Kaplan v State of Victoria

• Jurisdiction: Australia Federal only
• Judgment Date: 20 May 2022
• Neutral Citation: [2022] FCA 590
• Date: 20 May 2022
• Court: Federal Court

Federal Court of Australia

Kaplan v State of Victoria [2022] FCA 590

File number(s):	VID 391 of 2021
Judgment of:	MORTIMER J
Date of judgment:	20 May 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for suppression of identities of 34 individuals – where individuals are non-parties and some are minors – interests of children – effect of suppression orders on trial – requirements of open justice – interim suppression orders – application dismissed
Legislation:	Fair Work Act 2009 (Cth) Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) ss 37AF(1), 37AG(1), 37M National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) Racial Discrimination Act 1975 (Cth) ss 9, 18C Family Violence Protection Act 2008 (Vic)
Cases cited:	AA v BB [2013] VSC 120; 296 ALR 353 AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202 AX v Stern [2008] VSC 400 BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618 D1 v P1 [2012] NSWCA 314 Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2) [2022] FCA 125 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 TTT & JJJ v State of Victoria [2013] VSC 162
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	94
Date of last submission/s:	20 April 2022
Date of hearing:	Determined on the papers
Counsel for the Applicants:	Mr Adam Butt
Solicitor for the Applicants:	Cornwalls
Counsel for the Respondents:	Mr Chris Young QC
Solicitor for the Respondents:	MinterEllison

ORDERS

		VID 391 of 2021
BETWEEN:	JOEL KAPLAN First Applicant ; JANET ABADEE AS REPRESENTATIVE OF MATT KAPLAN, A MINOR Second Applicant ; SARIT COHEN AS REPRESENTATIVE OF GUY COHEN, A MINOR (and others named in the Schedule) Third Applicant
AND:	STATE OF VICTORIA First Respondent ; RICHARD MINAK Second Respondent ; PAUL VARNEY Third Respondent ; DEMI FLESSA Fourth Respondent

order made by:	MORTIMER J
DATE OF ORDER:	20 May 2022

THE COURT ORDERS THAT:

1. The first respondent’s interlocutory application dated 31 March 2022, as amended, be dismissed.

2. Order 4 of the orders of Justice Mortimer dated 5 April 2022 be vacated.

3. Order 1 of the orders of Judicial Registrar Legge dated 19 April 2022 be vacated.

4. There be no order as to the costs of the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Background

1. The first respondent in this proceeding (the State of Victoria) filed an interlocutory application dated 31 March 2022 (the suppression application), relating to the suppression of the identities of 34 individuals, whose names appear in the applicants’ pleadings, in the outlines of evidence filed, and are likely to appear in the evidence at trial. Subsequent to a case management hearing on 5 April 2022 to which I refer below, the State filed an amended suppression application: see [13] below. I use the term ‘suppression application’ to cover the amended application as well. Given its nature, this is only put as the State’s application, rather than an application by all respondents.

2. The suppression application seeks in relevant part an order, being proposed order 1, that:

Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the Act), and on the grounds referred to in s 37AG(1)(a) and (c) of the Act, there is to be no disclosure, other than by order 3, by publication or otherwise, of information that identifies, or tends to identify, the 34 persons (Witnesses 7-40) listed in the confidential Annexure B to these Orders (Confidential Annexure B).

(Original emphasis.)

3. I note that in this proposed order, the individuals are described as “witnesses”; however, with one exception, none of them are presently proposed to be called as witnesses by either party.

4. The State proposes an order allowing disclosure of the identities of these people to judges, court staff and transcript service providers, the legal representatives of the parties, witnesses and any judges and court staff involved in any appeal.

5. Confidential annexure B (Annexure B) to the suppression application sets out a list of the names of the 34 individuals.

6. An affidavit of Ms Caitlin Ible dated 31 March 2022 was read in support of the suppression application. Relevantly, Ms Ible deposed:

1. she was “aware that there has been media coverage of the allegations that are the subject of this proceeding and also the proceeding”, and annexed several media reports to her affidavit;

2. the 34 named individuals are former and current Brighton Secondary College (BSC) students, who the applicants allege engaged in, amongst other things, verbal and physical assaults, taunts, criminal conduct, Nazi salutes, racist assaults, battery and bullying of the applicants;

3. each was a minor at the time of the alleged conduct; and

4. 15 of the 34 individuals were still minors (I infer, as at the time she affirmed her affidavit).

7. Ms Ible deposed that none of the 34 individuals “will be a witness in the proceeding”. This was confirmed by senior counsel for the State at the hearing on 5 April 2022. However, in its subsequent written submissions, the State identified one of the 34 individuals who was being called as a witness by the applicants. This person is not a witness whose identity the applicants have applied to have suppressed.

8. On the morning of 5 April 2022, prior to the case management hearing in the proceeding, the applicants’ legal representatives sent by email to Chambers:

1. submissions opposing the suppression application; and

2. an accompanying affidavit of Mr Adrian Lo Monaco dated 5 April 2022 (which was subsequently filed with the Court’s Registry later that morning).

9. At the hearing, I granted the applicants leave to uplift the submissions and accompanying affidavit filed that morning, in order for those documents to be amended and re-filed. Those documents were subsequently uplifted from the Court record and later re-filed with amendments.

10. At the case management hearing, there was some discussion of the parties’ positions on the suppression application, but the parties were given an opportunity to file written submissions and any further affidavit material. An order was made – with the parties’ agreement – that the suppression application would be determined on the papers. An interim order to the...