Kaplan v State of Victoria

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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)…

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Details
Case
[2022] FCA 590
Decision Date

CaseChat Overview and Summary

The matter of Kaplan v State of Victoria involved an interlocutory application made by the State of Victoria seeking suppression of the identities of 34 individuals who were non-parties to the proceeding, some of whom were minors. The applicants sought suppression orders to protect the individuals' privacy and prevent potential harm, particularly given the sensitive nature of the allegations involved. The Federal Court was tasked with balancing the interests of the individuals, the applicants, and the principles of open justice.

The central legal issue before the court was whether suppression orders should be granted to protect the identities of the non-party individuals, considering their status as minors and the broader implications for the principle of open justice. The court had to assess the necessity and proportionality of such orders, taking into account the potential impact on the trial process and the public's right to be informed about court proceedings. Additionally, the court needed to determine whether the applicants' concerns about potential misuse or sensationalism of the individuals' identities were sufficiently substantiated.

The court dismissed the application for suppression orders, concluding that the potential benefits of protecting the individuals' identities did not outweigh the public interest in open justice. The judge noted that the media articles in evidence did not substantiate fears of misuse or sensationalism, and that the matter should be addressed at the commencement of the trial. The court emphasised that the principle of open justice is integral to the administration of justice and that suppression orders should not be granted lightly, particularly when they involve non-parties. The interim suppression orders were also vacated, and no order was made as to the costs of the interlocutory application.

In summary, the court rejected the application for suppression orders, emphasising the importance of open justice and the need to address identity issues at trial. The dismissal of the application ensures that the trial will proceed with appropriate considerations for the interests of all parties involved.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Suffice to say there will be a considerable amount of evidence, a large proportion of it given orally.The media articles in evidence The media articles in evidence are from July 2020 (two articles), August 2020 (one article) and November 2021 (two articles). None of them name any of the 34 individuals. Nor do they name the applicants. It is clear this proceeding has a number of features that are likely to create interest from sectors of the public, and members of the community more generally. It is therefore also likely to be the subject of some media reporting. How much may of course depend on what else is going on in the news cycle at any given time. Publication of reports of proceedings by the media is an integral part of open justice: see for example my observations in Jenkings at [70] and [93]. Media reporting is one way in which the community can learn about proceedings. With livestream, remote hearings and direct publication of more material by courts themselves, it is far from the only way. Nevertheless, there is no question media reporting remains an important aspect of open justice. If, by pointing to some minor media reports from some time ago, the State seeks to suggest that the fact of reports by the media about this proceeding justifies suppression of the identities of the 34 individuals, such a proposition must be rejected. Again, it may be that the State is simply highlighting the realities about the prospects of aspects of this proceeding being reported. So much may be accepted, but it does not make a suppression order of the kind sought “necessary”. As Besanko J stated in Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 at [13] (Roberts-Smith (No 26)), media representatives themselves have a number of professional and ethical obligations. The Court is entitled to expect reporting will be responsible, fair and reasonable. The media articles in evidence provide no probative basis for any fears that the identities of the 34 individuals will be misused, or used sensationally and inappropriately, without cause, in any media reporting.Rejection of the first approach taken by the State in its submissions In its submissions on this application, the State sought to relegate almost to irrelevance the underlying factual allegations made by the applicants, in relation to allegedly discriminatory conduct by students at BSC. It contended (at [8]):First, what matters for those allegations is what was done by the school at the time, in the light of the knowledge the school had at the time. The primary facts are (a) what was said by one or more of the applicants to one or more of the respondents by way of report; (b) what steps the respondent(s) took in response. None of that requires naming the BSC Students.(Original emphasis.) I accept this is the State’s case, but it will need to persuade the Court at trial that this is the correct approach. It is clear from the samples of the pleadings and the concise statement and response extracted above that the applicants may not agree. Further, this position does not entirely capture how the State has responded in its defence. The State has made some, but not many, factual admissions about the conduct. It has made a number of denials. That includes denials about whether complaints or reports were made at all.

Decision

Reasons for decision

This matter should be addressed by the parties at the commencement of the trial.CONCLUSION For the reasons set out above, the respondents’ suppression application will be dismissed. The interim orders made pending the resolution of the suppression application will also be dismissed. Given the applicants have had a similar application, the basis for which may not be consistent with my present ruling, and given the issue will need to be re-visited at trial, I do not consider it is appropriate to order costs on this application, nor to reserve the applicants’ costs. This was simply a matter arising in preparation for trial, which was largely dealt with at a case management hearing that was required for other purposes.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.