupt him or he would throw them out of his class. 992 The applicants say that Mr Varney made these comments in the knowledge that Matt and Guy were Jewish and Israeli.

Matt and Guy's claims against Mr Varney - resolution 993 There are two sets of claims by Matt and Guy against Mr Varney.

Statements in Hebrew 994 The evidence supporting these allegations made by Guy came from Guy himself, some short corroborating evidence from Matt who was in class with him, and from his mother Sarit Cohen. There was also some evidence from Mr Nash, and of course Mr Varney himself. The conduct is alleged to have occurred in 2018, when Guy was in Mr Varney's year 8 English class. 995 Guy's evidence included the following: So when - there was quite a lot of events with Mr Varney. It mainly started by him. During class, he would point out I was Israeli and then say shalom to me, which is hello in Hebrew. He would also say ben zona which literally translates to "son of whore". I don't know why - I don't know how he knew what that - if he knew what that meant. I believe he did. He knew that it was a curse word. I don't know what - why he did say it. I think he found it funny. But in general classes, he would like to pick - pick on me for the fact that I was Jewish and Israeli. He would point it out to the rest of the class, which was one of the main reasons how people found out that I was Jewish, that Varney would make something out of it. 996 His evidence was that Mr Varney gave this greeting "every single class for the first semester". Guy explained how he reacted: Every single time. Every single time, I would tell him he was not funny. That I did not like it. That it would make me uncomfortable when he did do it, and this was done in front of the class. I would tell him in front of everyone that I didn't feel comfortable with it, which would kind of - was kind of like a big step for me, I guess, but it was me - me - that was me, like, moving beyond my limits to speak out against him. I just told him that I didn't feel comfortable, full stop, and that he needs to stop, but he didn't really care. … I felt, like, isolated from the rest of the class. I felt like I was different for some reason. I was very annoyed. Because by this time, I had already learned from parents that - all the significance behind Jews and Israelis and the way we weren't liked very much throughout history. 997 Guy's evidence was that Mr Varney appeared to find the situation amusing. Guy explained that his mother was aware of these remarks but it was after the map incident I discuss below that she decided to come to the school to speak to Mr Varney. Guy's evidence was that he did not feel any more comfortable in Mr Varney's class after his mother spoke to Mr Varney, but the comments by Mr Varney reduced. Guy explained how he and Matt spoke to Mr Nash, their year level coordinator that year, and how his mother also spoke to Mr Nash at a parent teacher evening. Guy gave some evidence about how disappointed he was with Mr Nash's later admission (see below) and yet Guy felt Mr Nash did not address his issues with Mr Varney at the time they were occurring. 998 In cross-examination, Guy's evidence remained firm: Mr Varney will agree with you that he did greet you by saying "shalom". But there was a - a time that you told him to shut up and after that he stopped using the greeting. That's right, isn't it?---That's false. You've said that he used the phrase "ben zona" with you and I think you said something like 50 out of 100 times or 50 times. Is that right?---Yes. He never used that phrase once with you, did he, Guy?---He did use that phrase. 999 Sarit Cohen described in evidence her level of upset at hearing from Guy how Mr Varney was behaving. She described trying to meet Mr Varney, which took a while, but eventually she did meet him in "late 2018", in between some of his classes. She described what she said: I share with him the frustration and - of me and Guy - and ask him to stop -first of all, to stop talking in Hebrew at all, because it's not relevant, in my view. He thought it's funny. I told him I don't think it's funny at all and also [neither did] [G]uy. … about the Hebrew, he said that he thought it's funny to talk with the kids at school - at the - the class. I told him that this is really not funny and that Guy feels very uncomfortable to be in class and talking in Hebrew. And he said that he will stop, because he thought it's funny, but if it's not, he will stop. 1000 She went on to describe that despite what he said, Guy complained to her Mr Varney had not stopped addressing him in Hebrew, and using the phrase he found offensive. She raised it again at a parent-teacher meeting in September or October of 2018. She described how she was not satisfied with Mr Varney's responses, and decided to speak to Mr Nash. In evidence is an email Ms Cohen sent to Mr Nash on 12 September 2018, in which she makes a number of complaints about Mr Varney's attitude and behaviour towards Guy, and relevantly to the present allegation: In the past I already met Paul after he gave few comments to Guy and his friends in Hebrew (which make Guy uncomfortable). It seems that this help to settle that kind of comments - but open a new door for Paul to pick on Guy on other things. 1001 Ms Cohen followed up on 8 October 2018 as she had received no response, and this prompted an email back from Mr Nash to her, saying he would discuss the matter with Ms Angelidis when she returned from leave. On the same day, 8 October 2018, Ms Cohen emailed Mr Varney, dealing with an issue about the kinds of books Guy was reading and whether he should be reading harder books to improve his reading skills, in which she also said: In the same time, I feel that your relationship (you and Guy) somehow not going well nor improving - not sure why and how we get to this point but I suggest to have the year level coordinator (Lindsay) involve - so we can try to fix it and move on - I hope you will support this approach. 1002 Ms Cohen's evidence was that she was trying to remain professional and polite in these exchanges, and I accept that. She never heard back from Ms Angelidis or anyone else after these exchanges. She also felt let down by Mr Nash's later admission to Mr Minack during the Worklogic inquiry that "I will admit I did not wish to rock the boat with Paul … with all of the information now in front of me, it is clear I failed to protect Guy from overzealous behaviour management". 1003 I did not find Mr Varney's responsive evidence persuasive. As a witness I found him to be intent on impressing the Court, and the public gallery in the Court, overly willing to volunteer information about his abilities and approach, and very ready to volunteer negative accounts about Matt, Guy and other students such as Nadav Cohen. When asked about Nadav at the start of his evidence-in-chief, he began immediately with a negative story about him, which was quite a different approach to the rest of the teacher witnesses, who by and large did not volunteer negative accounts about the students with whom this proceeding is concerned unless they were directly asked about an issue. In contrast, I found Mr Varney went out of his way to paint negative pictures of the students he was asked about. He was very ready to volunteer general negative opinions, especially about Matt and Guy, even when not asked. For example: Can I take you to Mr Matt Kaplan and - - -?---Yes. - - - ask you in respect of that 2018 English class to describe your assessment of him from an academic perspective?---Matt wasn't strong. As part of - as a year 8 English teacher, you look at the - their year 7 NAPLAN scores, so in terms of his year 7 NAPLAN score, he was near the bottom of the class. In fact, his - the - he was either at the lowest level of the national minimum level, and in some aspects just slightly below. So in terms of his reading skills, writing skills, they were quite poor. And from a behavioural perspective?---I look back over that year and actually I think that there weren't that many incidents. I think once - you know, I'm in the dock, so I will just say that I think I managed that class pretty well. I think - - - Well, instead of offering the opinions on it, Mr Varney, it would assist if you could just describe what actually you observed in the class, what you saw, heard, those sorts of matters?---Yes. Apologies. I would - what I was monitoring as a teacher was possible negative interaction between students, and there were a number of students who were capable of negative interaction in that class. You've raised that in the context of the question that I asked about your observations about Matt from a behavioural perspective. Can you elaborate on that?---Yes. Matt was - Matt was capable of I guess coming in in a mood where he didn't want to contribute positively and would react negatively to most things. Not all the time, but there would be days when he was just - you know, he was in that mood where he didn't want to try and - - - MR BUTT: Your Honour, I object. It's a lot of opinion going on here, very generic. To me it's inadmissible evidence. HER HONOUR: Mr Varney, what's going to be helpful to me is if you try and confine yourself to what you saw and observed about Matt?---Yes. Or heard?---Yes. 1004 In a similar vein, when asked about Guy, Mr Varney went straight to a negative comment: Can I ask you about Mr Cohen, Guy Cohen. From an academic perspective to begin with, what were your observations of him?---Yes, Guy's - Guy's reading levels were low as well as NAPLAN levels were low, and so as a teacher, it was my - you know, my aim to try and improve his reading by getting him to read more. 1005 In a general way, Mr Varney admitted to the conduct Guy alleged, although counsel framed the question in a way which suggested a particular motive: You've described the class cohort and their background. What steps did you take - how did you go about greeting students in the class?---When I took the roll, then occasionally I would say a couple of words in their language, particularly in that beginning time when I was getting to know the class. Again, can you be more specific about what you mean by that? Which languages, which student?---Well, so for Guy, I would say shalom from time to time - not every single time. Then for the Russian kids - look, I don't remember exactly - you know, I can't see their faces in front of me right now, and it's 2018, so I don't remember. 1006 In several answers, including the one in the passage above, Mr Varney suggested he did not engage in this behaviour very often. 1007 His evidence about how he came to stop using Hebrew words towards Guy is intertwined with the second of the applicants' allegations, concerning Mr Varney's remarks about Israel and Palestine, and I deal with this below. In substance, Mr Varney's evidence was that after Matt and Guy came to see him in recess over a map he had referred to in class, it was in this conversation that: Guy just added, "And stop saying shalom." I'm sorry, could you repeat that?---Yes, Guy just said to me, "And stop saying shalom." 1008 Mr Varney repeatedly described Matt and Guy as "shouting" at him during this "meeting", a word Mr Varney objected to. For example: Yes, so it wasn't - to me, it wasn't a meeting. To me, it was two boys shouting at me for, like, 15 minutes. So - and it - it wasn't part of - it had nothing to do with Israel or Palestine. Guy was just shouting at me, telling me to stop saying shalom, which I was happy oblige. So do you recall what you said in response?---No. 1009 Later Mr Varney insisted he then "ceased to say 'shalom'". He flatly denied using a phrase such as "ben zona", and denied that Guy's mother raised this with him in their meeting. 1010 In cross-examination, Mr Varney could be given to exaggeration. When being cross-examined about why no student witnesses had been called to support Mr Varney's evidence about his asserted empathetic reasons for speaking in different languages to students, there was this exchange: It wouldn't be difficult to produce a student if someone did find it appropriate?---It would have been very easy. And you haven't done so?---I could have produced 100. Well, maybe not 100. 1011 Mr Varney agreed he didn't ask Guy if he wanted to be addressed in Hebrew, but went on to insist he only said shalom "occasionally". He agreed he did this because Guy was Israeli, and denied it was because he was Jewish, although he had agreed he knew Guy was Jewish. He denied any knowledge that Guy was not openly identifying as Jewish and Israeli at school, or was self-conscious about it. However he also agreed that in his mainstream English class, which Matt and Guy were in, he could not recall addressing any other student in a different language expect for Guy. 1012 When tested about his description of Matt and Guy "shouting" at him, there was this exchange: You did say that Guy was shouting at you telling you to stop saying shalom, didn't you? You've used that word about Guy in relation to that he was shouting?---He was shouting at me, but that was just one thing that he shouted at me. He just said, "Stop saying shalom. Shut up". He was a 13 year old child?---Yes. He must have been very distressed?---I wouldn't say it was - he was distressed. I would say he was angry. Well, he was obviously very concerned - - -?---Yes. I wouldn't say that me calling him shalom had contributed to his state of mind, but I can't say. Talking about the fact that he was shouting at you, according to your evidence?---Yes. You would have to have been concerned for his welfare as your student in that context, wouldn't you?---Of course. I was concerned for the whole year. So the decent thing would have been to apologise to him for upsetting him?---If Guy had come to me the next day or at any time and said, "Mr Varney, I don't appreciate speaking to me in Hebrew", I would have said, "I'm sorry, Guy. I didn't - I had no idea you felt that way and I apologise". I would have apologised straight away. That's exactly what he said to you?---No. Not - I - not in a calm measured manner that I would have expected. So he didn't deserve the apology because of the manner in which he communicated it. Is that what you're saying?---As a teacher you have to judge the intent of the student when they're speaking to you and I felt that I was under attack verbally. I didn't feel that he was expressing frustration. I felt that he was expressing anger because of the Israel-Palestine situation because he just added on the end, "And stop saying shalom". 1013 I do not accept this evidence at face value, as I explain below. I consider Mr Varney sought to excuse his attitude by deflecting blame to two students who were at that stage 13 or 14 years old, in the context of his own behaviour which had failed to take Guy's concerns, and his mother's concerns, seriously. 1014 Mr Nash had some involvement, as I have explained, due to him being the year level student coordinator. In a subsequent communication to Mr Minack as part of the Worklogic inquiry, Mr Nash said: I do not recall Guy telling me anything about Paul Varney, but I do remember Matt making a complaint, which I do remember having a verbal conversation with Paul about. This aligns with Matt's obsession with his mobile phone and any teacher that tried to hold him to account with it. Paul Varney being a teacher who did hold him to account. I do recall a conversation with Sarit during a phone call. I looked back through my 2018 emails; and I could not find any correspondence, I want to make it clear that I do not deny that there was correspondence, but I cannot find any evidence of it in my archived emails. I can confirm that I did not approach Paul Varney nor refer it to Lee for two reasons; 1, The complaint was not Anti-Semitic in nature, and 2, I will admit I did not wish to rock the boat with Paul, we had already had words in regards to the way he dealt with some of his students. I got the impression that he thought I was not supporting him in his classroom management style and that I was siding with the students. So, I did not want to be seen referring to Lee and "getting" Paul into trouble. However, this may be a reflection on my insecurities as a 1st year coordinator though. I'm not trying to make excuses for my lack of courage in this regard, but acknowledge that with all of the information now in front of me, it is clear I failed to protect Guy from overzealous behaviour management. 1015 Mr Nash had little recollection in oral evidence of these events. He described Mr Varney as running a "tight ship … any student that didn't meet the behavioural expectations within his classroom would feel like that they were being targeted". Mr Nash clarified that he had only spoken to Ms Angelidis "in passing" rather than formally. Ms Angelidis recalled nothing of all this in her evidence. He did not disagree that Guy's complaints could be described as "potential bullying", but maintained these were issues for the "principal class" and not him, meaning Mr Minack and Ms Angelidis.

Factual findings on Mr Varney's conduct 1016 I accept the evidence of Guy and his mother about the conduct of Mr Varney. Their recollections were clear and their evidence was genuinely given. They were able to contextualise their recollections and it was obvious these were matters that had a lasting effect on both of them. 1017 I found Ms Cohen to be a serious and balanced witness, who was careful in her recollections and measured in her evidence. Her obvious concern for how her son had been treated was appropriately tempered by a recognition of the challenging roles that teachers have, and I find she did her best to use appropriate channels to communicate her concerns. Generally, she was not given prompt or satisfactory responses. 1018 Ultimately, there was no debate between the parties that Mr Varney had used the "shalom" greeting to Guy, in front of the whole class, during roll call. I prefer Guy's evidence about the frequency of Mr Varney's comments in Hebrew to him. I find Mr Varney tried to downplay his differential treatment of Guy, conscious in the context of this proceeding about how it reflected poorly on him. I find Mr Varney generally attempted to exaggerate his concern for his students and his teaching prowess. 1019 I also accept Guy's evidence about Mr Varney using the phrase "ben zona". Mr Varney's evidence disclosed that he was quite prepared to venture opinions when he was not asked for opinions, to give long and somewhat boasting answers and to highlight his affinity with multicultural values, and I am comfortably persuaded he is likely to have tried to use a Hebrew phrase beyond "shalom" to Guy, and to have viewed himself as being quite clever for doing so. Further, there was no basis made out in the evidence as to why Guy would make up something like this. The phrase as heard by Guy, and reported to his mother, was clearly an offensive one. I do not find Guy was the kind of young man who would simply make up a narrative of this kind, nor lie to his mother about an occurrence like this. I do not find Mr Varney intentionally used a phrase which translated as, to use Guy's term, a "curse word". I find he was more likely than not attempting, badly, to say a different Hebrew phrase but it came out as, and was heard by Guy and Matt as, this curse word. 1020 Both parties variously relied on what had been said to Ms Dickinson, in communications and in transcripts. I did not find those submissions persuasive on either side, where some inconsistency was sought to be pointed out. The whole context for those interviews and communications was quite different from this trial, and it is understandable the accounts might differ somewhat, and have different emphasis. I prefer to rely on the evidence adduced in this trial, and the way in which it was tested. 1021 My impression of Mr Varney is that he was quite capable of picking on a student, and formed judgments about students from which he did not then depart. He had and I find sought to defend a very negative view of both Matt and Guy. He made a point of deriding Matt's academic ability, in the face of BSC reports that suggested otherwise, and having only accessed Matt's NAPLAN results more recently before this trial. In a more contemporaneous document from the Worklogic inquiry process, Mr Varney described Guy in the following way: Guy was the kid standing behind Matt whenever Matt caused trouble throwing his own verbal molotov cocktails! I'm not surprised he's piggybacked onto this thing. Really unpleasant kid! 1022 He was equally intemperate and rude about Matt in his communications to Mr Minack: Also I looked back on Matt and Joel's Chronicles from the last few years. OMG! It's like an Isis Terrorism timeline. I think we missed a trick though when Lucas [redacted] was saying Heil Hitler. Chronicle says they were talking about Nazi Germany which they were studying but really they should have been suspended for that. And Matt couldn't read so he shouldn't have been in a mainstream class. 1023 I consider the tone, language and content of these communications are a truer reflection of Mr Varney's temperament than the veneer he tried to apply during his evidence. That is consistent with some evidence given by Ms Podbury that she had to speak to Mr Varney about his use of sarcasm to students in his classes. 1024 Mr Varney agreed he would never comment in class on a student's sexual orientation, yet he was prepared to single Guy out as a Jewish boy, and an Israeli. He exhibited a somewhat condescending attitude to what he called "our Jewish students": I regard our Jewish students as being amongst our best students, and, you know, we've all - we've - you know, every class would have probably - I can't - I haven't done the survey, but, you know, two or three Jewish students who - you know, who - who are great students. We've had Jewish school captains. We've had - and especially the music department, it's - you know, it's - I've always seen Brighton Secondary College as a success story. You know, we've got a synagogue a couple of doors down the road. 1025 The last piece of evidence in particular sounded somewhat like 'some of my best friends are Jewish'. I found it condescending and insincere. 1026 I find he did not treat Guy's reactions seriously, and this drove Guy to a position of anger and frustration, which Mr Varney continued to see in a negative light rather than having any insight into his own behaviour being responsible. He showed no interest at all in seeing if Guy was otherwise being treated differently or badly at BSC because he was Jewish when this was an obvious inquiry in the circumstances. 1027 I note in the evidence there were references to Guy having slapped and bullied another student in his year in 2018, and to the meetings, discussions and behaviour consequences arising out of exchanges between that student, his parents, Guy and his parents and the relevant teachers. Mr Varney also referred to Guy's behaviour in this regard throughout his evidence. I refer to this for two reasons; first, because although I accept Guy as an honest witness, these documents demonstrate that - unsurprisingly for a group of year 8 students - there were other behavioural tensions at school and that Guy was not always cast as the victim. In assessing the evidence about the level of harm suffered by Guy, these matters have some weight because they assist in presenting a more complete picture about Guy's time at BSC. Second, and conversely, and supporting some of the contentions put by the applicants, they also have some weight in highlighting a careful and detailed approach to poor student behaviour, including inappropriate physical conduct by Guy, which the teaching and year level staff at BSC were capable of following if they chose to. 1028 Having made those findings of fact, I turn to the applicants' allegations against Mr Varney in relation to the RDA and negligence.

RDA and negligence 1029 As to s 9 of the RDA, based on the findings of fact above, I conclude Mr Varney: (a) did an act - greeting Guy in Hebrew and using another (attempted) Hebrew phrase; and (b) that act involved a distinction - singling Guy out for a greeting different to other students. 1030 I also accept that Mr Varney's behaviour had the effect of impairing Guy's human right to education, because of the embarrassment, anger and humiliation it caused him, including the way Mr Varney persisted with the conduct, I accept, even after Ms Cohen raised it with him, although as Guy himself admitted, the conduct did lessen. I reject Mr Varney's evidence that he immediately ceased the behaviour altogether. That account does not seem plausible to me, having observed him as a witness and considered his evidence as a whole - I find he was likely to have considered he could continue with this behaviour if he chose to, and I find it is probable he continued with it, but not as often. 1031 Guy's evidence, which I accept, included the following: Every single time, I would tell him he was not funny. That I did not like it. That it would make me uncomfortable when he did do it, and this was done in front of the class. I would tell him in front of everyone that I didn't feel comfortable with it, which would kind of - was kind of like a big step for me, I guess, but it was me - me - that was me, like, moving beyond my limits to speak out against him. I just told him that I didn't feel comfortable, full stop, and that he needs to stop, but he didn't really care. 1032 Guy described Mr Varney's conduct as making him feel: really extremely, extremely uncomfortable. I felt, like, isolated from the rest of the class. I felt like I was different for some reason. I was very annoyed. Because by this time, I had already learned from parents that - all the significance behind Jews and Israelis and the way we weren't liked very much throughout history. So - - - 1033 He explained the effect on his learning in that year 8 English class: The relationship [with Mr Varney] was horrible. I went to that class and I don't think I learned anything, because I just felt uncomfortable the entire time. I didn't want to be there. I just felt like I was going to cry every single time that I went into that classroom and I had to see him because I knew that something bad was probably going to happen. 1034 There is ample evidence from Guy, and his mother, to support the proposition that Guy's human right to education was impaired by Mr Varney's conduct, in that Guy's learning in year 8 English was substantively affected. Mr Varney himself saw Guy as a poor student, who was not reading to the requisite standard, but the evidence suggests he was critical without offering any real support to Guy or his parents. 1035 I also accept that the distinction involved in Mr Varney's conduct was based on race; here, either that Guy was Jewish or that he was Israeli. Mr Varney admitted as much - the reason for his conduct was because he knew Guy was Jewish, and he knew he was Israeli. That was the reason he used a Hebrew greeting; it was quite deliberate. It was also the reason he attempted to use another Hebrew phrase, and, I find, refused to stop using it despite what I find to be the obvious anger it caused in Guy. 1036 The applicants have proven their case on s 9 against Mr Varney. 1037 In relation to s 18C, I find the applicants have not proven their case. Mr Varney's conduct was "otherwise than in private", and was based on Guy being Jewish and/or Israeli, as I have explained above. However, I do not consider his conduct was sufficiently serious to be described as reasonably likely to offend, insult, humiliate or intimidate Guy, as the "person" to whom the conduct was directed for the purposes of s 18C. The effects described in s 18C contemplate racially-based conduct at a more serious level, as the authorities I have referred to earlier explain. 1038 I accept that, subjectively, Guy was annoyed and became angry over time with Mr Varney for the Hebrew greeting, and for what I have found to be a mispronunciation or incorrect use of another Hebrew word that sounded to Guy like a Hebrew curse word. His subjective reaction was greater than it might otherwise have been because of the other antisemitic conduct he was experiencing at BSC. Objectively, immature behaviour like this from a classroom teacher does not rise to the level of consequences for which s 18C provides. It would be lowering the threshold for s 18C too far to find Mr Varney's conduct contravened this provision, in particular when I have found that if Guy heard the second Hebrew phrase as a curse word, that was not what Mr Varney intended. 1039 The applicants have not proven their claim under s 18C. 1040 Mr Varney's conduct is also pleaded as a breach of his duty of care to Guy. This allegation was not developed at all. The content of the alleged duty was not articulated, and how the conduct breached the duty was also not articulated. In any event, there is no evidence of psychiatric or psychological damage suffered by Guy sufficient to make out the damage element of the tort. 1041 The applicants have not proven this aspect of their claim in negligence.

Statements about Israel and Palestine 1042 I have set out above the four distinct allegations against Mr Varney, in terms of what Matt and Guy allege he said to them at various points during this year 8 English class. 1043 Much of the alleged conduct appears to be placed around an event in class where Mr Varney displayed a map of the Middle East showing the geography of the region prior to 1948 and the establishment of the State of Israel. This is how the allegation is framed in the applicants' closing written submissions (at [84]): In 2018, Mr Varney aggressively imposed offensive comments on Guy and Matt in class on at least 3 occasions, and once after class, intending to and eliciting a strong reaction, calling Israel the "State of Palestine", unambiguously dismissing any discussion, calling Guy 'Palestinian', and stating that "Israel is not better than terrorists." These incidents breached ss 9 and 18C RDA. On one occasion, Mr Varney, knowing the boys were Jewish-Israeli, went out of his way to call Israel "Palestine" to provoke Matt and Guy. When they spoke, Mr Varney aggressively shut them down stating: 'don't speak or you will get thrown out.' 'Stop interrupting my class'[.] He also provoked Guy by saying Guy was from 'Palestine,' not Israel, and 'Palestinian'[.] (Footnotes omitted.) 1044 The flavour of these allegations is very much, as the applicants' written and oral submissions suggested, around "provocations" of Guy and Matt by Mr Varney. A less charged word might be teasing. Given my findings about Mr Varney, I have no doubt he was capable of engaging in teasing with students. That would not mark him out as especially unusual amongst secondary school teachers. Teasing might sometimes be affectionate, or designed to break the ice, or change the mood in or outside class. No doubt there are lines that should not be crossed. 1045 The difficulty here for the applicants is that on the facts I am not persuaded Mr Varney engaged in the conduct they allege. 1046 The thrust of Matt's evidence can be gleaned from the following extract: And then later on, we had an incident where he had this map of the world, which we noticed was a map that said Palestine on it and not Israel, so we brought it up with him, and he was very disrespectful and humiliated us in front of the class where he - he said, "Don't interrupt my class or I will throw you out and I will send you to the principal's office," and he would laugh while doing this. He enjoyed it. You could see that he enjoyed making fun of us. Okay. And so how was this - what class was it?---Year 8 English. Right. So what was the context of the map that he showed you?---I have no idea why there was a map of the world, let alone one with Palestine on it. We're in an English class. So what - do you remember what you said to him when he made the comments to you?---No. So how did the conversation go, to the best of your recollection?---So we brought up with him the - the issue about the map. We as in me and Guy Cohen, sorry. And after we brought it up, he - he shut us down immediately, saying, "I will throw you out of my class, send you to the principal's office if you don't be quiet." Did you have any other conversation with Mr Varney about Israel?---Yes. I can't remember exactly the context, but it seemed like he went out of his way to call Israel Palestine, and knowing we would bring it up, and that's what we did. We immediately brought it up with him, and we got the same reaction, to - to - to not speak or we will get thrown out of his class, and, "Stop interrupting my class." How did all this make you feel?---I was - I was sad, I was humiliated. You could - I could see he did it with enjoyment. He - he enjoyed humiliating us, and he was in a position of power that he could do that and he could get away with it. 1047 In cross-examination, Matt was challenged about his interpretation of what happened, and he gave this answer: Well, it was - it was more so that he has shown an old map in front of Israeli students knowing he's going to get a reaction because he hates us for being Jewish was the point I was raising with him at the time. It was - there was no reason to have an - firstly, there was no reason to have a map in this English, class from what I can remember, and, secondly, having an old map, it was very out of place. 1048 And also: At no point in this class did he call Israel Palestine, did he?---He did. 1049 Guy's evidence was to similar effect. Guy also affirmed that Mr Varney called him Palestinian: He would often make the joke that I'm not Israeli but rather Palestinian. Or, "You're from Israel. You mean Palestine". 1050 In cross-examination, Guy agreed that Mr Varney had displayed an "old map" that did not include the State of Israel, and that Matt had pointed this out. Guy then said: Matt questioned to why Israel was not included in that map and Varney followed with the statement of, "Because it's Palestine not Israel" or words to that effect. And then we were shutdown from questioning any further. 1051 Matt's evidence in cross-examination was to a similar effect: He had an old map on the board, and me and Guy pointed out how - how it's not Palestine; it's Israel, and he shut us down very quickly and - and threatened to throw - throw us out of his class. 1052 As the respondents submitted, and Mr Varney pointed out in his evidence, what Guy recalls Mr Varney saying was not an incorrect way to describe the geographic situation on a pre-1948 map. Further, the fact that Matt sought to identify the land concerned as Israel, is also quite plausible, given his strong feelings about the State of Israel. These findings do not take the factual case of the applicants any further. 1053 The respondents' closing submissions summarised Mr Varney's evidence on this matter in the following way (at [69]-[71]): Mr Varney expressly denied the first, second and third allegations. His evidence was that he displayed the map, which was an old map of Europe, for a purpose connected to his class. He explained that upon showing the map, Matt and Guy were angry and protested that the map did not include Israel and instead displayed Palestine. Mr Varney's evidence was that he told the students that the map was old and at the time the map was not incorrect and that some countries recognise Israel, and some Palestine. Mr Varney was not asked whether he called Guy Palestinian; he was thus not given an opportunity to respond. As to the fourth allegation, Mr Varney noted that he wanted to move the class on so he told Matt and Guy they could come and discuss the matter with him in his office. While he did not recall whether he told Matt and Guy to be quiet or they would be removed from class, he accepted that he may have. Matt and Guy did attend Mr Varney's office during recess. Mr Varney gave evidence that the boys predominately spoke at him about the issue of Israel and Palestine and that one of them stated Palestinians were "rock-throwing terrorists". (Footnotes omitted.) 1054 I accept the evidence bears out what the respondents submit in their closing written submissions at [69]-[70]. Mr Varney gave the following explanation of how he came to mention Palestine: During the - the English class where I had just - where this - this discussion came up about the old map that I had shown of the British Mandate of Palestine, I had commented to one of the students that, "Do you realise that there are" - I don't remember how many countries in the world - "there are - there are a certain amount of countries who - who do recognise Israel and don't recognise Palestine and another certain number of countries that do recognise Palestine and not Israel[.]" 1055 As for the matters in [71] of the respondents' closing written submissions, I do not accept this was Mr Varney's evidence, and nor do I find what Mr Varney did say sufficiently reliable to accept. His actual evidence was: Can - can you recall what was said in your office at recess, either by - well, both by you and by them?---The boys - the boys were making statements about Palestinians. Can you recall what?---I don't remember exact - exact words, but I believe that they were typecasting them as rock-throwing terrorists, for instance. 1056 He then admitted he could not recall his response. As some of his later email communications demonstrate, Mr Varney can exaggerate. He clearly did not like Matt or Guy. I am not satisfied he was reliably recounting what they in fact said.

Findings on statements about Israel and Palestine 1057 There is no clear and reliable narrative arising out of the evidence which would provide an adequate factual foundation for these claims by Matt and Guy against Mr Varney. I am satisfied the evidence establishes that: (a) Mr Varney did, at some point during the year 8 English class in 2018, display a pre-1948 map of the Middle East. The purpose for doing this is not revealed in the evidence, including in the applicants' evidence. (b) Matt and Guy were vocal in class, Matt especially, about any issues touching on Israel. They had strong views about the legitimacy of the Israeli state, and illegitimacy of any Palestinian state, and they wanted to make their views known. (c) I find it is likely that Matt and Guy were somewhat heightened in wanting to make their views known, because of the level of antisemitic conduct at BSC that they were experiencing. Matt in particular was, so to speak, ready to advance his Jewish identity, and his support of Israel, in a classroom situation. Guy, I find, followed Matt's lead: I rely here on the evidence given by Mr Lyons, whom I accept as a reliable witness, about the different personalities of Matt and Guy in class. Mr Lyons' impression is consistent with my own observations of each of the young men in their evidence. Therefore, I find it is more likely than not that they were sometimes loud and overbearing in class, with Matt taking the lead on these interruptions, and it is likely that in their interactions with Mr Varney, they were also loud and confrontational. (d) It is more likely than not that, in the face of their vocal championing of Israel, and the way Mr Varney perceived them as students, together with their behaviour in class, that Mr Varney sought to emphasise that Israel was not on this map and did not exist as a State at the time, but that a region identified as Palestine was on the map. (e) It is more likely than not that at other times during English classes in 2018, responsively to comments by Matt or Guy, Mr Varney may have referred to the ongoing debate about the recognition of Palestinian statehood, and the debate about the treatment of Palestinians by the State of Israel, and the conflict in that region over territory, autonomy and government. (f) Those topics are legitimate topics for discussion in high school classes. How they might arise will be dynamic and probably organic, but the task of a classroom teacher in those circumstances is to encourage respectful and balanced discussion, and to help students see different perspectives. Whether or not Mr Varney attempted to do this is not revealed in the evidence. 1058 Beyond those matters, I am not persuaded the evidence discloses any factual context or narrative to support these claims. The evidence on how these issues arose in Mr Varney's class is scant and generalised, and the competing evidence about who said what is not specific enough, without much context, and is not reliable in my opinion. 1059 The applicants have not proven the facts necessary to support their claims against Mr Varney in this respect. Therefore, whether or not they complained, and what if anything was done about their complaints, need not be determined. Their clams must fail at the primary factual level.

Matt and Guy's claims about Mr Lyons - pleadings 1060 Mr Lyons taught a humanities class in which Matt and Guy were students in 2019. Matt and Guy make a number of allegations concerning Mr Lyons. There appears to be some confusion in the applicants' own case about what words they allege Mr Lyons used towards Matt and Guy. 1061 In their concise statement, [9] is mostly taken up with the allegations against Ms Flessa. The applicants then contend: Similar incidents occurred to Mr Kaplan and Mr Cohen during 2018 English with Mr Varney, and in 2019 Humanities class with Mr Lyons. 1062 There is a footnote to this contention, which reads: SOC, 162-174, 201-3, 227-233, 256-263. Mr Varney aggressively imposed offensive comments on them in class on 3 occasions, speaking provocatively and intending to elicit a reaction, saying (1) "Israel is not better than terrorists"; (2) Israel was called the "State of Palestine", unambiguously dismissing any discussion. Mr Lyons, all on occasions unrelated to class topic asserted (1) Israel was an "occupied territory"; (2) Israel is an "illegal State," (3) Israel is "Palestine" (4) the boys are "Palestinian"; (5) and he singled out Israelis for killing Palestinians and humiliated the boys in front of their classmates. 1063 Whereas, in [227] of the statement of claim, it is alleged: Michael Lyons was Guy's Humanities Teacher in Year 9. During a class in the middle of 2019 (Year 9) Guy and Matt were talking about something in class that occurred in Israel, and Mr Lyons walked past and heard it and then said that Israel was an "occupied territory" and called Israel an "illegal State," and criticised Israelis for killing Palestinians. 1064 And then at [256]: In 2019, Mr Lyons taught Matt and Guy Cohen Humanities. He went out of his way to speak about Israel, and called it "Palestine," and then called Matt and Guy "Palestinian." 1065 The inconsistency in the pleadings is unhelpful to the persuasiveness of these allegations. 1066 Having made those pleadings about what was said, in relation to Guy, the applicants' pleadings state: Comments such as this occurred on about 3-4 occasions in Mr Lyons' class to Guy. On no occasion was the topic of the class relevant to the Lyons' comment. Guy and Matt raised the problem with Coordinators Bronwyn Hart and Thi Trinh and told them about it. The Jewish students received the standard response from the Coordinators that they "couldn't do anything about it," and they were pushed away. After one time of this treatment, Guy realised nothing was going to happen, so did not bother thereafter reporting anything as he did not want to waste his time and get further insulted. 1067 In relation to Matt, the applicants' pleadings state: [Mr Lyons] then moved on as if nothing happened. This occurred about 3 times in the first half of Year 9, and his conduct constituted unlawful discrimination under the Act, violating the complainants' Human Rights. Matt and Guy would confront Mr Lyons and reject the assertions. Mr Lyons would then shut Matt down and embarrass him in front of his classmates. Mr Lyons never apologised to anyone for this conduct. On about 2 of the 3 relevant occasions, Matt reported the incidents. He went straight to the classroom next to the Coordinator's office (to T[h]i Trinh and Bronwyn Hart) on one occasion when this occurred. Without putting his books away, Matt went straight to the office, and told them exactly what happened. Their response was to the effect of "Okay. We'll, we'll deal with it." It was as if nothing occurred and they told him to go to lunch. They did nothing about it. 1068 The applicants allege that Mr Lyons' actions breached s 9 (pleaded alternatively as s 9(1) or s 9(1A)) and s 18C of the RDA. They also alleged that Mr Lyons breached his duty of care to Matt, for which the first respondent is liable.

Matt and Guy's claims about Mr Lyons - resolution 1069 As I have explained, the pleadings and concise statement disclose somewhat inconsistent allegations about what Mr Lyons is alleged to have said in Matt and Guy's year 9 humanities class. The alleged use by Mr Lyons of the words "occupied territory" and "illegal State" to refer to Israel are consistent. 1070 There is a tolerably clear allegation about what Mr Lyons is alleged to have done to Matt about a Star of David necklace he was wearing, and I deal with that in the section about Matt's individual allegations below. 1071 Matt's evidence about Mr Lyons' comments was as follows: So we were - we're in class. I - I - the - he made the class in a - in a U-shape facing the front. Me and Guy were sitting in the back corner of D7, which is the one closest to the hockey pitch and where Mr Lyons brought up Israel and Palestine and how it's not Israel, sorry, and it's Palestine. And me and Guy had the same reaction we had the year before, calling him out for it and he had a very similar reaction to - to the teachers last year: shutting us down and humiliating us in front of the class. How many times did the issue of Palestine come up with Mr Lyons?---From what I can remember, twice. Okay. And so how did the other incident vary; do you remember?---We were talking about the Middle East on the whiteboard and he went out of his way to drop that it's not Israel, it's Palestine, and then tried to move on as quickly as possible. Me and Guy raised the issue again and he had the same reaction that he would kick us out, "Stop interrupting my class," that sort of thing. 1072 Guy's evidence was: So I had multiple interactions with Mr Lyons. From the very beginning, it seemed like Lyons had it out for me and Matt during that class, I'm not sure of the reason, but it later became clear that he was very anti-Israeli, and it seemed that maybe, as well, he was anti - anti-Jewish, like, anti-Semitic. I think, like, one example would be probably, the one lesson, I had been away from that one day and - and I had missed the class, but the next day I had come to school and Matt had told me that Lyons had said that Israel does not exist, or Israel is not - is not legitimate. And so that day, during the class, I - me and Matt stopped him and I wanted to know what he had said so I asked him what he said about it. And he said - he simply said, "I had simply said Israel was not legitimate," and then he shut us down. He didn't want to discuss it with us as he thought that the two of us together wasn't - wasn't, like, I don't know, a fair argument on him. 1073 And the following: So what do you remember - what did you say?---I said - I asked him, like, "Sir, what- what is your opinion why - I heard that you had some strong opinions last class. Could you - would you mind explaining them to me?" And what did he say?---As - he said ..... simple. Just one sentence. "Israel is not legitimate". That's it. And then he just refused to talk to us from there. Did you try to say something?---Yes. What did you say?---I said - well, I - I told him that was false. "That Israel was recognised by Australia and so I don't see why you shouldn't recognise it as well." And he just shut us down. So I couldn't actually speak to him. He just told us to stop talking during class and that - that we were done with it. How was that feeling for you as Israeli?---I mean, it's just a feeling, again. It's just, like, why - why do teachers have - like, have to make these comments about Israel, like, where I'm from to my face? Why do they have to make sure that everyone else in the class knows that Israel is, like, illegitimate or that it doesn't exist or whatever the hell their opinion is? Like, why do they to make sure that everyone knows that you shouldn't like Israel? Okay. And you said there was another occasion. Do you remember the other occasion?---Yes. So another occasion was where we were talking about - I had a project which - which - so everyone had to make one project which was just covering a certain topic that we chose. Sorry about that. My topic, specifically, was that - how weapons have changed in terrorism over time and I had a conversation with him and he had made a comment that Israel - Israel is also like terrorists because we were on the topic - or I was one on one topic, like, going over that topic with him. And from there I just - just - I told him to stop talking. "I'm not talking to you anymore. I don't want to talk to you." I had told my parents and my parents told me that - to just ignore him especially my mum. She already talked to the coordinators before. She knew that it was futile to talk to anyone in the school and should just ignore it and just move on with life. 1074 In cross-examination, Guy agreed he could not recall exactly what Mr Lyons said beyond two specific expressions: And your evidence yesterday, I think, was you said Mr Lyons said, "Israel is not legitimate," and, "Israel is also like terrorists," are those the two things you say he said or are there more?---I couldn't exactly tell you more. Not - not like word-by-word. So - - - All right. So if we're going word-by-word, are those the only two? "Israel is not legitimate," and, "Israel is also like terrorists"?---Yes. And is your evidence that you recall him saying those things word-for-word?---Yes. 1075 Mr Lyons gave some relatively specific evidence in response. I found Mr Lyons to be a straightforward witness, quiet and unassuming, who appeared somewhat disconcerted by the trial environment he found himself in, but who nevertheless did his best to answer questions truthfully and completely. I found he expressed himself in an unguarded way, demonstrated by his account of his interactions with a Jewish woman he knew in London whom he discovered had been in the concentration camps and had a number tattooed on her arm. 1076 Mr Lyons explained that in the year 9 humanities class he was teaching a topic on World War I history, but the class was discussing World War II. He explained the class covered "some quite disturbing topics": we were - I was introducing, because we were specifically talking about the Holocaust and genocide of not just the Jewish people, but of many people, by the Nazis. And so we were talking about what might have been done differently that might have mitigated the impacts of - of the genocide by the Nazis. 1077 He explained his teaching method on such sensitive topics and then described how he introduced the topic, and what was said in class: Well, I also start generally by talking about how many - how many countries refused entry to Jewish people from Germany trying to - to find another place and this is widespread across the world. And I used the specific example of the - the British controlled protectorate of Palestine and how that was closed as a - as a place for Jewish people to escape to, and had that been open, then it might well have mitigated the impacts of the Holocaust. How much, we will never know, but - yes, as an example. And when you raised that matter in the class in 2019, what happened next?---So Matt came up to me almost immediately and wanted to engage in a conversation about - about that. Can you recall for us as best as you can the words that were used? Well, firstly, the situation you're describing is within the classroom environment itself in this class?---Yes, it was during the class. Yes. And as far as you can recall, what did he say?---He said there was no Palestine, there was only Israel. And how did you respond?---And so I responded, well, that Palestine was created - sorry - Israel was created in 1948 by the acceptance of the UN resolution from 1947. I don't think I used the exact term there, but that, up until that point, the country that he knows as Israel was known as Palestine. And how did he respond?---He responded that God had given them Israel and that there had always been Israel and I responded by saying that that is your religious belief and I am not questioning what your faith teaches you. I am merely talking about the legal - legal country that is Israel as we knew it in 1948 and as we know it now. For how much longer did the conversation continue?---From my memory, Matt wanted to continue the conversation, but I didn't feel like it was going to be a constructive conversation, so I said that I was more than happy to discuss with him - this with him after class, but that he should retain - go back to his seat so that we could continue with the class. And in terms of the class, as it was then, for the rest of that class period, what happened? Did the class continuing?---Matt - from memory, I think Matt went back to his seat, sat down with Guy and I could see they were chatting and we continued with the learning over that period. 1078 I accept this evidence, for the reasons I have explained above. It is also clear Mr Lyons was speaking from actual recollection - he could contextualise the exchanges he was recounting, and he described a short series of events in class in a clear way. Further, what he described as Matt's response and words is consistent with my assessment of Matt as a witness. 1079 In cross-examination, there was the following exchange: And you said, in response to Guy, words to the effect of, "Simple. Israel is not legitimate"?---No. I would never say something like that. All right. You didn't say that in front of the whole class?---I would never say anything like that. It's factually incorrect, and it - and it would be offensive. And knowing that Guy Cohen was a Jewish student?---It wouldn't matter that - if I had Jewish students or not. It's a deeply incorrect and offensive thing to say. And you know that these words would have been likely to humiliate and demean Guy and Matt if you had said them?---Which is exactly why I would never have said them. 1080 I accept Mr Lyons' evidence. I find he was being honest and straightforward, and his answers here are consistent with his evidence-in-chief, which I found persuasive.

Factual findings on Matt and Guy's allegations about Mr Lyons 1081 I did not find Matt's account of what he asserted Mr Lyons had said was persuasive. He was unable to contextualise what he asserted Mr Lyons had said, to provide any understandable basis for why a teacher in the middle of a topic involving World War II would make statements like the ones he alleged were made. Instead, his evidence tended to pluck a couple of words out of the air and put them together in a way that was on their face offensive. Like my findings about the allegations against Mr Varney, I find it is probable that Matt was vocal in class, and himself provocative. In the context of what Mr Lyons was teaching, I have no doubt that Matt was heightened, and did not agree with some of the matters Mr Lyons was explaining. I find that is likely to have led to Matt mishearing what Mr Lyons said, or hearing only parts and, inaccurately, putting words or phrases together in a way Mr Lyons had not done, or even implied. 1082 By 2019, Matt was highly charged in his sense of being under siege at BSC and his behaviour was volatile. I find listening carefully and being reasonable and objective were not his greatest skills at this point in time, and that led him to make rash assumptions about teachers who were, objectively, doing no more than encouraging students to see different historic and social perspectives on emotional and disturbing historical events and contemporary socio-political issues. 1083 Despite my general acceptance of Guy as a reliable witness, I am not persuaded his recollection about two specific phrases used by Mr Lyons is accurate, at least not in the way Guy asserted Mr Lyons spoke. Guy had, as he explained, missed the day before and Matt had informed him that Mr Lyons had said some offensive things. So Guy walked into the second day of this event with a preconceived view about what Mr Lyons had said the day before, a view which I am not able to find on the balance of probabilities was accurate. Matt had, I find, encouraged Guy to be outraged. The evidence overall about how these two students behaved in class, and the firmness of their friendship, leads me to conclude that they were capable of encouraging, and did encourage, each other in their respective outrage about what they felt was happening to them at BSC. 1084 Whether or not Mr Lyons explained that some people may not consider Israel a legitimate state, or its occupation of territory as legitimate, just as some might hold similar views about the legitimacy of a Palestinian state and its asserted territory, is not possible to determine. Given the detailed explanation by Mr Lyons, I consider it is more likely than not that in discussing the different perspectives on the Israeli-Palestinian conflict words such as "legitimate" might have been used, as might words such as "terrorist". The context for their use has not in my opinion been reliably established on the evidence. And in these kinds of claims, proof of context is vital. 1085 I agree with the respondents' submissions that the parental complaints by Ms Abadee have no real probative value, as they rely on an account given by Matt to her. As I explain, I consider Matt tended to mishear what was being said to him by teachers, when the subject turned to Israel and Palestine, because first he felt so strongly at an individual level about this issue, and secondly because he was already feeling unhappy and oppressed at BSC because he was Jewish. He felt, as he said in evidence, "under siege". He saw antisemitism, and anti-Israeli sentiment, everywhere, even where exchanges may have objectively had no such content. 1086 Matt and Guy have not proven on the balance of probabilities the facts necessary to found their claims against Mr Lyons. Those claims fail.

RESOLUTION: INDIVIDUAL ALLEGATIONS 1087 Unsurprisingly, my impression of the five applicants is that they are each quite different young men. Relevantly to this proceeding, some aspects of their personalities, combined with their stage in life at the time of the conduct as young to middle teenage adolescents, reveals itself in the evidence in terms of them having different reactions to the conduct I am satisfied on the evidence was experienced by them. 1088 Each of the applicants left BSC prematurely. Some left quite suddenly. Each except Guy attributed their departure to the antisemitism they had experienced. Not all of them communicated this at the time of their departure, but some did; namely Matt (in his exit form) and Zack (through Ms Snelling's communication to Mr Minack that her son was leaving due to him being unsafe at the school).

Mr Minack's responsibilities as principal 1089 In these reasons where I set out my findings with respect to each of the applicants' allegations, and in the section on my finding on allegations in relation to swastikas, I make findings in relation to what steps a reasonable principal in the position of Mr Minack during the relevant period would have taken. Here, I set out a summary of those steps at a high level, according to different categories of actions that should have been taken. This list is not exhaustive, and I make other specific findings elsewhere in these reasons, including where I compare the commendable systemic, sustained and school-wide approach taken to educating the BSC student cohort about acceptance and inclusion of LGBTQIA+ students. 1090 Nevertheless, given the respondents' focus on this aspect of the claim, it is appropriate to set out the steps a reasonable principal in Mr Minack's position should have taken, including ensuring that the leadership and staff at the staff understood the importance of, and followed, these steps. These matters were largely covered in the evidence of Mr Paul and Professor Rutland, but also reflect the content of BSC policies. I also discuss these matters in my findings below on the common and individual allegations: (a) Investigation of complaints: (i) Complaints of antisemitic behaviour should have been taken more seriously as relating to behaviour that could be unlawful and was expressly prohibited by BSC policies. (ii) Complaints suggesting regular antisemitic bullying and harassment should have been addressed at a systemic level. Mr Minack's meeting with Liam and Ms Meltzer is one example revealing systemic issues that were then ignored. (iii) Steps should have been taken to investigate which students were responsible for the creation of swastika graffiti, and for antisemitic bullying, rather than relying on students having to volunteer names. (iv) Students should have been encouraged by systematic and school-wide measures to speak up about conduct that made them uncomfortable or attacked, including antisemitic behaviour, to help them to feel confident and comfortable to raise their concerns. (b) Removal of swastika graffiti: (i) Where swastika graffiti was identified, including as a result of investigation after complaints, steps to remove that swastika graffiti should have been documented and proactive steps taken to target for supervision of school areas where the graffiti was occurring. (c) Education and encouragement not to undertake certain behaviours: (i) Steps should have been undertaken to educate students as to the need to respect the way in which Jewish students might dress, and the need to respect Jewish people. This should have been done in a fashion that was prominent and visible. (ii) Steps should have been undertaken particularly to educate students as to the need to not create swastika graffiti. (iii) Steps should have been undertaken to educate students about how verbal taunts related to the Holocaust may be especially hurtful. (iv) Education about these issues should have been undertaken in a sensitive way. If Mr Minack's March 2019 speech can be characterised as an isolated attempt at 'education', it lacked any sensitivity or planning. (d) Disciplining students: (i) Students found to have made swastika graffiti should have been disciplined at a level consistent with the gravity of the swastika as a symbol. (ii) Students found to have undertaken antisemitic bullying should have been disciplined at a level consistent with the gravity of behaviour that was capable of being unlawful under the general law. (iii) Where suspensions were proving ineffective, as is clear on the evidence at certain points, expulsion should have been considered as a viable and available option. (e) Following up, or checking in, with students and their families: (i) Steps should have been taken to follow up with, and check in on, students or their families who had communicated their concerns about incidents. This is particularly the case in relation to Zack and his family following the park incident. (f) Implementation of policies: (i) Anti-bullying and harassment policies should have been visibly and consistently implemented, including regular reminders to staff of the requirements in the policies and the need to be vigilant for transgressions. (g) Restorative justice: (i) Restorative justice approaches should have been considered and employed. (h) Police involvement: (i) Consideration should have been given to police involvement, even in an educative way, where physical violence formed part of antisemitic student behaviour. 1091 The failure to take these steps, either at all (eg restorative justice and a systemic and school-wide approach to acceptance and inclusion of Jewish students, and understanding the reasons they dress as they do) or to an inadequate extent (eg inconsistent approaches to investigating complaints of antisemitic bullying and harassment) caused the levels of antisemitic bullying and harassment of the applicants to continue unabated, and largely unpunished except for isolated incidents. The failure to take these steps gave the student perpetrators a sense of impunity, and entrenched an apparent tolerance for a level of bullying and harassment of Jewish students that was not, and would not have been, tolerated for other kinds of discriminatory bullying, such as sexual harassment or harassment based on sexual orientation. 1092 I adopt and incorporate these findings into my findings about each of the applicants' individual allegations below, both as to s 9 of the RDA and (where applicable) as to negligence.

Racist bullying and assaults, and reporting of bullying and assaults to school staff 1093 The applicants allege that Liam suffered racist bullying and assaults across his time at BSC, from 2013 to 2015. In relation to this bullying, the applicants allege contraventions of s 9 of the RDA (at [366]), and breach of the duty of care owed to Liam (at [380]-[381]). There is no allegation of a contravention of s 18C in relation to treatment of Liam while at BSC, appropriately so in my opinion, given the purposes of s 18C. 1094 The applicants say the bullying and assaults directed at Liam included: (a) when Liam was in year 7 (2013): (i) students shouting comments such as "Jewboy", "Skullboy" and other terms at him, with a group of 4-5 students regularly calling him "derogatory, antisemitic remarks and names and in an aggressive manner" by the end of 2013; (ii) students physically assaulting him on school premises during school hours, including tripping him, pushing him, punching him, and flicking him; (iii) an incident in which students drew yellow Stars of David on his book; and (iv) incidents in which students ripped his kippah off his head (ripping also his hair, as the kippah was fastened with hair clips), where the students did not give his kippah back but he instead found it in the bin; (b) when Liam was in year 8 (2014): (i) a group of students pushing him down stairs; (ii) more frequent instances of bullying, averaging "at least about 5 times a day", including students making "'Heil Hitler!' salutes", throwing money in front of him and spitting on him, and calling him names or directing comments at him such as "Jewboy", "Fucking Jew' or "bloody Jew", "burn in an oven" or "die in an oven", or "tight ass"; (iii) more frequent instances of physical attacks including punching and hitting; (iv) his locker having antisemitic graffiti and Stars of David put on it; and (v) a group of girls pushing him over and kicking him hard in the stomach in the locker area; and (c) when Liam was in year 9 (2015): (i) in the first week of year 9, Liam being pushed, shoved, kicked, spat on, yellow at, and called names; and (ii) the bathroom incident in the second week of Liam's year 9: … Liam was walking to class in the Year 9 building where all the Year 9 classes and lockers were held. While walking to class Liam, in an unprovoked incident, was shoved into a male bathroom into a cubicle in the corner by four boys that were usual perpetrators against him during Years 7 and 8. One of the boys pulled out a knife out and held it to Liam's throat and threatened to cause Liam further harm than they had been previously done to him if Liam told the School about any of the things that were going on. They punched him in the stomach during the incident in any event. Liam was left in the bathroom on the floor, petrified. He was unable to move imminently thereafter due to fear. 1095 The applicants plead that: The students that were meting out this racist treatment to Liam did so in the presence of (and irrespective of) teachers, who did nothing in the face of seeing or hearing Liam be treated in a racist, discriminatory fashion. The failure to protect Jewish students who made complaints such as Liam created a culture in which students became de-sensitised to anti-Semitic racism and created a breeding ground for hate. 1096 The applicants say that Liam reported these incidents, including the bathroom incident, to the school's administration front office. They also say he reported some events to teachers - for example, reporting the incident in which a group of girls pushed him and kicked him over to Dr Riha - and to school counsellors. They say he reported to the administration office regularly ("about 4-5 times a term"), and that the staff at the administration office told him they would give the information to the principal or vice principal. The applicants allege there was no follow up on these reports, including with respect to the bathroom incident. 1097 The applicants allege that no one from BSC checked on Liam when he left BSC. They allege that, some months after he left BSC, Liam (accompanied by Ms Meltzer, from Yavneh) met with Mr Minack, but Mr Minack denied any knowledge of the bathroom incident. 1098 It is unclear whether the alleged conduct by, or inaction of, Mr Minack after Liam left the school (or even on leaving the school) is alleged to be a separate breach of a duty of care to Liam. In my view it is not clearly expressed as such, and is better seen as an allegation of conduct that goes to the question of damages in negligence, in particular the claim for either aggravated or exemplary damages. 1099 There is then a pleading which is directed at the causes of action under the RDA s 9 and s 18C, and which is structured so as to rely on the individual factual allegations for each applicant and then to plead how these amount to contraventions of the RDA. 1100 I will set the pleading out for Liam, but it follows the same pattern for each of the other applicants. At [366] of the statement of claim: (a) There is a generalised summary reference to: All complaints/notification of anti-Semitic verbal and physical bullying and racism by Liam Arnold-Levy (directly or on his behalf) to the School and its staff (while Mr Minack was then Vice-Principal), be it in relation to the conduct of other students or the School's staff's conduct[.] (Original emphasis.) (b) There is then an allegation that Mr Minack failed "to take action in response", and that this failure involved a distinction, exclusion and so forth, following the text of s 9 of the RDA. The distinction, exclusion or preference is not expressly stated. Then it is alleged that these distinctions were based on "race, colour, descent or national or ethnic origin" without selecting which ones the applicants say are applicable. (c) Then there is an allegation of nullification or impairment of the relevant applicants' human rights, relying on the following human rights: right to freedom of thought, conscience and religion; right to freedom of opinion and expression; right to education and training; right to equal participation in cultural activities; and/or right to security of person and protection. 1101 All this relates to s 9 of the RDA. There is no pleaded reliance on s 18C for all of these failure-type allegations.

Liam - resolution 1102 The summary of the individual allegations by Liam reveals a focus on the failures of Mr Minack, the BSC leadership team and other BSC staff to address his complaints about the way he was being treated by other students. It is an omissions case, put both in negligence and under s 9 of the RDA. Yet for Liam, it includes allegations the applicants recognise must be made against Ms Podbury, since she was principal at the time (2013-2015) and Mr Minack was vice principal. 1103 In final submissions, the respondents concentrated on the factual issues around whether and when Liam reported the bullying and harassment he claimed to have experienced. Their focus was less on his accounts of what happened to him than on whether he complained, how often and to whom. So although there were some submissions about Liam's oral evidence being unreliable, and despite some cross-examination suggesting fabrication, the respondents did not mount a wholesale attack on Liam's evidence about what he had experienced. If they had, I would have rejected it. 1104 The claims by the applicants about the presence of swastikas around BSC was answered by the respondents, in relation to Liam, with a submission that: Liam's claims about swastikas at the school go nowhere because he admits he never reported any he alleges to have seen and adduced no evidence that staff knew about them. (Footnote omitted.) 1105 With respect, this submission is misconceived. Liam's factual case was that he saw swastikas around the school and found them disturbing and upsetting. As a Jewish student he felt targeted by that kind of graffiti. His case is that he complained, and nothing was done to address the graffiti, just as with the antisemitic bullying and harassment he experienced. In this sense his factual allegations were the same as the other applicants. Whether or not he is found to have made an express complaint about swastika graffiti is relevant but not determinative of his s 9 claim. He has standing to bring it, and the respondents did not contend otherwise. The question then is whether there was conduct of a kind contravening s 9 - the answer to that question does not turn entirely on whether he complained or not. 1106 As a witness, I found Liam to be understandably nervous, but a quiet and firm narrator. There were many places in his evidence where he could not recall a lot of detail, but then other places where he was quite specific. In the latter situation, his evidence struck me as consisting of genuine recollections. Two examples were his evidence about other BSC students taking his kippah, and putting graffiti of the Star of David on his book. He was also very clear in his recollection about the numbers and placement of swastikas around the school. To give what I found to be a vivid example of a genuine recollection, Liam gave the following evidence about the way he was harassed by other students: MR BUTT: What sort of things happened to your kippah?---It was ripped off a lot. Yes?---I remember lying down in the grass out - at - within the school. I found an area that I was comfortable to stay in, and I just wanted to just lie back and relax a little bit. A student came behind me and kicked me in the head very hard. The yarmulke that I was wearing at the time was in the pattern of a soccer ball, and after the student kicked me in the head, I looked up, and they laughed and, in quite a satirical tone, said, "I'm sorry. I thought it was a soccer ball." Who was that?---I believe it was Perry [redacted]. And what did you do after that?---I went straight to the administration again. What did they say?---They said that they would write it down and give it to the principal. 1107 An example such as this is telling. The bullying of Liam is not driven by some generalised nastiness; he was targeted because he wore a kippah - an externally visible symbol of his Jewish race and his Jewish religion. There is no doubt he experienced antisemitic bullying. Whether or not Liam labelled it like that when he complained is beside the point - to any reasonable observer, and certainly to any reasonable and attentive BSC staff member, that is an accurate description. Liam himself pointed out the fallacy in the respondents' insistence at times during this proceeding that complaints needed to be contemporaneously described as "antisemitic" for the BSC leadership or BSC teachers to treat it as such: My answer to Ms Dickinson was correct that I hadn't told her specifically about the anti-Semitism because I didn't mention the phrase anti-Semitism to her. I didn't say to her, "The things that are going on are anti-Semitic." What I told her was the swastikas, the Star of David being drawn on my book, the Nazi salutes and all of those instances that had occurred to me during year 7. But I didn't say to her, "These were anti-Semitic." That's what I told her. I generally thought that a student telling a counsellor of those certain things, they would have been able to put two and two together and recognise the anti-Semitic nature of the attacks. … You didn't tell them anything about Nazi salutes, the Star of David, or any comments or remarks directed at you that had anything to do with being Jewish, did you?---I didn't mention that I was Jewish to the counsellor. However, I did, and I repeat, mention all the attacks that were done in my direction. I didn't state to her or walk into the office and say, "By the way, I'm Jewish." That never came up. So yes, I didn't mention the Jewish part because again, I felt that was quite a moot point, mentioning that I was Jewish when it was relatively obviously, wearing a yarmulke and tzitzit. I didn't think that it needed a label. 1108 During this part of his cross-examination, it was suggested to Liam that he did not tell Ms Gibson, or anyone at the administration office, about the conduct he had just referred to. Liam insisted that he did, and I accept his evidence. I deal with Ms Gibson's evidence, and her contemporaneous notes, below. 1109 In general I accept Liam's account that the bullying he experienced at BSC, from year 7 until he left the school, was constant and most of it was antisemitic. Liam conceded, honestly, that some of it appeared not to be targeting him because he was Jewish; however, he was adamant most of it was aimed at him because he was Jewish, and I accept this. Largely I accept it because of the kind of incidents he described, such as the one above, the timing of him starting to wear a kippah and his description of what happened after that time: When in year 7 did you start wearing the kippah?---I started wearing my kippah in term 2 of year 7. Why did you do that?---I started practising for my Bar Mitzvah that was occurring at the end of that year. And as I began learning more about my Jewish heritage, I became extremely interested and I wanted to - I wanted to expand my knowledge and understanding the reasoning behind yarmulke or a kippah highlighting, you know, the belief in God and all of that and the stuff that I was interested in. I wanted to show that, that I was proud to be Jewish and that I was happy to show my true identity. How did - how did the environment treat you when you started - - -?---It changed drastically. Explain?---The environment became almost like target practice. I walked into school. Instantly, I was verbally attacked. I went into the classroom, within the first hour verbally and physically attacked. Ways of being called "effing Jew", "skull boy", Nazi salutes being thrown my way, being punched in the arm, kicked, pushed over. It became a lot more frequent throughout the day and throughout the week. 1110 Although Liam's evidence appeared to suggest the bullying was almost daily, and he used such phrases as "instantly", I am not persuaded on the balance of probabilities that this level of frequency or immediacy has been established. I accept that probably at the time, and certainly in hindsight, this is how it felt to Liam. However, Liam's evidence as a whole amply justifies a finding that he was regularly subjected to antisemitic student bullying, both inside the classroom and in the school grounds and locker areas. In my opinion, his evidence establishes this was occurring several times a week at least. 1111 Other examples of the regular bullying he received because he was Jewish are the following: What about the star - Stars of David? We will talk about what happened there?---During one of my classes, I requested to go to the bathroom. I came back no more than five minutes later and my book that I used for that class, which was just a notebook, had the front cover defaced with Stars of David. It was completely covered. And, I mean, I didn't really know what to do with the book at that point. I didn't really want to be walking around with a book defaced with such marks which were not done purely in a friendly-like way, but more so in an identification-type way to show people that I was Jewish. I threw the book in the bin. 1112 Liam could identify the students who engaged in all this conduct. He was very clear about which students engaged in the conduct and I accept he had a genuine recollection of the incidents. Although the respondents criticised Liam's ability to recall names during his evidence in Court better than he could during the Worklogic inquiry, in my view, as Liam explained, this was a natural and expected consequence of Liam refreshing his memory from contemporaneous documents in preparation for giving evidence in this proceeding. As I have explained, it is clear many of the respondents' witnesses did the same. For some of them, it refreshed their memory - such as Mr Lyons. For others - such as Ms Angelidis, Ms Flessa, Ms Lewis, Ms McMahon and Ms Sarikizis, it led to what I have found to be reconstruction. In Liam's case, his evidence was recollection, not reconstruction - it was clear to me as he was giving evidence that he was back in the time of the bullying experiences he had, and was recounting them in an honest and generally reliable way. 1113 As year 7 went on, Liam explained the bullying became more physical: More physical. A lot more physical. Punching, kicking, a lot of money being thrown on the ground in front of me, telling me, "Dirty Jew, pick it up." A lot of Nazi salutes as well. … What, if any, physical injuries did you sustain?---Bruises. A lot of bruises. Scratches. Abrasions and marks. 1114 He described what was done to his yarmulke: One of the classes that I was in, after I had started wearing my yarmulke quite frequently, during the class it was ripped off my head quite violently so that several hairs were actually taken out at the same time, because the yarmulke - it was quite small the one I was wearing, and it needed to be held on by clips. And it was - what I remember, at the end of the lesson, I didn't know where it was put. They didn't show me where it was taken or anything along those lines. I walked past the bin at the end of the lesson and saw it in the bin where I had picked it up out of the bin, noticed that it had several stains on it from the - the rubbish in the bin. And I went to the front office again, this time hoping that now that I can actually show them that they've taken something physically from me, thrown it into the bin and damaged it or messed it up, that they might actually do something about it. But, again, they wrote down what I had told them and said, "We will give it to the principal." And, again, I never saw the principal, never heard from them. I didn't see anyone. 1115 His lockers were defaced: My locker was graffitied on a lot. Phrases such as heil Hitler was written on my locker. Luckily, it wasn't used with permanent marker, so I was able to take it off quite quickly. What was it used with?---Sorry? What was it used with?---Like, a pencil - a grey lead pencil, which I was able to rub off with a standard rubber. And I went again to the administration office to complain that my locker had been defaced with "heil Hitler" on it. They didn't say, "Can you come show us? Would you be able to take a picture of it for us and show it to us? We will have a look at it later." Nothing. They just said, "We will write it down and we will give it to the principal." 1116 The evidence of other student witnesses corroborated Liam's account. Jules Paul gave evidence about a pack of up to five students harassing Liam, insulting him, pushing and shoving him in the playground, threatening him. He recalled, for example: Liam would often wear a kippah that had a football design on its head, like a soccer ball. And because of that, people would often joke or threaten to kick him in his head and make comments that his head looked quite kickable. Comments like that. 1117 He included in this Liam being picked on and insulted in class in years 8 and 9, when Jules was in the same class: I would see targeted harassment towards Liam from his peers. Not his peers, but people in his cohort. Comments like, "I'm going to kick you in the head, you fucking Jew." 1118 Jules nominated Mr Dobric and Mr Varney as teachers who were in charge of these classes, and who took no action. As to Mr Dobric, in the maths class, Jules explained: He wouldn't single the students out; he would just tell everyone to quieten down and get back to their work. 1119 I accept that evidence. It is consistent with the evidence from many students about the way in which teachers at BSC reacted. Jules' evidence was: How many people would you say were in this pack, if you're able to remember?---Five or so. Give or take a couple. But I can't remember clearly. 1120 Nathan Shulman was not friends with Liam, and was not in the same class, but directly observed and heard the bullying and harassment of Liam outside classes: So how many times would you see him walk past and see a comment?---Maybe once or twice a week. And what sort of comments did you hear?---A lot about the kippah and just the way he looked. Could you actually say what you heard in terms of, like, a transcript? What kids said?---Yes. Well, the - a lot would be, like, "He has a small penis", because he's circumcised. Be - "Pre-heat the oven." Be, like, "We should get him in the oven." And along those lines. How many different kids did you hear saying things like that?---Probably around near five. 1121 Nathan was a straightforward and direct witness, whom I consider had a good recollection of the events he described. 1122 In terms of the effects on him, I found Liam's evidence to be honest and sincere, painting a tragic picture of the effects of this conduct on him. He explained why he did not mention it to his family, especially in the context of other evidence he gave about some the challenges in his family situation at this time: I didn't mention a lot of this to my family, because I was - I felt like a burden. I felt like a burden at school because of the amount of times that I had to go to the administration office to try and get something done. That was the mentality that I had, which followed me home. I didn't want to be a burden on my parents, on my - on my sisters, on anyone else in the family, because I already felt like one. I was ashamed of what was going on and that it had been allowed at the school. And I was just ashamed of feeling the way that I did about myself and about my identity. Well, what do you mean by that?---I didn't like who I was. I didn't like talking to anyone about who I was or - or anything personal. I lost a lot of trust, even with the people that were close around me. And so how did that start making - or how did that make you feel?---Even more isolated. That was partly my own fault for isolating myself from my family, but that was the way I was made to feel from the things that I had been subjected to at the school, that I was - I was put in a category and I was targeted because of that. Well, what, if any, impacts on you did it have physically?---Physically, I - I mean, I hated going to school. I tried making myself sick in the mornings so I wouldn't have to go to school. I was extremely stressed. I couldn't sleep. I couldn't eat. I had just become a completely different person. What do you mean by a different person?---From the bubbly, inquisitive, happy kid that I was in year 6 to someone that was afraid to ask a teacher a simple question in class because I was worried of the repercussions that might come from that. Repercussions from who?---The students. What might that include?---Even more of an excuse to pick on me. I was afraid to ask questions because I might be made fun of for asking questions or targeted more by other students outside of the scope of the 10 that were already frequently harassing me. 1123 There were many other instances of Liam giving this kind of evidence, and I accept his description of the effects the students' conduct, and the lack of action from BSC leadership and teaching staff, had on him. 1124 In any event, I reject the respondents' contentions about Liam's reliability. I found Liam to be an honest witness, giving evidence in very difficult circumstances, and recalling matters that had been traumatic for him. 1125 The respondents made something in their written closing submissions of differences between Liam's accounts in evidence and the accounts given to Ms Dickinson as part of the Worklogic inquiry. Mostly, those differences consisted of matters the respondents contended Liam did not mention to Ms Dickinson, or different accounts. They invited the Court to disbelieve these accounts because they had not been given to Ms Dickinson, or Ms Dickinson had been given a different account. As I explain elsewhere in these reasons, I do not propose to use the Worklogic inquiry documents in this way. There was no oral evidence about how students came to give their accounts to Ms Dickinson, how they were prepared, what advice or instructions they might have been given. In terms of omissions there could be many explanations. 1126 In terms of alleged differences, some of the respondents' contentions were incorrect. For example, the submission (at [131] of the respondents' closing submissions) that Liam should not be believed because he had told Ms Dickinson that Rory "wasn't one of the students that was causing any antisemitism" yet in his evidence he identified Rory as one of the perpetrators of antisemitic bullying. That is an incorrect submission because it does not take account of all of Liam's evidence, especially his cross-examination. It is true that in examination-in-chief when listing the perpetrators of antisemitic bullying, Liam included Rory. But then in cross-examination, he gave this evidence: Well, that's what you told Ms Meltzer. You told her that she did try to help you?---Try at the beginning of year 7 when I first started seeing her, yes, because that's when I started just talking about the general bullying or Rory [redacted] - [redacted] or [redacted], I can't remember his last name - and so yes, because it was focused just on general bullying, she did try and give some assistance, but as soon as it came to mentioning the anti-Semitic comments, nothing was done. You've just mentioned a person's name there: Rory. You've mentioned him a number of times in your evidence, at least five. Transcript pages 89, 131, 133, 138, and 140. You say he was responsible for many of the anti-Semitic remarks and comments to you; is that right?---No. No. Well, what do you say? That he did make some anti-Semitic remarks and comments to you?---Some, yes. Yes?---But he was not the main perpetrator. Okay. ..... yes, I will withdraw that, then. Was he regularly doing it to you?---As - not regularly, no. He is someone that you say was involved in the incident in the bathroom, though, isn't he?---Yes. And he is someone that you said - transcript page 131, line 39 - that there were quite a few incidences with Rory where he would constantly call out racist and anti-Semitic comments; is that right?---Later, yes, but - - - What do you mean by later?---Later in the year. Which year?---Year 7 and year 8. He had affiliated himself with the main group of individuals that were constantly using anti-Semitic phrases in my direction and towards me, and yes, he was the one that mainly - that - not mainly, but he did call out a lot throughout class in my direction. 1127 This cross-examination went on a little longer, but in my opinion it did not establish that Liam was giving an account about Rory to the Court that was inconsistent with the account he had given to Ms Dickinson so that his evidence could not be relied upon. Liam used the same language - "affiliated" - to describe where Rory fitted in to Ms Dickinson, as he used in Court. I accept he was placing Rory in the category of an onlooker, a student who encouraged the central perpetrators, and aligned himself with them. 1128 The respondents relied on other differences between what Liam said to Ms Dickinson, and to Ms Meltzer, and his evidence in this proceeding - such as the attack in the BSC boys' bathroom on him. Some of the differences involved omissions again (eg no mention of a knife in Ms Meltzer's notes) but I do not consider these criticisms by the respondents alter my assessment of Liam as a witness. These were traumatic events for him. Whether he always told each person he talked to exactly the same account could have been influenced by a number of matters including how much time he had, how sympathetic the listener was, what the listener appeared interested in, or what the purpose of giving the account was. In this proceeding, I am confident Liam understood he needed to give a full and frank account - that this was his principal opportunity to relate in detail what had happened to him at BSC. In my opinion, he gave his evidence in that way. Liam is not responsible, for example, for what Ms Meltzer chose to write down. And as I have already explained, what Liam did or did not say to Ms Dickinson could have been influenced by a number of matters, none of which go to whether the account he was giving in Court was reliable, and truthful. 1129 For example, Liam explained the purpose of Ms Meltzer's notes and them being given to Mr Minack: This document was used in order to give a summary of what had occurred. This wasn't a detailed document. The whole point of it was to send a summary to Richard Minack, in order for him to get an idea as to why I had had such a terrible time there. … Yes, as this is a summary. If this document was used in order to detail every small thing, this document would be hundreds of pages long. 1130 I accept that explanation. 1131 Liam himself described some of the differences in the account to Ms Dickinson and his evidence to this Court in ways I found plausible and persuasive. For example, he gave the following evidence: In this account, you also told Ms Dickinson that you did not report it to administration, didn't you?---Where exactly are you referring? Well, do you recall what you said?---It was a long time ago. I cannot recall everything that I told her. Okay. The next page, 3430. Yes. Where the hand is, that answer. After that. You told Ms Dickinson that you did not report it to administration, didn't you?---I never used the phrase "I had not". I used the phrase that I was too scared to go to administration. I was too scared to do anything. That is why I was lying on the bathroom floor, curled up in a ball crying, because I had been attacked with knife. So, yes, I was too scared to go to the administration office straightaway. I had sat there, curled up in a ball, crying for - I don't know how long I was there for - until I mustered up the courage to actually get up and go to the administration office. Yes. Where in this transcript did you tell Ms Dickinson that you went to the administration office?---I don't know. Did you tell Ms Dickinson you went to the administration - - -?---I don't know. - - - office. Sorry?---I don't know. 1132 I accept Liam's evidence. While the respondents described Liam's explanations as "very fine distinctions", I consider the thrust of the respondents' criticism itself to make fine distinctions, and to be unfair. Principally that is because the respondents did not challenge the fact that Liam was attacked in a student bathroom at BSC. They did not suggest he invented that incident. 1133 Liam identified three specific people on BSC staff he spoke to, and one specific location he went to, about the bullying and harassment he was experiencing. The two named staff members were Peter Mangold and Karen Gibson. The third was a female counsellor he saw but whose name he could not recall. I make findings of fact about the nature and extent of the complaints made by Liam below. 1134 Finally, before turning to other aspects of my fact-finding about Liam's allegations, it is relevant to observe that although the respondents' case was that Liam was not telling the truth about the nature and extent of the bullying and harassment he suffered or its antisemitic character, nor about the number of times he reported this to BSC staff, the respondents did not attempt to prove, through the evidence, why Liam might be lying about these matters. 1135 The respondents did not take issue with Liam identifying BSC as a place of deep hurt and unhappiness for him at least since he left the school and went to Yavneh in 2015. Why would a young man in Liam's position, now aged 21 at the time of giving his evidence, commit to giving these accounts of what he claims occurred at BSC for a period of 2-3 years, if he was lying about them? What motive could he have for doing so? This was a question asked by Besanko J in Roberts-Smith at many points in his Honour's assessment of the reliability of witness evidence before him: see, for example, at [445], [460], [518], [800], [864], [875], [923], [926], [1174], and [1681]. See also Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 221, Palmer v The Queen [1998] HCA 2; 193 CLR 1 at [6] and the authorities there referred to. 1136 This is a matter which has affected my assessment of each of the applicants as witnesses, but in particular Liam and Zack, being the two applicants in my opinion most seriously damaged by the treatment they received. While the respondents bore no onus of proof and I do not suggest otherwise, they also did not seek to raise any counterfactual which might seek to explain why these two young men would put themselves through an inquiry and then a trial like this, only to be lying about the entire factual underpinning of their allegations.

Factual findings about the bullying and harassment experienced by Liam and whether it had an antisemitic character or aspect 1137 I have accepted Liam's evidence about the incidents described above. These findings cover much of the general factual claims made by Liam about his treatment at the hands of other students at BSC. While I have not accepted the absolute level of frequency of the conduct as Liam described it, I do accept that it is appropriate to describe the students' conduct as frequent and constant, occurring in one way or another several times a week. That level of bullying and harassment is completely unacceptable in any school setting, but in Liam's case I find it went almost entirely unchecked. 1138 I accept: (a) from about the middle of his year 7, Liam was bullied and harassed by other BSC students who targeted him because he was Jewish, and because he was openly Jewish in the sense of wearing religious symbols that identified him as such; (b) Liam may have experienced some bullying and harassment from other students from the start of his year 7 at BSC but at this stage it was not because he was Jewish; (c) from the middle of year 7, Liam was preparing for his bar mitzvah, and started wearing a kippah and also tzitzit; (d) in 2013-2015 there is no evidence that any other student at BSC, and certainly not in the junior school, was wearing a kippah and tzitzit, so Liam stood out as identifiably Jewish; (e) the bullying and harassment was verbal and physical: (i) as to verbal, it took the form of taunts such as being called "Jew boy", "skull boy", "fucking Jew", "burn in an oven", "die in an oven"; and (ii) as to physical, it included throwing coins at Liam's feet, Nazi salutes, the drawing of Jewish religious like the Star of David on his school books, having graffiti such as swastikas drawn on his locker, having the tassels of his tzitzit pulled to the extent that they broke on occasions, having his kippah ripped off, having his head kicked while he wearing his kippah, being pushed into his locker by a group of female students, being pushed down stairs on his way to class, resulting in a gash on his knee and bruising; and (f) the main protagonists of this behaviour were Perry and Lennon (especially the physical bullying), but other students involved included Ali, Damon, Myles and Rory. 1139 Liam's evidence was supported by the notes taken by Ms Meltzer in her session with Liam after he started at Yavneh. This includes the assault I accept occurred in the boys' bathroom. I find it inconceivable that Liam would be reciting all this treatment to Ms Meltzer once he had left BSC and was at Yavneh, unless it was for the purposes he and Ms Meltzer described - to work through the dreadful treatment he had experienced at BSC and to try and move past it. The respondents' flat denial of Liam's narrative of his treatment at BSC involves inviting the Court to find that Liam continued to concoct these accounts once he started at his new school, a nonsensical proposition that I reject. 1140 Liam's evidence was supported by the evidence of Jules Paul and Nathan Shulman, who gave direct evidence of having witnessed the bullying Liam was subjected to. 1141 To recall, Jules is not Jewish. I found him a very reliable witness. He said: So Liam would often get bullied because of his background, being a Jewish student. He would get picked on, be called slurs, threatened physically, verbally, emotionally. … I think I've heard him called - being called a kike before. That's the main slur that comes to mind. People just called him, "fucking Jew" and stuff. Sorry. So I would hear him called a kike. He would often get threatened. That's the main slur I can think of. Other ones aren't coming to my mind at this moment. He would be threatened, like many other Jewish students were at the school, saying stuff like, "I will stuff you into an oven you fucking Jew." And at the moment, that's all that's coming to mind. … Liam would often wear a kippah that had a football design on its head, like a soccer ball. And because of that, people would often joke or threaten to kick him in his head and make comments that his head looked quite kickable. Comments like that. 1142 Jules did describe this as "a daily occurrence", but I am not prepared to find on the basis of such general evidence that it had such frequency. Nevertheless, I accept the impression Jules was conveying was that it was constant. That is consistent with Liam's evidence, and I find the antisemitic bullying was constant. 1143 In terms of where Jules observed this: I would see it in the courtyard at school. I would see him attacked physically by students. At the time, I thought it was rough play. But looking back on it now, it's - it was a bit more excessive and that. So he would be hit on the head by bullies at the school during lunchtimes and recess. Not during class to my knowledge. But he was attacked verbally in class. Because you can't really get away with punching someone in the middle of a class. What about teachers? What, if anything, did they do?---From my knowledge, they did nothing to stop this. And so what did you see in relation to, if anything, teachers and these incidents that you're talking about?---If they were in the presence of it, they would give the students who were bullying Liam a slap on the wrist and walk off. … At the time, I was weak-willed and I didn't want to intervene in fear that I would get predated on by these bullies. 1144 Jules identified Damon and a student called Ali as the main perpetrators, describing them as part of a "pack of bullies", consisting of about five students. 1145 In relation to the year 8 maths class, Jules gave the following evidence about the reaction of the classroom teacher: So do you - what did you see in particular?---I would see targeted harassment towards Liam from his peers. Not his peers, but people in his cohort. Comments like, "I'm going to kick you in the head, you fucking Jew." So what, if anything, did Mr Dobri[c] do when that happened?---He wouldn't single the students out; he would just tell everyone to quieten down and get back to their work. Right?---So he would sweep it under the rug as best as he could. 1146 Nathan Shulman also knew about the antisemitism towards Liam. He was also a straightforward and reliable witness whose direct evidence I accept. Nathan explained how he and Liam were not in the same class and "didn't cross paths too often". However, he described Liam wearing a kippah, and that there were comments from students "behind his back". He described the comments in the following way: A lot about the kippah and just the way he looked. Could you actually say what you heard in terms of, like, a transcript? What kids said?---Yes. Well, the - a lot would be, like, "He has a small penis", because he's circumcised. Be - "Pre-heat the oven." Be, like, "We should get him in the oven." And along those lines. How many different kids did you hear saying things like that?---Probably around near five. 1147 I infer this is the same group of around five students that Jules identified, and that Liam also identified. 1148 The insults and taunts about which Liam gave evidence were consistent with the insults and taunts described by other applicants, and other student witnesses. There was a high level of overall consistency in the accounts given of the expression used by the perpetrator students. There was also a high level of consistency with the taunts and insults recorded by Professor Rutland in her own research. 1149 Further, there was consistency with insults and taunts recorded in Chronicle records in 2014. For example, in Jack L's Chronicle the following is recorded in March 2014, by Mr Minack (then assistant principal): ~Overview: Warning about bullying behaviour ~Details: Nadav saw me and described incidents in which Jack racially vilified him. Coughing, "Jew", throwing money on the ground in front of him, saying, "Jew" etc. I gave Jack a first and only warning that this behaviour must stop immediately[.] 1150 Then, less than two weeks later, is the following entry in Damon's Chronicle: ~Overview: Gave boys final warning about racially bullying Nadav Cohen[.] ~Details: Nadav Cohen and Rhys Morgan reported to me that when the group of boys are together, they make comments such as, "go pick up the money" and, "preheat the oven." GAR and I spoke with the boys. Because we were not able to identify the individuals in the group specifically responsible for the comments, we gave the group a stern warning about how totally unacceptable the comments were. We warned that there would be heavy consequences for any individual found to be making these, or other harassing comments. Jack, at the end, indirectly conceded that he had made some of these comments. 1151 This was the kind of language used consistently by all student witnesses, and I accept their evidence about the nature and language of the taunts and insults. 1152 In terms of other specific incidents, it is necessary to make findings about the most serious incident that Liam recounted, which was an assault in the boys' bathroom. Liam's evidence was that this incident occurred in year 9, and was the 'last straw', so to speak, prompting him to leave BSC a week or so later. He said: So what action, if any, did you take after that?---At the school, I didn't take any other action. I - I didn't know what else to do. I had spoken to a student counsellor about the anti-Semitism. I had spoken to the year level coordinator the previous year. I had gone to the administration staff countless times, and nothing was done. I didn't know what else to do. I didn't know who else to go to. 1153 Liam described how in the first week in year 9 he continued to experience regular verbal and physical harassment, with the same antisemitic character. Then in the second week of year 9, the following incident occurred: I was walking to class, and as I walked past the bathroom, I was pushed into one of the cubicles, and there were several boys in the cubicle who pushed me up against the wall and held me up against the wall. Lennon got a knife out of his pocket and held it up to my neck and threatened to hurt me if I had gone to the administration or - or anyone else again. They had seen me go the previous week to see the administration staff again. They were walking into school late and had seen me, and that's what had provoked - provoked this attack. Who was involved in that?---Perry, Lennon, Rory, M[y]les - the usual. And so explain, if you can, what actually - the details of what happened?---I was pushed up against the wall in the cubicle, and I was punched in the stomach by a couple of the students. Lennon then reached into his pocket and got a pocket knife. He then used the pocket knife and brought it up to my neck, and that's when he said, "If you ever mention this to anyone, we're really going to hurt you." Who, if anyone, was there?---There was no one else there, just those boys. I assume, as Lennon did that, and Perry then followed by punching me in the stomach again, the boys ran out of the bathroom where I was just left shaking. I was curled up in that cubicle for - I don't even know how long I was there for - crying because of what had just occurred. I was scared to get up. I was scared to move. But eventually, I did. And I ran to the administration office and told them exactly what had happened, the boys that were involved and that I needed something to happen. This - this had just gone too far. I - I basically demanded to see the principal at that point, and, again, I was told that they would get back to me. 1154 I accept Liam's evidence about this event, in terms of its occurrence and the nature of it. He was cross-examined to suggest that he had not given an account of this incident to Ms Meltzer that involved a knife, and the first time he mentioned a knife was in the account he gave to Ms Dickinson. Liam's evidence was that he told Ms Meltzer about a knife being used. 1155 He otherwise accepted what senior counsel for the respondents put to him, to the effect that there were no other documents referring to a knife before this. That suggestion is borne out by the evidence as I understand it. 1156 I have no reason to doubt Liam's evidence about Lennon using a knife. The objective fact is that Liam left BSC about a week after the date on which he says this incident occurred. I consider it is probable this incident was what finally led him to leave the school. A violent incident such as this, with a knife involved, on a student who has just started year 9 and who has been the subject of antisemitic bullying and harassment for 18 months before this, is precisely the kind of incident that could explain such a prompt departure very early in a school year. As I have found elsewhere, Liam is not responsible for what Ms Meltzer did and did not write down. In her cross-examination, Ms Meltzer did not deny Liam may have told her about a knife: Thank you?---I - I think I remember the knife in the bathroom, but I can't say for sure. 1157 I found Ms Meltzer a warm, genuine and reliable witness, who took a great deal of time and care over efforts to assist Liam to move past his experiences at BSC. I consider her recollection (even though somewhat hesitant) is likely to be reliable because of the importance she placed on assisting him at this time, and because of the very unusual nature of the arrangement of taking a student back to their previous school to try and seek closure of the way they were treated there. While I do not place a great deal of weight on her evidence on this aspect, it supports Liam's account. 1158 I find this was a very serious assault carried out on Liam on BSC premises by at least two and probably more than two current BSC students. I find Liam reported it to the school's administration office. I find no action was taken against any student in relation to it, and no care was given to Liam after it by Ms Podbury, Mr Minack or any other person on the staff at BSC. 1159 As I noted above, it was this incident, I find, that finally drove Liam to leave BSC. His evidence was that he had been thinking about doing so for some time, indeed since he started training for his bar mitzvah. He had mentioned this aspiration to Ms Gibson in his counselling sessions with her, as her notes record. He contacted the principal of Yavneh, and met with him and was offered a full scholarship to the school, which he accepted. He left BSC less than a week later. In terms of how he left BSC, this was his evidence: And so what part of the term - a few weeks. When you left Brighton, how did you leave? Who did you talk to when you were leaving?---I didn't talk to anyone. No one emailed me or asked the reasoning behind why I left. There was no exit survey. There was no follow-up or anything as to why I decided to leave, not to me, not to my parents, or anyone. What, if any, paperwork did you complete?---None. No paperwork. What, if any, phone calls did you get from anyone?---No phone calls. There was no form of contact between the school and myself requesting a reason or asking why I had decided to leave. 1160 Liam remained at Yavneh until the end of his VCE studies. He was cross-examined about whether he continued to experience anxiety while he was at Yavneh. He agreed he did, but was firm in his evidence that the anxiety experienced when at Yavneh was "an effect of what I was subjected to at Brighton". I accept that evidence. Liam was, I find, significantly damaged by his experiences at BSC, and he carried anxiety about school situations and mixing with other students with him to Yavneh, and indeed onto his university studies. That anxiety came not only from his apprehensions about interactions with other students and whether he would be bullied, or accepted, but also anxiety about whether there were people he could seek support from or not, and whether he would be listened to if he sought support. I make further findings about this below in the damages section.

Factual findings about whether Liam complained, and if so, when and how 1161 Liam's evidence was that he went the school's administration office to complain about the bullying and harassment he received. His evidence was that this was the principal place he went to complain. In describing the assault in the boys' bathroom that I have extracted above, Liam described how he went to the administration office in these terms: Who? Who? Who were you talking about?---The administration office. Do you remember who?---The woman in blonde - with - with blonde hair. Was she the usual?---Yes What did you say?---I told her the name of the students, where it had happened, what had happened, and there was just no reaction. Nothing. No - no reaction to the fact that a student had brought a knife to the school. No reaction to the fact that a knife had been held up to another's student's throat. There was nothing. 1162 In cross-examination, Liam accepted there was more than one person in the school's administration office: But there were about, what, five or six other people who work there; is that right?---I didn't generally count the amount of people that were in the office at the time, so I cannot speculate how many people were there. Okay. You were always reporting to the same one, were you?---Not always, no. 1163 It is necessary to extract a reasonably lengthy section of Liam's cross-examination to understand how the respondents challenged his account: And you say, do you, that by year 9 you had told the administration office by then about everything, including about the knife at school, about Nazi salutes, about the physical and verbal assaults. You told them everything by then, didn't you?---Everything. You had?---Yes. Yes. Over multiple occasions?---Yes. And nothing ever happened; is that right?---Correct. Liam, that's just simply not true, is it? You never told them about these things?---Why would I allow this to continue, the constant anti-Semitic comments and not try and prevent it from happening? It - it's confusing. Sorry. We've been through Ms Karen Gibson's notes. And it's the case, isn't it, that you, in fact, had a good relationship with her throughout the entire time that you were seeing her; is that right?---No. I wouldn't say the entire time. And throughout the whole time that you were seeing her, you were giving her details about bullying situations that occurred, weren't you?---Anti-Semitic bullying and general bullying, yes. Well, you never mentioned anti-Semitic bullying to her, did you?---I did. Every session. And you never mentioned to her regular reporting of your complaints to the administration office, did you?---I did. That's when I told her earlier on in the sessions that we had that I had been sent to her from the administration staff. And whenever initial bullying did come up, Ms Riha sought to address it, didn't she?---No. Well, I didn't say she didn't address it; she sought to address it, didn't she?---No. You don't know that. You say that didn't happen or you just don't know about it?---It didn't happen. Didn't happen. You just say Ms Riha did nothing?---Correct. You never reported any incidents of anti-Semitic conduct to Ms Riha either, did you?---I didn't specifically with the anti-Semitic bullying. That's because when I was attacked - when I was harassed by the group of girls in front of my locker and I went to her for support, she said that I was being dramatic and that I was lying. Why would I go to her if she doubts me on something as simple as being pushed in front of my locker and being made in - made fun of? Why would I trust someone to go to for support for anti-Semitic bullying. Now, just to be clear on the numbers, I think you say - but tell me if I'm wrong about this - that you were reporting to the administration office about four or five times a term?---I would say, yes. I can't give a precise number. No, of course. But do you - does that sound about right, that number?---Yes. 1164 The respondents disputed entirely Liam's accounts of going to the administration office. They alleged he was fabricating this. Their case on this issue is summarised at [118] of their final submissions: The crux of Liam's case is that he reported offensive conduct to staff at the time. But the Court cannot feel actually persuaded that Liam made the reports he said he did. First, Liam's evidence about the reports he made to Ms Gibson is inconsistent with her notes and her recollection and otherwise lacked plausibility. Second, Liam's evidence about the reported instances of bullying/antisemitism to Ms Kerney is inconsistent with her recollection and also lacked plausibility. Third, Liam's oral evidence about the reports he made was unreliable. Fourth, the applicants' reliance on a supposed corroborating email from Ms Ashlee Anderson is misguided. (Original emphasis, footnotes omitted.) 1165 As to the complaints to the administration office, the respondents contended that although there were several reception staff working in the administration office at the school between 2013 to 2015, Liam was: consistent in his evidence that he reported predominately to a "blonde woman", whom he later identified in re-examination as Ms Karen Kerney. His evidence was definitive. (Footnotes omitted.) 1166 It is correct that Liam's evidence-in-chief was that: The main one that I spoke to was - was the woman that had blonde hair, but there were quite a few in the office that - that would, I guess, circulate. 1167 And (referring to the start of term 1 in year 8, after he had been pushed down the stairs): And who - if you - do you remember who you spoke to at the office?---It was the - the same woman with the blonde hair. Do you know her name?---No. 1168 Liam gave the same evidence about his report of the bathroom incident, identifying "the woman … with blonde hair", and confirmed in cross-examination that he "mostly" reported complaints to that person, but not always to her. When shown a photograph in re-examination, Liam identified Ms Kerney as: the main receptionist that I had spoken to. 1169 Ms Kerney stated that during 2013-2015 she was only working two days a week at BSC and that when she began at BSC in 2012 she only "occasionally" performed reception duties, although she then stated she performed those duties "approximately between five to 10 times a day". She stated there were five people working in that part of the office in 2012/2013. She confirmed she couldn't recall specific complaints made by students to the reception area, but that students came to the office from time to time for various reasons. She could not recall Liam. She did not recall receiving any complaints from him. She explained in 2014 she moved from the main office to a smaller office annexed to the principal's office and her role changed to a full time role in the financial area and from this point she rarely did reception duties. Initially she put this as early 2014, and in cross-examination said it was mid-February 2014. 1170 Ms Kerney agreed that if a student made a complaint, she wrote down their name but no real details about the complaint, because she passed the complaint onto others to deal with, generally by email but added she also passed on complaints or accounts of incidents by speaking to the relevant staff member. Her evidence was that she always referred a complaint, although she agreed there was no documented process for complaints. She agreed that sometimes students who had been bullied came to the front office to complain but she could not recall any specific complaints. In re-examination she stated that "normal practice" at this time was to refer a bullying complaint to the year level coordinator or the assistant principal. 1171 Ms Kerney was a straightforward witness, but did not have any specific recollections. Aside from a narration of when and where she worked in the administration office, her evidence was limited to descriptions of usual practices. That evidence is of no real assistance in determining whether, in fact, Liam attended the office and made the complaints as he did. 1172 The respondents tendered without objection from the applicants a table of class size and student population numbers at BSC during the relevant period. In 2013 there were 1192 students at BSC, with 222 year 7 students, in 8 classes. In 2014 there 1186 students at BSC with 223 year 8 students in 9 classes. Bearing in mind Ms Kerney's evidence about the variety of reasons students might come to the office, if even a small proportion of the more than 1000 students were coming to the administration office each day, or each week, there is no realistic possibility that even by the end of the school year the staff in the office would have an active recollection of who came, and what they came to discuss, let alone an active recollection more than 7 years later. 1173 I also accept, as the cross-examination suggested, that there were other women in the administration office who could have been the "woman with blonde hair" Liam referred to. I accept Liam appeared to identify Ms Kerney from a photograph in evidence, but I was not persuaded he was confident in this identification, and there was no real exploration with him about how sure he was that this was the person he spoke to. 1174 Looking at the evidence overall, I am not persuaded that Ms Kerney's evidence renders Liam's evidence so unreliable that it should not be accepted in the way I have set out above. While some of the detail of Liam's evidence about his visits to the office might have strayed into reconstruction or speculation, I do not consider he has fabricated the entire account, which is in substance what acceptance of the respondents' submissions entails. 1175 I find that from around mid-2013 through to the time he left BSC, Liam went to the administration office on a regular basis, up to four or five times a term, to complain about the bullying and harassment he was experiencing. I am satisfied it should have been apparent to those listening to Liam's complaints that the fact he was Jewish was a reason he was being bullied and harassed. I accept Liam's evidence that his complaints were not acted upon. There is no other evidence that they were acted upon. The lack of reaction to Liam's complaints is tolerably consistent with my findings on the lack of reaction to the complaints of the other applicants and their families. While in some specific instances the evidence demonstrates some reaction by Mr Minack, the BSC leadership cohort or BSC staff, overall there was an inadequate reaction, and sometimes no reaction at all. While Ms Podbury rejected any general suggestion that complaints were not acted upon, her BSC notes had been destroyed and she had little active recollection. 1176 I turn now to deal with the complaints Liam contends he made to Ms Gibson, which he contends were not taken seriously and not acted upon. There was no dispute that Liam did have counselling sessions with Ms Gibson from March 2014 to November 2014. It was agreed Ms Gibson had no interactions with Liam in 2015. The relevance of the evidence about Liam's sessions with Ms Gibson is twofold: first, the respondents sought to use the factual version of these events that they advanced to persuade the Court that it should not accept Liam's baseline evidence about the bullying and harassment he experienced (as to its extent) nor accept that the reason for it was that he was Jewish. Thus, the respondents sought to use the absence from Ms Gibson's notes of any references to antisemitism, or racially-motivated harassment, as probative of their case that Liam was fabricating his account. Second, the respondents sought to rely on the content of Ms Gibson's notes as probative of their case that Liam never complained to Ms Gibson, or to anyone else, about being the victim of racially-motivated bullying and harassment. 1177 Consistently with the findings I have made above, I accept Liam's evidence that he reported to Ms Gibson the treatment he was experiencing at the hands of, largely, the same group of about five boys. 1178 In cross-examination, Liam was taken carefully through each entry and asked about what it recorded, and whether it was an accurate record of the whole session. Ms Gibson's notes were redacted, but as I understand it this was on the basis that the redacted parts referred to other students who she saw for counselling. Taken as a whole, the thrust of the cross-examination (and the respondents' submissions) was that the counselling sessions dealt with family issues Liam was having, issues about him fitting in at BSC, his classroom experiences, school-related matters such as his desire to nominate for junior school captain, and bullying which he did not identify as racially motivated. Taken as a whole, Liam denied that Ms Gibson's notes could be taken as an accurate and complete record of what he had mentioned to Ms Gibson during these sessions, and he confirmed he had made it clear in the majority of what he said to her that the bullying and harassment was antisemitic in nature. 1179 Were a student to mention a matter such as racially-motivated bullying, Ms Gibson's evidence was her "normal practice would be that I would write that in my notes and that I would follow up with the year level coordinator of the students involved". 1180 Ms Gibson struck me as a careful and outwardly calm person, but with very firm views and opinions, which she expressed during her evidence. I found her self-confidence was not necessarily indicative of reliable evidence, but rather of her own conviction that there was no merit in the applicants' allegations. It was apparent to me - through the cross-examination and observation of Ms Gibson as she gave evidence - that she had spent considerable time reviewing her notes and various documents in the court book, and was often reconstructing from what she could see in the documents, rather than giving evidence from a genuine recollection of the events she was describing. For example, she would seek to distil what a particular word in her notes meant, and in some cases in a way that was not the plain meaning of her notes: So this is your email five days later. Just - do you remember it?---This is the conversation that Jess Giffin and I had with Liam. So you're reporting to Ashely Anderson. That's the coordinator. Yes. Liam has spoken to both you and Jess. And there's no records of any conversation with Jess, is there?---What do you mean by that? Well, do you have any - does Jess have records of that?---I don't know. And then, in the second line, you say: Putting books on seat so he cannot sit next to them. See the word "them"? That's plural. That's more than one, isn't it?---Correct. So we're talking about bullies, not just one bully, are we?---Well, generally, you can only sit next to one person. Yes. But we're talking - the word there is "them". Are you cavilling with the idea that there was a group of people?---Putting books on seats so he cannot sit next to that person. Well, that's not what you've said there?---Well, that's what I meant. Right. But then, on the next page, you say, in the second line: I believe Rory is not the only culprit. Clearly, you're talking about multiple bullies?---I'm talking - I believe Rory is not the only culprit but is the leader and instigator, according to Liam. 1181 In my opinion, Ms Gibson here is attempting to parse her notes to give them a different meaning once she understood that her notes supported Liam's evidence and might be contrary to some of her earlier evidence about Liam reporting to her that only Rory was bullying him. 1182 Another example is the following: And on 7 October, you now have: Frustration building with class, making him feel ill. ?---Mmm. That's a fairly serious thing, isn't it, that he's feeling ill?---Very. You didn't propose any treatment or steps for him in relation to this, did you?---Yes, as I said, I - - - The green card?---Correct. Did you investigate why he was feeling ill?---Yes, he was feeling ill because his frustration was building with the class - - - Yes, and - - -?--- - - - and that had been going on for a - as my notes say, a significant period of time. And so it's fair to say that this bullying has caused him to feel ill, it has got to be very serious bullying, doesn't it?---As I said, this is not specifically around bullying. This is about the behaviour of the class - - - 1183 Again, I consider Ms Gibson is speculating, many years after the events, about what her notes meant, and doing so in a way which avoided any interpretation consistent with Liam's evidence. I do not suggest this was deliberate, it could well have been unconscious, but I do not consider she had any real recollection of why she wrote the words in her diary that she did. 1184 This lack of recollection led her, I find, to engage in some speculation in her evidence, derived from documents or her notes. This was confirmed by other evidence she gave which, in my opinion, she would have answered differently if she had a genuine and accurate recollection of the events she was describing. For example, her evidence about whether Liam was wearing a kippah over the nine months she saw him for counselling sessions: Yesterday, you gave evidence that there was an incident with a Jewish student had their skullcap taken from their head - - -?---Mmm. - - - but you cannot recall who the student was; do you remember?---No, I don't remember who the student was, but I - - - Sorry. I meant do you remember - - -?---Sorry. - - - giving that evidence and your - - -?---Yes. And your evidence is you just don't remember who the student was?---Correct. Well, I'm suggesting to you that you do know who the student was and it was Liam Arnold-Levy? Do you - does that refresh your memory?---No, it doesn't. Do you accept that the only Jewish student at Brighton during 2013 to 2015 who wore a kippah or a skullcap, however you want - the same thing, was Liam Arnold-Levy?---I have no idea. You don't know any other student who was wearing one, do you?---No. I don't know - no, I don't. The issue came up in - - -?---I actually didn't even realise that Liam was wearing one. Well, I suggest to you that Liam was wearing one for the entire duration of the session - every single session that you had. Are you saying you don't remember that?---I don't. Would it be fair to say that your memory is poor?---Hopefully not. That's a serious question. This is a Federal Court proceeding?---Yes, I - I understand that. Is it fair to say that if you can't remember that he was wearing a kippah, your memory of the events and discussions with him is poor?---No, that's not correct. You don't think it's a material thing that you cannot remember he was wearing a yarmulke?---As I said, I - what - I don't have a - no, I'm not aware of who in the school wore a kippah. Well, focus on Liam. Is it your position that you remember he wore a yarmulke in your sessions or no?---No. So you don't remember or you say he didn't?---I don't remember. 1185 The continuation of this cross-examination demonstrated, in my view, a reluctance on Ms Gibson's part to give answers which she considered might assist the applicants. Counsel for the applicants then put to Ms Gibson some extracts from her interview with Ms Dickinson: And when you talk to Liam - Louisa Dickinson about this skullcap incident, I'm suggesting to you you had a much clearer memory, and I will quote what you said and I can show it to you if there is any ambiguity: I do remember certainly specifically, which wouldn't have been in my notes. As I said, I think with the falling down that he did say about kids trying to take off his little skullcap. And I don't know why I haven't written that down, probably because I put the physical thing in as being the priority. And I'm suggesting you're talking about Liam Arnold-Levy. So the words were: I do remember certainly specifically, which wouldn't have been in my notes. As I said, I think with the falling down I can take you to the - it's tab 1132, page 63?---Yes, I can remember the conversation that I had with Louisa and we were talking about this particular incident. As I said to you, I do recall an incident where a student had their kippah removed. As I said to Louisa, I'm not sure whether that student was Liam or that was another student. Well, if we just zoom in, please, just have a look at the one that says, in the middle: Mmm. It's - yes. I'm not saying I didn't - he didn't - as I said, I do remember certainly specifically remember, which wouldn't have been in my notes, as I said, I think with the falling down he did say about kids trying to take off his skullcap. You're here talking - this is all about Liam Arnold-Levy?---Mmm. … MR BUTT: I'm putting to you that you did have a memory of this and that it was Liam Arnold-Levy?---As I said to you is - I certainly had a memory of a student having, as a - a skullcap removed at Brighton Secondary College. I don't recall who that student was. I'm suggesting that you're trying to downplay the incidents of anti-Semitism that you know happened to Liam Arnold-Levy?---I'm unaware of incidents of anti-Semitism that happened to Liam Arnold-Levy. Sorry. Is that you're not aware? Is that what you're saying?---I said I'm not aware of incidents of anti-Semitism that occurred or happened to Liam Arnold-Levy. But you're also not aware that he wore a kippah; that's true, isn't it? That is true?---That's correct. Do you accept the proposition that a Jewish boy wearing - well, a Jewish boy - let's assume he was wearing a kippah. He was wearing a kippah and boys were trying to rip it off. Do you accept the proposition that's a very serious case of bullying?---Absolutely. It's anti-Semitic bullying?---Correct. And it would be in violation of the racial harassment policy. It should be reported and recorded, shouldn't it?---It should have been. And a determination about appropriate consequences; correct?---Correct. 1186 I have reflected on why Ms Gibson might have described a kippah to Ms Dickinson as a "little skullcap". It struck me as somewhat patronising. Nothing was made of this in cross-examination, so I make no findings on it. 1187 I have examined the Worklogic inquiry transcript. It is clear to me, as counsel suggested to Ms Gibson, that Ms Gibson was talking about Liam to Ms Dickinson. Ms Gibson was not prepared to concede this in her cross-examination. I infer that is because she was well aware that not only might it draw a connection between what Liam was telling her about bullying and him being Jewish but also because this extract revealed that there were exchanges between her and Liam that she did not record in her notes. In my opinion Ms Gibson persisted somewhat unreasonably in not conceding that the student involved was likely to have been Liam. 1188 There was other evidence where Ms Gibson generalised in a way that was not consistent with other aspects of the evidence. For example, her evidence about lack of awareness of whether students were punished for certain misbehaviour: Do you agree that you can't identify a student that was ever punished for drawing a swastika?---I - my role in student wellbeing has nothing to do with discipline or punishment, so whether - if a student was punished, it's something that I would be aware of. 1189 Yet in the BSC school records, there were numerous examples in students' Chronicle records of where a student was punished - by something like a suspension - and referred to Ms Gibson for counselling sessions afterwards. Ms Gibson, understandably, when asked about these records, had no independent recollection of these events. But what the records demonstrate is that it was likely often to be the case that she did know when a student had been punished for misbehaviour. Yet, when cross-examined, Ms Gibson confidently made a distinction not borne out by BSC records. 1190 As to Ms Gibson's counselling notes taken during the sessions she had with Liam, I do not accept the respondents' submissions that these notes are probative of what was not discussed or mentioned during the sessions. Ms Gibson's own evidence about the kippah, extracted above, indicates she was selective in what she recorded. The entries are very short. Liam denied that some of them were accurate, but I do not accept his denials. There is no rational reason why Ms Gibson would have written down topics not discussed, or matters Liam did not say. No reason was suggested to her in cross-examination. The notes are, by their nature, nothing more than Ms Gibson's interpretation of what Liam said. They may not fully capture how Liam felt he expressed himself to her. But I reject the contention Ms Gibson fabricated any of the notes, in the sense of concocting topics or matters Liam did not speak about. 1191 Selectivity is hardly surprising in the context of a busy school, where a counsellor in that busy school is engaged in a counselling session with a student. It is both entirely reasonable and understandable that Ms Gibson would keep her notes very brief, including so that she could engage fully with the student rather than just take notes. The sessions lasted 45 minutes. As I pointed out to counsel in closing oral submissions, if someone was to take two lines of notes purporting to cover what counsel said in 45 minutes of submissions, it is unlikely to be described as an accurate reflection of what counsel said. It may well reflect whatever the listener was interested in. 1192 Ms Gibson's evidence in cross-examination was that her notes were: taken by me, for me, to help me do my job, so the notes reflect what I need to do to be able to complete my job and look after the student that I'm seeing. 1193 I accept this evidence, in the sense that at the time she took them, Ms Gibson saw her notes as having a purpose for her ongoing counselling with Liam. They were not, and were not intended to be, an entire record of what he spoke to her about. The themes and topics she noted down were choices made by Ms Gibson, and I accept they may have been based on her own perception about what was important to note down. 1194 However, her notes are not capable of contributing to proof that Liam did not mention the topics he said he did. They establish what Ms Gibson thought was important for her, at the time, to write down, and no more than that. 1195 I am satisfied that Ms Gibson did not appreciate there might be a connection between Liam's treatment and his being Jewish, and identifiably so by the pieces of religious clothing he wore. 1196 She was asked about one of her early 2014 notes: Issues with Rory, words hurt, wants desperately to go to Yavneh on scholarship. 1197 There was then the following exchange: You can see that?---Mmm. Now, the phrase "words hurt" suggests that's a pretty strong phrase, isn't it?---It's not an uncommon phrase but, yes, words do hurt. It would suggest that Liam is in a state of pain and there's a concern there - a serious concern?---Absolutely. The next line says: He desperately wants to go to Yavneh. That's another strong word, isn't it?---Yes. You've provided no detail at all about why he was desperate to go to Yavneh?---As I said, I can recall the conversation that I had. Well, no. I'm just focusing on the notes. At the moment, those notes don't give any accurate picture as to what's really going on in this context, do they?---As I said, those notes are written by me for me. So I understand perfectly what they're trying to say. 1198 If I take Ms Gibson's evidence at face value, she appears to be saying that accounts such as this given to her by Liam did not raise in her mind at the time that he might be being bullied because he was Jewish. Yet Ms Gibson also agreed that if Liam was wearing a kippah, that outward symbol of being Jewish would make him potentially vulnerable to bullying and he would need special attention paid because there would be a heightened risk of him being bullied. 1199 I am not persuaded that Ms Gibson was conscious of the risk that there was a racially-motivated reason for Liam being bullied. I find from her attitude in giving evidence, and some of her evidence itself, that she did not appear to know anything about Jewish religious practices, and indeed at times appeared dismissive of them ("little skullcap"). I find it unreasonable that she did not make it part of her counselling with Liam to familiarise herself with his Jewish identity, what role it played in his life, and what role it might be playing in the bullying he was experiencing. I find it is likely that Liam assumed it was obvious he was being bullied because he was Jewish. He may not have said as much in terms to Ms Gibson as he described in his evidence, in part because I find it was so clear he was Jewish by his religious clothing that he assumed she made the connection. Apparently Ms Gibson did not do so. I am unable to find she positively refused to consider Liam's Jewishness as a reason for the bullying, but I am persuaded it did not occur to her. 1200 Since Ms Gibson was clearly an experienced school counsellor, the failure to such an obvious connection is somewhat inexplicable. I am persuaded the connection is likely not to have occurred to her because there was no environment at BSC at the time which encouraged staff to think in these terms, certainly not about Jewish students. Although there were anti-racism policies, I did not see in the evidence any tangible implementation of those policies in the way staff approached student misbehaviour. Ms Gibson's apparent inability to even contemplate or explore what should have been obvious possible connections between Liam being bullied and him being identifiably Jewish is consistent with what I have found elsewhere to be an unacceptable level of tolerance of antisemitic student behaviour at BSC, a tendency to minimise the wrongfulness of such behaviour and instead an intolerance for those Jewish students who were complaining about it. 1201 The Chronicle records Ms Gibson was taken to about Perry are bereft of descriptions of what the racially-motivated conduct was that Perry engaged in. They refer only to Perry cutting other students with locker keys. Obviously, from the section of the school's anti-racism policy he is said to have contravened, there was a racially-motivated element. Yet the racial aspect of his conduct is not referred to. This is, as the applicants submitted, a relatively consistent theme across the Chronicle records. Racism is not referred to. There does not appear to have been any organised, officially sanctioned and encouraged approach of confronting racist student behaviour, calling it out and punishing it. There does not appear to have been any leadership from Mr Minack about this, nor for that matter from Ms Podbury. 1202 Ms Gibson appeared to agree that the only strategy she gave Liam to cope with the bullying he was reporting to her was what she described as the "green card" strategy. The student was given a green card, which they could show to a teacher and be permitted to leave class when they needed to and go to student wellbeing. There was no evidence about whether Liam reported back to her any success or failures with that strategy. I find this was an inadequate response from Ms Gibson. There seems to have been only one or perhaps two occasions when Ms Gibson spoke to a year level coordinator about Liam's bullying and there are no records of what happened after she did so. There was, I find, little or no follow up by Ms Gibson nor by the year level coordinators. 1203 Ms Gibson was cross-examined about the identity of the counsellor who saw Liam in 2013. She said it was a "placement person" called Maxine Fairbairn. I infer that means a person still at the time engaged in some form of study and doing a placement at BSC as part of their studies. Ms Fairbairn was not called as a witness and, in answer to a call for production of her notes of her sessions with Liam, no notes were produced. There is no evidence to counter Liam's evidence, which I have accepted, that he was reporting bullying during the second half of 2013, and that he was connecting it to him being Jewish, whether implicitly or explicitly. I find he did make such reports during his 2013 counselling sessions, as he explained. 1204 Liam described a complaint he made to Peter Mangold: I had one interaction with him. The first - the first and only time that I talked to him was just after I had been punched and money was thrown in front of me again, and the Heil Hitler sign was - was done in front of me. I want to him and told him exactly what had happened. I said that Perry [redacted] had thrown money in front of me. I was punched in the arm and kicked, and Leonard and Perry both put - used the Heil Hitler sign in front of me. And he - and he kind of looked at me and basically dismissed it saying that it really wasn't that big of an issue. And, again, I felt even more ashamed of who I was because of the fact that I had gone to someone who was advertised in the school as someone to go to for these issues, and completely turned away or dismissed. 1205 Mr Mangold's evidence was that he had no recollection of this interaction with Liam, nor about a second interaction where Liam's evidence was that he tried to follow up to see what Mr Mangold had done about his complaint. Mr Mangold rejected saying to Liam that what he was complaining about was not a big issue. 1206 I found Mr Mangold to be a witness without much of an active recollection of the events he was being asked about. Like Ms Gibson, I find he tended to gloss over matters and reconstruct. An example was his amplification of his opinions about Matt Kaplan, when asked in examination-in-chief about his comments to Ms Dickinson. 1207 Like Ms Gibson, it is understandable that a counsellor in Mr Mangold's position would not, many years after events, have any real recollection of interactions with specific students. Like Ms Gibson, he had no reason to retain such memories. That is in contrast to Liam, who had every reason to retain such memories, as they were his direct experiences, which had a profound impact on him. 1208 I accept Liam's evidence that he made a specific complaint to Mr Mangold in the terms outlined in his evidence. However, I do not accept that Mr Mangold said words to the effect that Liam's account of what happened "wasn't that big of an issue". First, that language does not sit consistently with the language used by Mr Mangold in the witness box and I am not persuaded that is the kind of language he uses. Second, I accept his denial in cross-examination, which struck me as genuine and I find he was genuinely offended at the suggestion that, as a counsellor, he would dismiss a student complaint in that way. I consider Liam attributed a statement of this kind to Mr Mangold, as a manifestation of how Liam himself felt looking back on the interaction - I accept he felt Mr Mangold did not take it seriously, and did not act upon it. There is no evidence from BSC records that Mr Mangold acted on this complaint made by Liam. I find it is probable he took no action, because Liam would have been aware of whatever action was taken and he was clear that none was. There could be many reasons for why Mr Mangold took no action, including inefficiency or busyness, not all of which might be racially-based reasons. 1209 Other students' evidence supported the apparent futility of complaints being made. Nathan Shulman, a witness I found to give direct and straightforward evidence, with a good general recollection, gave this evidence: How did you feel when you heard that?---Yes, it's - it obviously hurts, but, once again, I feel like there's nothing I can do about it. Why did you do nothing about it?---I just feel like I had no one to go to at the school.

Ms Podbury's evidence 1210 Ms Podbury was the principal of BSC at the time Liam was in years 7 and 8, and then half of 2015, until July 2015. Liam left at the start of 2015. Overall, she had been principal at BSC for around 19 years. In the period 2013-2015, her assistant principals were Pat Gargano, Richard Minack, Lee Angelidis and Kaye Sentry. 1211 Relevantly to Liam's allegations, in her evidence-in-chief she claimed that "complaints were virtually never made to the administration staff". Her evidence was: In my experience, the complaints went to the sub-school head and the assistant principals. The administration staff dealt with - largely dealt with parents. From time to time - and they would - the only time students would run in there is if they were signing in late or if they had to leave early. 1212 Her evidence was that bullying allegations were dealt with through the BSC wellbeing team and reports to year level coordinators, and she was generally complimentary about how this was dealt with by staff at BSC during her time as principal. She described the student wellbeing team as "very well resourced". In examination-in-chief she said she recalled Liam's name but nothing beyond that. She did, however, recall being told about an incident where a student had a yarmulke ripped off his head viciously, but she could not recall who the student was. Her evidence was that it was likely Ms Angelidis told her about this. 1213 In cross-examination, Ms Podbury gave the following evidence which I accept, and which I consider of relevance to my findings about Liam's allegations (and indeed, the allegations of some of the other applicants): (a) from 1996-2015, about a third of the staff at BSC were Jewish; and in years around 1996 there were a lot more Jewish students than 5 or 12 per year level (being the numbers Mr Butt put to Ms Podbury as arising out of the evidence of Mr Minack and other student witnesses over the period of 2013-2020); (b) she appeared to accept (although some of the questions were less clear than they should have been) that there was some bullying of an antisemitic nature between 2013 and 2015 at BSC, and she accepted at least one specific recorded incident in 2012; (c) the administration office was "the most inappropriate place to have reported" complaints and if Liam did so he "would have been referred on". 1214 Other than this, I did not consider Ms Podbury's evidence of much probative value, because of her (understandable) lack of recollection about any specific incidents or circumstances. I found her overall to be a straightforward witness. 1215 Much of the cross-examination elicited denials by Ms Podbury, or statements that she could not recall, or was not aware of the matters she was being asked about. Many of the questions were also couched in the conditional, which elicited no probative evidence from her as a witness who had already said on multiple occasions that she had no active recollection of the matters in 2013-2015 she was being asked about. At some points, Ms Podbury appeared to make a concession, for example: And I suggest to you that Liam was not the only Jewish boy that was receiving anti-Semitic bullying around this time. Do you accept that?---I accept that. 1216 However, read in context, especially with the answer that followed, it is clear this was really no more than Ms Podbury attempting to be cooperative with what was at times a somewhat unclear and badgering style of cross-examination. She made this clear in a later part of cross-examination when she added: And this, I put to you, was around the same time as Liam complaining to the admin office. Do you accept that or not?---Based on your say so, yes. 1217 There were many other answers like this given by Ms Podbury, including accepting that a factual situation put to her was "possible": if Liam was making complaints to the front office admin, such as Kaye Sentry - sorry, not Kaye Sentry, Kerney, Ms Kerney - - -?---Karen Kerney? Then, it's possible that they didn't tell you if complaints were made, isn't it? MR HOUSE: Your Honour, I object. It's - - - HER HONOUR: No, I will allow that question. THE WITNESS: It's possible if they were told. MR BUTT: Yes, well, Liam's evidence that he told - is that he told them, and it's also possible they didn't record it?---If they were told, that is possible. 1218 Although the applicants submitted the Court should take this as a concession, I disagree. This was no more than Ms Podbury, as an intelligent and thoughtful witness, being honest and conceding a theoretical possibility. It is not probative in the way the applicants submit. Many of the answers given by Ms Podbury in cross-examination fall into this category. That includes a substantial line of cross-examination based on Chronicle records, where the aim of the cross-examination appeared to be to have Ms Podbury concede that there were inadequate consequences imposed on some students for their behaviour. This cross-examination remained at a hypothetical level, devoid of context for the individual students concerned, and in circumstances where Ms Podbury had either no recollection of the students or circumstances, or was not involved in them. Her answers did not assist the applicants' case in the way their final submissions suggested, either because any agreement she expressed in cross-examination was not made on the basis of any specific recollection or understanding, or because her agreement was qualified or to a self-evident statement, as illustrated by the following examples: He's a repeat offender. Isn't the policy that a repeat offender of racism should be suspended?---Should be dealt with. Should be suspended?---Not necessarily. … At Brighton, people get detentions for things like wearing the wrong socks and being late to class. Are they more important than this?---No. 1219 As a result, Ms Podbury's evidence is not as probative of the applicants' allegations as their closing submissions suggest. That said, it is the case that Ms Podbury appeared during her evidence to be genuinely taken aback at the lack of records concerning Liam as suggested to her, in the context of the behaviour alleged by Liam to have occurred. She was also quite forthright and taken aback about the absence of Chronicle or other records even in the context the limited entries in Ms Gibson's notes. For example: In September - 4 - you can see it's recorded that Liam has reported that the students - two students have pushed him over, called him, ..... loser. This is - you can see that - you understand this to be recording a physical assault or incident?---Yes. This is the sort of thing that should have been escalated, should it not?---Yes. Absolutely. So whether it's you or Mr Mi[n]ack, someone at that level should have known about it?---Yes. Absolutely. And there should be a record. Correct?---Yes. And you would have expected that from Ms Gibson, wouldn't you?---Yes. And do you agree that there was no training of teachers in relation to Jewish issues during 2013 to 2015?---No. There wasn't. 1220 I note that Ms Podbury did confirm that Liam's year 8 maths teacher (Mr Dobric) was removed from teaching, and I infer that where other evidence (such as Ms Gibson's) describes a "chaotic" classroom environment in year 8 maths, these are references to the classes of this teacher. Nevertheless, an unacceptable level of chaos in a class should have resulted in more scrutiny of student behaviour in that class, not less. On the evidence, that did not appear to have occurred, and Liam suffered as a result. 1221 Finally, Ms Podbury gave evidence that she described herself as a "scrupulous" note-keeper but that all her notes had been "disposed of" since she left the school, although they should not have been. No evidence was led by the respondents about what happened to her notes. 1222 Overall, I have given Ms Podbury's evidence some weight in my assessment of Liam's allegations, in favour of the applicants, especially evidence such as that at [1213] and [1219] above.

The return to BSC with Ms Meltzer 1223 It was common ground that after he had left BSC, Liam retuned on one occasion to BSC for a meeting with Mr Minack. He was accompanied by the vice principal of Yavneh, Ms Meltzer. 1224 The applicants rely on this event, as I understand it, for several purposes. First, as a specific component of Liam's aggravated damages case, or as a specific component for the quantification of his damages. They say it was an extraordinary dismissal by Mr Minack of his concerns. Second, as evidence which tends to prove the discriminatory attitude of Mr Minack. Third, as evidence that tends to prove the attitude at BSC continued to be one of tolerance for antisemitic behaviour, and there continued to be no or no adequate proactive response to this student conduct, bearing in mind that the point in time when Liam returned with Ms Meltzer overlapped with Joel commencing in year 7 at BSC. 1225 There were three key witnesses in relation to this event: Liam, Ms Meltzer and Mr Minack. Overall, I prefer the evidence of Liam and Ms Meltzer. My findings on this incident are as follows. 1226 Liam's own account of why he returned to BSC with Ms Meltzer illustrates, in my opinion, that he was very much still recovering from his treatment at BSC and was actively searching for ways to assist himself to recover. Returning to meet with Mr Minack was intended to assist him. He described his understanding of why the meeting was occurring in the following way: I was going to go to the school and have a meeting with Richard Mina[c]k to get an apology from him and to get recognition from him that the school failed to provide sufficient care for the students and for me specifically. 1227 The outcome was not that at all: I didn't get an apology. I didn't get recognition. I got excuses. [A]nd I felt even more belittled after the meeting than I had down prior to that. I felt like that I had moved five steps back rather than moving forward. … What sort of things did he say to you?---That he felt bad about my experience, and that was basically what he ended on the meeting on, that he felt bad for my experience. Esther Meltzer tried and pushed for recognition and an apology as well. She pushed really hard to get that for me, but he simply refused to acknowledge it. How did you feel in that meeting?---Terrible. I felt - I don't even know how to describe how I felt on the car ride home. I just - I felt sick that once again after moving schools and potentially moving on with my life, I had once again been put down by the school and refused any kind of closure. And when, if ever, have you received an apology from the school?---I have not received an apology, ever. 1228 As I have explained, I found Ms Meltzer to have good recall at a relatively general level. She provided a narrative that suggested she genuinely sought to help Liam. I found her account of the meeting with Mr Minack to be genuine and reliable, as were her descriptions of Liam. 1229 Her descriptions of how Liam initially approached her at Yavneh support the conclusions I have reached based on the other evidence about how Liam is likely to have presented to the administration office at BSC: So my office was - was in the - in the secondary school corridor, so the student often passed my office when they went to their classrooms or dropped by my office, and Liam would - would be there a lot. He would come into my office frequently, often hovering around the door. Sometimes, just sort of waiting to make sure he could come in, and obviously, I sensed that he needed more than just, you know, a normal student, acclimatisation to the school and we developed, you know, we worked together a lot, and he would come into my office quite regularly. (Emphasis added.) 1230 She also explained that Liam came to see her a few times a day. This evidence resonated with me, and my observations of Liam. I find it is more likely than not that this is how he approached the BSC administration office - with some hesitancy, perhaps hovering, plucking up courage to report what had happened to him. In a busy administration office, one where it was 'not appropriate' to come to complain, it is not difficult to see how Liam was not likely to have been taken seriously. 1231 Ms Meltzer described how Liam presented when she first got to know him: Well, initially, it was more him just being very insecure, very anxious, very lost. He - he was not able to make friends. He was not able to connect with anyone. He was just hovering, very lonely, very alone. Just - just, really, a shell of himself, almost. He was not in a good space at all. So we would - initially it was just, sort of, getting to know him and make him feel comfortable, without me having any idea that there was anything else there and just trying to get him acclimatised to the school. But as time wore on, he started to divulge what had happened and why, I guess, why he was in such a bad space. 1232 In terms of what Liam described to her, Ms Meltzer gave the following summary: So, some of the attacks, the verbal, the physical and the constant, relentless bullying and victimisation, the Jewish - anti-Jewish stuff, anti-Semitic stuff, and he kind of couldn't move past it. It was really, kind of bogging him down. He was not - not in a good space at all, and he - he just couldn't let it go. He was reliving it, reliving them. It was a nightmare for him, he just was in a mess. 1233 It was Ms Meltzer's idea that Liam should return to BSC to try and get some closure. She spoke to Liam's mother and obtained permission to return to BSC with Liam for a meeting with Mr Minack. She also referred Liam to the school's psychologist. Liam's evidence was that Mr Cowley was very helpful to him. She explained that she took notes of her sessions with Liam, so that if she and Liam went back to BSC she would have a good understanding of what had transpired there. In evidence was a typewritten version of Ms Meltzer's notes. To illustrate the consistency with the rest of the evidence before the Court, this is what Ms Meltzer noted about Liam's account of how Perry treated him: Perry [redacted] (Year 9) • Hit Liam often • Gave him bruises • Main person involved with the whole bullying • Called Liam names about his religion "f-ing Jew, stupid Jew" • Drop 10c piece on the ground and said "oh there you are Liam, I know that you enjoy those". 1234 As I have explained earlier, there are aspects of Liam's accounts that are not noted down, but I do not see that as a sufficient reason to reject or doubt Liam's evidence. This is a summary, as Ms Meltzer herself said. 1235 Ms Meltzer had what I consider to be a reliable and relatively detailed recollection of the meeting itself. She contextualised her evidence, describing how she and Liam drove to BSC, and how she encouraged Liam to speak during the meeting. On her evidence, which I accept, it was a relatively short meeting, about 15 minutes. She described Mr Minack as making "virtually no comment" and: And at the end of the minutes or so, he said, "Thank you very much," and that was it. And I remember Liam and I kind of looking at each other and thinking, well, we were thinking for a whole lot more. I remember when we left in the car, we kind of were both very, very disappointed and we kind of said, "Well, that was probably a bit of a waste of time," which - in terms of outcome, you know. Maybe it had an impact other than, you know, that we saw, but certainly in terms of anything that we visually saw, nothing was forthcoming. Nothing was given. I don't think he even commented on what we said. … he didn't volunteer any information at all. He didn't comment. He didn't apologise. He didn't acknowledge. He didn't do anything. He just listened and then the meeting was drawn to a close. 1236 Her observations of Mr Minack also resonated with me, having watched Mr Minack in the witness box over a long period of time: a little bit disinterested. Probably going through the motions. Probably, you know, doing what he thought he had to do without - really just paying lip service to it without really owning it or feel - there was no emotion. There was no sign that, you know, wow, did this really happen and did I not do anything about it. It was just whitewashed. … He was blank. Blank stare. He didn't really - he didn't say anything certainly. Didn't look or acknowledge. But he just sort of was there. … There was no - there was no empathy. There was no emotion. There was no response. 1237 Ms Meltzer described her own reaction to the way Mr Minack dealt with the meeting: Probably a bit aghast. Probably a bit you know, really? I mean, I guess my role is student welfare so, like, you know, it's - I live and breathe student welfare, and this was a kid who was so disturbed and so emotionally broken, but he didn't - he didn't respond to it at all. He was totally [un]emotional. 1238 The "he" in the last sentence is clearly Mr Minack, not Liam. The transcript is in my opinion erroneous. Ms Meltzer said "unemotional". Ms Meltzer described Liam as being "devastated" after the meeting, which is consistent with Liam's own evidence. I accept that was Liam's reaction, and I accept all of Ms Meltzer's evidence about this event. None of the cross-examination of Ms Meltzer affects my assessment of her reliability as a witness. Most of it was occupied with why there were some aspects of Liam's oral evidence missing from her notes. I have dealt with that. Her account of the meeting with Mr Minack was not impugned at all. 1239 Mr Paul was also asked for his opinion about how Mr Minack dealt with the return of Liam and Ms Meltzer to BSC for this meeting: In assessing the Meltzer Notes, with which I have been provided, and the description of the dynamic of the March Meeting, I am surprised that there appears to be no follow up by Mr Minack. Such a meeting of a past student, the deputy principal of his new school and the principal of his last school is, in my experience, most unusual. It would not have been, in my opinion, an easy decision for Ms. Meltzer to broker the meeting with Mr Minack. The risk of offence and the potential awkwardness of the occasion is clear. For his part, Mr Minack exercised his prerogative of not providing an apology to Liam, although it would have cost him nothing, and should, in my opinion, have reflected and respected the strength of feeling that motivated Liam to seek the meeting. However, in saying that, I am most surprised that Mr Minack "did not conduct any investigation" (paragraph 58(l)) following the meeting. In my experience a reasonable principal would have conducted some sort of subsequent investigation when confronted with such deeply concerning personal evidence about the scale of the antisemitic behaviours of some of his or her students and the apparent extent of the antisemitic problem in his or her school. (Original emphasis.) 1240 Mr Minack agreed in cross-examination that after this meeting with Liam and Ms Meltzer, he took no further steps about what they had told him had occurred, recalling it was conduct over the immediately preceding three years, where some of the perpetrators were still likely to have been at BSC. Mr Minack insisted in cross-examination that he was not given the names of any perpetrators, and if he had been given names, he would have written them in his notes. I do not accept this evidence and consider it is reconstruction, made in the specific context of being a respondent in this proceeding. I find he was disinterested in what Liam was saying, as Ms Meltzer observed. Mr Minack accepted that his own notes of the meeting showed that Liam "said he had had a very bad time at Brighton". I found it revealing that, again, Mr Minack did not (and I infer could not bring himself to) say that Liam said he was the victim of antisemitic bullying at BSC. Throughout his evidence in this proceeding, Mr Minack appeared incapable of speaking in the direct terms of the overwhelming evidence from the applicants and the student witnesses. He generally could not himself volunteer descriptions of antisemitic student behaviour. 1241 I accept Mr Paul's opinion, and give it some weight in my reasoning on Liam's RDA and negligence allegations. Mr Minack's reaction to the meeting was inexplicable in terms of what can be expected of a professional and concerned principal. It was unacceptable, but consistent with what I have found to be his lack of interest in the welfare of Jewish students at BSC, and in complaints about antisemitism. For whatever reason, he appeared to have been incapable of reacting as a reasonable principal would to antisemitic behaviour, and instead was prepared to tolerate a high incidence of it, and do very little about it.

Mr Minack's evidence about Liam 1242 Mr Minack was initially resistant in his evidence to accepting anything about Liam's account of his time at BSC. He insisted he knew nothing at the time about Liam being bullied and found out only when Ms Angelidis told him that was the reason Liam was leaving. Even then, Mr Minack made no attempt to contact Liam and find out what had happened to him. He was unprepared to make any concessions about why Liam may have returned with Ms Meltzer for the meeting, saying only: He certainly felt the need to speak to me, yes. 1243 While he was prepared to make a number of concessions based on assumptions about what Liam might establish in this proceeding, those concessions are of little weight in assessing Mr Minack's own evidence when he was himself determined to concede very little at a factual level. 1244 Mr Minack described himself as "really shocked" during the meeting with Liam and Ms Meltzer: And it's really unusual to have an assistant principal from another school come meet with you with an ex-student of yours and put those things to you. I remember being really shocked, and I remember being asked to apologise, and my thinking was, "Wow, you've just told me all this stuff; you've made a bunch of allegations and you want me to apologise." I - I - I didn't feel as if I was in a position to apologise, because I had no idea whether - I had no way of understanding whether this stuff was right, it was wrong, it was accurate, it was inaccurate. I - I just didn't feel as if I was in a position to apologise at that point in time. 1245 I found this answer dissembling. There was no evidence, and Mr Minack himself did not suggest, that he said anything of this kind to Liam and Ms Meltzer. The allegations were extremely serious, and it might have been reasonable for a principal in Mr Minack's position to need time to digest them and investigate. But he said no such thing at the time. Rather, I find Mr Minack did not believe Liam, or did not care. I note again in his evidence Mr Minack was unable to talk about antisemitic student bullying - he was unable to recognise that what he was being told was that these things were done to Liam because he was Jewish. In his evidence he could not articulate any such statements. 1246 The most he could say in his evidence was that he was "really sad that Liam felt and feels the way he did about his time at Brighton". That falls far short of any acceptance of what happened to Liam. It falls far short of recognising the racist behaviour involved. And it goes nowhere towards recognising that this all happened to Liam because he was Jewish. I find Mr Minack resisted, quite consciously, making any such concessions. It is not in his vocabulary. 1247 Mr Minack did go on to say he "regret[ted] not apologising for what [Liam] felt". But again, this is a far cry from an apology for the way he was treated by other students, with nothing being done by the school to attempt to stop it. In other words, Mr Minack retains his view that Liam is giving a false account of what happened to him at BSC. His apology in the witness box ("I'm prepared to apologise to Liam for any hurt that he felt he - he experienced at Brighton Secondary") also remained at the level of Liam's feelings, nothing more. I find it was calculated to go no further.

Conclusions on Liam's causes of action 1248 In summary, my findings above are that Liam experienced serious verbal and physical bullying and harassment during his entire time at BSC, and that at least a reason, and in my view a principal reason, for that bullying and harassment was because he was Jewish, and visibly Jewish in terms of his religious clothing. 1249 I have found that there are at least some contemporaneous records, as the applicants submitted, of the same students identified by Liam being disciplined for antisemitic behaviour of the precise kind Liam experienced. 1250 I have found Liam reported the treatment to Ms Gibson in a way which should have made it clear the bullying and harassment had a clear racial element. I have found Ms Gibson ought to have, but did not, appreciate that Liam was describing racially-motivated bullying and harassment, and appears to have ignored clear signs of such a racial connection, likely because there was no environment at BSC at this time which encouraged staff to be vigilant and proactive about racially-motivated harassment of Jewish students. 1251 I have found Liam regularly reported what was happening to him to the school administration office. He reported at least once to Mr Mangold. He reported to the counsellor he saw in 2013.

RDA s 9 1252 Again, the s 9 case by Liam against the respondents is an omissions case. 1253 I do not consider Liam has proven his case under s 9. Although I have made some factual findings that there was a level of tolerance of antisemitic student behaviour which would appear to explain for example the approach taken by Ms Gibson, at this period of time Ms Podbury was the principal of BSC. There was no case sought to be made against her that a reason for the lack of action taken to reduce, discourage or prevent students constantly harassing Liam was that the way she ran BSC made a distinction in the way Jewish students were treated, compared to other students. 1254 In other words, the applicants did not seek to make a case against Ms Podbury about her own attitudes to Jewish people in the same way they did against Mr Minack. While Mr Minack was the vice principal in charge of wellbeing at this time, the applicants did not seek to develop an evidentiary case about the role he had being of a kind that his allegedly unacceptable level of tolerance for antisemitic behaviour influenced or affected how Liam's complaints were treated. They were likely unable to make such a case because, unlike for some of the other applicants, there was a large factual divide between the parties over Liam's allegations and the respondents' principal position was that the bullying did not occur, and Liam did not report it in the way he said he did. I have rejected the respondents' factual case, and accepted Liam's factual case, but that does not necessarily lead to a conclusion that s 9 of the RDA has been contravened. 1255 There was also no case made against the individual administration office staff that the reason they failed to pass on Liam's complaints was because he was Jewish, or that his Jewish race was a factor. 1256 While I have found Mr Minack's behaviour and attitude to his interaction with Ms Meltzer and Liam probative of Mr Minack's own attitude to complaints about bullying and harassment of Jewish students, Liam had left BSC by this point and there is nothing in this interaction which could give rise to a contravention of s 9 in itself. It is evidence I have weighed against Mr Minack in considering other allegations against him, but it does not disclose any separate contravention of s 9 of the RDA, nor was the applicants' case framed that way. 1257 If there had been a positive case made that Ms Podbury's approach to bullying and harassment was different when it came to Jewish students, I would have rejected that case at a factual level because there was nothing in Ms Podbury's evidence that suggested to me she had such an attitude. If anything, her evidence suggested the opposite. 1258 As I explain below, what happened in relation to Liam was a failure to take reasonable care for his welfare - that failure as a matter of fact lies not so much, I find, directly at the feet of Ms Podbury as at the feet of the teachers and staff who directly interacted with Liam, especially people such as Ms Gibson and the office administration staff. As I have explained, no individual duty of care is properly alleged against teachers such as Ms Gibson, or the administration staff. Their case was put, without any level of particularity, at the non-delegable duty level where legal responsibility lies with the principal. It is on that basis that I have concluded below that Liam has proven a case in negligence during the time Ms Podbury was principal. 1259 If buried in the applicants' pleadings or concise statement somewhere is a case about positive conduct by any of the respondents in respect of Liam, said to contravene s 9 of the RDA, it was insufficiently highlighted and developed to require any separate consideration by the Court. Compare, for example, some of the allegations by Matt and Guy against the other individual respondents.

Negligence 1260 I will set out again the nature of the duty of care that the respondents conceded was owed by the principal of a Victorian State school, and which the respondents conceded was consistent with Introvigne: To take all reasonable care to provide suitable and safe premises … [and] [t]o take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out. 1261 And, specifically in relation to bullying and harassment, from Oyston, a principal was obligated, in performing their duty of care towards Liam: to take reasonable steps to ensure [Liam] was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. 1262 During all of Liam's time at BSC Ms Podbury was the principal, not Mr Minack. The respondents took no express point that she was not named as a respondent. Her duty of care to Liam was of the same nature as Mr Minack's, once he became principal. In addition, as the evidence revealed, at the time of Liam's experiences, Mr Minack was the vice principal in charge of wellbeing, and he had a clear supervisory role in relation to student wellbeing. 1263 I do not consider the failure to name Ms Podbury as a respondent precludes Liam's allegations in negligence succeeding. Ms Podbury was called as a witness and was given an opportunity to explain the school's practices at the time. The major theme of her evidence was that she was personally unaware of the way Liam was being treated. That would appear to be the case. That does not relieve her of responsibility for the non-delegable duty of care the law imposes on her as principal. The duty of care imposed on the principal as the person in charge of a school may be discharged through other teaching staff, as well as through the application of the school's policies and procedures. 1264 In Bradford-Smart, a case about a plaintiff who was bullied at school and liability in negligence for illness arising as a consequence, Judge LJ pointed out at [31] that the content of a duty of care may extend beyond physical safety: Although these are all aspects of the duty of care, there are practical differences between what might be called the 'health and safety' duty and the 'educational' duty, among them that the latter is more likely to lead to 'pure' economic loss. Bullying may be either a 'health and safety' or an 'educational' issue or both. It may lead to physical or psychiatric injury to the victim. It may also lead to educational under-achievement and consequent psychiatric injury or economic loss. 1265 In the present case, Liam's allegations were squarely put as a health and safety issue, although it is clear that the bullying and harassment he experienced affected his ability to learn and to enjoy school. But Liam did not seek to prove under-achievement at school - he sought to prove physical harm (bruising etc), distress, humiliation, disruption, loss of self-esteem - all leading to diagnosed psychiatric conditions and all being consequences of the treatment he received and - in his case - almost the complete absence of any attempt to protect him. 1266 Thus, in terms of the duty to protect Liam from physical and psychiatric injury, the question is did BSC, through Ms Podbury, her leadership team, the counselling staff (and especially Ms Gibson) and the other BSC staff, take reasonable steps to avoid Liam suffering physical and psychiatric injury from antisemitic bullying and harassment? Again, to use the language of the Court of Appeal in Bradford-Smart at [38], the principal and staff at BSC were required to: take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. 1267 On my findings of fact, the reaction of BSC staff to Liam's complaints was plainly inadequate. His complaints to people located in the administration office were either ignored, not passed on or, if passed on, not acted upon. 1268 It might well have been the case, as Ms Podbury suggested, that the administration office was not an appropriate place for students to go to complain. Nevertheless, I have accepted Liam's evidence that is where he went. I find he was somewhat lost at BSC, an anxious young person with some self-esteem issues, and some challenging family circumstances he was dealing with. He is not physically large, and I infer as a 12, 13 and 14 year old he was small compared to many of his peers. He was developing his Jewish identity, and I find it was of comfort and importance to him at a time when he was having generally negative experiences at school. He may well have chosen to go to the administration office because it seemed like a safe place to go. The fact that Ms Podbury was so clear about how inappropriate it was confirms to me that it is likely his complaints were neither well tolerated nor well received by the office staff. That inference is available based on Ms Kerney's evidence as well as Ms Podbury's. I find Liam did not realise at the time that the office was an inappropriate place to go, and he continued to go there as his first option. For whatever reason, no staff member at BSC took his complaints seriously, they were not passed on or documented, and they went unattended to. 1269 The accounts he was giving to his year 7 counsellor were not acted upon. The accounts he gave to Ms Gibson were not taken seriously enough. There were one or two instances where Ms Gibson spoke to a coordinator (eg Dr Riha), but nothing appeared to come of this, and the Court has no evidence from Dr Riha. Even on Ms Gibson's account the year 8 maths class, where Liam experienced some of the antisemitic bullying, was "chaotic", but nothing was done to address that chaos, as far as the evidence disclosed. Certainly the evidence did not disclose that anything was done to address the effects of that chaos on Liam - namely, the unbridled verbal antisemitic taunts in that class. Nor were any adequate steps taken to address what was going on in the playground, which not only Liam described, but so did Jules Paul. The verbal chastisement was obviously inadequate, and as the Chronicle records demonstrate, this group of boys were notorious bullies, and were known to engage in antisemitic conduct. 1270 There is no evidence of any consequences imposed for the bathroom incident, nor of any consequences imposed for Liam being kicked in the head, where his kippah was compared to a soccer ball. 1271 I find Ms Podbury, her leadership team (including Mr Minack), and other staff such as Ms Gibson, the year 7 counsellor, Mr Mangold and all those who interacted with Liam failed to take any or adequate steps to address and deal with the antisemitic bullying he was experiencing. Indeed, because I have accepted Liam's evidence and rejected the respondents' attack on his evidence, I am satisfied that virtually nothing was done in response to his complaints. Active steps should have been taken to seek out the bullies and engage in a range of strategies to modify their behaviour and protect Liam: see Oyston (No 2) at [70]. Both Professor Rutland and Mr Paul have outlined what could have been done, as I have set out earlier in these reasons. The evidence demonstrates nothing was done. 1272 Somehow, and for whatever reason, Liam was virtually invisible to BSC staff, and even when he was visible - for example in the counselling session with Ms Gibson - he was not taken seriously. Instead, he was treated as an unhappy boy with a difficult family situation being the cause of all his problems. 1273 On the evidence, the only people who took Liam seriously were Ms Meltzer and Mr Cowley at Yavneh. Ms Meltzer's evidence also describes how Liam "would come into my office frequently, often hovering around the door" at Yavneh. This was a young student who was not as skilled at seeking help as other students might have been. That does not excuse failing to help him. Ms Meltzer's evidence persuaded me she thoroughly understood this. She and Mr Cowley acted as reasonable teaching and school staff should. 1274 While, as I accept elsewhere in these reasons in relation to some of the other applicants, there is no easy solution to student bullying, and individual students may be difficult to control, here there were no steps at all taken, so the causal element is straightforward. I am satisfied that if some steps were taken to identify perpetrators, to discipline them appropriately and to punish in particular the racially-motivated element of their behaviour, Liam would not have suffered the nature and extent of harm that he did. 1275 I am satisfied if some wider and more systemic education campaign about the wrongfulness of antisemitism had been implemented, the fact of such a campaign would have led to closer teacher supervision of Liam's bullies, and swifter action against them. As it was, they had free rein. 1276 Liam suffered physical harm - bruising, lacerations, and he was physically assaulted on many occasions. His head, with his yarmulke on, was kicked as if it was a soccer ball. He was shoved, pushed against lockers and punched. That is sufficient damage to complete the tort. I am also satisfied on the evidence Liam suffered psychiatric injury, which I discuss below in the damages section. How the Wrongs Act affects what he can recover is a matter I deal with in that section.

Joel - pleadings 1277 The applicants allege a number of specific incidents relating to Joel over his time at BSC. They allege that the incidents, or the response to the incidents, constituted breaches of s 9 or s 18C of the RDA, as well as breaches of the duty of care to Joel.

Racist bullying in year 7 - 2016 1278 The applicants allege that Joel was bullied by several students, in a racially-motivated way, in 2016. They allege that around four students referred on an ongoing basis to Joel as "Jewboy" or "the Jew". They also allege that in 2016 some students began throwing coins at the floor in front of Joel. 1279 The applicants contend Joel began reporting such incidents in year 8 (2017). As submitted by the respondents, Joel conceded in his evidence that he never complained about such conduct in 2016.

Incidents in year 8 - 2017 1280 In Joel's year 8, in 2017, the applicants allege: (a) an incident where Joel was sent a recording by another student, Jay, from an anonymous account, showing Adolf Hitler "ranting and yelling 9 loud "Sieg Heil!" chants" (Sieg Heil recording); (b) an incident where the same student (Jay) approached Joel when he threw out a piece of food, and said "That's a lot to throw out for a Jew"; (c) a number of incidents involving another student, Slater, including racist taunts such as "[g]et in my oven" being directed at Joel; (d) other racist taunts and physical assaults on Joel by other students, totalling approximately 20 to 30 times across 2017; (e) an incident in which Slater assaulted Joel on year 8 camp; and (f) an incident in which a student named Aiden insulted Joel to the effect of "Jew, you fucking Jew", which led to a physical altercation between Joel and Aiden, and after which Joel was suspended but Aiden was not. 1281 The applicants allege that Ms Abadee sent the Sieg Heil recording to Mr Minack on the same day that Joel received it, but the school failed to properly investigate the incident. 1282 The applicants also allege that Joel regularly reported incidents including those listed above to Dr Riha. They state that there was a period of one to two months in 2017 where Joel would report incidents at the coordinator's office every two days or so.

Racist bullying in year 9 - 2018 1283 The applicants allege that Joel was frequently "battered" and bullied in year 9, including an increase in the number of, and variety of, racist insults and comments directed at him. Among other examples, the applicants' pleadings include the following instances: In about May 2018 (Year 9), on School camp Joel was called a "fucking Jew" by another student, Ben [redacted], with no consequences. By now this language was normal for Joel. … Another student in Year 9, for instance, Jack [redacted], called Joel a "Jewish shit" and admitted to doing so. It occurred on the hockey field. Nothing occurred as a consequence from the School. This is one of the tens of experiences Joel had that went unpunished, unacknowledged and was ultimately tolerated, condoned and normalised. 1284 The applicants allege that this treatment included students pulling or ripping off Joel's kippah. They allege that Joel "often" reported this to teachers (including teachers on yard duty) and coordinators, but that no teacher ever punished any student because of this conduct.

Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 - 2018) 1285 One particular incident relates to an incident in Joel's year 9 class taught that day by Mr Hunt. The applicants plead: When Joel entered the classroom Mr Hunt stated in front of the whole class present: "You know you have to take your hat off when you're indoors." This humiliated Joel in front of the entire class. Joel approached Mr Hunt and said "You know, it's not okay to say that you know." Mr Hunt responded: "Oh, it's just a joke, you know, I joke about a lot of things in my class."

Racist taunts and other bullying in year 10 - 2019 1286 The applicants allege that Joel was subjected to continued mistreatment by other students in 2019. On the applicants' pleadings, this included incidents where another student, Charlie, drew swastikas and shouted racist taunts at Joel during class without punishment, which Joel reported to coordinators Ms Lewis and Ms Astorino. Joel gave evidence that he sent a recording of the swastika to Ms Astorino and Ms Lewis.

Racist taunts and other bullying in year 11 - 2020 1287 The applicants allege that in 2020, prior to leaving BSC part way through the year, Joel reported another student, Charlie, to Ms Lewis and Ms Astorino for saying "very anti-Semitic comments". 1288 There are separate allegations of contraventions of the RDA made against Mr Hunt for the kippah incident: see [157] and [346] of the statement of claim. Otherwise, there are the same kind of summary allegations about contravention of s 9 of the RDA at [366] of the statement of claim, as I have described in relation to Liam above. 1289 The claim in negligence by Joel is put in the following way (at [384]): It was foreseeable that if the Respondents did not take precautions that Joel might suffer a risk of harm, which was not insignificant, namely, being subjected to consistent racist assaults, batteries and abuse from other students which caused him loss and damage including psychological injury and harm. 1290 That is expanded on through the rest of [384], and the breach of the duty of care is said (at [385]) to lie in an inadequate complaints process, a failure to discipline the offending students (adequately or at all) and a failure to educate the student body as a whole that antisemitic conduct would not be tolerated.

Joel - resolution 1291 Joel's individual allegations relate to antisemitic bullying and harassment he contends he experienced every year of his five years at BSC, between 2016 and 2020. 1292 Some of these allegations overlap with the general allegations about the presence of swastikas around BSC, and to the extent they do, I have dealt with them in the swastika section, and have found those allegations proven. 1293 Generally, I accept Joel's accounts of what he experienced at BSC. As a witness, I found him quietly spoken, respectful and genuine. I consider he was speaking from an honest recollection; he did not exaggerate in his evidence about matters such as the frequency with which the bullying and harassment occurred, but I also find he was able to contextualise the frequency of some of the harassment in a way that leads me to accept that some of it became very frequent indeed. 1294 Joel was clearly nervous in the witness box, which is perfectly understandable. I do not consider this affected the reliability of his evidence. Although he presents as much less animated than his brother Matt, Joel's Chronicle records from his time at BSC reveal, I accept, that Joel could be an angry and somewhat volatile young person during his time at BSC. I have no difficulty in accepting that a great deal of this anger and volatility came from his despair and frustration with how he was being treated by other students, and the lack of consistent, strong responses from Mr Minack, the BSC leadership team and staff. Nevertheless, his own behaviour is, as the respondents' submitted, an important component in understanding how individual incidents were dealt with by staff. 1295 There was some suggestion to Joel in cross-examination, during testing of his evidence about how much he complained about the treatment he said he received, that he did not tell his mother, Ms Abadee, about all of the bullying and harassment. The suggestion appeared to be that the failure to tell his mother somehow cast doubt on the veracity of his accounts. While Joel clearly did speak to his mother about some incidents, he gave this explanation, which I accept: So when - did you - you may not remember, but do you remember if you told your mum about the food incident immediately or sometime later?---Not with the food incident. She was quite sick, and it wasn't something I wasted time with. 1296 And later: Okay. Is it fair to say, though, that if the incident involved Aden using the kind of language that you've described that you also would have told your mum about that?---No. It's not fair? Why not?---Well, Mum was quite sick, as I said a few times. I - the anti-Semitism got to her a lot. She - she felt quite deeply about it, so I - I would try and avoid telling her about it as much as possible. Well, you did tell her specifically about what was said to you?---I did tell her when it was quite bad. This - these stuff: it's normal. They're a normal experience at Brighton. I didn't feel the need to tell her. She was - in - in year 7 and year 8 - she was quite sick in year 7. 1297 Joel's answer continued in more detail but it is not necessary to put anything further about Ms Abadee's health conditions in these reasons. I do not accept the respondents' submission that evidence of an inconsistency in Joel reporting incidents to his mother suggests (as the respondents imply) that the incidents did not occur. Rather, I accept Joel did his best, as a 12-14 year old struggling with antisemitic bullying at school, to make some choices about when he should tell his mother what was happening, given her own serious health issues, and when he shouldn't.

Factual findings applicable to Joel's allegations 1298 There was considerable evidence in the BSC documents to demonstrate that the students Joel was identifying were known to engage in bullying. In one document concerning Slater, there is an email from a teacher named Joanne Bradley, dated 15 August 2019, complaining about four boys which included Slater and a student called Jay. After recounting the particular incident the teacher wrote: These kids are bullies as a group and have no reasoning skills. They show no respect to their peers nor teachers. … I feel sorry for the rest of the class. The rest of the class thanked me and then left. Two boys told me that this is their behaviour in most classes. I asked them did it bother them. They said it was frustrating because they want to learn but they just put up with it. I feel sorry for the students that share these classes as they should not put up with it. If the boys complain about me -happy to discus[s] their behaviour. Never come across this in my 30 [years] of teaching. 1299 In this 35 page document, there are constant references to Slater's bullying, and many references to the need for his behaviour to change. That said, there are also many references in this document particularly from Slater's mother, about how she and Slater feel he has been unfairly targeted. This evidence demonstrates the nuances involved for teaching staff and the leadership cohort at BSC in dealing with student behaviour. 1300 The Chronicle and other BSC records, including emails from parents, demonstrate that by and large each parent considers their child has been wronged, or provides excuses and explanations for their child's behaviour. Each parental perspective is driven by their care and concern for their own child. That is a natural human reaction and unsurprising. However, it is an important reminder of the task facing BSC staff and the leadership cohort in applying and implementing school discipline policies. I have borne this feature of the evidence in mind when assessing the applicants' allegations - all of which came, understandably, from the perspective of the applicants and their families, without much consideration of the circumstances of other students or their families. To say as much is not to criticise the applicants and their families but simply to record the fact that not only do perspectives amongst students and their families differ, and sometimes with objective justification, but in assessing the reactions of the leadership cohort and BSC staff, this feature of the circumstances must be steadily borne in mind, especially when assessing what conduct could reasonably be expected from staff and the leadership cohort.

Racist bullying in year 7 - 2016 1301 Joel's evidence was that after his bar mitzvah in 2016 (when, I infer, he started wearing a kippah), students at BSC started to call him "Jew boy" and that this became used so frequently he felt it became "a substitution for the name they normally called me by". He described this behaviour as emanating from a group of about six students but said the use of "Jew boy" to refer to him became more widespread across the school. He also described coins being tossed at him, or on the ground near him, alongside comments such as "[t]he Jew picked up the coin". He estimated this happened five or six times in year 7, and that a couple of boys were involved. He said he did not tell anyone about it. 1302 Notis Korkoneas, who was friends with Joel, gave some supporting evidence of this occurring: With, like, specific incidents with, like, Joel and his brother, I again remember seeing, like, you know, his brother being cornered and Joel being, you know, thrown, like, coins and, like, people dropping coins, throwing dirt and teachers would not do anything about it. 1303 Notis had described how the taunts and behaviour became "progressively worse" into year 8 and 9, and this is consistent with a great deal of the student and applicant evidence. Notis described Joel telling him these incidents once or twice a week, including about students stealing his kippah and throwing it around. 1304 I accept his evidence, and find he was subjected to this behaviour by a group of students.

Specific incidents in years 8, 9, 10 and 11 - 2017-2020 1305 The more specific allegations by Joel begin when he was in year 8, and continue through to 2020 (year 11), when Joel left BSC. I have set out those factual allegations above. 1306 I accept these incidents occurred as Joel and other witnesses described them, in the sense of having an antisemitic element to them. However, I also accept the respondents' evidence that in some instances, Joel's behaviour also called for a disciplinary response. The evidence about what happened at the year 9 camp is a good example of this. There was also an email in evidence to Mr Minack from Amedeo Astorino, who was Joel's year 10 student manager, as part of the Worklogic inquiry process, in which Mr Astorino indicated "Joel had also been making racist slurs about people of Asian and Muslim de[s]cent". However, Joel was not cross-examined on regular behaviour of this kind, and Mr Astorino was not called as a witness, and I do not consider this email probative against Joel's case. 1307 In the earlier years, two repeated perpetrators were Jay and Slater. Slater was also a student regularly involved in antisemitic behaviour towards Matt. Another student called "Aden" was a student Joel identified as often calling him a "fucking Jew". There is a Chronicle record entry for this incident because Joel was suspended for hitting Aden with his fist. The entry says nothing about antisemitic conduct by Aden. The entry was made by Dr Riha, the year 8 level coordinator that year, who was not called as a witness. Dr Riha is one of the people about whom the applicants made Jones v Dunkel submissions, but I have accepted there was a medical reason for her absence: see [428] above. 1308 Ms Abadee's evidence was that she "knew" Aden was antisemitic towards Joel. She was cross-examined about how she knew this, in light of some of Joel's evidence about what he did and did not tell his mother. Ms Abadee repeated that evidence several times. I accept her evidence. She was giving evidence about her state of mind at the time Joel got into trouble for punching Aden. Whether or not on a specific occasion Joel told his mother is not the only way his mother is likely to have understood the attitude of another student towards her son. Ms Abadee had three sons at BSC in various years. She described having a houseful of boys from BSC from time to time: I'm a mum. My kids think I've got eyes on the back of my [head]. I can - I know what's happening. I might not say anything. I might not do anything. I might watch things play out. Kids tell you things. You hear kids talking in the house. They don't know, you know? They talk in the car and they think I can't hear them, you know? I would know. I did know, not would know. I did know there was anti-Semitism happening. I didn't know what extreme it was happening. But I did know things were happening at Brighton. I had older children there as well. You hear things. 1309 It is common sense that Ms Abadee is likely to have gained impressions about BSC students who her sons were identifying as antisemitic to her. It is highly unlikely this knowledge came about through a single conversation. It is likely to have been built up over time. Ms Abadee was, I find, both adamant and genuine in her evidence to this Court. 1310 Aside from seeking to prove the incidents occurred, the focus of the applicants' evidence about these specific incidents was that there were differential responses by BSC staff, the leadership cohort and Mr Minack, and that those differential responses were based on Joel being Jewish. In their closing written submissions from [152]-[174], the respondents address these specific incidents. They contend that the applicants have not proven any differential treatment based on race, they explain some of the factual nuances and disciplinary decisions that needed to be made by the BSC staff involved and they emphasise, correctly in my opinion, that there were contemporaneous judgments made by various staff members about what the appropriate disciplinary response was. I accept the respondents' submissions on these matters and the factual basis in the evidence for them. 1311 These circumstances are very different from Liam's, where I have accepted Liam's evidence and I have found that no action at all was taken. Here, with the specific incidents, there was a reaction from BSC staff and leadership, and what Joel challenges is the adequacy and appropriateness of the reaction. I am not persuaded he has proven that for any specific incident the reaction was inadequate or inappropriate, nor has he proven that even if it was, the reaction was based on the fact Joel was Jewish (or the complaint involved antisemitism) and would have been treated differently if it involved a student with a different attribute (such as sexual orientation) or a non-Jewish student. While I can understand that in the environment in which he found himself, Joel (and his mother) felt unfairly treated, objectively he has not proven any of the staff reactions to individual incidents were unfair or inadequate or inappropriate and certainly he has not proven they were differential because he was Jewish. 1312 I have, however, reached quite different conclusions about what the respondents somewhat pejoratively labelled the "generic" evidence of Joel about his treatment between 2017 and 2020, and the reaction of BSC leadership and staff to it. The conclusions I have reached on this evidence are consistent with the conclusions I have reached about the swastika allegations; namely, that there was a systemic failure to address the prevalence of general antisemitic student behaviour at BSC, and this was because there was, at a systemic level, a higher tolerance shown to antisemitic student behaviour than other kinds of inappropriate student behaviour. Or, to put this another way, antisemitic student behaviour was not taken seriously at BSC during this period, and Joel's experiences bear this out.

Factual findings on Joel's less specific allegations 1313 In year 9, Joel started wearing the kippah. As I have found with Liam, the fact of a student wearing a kippah appeared to be a trigger for other BSC students to engage in antisemitic bullying and harassment. As far as I can tell from the evidence, there is not a single example of any proactive education being given to BSC students, at a classroom, year level or school-wide level, about the significance for Jewish students of wearing a kippah, or any other items of clothing that have religious significance. It may be, for example, that there was also no education about the wearing of religious clothing such as hijabs, or turbans, but this case is not concerned with Muslim or Sikh students, and there is no evidence about whether there were students wearing these items of clothing at BSC during the relevant period, nor how they were treated. 1314 There is, in contrast, a significant amount of evidence that Jewish students wearing the kippah became prime targets for bullying and harassment. That was overwhelmingly Liam's experience, and I find it was Joel's experience too. 1315 This is how Joel described what happened when he started wearing the kippah at BSC: I had a lot of people grabbing my kippah, ripping it off my head. Many people would touch it. The kippah is - it's attached with hair clips so it doesn't fly off in the wind and people would rip the hair clips out. That was quite painful. 1316 He estimated there were around 12 students who behaved like this: It was a lot of the - a lot of the boys in the year would - when they were walking past, would just touch it if I'm at my locker. Even - even when I'm in the canteen line, people I didn't even know sometimes would touch it. 1317 He explained that the antisemitic taunts became "substantially worse" in year 9 as well: People - I got called "Jew boy" quite regularly by pretty much everyone. It was just a common thing to call me "Jew boy" at the school. And people would throw coins on the ground and make Jew jokes. I had Jake [redacted] pick up - pick up - he picked up dirt and he threw it at me and he said, "I found your ancestors." He did that a few times. 1318 Joel became upset when he was giving this evidence. I find this was a genuine reaction, and he found the recollection of this treatment distressing. Later in his evidence he identified Slater, Aden and several other students as the perpetrators. Joel also gave evidence about the presence of swastika graffiti around the school at this time, evidence I have accepted and made findings about earlier in these reasons. 1319 Joel gave what I consider a vivid description of how other students took his kippah and denigrated it. His evidence was that this happened "Daily. Quite often". As with other evidence of this kind from the applicants, I do not take it at face value. I do not consider their recollections were strong or reliable enough to accept the student harassment they described when they used this kind of language was, in fact, daily. However, I do accept that what they were conveying by their evidence was that it was frequent, and regular. Joel described how students grabbed his yarmulke and: I would normally have to go and kind of get it back from them. If it was the guys, normally I had to take it back. If it was the girls, eventually they - I would get it back. And then if I would report the students, nothing would happen. What, if anything, did they do with it?---They would throw it across the classroom like a frisbee. Sometimes they would put it on their head. Sometimes they would just take it. 1320 Joel explained that he reported this behaviour "quite a few times" to teachers on yard duty, and to his year level coordinators. He estimated he did so about ten times. He explained he tried to go to teachers on yard duty that he knew, such as Dr Riha. He said: I would say, you know, "This student touched my yarmulke," or, "They took the yarmulke off." I would tell the teacher what happened, and then the teacher would be like, you know, "That's - that's not on," or, "It's horrible. Leave it with me. I will deal with it. You go enjoy the rest of your lunch," or, "You go get to class," and that would be the end of it. 1321 Joel's evidence was that there were not general admonitions in class or assembly about it being wrong and unacceptable to touch, grab or remove the yarmulke of a Jewish student. He described himself as being on edge because of the behaviour, worried that students were going to rip his yarmulke off, and that it affected not only his willingness to go to school, but his ability to enjoy and to learn. He noted (and the respondents appeared to accept) that because he was dyslexic, learning was already a challenge for him, and this kind of fear and anxiety about student bullying made it worse. 1322 The verbal abuse also continued: In year 9, all the students in the year would pretty much call me Jew boy. It was - it was quite regular. There was - the kids like Slater and Aden: they were still - the other ones, they were still going, "Get in my oven," and they were still saying the burn comments. "You should die because you're Jewish." 1323 He explained that eventually towards the end of year 9, he complained to teachers less as it had no effect and nothing was done. He reiterated he was not telling his mother much because she was sick, and only told her when it "got so bad that I was in fear at school". 1324 In year 10, Joel described how the harassment and taunts continued: Year 10 was extremely bad. Everyone would touch my yarmulke daily. If I went to my locker, I would get my yarmulke touched or grabbed. If I was sitting in class, people walked by and touched my yarmulke. People would rip it off. It was really bad. So if you were comparing that to the yarmulke treatment in year 8, how was it?---It was - in year 9, it was a lot worse. Year 10 now?---Year 10 is substantially worse. 1325 Joel described the conduct of a student called Charlie in his maths class, whom he described as "openly" and "audibly" antisemitic: He would draw swastika on his books and on the tables. He would say, "I fucking hate Jews." He said, "I think Star of Davids should be - should be banned, and I will draw swastikas over them if I see them." Were these comments directed generally or to you?---Both. They were said quite loudly so people could hear them, and sometimes he would say them while looking at me. 1326 I have also made some findings about an incident with Charlie in the swastika section above. 1327 Like all the applicants and most of the student witnesses, Joel was cross-examined on his evidence that a considerable amount of the antisemitic student behaviour was observable by, and audible to, the BSC staff. Like the other applicants, and most of the students, Joel properly conceded he could not say for sure that a teacher had heard or seen particular behaviour, but he gave an answer (again, like most of the other witnesses who were cross-examined in this way) which resonated with me and which I found persuasive: Okay. So you can't actually say what Ms Benedetti heard at all, can you?---I - I have a - I can, because if I was - when I'm walking in the class, the teacher's desk is at the front of the room. The students would yell out from the back of the room. I could hear it from the other side of the classroom. If she couldn't hear students yelling to me from the other side of the classroom, then I'm - I would be amazed. Well, yes, but you can't actually say that. You don't know what she was focusing on at that point of time in the class, do you?---No, I don't know what she was focusing on. 1328 Joel's evidence is not only common sense, but it is consistent with ordinary human experience. While it is possible that on a specific occasion in a classroom setting, a teacher is so focused on other matters that they do not see or hear obviously inappropriate, offensive and harassing behaviour from a student in the class, what I find improbable in the extreme, and simply not credible, is that teachers at BSC in these classroom settings generally heard and saw nothing. 1329 I have been persuaded by the applicants' evidence that this behaviour was occurring on a regular basis. I have been persuaded that it was of the nature the applicants and their student witnesses described. I have found the teachers had little or no active recollection of most of the classes described by the applicants and the student witnesses, and what went on in them. There were exceptions which I have outlined elsewhere. But the nature of a teacher's role, and the hundreds of students they deal with every year, on repeated and various occasions, makes it improbable they had a reliable and clear recollection of particular classroom behaviour between 10 and 2 years prior to giving their evidence. What is more probable and more reliable are descriptions like the one Joel gave in the extract above. Joel recalls it clearly, I find, because he was the subject of the offensive behaviour, he was hurt and damaged by it, and he was trying to get the school to make it stop. 1330 I find it is likely in most of the circumstances described by Joel, by the other applicants and by the student witnesses, that teachers did observe antisemitic behaviour, and did hear the taunts. I find, based on the absence of Chronicle records at any level of regularity or frequency, the absence of email records at any level of regularity or frequency, and the positive evidence of the applicants and the student witnesses, that the teachers did not react strongly or decisively to this behaviour. They may have scolded. They may have observed it was inappropriate. I find it is likely they did not even do this on many occasions. The BSC Chronicle records demonstrate that the students engaging in the behaviour could be violent, surly, non-compliant and generally extremely difficult to deal with. I find it is indeed very likely many teachers took a path of least resistance, tried to continue with their teaching, and were prepared to conduct themselves in a way which meant Jewish students simply needed to put up with the antisemitic student behaviour. 1331 In large part, I find, that is because there was no leadership from Mr Minack on this issue. There was no proactive discipline on a systematic basis emanating from him as principal, there was no proactive education about how wrong antisemitic taunts and harassment were, that it is just as unlawful as sexual harassment and just as inappropriate at school, there was no appropriate responsive behaviour to complaints, and instead responses only occurred on isolated occasions where a high level of 'proof' was applied, rather than a response which was supportive and encouraging of complaints and suggested to the students complaining that they might be believed, and action would be taken. That is why I accept evidence such as that given by Joel in cross-examination that: the reporting process is broken, and it made me feel - it made me feel alone when I would go report incidences. 1332 I find that, for whatever reason, Mr Minack did not treat antisemitic conduct in the same way he treated other conduct. He seemed less concerned by it. His reaction to Liam and Ms Meltzer was extremely telling in my opinion, and that was early in the relevant period. By the time we get to 2018/2019, his tolerance for antisemitic behaviour, and indeed his positive preference to blame the victims, was evident. 1333 Another clear example of this was Mr Minack's reaction to Joel recording his March 2019 speech, which I discuss below. 1334 Subject to the qualifications I have expressed above about frequency, I accept all of Joel's descriptions of the frequent and regular antisemitic bullying and harassment he endured at BSC. It was disturbing to listen to the evidence, and I accept the harassment and taunts were as Joel described it at various points - horrible, degrading, and humbling for him - and made him fearful for his personal safety. Justifiably so, on the evidence. This was extreme behaviour from students. These were not 'jokes'. 1335 As I have set out elsewhere, Joel's evidence was persuasive about the noticeable increase in frequency and intensity of antisemitic bullying and taunts during and after the teaching of Maus. 1336 Like Mr Minack's reaction to and treatment of Liam and Ms Meltzer, Mr Minack's reaction to and treatment of Joel when he found out about the recording of the March 2019 speech is telling against the credibility of Mr Minack, and against the respondents' case generally. 1337 Joel described what happened after he made the recoding as Mr Minack trying to punish him. His evidence was: he kept - kept pulling me out of class, probably five or six times over a two or three-week period. He would take me out and he would take me into his office ..... interrogate me and question me on - on why I recorded it, and he took my phone away from me, tried to make me hand my phone into his office every day. And can you remember the content of some of these discussions? Or you said interrogations. What sort of things were being talked about?---Asked - yes, a lot. He was talking about that I shouldn't have my phone. He was saying that - that I - I can't remember exactly what he was saying, but it was along the lines that - that I shouldn't record his speech and that it shouldn't have happened and it was against school policies. I asked him - when I asked him what policies, he said, "Doesn't need to be written" - when I asked him where I could find the policies he was talking about, he said, "It doesn't need to be written down," because he makes the policies. 1338 Joel's evidence was that Mr Gargano was often present during these discussions. He stated he was brought into Mr Minack's office about five times. He said he tried to call Legal Aid because he felt he was being interrogated, but "never got anything from them". Joel explained, and the respondents appeared to accept, that after the March 2019 speech Mr Minack banned Joel from having his phone at school. Joel agreed he continued to bring it anyway, but I consider the more important point is that Mr Minack focused on punishing Joel for recording a speech that was highly embarrassing to Mr Minack and created, justifiably, an uproar inside and outside the school. He was not at all concerned about Joel's experiences that led him to feel so heightened and outraged by a principal using the terms Mr Minack used in the March 2019 speech. 1339 I found the evidence about how Joel was treated after he recorded and was punished for recording this speech to be of some concern. It did not reflect well on Mr Minack, or on his credibility. Mr Minack was more concerned about Joel's transgression of school policy than he was about the obvious (subjective) offence his speech had caused, both inside and outside the school. He lacked considerable insight into the feelings of Jewish people in particular. 1340 There was a sense in the respondents' cross-examination of Joel that they sought to impugn his evidence, and his credibility, because of the use he made of his phone to record things that happened at school, or to take photographs. Joel agreed he had special permission to keep his phone with him because it had applications on it he used for learning, due to his dyslexia and other learning difficulties. He agreed that he had used his phone to record what Charlie said in class, and then emailed the recording to Mr Astorino and Ms Lewis. The respondents appeared to be suggesting Joel was in the wrong, which I found puzzling, since the approach to disciplinary processes at BSC required, as I have said, a high level of 'proof' and required teachers to become in substance arbiters of which student was in the right or which was in the wrong and what had been 'proven'. That being the environment at BSC, for a student like Joel who was experiencing these levels of antisemitic taunts and harassment, to use his phone to provide 'proof' is an entirely natural and unsurprising reaction. It should not be criticised. It was a reaction engendered by the poor policy approach taken at BSC.

Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 - 2018) 1341 Before turning to my overall findings on the causes of action relied on by Joel individually, there is one more incident to deal with. This is the allegation that, in year 9, Mr Hunt told Joel to remove his yarmulke, but then suggested he was only joking. Joel's evidence was that when he walked into class in D7, in front of about 20 students, Mr Hunt said to him: "You have to take your hat off indoors." 1342 Joel's evidence continued: Yes. And how did you feel when he said that?---Humiliated. Degraded. I was in front of 20 students, and it was reinforced that the students could be anti-Semitic having a teacher being anti-Semitic. It gave me the sense there was no hope. That, at that point, it was the students and the teachers. I just couldn't do anything. What, if anything, did you say to Mr Hunt?---I told Mr Hunt that it wasn't okay to say that. What did he say?---He said it was just a joke. That - - - How did you feel then?---Pretty bad. It just - he was just justifying being anti-Semitic. To your knowledge, was this all audible to students?---It was very audible. Other - other students heard. I know because they came up to me afterwards and asked about it. Who, if anyone, did you tell about it?---I told Lana. Lana Goldstone. Yes. What, if any, help did you get from this?---Nothing. 1343 The applicants contended in final submissions that there was a concession by Ms Goldstone that it was "likely" Joel reported this incident to her. Having reviewed the transcript and considered Ms Goldstone's evidence, I do not accept that contention. Ms Goldstone, like several of the other respondent witnesses, was at points in cross-examination badgered. I consider she gratuitously agreed with the cross-examiner, without any genuine appreciation she was making a concession. 1344 Nevertheless, I am persuaded by Joel's evidence that this incident occurred. As I have explained, I found him generally a reliable witness as to specific incidents and his memories of what he experienced at BSC. Mr Hunt was not called to give evidence. His absence led the applicants to make submissions based on Jones v Dunkel, and I have dealt with those submissions above. 1345 Although this incident is pleaded as a separate contravention of the RDA, I do not consider the applicants have established this incident as a separate contravention. From a relatively minor and transient incident such as this, there could be no impairment of Joel's human rights for the purpose of s 9 of the RDA. However, I am satisfied the exchange as Joel described it is yet another example of the poor and inappropriate approach taken by BSC teaching staff to Jewish students, and to the religious clothing they wore as part of their Jewish identity.

Conclusions on Joel's causes of action 1346 As I have explained, I do not accept the applicants' submissions about the specific incidents relied on by Joel. They have not made out any cause of action in relation to those. They were all dealt with by the teachers and leadership cohort at BSC in accordance with their best judgment at the time, and within the discretion afforded to them by the school's polices. 1347 However, I do accept the allegations by Joel about the way he was treated by other students on numerous occasions outside these specific ones, and the failure of Mr Minack, the BSC leadership cohort and BSC teachers to do anything at a more systemic level to address the bullying and harassment, or to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. These were omissions and therefore conduct within the terms of s 9 of the RDA.

RDA s 9 1348 The conduct by Mr Minack as principal of BSC was an "act" for the purpose of s 9 of the RDA. The act was a wholesale failure and omission, between 2016 and 2020 until Joel left BSC, to address the frequent antisemitic bullying and harassment experienced by Joel, in failing to enforce BSC policies on racial harassment, and to take action at a more systemic and coordinated level to address what was, I find, a high level of antisemitic bullying and harassment often by a relatively small group of students, but which, because it was unchecked, spread to other students. Mr Minack failed, and his leadership cohort and BSC teachers failed, to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. They failed to educate students at all about Jewish religious clothing and its significance, as part of helping students to understand why interfering with such clothing was a serious violation of a Jewish student's integrity. I accept there may have been isolated attempts by individual teachers between 2016 and 2020 to address this student behaviour, but their attempts were neither supported nor encouraged by Mr Minack and his leadership cohort. 1349 The failures led to distinctions in how Joel was treated, differently to other students. He was less protected from serious bullying and harassment. This was not otherwise, on the evidence, a lawless or chaotic school where policies were not enforced, and discipline was absent or lacking. This was, on the evidence, a school that enforced its uniform policies, disciplined students for gender-based harassment, insults or taunts (including Joel), regularly suspended students, where the principal and others were capable of addressing, and did on occasions address, school-wide or year level assemblies about various behavioural issues. It was a school which promoted LGBTQIA+ rights, celebrated diversity in those communities and sought to build self-esteem in students still working through their own sexual and gender identity issues. There are dozens and dozens of Chronicle entries in evidence where teachers have disciplined students for talking back to them, for their language, for their attitude, for not completing work and so forth. This was a school that demonstrated a capacity to enforce rules and attempt to modify student behaviour. 1350 However, Mr Minack simply did not take the same approach to Jewish students, or their complaints. He did not take their complaints seriously. He did not take antisemitic student behaviour as seriously as he did other unacceptable behaviour. He rarely said anything at a year level or school-wide level about this behaviour, and instead made ham-fisted attempts to use examples of Jewish suffering to make other points. He was wholly insensitive to Jewish identity, and he provided no leadership to his leadership cohort, and to BSC staff, so that they also exhibited a higher level of tolerance of antisemitic student conduct than other conduct. It was, I find, brushed off by staff on yard duty, or ignored. It was brushed off, or ignored in class. Jewish students were expected to put up with the behaviour, and indeed when students like Joel sought to insist the behaviour be addressed, it was those students who tended to face disciplinary measures for the way their behaviour got out of hand. 1351 The failures and omissions by Mr Minack, by his leadership cohort and by BSC staff involved distinctions against Jewish students. As I have explained, other unacceptable student behaviour was addressed systematically, and was not tolerated in the way antisemitic student behaviour was tolerated. 1352 Those distinctions impaired Joel's human right to education. His evidence was clear about how much he feared going to school, how uncomfortable he was there, and how he found learning even more difficult, in circumstances where he already had learning difficulties. He was humiliated in front of his peers, which I find also impaired his right to education, and his right to his Jewish identity, because, as with the other applicants, he became conflicted about demonstrating and being proud of his Jewish identity. Finally, especially in relation to students' interference with his kippah, his right to security of person and protection was impaired.

RDA s 18C 1353 None of the alleged conduct of the respondents contravened s 18C of the RDA. The applicants' allegations in this respect are misconceived.

Negligence 1354 As with Liam, I find Joel has made out a case in negligence. Mr Minack, and through him the BSC leadership cohort and other BSC staff, did not take reasonable care to avoid Joel suffering physical and psychiatric injury from antisemitic bullying and harassment. They did not take reasonable steps to ensure Joel was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct, including and especially systemic school-wide steps. I refer to my reasoning about Liam, insofar as it also applies to Joel. 1355 The reaction to Joel's treatment, and to his complaints, was plainly inadequate and well below what reasonable school leadership would have done when faced with the kind of treatment Joel was reporting, especially since the other applicants (and other Jewish students) were also reporting it. The frequency and intensity of the antisemitism, and its visible presence through the swastika graffiti, was so significant that no reasonable principal would have let the situation continue in the way Mr Minack did. 1356 Ms Podbury's own evidence supports my views. When she was being taken through the Chronicle records for the students who engaged in antisemitic behaviour, there was this exchange: HER HONOUR: Okay. You see that document is back up, Ms Podbury. That's the entry by Mr Minack about what happened to Damon [redacted]. You've given evidence that, when you were principal, you did not consider suspensions a useful form of discipline in at least some circumstances. Have I understood that correctly?---Yes. Looking at those comments and knowing as Mr Butt has explained to you that this was not the first time, this was a course of conduct that was being repeated, what - as principal, what consequence would you expect those boys to be given?---If all other matters had been exhausted such as education programs and so on, then a suspension was appropriate if nothing had been learned because what more can you do? And it's a challenge because I didn't like suspensions but, in the end, wasting kids' time, suspensions. In the end, if that's what it got down to, it got down to that. 1357 The point is not whether suspensions would with any certainty have stopped or reduced the behaviour. However, there was a likelihood that more regular and serious disciplinary measures could have reduced the levels of antisemitic behaviour, and perhaps also its intensity. That is, after all, the theory behind suspending students - that a serious consequence like that is capable of encouraging students to modify the behaviour for which they were suspended. Clearly from Ms Podbury's evidence reasonable minds at leadership level might differ in any assessment of their overall effectiveness. However, even with that caveat, Ms Podbury recognised suspensions were a necessary disciplinary step to take where circumstances required. The problem at BSC under Mr Minack is that antisemitic bullying was not treated as seriously as other forms of student misbehaviour, and indeed not as seriously as relatively mild inappropriate behaviour, like talking back to teachers. 1358 Joel suffered less physical injury than Liam, and his evidence did not describe the same level of physical injury as Liam's did. He was pushed and shoved, and some of the other BSC student witnesses described this as well. He suffered transient physical injuries from behaviour such as having his hair pulled when his kippah was ripped off. The interferences with his kippah were personal assaults. He may not be able to recover damages because of the terms of the Wrongs Act, but he has proven the elements of the tort. I accept that it was this antisemitic bullying and harassment, including the physical aspects of it, which caused him injury, both transient but no doubt painful physical injury, as well as the psychiatric injury Dr Tagkalidis diagnosed. Dr Tagkalidis diagnosed Joel with adjustment disorder with anxious mood, although it had substantially resolved by the time of trial.

Matt - pleadings 1359 The applicants allege that Matt was subject to racist insults and taunts throughout his time at BSC. The applicants also plead specific incidents of bullying.

Incident in which Slater called Matt a "fucking Jew" (year 7 - 2017) 1360 The applicants allege that, in late 2017 or early 2018, a student named Slater approached Matt in the grounds of BSC during a school day, while Matt was talking to another student, Ariel Katz. They say that Slater looked at Matt, said "[f]ucking Jew", and spat in his direction. The applicants allege this was reported to Mr Minack, but that no action was taken. During the course of trial, the applicants alleged that Mr Minack doctored or interfered with CCTV footage of the event, and that he removed, or caused to be removed, a camera that was in place and which would have recorded the event.

Incidents with Lucas (year 7 - 2017) 1361 The applicants allege there were several incidents in which another student, Lucas, made a 'Heil Hitler' salute at Matt in 2017 and repeated highly offensive taunts to him, in substance taunting 'what's the difference between Santa and Jewish people … one goes up the chimney and the other goes down the chimney'. The applicants alleged Matt complained to either Mr Hutchins or Ms Hower, his year level coordinators. The evidence suggested, although it was not pleaded, that there may have been direct reports to Mr Minack, and Mr Mangold may also have been aware of the incidents.

Other incidents in 2017 relating to Heil Hitler salutes (year 7 - 2017) 1362 The applicants allege that numerous other students made racist 'jokes' or taunts to Matt in 2017. This includes an allegation that a student named Brent made 'Heil Hitler' comments and/or salutes, and that "[w]hen these anti-Semitic jokes or insults were made to Matt, he usually complained about it to his year level coordinators, at least ten occasions for different incidents in 2017". 1363 Other than the allegations I have set out at [936] above, the pleadings do not specify which BSC staff, if any, are alleged to have witnessed these incidents in 2017, or to have received reports by Matt about these incidents.

Incidents of racial abuse by other students (year 8 - 2018) 1364 The applicants allege that Matt was subjected to sustained racially-motivated abuse during year 8 in 2018, by students including Brent and Oliver. There was also an alleged incident involving a dead bird, with a coin placed next to it, where a female student is alleged to have said "[w]hen a Jew comes past, they'll pick up the coin". The applicants allege that Matt reported these events to his coordinators, Dr Riha or Mr Nash, and on one occasion to Mr Minack.

Incident in which student threw paper with swastikas at Matt (year 9 - 2019) 1365 The applicants allege that in 2019 a student, Elias, twice threw a piece of paper with a swastika on it at Matt. They allege that Matt reported this once to Mr Lynch-Wells and once to Ms Trinh.

Other reports of antisemitic conduct by Matt (year 9 - 2019) 1366 The applicants allege that Matt made numerous other complaints regarding antisemitic conduct in 2019 to Ms Hart, Ms Trinh and Ms Panopio, but that no action was taken in response. The conduct is alleged to have been in part generated through the teaching of Maus, and involved Nazi salutes and students saying "Heil Hitler", taunts about Jewish people, taunts such as "Hitler missed a few", and comments to Matt by other students such as Oliver saying "get in my oven".

Allegation that a student made Heil Hitler salutes to Matt, and that Mr Nash did not take appropriate action (year 10 - 2020) 1367 During his evidence, Matt alleged that that during 2020 Mr Nash witnessed a student, Brent, making 'Heil Hitlers' at Matt. Matt alleged that Mr Nash responded only by saying "that's not on". This incident was not expressly pleaded but the respondents have dealt with it.

Response to incident between Matt and Oliver (year 10 - 2020) 1368 The applicants allege that in 2020 Oliver drew a swastika on his own hand and made Nazi salutes at Matt, in the school grounds at lunch time. The applicants allege Matt grabbed Oliver's arm, or alternatively "took him in a chicken wing", and led Oliver to the Senior School office, upon which the vice principal Mr Gargano came to see the students. The applicants say that Matt had a follow-up meeting in about early to mid-March 2020 with Ms Sentry and Ms Drechsler regarding the incident, in addition to Matt discussing the incident with Mr Minack. The applicants allege with regard to this incident that: (a) Matt was suspended for one day, without any staff asking Matt's account of what happened in the incident; (b) Matt received a much harsher punishment than Oliver, who was given two early morning detentions; (c) Ms Drechsler and Ms Sentry did not adequately follow up on the complaints made by Matt relating to the incident; and (d) Mr Minack failed to adequately follow up complaints by Matt following a meeting relating to the incident, and that Mr Minack "turned around and walked away from Matt" mid-conversation with Matt.

Matt's Magen David necklace 1369 Matt alleges that, in 2019: Mr Michael Lyons stopped Matt walking into class in front of other students and told him to remove his Jewish necklace, which had a Star of David on it (a Magen David), before entering, as it was against school uniform policy to wear jewellery. Several other students in the class were wearing chains with crosses on them, and Matt refused to remove his Magen David necklace. … Matt reported this necklace incident straight after the class to Thi Trinh and the Bronwyn Hart. Nothing was done about the incident. 1370 In relation to all these incidents involving Matt, there is the same pleading at [366] of the statement of claim in respect of s 9 of the RDA. I have set out the elements of that pleading in the section on Liam, above. There is no s 18C allegation. 1371 The negligence allegations in relation to Matt and these incidents are put in the following way (at [389]): It was foreseeable that if the Respondents did not take precautions that Matt might suffer a risk of harm, which was not insignificant, namely, being subjected to consistent racist assaults and batteries from other students at the School which caused him loss and damage including psychological injury and harm. 1372 That is expanded on through the rest of [389], and the breach of the duty of care is said (at [390]) to lie in a failure to protect and discipline, including taking appropriate steps to prevent "normalised anti-Semitism", an inadequate complaints process, a failure to discipline the offending students (adequately or at all) and a failure to educate the student body as a whole that antisemitic conduct would not be tolerated. In the particulars to [390] there are other generalised allegations, which in substance do no more than repeat some of the common allegations. 1373 The damage allegedly suffered by Matt, including (like Joel, Liam and Zack) prematurely leaving BSC is set out at [392]-[393], with particulars provided separately alleging economic and non-economic loss.

Matt - resolution 1374 In commencing my findings on Matt's individual complaints, I consider it is appropriate to extract his evidence about his first few weeks at BSC, and the contrast with his primary school. Matt is here describing himself as a 12 year old boy: Okay. Now, before you went to Brighton, where did you do primary school?---Gardenvale Primary School. What was Gardenvale like?---It was - it was really good. Close to home. I used to walk there. Nice students, nice teachers. How many years were you at Gardenvale?---From prep to year 6. Did you ever have any anti-Semitic taunts to you?---No. Any physical issues?---No. All right. So let's go to Brighton, year 7, which was 2017; am I right?---Yes. All right. So when you got to Brighton in 2017, what happened?---About a month into the year, I was - I was met with Nazi salutes and swastikas and Heil Hitlers yelled in the locker bays. I could explain, if I can get a map, where they were yelled at the time. 1375 I accept that evidence. Matt was not challenged on his characterisation of his primary school years. While the respondents did challenge many aspects of his accounts of what he experienced and saw and heard at BSC, they did not suggest his accounts were entirely fabricated. Indeed, the respondents' responsive case accepted many of the specific incidents Matt recounted. They then said the incidents were adequately dealt with. On any view, even taking the incidents the respondents accept, Matt's experience at BSC was distressing, at times humiliating and not in any sense the kind of high school experience that any student should have to endure. While, as I explain elsewhere, there were times when Matt's evidence became somewhat fixed and exaggerated, on his core complaints about antisemitic conduct from students, I accept his narrative. I have not accepted most of his allegations against the teacher respondents. In my opinion, this is where Matt's distress and heightened sense of being victimised have led him to either interpret conversations mistakenly, to misunderstand situations, or to inaccurately recollect what occurred. 1376 Matt described in his evidence how the level of antisemitism and the failure of Mr Minack and BSC staff to take appropriate action led to a profound breakdown of his school experience, and of his behaviour: I became aggressive. My learning was - my - my learning was struggling. Every corner I went there was swastikas, there was Heil Hitlers, there was Nazi salutes. When you say you got aggressive, what do you mean? What's going on with that? What do you mean by that?---I mean I'm reporting these incidences again and again. I believe in year 8 I reported Oliver at least 10 times. And nothing - and nothing happened. I reported him the year before, and then the second time he said, "Get in my oven," to me I snapped at him, because I felt like I didn't have another option. I didn't have anywhere to go. I - there was no one else I could tell. I had been to Mr Minack for - for anti-Semitism. I had been to Ms Angelidis for anti-Semitism, my coordinators from year 7 to 9, and not one of them had helped with the issue. 1377 Matt was cross-examined along these lines as well: Now, we're still in 2019. Throughout this year, would you agree that your behaviour in class was regularly disruptive?---I mean, I was being attacked from all angles from teachers, from students, for being Jewish. I was losing my mind. I had nowhere to turn. I - I felt like I was in a corner and couldn't go anywhere. I was aggressive. I was on edge all the time. Including in class?---Yes, yes, because anti-Semitism was happening in front of teachers and nothing was being done. There were swastikas on tables, so I'm not sure, like, what do you mean by "regularly", but - - - 1378 The theme of this cross-examination, which occurred as well with Joel, was a matter I addressed directly with senior counsel. The following exchange occurred, in the absence of Matt: HER HONOUR: Mr Young, it's possible to apprehend where this might be going, but I will ask you to articulate it now so that - because I have some concerns about it. What's the relevance of this? What's the case the respondents will put about this at the end of the day? MR YOUNG: That these are examples of there being clear opportunity to report anti-Semitic conduct to the teachers, and none was reported. HER HONOUR: Well, perhaps we need to just stop focusing on the report issue for a moment. It seems to me that what you're suggesting through this cross-examination - this is what I really want to understand - is that Matt was a generally disruptive student and that his linking of that disruptive behaviour with him feeling under siege from anti-Semitic behaviour is false, and that he had - he wasn't experiencing that kind of behaviour; that doesn't explain his disruptive behaviour and there must have been other reasons; it wasn't that. Are you going to be making those kinds of submissions? MR YOUNG: No, your Honour, I can't. In light of the case that we put about - well, the way in which we put the case to deal with reporting and awareness and the like, I can't go that far. HER HONOUR: All right. Because Matt has very clearly linked - - - MR YOUNG: He has. HER HONOUR: - - - in his evidence his disruptive behaviour with how he was feeling about anti-Semitism; I think also fairly what was happening in his family at the time. Now, if the respondents are going to say that is not true and, "There's no link between your experience of anti-Semitism and your disruptive behaviour," you will have to put that to him. MR YOUNG: I - yes. HER HONOUR: But that is not the respondents' case. MR YOUNG: That's not what I'm putting, your Honour. This is an opportunity to report not taken. 1379 I explain elsewhere, in the swastika section, why I reject this aspect of the respondents' contentions. I find that Mr Minack, the BSC leadership team and the BSC staff who interacted with the applicants, and with the other student witnesses, were all well aware of what was being said about the level of antisemitic conduct at BSC, and about matters such as antisemitic graffiti. I have found they elected not take these matters as seriously as they should have. They elected to leave them until specific incidents arose. The staff were not encouraged to be proactive, and Mr Minack and his leadership team were not proactive. Reports fell on deaf ears, perhaps because of the way some of the students reporting the behaviour were perceived. As I explain elsewhere, Matt was clearly perceived as a troublemaker. Guy was associated with Matt and tarred to some extent with the same brush, as was Ariel. Joel was sometimes perceived as a troublemaker, or an instigator, as well. Their mother was perceived in that way. Liam was perceived, I find, as a boy who did not 'fit in', and had personal problems, and he was not taken seriously. Zack was, I find, the only one of the applicants who was not poorly perceived by Mr Minack, the BSC leadership cohort or BSC staff. He and his family were, however, not taken seriously about the level of potential harm Zack apprehended he was exposed to, an apprehension which tragically turned out to be well-founded. 1380 I see the evidence about Matt's behaviour in the following way. My impression of Matt, both from his evidence in the witness box and the whole of the documentary evidence, as well as what some of the other witnesses said about him, is that he is a very bright young man, who feels passionately about his Jewish identity, and his family history. He is a young man with some attachment to the notion of justice, as he sees it, and is motivated to pursue wrongs. I see this as likely to be part of his character - he is an activist. That was also clear in the courtroom, in the animated way he listened and reacted to the evidence, in the way he rushed forward to give his lawyers instructions. He was passionately involved in the proceeding, enmeshed in this case, and pressed to make sure the Court was understanding his evidence, often by looking intently at me. I observed similar but less intense behaviour from Joel. Despite being very keyed up when he gave his evidence, Matt worked hard from my observation to remain clear and in control. 1381 By the time he gave evidence, Matt was a more mature young man, I find, than the teenager who left BSC in 2020, and obviously more mature than the child who entered BSC in 2017. During his early years at BSC, he and Joel were also having to deal with a tragic and distressing health situation in their family. My impression from their evidence was that they were both fiercely protective of their mother. Matt's character, I find, is of a kind that made him susceptible to outbursts at school. He was not the kind of young man to hold much back. Those are attributes capable of being channelled for good, but at BSC that did not occur. Matt became disruptive and challenging to manage. While the constellation of things happening in his young life at the time might have meant he would have exhibited such behaviour anyway, I have no hesitation in finding that his behaviour was exacerbated and influenced by the failure of Mr Minack, the BSC leadership cohort and BSC staff to deal adequately with the ongoing antisemitism that Matt, the other applicants and other Jewish BSC students were experiencing, and which was causing them to become so frustrated and angry. That is hardly an unusual reaction in teenage boys.

Findings on specific incidents alleged by Matt - 2017-2020 1382 Matt's specific individual allegations begin in the first half of his year 7 at BSC, with the Slater incident and the CCTV footage incident, about which I make findings below. I have set out Matt's specific factual allegations above. 1383 As with Joel's allegations, I accept these incidents occurred as Matt and other witnesses described them, in the sense of having an antisemitic element to them. However, I also accept the respondents' evidence that in some instances, Matt's behaviour also called for a disciplinary response. As with Joel, Slater was a regular perpetrator of antisemitic behaviour against Matt. The two students appear to have repeatedly clashed. 1384 As I have explained in my findings about Joel, aside from seeking to prove the incidents occurred, the focus of the applicants' evidence about these specific incidents was that there were differential responses by BSC staff, the leadership cohort and Mr Minack, and that those differential responses were based on Matt being Jewish. In their closing written submissions from [188]-[209], the respondents address these specific incidents. As they contended with Joel's allegations, the respondents contend that Matt has not proven any differential treatment based on race, they explain some of the factual nuances and disciplinary decisions that needed to be made by the BSC staff involved and they emphasise, correctly in my opinion, that there were contemporaneous judgments made by various staff members about what the appropriate disciplinary response was. I accept the respondents' submissions on these matters and the factual basis in the evidence for them. In relation to three specific incidents, I make separate findings not because I accept the applicants' contentions about these contravening the RDA or being negligent, but rather because of what I find the evidence about these incidents discloses about Mr Minack, and his attitude. 1385 While Matt challenges the adequacy and appropriateness of the reaction in specific incidents, I am not persuaded he has proven that for any specific incident the reaction was inadequate or inappropriate, nor has he proven that even if it was, the reaction was based on the fact Matt was Jewish (or the complaint involved antisemitism) and would have been treated differently if it involved a student with a different attribute (such as sexual orientation or gender diverse identity) or a non-Jewish student. As with Joel, I accept Matt felt unfairly treated in each of these incidents, and his mother supported him. However, objectively he has not proven any of the staff reactions were unfair or inadequate or inappropriate, and certainly he has not proven they were differential because he was Jewish. 1386 As with Joel, I have however reached quite different conclusions about Matt's narrative at a more general level about how he was treated by a relatively small group of students between 2017 and 2020, and the reaction of BSC leadership and staff to it. I refer to and repeat my findings at [1312]. 1387 In their written closing submissions, the respondents contended that it "was impossible for the respondents to respond to" the more general narrative by Matt of how he was treated at BSC and therefore "[n]o findings can be made". I reject that submission. The respondents' case was framed around being able to check the narrative given by an applicant or student witness against BSC documentary records. While that can be accepted as a forensic approach, as I have found elsewhere, the absence of a record does not itself establish no incident occurred. There were many occasions in the evidence where respondent witnesses accepted an incident occurred but there was no record of it. The respondents were able to test the applicants' evidence on all the usual reliability bases if they chose to, in order to establish whether the applicants were reliable observers, whether they had a good recollection, whether they had a motive or reason to lie or fabricate, or whether they were exaggerating. There was cross-examination of this kind at various points. How the applicants' evidence was tested was a forensic decision for the respondents to make. It is quite possible to make findings based on the applicants' own evidence, and those findings are, as I have explained, frequently supported by the evidence of many student witnesses. As the applicants' counsel submitted, if the respondents believed there was a counter-factual about the situation in the grounds and yard of BSC, or in the classrooms, it was open to the respondents to call student witnesses, as the applicants had. 1388 It was also open to the respondents to call the alleged student perpetrators. While this may have been difficult, and unpleasant, that course was available. Instead, the respondents chose to emphasise, through oral evidence and BSC records, some of the challenging circumstances of some of the student perpetrators, especially a few of those students frequently referred to in the evidence. The applicants did not seriously challenge this evidence. However, I do not accept, and I am not persuaded, that such evidence assists the respondents in answering the applicants' case. Yes, some of the student perpetrators were known to have disabilities which may have increased the likelihood of them behaving in unacceptable and violent ways towards other students. Yes, some of the student perpetrators may have had very difficult family circumstances which may have increased the likelihood of them behaving in unacceptable and violent ways towards other students. The Chronicle records of some of these student perpetrators were very large indeed. What those records demonstrated was that Mr Minack, his leadership cohort and BSC staff applied the school's behavioural policies and engaged in disciplinary processes with these student perpetrators for all kinds of behaviour. The Chronicle records, and much of the respondents' evidence, demonstrate Mr Minack and BSC staff were capable of taking proactive steps to try to address the behaviours of these students. As I will explain in Zack's case below, sometimes those steps were wholly inadequate and, I find, negligent. But in general, there were reactions to specific incidents, there was support to the student perpetrator and their family, and there were disciplinary consequences for specific incidents. 1389 The difficulty, and where I accept the applicants are correct in how they frame the circumstances over the relevant period, is that these student perpetrators were permitted to engage in frequent antisemitic conduct with little or no firm regulation of that particular kind of behaviour unless, for one reason or another, an incident was escalated. This is where the factual divergence between the parties' cases arises.

The incident with Oliver and its aftermath 1390 There was no evidence that Oliver was one of the student perpetrators who had a disability which might have explained his conflict with other students. 1391 In year 10 (2020), Matt explained that one day at school Oliver had: a Nazi swastika-type flag on his hand - was a swastika with a flag-looking design on his hand … not very big. It was on his thumb, probably three centimetres by three centimetres. And he did a Nazi salute to me … 1392 Matt described how he put Oliver in a "chicken wing" (tying a person's hand behind their back). He said: The reason I did that - wasn't to hurt him. It wasn't to - to - to get back, to say what he did to me. It was so he couldn't rub off the swastika. I took him straight to Kaye Sentry's office, opened the door and said, "You deal with him." And on my way there Nathan Hutchins approached me and told me to let him go, and I said, "No. I'm taking him to the office." I took him to Kaye Sentry's office and said, "Here. You know, you've got evidence now. You've been telling me that you - you can't do anything - can't do anything because you can't see with CCTV. Here's the evidence." … … This happened outside the E block and I dragged him - walked him, sorry - with his - with his arm in a chicken wing from the E block straight up past the E block and then there was like an undercover area where I entered the area where Ms Sentry's office was and I took him straight to her office which is opposite, like, an IT room. 1393 I accept Matt's account of what occurred. He had what I consider to be a highly formed and acute recollection of these events, albeit that on occasions he could exaggerate. In my opinion, when he was in the witness box, he was re-living these events. 1394 The respondents referred to this evidence in their closing written submissions, so I assume they did not challenge its accuracy as to what actually happened, although they may not have accepted Matt's description of how he was feeling at the time. 1395 Matt was suspended for his behaviour towards Oliver. Oliver was not suspended, but received two detentions. Matt's evidence about his reaction was: I know I was suspended for what I did, but he wasn't and, at the time it made me feel terrible. So a student could do something anti-Semitic where had a swastika in his hand, there was no denial of it and Brighton Secondary College suspends the student - the Jewish student who copped anti-Semitism for years. It - yes, I remember over this weekend - I think it was a long weekend - I was angry about this incident the whole weekend. I was frustrated about what they did to me because I'm Jewish. 1396 Matt described meeting with Ms Drechsler and Ms Sentry about this incident, and how he expressed his frustration to them about giving them names of student perpetrators "for years" with nothing being done. 1397 Ms Drechsler explained in this way why Matt had been suspended and Oliver had not: Yes. So we, as a school, felt that, because Matt had physically assaulted another student, that he - - - Sorry. Sorry, Drechsler. "We", who are you referring to there?---We - so Kaye, myself and the principal team. … That because Matt had assaulted a student, that his punishment would be worse or more severe than the other student. But, having said that, because Oliver drew a swastika, that's also not tolerated at school. So he was given a little bit lesser of a consequence than Matt and because it was his first offence that his would be a morning - two morning detentions and that, if he didn't turn up to those, then they - it would automatically go to an external suspension. 1398 Although certainly based on Oliver's Chronicle records no previous antisemitic behaviour by Oliver is recorded, on Matt's account (which I accept) this was far from Oliver's "first offence". For example, another incident from Matt's evidence was in 2019: You were talking about Oliver. It's in year 9. What were the incidents you remember with Oliver?---In - he was in my English class. He would yell Heil Hitlers, do Nazi salutes in class while reading the text Maus. I remember seeing his - his laptop and he had a bicycle that was covered with swastikas all over, Nazi flags. It was like a - like a Nazi memorabilia bicycle. It was really weird but that's what it was and he had that open in class. But the Heil Hitlers were common. I reported it to Ms Trinh at least eight times. Not only in that class but when he said it outside of class and I reported it to Ms Trinh and Ms Hart. I don't remember Ms Hart being there every time but Ms Trinh was there most times. I reported it to her at least eight times. So what happened? When you spoke to her, what did you say? What did she say?---I told - I told her about how he was doing Heil Hitlers in the yard and - and - and saying - and doing Nazi salutes and she said that she - she would investigate it and have a look and - yes. Did you see any consequence? Do you know of any consequence?---I knew of no consequences ever happening to Oliver. Did you see any change in the behaviour?---No. 1399 Matt was challenged on some of the detail of his account, such as whether Oliver was in his English class. Matt remained confident. Matt gave evidence about a large number of incidents with Oliver prior to this one - his evidence, which I accept, was that he reported Oliver about 10 times in year 8. 1400 Returning to the March 2010 incident, while it is somewhat unclear how many days elapsed, at some point in the week or so after this incident, Matt says Mr Minack pulled him out his woodwork class to speak to him. Mr Minack recalls the conversation occurring in his office, but I do not consider it is of any real relevance where the conversation occurred. 1401 This was Matt's account in cross-examination: Yes. He asked you for details, didn't he, about the anti-Semitic conduct directed to you?---Yes. And you didn't give him any, did you?---Well, I said I had been giving details for the past years, which I had been, and I know some of the details got to him and then he turned his back and walked away. It was disgraceful. He - we were mid-conversation and he turned his back and walked away. 1402 Mr Minack did not deny walking away, but he offered an explanation for it. In examination-in-chief, his evidence referred to some diary notes he had on his interaction with Matt: I will just ask if you can read this into the transcript, please?---Sure. Matt Kaplan. Min: I believe you have some concerns about the school's response to ASB - anti-Semitic behaviour. Matt: Absolutely. Min: You know we need names to act. Matt: I know you spoke to assemblies about the school having zero tolerance of ASB, zero. That means none. Get name? Get a slap on the wrist. Very heated. Min: You['re entitled to] your view, but I'm here to have a polite conversation about your concerns. Matt: I've been reporting ASB since year 7 and the school has done nothing, so I'm not going to be polite. Min: Okay. Min walks off. Beyond what's recorded in the note, what's your recollection of this interaction with Mr Kaplan?---He was very, very angry and very disrespectful. It was in my office when it occurred. And I walked out of my office. Matt left, and I came back into my office and took these notes straight into my diary immediately after the interaction. In your note you say - you record Matt referring to reports since year 7. What knowledge do you have of reports Matt made about anti-Semitic behaviour over that period of time?---Beyond the ones that we've dealt with here, I don't have any other information about them. The note records you saying, "You know we need names to act"?---Yes. Why? Why does the school need names to act?--- … … Because we need to identify the perpetrators and take steps against the perpetrators. It's - and you might recollect this from your own days at school - when the teacher does blanket punishments when there's one or two children doing the wrong thing in class, it's an incredibly ineffective way of doing things. So we were always interested in identifying the individuals and addressing their behaviour directly. And this context here obviously concerns anti-Semitic behaviour?---Yes. 1403 I found Mr Minack's evidence to be exaggerated. I note the description of Matt being "very, very angry and very disrespectful". He repeated this kind of description in cross-examination - "incredibly disrespectful and rude". Mr Minack's contemporaneous note does not reveal that level of behaviour from Matt. Indeed, it corroborates Matt's entire narrative of the approach he had taken to reporting antisemitic student behaviour since he started at BSC. The contemporaneous note reveals a frustrated young man, but I found Mr Minack's exaggeration part of his hostility towards Matt, hostility I consider existed throughout Matt's time at the school. At least some of that hostility was, in my opinion, because Matt was Jewish, and insistent upon his Jewish identity, and insistent upon Mr Minack and BSC trying to stamp out antisemitism. 1404 I also reject Mr Minack's version of this incident that Matt "came and met me and … shared some concerns with me". I accept Mr Minack's recollection may simply be faulty. However, his contemporaneous note, combined with Matt's account, make it clear Mr Minack went to speak to Matt, not vice versa. Whether Mr Minack pulled Matt out of class or not, I am satisfied the conversation occurred because Mr Minack sought Matt out and wanted to speak to him about what Matt had said to Ms Drechsler. This was in early 2020, after the March 2019 speech and at a time, I find, where Mr Minack was much more aware that there was criticism about the way he was leading the school in relation to its approach to antisemitic student behaviour, and there was criticism of him as being antisemitic himself. 1405 What does this incident with Oliver reveal? In my opinion, a number of matters. First, it does reveal some differential treatment of the students involved in an incident, but not unjustified in the sense that Ms Drechsler, I accept, may have genuinely considered Oliver had not engaged in this kind of antisemitic behaviour before. There is also an email in evidence from Oliver's mother to Ms Drechsler which provides a different context for his behaviour. Therefore, as I have found elsewhere, the disciplinary response at the time, with the information available, does not disclose any racially-based features, and was not a breach of any duty of care. These were teachers dealing with conflict between students, where each student had their own personal circumstances and challenges, and the teachers attempted to deal with them as they considered appropriate. 1406 However, and second, the incident reveals that the teachers were making their decisions on incomplete information. I accept Matt's evidence that Oliver had been engaging in antisemitic behaviour for some time. The other Chronicle records for Oliver disclose a student quite capable of learning from educative discipline, and a student who was, with appropriate encouragement and understanding about the effects of his behaviour, quite capable of behaving in an acceptable way. That was also the thrust of his mother's email. However, due to Mr Minack's own attitude and lack of leadership, there was no proactive and systematic behavioural approach at BSC to antisemitic student conduct, in contrast to the efforts taken in relation to homophobic student behaviour. 1407 Finally, Mr Minack's intervention after the incident is telling, and consistent with the view I have formed about his overall leadership at BSC on matters connected with antisemitism. I find that, by early 2020, he realised he had to follow up on any allegations about antisemitism, and this was his attempt to do so. However, he considered his disciplinary and educative approach was under challenge by Matt (as it was) and, instead of dealing with the situation by engaging with Matt and trying to understand how frequently Matt was experiencing antisemitism and what his frustrations were, Mr Minack walked off. This is consistent with what I find on the evidence to be his approach generally to Jewish students' complaints, and the complaints of their families; he chose not to deal with them honestly and squarely if he could avoid it.

The 2017 incident with Slater and the CCTV footage 1408 Given the prominence of this incident in Matt's individual allegations, and the development of it throughout the trial, it is necessary to address this allegation separately. The allegations on behalf of Matt around this incident escalated as the trial continued and became quite conspiratorial, extending eventually to an allegation, as the respondents described it in their written submissions, that Mr Minack "doctored footage of the event and that he removed a camera that was previously in place". I agree with the respondents' submissions that these allegations should be rejected. No probative basis was established to even find that there had at some point been a camera in the location Matt alleged, let alone that it was deliberately moved, and even further that Mr Minack was responsible for this in an attempt to conceal CCTV footage that would 'prove' Slater had called Matt a "[f]ucking Jew". I am satisfied that it is more likely than not that Slater did verbally abuse Matt in that way. That is because I have generally found Matt to be a reliable witness in terms of the nature and extent of antisemitic behaviour he experienced from other BSC students. Whether or not Ariel heard that taunt, or whether or not he was comfortable telling Mr Minack he had (which is a distinct matter) does not affect my view that Matt was a reliable witness about Slater's behaviour towards him. Slater was one of the main perpetrators of antisemitic behaviour towards Matt, and I find Matt was acutely conscious of what he experienced from Slater, and likely to recall it. 1409 Nevertheless, in the context of what was a long and emotionally heightened trial for many concerned, including at times counsel and their instructors, I find this event developed something of a life of its own, well beyond the objective evidence. The applicants' counsel did not exercise much control over the course this allegation took, which led in my opinion to it assuming far too much prominence.

Factual findings on Matt's less specific allegations 1410 I have already extracted in these reasons examples of Matt's accounts of the antisemitic behaviour he experienced. I accept his evidence that the behaviour was constant, and frequent. I accept his evidence that it came primarily from a particular group of mostly male students, but that it spread to larger groups of students at times, such as when Maus was being taught. I accept that he complained to teachers and that generally there was no or no adequate response to his complaints. I accept that, after the incident with Oliver that I have described above, Matt finally could take the behaviour no longer and left BSC. He identified antisemitism on his exit form as the reason he left. Mr Minack was asked about this and sought to downplay its significance. I reject that downplaying. Matt's identification in 2020 when he left the school of antisemitism being the reason he left is consistent with the view I have taken of the evidence of all the applicants, and many of the student witnesses. It was, I find, the true reason Matt left BSC. 1411 In light of my broader findings throughout these reasons, and taking into account the evidence of all the applicants, I set out here a small sample of other incidents from Matt's account. 1412 From 2017: So next to the number 17 was my P9 - was my year 7 home room, which is P9. So we had all of our English, maths and humanities classes there. Science was in the E block because they were the science building. And because, at that time, the north corridor was getting ready for demolition, they put our lockers inside P9. So there was Heil Hitlers yelled in there. And also, that rectangle in between P8 and P9: throughout there was locker bays as well, and there was a lot of Nazi salutes and Heil Hitlers yelled in there, and there was CCTV footage inside there that you could see it being done. 1413 Matt identified Brent as one of the main perpetrators. He explained that prior to starting at BSC and having this kind of experience, he had never seen a Nazi salute before. Matt was 12 or 13 years old at this point. 1414 In 2018: So at the front and back of this rectangle there was - the P block, sorry, in that rectangle I keep talking about. It was a glass wall with a glass door in the middle. And pigeons would sometimes get in, and they would fly, hit the glass. And sometimes they would get out, and this pigeon died. And so a student put the pigeon outside L4, which was a garden bed. There was garden beds on both sides of L4 and the P block. And - and put it in there, and then a student put a coin in its wing. And we were all standing around there to see if the bird was alive, and a student, which is Timur [redacted]'s older sister - I don't know her first name - said, "Just wait, and a Jew will come past and pick up the coin." And I turned from there, walked maybe two metres into Lindsay Nash's office and told him exactly what happened. And he told me that - to leave it with him and to go back out to lunch. What did you understand she meant by when a Jew comes past they will pick up the coin? What did you understand that to mean?---I understood it to mean - like, relating to the stereotype that Jews are money hungry and control money. 1415 Matt's evidence about this incident was, I found, particularly vivid. It clearly disturbed him. Mr Nash did not recall this incident, which, as with much of the evidence from teachers about specific incidents, is hardly surprising and does not affect my persuasion that it occurred. 1416 In 2019: Do you remember something - anything in year 9?---He [a student called "Joseph"] posted on his Instagram a - a photo with - it had a, like a white blank wall like this one and four arms. Just arms photoshopped coming out of the wall doing Nazi salutes. There is a photo of this. Did you tell a teacher?---Yes. Yes. I reported it to Ms Trinh. What did she do, if anything?---She said, "I will investigate it." Okay. And who's Elias [redacted]?---Elias was a student in my year level. He was in my math class. He threw - - - Which year? Which year are we talking?---Sorry. Year 9. Yes?---And he used to throw a piece of paper - he did this multiple times - at me in my math class, just - when he threw it at me, it looked like a blank piece of paper, and then I would open it and it would be a swastika - a - a - a big swastika in the centre of the page. How big?---100 - 100 millimetres by 100 millimetres. How much of the page was taken up?---It was dead centre in the page. Okay?---It was a blank piece of paper everywhere else except dead centre was a swastika. How was it drawn?---It was drawn with pencil, but he had gone over it a few times to make it bold. 1417 In 2020: Okay. So let's move to year 10. What, if any, anti-Semitic conduct did you receive in year 10?---The one I just mentioned about Zac [redacted]. He said to me, "Where do Jews sit in the car? They sit in an ashtray." Where did he say that to you?---Out front - I can explain exactly where. Try to explain first?---Yes. It was just - there was a little ramp on the right-hand side of the P block, and it was said around there. How close were you with Zac?---We were, like, good acquaintances. You know, we - we didn't hang out outside of school, but we talked during school. How did you find that comment?---Disgraceful. It was - he said it - he said it like I wasn't - like it wasn't a big deal, you know. It was just another - another, you know, another joke. And who's James? Do you remember a James in year 10?---Yes. I - I asked James for 50 cents. In the - in the very similar area but on the other side and he said, "Fuck off you Jew" so I went to the library and sat down and the first thing I saw when I sat down was a swastika on the table. All right. And how did you feel about that?---It just reminded me that I couldn't go anywhere in the school without seeing something anti-Semitic or - or being said something anti-Semitic. It - it made me feel angry and - and - and hopeless. 1418 The following evidence, which I found honest and persuasive, demonstrates how frustrated Matt was with the lack of action from Mr Minack, the leadership cohort and BSC staff: What about Oliver you mentioned. So what particular incidents did you have with Oliver in year 9?---He - he made a couple jokes telling me to get in his oven. The first one I reported to Thi Trinh and she wrote it down. She had a - she had an A4 notebook, like a yellow front with the - the metal, like, spiral down the side and she put it in there - wrote it down in there. And - and I got the same response, "Okay. I will deal with it. I will investigate it. Go out to lunch." And then the second time he said it to me I snapped. I was in - I was in - at this point I was - I was so scared I became - I became aggressive. My learning was - my - my learning was struggling. Every corner I went there was swastikas, there was Heil Hitlers, there was Nazi salutes. When you say you got aggressive, what do you mean? What's going on with that? What do you mean by that?---I mean I'm reporting these incidences again and again. I believe in year 8 I reported Oliver at least 10 times. And nothing - and nothing happened. I reported him the year before, and then the second time he said, "Get in my oven," to me I snapped at him, because I felt like I didn't have another option. I didn't have anywhere to go. I - there was no one else I could tell. I had been to Mr Minack for - for anti-Semitism. I had been to Ms Angelidis for anti-Semitism, my coordinators from year 7 to 9, and not one of them had helped with the issue. 1419 Matt also explained the effect this behaviour, and the lack of action from Mr Minack and BSC staff, had on his learning: It was hard to learn. I was frustrated. I was angry. Report things and nothing happened. I - I was hopeless. I was in a corner. I couldn't go anywhere. I couldn't - I couldn't get help. I had reported things to Mr Minack previously and - and nothing happened. Incidents kept occurring and I was - I was struggling to learn. It made it very difficult to learn. I never wanted to do homework. As soon as - as soon as I left the school ground, I wanted to think about school the least - least amount possible.

The Magen David incident with Mr Lyons 1420 The respondents submitted, with references to the evidence: The second allegation concerns an event where Mr Lyons requested that Matt either hide his Magen David necklace or remove it. Mr Lyons' request was based on the BSC Uniform Policy which did not allow students to wear visible jewellery other than studs in their ears. Matt's evidence omitted the fact he was given an option. Notably, Matt's mother Janet referred to the option, while Guy suggested (contrary to Matt's evidence) that the necklace was confiscated. While Matt claimed that Mr Lyons ignored other students in the class who were wearing other religious necklaces, Mr Lyons could not recall seeing other students with those necklaces. The request to hide or remove Matt's necklace may be considered a distinction or restriction, but it was done in accordance with a facially neutral policy which Mr Lyons sought to enforce. Further, the request to do so is unlikely to offend an ordinary, reasonable Jewish student in the class who would have understood the uniform policy. (Footnotes omitted.) 1421 I accept this submission. I found Mr Lyons a genuine and persuasive witness. He was enforcing a facially neutral uniform policy. Again, Matt's perceptions of this incident were unreliable, because his sensitivities were too heightened, and he felt under siege.

Conclusions on Matt's causes of action 1422 Again, I do not accept the applicants' submissions about the specific incidents relied on by Matt. They have not made out any cause of action in relation to those, for the reasons I have explained above for Joel and Liam. 1423 However, I do accept the allegations by Matt about the way he was regularly treated by other BSC students throughout his time at BSC, and the regular complaints he made about that treatment. I accept his evidence about the failure of Mr Minack, the BSC leadership cohort and BSC teachers to do anything at a more systemic level to address the bullying and harassment, or to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. These were omissions and therefore conduct within the terms of s 9 of the RDA.

RDA s 9 1424 The conduct by Mr Minack as principal of BSC was an "act" for the purpose of s 9 of the RDA. The act was a wholesale failure and omission, between 2017 and 2020 when Matt left BSC, to address the frequent antisemitic bullying and harassment he experienced. There was a failure to enforce BSC policies on racial harassment, a failure to take action at a more systemic and coordinated level to address what was, I find, a high level of antisemitic bullying and harassment often by a relatively small group of students, but which because it was unchecked spread to other students. Mr Minack failed, and his leadership cohort and BSC teachers failed, to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. I accept there may have been isolated attempts by individual teachers between 2017 - 2020 to address this student behaviour, but their attempts were neither supported nor encouraged by Mr Minack and his leadership cohort. Indeed, frequently it was Matt who was viewed as a troublemaker. 1425 These failures led to distinctions in the way Jewish students were protected (or rather, not protected) from student bullying and harassment. And those distinctions were based on race. As I explained in my findings on Joel's individual allegations, this was not otherwise a lawless or chaotic school, as the large number of Chronicle records in evidence demonstrate. 1426 Yet, Mr Minack simply did not take the same approach to protecting Jewish students, or addressing their complaints. I refer to and adopt the findings about Mr Minack's approach that I have made in my reasons about Joel above. They apply equally to Matt's allegations. 1427 The failures and omissions by Mr Minack, by his leadership cohort and by BSC staff involved distinctions against Jewish students. As I have explained, other unacceptable student behaviour was addressed systematically, and was not tolerated in the way antisemitic student behaviour was tolerated. 1428 Those distinctions impaired Matt's human right to education. His evidence was clear about how much he feared going to school, how uncomfortable he was there, and how he found learning more difficult. He was humiliated in front of his peers, which I find also impaired his right to education, and his right to his Jewish identity, because, as with the other applicants, he became conflicted about being proud of his Jewish identity. 1429 For example: How did it feel to be Jewish at that point in time at Brighton?---It - it didn't feel good at all to be Jewish. It - I was - I was ashamed of my identity as a Jew knowing, you know, as I spoke of before, what - my family got exterminated by the Nazis in the Holocaust. It felt terrible to be a Jew and I felt like I couldn't go anywhere. I couldn't speak to anyone. No one at the school wanted to help or - or did help; that's how I felt. 1430 Finally, his human right to security of person and protection was impaired because the antisemitic student behaviour on occasion had a physical aspect to it.

RDA s 18C 1431 None of the alleged conduct of the respondents contravened s 18C of the RDA. The applicants' allegations in this respect are misconceived.

Negligence 1432 For the same reasons I have expressed in relation to Liam and Joel, and in my reasoning about Mr Minack's failure in his responsibilities as principal, I find Matt has made out a case in negligence. 1433 The reaction to Matt's treatment, and to his complaints, was plainly inadequate and well below what reasonable school leadership would have done when faced with the kind of treatment Matt was reporting, especially since the other applicants (and other Jewish students) were also reporting it. The frequency and intensity of the antisemitism, and its visible presence through the swastika graffiti, was so significant that no reasonable principal would have let the situation continue in the way Mr Minack did. 1434 Dr Tagkalidis diagnosed Matt with an adjustment disorder with anxious mood, although it had partially abated and he recommended 6 months psychological treatment. 1435 Matt's evidence, in my opinion, did not prove that he experienced the same level of physical injury from antisemitic bullying and harassment, at least not in the sense that it could be clearly identified as unprovoked and one-sided, as I am satisfied it was for Liam and Zack, and largely also for Joel. He did not wear a kippah, unlike Joel. The specific incidents that involved physical altercations were in the nature of fights in which Matt participated. I am not satisfied the failure to take reasonable steps to protect him as a Jewish student from antisemitic bullying and harassment caused him to suffer physical injury. In relation to the physical altercations and fights he described in his evidence and which some teachers and BSC records also described, in my opinion although Matt's anger and frustration at the antisemitic bullying and harassment may have been motivators for him to become physical with other students, the evidence does not permit a conclusion that but for the failures to take reasonable steps to protect him, Matt would not have engaged in many or most of those physical altercations. During his early adolescence at BSC he was, in my view, a volatile young man and it is likely he would have been in physical altercations at school in any event. I do not say that critically of him - some level of mutual physicality between adolescent students, especially male students, is a common feature of the evidence, and of ordinary human experience. 1436 However, given the evidence of psychiatric injury, I am satisfied that like Liam and Joel, Matt has proven that the failure to take reasonable steps to protect him as a Jewish student from antisemitic bullying and harassment caused him to suffer psychiatric injury. There is nothing to suggest any other cause for his psychiatric injury than Mr Minack's failure to take reasonable steps, especially consistent and systemic school-wide steps over time, to address the unacceptable and quite exceptional levels of antisemitic bullying and harassment at BSC.

Guy - pleadings 1437 The evidence was that Matt and Guy were friends during their period at BSC, although Guy left before Matt. That appears to explain why many of the allegations about antisemitic conduct involve occasions when they were both present. Aside from the complaints made jointly with Matt (see above), the applicants allege that there was racially-motivated conduct directed at Guy between 2017 and 2019, and that the failure by Mr Minack to act contravened s 9 of the RDA. 1438 Although a claim in negligence was pleaded, counsel for the applicants accepted in final oral submissions that Guy had not sought to prove he had suffered any psychiatric damage, and that the focus of his claim was on the RDA.

Failure by Ms Bolton to act with regard to racially-motivated conduct (year 7 - 2017) 1439 The applicants allege that around 20 students in 2017 subjected Guy to racist taunts. The taunts involved the use of "Jew" as an insult, comments such as "get in my oven" and the act of dropping a coin or money on the ground and then saying to Guy "Oh, pick it up, Jew" or "Fuck you, give it back, Jew". 1440 Guy contends he did not report these incidents in year 7, as he was scared to do so. The applicants allege Guy tried to conceal his Jewish identity in year 7 to avoid being the target of such taunts. The applicants allege Guy also occasionally saw "physical clashes linked to antisemitic comments". 1441 Guy's oral evidence was that Ms Bolton knew about racially-motivated conduct directed at him, because at least on one occasion she overheard students in class making antisemitic statements and responded by saying "stop saying that. I can hear you".

Failure by Mr Nash to act with regard to racially-motivated conduct (year 8 - 2018) 1442 Guy alleges that there was a "major increase" in antisemitic taunts and insults at BSC in 2018, and that he experienced such taunts and insults from most boys he interacted with in his year level that year. The substance of the taunts are alleged to have been of the same kind as I have set out above, with others such as "Hitler was a good man", "Jews go up the Chimney, Santa goes down", "don't steal my money" and "go back to Israel". 1443 The applicants allege that Guy made complaints to Mr Nash about students making 'Heil Hitler' and other similar comments, and about another student, Oliver, who would physically push Guy and on one occasion hit his computer with a hockey stick. 1444 The applicants also allege, though without reference to a named teacher, that: Matt routinely heard people yelling "Heil Hitler," during lunchtime in the yard/oval in Teachers' presence, but none ever ordered someone to pick up rubbish like they did if one used a word like 'retard'. Guy recalls one teacher saying 'you shouldn't talk about that, its bad' and then she walked away and the students continued. No consequence/punishment was meted out.

Failure by Ms Trinh to act with regard to racially-motivated conduct, including incident regarding Guy's bag (year 9 - 2019) 1445 The applicants allege that antisemitic insults and taunts increased again for Guy in 2019. They contend the taunts were of the same nature, but also included comments such as "dirty Jew' and "filthy Jew". The applicants allege this increase in taunts experienced by Guy coincided with the teaching of Maus, and that taunts specifically related to the Maus text were made, including during English class. There is no express pleading of Guy complaining about these taunts beyond the allegations made in respect of Mr Lyons and Ms Trinh, which are set out above. 1446 Guy also gave evidence of an incident where he left his bag on top of his locker, and that upon returning the bag was on the floor and his laptop and mouse were damaged. He gave evidence that he reported this to Ms Trinh and Ms Hart. Guy gave evidence that he considered the teachers' response to be antisemitic. This particular incident was not pleaded but the respondents did not make any objection to it being considered by the Court. 1447 In relation to each incident involving Guy, there is the same pleading at [366] of the statement of claim in respect of s 9 of the RDA. I have set out the elements of that pleading in the section on Liam, above. There is no s 18C allegation. 1448 The negligence allegations in relation to Guy and these incidents is put in the following way (at [394]): It was foreseeable that if the Respondents did not take precautions that Guy might suffer a risk of harm, which was not insignificant, namely, being subjected to consistent racist assaults and batteries from other students at the School which caused him loss and damage including psychological injury and harm. 1449 That is expanded on through the rest of [394], and the breach of the duty of care is said (at [395]) to be by reason of the same failures as are pleaded for Matt. 1450 The damage allegedly suffered by Guy, including hiding his Jewish identity and being scared to complain, is set out at [397]-[398], but as I have explained, in oral closing submissions counsel for the applicants accepted there was no attempt to prove compensable damage in Guy's negligence claim.

Guy - resolution 1451 In the swastika section of these reasons, I have explained why I generally accept Guy's evidence on his experiences at BSC. While I have not accepted some of the specific allegations he and Matt made against individual respondents or individual teachers, I found his accounts of the antisemitic behaviour he experienced from other BSC students to be persuasive and reliable. I was particularly struck by his frank evidence about how scared he was of the student bullies, and how fearful he was initially of being outed as Jewish. Guy explained: As a primary student, we - we kind of believe - or my friends made it seem as though that in high school, there's a lot of aggressive people and a lot of bullies and such. And that year 7s would probably be picked on quite a bit. And so from orientation week, I knew that as a Jewish kid, I would probably have to hide that fact, unless I want to be made a target as a Jew. And so yes. It was quite hostile in - in the yard and in the classroom. There was some jokes made by students my age. But that was still - it was mainly outside. Okay. So what things did you hear in year 7, Guy?---Again, the most prominent thing is mainly calling someone a Jew if they were being greedy in someone's opinion or if - I don't know. If someone didn't give - if you didn't give someone a piece of your food, they would call you Jew. If - if you were found out to be a Jew like some of the other students - I was not immediately found out to be Jewish. But if they did found out you were Jewish, they would pick on you a lot. They would make jokes such as, "You should go burn in an oven." I'm not sure how that was funny. But that somehow was funny to them at the time. There was a lot of hail Hitler and random Nazi salutes that occurred randomly, I assume to raise, you know - raise awareness to themselves. To - I don't know. To show that they were cool. They would just randomly scream out, "Hail Hitler", or do a Nazi salute and try not to get caught by others. I don't know. 1452 In year 7, Guy described hiding his Jewish identity, in the context of observing how Matt and Ariel were treated: And were these being directed to you or to other people?---Like I said, I was hiding the fact that I was Jewish. Someone would call me a Jew if, like, I didn't lend them a dollar. But they didn't actually know I was Jewish. But these were directed mostly at, like, for instance, my friend, Matt, who was - who did make it aware to people that he was Jewish. He did tell people that he was Jewish. And so they did direct it at him a lot, which was kind of like my sign of why you shouldn't show - show - like, show yourself as Jewish within the school. Okay. How often did you see this happening to Matt?---Matt - I would say I had seen it on a majority of days, at least three times a week. Just to be clear, Matt - what's Matt's surname?---Matt Kaplan. And were there any other Jewish kids you saw this in year 7 happening to?---During year 7, there was another kid named Ariel Katz who was an Israeli student that came, not at the very beginning of the year. But he came later in the year. And he wasn't very able to hide the fact that he was Jewish because he had a thick Israeli accent. So people were immediately aware. And he would hang out with Matt. So they became, like, a target duo. How did you feel when you were seeing these things?---I mean, at the time, it was scary. Because I didn't want to be that - the person that was being - that those things were directed at. So I felt - felt, kind of, like isolate. Like, the moment that I reveal myself to - as Jewish, that it would kind of be over for me. And especially as a little 12 year old kid that was just integrating into high school. I thought that it would probably end my high school career if I was known to be Jewish in Brighton. Yes. 1453 As I have set out above, all of Guy's allegations turn not so much on inadequate disciplinary responses to specific incidents, as on no disciplinary or teacher-led responses at all to the antisemitic behaviour he experienced. 1454 As I have stated above in the section on Matt, it suffices here to provide some examples of the evidence given by Guy about the antisemitic harassment he experienced from other BSC students which I found persuasive and reliable. This includes his account of the lack of adequate reactions from BSC staff. 1455 In year 7: Within the classroom, there was one student named Timur [redacted] who was in my class. And so he knew that I was Jewish. It was quite difficult to hide since I was talking to Ariel sometimes in Hebrew and that I would speak to Matt often about how - how his dad is from Israel. And so he knew I was Jewish and so he would often write on mine and Matt - Matt's books. He [Timur] would, like, draw swastikas or, you know, other Nazi related drawings such as, like - like, a little Hitler face or something. 1456 Guy described the level of reaction from teachers that he observed, for example his English teacher Ms Bolton: Well, in terms of the ..... anti-Semitism she would often tell students to quiet down or that - "Stop saying that. I can hear you." It, kind of, was like a warning to not say it. But then, again, it would happen repeatedly and at the end of the day she wouldn't really do anything about it. 1457 Ms Bolton denied she was likely to have reacted in this way. Her evidence-in-chief was: My normal practice would be to stop, to address it, and to deal with it. If that had occurred and, perhaps, there wasn't time to pursue it directly, I would have made notes of that incident. I would have followed that up. I would have reported it to, probably, the team leaders for year 7. I would have done something about that if that was happening on my watch. Absolutely, 100 per cent, I would have acted on that, and I would not have just said stop and - no, that's not my style of teaching at all, never. 1458 Ms Bolton agreed she had no active recollection of the incidents Guy was describing. She gave evidence in hindsight about her usual practice. While I found her a straightforward witness, I find her evidence fell into the category I have described elsewhere in these reasons; namely, that the BSC teachers were by 2022 well aware of the significance of the allegations in this proceeding, and were intent on demonstrating they had not behaved inadequately or unprofessionally, although they in fact had little or no active recollection of the events described. I do not consider witnesses such as Ms Bolton were being dishonest. Rather, they were describing no more than what, in 2022, knowing what they then knew about the perils of ignoring student antisemitic behaviour, and after the Worklogic inquiry and recommendations, they hoped they would have done. My factual finding, based on the evidence of Guy, the other applicants and the student witnesses, is that more often than not, the teachers had little or no reaction to antisemitic behaviour in the classroom and in the grounds. Only on a small percentage of occasions was this misbehaviour escalated, usually because of a complaint in writing (whether from a student or a parent) that could not be ignored, or because the conflict itself had escalated in a way that required teacher intervention, because (for example) it had become a physical conflict between two students. 1459 In 2018, it will be recalled, Guy was being addressed in Hebrew by Mr Varney. He also started attending UJEB events. I accept Guy's evidence that by year 8 he was not concealing the fact he was Jewish, and this led to more direct antisemitic behaviour from other students towards him, rather than him simply observing that behaviour directed towards other Jewish students: And so by this point students hard started throwing coins at me or at the ground near me or there was one instance where someone had thrown a coin into - or onto a dead bird on the oval and they would just find every Jewish person and ask them to pick it up. How often - - -?---Because they - - - Sorry?---They saw them then they said, "You're greedy enough to pick it up because you're a Jew." How often did you get coin incidents?---I would say at least once a week. 1460 Guy explained why he did not report a lot of the conduct: And so what - what did you do, if anything, when these things were happening whether it's the coins or the verbal incidents?---Again, there was the one instance where I had found an opportunity to tell Mr Nash during that meeting about Oliver. But the rest of the times I - I felt that if I was going to tell a teacher I would probably by physically abused or physically assaulted … … … I was scared that if I did do something, there would be physical consequences, so I guess I allowed it to happen. 1461 As Ms Bolton described him, Guy was a quiet kind of person, and from my observations, not large in stature even at the age at which he was when giving evidence. I accept he was afraid to speak about his treatment. I find he was also not encouraged to do so by the attitude that was apparent from Mr Minack, the leadership cohort and the teachers at BSC. I find that what Guy observed were challenging, physically forceful and verbally aggressive students who by and large were not effectively reined in, and often not reined in at all, by BSC staff about their antisemitic bullying. 1462 In year 9, Guy was in a cohort being taught Maus. He explained: In my English class there - there was three - three classes combined into one big class when we read Maus. So at least - there was about 60 students. About 20 of them would like to make comments on certain things that happened during the book in the direction of me and Matt. Can you remember the types of comments? Were they different to what you were hearing at the start? Do you remember the specifics of things people were saying?---So one instance that I remember a lot - like, very clearly is we had gotten to a part in Maus where it showed that Nazis would take the small Jewish kids and pick them up by their legs and swing them against brick walls and it was quite graphic and a student had looked in my direction and had said, "Is that you guys in the book?". And how did - how did you - - -?---So - - - - - - feel about that?---I felt, like, defeated. It felt, like - like, what am I supposed to do in this situation because I can tell the teacher but they're not going to do anything about it, clearly. I already told the coordinators before. 1463 Separately from the student reactions to the teaching of Maus, Guy described the following kind of regular conduct in his year 9: So it was - the most simple one was "Heil Hitler". It happened a lot. And the Nazi salute directed at Jewish students. Most commonly, Matt, as he was well renown for being a Jewish student. Some kids in my class did know that I was Jewish and they weren't, like, kind of nice people, I guess you could say. They did make jokes about it - about the fact that I was Jewish and they would, you know, kind of, like, use "Heil Hitler" as, like, a - an offence towards me or, like, a joke. They would just look at me and say, "Heil Hitler". 1464 Guy explained why in year 9 he began reporting the conduct more: By year 9, I was already reporting students. I didn't really care about the consequences that would happen to me physically because I was already sick of this. I couldn't go to school normally. Never felt comfortable at school, so I just resorted to reporting it to the co-ordinators. And so every time something would happen, I would come to either Bronwyn Hart or Ms Trinh and tell - tell them what happened and then they would just simply tell us they can't do anything about it. "Don't get yourself into a situation that would make that happen to you." 1465 Ms Trinh was one of the year level coordinators Guy said he complained to. The other was Ms Hart, who was not called as a witness. There was a particular incident about Guy's computer and mouse being, he contended, thrown or swept off the top of his locker, about which there is an email exchange between Ms Trinh and Ms Hart. After having said they would look into it, Guy replied: hi Miss, well i put it up there as i walked pass before school, didnt expect someone to go ahead and throw it on the floor. Guy. 1466 Ms Trinh responded to Ms Hart: The sass! 1467 And Ms Hart replied to Ms Trinh: Such sass! And like it's our issue to resolve? Don't put your bag on top of the locker? 1468 To which Ms Trinh responded: We'll definitely tell him that. Oh Guy… haha 1469 Ms Trinh was cross-examined about this exchange. While Ms Trinh struck me as a teacher with considerable empathy and insight, her explanation for her response to this report by Guy was unsatisfactory: It wasn't the - a part of it was the email, the "well, I didn't expect" comment from him, but he also came in in person and he was quite - what's the word - adamant that it was not his fault that his laptop was dent. 1470 I do not seek to give any disproportionate weight to what could be seen as no more than some banter between teachers. Nevertheless, it is a useful example of the somewhat dismissive approach being taken to a complaint by a year 9 Jewish student, recalling that this is an event which occurred after the March 2019 speech, when the issue of antisemitism towards Jewish students was relatively prominent at BSC. These communications were in November 2019, the time at which Zack Snelling was experiencing serious physical antisemitic bullying. Although only one incident, the reactions of these teachers is consistent with my impressions from the whole of the evidence - Jewish students at BSC had considerable difficulty being taken seriously with their complaints.

Conclusions on Guy's individual allegations 1471 I accept the allegations by Guy about the way he was treated by other students throughout his time at BSC, and the failure of Mr Minack, the BSC leadership cohort and BSC teachers to do anything at a more systemic level to address the bullying and harassment, or to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. These were omissions and therefore conduct within the terms of s 9 of the RDA.

RDA s 9 1472 The conduct by Mr Minack as principal of BSC was an "act" for the purpose of s 9 of the RDA. I refer to and adopt the findings I have made in relation to Liam, Joel and Matt - they apply equally to Guy's allegations. The extra dimension which came through in Guy's evidence (as it did with Zack) is the fear he had of being physically assaulted if he complained. This was a well-founded fear, on the evidence. It was well-founded because of the inadequate responses of Mr Minack, the leadership cohort and the BSC staff. The evidence overall, and especially the Chronicle records, suggests the student perpetrators behaved as if they had a degree of impunity. Two examples from Ramin's Chronicle record suffice: I came across Ramin half way through lunchtime outside the canteen area. He was asked by a teacher (TAA) to hand over a metal steak that he was holding. He ignored her instructions and through it on the ground. I confronted him and asked him to respect the wishes of the teacher and not behave in such a manner. He responded by walking away and poking his tongue at me. I asked him to come with me to the general office, he refused and walked away. There seems to be a clear disrespect for others and authority. I am extremely concerned for the safety of both students and teachers at this school as Ramin clearly had no intention to listen and follow directions. … During PE (period 3), Ramin tried to take a piece of equipment, a rebounder, off of Sam during a game of 'Shield'. The rebounder was in Sam's possession as part of the rules of the game. Sam was reluctant to give up the rebounder. I instructed Ramin to let go of the rebounder and step outside of the boundary as per the rules. Ramin ignored me. I requested this a second time. Ramin turned to me and gave me eye contact, however, he chose to ignore me and continued to try to take the rebounder of Sam. Ramin then began punching Sam in the head with a closed fist, whereby Sam tried to push Ramin away with the rebounder. It was clear that Sam was trying to defend himself. I instructed Ramin to stop immediately and step off of the court. Ramin ignored my request yet again and continued punching Sam whereby he fell to the floor. 1473 The failures and omissions by Mr Minack, by his leadership cohort and by BSC staff involved distinctions against Jewish students; that is, the distinction was based on race. There was a wholesale downgrading of the seriousness of the antisemitic treatment of Jewish students. As I have explained, other unacceptable student behaviour was addressed systematically, and was not tolerated in the way antisemitic student behaviour was tolerated. 1474 Those distinctions impaired Guy's human right to education. His evidence was clear about the level of fear he felt at school. While he did not disclose any material examples of physical antisemitic bullying, he was very afraid this would happen. There was less evidence from Guy about the impacts on his learning, but the right to education includes an entitlement to feel safe and welcome in an educational environment, and I find this was not Guy's experience at BSC. He described it in this way: How has the experience of Brighton impacted on you at all, your grades or - - -?---So during the time, I had horrible grades, I didn't want to be there. I didn't want to listen during class. I didn't feel like I was respected and I didn't think that I should respect the classes in return. I didn't take anything the teachers said seriously, because every time, they - because previously they had, you know, said things that I completely didn't agree with and that my parents didn't agree with, and so I thought that they were just teaching me how to waste time, much rather than actual education. These days, I go to school and the people in my school that I go to, the American school, they just believe that I'm Australian. I don't trust teachers with knowing the fact that I'm Israeli, because I think that if they do know, they - it might just turn out the same. So how would you say this has impacted on your Jewish or Israeli identity?---I mean, it's oppressive. I hide it from everyone. I don't tell people because I don't trust them with actually liking me - if I told them that I'm Jewish or that I'm from Israel. 1475 He was not protected from teasing and humiliation in front of his peers, a distinction which I find also impaired his right to his Jewish identity, because, as with the other applicants, he became conflicted about demonstrating and being proud of his Jewish identity.

RDA s 18C 1476 None of the alleged conduct of the respondents contravened s 18C of the RDA. The applicants' allegations in this respect are misconceived.

Negligence 1477 The applicants accepted there was no proof of any physical or psychiatric injury to Guy and his claim in negligence must fail.

Zack - pleadings 1478 The applicants allege that Zack was subject to bullying over a sustained period during his time at BSC (2018 to 2020) and that this bullying was racially motivated. They allege that the school's response, or lack thereof, amounted to breaches of s 9 and s 18C of the RDA, as well as a breach of a duty of care owed to Zack.

Racist bullying in year 7 - 2018 1479 The applicants allege that the antisemitic conduct of other students towards Zack in 2018 began in earnest after Zack had a bar mitzvah to which he had invited some BSC students. The conduct and taunts alleged have a familiar content - taunts such as "[b]urn in an oven", "[y]ou need to burn", "[y]ou're a skinny Jew", "smelly Jew," other taunts involving "Jew", and then other insults such as "[y]ou don't deserve to be here" and "[g]o back to where you came from". As with much of the other alleged conduct, the applicants contend there was a core group of male students responsible - Ramin, Giacomo, Jonathan, Bradley, Alex, Hendrix and Andreas. 1480 The applicants plead that Zack did not report or complain about this conduct in 2018, nor speak to his parents about it "in order to try to protect himself and to not draw attention from the perpetrators". They also plead that Zack did not feel able to confide in anyone at BSC, and did not feel he would receive "meaningful assistance" from BSC staff.

Racist bullying, and reports to BSC staff of that bullying, in year 8 - 2019 1481 The applicants allege that Zack was subjected to extensive antisemitic bullying in 2019, particularly by the group of five students who had engaged in some of the bullying of Zack in year 7: Giacomo, Ramin, Hendrix, Jonathan and Bradley. They allege this included: (a) repeated physical violence and other bullying, including physical violence and abusive and violent voice and text messages, by five students (Giacomo, Ramin, Hendrix, Jonathan and Bradley), (b) violent voice and text messages; and (c) an incident where Mr Nash observed Ramin pushing and shoving Zack at the lockers at BSC. 1482 The applicants allege that, as with the treatment he experienced in year 7, initially Zack was afraid to report the treatment. However, they allege that by the second half of 2019 he began confiding in his parents about what was happening at school. 1483 The applicants allege that: (a) teachers witnessed instances of the bullying, including an instance where Mr Nash observed Ramin pushing and shoving Zack at the lockers at BSC; and (b) the bullying was reported: (i) by Zack to Mr Nash on around 6-8 occasions; and (ii) by Zack's parents on various occasions, both in meetings and by email, in 2019 to Mr Minack. 1484 The applicants allege no action, or no appropriate action, was taken in response to these reports.

Racist bullying, including the park incident, in year 9 - 2020 1485 The applicants allege that the bullying directed at Zack became more serious, harmful, widespread and physical in 2020. They contend that essentially the same group of students were responsible for the ongoing conduct. 1486 The applicants allege this included: (a) students spitting on his locker and zip tying it so he could not access it, and drawing a swastika on his locker, both of which he reported to Ms Dunn and Ms Trinh; (b) two students, Ramin and Giacomo, shoving Zack up against a locker, treatment which he reported to Caroline Dunn and Thi Trinh; (c) on 5 March 2020, Giacomo, entered Zack's classroom and hit him across the head or face, which Zack reported to Ms Trinh; (d) in March 2020, Zack received Snapchat messages from Ramin and Andreas in which those students threatened to harm him and abuse him, which were provided by Ms Snelling to Ms Angelidis. In those Snapchat messages Ramin and Andreas are alleged to have told Zak he was "going to die"; and (e) that after the Snapchat messages shoving and verbal harassment towards Zack continued at the school. 1487 In addition, on 2 April 2020, outside school hours and during school holidays, the applicants allege Zack was seriously physically assaulted in a park in Brighton. The assault occurred in the early hours of the morning. A female student, Nova, is alleged to have enticed Zack to the park through social media. Six BSC students are alleged to have been involved - Ramin, Jonathan, Giacomo, Hendrix, Brad and Alex. The applicants allege that a local resident called the police, who picked Zack up a short time later, and contacted Mr Minack a short time after the event to obtain the students' addresses to obtain an arrest warrant and make a visit to each of their homes. 1488 The applicants allege that no action, or no appropriate action, was taken in response to these reports. They allege that no staff at the school, including Mr Minack, made any attempt to contact Zack or his parents following the park incident, until prompted by an email from Zack's parents to Mr Minack around a week later. It was after this incident that the applicants allege Zack stopped attending BSC, and left the school. 1489 In relation to all the incidents involving Zack, there is the same pleading at [366] of the statement of claim in respect of s 9 of the RDA. I have set out the elements of that pleading in the section on Liam, above. There is no s 18C allegation. 1490 The negligence allegations in relation to Zack and the pleaded incidents are put in the following way (at [399]): It was foreseeable that if the Respondents did not take precautions that Zack might suffer a risk of harm, which was not insignificant, namely, being subjected to consistent racist assaults and batteries from other students at the School which caused him loss and damage including psychological injury and harm. 1491 That allegation is expanded on through the rest of [399], and the breach of the duty of care is said (at [400]) to arise by reason of the same failures as are pleaded for Matt: a failure to protect him from antisemitic bullying and physical harassment, a failure to discipline the students known to be perpetrating the bullying and harassment, and a failure to educate those students, and the wider BSC student population about the wrongness of antisemitic conduct. 1492 The damage allegedly suffered by Zack includes the extreme threats alleged to have been experienced by him, and the extreme physical assaults endured by him.

Zack - resolution 1493 I found the narrative of what happened to Zack at BSC the most tragic of all the five applicants. Not only because of the serious assault that the antisemitic bullying culminated in, but because of the repeated attempts by Zack and his family to avoid the harm he suffered, and to have Mr Minack take adequate steps to protect Zack at school. After all the ongoing complaints of antisemitism since 2013, what happened to Zack at BSC in 2019-2020 in particular, and the absence of support shown to him and his family, should make the leadership cohort at BSC hang their heads in shame. 1494 Zack attended BSC from 2018 to 2020, in year 7 through to year 9. 1495 I found Zack to be a very genuine witness, as I did his mother Natalie Snelling. I found both to be serious, concerned people. Zack was a softly spoken young man, somewhat shy and reserved, but firm. His evidence was quite understated but I consider he had a reliable recollection of the events he was narrating. He took his time in answering questions, and answered in my opinion thoughtfully and carefully, including in cross-examination where he made appropriate concessions. I accept his account of what happened to him at BSC. The respondents did not mount any serious challenge to Zack's evidence. Occasionally in their cross-examination or submissions, they quibbled with details. But the objective record about what happened to Zack is so clear that, appropriately, the respondents did not really challenge it. 1496 From the outset until the assault that led Zack to leave BSC, the bullying that Zack experienced was largely at the hands of a group of boys - Ramin, Jonathan, Giacomo, Hendrix, Bradley, Alex and Andreas. 1497 Jasmine Karro experienced similar antisemitic bullying from some of the same boys, although she identified at least one female student as well. Her evidence was: Being called Jew as if it was my name. If there was a coin that dropped on the ground, it was, "Go get the money, you stingy Jew." Like, people would call me a "fucking Jew" or there was, like, many incidents where I was told to, like, "Go in the shower," "Get in the oven," like Holocaust jokes and, like, heil Hitlers and Nazi salutes that were going around as well. 1498 This happened multiple times a day, on her evidence. Like the other applicants and student witnesses, even if that level of frequency was inaccurate, I accept the conduct was constant and frequent. This kind of consistency across the applicant and student witnesses reinforces my persuasion that the accounts were genuine, and truthful. 1499 Zack described that his year 7 started "pretty smoothly", until about the middle of the year. He invited a number of the friends he made during the first half of the year to his bar mitzvah. He said: Personally, I feel like it [his bar mitzvah] was very important. It's part of my family's traditions. And I'm proud of it. 1500 He said: So after my bar mitzvah - I don't know how. But it travelled around that I was Jewish. And they caught on. And I guess it gave them a reason to start bullying me. 1501 The "they" in this evidence was the group in [1496] above, with the main three identified by Zack as being Ramin, Giacomo and Jonathan. Zack explained that they were part of a bigger group of 20-30 people. He was targeted in locker bays, on the oval and in classes: I got told to burn in an oven. I got told that I didn't deserve to be there at Brighton Secondary. I got told to go back to where I came from. I got called stinky Jew, skinny Jew - pretty much anything you can name. … I felt very degraded and horrible. I felt that I was less than other people just because I was Jewish. 1502 Zack described how, towards the end of year 7 the bullying and harassment: started to get slightly physical. I would get shoved every now and then along with the comments. 1503 Zack did not report the conduct: I didn't feel comfortable enough. I thought that it was general high school bullying and it would just stop after a little while. So I kind of just took it and thought that it would just go away. So I didn't say anything. … I did not feel like I was comfortable at all to report it. 1504 When pressed to explain further, Zack said: I had heard that people had been going to the Wellbeing Team and it hadn't helped them. And they wouldn't really do much. They would just state the issues without any resolution. 1505 As it turns out, this statement is consistent with my findings, for example about Liam's experiences with the BSC wellbeing team. However, the point here is that Zack heard of these experiences, and it was enough to make him reluctant to tell BSC staff what was happening to him. 1506 In my view, the important aspect of this evidence is, consistently with my other findings, there was not an environment at BSC where Jewish students felt they would be supported if they complained. There was no proactive encouragement of Jewish students to call out the harassment they were experiencing. Again, the evidence was remarkably consistent on this point. Jewish students felt they were likely to end up being bullied more, and that nothing would be done by BSC staff, and, ultimately, by Mr Minack. On the evidence I have heard, and the findings I have made, those fears were well founded. 1507 Zack described the bullying in year 8 as becoming "harsher", although broadly the same group of boys were the perpetrators: At this point, I was being shoved all throughout my school day. Whenever I would pass them in the locker bays, I would get shoved into my locker. I would get comments screamed at me, like, the same ones I have mentioned before. It was all pretty much the same, it would - just felt a lot harsher. Yes. 1508 Zack's evidence was that on some occasions, the physical and verbal bullying was in front of teachers, in other times it was not: But either way they didn't do anything. 1509 He described how the larger group of 20-30 students would be present, but broadly the same group of male students (at this stage, Ramin, Giacomo, Jonathan, Brad and Hendrix) were the ones who engaged in the antisemitic behaviour towards him. Zack described another incident: Towards the end of the year and in year 9 my locker had been spat on multiple times and my locker had been zip tied shut and I had had a - a swastika etched onto my locker as well. All right. Can we break down those incidents. Talk about the spitting. Who did that? How - you said several times. So can you - - -?---So - - - - - - take me through them?---One of them I was not there for. So I am not sure. But the other one was Alex [redacted]. How do you know that?---I had come out and I had seen him and he told me directly that - - - What did you do about it?---I was a lot smaller than him at the time. So I felt, like, defenceless. I couldn't really do anything. … They were all a lot - like, very physically bigger than me. I was a very small kid and - yes. They were a lot bigger and I felt like I really couldn't do anything no matter what. 1510 Zack explained: I didn't talk to any teachers about it until, I think, the end of Year 8 or beginning of Year 9, when it started to get really bad. 1511 When Zack did start informing his teachers about what was happening, he spoke to Mr Nash and Ms Dunn. He also began to tell his parents what was going on. They met with Mr Minack (see below), but Zack described how, despite his parents taking these steps, there was no resolution and the situation did not improve. Indeed: Well, once those five bullies found out that we had gone to the principal, it just worsened again. It just - the same things that they would do before, but it would - again, just harsher. 1512 Zack provided another example of the antisemitic taunts he continued to receive: He [Andreas] would jingle coins in his pocket while talking to me and make jokes and we were doing relay races at the time in that PE class, and he had told me that he had placed coins at the end of the race so that it would make me run faster. And how did you interpret that?---I - I had no words. I had never had anything said to me like that before. I didn't really know what to do. I kind of just brushed it off. 1513 He described how no-one stepped in, and the rest of the class laughed.

Natalie Snelling's interactions with Mr Minack and Ms Angelidis 1514 From the second half of 2019, Zack's parents started to raise with Mr Minack and BSC staff how Zack was being treated, and what should be done about it. On 14 October 2019 Ms Selling emailed Mr Minack asking for a meeting. They met the following day. Ms Snelling and Zack's father both attended. Mr Minack took notes of the meeting, as was his usual practice. There were a range of his diary notes in evidence. The content of the diary notes concerning the kind of antisemitic bullying contains some of the same kind of taunts as what is recounted in the students' evidence. 1515 Zack did not want names of individual students given to Mr Minack at this point. The notes record, and Ms Snelling and Mr Minack both confirmed in their evidence, that Zack's parents sought a general, year level approach to address the issue. 1516 In other words, the Snellings asked Mr Minack directly to take a systematic approach to addressing antisemitic behaviour. 1517 The notes record that Mr Minack would talk at year level assemblies, that there would be a talk to the year 8 students and that Mr Minack would talk to staff about antisemitic behaviour. 1518 Mr Nash, who was otherwise a teacher with reasonable recollection of events, was quite clear that he did not recall Mr Minack speaking to him about antisemitic bullying of Zack, including by Ramin or Jonathan. Ms Dunn did not recall Mr Minack giving any talk to staff, though she conceded he may have. Generally Ms Dunn's active recollection was almost non-existent, so her evidence is of little assistance. 1519 Other evidence suggests Mr Minack did give a speech about antisemitic behaviour being abhorrent, and that it would not be tolerated. Zack accepted this in cross-examination. Mr Minack's diary notes also confirm he raised the matter at more than one of his regular meetings with the leadership cohort. Ms Angelidis' evidence, like most of her testimony, was that she did not recall any such meeting but she appeared to accept it was likely to have occurred. 1520 Mr Minack's description in evidence-in-chief of the Snellings' complaint should be reproduced: So unlike previous reports, you know, maybe from - from the Kaplans, for example, these reports weren't characterised through conflict situations. The way they described things to - to me, it seemed like that Zack was more of a - a very passive recipient of bullying and - and harassing behaviour. So it - it - it - it didn't seem like it was born out of conflict that explained or at least partially explained some of those behaviours. And, you know, in terms of the general approach, I had to do something, and that was the only option they - they left me to do. They - they - they would not give me the names of the perpetrators, so that was the only option I was left in terms of steps to take. 1521 Mr Minack's comparison here with "the Kaplans" and elsewhere with "the Kaplan boys" is revealing. Although I accept it demonstrates his general approach to disciplinary matters, to which I have referred earlier - namely, that conflict situations between students need to be handled carefully - it also seems to suggest that antisemitism in conflict situations was somehow less serious, or did not need to be addressed. I find on the evidence that was in fact the approach he took. He saw conflict situations between students as needing a resolution that found fault or blame, with one student who could be described as the major perpetrator, or who had the 'worst' behaviour. Generally, what the Chronicle records disclose is that this was likely to be the student who acted more physically. Hence some of the outcomes for Matt and Joel. What this obscured was the racially-motivated elements in the conflict. There was no additional consideration or weighing given because of the racially-motivated aspects of any conflict. There was no external, leadership-wide, attitude to racially-motivated behaviour that signalled to students its seriousness, its unlawfulness, or in the case of Jewish people its deep connections with genocide and persecution. No attitude was manifested of its particular capacity to humiliate, hurt and incite fear. 1522 Mr Minack described what he said at the year level assemblies: I - I spoke about - you know, I understood that students don't grass or dob each other, but I sort of said this is something that goes beyond that. It's beyond the pale, so I asked the students to put aside that attitude in terms of this anti-Semitic behaviour and to assist wherever they could in, you know, letting staff know it was going on or - or upstanding themselves. Yes, I - I spoke about it being, you know, a scourge and - and something that we just couldn't - couldn't tolerate at school. And I also - and I spoke vehemently and with force, although politely, that this speech or this address that I was giving served as a first, last and final warning, and that if students were caught engaging in this kind of behaviour, the sanctions would be incredibly serious. 1523 I do not accept this evidence. First, in relation to the March 2019 speech, Mr Minack's evidence was that it was not his practice to speak from detailed notes. That he could therefore recall this kind of detail four years later is not credible. I consider Mr Minack was reconstructing, in terms of the detail of what he said. I consider he sought to convey an impression about how he spoke which was borne out of his position as a respondent to this proceeding. When this evidence is compared with the objective evidence about how Mr Minack expressed himself in the March 2019 speech, there is a contrast. Despite the occasion for that speech - the first anniversary of the Christchurch massacre - there was little emotion, and certainly no 'vehemence'. There was no condemnation, but rather a focus on students not emphasising difference, a curious way to convey the message Mr Minack said he was trying to convey. I do not accept that in October 2019 Mr Minack suddenly developed a passionate opposition to antisemitic student behaviour that he conveyed in these year level assemblies. By this stage, he had met with Ms Meltzer and Liam, where he was cold and devoid of empathy. By this stage he had been engaging with Ms Abadee for some time about Joel and Matt. By this time there had been a number of staff reports about swastikas. Therefore, while I accept Mr Minack did speak to the year levels as he said, I do not consider he spoke about antisemitism with the 'vehemence' he described. 1524 Mr Minack was unable to recall when he gave these speeches. Zack suffered more bullying only a week or so after the Snellings had met with Mr Minack. It appears from the contemporaneous evidence that Mr Minack had spoken to some year levels by this time, but not year 8, which was of course Zack's year level. His explanation was that he had to wait for a scheduled assembly, although he then conceded he could have called an urgent assembly, but did not. 1525 On 23 October 2019, Ms Snelling sent the following email to Mr Minack: After our recent meeting with you regarding antisemitism that is prevalent in your school I do wish to let you know that Zack experienced it again in his PE lesson on Monday where he had run the 50m sprint practice having got an alright time on it and when near a few of the boys in his class they said to him, 'I bet you would have got a better time had there been money at the other end'..then laughing it off but of course said quietly enough to Zack that the teacher didn't hear any of it. He felt like 'crap' and had a bad day at school and as a result on Tuesday morning made himself feel ill about it all that he couldn't face going to school yesterday so we allowed him to stay home where he completed school work in the safety of our home. We had another discussion with Zack last night to explain that he can't have days off from school because of this bullying and antisemitism and that he has to try and face these students and show bravery. He is at school today but is on edge as he waits for more comments to occur. I see there is a program being run thus afternoon for year 8. It will be interesting to see what Zacks feedback is on this program and whether it helps with things that are going on in the school yard. We have asked Zack to allow us to come forward with the names of the students that are causing the issues but the fear on his face when we mention this says it all to us - he is very concerned that things will escalate in the playground if he says who is doing it. It is very frustrating because I feel that it won't let up until he names them but I completely understand where he is coming from. Zack is persevering and is trying to get through this term as are we. 1526 Mr Minack responded to that email in the following terms: I am so sorry to hear about this. I have spoken with staff about being vigilant, and have already had one report made to me (in a different year level) which I have followed up on. I have also spoken at two year level assemblies, and am scheduled to speak to year 8 students on Tuesday next week. I can assure you that if Zack gives consent to name the boys, when I deal with them, they will understand that any retaliation against Zack at all will be taken as an attack on me. They will lose that confrontation if they are so silly as to attempt it. Please keep me informed, particularly if Zack changes his mind on naming the boys. With sincere apologies[.] 1527 There is a bravado about this response that is inconsistent with the rest of the evidence about the disciplinary approach to those students who were bullying Zack. By and large, if there were suspensions given, they had little or no effect. As I describe below, some of the other measures taken were positively dangerous for Zack, and ill-considered. 1528 This was Ms Snelling's evidence about Mr Minack's response: Well, my husband and I had met with him and raised our concerns in relation to the bullying and anti-Semitism, and then only a week later, there's the incident in the PE class, and then I have to raise that again, a next incident, with him the week later. And then he says that he's going to be speaking with the year - different year levels at the assemblies, but I was a bit disappointed and pretty upset and angry that he's saying, "Yes, I'm going to get to year 8 in a week's time," when we've already met with him to raise all of our concerns that had been going on for months, then the incident in the PE lesson, but it seemed to be okay for him to go and speak to year 8 students in a week's time. It just didn't seem to show me the urgency or that he actually really cared to actually make a point to these students. 1529 Ms Snelling's characterisation of Mr Minack's reaction is, in my view, objectively justified. There was no urgency at all about Mr Minack's reaction, notwithstanding his apparent acceptance that this was not a "conflict" situation, and Zack was being victimised and targeted because he was Jewish. During her evidence, Ms Snelling impressed me as a measured, serious person. Her correspondence in evidence conveys the same impression. I infer she presented in a similar way to Mr Minack, and I find that as an experienced secondary school principal in dealing with large numbers of parents, he should have understood that this was a serious and well-founded complaint, from parents who did not approach the school about their son for matters that were small or frivolous. All of the circumstances of these interactions as the evidence reveals them cry out for an immediate and effective reaction from the school. There was no such reaction. 1530 Only a few weeks later, there was a further very serious incident against Zack. On 11 November 2019 Ms Snelling sent a further email to Mr Minack. Her evidence was that she had explained to Zack he needed to start naming the students involved, and Zack did so: I would like to speak to you about bullying that Zack has advised us about late last week and Zack has been happy to provide my husband and I with names and we have messages from one of the bullies as well as voice messages as well. As a result of the voice messages Zack was scared to attend school today (Monday) so we allowed him to stay home. This is not what we want for our son as he is entitled to feel safe when attending school. He is so concerned that we are taking extra steps to avoid him being 'bashed' before and after school that I'm driving him to school and arranging for a family member to pick him up from school and we only live 7-10mins walk but we are prepared to do this to try and keep him safe. The two that are causing the issues are Ramin (Don't have a surname but Zack mentioned he is a trouble maker) and Jonothan [redacted]. It's Jonothan that has made voice messages to my son through instagram that were disgusting and was being a bully through the messages and there have been occasions at the end of the day of school where comments and pushing and shoving has occurred as Zack leaves the school grounds where they are trying to pick a fight. I'd like to discuss these incidents with you first thing Tuesday morning in the hopes you are able to pull these boys into your office and let them know in no uncertain terms that this bullying is to stop, otherwise I fear that Zack will end up not wishing to attend school and his work will suffer too. 1531 The voice messages were: Fuck off Zack, you're gonna get bashed. … Shut the fuck up Zack, before I fucking kill you. 1532 The respondents make a point in their submissions, as they did on several occasions concerning Zack's treatment, that there was "no overtly racially based content" to the threats and harassment. That is objectively correct, but if the submission is intended to convey a further contention that this conduct by other students was not racially motivated, I reject it. Zack's evidence was overwhelming about the motivations of these students that their harassment began after his bar mitzvah and students came to know he was Jewish. His evidence was overwhelming about the overtly racist nature of much of his treatment. Although some of the conduct, on its face, had no overt racial content, I reject any suggestion that Zack was being targeted for other reasons. He was targeted because he Jewish. If that was not obvious to Mr Minack, to the leadership cohort and to all relevant staff at BSC at the time, then they were even more neglectful than I have found them to be. 1533 Mr Minack forwarded Ms Snelling's email to Ms Hebbard, the year level coordinator, and Ms Angelidis. Although he suggested he had "spoke[n] with" Ms Snelling, Ms Snelling's evidence was that she did not recall another conversation at this point with Mr Minack, but she met Ms Angelidis: I do remember Zack and I coming to a morning meeting with Ms Angelidis, so he was dressed for school. I don't remember whether it was in relation to the voicemail messages or whether it was in relation to the Snapchat discussions between Andreas, Zack and Ramen. It may have been both. Well, what do you remember discussing with Ms Angelidis in relation to the voice messages?---That they were absolutely disgusting and what was the school doing to stop the bullying that was occurring to my son, because this was not the first time that I had raised issues. Do you remember what Ms Angelidis said to you?---I'm just trying to recall. She did make aware to me that she was aware of the issues and knew that I had met with my husband with Mr Minack and seemed to be aware of the emails that I had been sending to the college and said that they would investigate and that Johnno would be spoken to and asked for Zack to block them, the boys, and to not have anything to do with them and not to talk to them and stay away from them and that she would speak to them and request the same, that they stay away from Zack, not that that really did anything, because they didn't. 1534 Ms Angelidis had no real recollection of this meeting, consistent with her lack of recall about anything specific from this period. 1535 As the respondents submit, the BSC records disclose that Jonathan was suspended for two days for sending these messages. They contend Mr Minack "acted appropriately". I disagree. 1536 I note that the reason for the suspension given on the suspension record is: Behaving in such a way as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person. 1537 There could, one imagines, be no more serious reason for suspension. Jonathan's records are full of this reason. The records demonstrate a sustained inability to refrain from violence against other students. They demonstrate multiple suspensions for this reason, and then a repeating of the behaviour. 1538 The record for this suspension states: Jonathan has been engaging in a sustained two weeklong harassment of a student, targeting them with verbal abuse. This culminated in a threatening recorded voice message left in the student's Instagram direct message inbox. 1539 As I find was often the case with BSC records during the relevant period, there was no mention of the targeting of a Jewish student, which was in fact what was occurring. The Chronicle record does have a "box" that can be ticked to indicate racially-motivated conduct (and religiously-motivated), but the box was not ticked in this record. 1540 A further note on this record states: Jonathan admitted that he had engaged in this behaviour for a sustained period: noting "every second day" was an accurate summation of when he would harass this student (This ended on the 1st of November). He acknowledged that he was threatening with "I will get people to come to your house to bash you" on a semi-regular basis. 1541 Neither the records nor the evidence from the respondents about this sequence of events demonstrated any consciousness at the time of the level of risk being posed to Zack, and no willingness to recognise that the motivating factor in the abuse was that Zack was Jewish. Yet that was the whole context in which the Snellings had put Mr Minack directly on notice of what was happening to Zack. There was little more than an act/react kind of sequence on the part of Mr Minack, the leadership cohort and BSC staff. I could see nothing in the evidence of any conduct at all by Mr Minack, the leadership cohort or the BSC staff which could be characterised as efforts to prevent this extreme antisemitic bullying of Zack occurring again.

The assault in class 1542 Zack described how the conduct continued into year 9, in 2020 - the same kind of antisemitic taunts, the pushing and shoving, the yelling of antisemitic abuse which he described as the perpetrators "scream[ing]" at him. 1543 Ms Snelling described how difficult it was to persuade Zack to return to BSC at the start of 2020: Very, very scared. Didn't want to start. My husband and I had to have a bit of a chat to him over the summer break to try and reassure him that things might be different this year, because in year 9 you do electives, that he wouldn't necessarily be with some of those boys because you're moving around in year 9 to go to elective to elective. So that hopefully things will be better, because we have met with Mr Minack. We have spoken to and met with Ms Angelidis and been dealing with the issues that he had raised at the time, and asked him to be brave. 1544 Ms Snelling had, earlier in her evidence, explained in persuasive and genuine terms why she and her husband had chosen to send Zack to a non-Jewish secondary school: Why did you decide to enrol him at Brighton Secondary?---Because it was our zoned school. We're a 10-minute walk - seven to 10-minute walk from the school. And why didn't you go - why didn't you enrol him in a private Jewish school?---It was a decision that my husband and I had made that our children would go - attend a Jewish primary school to get their Judaism and their foundation of their traditions, and then, for high school, we wanted them to be at a government school because in the real world, you're not always in a Jewish bubble, so to speak. That's what we say. We wanted them to be in the wider community. And what, if anything, relating to expense?---Well, that also came into it. We couldn't afford to do two children through private Jewish education year 7 to 12. It's a huge expense. 1545 This belief, which is admirable, I find explains to some extent why Zack's parents supported him to persevere at BSC, despite the serious antisemitic bullying he experienced. 1546 Zack described the following assault on him by Ramin while Zack was in his maths class, early in the year 9 year (5 March 2020): There was an incident in year 9 where I was in maths class in the D block. And Giacomo and Ramin had left class and were just walking around, going through different classes, talking to people. And Giacomo and Ramin had stopped when they had seen me in my class. And Ramin stayed outside taunting me while Giacomo came into the class that I was in while the teacher was present. It was - I don't know her name. But it was Carolyn Dunn's mother. It was - she was subbing for the teacher I had at the time. And Giacomo had walked into the class and started talking to fellow classmates like Tom [redacted] and Alex [redacted], I'm pretty sure. And then he proceeded to walk over to me. Yell something at me. I forgot - I don't know what it was. And then he proceeded to hit me across the side of the head and then push all of my books and my computer and all my work - everything I - everything I needed for the lesson that was on desk had been shoved off onto the floor after he had hit me across the head and then he walked out like it was nothing and the teacher didn't do anything about it. And then once I had realised that the teacher didn't care at all I had walked out of the class in anger. It had got to the point where all these things that had been happening for so long - that it just finally hit me and I couldn't deal it anymore. So I had to just escape. And so I left. I think I hid in the bathrooms for a long while until a teacher found me. I don't know who it was. And that's when I got brought to Miss Dunn and Miss Trinh, the current coordinators at the time, which I made a statement to them about this incident. 1547 Zack's statement was in evidence. After describing the assault, Zack went on to say: In general what has been happening: It started in year 7 when they found out I was Jewish, they started bullying me because of it. Shoving me around, into lockers and in the school grounds. Then by year 8 they started again but just because they wanted to. At this point I had not done anything to them. Then my parents saw the principal about the issues that had been happening. But nothing was dealt with. Absolutely nothing. By year 9 they were still pushing and shoving, making threats to me, my family, my house. They started spitting on my locker until Thursday 5th happened. Then I started to get really pissed off and angry. So I started calling them names, like "Faggot" which I knew was wrong but I was so angry and I didn't know what I was doing and I am sorry for that. Then Ramin was starting to threaten that he would get a gang on me called sudo ygs, then Brad was getting involved and so was Andreas making comments like they want to bash me and I'm going to be bashed and they are going to steal my shoes. (Emphasis added.) 1548 Zack himself put Mr Minack, the leadership cohort and BSC teachers who were involved on notice that the treatment was occurring because he was Jewish. 1549 Ms Snelling gave an account of what Zack told her that day when he came home from school which was consistent with this account. Ms Trinh called Ms Snelling the following day to let her know the incident was being investigated. She met with Ms Angelidis and made what I consider to be an obvious and telling point: I think that I had asked her why would students be wandering around freely in the hallways, and if there was a teacher in that classroom and it appeared that all the other students seemed to see and hear what happened, why didn't she? 1550 Again, Ms Angelidis had no recollection of the details of any of these conversations in examination-in-chief, but in cross-examination she volunteered the following evidence: What I recall saying to Natalie or what I recall Natalie asking me, "Can't you just get rid of him? Can't you just expel him?". And my response to that was, it's not that simple. We can't just remove students from the school. It's not that easy. 1551 As the respondents submitted, Giacomo was suspended for this incident. Ramin was not, because the respondents contended his attendance at school at this time was so erratic that no such punishment could be imposed or enforced. 1552 It should be emphasised here that it was common ground that Mr Minack, as principal, needed to authorise a suspension of a student. Again the respondents contended that the response from Mr Minack - imposing a two day suspension - was an appropriate one. I disagree. It should have been clear to any reasonable principal by this stage that the behaviour of these students was not being modified at all by the disciplinary responses in place. It was notable that the respondents' witnesses gave no evidence at all to support the proposition that suspensions were an effective behaviour modification tool, whether generally or in respect of these specific BSC students. The litany of suspensions of these students in the Chronicle records suggests the opposite. Ms Podbury's evidence was to the contrary. As I explain below, what was also notably absent from the respondents' evidence was any consideration, at the time, of other disciplinary or behaviour modification options. Nor was there evidence of any concerted effort to provide deeper, more constant and more serious education to students about why antisemitic bullying and harassment was unlawful, destructive of students' self-esteem and identity and wholly unacceptable. There was nothing but a stock standard, and wholly ineffective, suspension response. 1553 Mr Trinh's communication at the time to Mr Minack, Ms Angelidis and Mr Gargano about this incident should be emphasised, because it discloses a consciousness of the level of danger that parents were conveying about the behaviour of these students: I just spoke to Natalie Snelling, Zack's mum and she was understandably extremely emotional. She did not know what happened and said she will call Zack to check up on him after our phone call. She said this started last year and that Ramin especially had been bullying him, despite never being provoked. She also wants to come in for a meeting with the prin team at your earliest convenience. The culprits that she named who were bullying him were Giacomo [redacted], Lachlan [redacted], Ramin [redacted] and Jono [redacted]. She also mentioned that it's not just Zack, but a lot of parents are fearful for their children while Ramin and his group are still at the school. She was understanding that the school has to follow processes and appreciated that the principal team will be personally dealing with this. She also requested that any updates or information to be communicated to her when possible. Please let me know if you require any further actions/information. 1554 Any reasonable principal, being aware of this kind of danger, would have taken more proactive steps than Mr Minack did. This situation was far beyond the continual issuing of suspension notices. It was also far beyond the hopeless response of 'behaviour management plans', which I discuss below. However, once again there was a level of inertia from Mr Minack in addressing the needs of Jewish students.

The Snapchat messages 1555 On 10 March 2020, Ms Snelling emailed Ms Angelidis about a series of Snapchat messages sent by Ramin, Andreas and Giacomo to Zack. Those messages were in evidence. Zack agreed he had called Ramin a "fag". The messages show he apologised more than once and sought to "start fresh". The messages show a frightened young person. The messages back from the perpetrators included (more than once): ur gonna die mate … You called the wrong person a fag … I can't do anything about it you fucked … If you get rokted up on by them it is Bec you called me a fag … Brah they my good mate they ain't gono let me get violated like that … it not in my hands any more[.] 1556 Also attached were pictures of what purported to be gang members. 1557 In her email Ms Snelling described how Zack was feeling: It has made Zack feel uneasy and worried about what might or might not happen after school one day. We have tried to reassure him that Ram[i]n is probably all talk and no action but he still has fears and I completely understand where he is coming from. 1558 She then said: I guess my husband and I would like reassurance from the school that when Ram[i]n & [Giac]amo return to school after their suspension what steps is the school taking to ensure nothing happens to Zack as it seems to be a constant cycle where these boys are suspended time and time again but their behaviour doesn't change. 1559 On the evidence before me, Ms Snelling is entirely correct in this last observation. In oral evidence she explained her sense of disbelief: I actually just could not believe the tone of these messages. Because, again, we had been back and forth to Mr Minack, to Ms Angelidis. I had been raising - each time Zack had finally opened up and come to me with the various events, I kept reporting it. And what were they going to do? And he was feeling so threatened and scared. A 14 year old child receiving messages telling him he is going to be bashed and he is going to die. 1560 She also explained what she was hoping to achieve (but was not confident would occur): 100 per cent reassurance from the school both from her and Mr Minack that nothing further was going to be happening to my son. We had been reporting it. We had met. We've had meetings, emails, phone discussions. And all I keep getting is, "We will talk to the boys. We will speak to students at the assembly. We will talk to the boys." There was no plan to keep my son safe. … So she [Ms Angelidis] told us that there would be a safety support plan in place, and that Ramin would have to stay right away from our son. That was apparently part of the support plan. And that Giacomo would be spoken to very, very, clearly, and - to make sure that he wouldn't have anything to do with Zack. That was their support plan: stay away from my son. It didn't seem that that was going to be enough to keep him safe. 1561 Ms Angelidis wrote to Ms Snelling in the following terms: Thank-you for your email. Can I ask whether you or Zack took a screen shot of the 'snap chat' message which Ramin sent to Zack? This would be most helpful. We have also put in place a safety support plan which should significantly reduce any interaction Zack would have with Ramin. This restricts Ramin's access to parts of the school, as well as class contact. Giacomo has been very clearly spoken to about staying right away from Zack. This will again be reiterated on his return to school. Additionally, should these on-line threats continue, can I ask that you take a screen shot, please. It's great to see that Zack is back at school today. Please keep us informed if anything more occurs. We need to ensure that Zack feels safe at school and is happy to attend every day. 1562 Ms Snelling was never shown the so-called safety support plan. As I explain below, it hardly deserves that description. 1563 The respondents accept that Andreas was not punished over the messages he sent to Zack, but should have been. They contended: While regrettable, in the operation of a busy school environment teachers will occasionally make mistakes, that is human nature. (Footnote omitted.) 1564 I accept as a general proposition that in a busy school, with a range of behavioural challenges from students, mistakes in terms of disciplinary responses can be made. I do not consider the whole episode around the threats and assaults to Zack is an appropriate example of no more than a "mistake". It was a wholesale failure in the duty of care owed to Zack by Ms Angelidis and Mr Minack as members of the leadership cohort charged with ensuring the safety of students at school. While, as Ms Angelidis observed (in different language) at one point to Ms Snelling, social media provides a fertile opportunity for bullying and harassment, and one potential control is for a victim to stay off social media, what was missing in her response, and in Mr Minack's response, was any consciousness of the connections between these actions and all the previous antisemitic bullying and harassment experienced by Zack. So long as all these students continued to attend school together, the potential for escalating violence remained, if more proactive measures were not taken.

The assault in the park 1565 By March 2020, in Melbourne, COVID-19 restrictions began to be imposed. On 2 April 2020, while one of the early lockdowns was in place, during school holidays and in the early hours of the morning, Zack was seriously assaulted by broadly the same group of BSC students who had threatened to do just that to him over the last few months. 1566 What led to this assault was in some ways a not unfamiliar sequence of events for teenagers, involving students seeking out relationships, some cruelty and trickery, and a high degree of impulsiveness. 1567 Zack explained that he had been in touch (over Snapchat) with another BSC student, Nova: She had led me to a park in the early hours of the morning where I was supposed to meet her, but instead of meeting her I got assaulted and robbed by six people. … I thought that we were just going to see each other and it would just be us just at the park, but it wasn't. 1568 Over the course of what Zack estimated to be around 20 minutes, his is how he described in evidence what occurred: So what happened when you got there?---So I got to the park and she had told me to meet at a specific place, and so I went to that place and I was met with six people not- and Nova [redacted] was not present there. It was just those six boys. And they - I started running and they were on - some were on bikes, some were on foot, and they chased me down Lonsdale Street, I think it was. It was, like, the parallel street to the park. And I turned a side street which turned out to be, like, a dead end, and so I was caught there. I didn't have anywhere to go and they started punching me, kicking me, like, pulling me, like, just threw to the ground just relentless punch after punch, kick after kick. And they proceeded to take all my belongings leaving me with pants and a T-shirt on. I didn't have my shoes, a jumper, bag. I didn't have anything. Were they yelling or saying anything?---They were yelling at me, threatening me with knives. It was really dark. I didn't see any knife. But they were screaming at me, saying that they were going to stab me if I didn't cooperate, so I just complied. And they - I think at the end the experience, Giacomo had - everyone had got back on the bikes and Giacomo had come up to me and he stood on my hand and crushed my hand while I was laying on the floor and told me that if I would get the police involved, that I would be a dead man. … It was really extreme. It was dark and cold and raining and I was just getting beaten, just on the ground. I was defenceless. 1569 The police were called by locals, an investigation was conducted, six students were charged (including Nova), and all were found guilty and received diversions. 1570 Nova's attitude to Jewish people was demonstrated by another piece of evidence. Over an objection, the applicants tendered a photograph of a young woman making a swastika shape out of sanitary pads. Zack positively identified the young woman as Nova. He said he was "100 per cent" sure. I accept that evidence. He placed the photo as "[l]ast year. Probably mid-year", which would be mid-2021. His evidence was that Nova was still a BSC student at the time. Jasmine Karro confirmed she had also seen the photo, which had been shared on Instagram. While the photo is not directly probative of Zack's allegations, nor directly probative of any of the allegations of the other applicants, in my opinion it is an extreme example of the level of antisemitic behaviour of BSC students, even after the applicants' complaints and the Worklogic inquiry. It demonstrates the entrenchment of antisemitism, and the willingness of one BSC student, still, to promote antisemitism in the most crude and offensive of ways. This was the depth of entrenched attitude that Mr Minack had failed to confront and deal with. 1571 Neither Mr Minack, nor Ms Angelidis, nor any other BSC teacher provided any support to the Snellings after the park incident. Detective Senior Constable Lordanic agreed Mr Minack assisted him (as the investigating police officer) with his inquiries and provided everything asked of him. In my view, that was the minimum one might expect. The more relevant point is the failure of Mr Minack to take any steps to support the Snellings. I accept that Melbourne was at the start of its lockdown experience with COVID-19, but emails were still operating, as were mobile phones. 1572 Ms Snelling tried to secure a meeting with Ms Angelidis and in mid-May 2020 the two women did have a discussion. 1573 Ms Angelidis gave the following evidence: And during the conversation, it's true, isn't it, that you gave Natalie no assurance as to Zack's safety at that time?---I recall Natalie asking me to guarantee Zack's safety, and my response was we can put what we can in place, but I cannot guarantee Zack's safety, because as a school we cannot pre-empt students' actions or behaviours. We can put things in place, but we can't predict. So you would agree that you did not satisfy her assurance that Zack would be safe. That's fair isn't it?---Yes, I couldn't guarantee his safety. 1574 There was no suggestion in her evidence, whether in re-examination or otherwise, that she even turned her mind to what practical steps might be taken to overcome the situation Zack found himself in. There was no offer of close involvement of the wellbeing team. There was no evidence of consideration to different classroom arrangements. There was no consideration given to any kind of 'buddy' system for Zack, or closer supervision by staff. There was no evidence that expulsion or assisted transfer were even considered. 1575 Zack did not return to BSC. He did the rest of his schooling that year online, and then went to a different school, the King David School, where he had an entirely different and positive educational experience. The Snellings made the decision to pull Zack from BSC with obvious regret, having specifically intended for their children to attend a non-Jewish secondary school. In a remarkable act of courage, they kept their daughter at BSC. She gave evidence and described her own feelings of lack of safety at BSC. Ms Snelling wrote to Mr Minack on 19 May 2020 in the following terms: I spoke to Lee Angelidis yesterday at length and we have decided that as it is not safe for Zack to return to face-to-face learning at Brighton Secondary we will keep him at home from 9 June until end of Term 2 where he will complete set work by his teachers so he keeps up with his learning. Lee advised she would email Zack's class teachers and his Year Level managers of this plan to ensure he is still supported with his learning. In the meantime, I have put in writing to Lee Angelidis that Zack will finish up at BSC on 26 June (End if Term 2) and she will passed this onto the Registrar. We have chosen to move Zack to a private school for the remainder of his schooling. It does sadden us and is terribly disappointing that Zack was unable to safely stay at BSC to continue his education through to Year 12. 1576 All that Mr Minack managed to say in response to this was: Thanks for letting me know. I will ask the registrar to prepare exit forms for your signature. I am sorry we could not make things work out for Zack here, and hope it goes well for him at his new school. 1577 It was a callous and inadequate reply in the circumstances. I find it demonstrated Mr Minack's stubborn refusal to accept at the time that his attitude to the experiences of Jewish students at BSC had been wrong, and indeed had been proven to go very badly wrong for Zack, culminating in a vicious assault. 1578 Mr Minack's inappropriate responses continued. After Zack had left the school, Mr Minack was contacted by Fred Kok, a teacher at the King David School. A note of their conversation was in evidence. It reads as follows: Spoke with Fred [Kok] from King David re Zack Snelling enrolment. BSC were of the understanding that Zack's enrolment was already confirmed as Natalie (mum) had completed and signed exit form on 1/6/2020 citing the school Zack would now be attending was King David. Told Fred that Zack made some poor decisions, and the last incident - where he was lured and assaulted and robbed by 4 of our Yr 9 students - was the last straw. I informed Fred that he had been targeted and bullied by a couple of other students of - other students … in particular. He asked whether it was anti-Semitic I said "No" - I also said that they shouldn't have a problem with him as he is nice enough - just made a poor decision (this last time) by agreeing to meet "a friend" at 1-2 am in the morning. (Emphasis added.) 1579 Ms Snelling described this response as "disgusting", and that reaction is understandable. For Mr Minack at this point to deny that Zack's treatment has anything to do with antisemitism confirms my opinions about his conduct over the relevant period. He lacked insight into his own differential approach to Jewish students. He stubbornly refused to confront the extreme level of antisemitism at BSC in any real or systemic way. For him to describe this as a "poor decision" by Zack, as if it was his fault, is extraordinary. Mr Minack appeared incapable of genuinely confronting any examples of antisemitic behaviour with acceptance and empathy. Zack's own account had drawn the connection with him being "outed" as Jewish. 1580 Ms Snelling described the effect of the park incident on her family: That was an enormous strain and stress and emotional toll on our family. I - I don't think I've been true to myself in how I've dealt with it. I actually don't think that I have properly dealt with it, and it's something that I - I still feel that I - I suffer with. Even to this day, if Zack goes out, daytime or night time, I'm on edge. I'm on edge all the time, wondering if he's safe out there, if he's going to come home in one piece. I just - I - I'm always on edge. I can't help it. And it's ever since the park incident. 1581 Zack described: After the incident, I felt so just extremely rattled and unsafe, I just couldn't step anywhere near the school. … How did you feel about having to leave?---I was relieved that I had to leave, but I had felt a lot of discomfort at the same time because since that incident, my - I lost all of my friends when I left the school, when I stopped coming back. My entire friendship group cut me off and my, like, entire reputation was ruined. When people would see me or come up to me, they would refer to me as the kid that got bashed. That's all I was known for. So how do you feel about losing your friends?---I felt really bad. I was in a really bad place. I had no one to talk to. No one to fall back on. I couldn't - I felt helpless. I couldn't do anything. You talk about you - it has impacted your reputation. What do you mean?---When I'm - soon after the incident, if I was talking to new people or moving to my new school or seeing old friends that I hadn't seen in a while, the first point of conversation would be, like, "Like, were you the kid that got bashed?" Like, blah, blah, blah. "Sounded bad, but it is what it is." Like, it happened. Like, it just - it would be the forefront of everything. I felt like it was just controlling my life. … And - well, how did the experience affect your motivation if at all?---I had no motivation to do anything, I think, especially after the incident. I struggled to step out of my house for many months. It took me a lot of courage to feel comfortable with myself again. 1582 While Zack alleges that the conduct of Mr Minack (and perhaps Ms Angelidis) after the park incident was a breach of their duty of care to him, in my opinion the correct way to view this aspect of the facts is as going to the damage caused to Zack. The lack of care and support after the park incident is egregious, and Zack should be compensated under the RDA for it. That is because I am satisfied that, as a Jewish student, he was treated differently by Mr Minack the entire way along, including after the park incident. Mr Minack's comments to Mr Kok are consistent with my view. I do not consider Mr Minack would have been as callous with a non-Jewish student, nor would he have been as quick to deny a discriminatory motivation in the students who committed the violence.

Behaviour management plans, expulsions and restorative justice

Safety support plans 1583 Safety support plans, also referred to in the evidence as behaviour management plans or behaviour support plans, were an entire misnomer. Eventually the evidence made clear they were plans put in place for the perpetrators, not the victims, of physical and verbal antisemitic bullying. 1584 Ms Trinh, whom I found generally a reliable witness on matters she could recall, volunteered this additional information about the way Ramin's behaviour was being dealt with in 2019 and 2020: because Ramin had a whole bunch of other incidents he was involved in, and that was one of the common consequences we gave him, to be kept away from other teachers and other students, and we also - no, I will leave it there. I will leave it there. 1585 Mr Minack's evidence was as follows: And Lee Angelidis talked about a safety support plan for Ramin and they're - and these - the two boys involved were Ramin and Giacomo in the head incident that had happened a week before?---Yes, that's correct. Giacomo being the one who actually hit - - -?---Yes. - - - and Ramin was the observer, bystander?---Yes, yes. And there was no safety support plan for Zack in relation to Giacomo. Are you aware of that?---Well, I believe the safety support plans - I'm going to recollect generally here. I can't - I can't recollect specifically for - for Giacomo, I'm sorry. But my general recollection of safety support plans is they - they apply to the perpetrator usually, so we're - we're - we're asking them to do different things. 1586 He continued: Well, it's - that is certainly an option that was open to us. And, again, in retrospect and with hindsight, you know, maybe that's something we could have considered. But I'm not - I can't remember the step of what steps we had specifically taken with Giacomo at that point. I don't know the detail of what was the next appropriate step. 1587 Mr Minack was generally well prepared for his evidence. He had looked back at his records and notes. Although as I have found elsewhere there were points at which his evidence was affected by understandable tiredness, I am satisfied this was not such a point. Mr Minack, I find, knew that Zack had been failed at BSC, that his parents had been let down. His later comment that "hindsight is a luxury" might generally be true, but in this part of his evidence I am satisfied he knew full well that insufficient steps had been taken at the time to protect Zack. At the time, the preferred way of operating was for the victim to leave the school. And that is what happened. 1588 The so-called 'safety support plans' were a wholly inadequate and ineffective response to a serious situation. They also had no component addressing the antisemitic aspects of the behaviour of these students. It might be said by the teachers concerned that students such as Ramin were beyond such measures. However, that kind of proposition leads inevitably to the next topic, which is why such students were not expelled, or at least that steps were not taken towards expelling them.

Expulsions 1589 I found the evidence from the relevant BSC witnesses on expulsions unsatisfactory. 1590 Some, such as Ms Angelidis, I found were avoiding directly answering what was being put to them, or refusing to agree to propositions because they realised they were unhelpful to the respondents' case. For example: And I'm going to suggest to you that at that meeting this is what you told Natalie. She has given evidence to this effect, that you said, "Our hands are tied. We can't just expel these kids. They have a right to attend their local school. You should find an alternative to Brighton Secondary". That's correct. That's what you told her, isn't it?---No. That comment is entirely consistent with what you had said to Ms Dickinson during the Worklogic inquiry. Do you remember telling Ms Dickinson that, "We never expel"?---What I recall saying to Natalie or what I recall Natalie asking me, "Can't you just get rid of him? Can't you just expel him?". And my response to that was, it's not that simple. We can't just remove students from the school. It's not that easy. Well, you just said, "Him", and then you - - -?---Mmm. Natalie was talking about more than one person. Do you accept that or you don't recall?---I can't recall. It's correct though, isn't it, that you had no intention at any time that Zack was at school of ever expelling Ramin or Giacomo or any of the bullies of Zack. That's true, isn't it?---No. Because we need to go through processes and to suggest there's no intention to expel is an assumption. We have to go through the processes available to us first before we get to that point. 1591 This cross-examination continued for some time. Ms Angelidis' answers were unsatisfactory. While she insisted there was a process, and it was not "simple", she gave no persuasive evidence about how closely the process was considered for the boys who were assaulting Zack, or what positive steps in the process were taken. She gave no evidence with any real content on this. Like much of the evidence in this proceeding, her evidence suggested high levels of inertia and apathy in circumstances which were challenging or difficult, and where the stock standard disciplinary approaches were ineffective. 1592 Ms Angelidis asserted the "point" of considering expulsion for Ramin was not reached because Zack left BSC. In other words, the victim left. Which, I find with some regret, appeared to be the favoured solution from the leadership cohort during the relevant period at BSC for Jewish students. It was the outcome for four applicants (but not, it seems, for Guy) and, as the evidence showed, for several other Jewish students, such as Courtney. 1593 The following passages are a good example of Mr Minack's evidence about why steps were not taken to expel Ramin: He is literally - you're saying - your evidence is he's literally too absent to be punished for cyberbullying; that's really what you're saying, isn't it?---I'm not saying he's too absent to be punished. I'm saying that his absences didn't allow us to follow the mandated department processes required to suspend him. Well, you didn't need to physically meet with him, did you? Couldn't you have picked up the phone and called him?---This wasn't a family you could pick up the phone and speak to, Mr Butt. Well, the point is he was so absent that you're content to say that that's acceptable for you not suspending him; that's true, isn't it?---Well, what I'm saying is that his absences meant that we weren't able to follow the mandated procedures required to suspend him. Well, he has got approximately 15 suspensions. He's so absent that you didn't follow the processes?---Couldn't follow the processes. Couldn't?---Couldn't follow the processes. Well, why didn't you try every day? Someone could have tried, couldn't they?---To contact him? Yes?---Look, I'm not aware of the direct detail of how - how often people tried to contact him. But the point is that the school, by its conduct, has prioritised an absent student with 15 suspensions over a Jewish student with his mother and father contacting the school repeatedly asking for you to protect him, and that's the truth, isn't it?---I - I think the truth is that the department processes and procedures we were bound by was restricting our actions in this particular instance. So you didn't feel capable to protect Zack Snelling. Is that really what you're saying?---In the particular instance we're talking about at the moment, I think the department's policies and procedures may - it limited it us in what we can do, yes. 1594 No departmental evidence was called by the respondents to support the 'do nothing' position taken by Mr Minack and Ms Angelidis, yet at times their evidence suggested BSC was hamstrung by policies at the departmental and ministerial level from ever even beginning to implement an expulsion process. That seems like an extraordinary situation, and I am not persuaded it was the reality. If it was, and dangerous students were simply being allowed to stay at schools no matter what risk, including serious physical risks, they posed to other students, then this would be a much bigger problem than the one raised in these proceedings. As Tobias JA states in Oyston at [155], in the context of expulsion, a failure to take action, including expulsion, could "send the wrong message to others who might be considering similar behaviour". 1595 Eventually it became apparent there was another, softer alternative to expulsions. This was "assisted transfers". Mr Minack gave the following evidence: And you would agree that the school's policies contemplate assisted transfer as an option in appropriate circumstances?---Well, assisted transfer is - is a general term, but yes, we have - we have certainly done that over time, yes. And that's one of the options if someone is in violation of the student code of conduct and the racial and harassment policies. That's one of the various options on the menu, isn't it?---So just so we're clear, so an assisted transfer is typically, in my knowledge and experience, a - a - a principal-to-principal direct contact. You know "Richard is really struggling at Brighton Secondary College. Hey, Bloggs Secondary College, could you give him a go? He needs a fresh start." And the principal of Bloggs Secondary College agrees to that. So it's an informal - and obviously, the parents are knowledgeable of this and agree, but it's an - it's an informal sort of school-to-school transfer - - - 1596 This was, Mr Minack insisted, a different process from expulsion. There were, he said, no Department guidelines for that "principal to principal" method. The critical point is that he did not even purport to use this at any stage during the relevant period, and especially not to enable Zack to remain at BSC. 1597 I consider the evidence established Mr Minack well knew there was power to escalate this situation to an expulsion process. He chose not to do so. He also chose not to even explore the "assisted transfer" process. That had been a consistent position throughout the relevant period, although I accept that it was generally the extreme behaviour towards Zack towards the end of the period that might more readily have called for such a step.

Restorative justice 1598 I have explained why I accept Mr Paul's opinion about the way restorative justice approaches should have been used at BSC. There is no evidence they were even considered for any of the six or seven students who were bullying Zack.

Conclusions on Zack's causes of action 1599 I accept the allegations by Zack about the way he was treated by other students throughout his time at BSC, and the failure of Mr Minack, the BSC leadership cohort and BSC teachers to do anything at a more systemic level to address the bullying and harassment, or to educate and encourage students in each year level to appreciate the seriousness of antisemitism and to attempt to reduce its incidence. These were omissions and therefore conduct within the terms of s 9 of the RDA.

RDA s 9 1600 The conduct by Mr Minack as principal of BSC was an "act" for the purpose of s 9 of the RDA. I refer to and adopt the findings I have made in relation to Liam, Joel, Matt and Guy - they apply equally to Zack's allegations. As I have noted for Guy, the extra dimension which came through in Zack's evidence, and that of his parents, is the fear he had of being physically assaulted if he complained. This was a well-founded fear, on the evidence. It was well-founded because of the inadequate responses of Mr Minack, the leadership cohort and the BSC staff. The evidence overall suggests the student perpetrators behaved as if they had a degree of impunity. At least a contributing factor was likely to have been the wholly inadequate reaction of Mr Minack to student antisemitism at BSC. 1601 The failures to deal with the way Zack was treated, from the time he was "outed" as Jewish, led to a distinction in the protection afforded to him within the BSC school environment. As a Jewish student, Zack was afforded less protection than for example, I consider a young female student who was being sexually harassed would have received. Zack was expected to "put up with" antisemitic bullying. I otherwise refer to and adopt my findings above in relation to Liam, Joel, Matt and Guy. This downplaying and ignoring by Mr Minack, the leadership cohort and the BSC staff of racial motivations for student behaviour had especially egregious consequences for Zack. 1602 The failures and omissions by Mr Minack, by his leadership cohort and by BSC staff involved distinctions against Jewish students. As I have explained, other unacceptable student behaviour was addressed systematically, and was not tolerated in the way antisemitic student behaviour was tolerated. Even in the face of such serious, and unlawful, student behaviour towards Zack as a Jewish boy, there was no consciousness of the need to develop an entirely different approach at BSC, to make determined efforts to stamp out this scourge of antisemitism at the school. 1603 Those distinctions impaired Zack's human right to education. His evidence was clear about the level of fear he felt at school. Zack was not only humiliated repeatedly in front of his peers, he was physically assaulted on numerous occasions. The distinctions in treatment also impaired Zack's right to his Jewish identity, because, as with the other applicants, he became conflicted about being proud of his Jewish identity. He felt "closed, like in a corner. I had, like, nowhere to go." This is how he described feeling after Mr Minack's March 2019 speech. While it may not have contravened s 18C, that speech revealed Mr Minack's lack of empathy for Jewish people. A person with empathy and insight into the evils of antisemitism would not have used the terms Mr Minack used in his speech. 1604 Finally, and obviously for the reasons I have explained, Zack's right to security of person and protection was also clearly impaired by the distinction in the levels of safety available to Jewish students at BSC during the relevant period.

RDA s 18C 1605 None of the alleged conduct of the respondents contravened s 18C of the RDA. The applicants' allegations in this respect are misconceived.

Negligence 1606 One matter to which I have afforded some weight in considering the allegations made by Zack, and my conclusion that there was a breach of Mr Minack's duty of care towards him (which breach could be extended to Ms Angelidis in these specific circumstances), is that the student bullying of Zack came, in chronological terms, right at the end of seven years of allegations about antisemitic bullying at BSC. Seven years. There was a cumulative failure to pay sufficient attention to persistent student attitudes at this school that were allowed to fester and play out against vulnerable Jewish students, who were in a conspicuous minority at this school. It defies belief that by 2020 Mr Minack was still not undertaking active steps to control the behaviour of what was on the evidence generally a small group of students, whose behaviour encouraged similar but less serious antisemitism in a wider group. 1607 The respondents contended: Zack Snelling was, unfortunately, bullied by Ramin, Jonathan, Andreas and Giacomo to the extent outlined above. It is conceded that Zack was not checked up on following the Snapchat messages, slap incident or the park assault, and that ideally enquiries should have been made with him as to his wellbeing after each event. However, simply proving bullying, or a failure to follow-up after an event of bullying, does not establish a case in negligence. To succeed, the applicant needs to establish causation on the basis of an alternative state of facts that is premised upon the respondents having exercised reasonable care and, specifically, upon there having been no such omission. No such evidence has been led. (Footnote omitted.) 1608 I do not accept that submission. 1609 Mr Minack had a non-delegable duty to take reasonable steps to ensure Zack was protected from antisemitic bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. That action included the kinds of steps I have found a reasonable principal would have taken, based on BSC policies, and on the evidence of Mr Paul and Professor Rutland. I have set out those steps earlier in these reasons. 1610 Mr Minack failed in what I consider to be an inexcusable manner to take reasonable care to avoid Zack suffering physical and psychiatric injury from antisemitic bullying and harassment. Mr Minack was made aware directly about Zack's treatment by the Snellings, once it became persistent. He took inadequate steps to address it. Single admonishments at year level assemblies were wholly inadequate, especially since I have found they were unlikely to have been especially forceful. There was no follow up, no school-wide education, no close monitoring, no additional teachers on yard duty, no steps to see if Zack could be better protected outside class times, no detailed instructions to staff about what to do with antisemitic conduct in class. Nothing. 1611 On my findings of fact, the reaction of Mr Minack, the leadership cohort and BSC staff to Zack's treatment and his complaints was plainly inadequate. The observations in Bradford-Smart, which I extracted earlier, are applicable. I find Zack has proven his case in negligence against Mr Minack as principal of BSC, in relation to the ongoing antisemitic student bullying and harassment he suffered while at BSC, up to the point of the park incident. I find that Mr Minack's breaches of his duty of care to Zack caused the psychiatric and physical harm he suffered and which I have described earlier in these reasons, and in the damages section. 1612 However, as to the specific conduct in the park incident, I do accept the following submissions from the respondents, in terms of the negligence allegations: Zack contends Mr Minack's failure to discipline the perpetrators exposed him to unnecessary risk of injury which culminated in the park assault. First, the park-assault occurred at night, during lock-down and during school holidays. There is no sufficient temporal relationship to establish a duty of care. Second, the set-up and contact between Zack and the other students was done entirely in the absence and without the knowledge of Mr Minack or other teachers at BSC. Third, no evidence, save for generic evidence, has been led specifically addressing how it is that Mr Minack [or some other teacher] could have prevented the criminal actions of the student perpetrators. Even if accepted, simply expelling the perpetrators earlier would not have necessarily prevented the assault. Further, even if some education program was in place - leaving aside the limits of that evidence as discussed above - again, there is no evidence to suggest that this would have prevented the assault or remediated the behaviour of the student perpetrators. (Original emphasis, addition to text in original, footnote removed.) 1613 What happened to Zack at the park is relevant to Zack's compensation under the RDA. However, for the reasons advanced by the respondents, I am not persuaded Mr Minack's non-delegable duty of care extended to these circumstances. Nor was any different duty of care articulated. Even if such a duty of care extended that far, the content of the duty has not been articulated by the applicants. What steps is it contended would have been reasonable for a reasonable principal to have taken? Especially given the COVID-19 situation in Melbourne. If the allegedly reasonable step was expulsion of the main perpetrators before the park incident - as the respondents submit, it is difficult to accept that expulsion is likely to have avoided the assault, given how it occurred. 1614 The park incident was a tragic culmination of the appalling antisemitism suffered by Zack at the hands of student perpetrators who had by this time in early 2020 been given a sense of impunity about their behaviour. As I explain, the racially discriminatory approach taken by Mr Minack to antisemitic bullying and harassment at BSC contributed to this sense of impunity. Students had seen that antisemitism was tolerated at BSC in a way that harassment of LGBTQIA+ students was not. In a way that sexual harassment was not. Indeed, in a way that even uniform breaches, or talking back to teachers, were not tolerated. The harm suffered by Zack at the park is, in my opinion, sufficiently connected to the contraventions of s 9 of the RDA to be compensable under the RDA. However, that is quite a different proposition from finding that a duty of care ought to be imposed in those circumstances, especially when the applicants' counsel had not attempted in any detail, by reference to authority, to develop an argument about whether the law recognised such a duty of care in those circumstances.

The damages claimed 1615 This area of the applicants' case was under-developed, to say the least. Most of the economic loss claims were the subject of little or no evidence, not even oral evidence from the applicants themselves. There was more focus on medical evidence supporting the claims for psychiatric and psychological injuries, but of course that is because damage is a necessary element of the applicants' negligence claims. Working out what was being claimed by each applicant was challenging, and involved trying to match up the statement of claim and the particulars provided to the respondents. Final submissions on behalf of the applicants were not especially helpful on this aspect. 1616 In respect of the negligence claims, there are past economic loss claims by Joel, Matt, Liam and Zack and future economic loss claims by Joel, Matt and Liam. There is no claim in negligence for Guy. 1617 Initially, there were non-economic loss claims in negligence made by Liam, Joel, Matt and Zack. In June 2022, after each had failed to secure significant injury certificates under the Wrongs Act, the applicants filed an interlocutory application to amend their statement of claim. By that proposed amended statement of claim, the applicants sought to rely on the exception in s 28LC(2)(a) of the Wrongs Act. That exception would permit the applicants to seek the recovery of damages for non-economic loss despite the requirement in s 28LE for the relevant injury to be "significant injury". On 2 June 2022, I dismissed the interlocutory application to amend the statement of claim: Kaplan v State of Victoria (No 2) [2022] FCA 679. 1618 In final submissions, the respondents made concessions about the operation of s 28LC(2) in relation to one act of violence alleged to have been perpetrated on each of Liam and Zack: see [146] and [257] of their closing written submissions. I deal with Liam's and Zack's claims for non-economic loss for those incidents on the basis of the respondents' concessions, but of course subject to the other submissions made by the respondents. Aside from these two particular matters, the ruling in Kaplan (No 2) means the four applicants who made negligence claims are unable to be awarded any damages for non-economic loss, even if their negligence allegations succeed. It is, as the respondents contended, difficult to untangle the non-economic loss claims for Liam and Zack, but it appears Zack claimed damages for physical injuries as well as psychiatric injury. Those claims can only be considered against the single incidents for each of Liam and Zack - the bathroom incident and the park incident. I have already explained why Zack has not proven any liability in negligence for the park incident. 1619 In their RDA claims, the applicants sought compensation for non-economic loss, and also compensation for past and future economic loss. In other words, their claims were of the same nature as for their negligence claims, and in the same amounts. The applicants also claimed aggravated damages, but accepted, consistently with my ruling in Wotton, that exemplary damages were not available under the RDA. 1620 The power to award relief for contravention of the RDA is exercised by the Court under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth). That power is discretionary: Gama at [99], French and Jacobson JJ. When reference is made in these reasons to compensation being awarded under the RDA, it is to be taken as a reference to compensation being awarded by order under s 46PO(4) of the AHRC Act for contravention of the RDA. 1621 The applicants claim exemplary damages in negligence. They submit, relying on Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1, that exemplary damages are outside the Wrongs Act definition of "non-economic loss" and so are not excluded under s 28LE and s 28LB. 1622 In their closing written submissions, the applicants quantified their damages claims as follows: (1) Liam, $230,000 + special $62,806.43, + aggravated and/or exemplary $200,000. (2) Zack, $210,000 + special $135,975.62 + aggravated and/or exemplary $200,000. (3) Joel, $190,000 + special $75,780 + aggravated and/or exemplary $200,000. (4) Guy, $170,000 + aggravated and/or exemplary $200,000. (5) Matthew $180,000 + special $52,800 + aggravated and/or exemplary $200,000. (Footnotes omitted.)

Liam 1623 Liam claims $230,000 in (as I understand it) either compensation under the RDA or non-economic loss in negligence. He claims what is described in the applicants' submissions as special damages in the sum of $62,806.43. He then claims "aggravated and/or exemplary" damages in the sum of $200,000. As I have explained, by reason of the Wrongs Act, Liam's claims for non-economic loss in negligence are limited to what was described in the evidence as the "bathroom incident", where Liam alleges he was held at knife point in one of the BSC student bathrooms, by a group of students, who had targeted him because he was Jewish. 1624 The applicants particularise Liam's economic loss of $62,806.43 as follows: (a) $1,532.43 under "Expenses - Psychologist consultations", supported by 'statement of claim and benefit payment' receipts issued by the Department of Human Services and tax invoices for the costs of sessions; (b) $1,274 under "Expenses - Physiotherapist consultations", supported by tax invoices for the costs of sessions; (c) $10,000 under "Expenses - Leibler Yavneh College fees", described as "[u]niform and security fees", with a comment noting "[a]mounts paid several years ago. He claims this amount as a reasonable expense". No documentation is provided support of this particularisation; and (d) $50,000 under "Future loss of earnings", which is not particularised by reference to supporting documentation. The applicants' particulars for economic loss did attach tax return documentation for Liam, but the applicants did not clearly substantiate how the figure of $50,000 was arrived at.

Joel 1625 Joel claims $190,000 as compensation under the RDA. The Wrongs Act precludes a claim by him for psychiatric injury in negligence. He claims what is described in the applicants' submissions as "special damages" (or, economic loss) in the sum of $75,780. He then claims "aggravated and/or exemplary" damages in the sum of $200,000. 1626 The applicants particularise Joel's economic loss in the amount of $75,780 as follows: (a) $5,780 under the heading "Expenses - School", particularised in two separate entries, being: (i) "Krav Maga - Personal Defence Classes" to the amount of $2,000, with a comment noting "[a]mounts paid in cash several years ago and he does not have receipts. He claims this amount as a reasonable expense"; and (ii) "Holmesglen TAFE and associated Travel Expenses" to the amount of $3,780, supported by a Holmesglen "Account Summary"; and (b) $70,000 under "Future loss of earnings". In closing submissions counsel was asked about how these sums were calculated, and counsel contended that Joel's particulars did attach documentation relating to his taxable income. However, counsel did not articulate how the figure of $70,000 was arrived at.

Matt 1627 Matt claims $180,000 in compensation under the RDA. The Wrongs Act precludes a claim by him for psychiatric injury in negligence. He claims economic loss in the sum of $52,800 (though this sum is particularised instead as "$22,800" in the applicants' particulars of special damages). He then claims "aggravated and/or exemplary" damages in the sum of $200,000. 1628 The applicants particularise Matt's economic loss of $22,800 as follows: (a) $2,800 under the heading "Expenses - School", particularised in three separate entries, being: (i) "Krav Maga - Personal Defence Classes" to the amount of $2,000, with a comment noting "[a]mounts paid in cash several years ago and he does not have receipts. He claims this amount as a reasonable expense"; (ii) "Sandringham Secondary College - Uniform" to the amount of $500, with a comment noting "[n]o receipts available"; and (iii) "Travel Expenses" to the amount of $300, with a comment noting "[n]o receipts available"; and (b) $20,000 under the heading "Future loss of earnings", which is not particularised by reference to supporting documentation. Matt's particulars did attach various receipts of money transfers, but the applicants did not articulate how the figure of $20,000 was arrived at.

Guy 1629 Guy claims $170,000 as compensation under the RDA. He also claims "aggravated and/or exemplary" damages in the sum of $200,000, under the RDA.

Zack 1630 Zack claims $210,000 in (as I understand it) either compensation under the RDA or non-economic loss in negligence. He claims what is described in the applicants' submissions as "special damages" in the sum of $135,975.62 - a larger sum because his claim includes the cost of private school fees at the King David School, where he transferred after the physical assault on him in the park. He then claims "aggravated and/or exemplary" damages in the sum of $200,000. 1631 The respondents' concession to which I have referred above means that despite not obtaining a significant injury certificate, the respondents do not oppose an award of damages for non-economic loss to Zack for the park incident, if liability is established and subject to their other submissions on damages. 1632 The applicants particularise Zack's economic loss of $135,975.62 as follows: (a) $128.80 under "Expenses - Medical", with a comment noting that "[Zack] has requested a statement of claim from Medicare. In due course, he will produce". The particulars provided by the applicants indicate that these expenses related to four counselling sessions. No receipts or proof of payment were produced at trial. (b) $135,846.82 under "Expenses - The King David School", particularised in four separate entries, as follows: (i) $283.76 under "School books" to the amount of $283.76, supported by a receipt; (ii) $723.55 for "The King David School Uniform", supported by a receipt; (iii) $133,186.62 for "The King David School tuition fees for 2020 - 2023", supported by a "2020-2023 School Fees Estimation" document; and (iv) $1,652.89 for "Travel expenses" supported by two myki receipts and tax invoices and a parking meter invoice, summarised with the comment "[a]vailable documents attached". The myki tax invoices and parking meter invoice total $68.12.

THE DAMAGES CLAIMS - RESOLUTION 1633 In this section I deal only with the question of compensation for the RDA contraventions I have found proven, and the negligence allegations I have found proven. 1634 In Wotton at [1598]-[1618] I set out my understanding of the correct approach to an award of compensation for contraventions of the RDA. I refer to and adopt that reasoning here. Some key propositions should be reiterated here. 1635 An award of compensation for contravention of the RDA is a statutory remedy. Compensation is to be quantified by the Court bearing in mind, as Gleeson CJ observed in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 at [26]: The relationship between conduct of a person that is in contravention of the statute, and loss or damage suffered, expressed in the word "by", is one of legal responsibility. Such responsibility is vindicated by an award of damages. When a court assesses an amount of loss or damage for the purpose of making an order under s 82, it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part. It is attributing legal responsibility; blame. This is not done in a conceptual vacuum. It is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case. Those requirements are not determined by a visceral response on the part of the judge assessing damages, but by the judge's concept of principle and of the statutory purpose. 1636 This approach was endorsed by Kenny J in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 at [26] in relation to compensation for discrimination contrary to the Sex Discrimination Act 1984 (Cth) pursuant to AHRC Act s 46PO(4), which is relied on also by the applicants for compensation under the RDA. 1637 I set out my reasoning on the purpose of the RDA in Wotton at [1605]-[1606] by reference to the observations of by Stephen J in Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168 at 210 and Mabo v State of Queensland [1988] HCA 69; 166 CLR 186, and then found at [1607]-[1611]: As cases such as Koowarta, Mabo (No 1), Gerhardy, and more recently Maloney make clear, the incorporation of internationally recognised human rights into the text of ss 9 and 10 of the RDA(as well as the special measures provisions in s 8) is intended to enable Australian domestic law to advance and protect the enjoyment of those rights by all members of the Australian community, in a real and enforceable sense. Although attended with challenges in determining their content and sphere of operation, Parliament has by the text and context of ss 8, 9 and 10 signalled its intention that reliance on the existence of those rights is to be more than aspirational. As I have noted, failure to observe standards of substantive equality has a spectrum of effects depending on the sphere of activity concerned and the nature of the conduct constituting the contravention. Compensation awarded for loss or damage "because of" contravening conduct must take into account the particular human rights nullified or impaired. It should also reflect the measure of causal connection between the contravening conduct and the loss or damage suffered. In Richardson, Besanko and Perram JJ pointed out at [153] that in cases where a respondent is vicariously liable for the conduct of another, the requisite causal connection is not between the conduct of the vicariously liable party and the loss and damage, but between the actor (for whom the State is vicariously liable) and the loss or damage; see also Kenny J at [33]. Here, the individual QPS officers (the 'actors') have not been named as respondents. However, the State's vicarious liability must be determined on the basis of the requisite causal connection between the conduct of the individual QPS officers and the loss or damage said to have been suffered by the applicant. In some cases, tortious principles may be helpful to inform the fixing of compensation, but those principles are not the governing criteria: see Richardson at [30] and [95] per Kenny J; and at [131] per Besanko and Perram JJ. For example, in Richardson, Besanko and Perram JJ looked at the causation issue from both statutory and common law perspectives (see [154]-[155]) and did not take a "but for" approach to the terms of s 46PO. Their Honours also confirmed that they would have reached the same conclusion on the "common sense and experience" approach applicable to common law causation following March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; 12 MVR 353. 1638 Then, at [1618] I emphasised again that the purpose of compensation under the RDA must remain connected to unlawful discrimination. That said, there is no authority limiting compensation under the RDA to non-economic loss. The respondents did not submit that economic losses are not compensable under the RDA. Indeed, some courts have awarded economic loss damages for contraventions of the RDA. See, for example, Kanapathy at [56]; Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 at [129]. Economic loss damages have also been awarded pursuant to AHRC Act s 46PO under other anti-discrimination legislation, such as the Sex Discrimination Act: see, for example, Richardson. In my opinion the statutory term "compensation" is amply wide enough, in context, to include economic as well as non-economic loss. Provided the requisite connection with the unlawful discrimination is satisfied, I see no basis in principle why they should not be recoverable. 1639 I do no more than note the discussion in Wotton at [1625]-[1629], and observe that, just as in that case, the applicants here made no such contentions. 1640 Some of the awards of compensation and damages in the authorities were briefly referred to in footnotes in the applicants' closing written submissions and then even more briefly by counsel in closing oral submissions. There are other authorities that could also have been referred to. What follows is a sample, but not an exhaustive list. Together, the authorities include: (a) under the RDA: (i) Barnes, in which the Federal Circuit Court of Australia awarded $3,500 plus interest for contravention of s 18C of the RDA; (ii) Bharatiya, in which the Federal Court of Australia awarded $750 for contravention of s 18C of the RDA; (iii) Campbell v Kirstenfeldt, in which the Federal Magistrates Court awarded $7,500 for contravention of s 18C of the RDA; (iv) Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307; 201 FCR 389, in which the Federal Court of Australia awarded $12,000 for contravention of s 18C of the RDA; (v) Haider, in which the Federal Court of Australia awarded $9,000 for contravention of s 18C of the RDA; (vi) Kanapathy, in which the Federal Circuit of Australia awarded $12,500 for contravention of s 18C of the RDA; (vii) Murugesu, in which the Federal Circuit Court of Australia awarded $40,000 for contraventions of the RDA; (viii) Wotton, in which I ordered the State of Queensland pay the first applicant $95,000, the second applicant $10,000 and the third applicant $115,000 for contraventions of s 9 of the RDA; (b) under other anti-discrimination legislation: (i) Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221, in which the New South Wales Administrative Decisions Tribunal awarded $25,000 for contravention of s 8 of the Anti-Discrimination Act 1977 (NSW); (ii) Cairns Regional Council v Carey [2012] QCATA 150, in which the Appeals Tribunal of the Queensland Civil and Administrative Tribunal upheld a decision of QCAT (though on different footing) to award compensation for discrimination based on political activity and association in contravention of the Anti-Discrimination Act 1991 (Qld), though reduced the award from $368,033.06 to $322,033.06; (iii) Carter v Brown [2010] NSWADT 109, in which the NSWADT awarded $20,000 and $15,000 from the first and second respondents respectively for contraventions of the Anti-Discrimination Act (NSW); (iv) Clarke v Catholic Education Office [2003] FCA 1085; 202 ALR 340, in which the Federal Court of Australia awarded $26,000 including interest for contravention of s 22(1)(b) and s 24(1)(b) of the Disability Discrimination Act 1992 (Cth); (v) Collins v Smith [2015] VCAT 1992; 256 IR 52, in which the Victorian Civil and Administrative Tribunal awarded $332,280 for contraventions of s 92 and s 93 of the Equal Opportunity Act 2010 (Vic); (vi) Cross v Hughes [2006] FMCA 976; 233 ALR 108, in which the Federal Magistrates Court of Australia awarded $11,822 for contravention of s 28B of the Sex Discrimination Act; (vii) Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92, in which the Full Court of the Federal Court of Australia dismissed an appeal from the primary judge's decision (see Poniatowska v Hickinbotham [2009] FCA 680) to award $433,000 for contravention of s 14(2) of the Sex Discrimination Act; (viii) Ewin v Vergara (No 4) [2013] FCA 1409, in which the Federal Court of Australia awarded $210,563 including interest for contravention of s 28B(6) of the Sex Discrimination Act; (ix) Gama, in which the Full Court of the Federal Court of Australia upheld the decision below to award $71,692.70 including interest for breach of s 9 of the RDA (despite finding the learned magistrate had erred in his findings relating to disability discrimination under the Disability Discrimination Act: at [121]); (x) GLS v PLP (2013) VCAT 221, in which VCAT awarded $100,000 for contraventions of s 86(1)(b) and s 87(1) of the Equal Opportunity Act 1995 (Vic); (xi) Green v State of Queensland [2017] QCAT 8, in which QCAT awarded $156,051 for sexual harassment and victimisation in contravention of the Anti-Discrimination Act (Qld); (xii) Lee v Smith (No 2) [2007] FMCA 1092, in which the Federal Magistrates Court of Australia awarded $387,422.32 plus interest for contraventions of the Sex Discrimination Act (see Lee v Smith [2007] FMCA 59); (xiii) Tan v Xenos (No 3) [2008] VCAT 584, in which VCAT awarded $100,000 for contravention of s 87 of the Equal Opportunity Act 1985 (Vic); (xiv) Richardson, in which the Full Court of the Federal Court of Australia increased the damages awarded by the primary judge for contravention of s 28B of the Sex Discrimination Act from $18,000 to $130,000; (xv) State of Queensland v Barney [2013] QCATA 104, in which the Appeals Tribunal of QCAT dismissed an appeal from QCAT's decision to award $76,704.81 for direct racial discrimination in contravention of the Anti-Discrimination Act (Qld); and (xvi) State of Victoria v McKenna [1999] VSC 310; 140 IR 256, in which the Supreme Court of Victoria dismissed an appeal from McKenna v Victoria (1998) EOC 92-927, where the Anti-Discrimination Tribunal of Victoria awarded $125,000 for sex discrimination and sexual harassment; and (c) in negligence: (i) Eskinazi v State of Victoria [2003] VCC 38, in which the County Court of Victoria awarded $76,812.2‬ for breach of a duty of care by teachers, in not stopping bullying of the plaintiff; (ii) Introvigne, in which the High Court dismissed an appeal from Introvigne v Commonwealth of Australia (1980) 48 FLR 161, where the Full Court of the Federal Court ruled the Commonwealth had breached its duty of care and that the primary judge's assessment of damages to the sum of $32,298.90 was inadequate; (iii) Oyston, in which the Court of Appeal upheld the finding of breach of duty of care in Oyston NSWSC. The primary judge had ordered damages in the sum of $116,296.60, plus interest. Subsequent to agreement of the parties as to damages in accordance with the Court of Appeal's reasons on appeal, in Oyston v St Patrick's College (No 3) [2013] NSWCA 324, the Court of Appeal ordered the damages awarded be in the sum of $162,207.34 including interest; and (iv) Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399, in which the New South Wales Court of Appeal dismissed an appeal against the decision of the primary judge, who awarded $150,071.20 for breach of a duty of care. 1641 In some cases, such as Jones v Toben, Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114, and the Canadian Supreme Court's decision in Ross v New Brunswick School District No. 15 [1996] 1 SCR 825, the relief awarded did not include compensation.

Liam 1642 I have accepted Liam's allegations of negligence in failing to take reasonable steps to ensure he was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct, including and especially systemic school-wide steps. These findings include the bathroom incident. 1643 Liam explained how the bullying and harassment made him feel: I was ashamed of what was going on and that it had been allowed at the school. And I was just ashamed of feeling the way that I did about myself and about my identity. 1644 He described the effects on him: Well, what do you mean by that?---I didn't like who I was. I didn't like talking to anyone about who I was or - or anything personal. I lost a lot of trust, even with the people that were close around me. And so how did that start making - or how did that make you feel?---Even more isolated. That was partly my own fault for isolating myself from my family, but that was the way I was made to feel from the things that I had been subjected to at the school, that I was - I was put in a category and I was targeted because of that. Well, what, if any, impacts on you did it have physically?---Physically, I - I mean, I hated going to school. I tried making myself sick in the mornings so I wouldn't have to go to school. I was extremely stressed. I couldn't sleep. I couldn't eat. I had just become a completely different person. What do you mean by a different person?---From the bubbly, inquisitive, happy kid that I was in year 6 to someone that was afraid to ask a teacher a simple question in class because I was worried of the repercussions that might come from that. 1645 I accept that Liam, who was aged 12 to 14 years while at BSC, felt like this for all of his time at the school. 1646 These effects are not trifling. I accept that the effects have been very serious for Liam. However, for the reasons I have explained in the liability sections, his case as pleaded and then advanced through the evidence did not adequately distinguish between his circumstances and those of the other four applicants, who could (and did) all point to the attitude and conduct of Mr Minack as the key material feature in why there was a failure at BSC to deal adequately or at all with antisemitic graffiti and antisemitic bullying and harassment. In order to succeed under the RDA, the case for Liam needed to make the same kinds of contentions, and prove them, against Ms Podbury. It did not do so. 1647 Therefore, despite the factual findings I have made about the nature and extent of antisemitic bullying and harassment he suffered at BSC, including being regularly confronted with antisemitic graffiti, but also extending to being physically and verbally bullied in many other ways because he was Jewish, Liam is not entitled to any compensation under the RDA because he has not proven a case under the RDA against the then-principal Ms Podbury. Nor has he proven, or attempted to prove, that Mr Minack as vice principal during this period had such control over the way student behaviour was dealt with that any failures or omissions by him could be characterised as leading to contraventions of s 9 of the RDA. There was simply no attempt to make out that case. 1648 That is the outcome the Court must reach on the law and on the evidence, but at a human level, I accept it may be perceived as an unfair outcome for Liam. 1649 To add to that sense of unfairness, the legal consequence of the Wrongs Act provisions is that Liam cannot be awarded any damages for physical and psychiatric injury for the breaches of the duty of care I have found proven, aside from injury that can be causally connected to the bathroom incident. 1650 For that reason, the Court takes the unusual step of inviting the State of Victoria to consider an ex gratia payment to Liam, based on the Court's findings of fact (and subject of course to the respondents' rights of appeal).

Non-economic loss in negligence for the bathroom incident 1651 Section 28LC(2)(a) of the Wrongs Act provides that the prohibition in Pt VBA does not apply to a claim for recovery of non-economic loss damages, but only where: the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury … 1652 As the respondents submit, Liam must prove the injury caused by the intentional act was done with intent to cause injury. 1653 Liam's evidence comfortably persuades me that it is appropriate to draw an inference that the other students who attacked him in the bathroom intended to cause him injury. On his evidence, they pushed him up against the wall in the bathroom cubicle. They punched him in the stomach. Lennon then pulled out a knife and put it to his neck and threatened him. Perry then punched him in the stomach again. 1654 Therefore, these acts of violence, on Liam's own evidence which I accept, caused him physical injury. He is entitled to damages for non-economic loss for those injuries by reason of the exception in s 28LC(2)(a). There is no evidence those injuries were debilitating for very long: after some time on the floor, he managed to go to the office and complain. He did not give any evidence about what, if any, longer lasting physical effects he suffered. Nevertheless, he suffered, I accept, considerable pain from being punched in the stomach on more than one occasion during this incident. 1655 I award Liam $10,000 for physical injury suffered during this incident. I am satisfied that if reasonable steps had been taken, especially in Liam's first year at the school and early into year 8, to address Liam's complaints and take them seriously, to deal with the students who were bullying him, to elevate visibly and prominently the need to respect the way Jewish students might dress, and the need to respect Jewish people just as we respect others with different beliefs and backgrounds to our own, and most importantly to provide a safe environment for Liam at school, it is more likely than not that at the start of his third year at BSC he would not have been subjected to an incident like the bathroom incident. That was an extreme example of bullying which I am persuaded was more likely than not to have been stamped out over the previous two years if Liam's complaints had been taken seriously and addressed. To find otherwise would be to find that the leadership cohort at BSC was entirely ineffectual, and I do not consider that to be the case. The evidence establishes that when other kinds of issues needed to be addressed, the leadership cohort was capable of addressing them and of modifying student behaviour. Ms Gibson's evidence about the usual approach to students who were engaging in serious misbehaviour, and the role of student wellbeing, suggests behaviour modification was and could be successful at least to some extent. 1656 It is more difficult to identify a causal link between the bathroom injury and Liam's psychiatric injury. Liam adduced medical evidence about psychiatric injury from Dr Adnams, Dr Scott and Dr Tagkalidis. 1657 In Dr Adnams' report, it was clear that even after moving schools, Liam continued to experience serious anxiety and consequential behaviours and symptoms from it, although it is fair to say Dr Adnams' report ascribes the predominant explanation for that continuing anxiety to his experiences at BSC. Nevertheless, as the respondents sought to suggest in cross-examination, there were other difficult matters happening in Liam's life as well. Despite the challenges, Liam did well in VCE and gained tertiary admission, but he has also struggled at university. Dr Adnams' opinion was that for many years after he left BSC: Cognitively, Liam's mind was pre-occupied with a range of catastrophic worries and fears, mostly associated with being harmed, or being rejected in some form. 1658 Eventually, a medication was found which provided greater benefit for his anxiety symptoms. Liam remains on that medication. Dr Scott confirmed that although his anxiety fluctuates, it is now reasonably well managed. However, the respondents' cross-examination in this aspect missed the point. Liam remains on anti-anxiety medication. That is not a situation any young person should have to experience. He is a young man, with his whole life ahead of him. His enjoyment of life has been marred significantly by his experiences at BSC, the disgraceful and unprovoked racism of other students towards him and the negligent failure of the school authorities, the administration staff and other teachers during the time Ms Podbury was principal to address the bullying and harassment he was experiencing. 1659 Liam left BSC almost immediately after the bathroom incident, in the middle of a term. That fact alone is sufficient to infer that the incident caused him tangible psychological injury. How the incident contributed to the anxiety syndrome and the adjustment disorder with anxious mood that Dr Tagkalidis diagnosed in 2021 was not explored in the evidence, despite the respondents' concession about s 28LC(2)(a) being made during opening submissions. 1660 Dr Tagkalidis did express the view that Liam's "relevant school events" contributed approximately 90% of his "long term emotional distress". This, however, was an opinion covering all of Liam's accounts of what happened to him at BSC over more than two years, and was not tied in any direct way to the bathroom incident. Dr Tagkalidis did express the view that the bathroom incident (described as "the assault") affected Liam psychologically "to a significant but lesser degree with more maturity". However, again, there is no linking of this incident to either of the diagnosed psychiatric conditions. I infer it is much more likely that those conditions were caused by the totality of Liam's experiences at BSC. 1661 Regrettably, on the evidence as it stands it is simply not possible for the Court to ascribe Liam's psychiatric injury, or a material proportion of it, to the bathroom incident as a separate assault, or even as the culmination of a number of assaults. Although the respondents' concession came late, I also consider it is likely that it would not be possible for a medical practitioner reliably to have separated out the bathroom incident and ascribed any particular level of psychiatric injury to it. Therefore, the evidence does not enable the Court to make any findings on damages to be awarded for Liam's psychiatric injury pursuant to the exception in s 28LC(2)(a) of the Wrongs Act. 1662 Liam has not been assessed as suffering a "significant injury" for the purposes of the Wrongs Act, so he cannot recover general damages for that psychiatric injury, even if I am satisfied - as I am - that the principal and material causes of that injury were the failure to take reasonable steps to protect Liam from the antisemitic bullying and harassment he suffered at BSC.

Economic loss claims 1663 The respondents submitted: Liam has only a claim for limited medical expenses. The respondents concede that, if successful, Liam can recover the cost of attendances upon Nest Family Clinic - when attending his treating general practitioner (Dr Scott) and psychologist (Dr Adnams). He ought not, however, be able to recover the costs of Klint Physiotherapy as there has been no direct evidence establishing a causative link between the cause of action and the requirement for this physiotherapy treatment. Liam claims $10,000 for "uniform and security fees". However, he has led no evidence, either directly or through his mother, Ms Rochelle Arnold-Levy, as to the cost of these items and what is meant by "security fees". (Original emphasis.) 1664 I accept those submissions. As I have observed, the compensation and damages aspect of each applicants' case was barely developed, there was a paucity of evidence, and even less by way of submissions. Liam should be awarded what he claimed for psychological expense, which was $1,532.43. But he has not proven, not even by oral evidence from him or his mother, what comprises the $10,000 expenses from Yavneh. 1665 Aside from the fact that future economic loss has not been established by any evidence at all, Dr Tagkalidis also expressed the view in his report that: I do not think that his work capacity will be significantly affected into the future. 1666 Liam is awarded $1,532.43 for the economic loss he has proven.

Conclusion 1667 Since Liam has not succeeded under s 9 of the RDA on his general allegations while Ms Podbury was principal, and because of the effect of the Wrongs Act, I find, with regret, that he cannot receive compensation or damages for non-economic loss for the majority of the effects he experienced. As I have already noted, this outcome, combined with the Court's findings on the RDA, means Liam will be compensated to a far lesser extent in monetary terms than the other applicants. I can readily understand how that will be perceived as unfair. Hence why I invite the State to consider an ex gratia payment. 1668 If Liam had proven his case for compensation under the RDA against Ms Podbury (or against any individual member of the BSC staff), then my findings in terms of compensation would be that he should have received more than Joel, Matt or Guy, but somewhat less than Zack. 1669 As I have for Joel, I would have taken into account and given weight to the physical interferences, over a prolonged period, with Liam's kippah and with his tzitzit, which I consider to be some of the most egregious conduct that there appeared to be little or no attempt to control. Making fun of, and interfering with, a student's religious clothing should have been treated very much more seriously than it was. If he had been able to claim damages in negligence for non-economic loss I would have fixed the same amount, but there was no suggestion on behalf of the applicants that they should receive in effect two sums, one under the RDA and one in negligence for non-economic loss. Their submissions appeared to accept that the damage was the same and there should be a single sum awarded.

Joel 1670 I have accepted Joel's allegations of: (a) contraventions of s 9 of the RDA by failures to remove and address the level of swastika graffiti at BSC; (b) contraventions of s 9 of the RDA by failing to address Joel's complaints about antisemitic bullying and harassment over the whole time he was at BSC; and (c) negligence in failing to take reasonable care to avoid Joel being bullied and harassed on the basis he was Jewish over the whole time he was at BSC. 1671 Although the allegations about the swastika graffiti and the antisemitic bullying were pleaded separately, in my opinion for the purposes of assessing compensation they can be considered together. The evidence overwhelmingly demonstrates that the harm caused by the failures of Mr Minack, and through him the leadership cohort and BSC teachers, to address this behaviour and take steps to ameliorate and prevent it cannot be segmented into the type of antisemitic behaviour that Joel and the other applicants experienced. It was a cumulative and entire effect on them. Their whole school environment was infected by the failures to control and address this student behaviour - in class, in school bathrooms, in school grounds. 1672 Joel and the other applicants experienced this behaviour over years. Not days, or months, years. In my liability findings about Joel, I have extracted some of his evidence and I refer to and adopt it here. There were many more examples of how unprotected he felt while at BSC. I accept his evidence to that effect.

Non-economic loss: RDA 1673 Joel left BSC because of the failures of Mr Minack, the leadership cohort and BSC teachers to control and address the antisemitic student behaviour. His evidence was: Why did you want to leave?---It wasn't - it wasn't a good place for me, Brighton, being Jewish. I was always under attack. My grades took a big hit from the anti-Semitism. It just - I just didn't feel like I was welcome there. 1674 He contrasted BSC with the TAFE he went to afterwards: Why did you decide to go to TAFE and, say, not another school?---So I did - in year - at the start of year 11 we could do an elective subject. I was doing an Electrotechnology Cert II as my once a week elective on Wednesdays, and I went to Holmesglen for it. And everyone there, the staff, the students, they were all very friendly. They were all very accepting of my religion. … Holmesglen was really good. They made it known to us when we started that we were - we had people we could talk to and they - they had one of the - the counsellors regularly check in on the class to see how we were doing. 1675 The failures to control and address antisemitic student behaviour, and the failures to address and reduce swastika graffiti, resulted in distinctions in the protection available to Jewish students and impaired Joel's right to education and his right to Jewish identity in real and tangible ways. He was punished by his fellow students for expressing his Jewish identity, and inadequately protected by BSC. He could not be proud of his Jewish identity. He could not display it, including in ways that Jewish tradition taught him he should be able to, by wearing his kippah without fearing physical as well as verbal abuse. His own behaviour deteriorated, which meant he ran into trouble with teachers and other students. I accept some of this is likely to have been mixed up with the antisemitic behaviour. At this distance it is impossible to disentangle it incident by incident, but overall it is clear to me that the fact that he felt vulnerable, unprotected and fearful as a Jewish student contributed to Joel's own poor behaviour at school. That in turn inevitably affected his educational experiences. 1676 For Joel and Matt, there was the added stress of having their mother deal with the school's failures while she was battling her own serious health problems. Ms Abadee was a concerned parent, who stood up for her children's interests as best she could. Her communications in evidence always emphasised the failure of the school to protect her children, and she was correct to emphasise that. The evidence of Matt and Joel also disclosed how reluctant they were to tell her about all their experiences, so that the effects of the school's failures were compounded, and were carried into the home environment. 1677 I am persuaded that Joel and Matt should receive a material amount of compensation for the contraventions of s 9 of the RDA by Mr Minack. Joel in particular endured physical bullying because of all the student behaviour directed at his kippah. This was an obvious kind of behaviour that should have been stopped by Mr Minack, and through him the leadership cohort and BSC teachers. There is no excuse for such disgraceful attack on a piece of religious clothing and a core part of the identity of a Jewish student. Had Joel been a female Muslim student wearing a hijab, I am confident on the evidence that swift and severe steps would have been taken not only to discipline student perpetrators, but to educate the student cohort more broadly about why such behaviour was unacceptable. Attacks on Joel's religious clothing should have been treated as an episode of sexual harassment (eg unwanted and unwelcome kissing) would, I am satisfied, have been treated. It is a broadly commensurate personal assault. That is an additional factor for Joel. 1678 The period over which the harm extended was, I am satisfied, the whole of Joel's schooling at BSC; namely, just over four years. Although the applicants' submissions described an "8 year [p]eriod", that was a cumulative period for all applicants, and in the assessment of compensation the period of harm for each applicant must be the period assessed. 1679 The applicants relied, without development, on some other decisions for the submissions that: one or few verbal 'insults' have awarded victims of discrimination between $9-15,000 to $40,000 in general damages alone. (Footnote omitted.) 1680 The applicants referred the Court to the New South Wales Civil and Administrative Tribunal decision of Carter v Brown, which involved homosexual vilification and victimisation, the former being verbal insults of a disgraceful kind and the latter being continued vilification conduct by the relevant respondents after complaints had been made. The complainant was awarded $20,000 against one respondent and $15,000 against the other. They also refer to Kanapathy where the Federal Circuit Court of Australia awarded the applicant $12,500 for racial insults directed at him on one occasion while performing duties as supervising security officer at the Central Law Courts building in Perth. Another racial harassment case, Abdulrahman, was relied upon, where the sum of $25,000 was awarded for offensive remarks made several times over a six-month period. 1681 They also point to Tan v Xenos, which they describe as a "single sexual incident" in which VCAT awarded $100,000 for sexual harassment by a neurosurgeon of the complainant, who at the time was a neurosurgical registrar training as a neurosurgeon. They point also to the awards in Wotton, and Richardson. 1682 The harm suffered by Joel, while serious and over a prolonged period, should not be equated with the physical harm in Tan v Xenos, Richardson and especially not in Wotton. 1683 Nevertheless, the applicants are correct to highlight the long periods over which the racial discrimination was experienced. They are also correct to highlight: (a) that the applicants were children at the time, and were at a school, which had a legal and moral duty to look after them and protect them; (b) the interference with their education, not only while at BSC, but extending to the disruption caused by four of them leaving the school prematurely (not Guy, who moved overseas); and (c) the impairment of their rights to be proud of their Jewish identity, and to feel comfortable in the school community as Jewish persons. 1684 I have taken all these matters into account, and I consider Joel should be awarded $60,000 in compensation. A significant part of that reflects my findings about the ongoing failure to address the way students interfered with his kippah, snatching it off him and throwing it around.

Economic loss 1685 I am not satisfied Joel has proven any of his claims of economic loss, aside from the TAFE enrolment, which is $3,780. 1686 I find that the principal reason Joel moved from BSC was because of the failures to address and deal with the antisemitic bullying and harassment he was experiencing. 1687 Ms Abadee's evidence was: So Joel also had suffered horrendously at Brighton, so he hated it; he wanted to go. We couldn't get - like, wouldn't even look at it. We can't afford Jewish schools, obviously. They're exceptionally expensive. So he got into Ho[l]mesglen and once he found out he was in Ho[l]mesglen, he didn't want to go back to Brighton ever. 1688 I do not accept that Joel, as a year 11 student, had any duty to mitigate his loss in the sense propounded by the respondents, by attending another state school where he would not have to pay fees. Matt did attend another State school, but not for long. 1689 At this point in their education, Ms Abadee was quite correct to help her sons look for what was likely to suit them best, and help them move on from their experiences at BSC. I accept her evidence that private Jewish schools were not an option for her family. For Joel, the best fit was a TAFE course. Had Mr Minack, the leadership cohort and BSC teachers taken the steps they should have taken to address the antisemitic student behaviour at BSC, I am satisfied Joel would have stayed at the school. There was insufficient evidence adduced for the Court to make any findings as to whether or not he would have completed VCE successfully there, but I find he would have stayed through to year 12. I find Joel is entitled to the expense he has claimed. The respondents did not challenge the mode of proof of these expenses. 1690 Therefore, Joel's total compensation under the RDA will be $63,780.00.

Negligence 1691 Although Dr Tagkalidis diagnosed Joel as having suffered psychiatric injury, and although I have found Joel has proven his a claim in negligence, he has not been certified to have a "significant injury' for the purposes of the Wrongs Act. No exemption from this prohibition is conceded to be applicable. Therefore, Joel cannot be awarded any damages in negligence for non-economic loss. I have already awarded him compensation under the RDA for his economic loss. There was no contention on Joel's behalf that there should be any separate or different award of damages for economic loss in negligence if his economic losses were awarded as compensation under the RDA. That is what I have done.

Matt 1692 I have accepted Matt's allegations of: (a) contraventions of s 9 of the RDA by failures to remove and address the level of swastika graffiti at BSC; and (b) contraventions of s 9 of the RDA by failing to address adequately Matt's complaints about antisemitic bullying and harassment over the whole time he was at BSC. 1693 I adopt my findings set out above in relation to Joel, in terms of the approach I have taken and those aspects applicable also to Matt. 1694 Matt did not wear a kippah at BSC, and so he did not suffer harm from the failures to control and address that particular form of antisemitic behaviour. 1695 Matt did, however, feel the keenest sense of injustice about the attitude taken by Mr Minack, and the inability of Mr Minack to take antisemitic behaviour by students at the school as seriously as he took other inappropriate student behaviour. Matt experienced, I find, the most acute sense of not being believed about what was happening around the school. That was because he was the most vocal about the school's failures, and because I find he does have a deep sense of wanting to see racist behaviour called out and punished. I find that is likely to have been in part contributed to by watching his two elder brothers suffer from these experiences ahead of him. 1696 Matt left BSC because of the failures to control and address antisemitic student behaviour, that much is crystal clear. I find he was a very bright student when he started in year 7, and continued to display intellectual capacity, but the failures of Mr Minack, the leadership cohort and BSC teachers to control and address antisemitic student behaviour sent him on a spiral of misbehaviour, and led to him being so angry he could not concentrate and did not want to attend to his studies in the way he otherwise would have. Matt explained this himself in evidence, which I accept: My grades were decreasing. They - they weren't - they weren't what they were the year before. Definitely not Dux in the year any more but they - they were decreasing. It was hard to learn. I was frustrated. I was angry. Report things and nothing happened. I - I was hopeless. I was in a corner. I couldn't go anywhere. I couldn't - I couldn't get help. I had reported things to Mr Minack previously and - and nothing happened. Incidents kept occurring and I was - I was struggling to learn. It made it very difficult to learn. I never wanted to do homework. As soon as - as soon as I left the school ground, I wanted to think about school the least - least amount possible. 1697 My impression from his evidence is that many of his aspirations for his future were dashed. See for example this evidence: What are you studying at the moment?---A Certificate IV in Engineering and Metal Fabrication. And how happy are you to be studying that?---I mean, I really enjoy it, but I - I wanted to become an engineer, so this is sort of the closest thing I could, you know, get to. You know, I would like, maybe in the future as a mature-age student, to - to go to university. 1698 I find that Matt is more likely than not to have remained at BSC through to year 12 and completed VCE. His school reports were in evidence and showed a good student. Some teachers sought to hold his behaviour against him unduly and carry that across to his academic potential. From my observations it is clear Matt is very bright. I find he would have done well all through school were it not for the failures to address and control antisemitism at BSC. 1699 Matt left BSC in a practical sense in March 2020. That was at the start of the COVID-19 pandemic and lockdowns in Melbourne. 1700 Ms Abadee spoke of the additional challenges posed by online learning after Matt's departure from BSC: How long was it - how much more did Matt attend Brighton after that?---COVID came. I struggled with Matt. Even - he just hated the school by then so much. We had - he had to pass to leave. He had to pass the semester, so he did the minimalistic he could to pass. School did go back for a while. He attended, I think, a few times just so he could pass. And so you were talking about Sandringham before. So where did Matt go after - - -?---He went to Sandringham College. Yes. How long did he last there?---He lasted there till - he wanted to pick up after that - you can't - he couldn't transition online to a new school. He was doing a VC Biology. He struggled. And because of the way they teach curriculum, like, they teach one book in the first part of the year and one book - so he was doubling up on some education and missing out some. It was really difficult time for him online as well. He had gone from being a really bright academic, you know, doing well, to really finding it really overwhelming. So then he applied to get into Holmesglen to do a Certificate IV in Metal Fabrication. Was that completed?---He's still currently doing that. That's where he is now, is he?---Yes, that's right. 1701 I refer to and adopt my findings above in relation to Joel, in terms of the effects of the failures to control and address antisemitic student behaviour on Matt, and the effects on his human rights to education and to his Jewish identity. 1702 To this I add my findings about what Matt's prospects would have been had he remained at BSC. He has lost the opportunity to complete VCE at a stable, single school where he could feel safe and comfortable. That was not harm expressly pleaded but I consider it is obvious on the evidence. I take it into account, and consider he should also receive $60,000 in compensation, although factors are weighted differently to Joel as I have explained. Ultimately the levels of harm for which they should be compensated work out to be the same, in my view.

Economic loss 1703 I accept the respondents' submissions that Matt has not proven any of his economic loss. Unlike Joel, no receipts have been provided for the $500 uniform expenses for Sandringham College. On his future loss of earning claim the respondents submitted: He makes no attempt to explain or justify the basis for the claim. Matt led no medical and other evidence causatively linking any breach of duty to a future loss of earnings. Matt did not give any evidence as to the potential impact the bullying had on his ability to earn an income, nor sought to lead any evidence in any way to quantify what that loss might be. 1704 I accept that submission. 1705 I do not consider the Krav Maga defence classes demonstrate a sufficient connection with the contraventions of the RDA, or the breaches of duty of care. I do not find that the failures to control and address antisemitism at BSC were of such magnitude for these two students that attending to self-defence courses could be seen as connected to those failures. Matt and Joel mostly experienced verbal harassment, some physical scuffles (sometimes where their own anger contributed), and Joel experienced physical abuse with the interference with his kippah. On the evidence, both boys exhibited an ability to stand up for themselves physically to the bullying they experienced. Not that they should have had to, but both were capable of doing so. Their evidence is not like Zack's. Or Liam's. Matt and Joel claimed this expense but I do not consider they have proven sufficient connection to the s 9 contraventions or to breaches of duty of care.

Negligence 1706 Although Dr Tagkalidis diagnosed Matt as having suffered a psychiatric injury, and although I have found he has proven a claim in negligence in relation to antisemitic student bullying and harassment, Matt has not been certified to have a "significant injury' for the purposes of the Wrongs Act. No exemption from this prohibition is conceded to be applicable. He cannot be awarded any damages in negligence for non-economic loss. 1707 I have already awarded him compensation under the RDA for his economic loss. There was no contention on Matt's behalf that there should be any separate or different award of damages for economic loss in negligence if his economic losses were awarded as compensation under the RDA. That is what I have done.

Guy 1708 I have accepted Guy's allegations of: (a) contraventions of s 9 of the RDA by failures to remove and address the level of swastika graffiti at BSC; (b) contraventions of s 9 of the RDA by failing to address adequately Guy's complaints about antisemitic bullying and harassment over the whole time he was at BSC; and (c) contravention of the RDA by Mr Varney in the way he greeted Guy in his year 8 class. 1709 I adopt my findings set out above in relation to Joel and Matt, in terms of the approach I have taken and those aspects applicable also to Guy. 1710 Guy did not wear a kippah at BSC, and so he did not suffer harm from the failures to control and address that particular form of antisemitic behaviour. He also did not leave BSC because of antisemitism, but rather because his family moved overseas. 1711 No claim in negligence is pressed for Guy, so the Court need only address his claims for compensation under the RDA, which are only for non-economic loss. 1712 Guy is a more understated personality than Matt, who he went through BSC with. Nevertheless, I find Guy was appreciably harmed by the failures of Mr Minack, and through him the leadership cohort and BSC teachers to address and control antisemitic student behaviour at BSC, and the impacts that had on his education, his sense of Jewish identity and his ability to feel safe at school. His descriptions in evidence tended also to be more controlled, but I accept he was describing genuine harm and distress he experienced during his time at BSC: I wasn't comfortable. Again, you - you feel like you're in an environment where people see you as a Jew. They see you not as another human being, but as a Jew, and that there was an issue with that, because they would, like, use these Nazi symbols that I'm sure they already - they were learned in the Eighth Grade what it means or they would have learned in - in Seventh Grade Humanities and during History, they would have known what swastikas were used for during World War II, so it feels like it was just being highlighted, like, the Nazism was just being highlighted in the school, that it was, like, supported. 1713 Guy expressed a sense of feeling unvalued. The following was in relation to his complaint to Ms Trinh about his laptop falling from his locker: Yes, well, they - they simply just didn't care about us, me and Matt, in this year, they just didn't care what we had to say, what we had to report. They just - it's like they had it out for us specifically, they just never, ever - not matter how many times we told them - did they ever care at all. 1714 He expressed regret looking back: Looking back it's ridiculous. Looking back I probably would have stood up for myself a bit more. If not, I would have just simply left the school by the - by the start - by the halfway through year 8. I don't know why I allowed myself to continue to be abused by teachers and students. I find it ridiculous that it was able to happen, like, now that I go to my new school I see what a safe and a pleasant learning environment can actually be like and I find it, like - like, uncomparable. 1715 I consider it appropriate to award Guy $40,000 in compensation. His right to education was affected, but less seriously so I find than some of the other applicants. His right to his Jewish identity was tangibly impaired. In my view he has suffered less long term effects than the other applicants. He had little or no physical bullying, and he was, as his evidence above demonstrates, less perturbed at the time by the failures to control and address antisemitic student behaviour. 1716 Separately however, Guy is entitled to compensation for the conduct of Mr Varney. I have extracted his evidence about the effects on him from Mr Varney's persistent and wholly inappropriate greetings and ham-fisted attempts at other Hebrew words. As Guy explained, it was this conduct by Mr Varney that was "one of the main reasons how people found out that I was Jewish", and through this conduct continued to emphasise Guy's race, and his Israeli national origin. In an environment such as the one at BSC at the time, this was an additional burden on Guy, and one I find he felt keenly every time he walked into Mr Varney's class. Mr Varney was less than frank with the Court about his conduct, and sought to downplay it. He also sought to cast Guy as an uncooperative and difficult student, a characterisation not supported by anything of substance in the evidence. Guy's right to an educational experience in Mr Varney's classroom that did not single him out from other students by reference to his race and national origin was ignored and indeed directly flouted by Mr Varney, at a time where even on the evidence accepted by the respondents there were examples of antisemitic student behaviour around the school. Mr Varney was in a position of responsibility and did not take that seriously. Guy was 13-14 years old, and still developing his own identity, including as a Jewish person. 1717 I award Guy $15,000 for the contraventions of s 9 of the RDA by Mr Varney.

Zack 1718 I have accepted Zack's allegations of: (a) contraventions of s 9 of the RDA by failures to remove and address the level of swastika graffiti at BSC; (b) contraventions of s 9 of the RDA by failing to address adequately Zack's complaints about antisemitic bullying and harassment over the whole time he was at BSC; and (c) negligence in failing to take reasonable care to avoid Zack being bullied and harassed, including physically, on the basis he was Jewish over the whole time he was at BSC. However, I have not accepted that the respondents are liable in negligence for the park incident. 1719 I adopt my findings set out above in relation to Joel, Matt and Guy, in terms of the approach I have taken and those aspects applicable also to Zack. 1720 Zack did not wear a kippah at BSC, and so he did not suffer harm from the failures to control and address that particular form of antisemitic behaviour. However, Zack's experiences came towards the end of the relevant period and, unlike Liam, the respondents did not substantively contest that Zack had the experiences he described. Zack's parents were also closely involved with the school at the earliest opportunity, to no avail. After what I have found on the evidence to be years of complaints and little action other than in a minor and inadequate incident-by-incident way on some occasions (but not all), the failures and omissions to address and control antisemitic behaviour by the time Zack began to experience it are all the more stark. 1721 Zack suffered physical harm at BSC. He described his experiences in year 8: At this point, I was being shoved all throughout my school day. Whenever I would pass them in the locker bays, I would get shoved into my locker. I would get comments screamed at me, like, the same ones I have mentioned before. It was all pretty much the same, it would - just felt a lot harsher. Yes. 1722 He also suffered high levels of distress and anxiety. He described the physical differences between himself and the bullies: They were all a lot - like, very physically bigger than me. I was a very small kid and - yes. They were a lot bigger and I felt like I really couldn't do anything no matter what. 1723 As I have described in the liability section for Zack, the failure to address this behaviour meant that it escalated in year 9 for Zack, leading to the Snapchat messages with death threats, and then the assault in the classroom, and finally the park incident, but with ongoing bullying and harassment in between. 1724 Zack described the reaction of the teacher in the class where he was hit on the head by Giacomo: And to your - to your memory did the teacher see or hear this incident?---Well, supposedly not. I asked her about it. In the class as it happened she was probably not even 10 metres away from me and everyone in the class was active and aware that it happened. They're all looking over and the teacher just stood there and I asked her if she saw it and she said, "No" and I said, "Well, like, I don't know what you want me to do." And then that's when I left. … I was balling my eyes out crying. I couldn't believe that in the middle of class how I could just be hit on the head and have all my belongings just pushed onto the floor with - without the teacher even noticing, supposedly, and I just - yes, it got to a point where I just really didn't know what to do anymore. I felt like I couldn't do anything. Something this serious - that nothing really happened. 1725 That teacher was not called as a witness. On the evidence the Court has heard, I do not accept it is likely the teacher saw nothing, including because of the commotion and noise that would have been going on, in a class of 20 or so students. I consider what is more likely is that the teacher did nothing. It seems quite possible, given the evidence about these particular students, that the teacher herself was afraid. These students could be violent and lawless. And Mr Minack did nothing of any substance to curb their behaviour. 1726 The failures to address and deal with the antisemitic student behaviour led to Zack not wanting to go to school: I had no motivation at all to go to school. I would start telling my parents that I was sick so I could avoid going to school because I really did not want to go because of what I was experiencing. I think I possibly would have taken off around a week and a half. Tried to take off as much school as I possibly could because I just did not want to be around that environment. 1727 However, Mr Minack's failures also led to Zack trying to take matters into his own hands: So it had got to a point where I had gotten so angry and frustrated about what was going on that I started calling them names to try and get back at them almost. But I - although I knew it was wrong I felt like I had no other choice. I felt like I couldn't go to anyone because I had tried to previously and it would - nothing would be resolved. So I thought I would just have to put it into my own hands. But it just made it worse and worse. 1728 This is another factor to weigh in the appropriate amount of compensation. Zack should never have been placed in such a position. He should have been able to feel that his principal, and his teachers, would act to protect him, and would take proactive steps to make it clear that bullying and taunting a student because he is Jewish had no place at BSC. If Zack were a female being sexually harassed as frequently and to the same extent, I am confident on the evidence that swift and severe steps would have been taken - not only against the perpetrators but also in terms of better education, more prominent and constant messages about why such behaviour was unacceptable. Indeed, it seems to me on the evidence that, as BSC's policy required, the police may have been called in. That is likely to have had quite a different effect on student perpetrators. And if it did not, I am confident on the evidence that Mr Minack would have considered if not started an expulsion process if a female student had continued to be attacked and harassed by the same group of students, even after all those measures. Instead, Zack was left to fend for himself. 1729 The lack of care demonstrated by Mr Minack flowed through to other teachers. This was another part of Zack's evidence, after describing the way his locker was tied up with zip ties, and after there had been a swastika placed on his locker: Do you remember any conversations with Ms Trinh?---I talked to both Ms Dunn and Ms Trinh throughout my year 9 experience. I had seen them multiple times talking about my experience, but nothing happened from that, I don't think. I didn't get told about anything. So what do you remember telling them?---I remember telling them that I had been getting shoved into my locker and that it had been spat on and zip tied and a swastika had been carved on it. I told them all of that. And so what would they say when you reported to them?---They would tell me that I shouldn't think about it too much. I shouldn't let it get to me, and that it would get removed and would get resolved. That's - it was just a reoccurring theme. That's kind of just what they said every time I talked to them, but it would just stay the same. So how did you feel when you went through that process with them?---I didn't really feel encouraged to speak up any more. I didn't feel too comfortable. I felt like it was a chore to them that they had to deal with me instead of them wanting to deal with me. Did you ever see any consequence from any of those reports?---No. Did you ever - did any teacher at the school ever tell you not to draw swastikas?---No. Did the principal ever tell you not to draw swastikas?---No. Did any staff member ever tell you not to do anti-Semitic conduct?---No. Did the principal ever tell you not to do anti-Semitic conduct?---No. Did you ever see teachers remove swastikas?---No. Did you ever see anyone investigated for them?---No. Did you ever see anyone disciplined for it?---No. 1730 The last set of questions were standard to many applicant witnesses. They were leading questions, but the respondents did not object (correctly in my view) and they did not directly challenge this kind of evidence, which was given over and over. The leading nature of the question did not affect its reliability in these instances. Rather the respondents suggested that the students may not have a complete knowledge of who was disciplined for what. Most students readily conceded that. It was beside the point. The point of this substantial body of evidence (including Zack's), in the context I am presently dealing with, is that there was no visible and constant messaging going out to BSC students about why antisemitic behaviour must stop, how seriously it would be dealt with, how it affects the victims of it. Almost all of the student witnesses, and all of the applicants, gave genuine evidence on these matters in my view. Whether or not they recalled the odd telling off by a teacher is beside the point. As a body of students, they saw inaction from Mr Minack and through him from his teachers. They saw silent or tacit tolerance of the behaviour. They saw the behaviour diminished to a level of insignificance. The message Zack, Joel, Matt and Guy received from Mr Minack, and through him, other BSC teachers, was to put up with it. 1731 In their final submissions the respondents stated: It is conceded that Zack was not checked up on following the Snapchat messages, slap incident or the park assault, and that ideally enquiries should have been made with him as to his wellbeing after each event. 1732 This concession was made in the context of the negligence claims, and the respondents went on to contend that the applicants had not made any causal link between any alleged breach of a duty of care and the subsequent harm suffered by Zack (I assume through the park incident). I have not agreed with that contention. But the failures to "follow-up", as the respondents put it, are in my opinion just further examples of the attitude evinced by Mr Minack, and through him the staff at BSC, that the targeting of a Jewish boy in this way was nothing to be overly concerned about. The respondents resisted the proposition that Zack's treatment had an antisemitic connection but I have found that obviously to be the case, on the evidence I have accepted. Therefore, the respondents' concession, properly made, is yet another illustration of how differently Jewish students were treated. Again, if Zack had for example been female, and students with the same violent tendencies had sent a female student messages with sexual overtones coupled with death threats, I have no doubt much stronger action would have been taken, both to protect the student victim and to not only discipline the perpetrators but again in a more proactive way to ensure that all students understood how unacceptable harassment and threats of this kind are. Further, I am confident that what is in the BSC policy as the penultimate sanction - involving the police - would have occurred. 1733 Zack described the effect of his experiences at BSC in the following way: What, if - so what have been the effects of the Brighton experience on you?---I think there were pretty severe - I had to start seeing a psychologist. But it was - my mental health was so bad that I couldn't deal with it anymore. I didn't like it. It wasn't really helping me. And so over time I've, kind of, worked at myself to try and get myself to a point where I'm better. But it's still always just in the back of my head. How - what, if any, effect has it had on your grades or academic learning?---Well, during my whole experience at Brighton my - over time when the bullying would get worse my grades would fall tremendously. I had terrible grades up to the point where I left and as soon as I moved schools and got into a better environment I felt so much safer and more welcomed and I felt like people understood me and my grades have been exponentially better ever since. 1734 When Dr Tagkalidis saw Zack, he was 15 years old. At that stage, Dr Tagkalidis stated: I concluded that the claimant is currently suffering from an Adjustment Disorder with Anxious Mood, which has largely abated, relevant to the claimed injuries. … Transient features of traumatisation related to the final incident in the park have since largely abated. He has been left with social hypervigilance. … I considered that he was developing normally in life prior to the relevant incidents and that the relevant events caused a substantial but transient detrimental effect on his functioning and emotional wellbeing as described above in the body of the report. The detrimental effects have essentially abated with the move away from the problematic school and with time. 1735 Unlike Liam, the respondents did not suggest there were any other causes for Zack's distress, the nightmares and flashbacks that Dr Tagkalidis noted, than his treatment at BSC and by BSC students.

Non-economic loss: RDA 1736 I consider it is appropriate to award Zack $80,000 under the RDA in compensation for non-economic loss. 1737 Even though what happened to him at the park did not constitute a breach of Mr Minack's duty of care to Zack, that assault is nevertheless capable of being seen as connected to the contraventions of s 9 of the RDA by Mr Minack. Had Mr Minack taken the steps clearly laid out in the racial harassment policy, had he done for Jewish students what he was prepared to do for LGBTQIA+ students, had he considered restorative justice measures, had he taken more seriously what his Jewish students were saying to him, and had he looked beyond their teenage behaviour reactions, there was, I find, a realistic possibility that the perpetrators of that dreadful attack on Zack would not have felt as disinhibited as they did. To lure Zack the way that Nova did, this being the same young woman who subsequently posted a picture of herself making a swastika out of sanitary pads, suggested such a negative attitude to Jews in such a young person. It is difficult to comprehend, but I am comfortably satisfied that the inappropriate tolerance demonstrated by Mr Minack at BSC to antisemitism certainly did not assist young people such as her in understanding why their altitudes were so offensive, and so wrong. 1738 The reason all the steps apparent in the evidence to protect LGBTQIA+ students, and to raise their self-esteem and sense of value, are taken is because there is an appreciation that such steps work, or at least have positive effects. The same would have been true for equivalent steps in favour of Jewish students. Disregard and apathy can tend the other way - leadership which exhibits those traits can exacerbate racist behaviour, especially in young people who are still learning attributes of self-control and self-restraint. 1739 Even without the park incident, I consider that a sum of $80,000 is appropriate compensation. I found the evidence from Zack and his mother utterly devastating to listen to. Mr and Mrs Snelling could not have done more to ask Mr Minack to protect their son. 1740 As I explain below, I also find that aggravated damages are payable for the callousness of Mr Minack's reaction to Zack and his parents after the park incident. I find that is, again, a product of Mr Minack's inability to empathise with Jewish people in the same way he might with other people.

Economic loss: RDA/negligence 1741 Zack claimed the same level of economic loss under both the RDA and in negligence. 1742 I find his claims for economic loss should succeed. Ms Snelling's evidence was very clear about the deliberate decision she and her husband made to send their children to a secular secondary school: Okay. Why did you decide to enrol him at Brighton Secondary?---Because it was our zoned school. We're a 10-minute walk - seven to 10-minute walk from the school. And why didn't you go - why didn't you enrol him in a private Jewish school?---It was a decision that my husband and I had made that our children would go - attend a Jewish primary school to get their Judaism and their foundation of their traditions, and then, for high school, we wanted them to be at a government school because in the real world, you're not always in a Jewish bubble, so to speak. That's what we say. We wanted them to be in the wider community. And what, if anything, relating to expense?---Well, that also came into it. We couldn't afford to do two children through private Jewish education year 7 to 12. It's a huge expense. 1743 As it turned out, not only did Zack have to leave suddenly, but eventually his sister Courtney also left, also because of antisemitic behaviour that was not adequately controlled by Mr Minack, and through him, BSC staff. 1744 The sincere and pragmatic aspirations of Mrs and Mr Snelling were dashed by Mr Minack's failures to address and control student behaviour that Zack should never have been repeatedly subjected to. Zack should be awarded $135,975.62, less $1,007.31 for school books and uniform expenses. I accept the respondents' submissions that: Zack would have continued to incur costs associated with school books and uniform even if he had remained at BSC. This is not a loss which is referrable to any "injury", but instead an expense of attending school. Moreover, no evidence was led demonstrating any price differential as between BSC and the King David School. 1745 Contrary to the respondents' submissions, I do not accept that Zack's claim for travel expenses should also be deducted. Ms Snelling's evidence makes it clear Zack was able to walk to BSC. So does Zack's entrance form - "I get to school by walking". It was Mr Minack's conduct in failing adequately control and address antisemitic student behaviour that led to Zack going to a school further away. The respondents did not contend, correctly in my opinion, that after the experiences he had, Zack should have tried his luck at another secular secondary school. It was perfectly reasonable and appropriate for his parents to seek the safest option for their son, and to see that as likely to be a Jewish school. The evidence suggests Zack has enjoyed his new school, and thrived there, so much so he has been able to move on from his terrible experiences at BSC.

Negligence 1746 Dr Tagkalidis diagnosed Zack with an adjustment disorder with anxious mood which, by the time of his second report in March 2022, he found had "largely abated". He added: It should be clear that he would certainly have met the threshold during the period of the relevant events, and for some months afterwards, but that with the passage of time and the partial abatement of his condition, this was no longer the case. I would also suggest that this does not indicate that there were not significant emotional and trajectory related effects affecting the claimant post the relevant period of abuse. 1747 Dr Tagkalidis was not challenged on this opinion in his second report. That opinion is sufficient in my view for the Court to find the tort of negligence has been proven by Zack against Mr Minack, as principal, and to conclude that the State is vicariously liable. 1748 Nevertheless, at the time of trial Zack was not certified to have a "significant injury" for the purposes of the Wrongs Act, and subject to the exception from this prohibition conceded by the respondents, it is not possible for him be awarded any damages in negligence for non-economic loss. 1749 I consider that the exception in s 28LC(2)(a) is not engaged, given my findings in the liability section that Mr Minack did not breach his non delegable duty of care to Zack in relation to the park incident. I have explained this is because it was not reasonably foreseeable, in all the circumstances then existing, that if Mr Minack did not take reasonable steps to protect Zack from antisemitic bullying and harassment at school, Zack would be attacked in the way he was. In particular, I found that to be because Zack left his home during a COVID-19 lockdown period; he was lured to the park by Nova in a way which was wicked and cruel, but not reasonably foreseeable by a principal in Mr Minack's position; Zack decided to leave his home without telling his parents at a time that no reasonable parent would have thought this was likely to occur; and the assault took place in the early hours of the morning when it was not reasonably foreseeable Zack would be in a public place and vulnerable to attack, even if an attack by these particular students on Zack in a public place outside school might in some circumstances have been reasonably foreseeable. 1750 Therefore, although I have no difficulty in inferring that the perpetrators of that attack (I include Nova in this description) intended to cause physical injury to Zack, and did so, the s 28LC(2)(a) exception is inapplicable because there is no liability in negligence for this attack. 1751 Zack's compensation claims for non-economic and economic loss are accordingly awarded under the RDA, although his economic loss claim could also have been payable as damages in negligence.

Aggravated or exemplary damages in negligence 1752 In Gray at [6], the plurality explained the distinction between exemplary and aggravated damages: The distinction between aggravated and exemplary damages is often drawn. In Uren v John Fairfax & Sons Pty Ltd [[1966] HCA 40; 117 CLR 118], Windeyer J noted that it is a distinction that is "not easy to make in defamation, either historically or analytically and in practice it is hard to preserve". Nevertheless, in the present context, it is a distinction which it is as well to bear in mind, if only to attempt to ensure greater accuracy of expression. In Uren, Windeyer J described the difference as being: "that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence." (Footnotes omitted.) 1753 See also New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [33]-[35]. 1754 I accept the respondents' submissions that if there is no entitlement to non-economic loss damages in negligence then there can be no entitlement to any purported aggravation. An award of aggravated damages, as the Court in Gray explains, is made because of the way the harm was inflicted. It is further compensation for harm, in the same nature as, but additional to, purely compensatory payment: see State of New South Wales v Corby [2010] NSWCA 27; 76 NSWLR 439 at [44]. As such, prohibitions such as those in s 28LE of the Wrongs Act should be understood to cover aggravated damages. 1755 That conclusion means none of the applicants can recover aggravated damages in negligence. Since the exception in s 28LC(2)(a) has been found not to apply to Zack in respect of the park incident, that exception does not provide a basis to award aggravated damages to Zack. Aggravated damages would be available to Liam, but I do not consider there are any aggravating factors to justify an increased award for the bathroom incident. 1756 That leaves exemplary damages. The New South Wales Court of Appeal in Corby suggested exemplary damages should be separately treated, because of their essentially punitive nature, and their focus on fault. That feature of exemplary damages is emphasised in the following passages from SB v State of New South Wales [2004] VSC 514; 13 VR 527. In that case, Redlich J explained the threshold for exemplary damages, and the rationale for the level of the threshold, in terms I respectfully agree with and adopt, at [634] and [637]-[638]: It is simply not enough for a court to disapprove of a defendant's conduct. Exemplary damages ought only to be awarded for the more flagrant instances of "conscious wrongdoing" where the conduct of a party is sufficiently reprehensible to require the court to signal its disapproval of that conduct by way of an award of exemplary damages. Such conduct by a party bears the traces of criminal conduct which notionally could be described as conscious, voluntary and deliberate. … In assessing the conduct of a defendant, the court must be satisfied that the behaviour is so reprehensible as to warrant punishment which does not merely irritate but stings. The conduct must be so wrongful and reprehensible that it calls for manifest disapprobation by the community; the conduct must require punishment to deter the wrongdoer and others of like mind from similar conduct; and similarly the conduct must attract something more than compensation to ameliorate the plaintiff's sense of grievance. Though the department's failure to act warrants disapproval it did not occur in contumelious disregard of the plaintiff's rights. However one views the department's intransigence and its consequences for the plaintiff, its conduct was not of a character which attracts an award of exemplary damages. (Footnotes omitted.) 1757 The applicants' counsel spent very little time developing in the evidence, or in their submissions, how exemplary damages claims were put. Again, there was a scattergun approach, full of assertions not backed up by detail or evidence references, let alone by any careful adherence to the pleaded case. The latter was a point I made to the applicants' counsel during final submissions when he started suggesting that exemplary damages could be awarded against departmental officers, who were not respondents, and against whom no pleaded allegations had been made. 1758 Even if exemplary damages were available, they would only be available for Liam being the only applicant for whom damages in negligence are available, under the exception in s 28LC(2)(a) of the Wrongs Act. In terms of the harm caused by the principal's breaches of duty of care to him, that conduct was not so "wrongful and reprehensible" as to call for punishment by way of an award of exemplary damages.

Aggravated or exemplary damages under the RDA 1759 I explained in Wotton why I do not consider exemplary damages are available under the RDA: see [1784]-[1796]. Neither party sought to contend otherwise, at least before me. 1760 On the other hand, in this proceeding it appeared to be accepted by the respondents that aggravated damages were available, being compensatory in nature. That was the view I took in Wotton: see at [1728]-[1737]. And as to the compensatory purpose of s 46PO, see Gama at [94], French and Jacobson JJ, to which I referred in Wotton. 1761 In Wotton at [1734] I also noted that: In Hall v Sheiban [(1989) 20 FCR 217] Lockhart J (at FCR 239-40; ALR 523-4) and French J (at FCR 282; ALR 570) were prepared to assume, without deciding, that aggravated damages may be available under s 81(1)(b)(iv) of the Sex Discrimination Act. 1762 In Wotton at [1733] I said: In some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect. In Elliott v Nanda (2001) 111 FCR 240; [2001] FCA 418 (Elliott) at [179]-[185], Moore J set out the kinds of additional circumstances which might justify such an award. All concerned the manner in which a respondent or defendant conducted proceedings brought against her, him or it. An example is Houda v New South Wales [2005] NSWSC 1053, in which aggravated damages of $20,000 were awarded for the way the defendant conducted its defence of the proceedings against the plaintiff. 1763 I went on to find there were two difficulties for the applicants' aggravated damages claim in Wotton: see [1737]-[1744]. Those difficulties are not present in the current proceeding in relation to the only conduct I have seriously considered might warrant an award of aggravated damages. 1764 The particular conduct is Mr Minack's conduct after the park incident on Zack, in not contacting Zack or the Snellings to see how Zack was and to follow up on what should be done by BSC to protect Zack going forward, and what should be done by BSC in relation to the student perpetrators. Mr Minack is the principal respondent against whom I have made findings of contravention under s 9 of the RDA. The failures and omissions I have found to have been based on race, and to have impaired the applicants' human rights, were, ultimately, his failures and omissions. Thus the first difficulty in Wotton is not present. There was evidence about Mr Minack's almost total silence after this terrible event, and he was cross-examined about it. A sufficient evidentiary foundation exists, and the second difficulty identified in Wotton is not present. 1765 The key aspects of the evidence were the following. 1766 The assault in the park occurred on 2 April 2020. 1767 Mr Minack accepted he took no steps to try to move any of the student perpetrators out of BSC, although he was willing to help Zack move away. 1768 He prevaricated in cross-examination about why he did not seek to discipline Nova for her role in the matter. 1769 He agreed he had no discussion with Ms Angelidis about how they could keep Zack safe at school. Further: And you did not contact Natalie to have a meeting about how to make Zack safe, did you?---Not personally. No. And you didn't send her any information about how to make him - Zack safe by email?---Not personally. No. 1770 Mr Minack conceded that when in his evidence-in-chief he had asserted he took steps after the assault to make sure "everything that was needed to be done to successfully transition Zack back to school was taken care of, including linking him to the wellbeing team", what in fact happened was a "safety plan" - for Ramin - and nothing directly for Zack. 1771 Mr Minack in his evidence described Ramin as "a not very well socialised boy at all", which in light of how he had just been taken through in cross-examination what happened to Zack in the park, was a remarkable downplaying of a vicious attack. It would have been remarkable for any person to downplay the attack by such a description of the perpetrator, but it is especially remarkable to have a principal of the school concerned do so in a trial of the kind in this proceeding. If ever there was an occasion for a wholesale expression of sympathy and outrage at what happened to Zack, this proceeding was the place. Mr Minack gave no such indication. 1772 Mr Minack's first email to Ms Snelling after the attack (27 April 2020) said: I hope you and your family are all well, and that Zack has recovered from the assault. 1773 He then went on to say he had spoken to the principal at McKinnon Secondary College to see if they could take Zack. The emails in evidence show that Ms Snelling then had to pester Mr Minack to get responses out of him. Mr Minack's attempts with McKinnon Secondary College were unsuccessful, although it is unclear how hard he tried. 1774 There is no evidence at all that Mr Minack even telephoned Ms Snelling to see how Zack was after the attack. This is a BSC student who had been viciously assaulted by other BSC students, and the police had become involved. It is astonishing that Mr Minack showed no common human decency towards the Snellings, let alone the care and empathy that a principal ought be expected to show. 1775 This is how Ms Snelling described herself feeling after the assault: I was frightened, scared, angry that this had even happened. And when I had to sit there listening to Zack give his statement to police and he was able to name most of the offenders, it cemented for me exactly who I thought had done it, and those were the students that had been bullying him at Brighton Secondary for so long. 1776 It was apparent from Ms Snelling's evidence, and from Senior Detective Constable Lordanic's evidence, that the latter had spoken to Mr Minack shortly after the assault. Yet still Mr Minack did not contact the Snellings, which is frankly bizarre. This was Ms Snelling's evidence which I accept entirely: So what did you do - after you found out that he had been speaking to Mr Minack, what did you do?---I immediately emailed Mr Minack requesting that he contact me and had said, "I believe that you have been speaking with the police in relation to an incident involving my son," to please contact me. Could we please get up tab - volume 5, tab 38. Is that the email?---Yes, it is. And what happened after?---Mr Minack phoned me a short time after to let me know that he was working with the police and was aware of the matter and asked if Zack was okay. Did Mr Minack ever indicate surprise in relation to this incident?---No. He appeared to know about the incident. And so to the best of your recollection, what did you say to each other in that conversation?---To the best of my recollection, I asked him have you been contacted by the police in relation to an incident with my son and to do with that set of boys. And he had confirmed that he had spoken with Mister - not Mister - Constable Lordanic and was aware of the incident in the park and that he would be working with the police. And how concerned did he sound at that time?---Well, he just simply said, "Is Zack okay?" It was just - I don't know. Didn't seem to have major concern. And around this time did Ms Angelidis contact you at all to check up on Zack?---No. And what was her role again?---The assistant principal of the school and to manage - behaviour management of students at the school. And what about the Brighton Secondary welfare team. Did you get a call from Peter Mangold?---No. What about Kylie Mayers?---I don't even know who she is, no. Tania Vairamuttu?---No. What about Karen Gibson?---No. What about Jess Giffin?---No. So did anyone else from the school contact you?---No, it was purely Mr Minack and that was only off the back of me emailing him. 1777 This behaviour, while to be deplored, is consistent with what I have found to be Mr Minack's attitude to the welfare of Jewish students at BSC. It was his responsibility to direct his staff to assist Zack and his family. I do not consider the fact of COVID-19 lockdowns are any kind of sufficient excuse - telephones were still working. Exemptions for travel existed. Zack had been interviewed by police and Mr Minack no doubt could have justified visiting the Snellings. In any event, Mr Minack did not proffer COVID-19 restrictions as a reason for his inaction. 1778 Ms Snelling had been proactive (rather than Mr Minack being proactive) in trying to find a way for Zack safely to return to school. She wrote this on 12 May 2020 to Mr Minack: We are concerned that if schools are returning on 9 June that Zack is going to be nervous about returning as there doesn't seem to be a plan from the school as to how these kids who assaulted him are going to be managed in the school day in order for Zack to be safe at school. 1779 The evidence shows there was no plan. I infer that was because Mr Minack was quite content for it to be Zack who left BSC. That was the path of least resistance. The victim could leave. 1780 Ms Snelling gave the following evidence, which I also accept: What, if any, assurance did you get from the school about his safety?---I didn't. So what had you received in the past from Mr Minack or Ms Angelidis?---Well, in our discussions or emails, I would be asking for their reassurance, and it appears that I really didn't get it. It was putting a safety plan in place, which meant talking to a student or two, telling them to stay away from my son. The odd - I think it was a one-day suspension where they didn't have to come to school; have some fun at home; it's a day off school. But my son went to school scared for his life, wondering whether or not he was going to get through the day. So it was very, very upsetting. I was angry and disappointed that they appeared to not be able to put in place something for Zack to make sure that he was safe. Where would you have liked Zack to stay, if you could?---We - my husband and I would have liked him to be able to stay at the school if they could actually get rid of these group of kids that were causing the issues throughout this time. Had they been able to be expelled and clean up the school, then I would have felt okay to keep him there. He wanted to stay. He had made friends at the school. 1781 She explained how Mr Minack: completely ignored my request to want to meet with him and/or Lee Angelidis, the assistant principal, to try and make a plan to ensure his safety, and goes straight into wanting to see and make inquiries at Bentleigh Secondary. And it was extremely dissatisfying that he writes, "Sorry to disappoint you in this." He didn't care. I think by this stage, my feeling was he didn't want us there any more. 1782 Mr Minack's reply was minimalist when told by Ms Snelling that Zack was leaving BSC. It bears repeating: Dear Natalie, Thanks for letting me know. I will ask the registrar to prepare exit forms for your signature. I am sorry we could not make things work out for Zack here, and hope it goes well for him at his new school. Yours sincerely, Richard 1783 That is in response to an email where Ms Snelling had said: It does sadden us and is terribly disappointing that Zack was unable to safely stay at BSC to continue his education through to Year 12. 1784 So, even at this point, after Zack being regularly bullied and harassed at school and cyberbullied (contrary to BSC policies which there appears not to have been any attempt to enforce), being physically assaulted in a classroom, having death threats sent to him, and then being beaten and robbed in a park, all Mr Minack could say was that he was sorry things didn't work out for Zack. That is a reaction that was insensitive and lacking in empathy. 1785 One further piece of evidence from Ms Snelling illustrates the lack of empathy, and how it filtered down to other BSC staff: Did you receive a phone call from Mr Minack?---No. So was there any other correspondence in relation to him staying?---No. Any safety support plan?---None. Was there any mention of the six people who had been involved in the assault and their likelihood of staying?---Didn't hear anything. So did you have any further communication with him?---I don't believe so. And what about anyone from the welfare team?---None. And then, so after that, did you let the teachers know at the school that Zack was leaving?---Yes, I did. I sent an email to his classroom teachers that he specifically had to inform them that, due to the severe bullying that he had endured throughout his time at Brighton Secondary, that it was not safe for him to be at the school, and that he would be continuing to learn at home for those last two weeks of term 2, being supervised either by my husband, my mother-in-law or myself. So once you had made the decision, so what further contact did Zack have with Brighton, and for how long, roughly?---He didn't, other than attending online lessons and completing what work he could for those last two weeks. There was no further contact. 1786 I find no other staff from BSC contacted the Snellings either. It is difficult to imagine how isolated they and Zack must have felt. Even allowing for the challenges of communicating through COVID-19 lockdown, there is simply no reasonable excuse for an absence of sympathetic and caring phone calls and emails from Mr Minack and from his staff, especially the wellbeing staff. There was no excuse for at least attempts to secure permission to visit the Snellings and speak to them in person. Zack was still an enrolled student at BSC at this time. 1787 The underlying reasons for Mr Minack's attitude to Jewish students, and his tolerance of high levels of antisemitism amongst BSC students, were simply not explored by the applicants' counsel in the evidence. However, that is not a necessary matter for proof in order to be satisfied, as I am, that aggravated damages should be awarded to Zack under the RDA. I find Mr Minack's conduct after the park incident caused further humiliation and distress to Zack, and to his family. It was the starkest example of Mr Minack's lack of care for the needs of a Jewish student at BSC. 1788 Tellingly, his behaviour was similar to his behaviour with Liam and Ms Meltzer. The similarity of his reaction, many years apart, confirms to me that Mr Minack was unable to treat Jewish students as a principal in his position should have treated them, and was unwilling to confront or address antisemitism at BSC. The fact that the only action Mr Minack was interested in taking was to try and have Zack removed from the school is a stark and extreme example of the differential treatment he was prepared to give to Jewish students. I find it inconceivable that if Zack had been a non-Jewish female student who had been assaulted in a park by other BSC students, Mr Minack would have behaved in the same way. 1789 I consider Zack should be awarded $30,000 in aggravated damages as part of his compensation for Mr Minack's contravention of s 9 of the RDA. Mr Minack's conduct after the park incident, but really as part of a course of conduct of downplaying what had happened to Zack at BSC, increased Zack's hurt (see Ibbett at [35]) and Zack should be compensated for that.

OTHER RELIEF CLAIMED: RESOLUTION 1790 In addition to damages, the applicants in their originating application also seek: (a) a public apology from each respondent; (b) a declaration from the State that the respondents have committed unlawful discrimination and directing them not to repeat or continue such unlawful discrimination; (c) an order that all staff at BSC and other schools under the control and management of the State undergo mandatory training and professional development in relation to antisemitism (including anti-Israeli conduct) and in relation to racial discrimination more broadly; and (d) an order that all schools under the control and management of the State run mandatory, age appropriate, specialised training/courses for all students in relation to tolerance, stand-up behaviour, bullying, antisemitism and discrimination, to be provided by appropriately qualified organisations.

Apology 1791 As to the apology, the applicants submit that the Court should order an apology from each respondent, as this may vindicate the applicants in the community's eyes and inform the public of public wrongdoing. In closing written submissions, the applicants indicated that they seek either an apology or a public statement. The applicants rely particularly on Creek v Cairns at [34], Haider at [21], Eatock at [465]-[466], and Carter. 1792 With respect to the apology given by Mr Minack in the witness box as part of the trial, counsel for the applicants repeated that it was his instructions to seek a further apology, and that this apology had only been made with respect to three of the five applicants. 1793 The respondents submit that they are unable to sensibly engage with the apology sought by the applicants, because the applicants have not provided the wording of any such apology. The respondents also submit that, if the Court is minded to order an apology, then, citing Wotton at [1570]-[1591], the State is the appropriate respondent to be ordered to make the apology as an institutional apology. 1794 In Wotton at [1565], after examining the authorities, I observed that the cases make it clear that whether an apology is an appropriate remedy will be fact and circumstance dependent. I discussed in detail domestic and international authorities on apologies. At [1584] I concluded that the Court needed to be satisfied that a Court-ordered apology is an act which would redress damage suffered by the applicants. 1795 I consider a sincere apology on behalf of the State, since BSC is a State-run school, will go a considerable way to assisting to redress the hurt the applicants all feel. I referred in Wotton at [1591] to the character of an institutional apology. In modern Australian public life, the institutional character of an apology is well understood, and it is often considered highly meaningful to those receiving it. My impression from the applicants and their families is that they would find an apology meaningful. 1796 Part of the redress process should be for the State, in light of the Court's reasons, to propose itself a form of apology, and for the applicants to consider it. If the parties cannot agree on a form of apology to be given by the State, then the matter will have to return to the Court and the Court will impose a form of apology. That is not my preferred course, but this is a case where I consider this remedy has real work to do, coming from the State. That said, the parties must now behave responsibly and seek to agree the form and content of an apology, pursuant to the Court's orders. If they cannot reach agreement, the Court will need to consider whether it is appropriate for the Court to impose a specific form of apology on the State, and to prescribe the form the apology should take. Depending on what is proposed, it may nor may not be appropriate for the Court to be engaged in that exercise. That is not a question of power, but a question of discretion. Without mutual agreement on the form and content of an apology (or apologies), the applicants need to understand they risk receiving no Court-ordered apology at all, if the Court considers what they seek is unreasonable or inappropriate. 1797 I do not consider Mr Minack should be ordered to apologise. He was offered a chance to do so in the witness box, and could not bring himself to do more than to say with hindsight he was sorry. But what he was sorry for, as he expressed it, was the way the applicants felt. There was no recognition of any failures on his part. There was certainly no recognition of differential treatment. I do not see any point in ordering Mr Minack to apologise. He does not consider he has done anything unlawful. The Court's findings say otherwise. He will have to live with them. That is sufficient. 1798 I do not consider Mr Varney should be compelled to apologise to Guy. He did not accept he engaged in much of the behaviour alleged. Any apology from him would not be sincere, and I did not get any sense Guy wanted one.

Declaration 1799 The respondents submit that there is no basis for the declaration sought by the applicants. Either, they submit, the applicants succeed on their negligence claims and the declaration serves no additional purpose or, alternatively, the applicants fail in their negligence claims and the declaration has no basis to be made. The applicants made no discernible substantive submissions on this point that were separate to their submissions regarding the applicants' claims in negligence. 1800 Without any justification advanced on behalf of the applicants for declaratory relief in relation to their negligence claims, I accept the respondents' submissions that declaratory relief is unnecessary. 1801 However, as I did in Wotton, I consider it is appropriate to grant declaratory relief under the RDA.

Training 1802 As to orders regarding training, the respondents submit that such orders are unnecessary, as the Court has heard evidence that the school has implemented training in relation to antisemitism at the school, particularly arising out of the implementation of the recommendations of the Worklogic report. The applicants instead submit, without reference to any specific evidence, that the evidence of the respondents' witnesses suggests that the orders need to be implemented and they remain pressed. 1803 There was no evidentiary foundation laid by the applicants' counsel to press for this kind of relief. The evidence did demonstrate that the implementation of the Worklogic recommendations had some effect at BSC. No doubt the publication of these reasons for judgment will also have an effect. Orders about training are likely to involve some level of supervision by the Court, and reporting, and to lead to further disputes about adequacy. I do not consider they are likely to enhance the finality that final orders should bring to matters between the parties. None of the applicants remain at BSC. The Court can be confident the State will carefully consider the Court's findings. What it then does in terms of practices at State secondary schools - whether at BSC or more widely - is a matter for it.

CONCLUSION 1804 There will be orders in accordance with these reasons. 1805 The applicants are entitled to a costs order, capped in accordance with the Court's orders of 27 October 2021. 1806 If the parties seek any further orders, or variations to the orders made, the Court will consider any proposed additional or varied orders. The parties will be given 15 working days to file any proposals, supported by submissions of no more than five pages. I certify that the preceding one thousand, eight hundred and six (1806) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer.

SCHEDULE OF PARTIES VID 391 of 2021 Applicants Fourth Applicant: ZACK SNELLING Fifth Applicant: LIAM ARNOLD-LEVY