Kaplan V State of Victoria

FEDERAL COURT OF AUSTRALIA
Kaplan v State of Victoria (No 8) [2023] FCA 1092
File number(s): VID 391 of 2021
Judgment of: MORTIMER CJ
Date of judgment: 14 September 2023
Catchwords: HUMAN RIGHTS – racial discrimination – s 9(1) and

s 18C of the Racial Discrimination Act 1975 (Cth) – right
to security of person and protection – right to education –
right to preserve Jewish identity – where applicants are
Jewish former students at Victorian public secondary
school – alleged failure to protect Jewish students from
antisemitic bullying and harassment – swastika graffiti –
application allowed in part – speech by principal to full
school assembly did not contravene s 18C
NEGLIGENCE – school principal’s duty of care – non-

delegable duty – vicarious liability
DAMAGES – orders for compensation under s 46PO(4) of

the Australian Human Rights Commission Act 1986 (Cth) –
aggravated damages – whether appropriate to order an
apology or apologies
Legislation: Australian Human Rights Commission Act 1986 (Cth)

ss 49PO(4), 49PO(4)(d)
Disability Discrimination Act 1992 (Cth) ss 22(1)(b),
24(1)(b)
Evidence Act 1995 (Cth) ss 136, 140, 140(2)
Judiciary Act 1903 (Cth) s 79
Racial Discrimination Act 1975 (Cth) ss 3(3), 6, 9, 9(1),
9(1A), 9(2), 18A, 18A(2) 18C, 18C(1)(a), 18(1)(c)(b)
Sex Discrimination Act 1984 (Cth) ss 14(2), 28B, 28B(6)
Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act 1977 (NSW) s 8
Crown Proceedings Act 1958 (Vic) s 23(1)(b)

Equal Opportunity Act 1985 (Vic) s 87
Equal Opportunity Act 1995 (Vic) ss 86(1)(b), 87(1)
Equal Opportunity Act 2010 (Vic) ss 92, 93
Racial and Religious Tolerance Act 2001 (Vic) s 7
Summary Offences Amendment (Nazi Symbol Prohibition)
Act 2022 (Vic)
Wrongs Act 1958 (Vic) Pts VBA, X, ss 28LB, 28LC(2)(a),
28LE
Convention on the Rights of the Child, opened for signature

20 November 1989, 1577 UNTS 3 (entered into force 2
September 1990) arts 8, 8(1), 12, 14, 19, 29(1)(c), 30
International Convention on the Elimination of All Forms of
Racial Discrimination, opened for signature 21 December
1965, 660 UNTS 195 (entered into force 4 January 1969) arts
5, 5(b), 5(e)(v)
International Covenant on Civil and Political Rights, opened
for signature 16 December 1966, 999 UNTS 171 (entered
into force 23 March 1976) arts 9(1), 24(1)
International Covenant on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 993 UNTS
3 (entered into force 3 January 1976) art 13
Universal Declaration of Human Rights, GA Res 217A
(III), UN GAOR, UN Doc A/810 (10 December 1948) art
26
Committee on Economic, Social and Cultural Rights,

General Comment 11, UN Doc E/C.12/1999/4 (10 May
1999)
Committee on Economic, Social and Cultural Rights,
General Comment 13, UN Doc E/C.12/1999/10 (8
December 1999)
Committee on the Elimination of Racial Discrimination,
General Recommendation 20 on Article 5, UN Doc
CERD/48/Misc.6/Rev.2 (8 March 1996)
Human Rights Committee, General Comment No 35, UN
Doc CCPR/C/GC/35 (16 December 2014)
John Tobin (ed), The UN Convention on the Rights of the

Child: A Commentary (Oxford University Press, 2019)
Sarah Joseph and Melissa Castan, The International
Covenant on Civil and Political Rights: Cases, Materials
and Commentary (Oxford University Press, 3rd edition,
2013)
Cases cited: Abdulrahman v Toll Pty Ltd t/as Toll Express [2006]
NSWADT 221

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Australian Competition and Consumer Commission v
NQCranes Pty Ltd [2021] FCA 1270
Badenach v Calvert [2016] HCA 18; 257 CLR 440
Baird v Queensland [2006] FCAFC 162; 156 FCR 451
Barnes v Northern Territory Police [2013] FCCA 30
Bharatiya v Antonio [2022] FCA 428
Bird v DP [2023] VSCA 66; 323 IR 174
Bradford-Smart v West Sussex County Council [2002]
EWCA Civ 07
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bropho v Human Rights and Equal Opportunity Commission
[2004] FCAFC 16; 135 FCR 105
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
Cairns Regional Council v Carey [2012] QCATA 150
Campbell v Kirstenfeldt [2008] FMCA 1356
Campbell v Northern Territory of Australia (No 3) [2021]
FCA 1089; 295 A Crim R 1
Carter v Brown [2010] NSWADT 109
Clarke v Catholic Education Office [2003] FCA 1085; 202
ALR 340
Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012]
FCA 307; 201 FCR 389
Coles Supermarkets Australia Pty Ltd v Bridge [2018]
NSWCA 183
Collins v Smith [2015] VCAT 1992; 256 IR 52
Commonwealth of Australia v Fernando [2012] FCAFC 18;
200 FCR 1
Commonwealth of Australia v Introvigne [1982] HCA 40;
150 CLR 258
Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352
Cross v Hughes [2006] FMCA 976; 233 ALR 108
DP v Bird [2021] VSC 850
Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114
Eatock v Bolt [2011] FCA 1103; 197 FCR 261

Employment Services Australia Pty Ltd v Poniatowska
[2010] FCAFC 92
Eskinazi v State of Victoria [2003] VCC 38
Ewin v Vergara (No 4) [2013] FCA 1409
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011]
FCA 803; 209 IR 263
Fisher v Commonwealth of Australia [2023] FCAFC 106
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
Gill v Ethicon Sàrl (No 5) [2019] FCA 1905
GLS v PLP (2013) VCAT 221
Gray v Motor Accident Commission [1998] HCA 70; 196
CLR 1
Green v State of Queensland [2017] QCAT 8
Hagan v Trustee of Toowoomba Sportsground Trust [2000]
FCA 1615
Hagan v Trustees of Toowoomba Sports Ground Trust
[2001] FCA 123; 105 FCR 56
Haider v Hawaiian Punch Pty Ltd (t/as The Honeypot Club)
[2015] FCA 37
Hamzy v Commissioner of Corrective Services NSW [2022]
NSWCA 16; 107 NSWLR 544
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd
[2002] HCA 41; 210 CLR 109
Iliafi v Church of Jesus Christ of Latter-Day Saints Australia
[2014] FCAFC 26; 221 FCR 86
Introvigne v Commonwealth of Australia (1980) 48 FLR 161
John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Jones v Toben [2002] FCA 1150; 71 ALD 629
Kanapathy v in de Braekt (No 4) [2013] FCCA 1368
Kaplan v State of Victoria [2022] FCA 590

Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA
11; 243 CLR 361
Lee v Smith (No 2) [2007] FMCA 1092
Lee v Smith [2007] FMCA 59
Leichardt Municipal Council v Montgomery [2007] HCA 6;
230 CLR 22
Lek v Minister for Immigration, Local Government and
Ethnic Affairs [1993] FCA 411; 43 FCR 100
Mabo v State of Queensland [1988] HCA 69; 166 CLR 186
Macedonian Teachers’ Association of Victoria Inc v Human
Rights and Equal Opportunity Commission [1998] FCA
1650; (1998) 91 FCR 8
Maloney v The Queen [2013] HCA 28; 252 CLR 168
Masson v Parsons [2019] HCA 21; 266 CLR 554
Meckiff v Simpson [1968] VR 62 at 70
Murugesu v Australia Post (No 2) [2016] FCCA 2355
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
New South Wales v Lepore [2003] HCA 4; 212 CLR 511
Oyston v St Patrick’s College (No 2) [2013] NSWCA 310
Oyston v St Patrick’s College [2011] NSWSC 269
Oyston v St Patrick’s College [2013] NSWCA 135
Palmer v The Queen [1998] HCA 2; 193 CLR 1
Pateras v State of Victoria [2017] VSCA 31
Payne v Parker [1976] 1 NSWLR 191
Phelps v Hillingdon London Borough Council [2000] 3
WLR 776
Poniatowska v Hickinbotham [2009] FCA 680
Prince Alfred College Inc v ADC [2016] HCA 37; 258 CLR
134
Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR
537
Re Alex [2009] FamCA 1292; 248 FLR 312
Re Tracey [2011] NSWCA 43; 80 NSWLR 261
Richards v State of Victoria [1969] VR 136

Richardson v Oracle Corporation Australia Pty Ltd [2014]
FCAFC 82; 223 FCR 334
Rizeq v Western Australia [2017] HCA 23; 262 CLR 1
Roberts-Smith v Fairfax Media Publications Pty Limited (No
41) [2023] FCA 555
Ross v New Brunswick School District No 15 [1996] 1 SCR
825
Salt v State of Victoria [2017] VSC 6; 52 VR 130
SB v State of New South Wales [2004] VSC 514; 13 VR 527
Shultz v McCormack [2015] NSWCA 330
Silberberg v The Builders Collective of Australia Inc [2007]
FCA 1512; 164 FCR 475
State of New South Wales v Corby [2010] NSWCA 27; 76
NSWLR 439
State of Queensland v Barney [2013] QCATA 104
State of Victoria v McKenna [1999] VSC 310; 140 IR 256
State of Victoria v Subramanian [2008] VSC 9; 19 VR 335
Tan v Xenos (No 3) [2008] VCAT 584
Toben v Jones [2003] FCAFC 137; 129 FCR 515
Trustees of the Roman Catholic Church for the Diocese of
Bathurst v Koffman (1996) Aust Torts Reports 81-399
Waller v James [2015] NSWCA 232; 90 NSWLR 634
Wodonga Regional Health Service v Hopgood [2012] VSCA
326; 37 VR 284
Wotton v Queensland (No 5) [2016] FCA 1457
Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 1806
Date of last submission: 21 March 2023
Date of hearing: 1-3, 6-10, 14-16, 20-24, 27-29 June 2022, 25-29 July 2022,
14, 17-18, 21-25 November 2022, 27-28 February 2023, 1-
2 March 2023

Counsel for the Applicants: Mr A Butt with Mr C Dawlings and Mr A Marcou
Solicitor for the Applicants: Cornwalls
Counsel for the Respondents: Mr C Young KC with Mr T Jeffrie and Mr B House
Solicitor for the MinterEllison

Respondents:

ORDERS
VID 391 of 2021
BETWEEN: JOEL KAPLAN

First Applicant
MATT KAPLAN
Second Applicant
GUY COHEN (and others named in the Schedule)

Third Applicant
AND: STATE OF VICTORIA

First Respondent
RICHARD MINACK
Second Respondent
PAUL VARNEY
Third Respondent
DEMI FLESSA
Fourth Respondent
ORDER MADE BY: MORTIMER CJ

DATE OF ORDER: 14 SEPTEMBER 2023
THE COURT DECLARES THAT:
Racial Discrimination Act 1975 (Cth)

A. In relation to the first, second, third and fourth applicants, between July 2015 and May
2020, the second respondent engaged in unlawful discrimination contrary to s 9(1) of
the Racial Discrimination Act 1975 (Cth), by his failures and omissions to:
(a) take action at a systemic and coordinated level to address a high level of
antisemitic bullying and harassment of Jewish students by other students at
Brighton Secondary College and high levels of swastika graffiti at the school;
and
(b) enforce the policies of Brighton Secondary College on racial harassment in
relation to antisemitic bullying and harassment of Jewish students by other
Kaplan v State of Victoria (No 8) [2023] FCA 1092 i

students at Brighton Secondary College and in relation to the display of swastika
graffiti at the school.
B. In relation to the third applicant, during 2018 in a year 8 English class at Brighton
Secondary College, the third respondent engaged in unlawful discrimination contrary
to s 9(1) of the Racial Discrimination Act, by his use of purported greetings in Hebrew
to the third applicant in circumstances where that conduct singled the third applicant
out to the class as being Jewish and of Israeli national origin, and the third applicant
and his mother had made it clear the conduct was unwelcome and unwanted.
C. Pursuant to s 18A of the Racial Discrimination Act, the Racial Discrimination Act
applies in relation to the first respondent as if the first respondent had engaged in the
conduct of the second respondent referred to in paragraph A above, and the conduct of
the third respondent referred to in paragraph B, so that the first respondent is taken to
have contravened s 9(1) of the Racial Discrimination Act in the manner there set out.
THE COURT ORDERS THAT:

1. Paragraphs [367], [368], [369(b)] and [369(c)] (to the extent it relates to [369(b)]) of
the statement of claim dated 22 July 2021 be struck out.
2. Paragraph [373] of the statement of claim dated 22 July 2021 be struck out.
3. Paragraphs [116]-[122] of the statement of claim dated 22 July 2021 be struck out.
Removal of litigation representatives

4. Subject to any further or other order, Janet Abadee be removed as litigation
representative of Matt Kaplan.
5. Subject to any further or other order, Sarit Cohen be removed as litigation
representative of Guy Cohen.
6. Subject to any further or other order, Natalie Snelling be removed as litigation
representative of Zack Snelling.
Disposition of the originating application

7. The originating application dated 16 July 2021 be allowed in part.
Compensation
8. Pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth)
the first respondent pay compensation to Joel Kaplan in the total sum of $63,780.
Kaplan v State of Victoria (No 8) [2023] FCA 1092 ii

9. Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to
Matt Kaplan in the total sum of $60,000.
Guy Cohen in the total sum of $55,000.
Zack Snelling in the total sum of $244,968.31.
Damages
12. The first respondent pay to Liam Arnold-Levy:
(a) the sum of $10,000 by way of damages for non-economic loss pursuant to the
exception in s 28LC(2)(a) of the Wrongs Act 1958 (Vic); and
(b) the sum of $1,532.43 by way of damages for economic loss.
Apology
13. On or before 4.00 pm on 6 October 2023, the first respondent serve on the applicants a
proposed form of apology by the first respondent to each of the applicants, in a form
that is compatible with the Court’s reasons for judgment in this proceeding.
14. The applicants and the first respondent are to attempt to negotiate, in good faith, an
agreed form of apology or apologies by the first respondent to each of the applicants,
in a form that is compatible with the Court’s reasons for judgment in this proceeding,
including agreement about when and in what form the apologies will be given.
15. In the absence of the Court being notified on or before 4.00 pm on 13 October 2023
that the parties have agreed on a form of apology to each applicant, the proceeding will
be listed for case management, at a date to be fixed in consultation with the parties, for
the Court to consider whether it should prescribe a form of apology, or relieve the first
respondent of any obligation to deliver an apology to one or more of the applicants.
16. The parties may request the assistance of a Judicial Registrar of the Court in their
negotiations pursuant to order 14 of these orders.
Costs
17. The first respondent pay the applicants’ costs, capped in accordance with the Court’s
orders dated 27 October 2021 in the sum of $130,000.
Kaplan v State of Victoria (No 8) [2023] FCA 1092 iii

Further orders or variations
18. On or before 4.00 pm on 6 October 2023, the parties each file any proposed further
orders, or variations to orders already made in the proceeding, including any proposed
orders in relation to interest, accompanied, if necessary, by supporting submissions of
no more than 5 pages.
19. As far as possible the parties are to agree on the form of any further orders, or variations
to orders already made in the proceeding, including any proposed orders in relation to
interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Kaplan v State of Victoria (No 8) [2023] FCA 1092 iv

REASONS FOR JUDGMENT
MORTIMER CJ:
INTRODUCTION AND SUMMARY [1]

THE EVIDENCE AND SUBMISSIONS [20]
TERMINOLOGY AND NAMES USED IN THESE REASONS [30]
Antisemitism [30]
Names of student perpetrators [35]
Other terminology used in these reasons [36]
THE RDA ALLEGATIONS [45]
RDA s 9 [45]
The human rights relied on by the applicants [71]
RDA s 18C [98]
NEGLIGENCE: THE CORRECT APPROACH AND SOME GENERAL
FINDINGS [111]
THE CAUSES OF ACTION AND KEY ALLEGATIONS [155]
Observations regarding the causes of action and key allegations [155]
Allegations common to more than one of the applicants [167]
Individual allegations [173]
Rolled up or generalised allegations in the pleadings [176]
Failure of all BSC staff to take action in response to
complaints/notification of certain alleged bullying [181]
Allegations concerning Corey Fooks [188]
Allegations regarding Ashley Meehan [192]
Allegations regarding Ms Flessa’s actions with respect to Ariel Katz [195]
THE RESPONDENTS’ DEFENCE [201]
RESOLUTION: GENERAL ISSUES TO BE RESOLVED [209]
The applicants’ final submissions [210]
Standard of proof [212]
The use of certain aspects of the evidence [217]
Professor Rutland’s evidence [223]
Nature and content of antisemitic conduct in Australian schools [235]
Kaplan v State of Victoria (No 8) [2023] FCA 1092 1

Gravity of the student perpetrators’ conduct and the size of the problem at
BSC [250]
Phenomenon of Jewish student victims not complaining [253]
Steps that should have been taken at BSC [262]
The respondents’ submissions about Professor Rutland’s evidence [267]
Dr Abramovich’s evidence [269]
Mr Paul’s evidence [283]
Restorative justice processes [287]
Expulsion [298]
Steps that it is reasonable for principals and schools to take [310]
Antisemitic behaviour in schools [315]
Mr Minack’s evidence [325]
Findings about BSC policies in existence during the period [343]
The relevance of the Worklogic report [361]
The Worklogic recommendations [371]
The comparison with the treatment of LGBTQIA+ identifying students [375]
The allegations of an antisemitic culture at BSC [396]
The probative value of BSC records from the period [405]
Jones v Dunkel inferences [411]
Dr Riha [423]
Mr Astorino [429]
Ms Hart [430]
Mr Hunt [433]
Ms Anderson [435]
Mr Dobric [438]
Ms Frangoulis [441]
Ms Panopio [445]
RESOLUTION: THE COMMON ALLEGATIONS [447]
Mr Minack’s speech, or speeches – pleadings [447]
Mr Minack’s speech, or speeches – resolution [450]
The 2018 / earlier 2019 speech allegations [452]

The March 2019 speech [483]
Findings on s 9 [494]
Findings on s 18C [504]
Findings on the negligence claims about the speech [549]
Other evidence relied on by the applicants [550]
Swastika graffiti and other antisemitic graffiti – pleadings [551]
Specific instances of reporting of swastikas [558]
Swastika graffiti and other antisemitic graffiti – resolution [562]
Swastikas: The evidence in summary [568]
The respondents’ case on swastikas in summary [571]
Swastikas: factual findings [574]
The evidence of other BSC students [575]
Conclusions on other student evidence about swastikas [623]
Applicants and their families [627]
Conclusions on the evidence of the applicants and their families [727]
The evidence of Mr Minack, the BSC staff and the leadership cohort [731]
Conclusions on the teachers’ evidence about swastikas [799]
Overall factual conclusions on the presence of swastikas at BSC and the
response to them from Mr Minack and teaching staff [812]
RDA s 9: findings [827]
Conclusions on s 9 [857]
Liam’s allegations about swastika graffiti [861]
RDA s 18C: findings [865]
Negligence: findings [866]
Allegations regarding the teaching of Maus – pleadings [887]
Allegations regarding the teaching of Maus – resolution [894]
The failure to provide adequate disciplinary consequences, adequate
behaviour encouragement and adequate education to BSC students [928]
Matt and Guy’s common allegations [929]
Matt and Guy’s claims against Ms Flessa – pleadings [930]
Class assignment [931]

Comments about Israel and Palestine [934]
Heil Hitler taunts [936]
Matt and Guy’s claims against Ms Flessa – resolution [938]
Claims against Ms Flessa about the class assignment [938]
Alleged comments about Israel and Palestine [953]
Heil Hitler taunts by students in Ms Flessa’s class [975]
Matt and Guy’s claims against Mr Varney – pleadings [988]
Statements in Hebrew [989]
Statements about Israel and Palestine [991]
Matt and Guy’s claims against Mr Varney – resolution [993]
Statements in Hebrew [994]
Factual findings on Mr Varney’s conduct [1016]
RDA and negligence [1029]
Statements about Israel and Palestine [1042]
Findings on statements about Israel and Palestine [1057]
Matt and Guy’s claims about Mr Lyons – pleadings [1060]
Matt and Guy’s claims about Mr Lyons – resolution [1069]
Factual findings on Matt and Guy’s allegations about Mr Lyons [1081]
RESOLUTION: INDIVIDUAL ALLEGATIONS [1087]
Mr Minack’s responsibilities as principal [1089]
Liam – pleadings [1093]
Racist bullying and assaults, and reporting of bullying and assaults to
school staff [1093]
Liam – resolution [1102]
Factual findings about the bullying and harassment experienced by Liam
and whether it had an antisemitic character or aspect [1137]
Factual findings about whether Liam complained, and if so, when and how [1161]
Ms Podbury’s evidence [1210]
The return to BSC with Ms Meltzer [1223]
Mr Minack’s evidence about Liam [1242]
Conclusions on Liam’s causes of action [1248]

RDA s 9 [1252]
Negligence [1260]
Joel – pleadings [1277]
Racist bullying in year 7 – 2016 [1278]
Incidents in year 8 – 2017 [1280]
Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 –
2018) [1285]
Racist taunts and other bullying in year 10 – 2019 [1286]
Racist taunts and other bullying in year 11 – 2020 [1287]
Joel – resolution [1291]
Factual findings applicable to Joel’s allegations [1298]
Specific incidents in years 8, 9, 10 and 11 – 2017-2020 [1305]
Factual findings on Joel’s less specific allegations [1313]
Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 –
2018) [1341]
Conclusions on Joel’s causes of action [1346]
RDA s 9 [1348]
RDA s 18C [1353]
Negligence [1354]
Matt – pleadings [1359]
Incident in which Slater called Matt a “fucking Jew” (year 7 – 2017) [1360]
Incidents with Lucas (year 7 – 2017) [1361]
Other incidents in 2017 relating to Heil Hitler salutes (year 7 – 2017) [1362]
Incidents of racial abuse by other students (year 8 – 2018) [1364]
Incident in which student threw paper with swastikas at Matt (year 9 –
2019) [1365]
Other reports of antisemitic conduct by Matt (year 9 – 2019) [1366]
Allegation that a student made Heil Hitler salutes to Matt, and that Mr
Nash did not take appropriate action (year 10 – 2020) [1367]
Response to incident between Matt and Oliver (year 10 – 2020) [1368]

Matt’s Magen David necklace [1369]
Matt – resolution [1374]
Findings on specific incidents alleged by Matt – 2017-2020 [1382]
The incident with Oliver and its aftermath [1390]
The 2017 incident with Slater and the CCTV footage [1408]
Factual findings on Matt’s less specific allegations [1410]
The Magen David incident with Mr Lyons [1420]
Conclusions on Matt’s causes of action [1422]
RDA s 9 [1424]
RDA s 18C [1431]
Negligence [1432]
Guy – pleadings [1437]
Failure by Ms Bolton to act with regard to racially-motivated conduct (year
7 – 2017) [1439]
Failure by Mr Nash to act with regard to racially-motivated conduct (year 8
– 2018) [1442]
Failure by Ms Trinh to act with regard to racially-motivated conduct,
including incident regarding Guy’s bag (year 9 – 2019) [1445]
Guy – resolution [1451]
Conclusions on Guy’s individual allegations [1471]
RDA s 9 [1472]
RDA s 18C [1476]
Negligence [1477]
Zack – pleadings [1478]
Racist bullying, and reports to BSC staff of that bullying, in year 8 – 2019 [1481]
Racist bullying, including the park incident, in year 9 – 2020 [1485]
Zack – resolution [1493]
Natalie Snelling’s interactions with Mr Minack and Ms Angelidis [1514]
The assault in class [1542]
The Snapchat messages [1555]

The assault in the park [1565]
Behaviour management plans, expulsions and restorative justice [1583]
Safety support plans [1583]
Expulsions [1589]
Restorative justice [1598]
Conclusions on Zack’s causes of action [1599]
RDA s 9 [1600]
RDA s 18C [1605]
Negligence [1606]
THE DAMAGES CLAIMS – PLEADINGS [1615]
The damages claimed [1615]
Liam [1623]
Joel [1625]
Matt [1627]
Guy [1629]
Zack [1630]
THE DAMAGES CLAIMS – RESOLUTION [1633]
Liam [1642]
Non-economic loss in negligence for the bathroom incident [1651]
Economic loss claims [1663]
Conclusion [1667]
Joel [1670]
Non-economic loss: RDA [1673]
Economic loss [1685]
Negligence [1691]
Matt [1692]
Economic loss [1703]
Negligence [1706]
Guy [1708]
Zack [1718]

Non-economic loss: RDA [1736]
Economic loss: RDA/negligence [1741]
Negligence [1746]
AGGRAVATED AND EXEMPLARY DAMAGES: RESOLUTION [1752]
Aggravated or exemplary damages in negligence [1752]
Aggravated or exemplary damages under the RDA [1759]
OTHER RELIEF CLAIMED: RESOLUTION [1790]
Apology [1791]
Declaration [1799]
Training [1802]
CONCLUSION [1804]
INTRODUCTION AND SUMMARY

1 Five applicants, Joel Kaplan, Matt Kaplan, Guy Cohen, Zack Snelling and Liam Arnold-
Levy, have brought this proceeding against the State of Victoria, the principal of Brighton
Secondary College, Mr Richard Minack, and two BSC teachers, Mr Paul Varney and
Ms Demi Flessa. The applicants rely on three causes of action: contraventions of s 9(1) of the
Racial Discrimination Act 1975 (Cth), contraventions of s 18C of the RDA, and negligence.
2 The factual basis for all three causes of action is broadly the same, although there are also a
number of specific allegations against Mr Varney, Ms Flessa and a number of other BSC
teachers. The applicants’ allegations span the period of 2013 to 2020, depending on when they
attended BSC. Each applicant left BSC prematurely, and the Court has accepted that four out
of five of them left because of the antisemitism from other students they experienced at BSC
and how unsafe and unprotected by Mr Minack and the BSC staff they felt. The fourth-named
applicant, Guy, left to move overseas.
3 In summary terms, the applicants allege that during their respective times at BSC, they were
subjected to antisemitic bullying and harassment by groups of BSC students, and some
individual BSC students, and that they complained about the bullying and harassment. The
applicants allege that other Jewish students at BSC experienced some of the same treatment.
The applicants also allege that Mr Minack contravened the racial vilification provisions of the
RDA (s 18C) in respect of at least one (and allegedly more than one) speech he gave to a full

school assembly at BSC, where the applicants allege he made remarks that offended, insulted,
humiliated or intimidated Jewish students at the assembly and were offensive more generally
to Jewish people.
4 The applicants allege that, unlike other vulnerable minority student groups, no or no adequate
steps were taken by Mr Minack, and through him the rest of the teaching and other staff at
BSC, to address how these other students were treating the applicants, or to protect Jewish
students. They also allege that, unlike other vulnerable minority student groups, Jewish
students (including the applicants) had to endure unreasonably and extraordinarily high levels
of graffiti that was highly offensive and hurtful to them, and which made them fearful for their
safety at school. This graffiti consisted largely of swastika graffiti, and they allege it was
present in the classrooms and around the grounds of BSC, as well as through students drawing
swastikas on school books and on themselves, and making swastika shapes. They allege there
were no proactive and systemic measures taken by Mr Minack, and through him the rest of the
teaching and other staff at BSC, to discourage this kind of graffiti, to educate students about its
particular impacts on Jewish students and to facilitate behaviour change at BSC in the way
behaviour change was facilitated for other vulnerable minority groups.
5 The applicants also made a series of specific factual allegations against Mr Varney and
Ms Flessa about remarks they made during various classes concerning Israel and Palestine and
concerning Israelis and Palestinians, and about comments in Hebrew Mr Varney is alleged to
have said to Guy.
6 The respondents contested liability on all three causes of action.
7 The Court has determined that the applicants’ allegations should be upheld in part. The Court
has generally accepted the narrative from the applicants, their family members and the 17
former and current BSC student witnesses who gave evidence about the unusually high levels
of swastika graffiti, and the frequent complaints they made about swastikas and the antisemitic
bullying and harassment. The Court has accepted the applicants’ case that there were failures
by Mr Minack to address in any systemic and proactive way the antisemitic bullying and
harassment, using recognised and established approaches available in Australian secondary
schools and indeed used at BSC for other vulnerable minorities.
8 The main allegations which the Court has upheld relate to Mr Minack’s contravention of s 9 of
the RDA by failing to take appropriate and reasonable steps to discourage and modify the

antisemitic student bullying and harassment behaviour, and to discourage swastika graffiti,
including by imposing appropriate disciplinary consequences but also by more systemic
approaches such as school-wide campaigns. The Court has found that at a leadership and
systemic level, Mr Minack took a different, and less favourable, approach to antisemitic
bullying and harassment of Jewish students than he took, or would have taken, to the bullying
and harassment of other vulnerable minority student groups at BSC. Through his own conduct
as principal, this differential approach was also adopted by BSC staff, and there was – for
example – an inexplicable and unusual tolerance for antisemitic graffiti and a preparedness to
ignore, downplay and take less seriously the complaints made by Jewish students and their
families. There was also a disinclination to adopt any systemic, school-wide steps to address
antisemitic student behaviour, despite this having been done, appropriately, to protect
LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in
that way or who were exploring their identity.
9 This conduct involved a distinction in the way the applicants were treated by Mr Minack and,
through his failures in leadership, the teachers and staff at BSC, which in turn impaired the
applicants’ human rights to security of person and protection, to education, and to preservation
of their Jewish identity.
10 Insofar as these allegations under the RDA were also made in negligence, the Court has upheld
the negligence claims made by Liam, Joel, Matt and Zack. No negligence claim was pressed
on behalf of Guy.
11 The Court has upheld one specific claim under s 9 of the RDA by Guy against Mr Varney,
relating to singling Guy out and greeting him in Hebrew when Guy and his mother had made
it clear this conduct was unwelcome.
12 The Court has otherwise rejected the specific claims made against Mr Varney, and has rejected
all the specific claims made against Ms Flessa. It has also rejected all of the claims made by
the applicants about specific incidents where they allege inadequate or partisan disciplinary
consequences were imposed for various interactions between one or more of the applicants and
other BSC students that were said to involve antisemitic harassment and bullying. The Court
has found the applicants have not proven that these specific disciplinary decisions about those
specific interactions were made other than on a case-by-case basis within the scope of existing
policies of BSC for dealing with student on student interactions and the applicants have not
proven there was any racially discriminatory element to those specific disciplinary decisions.

13 The applicants claimed a variety of relief. The State generally accepted it would be vicariously
liable for the alleged conduct if proven. Therefore, in relation to the allegations the Court has
found proven, damages and compensation orders are made against the State. The Court has
ordered the State pay, in total:
(a) the sum of $63,780 to Joel;

(b) the sum of $60,000 to Matt;
(c) the sum of $55,000 to Guy;
(d) the sum of $244,968.31 to Zack; and
(e) the sum of $11,532.43 to Liam.
14 Interest may be payable on some of those amounts. Some of the damages in negligence claimed
by the applicants were not available because of the provisions of the Wrongs Act 1958 (Vic),
and the limits imposed on recovery of damages for physical and psychiatric injury in
negligence. Through the operation of s 79 of the Judiciary Act 1903 (Cth), those limits apply
to the applicants’ negligence claims.
15 Further, Liam’s claims under the RDA, although of the same nature as those made by Joel,
Matt, Guy and Zack, related to a time before Mr Minack was principal of BSC. The Court has
found the applicants did not allege and prove any claims under the RDA against the then
principal of the school, Ms Podbury, in the same way they alleged and proved their claims
against Mr Minack. Therefore, Liam’s claims under the RDA cannot succeed in the same way
that the claims of the other four applicants have succeeded. The Court recognises the perceived
unfairness in this outcome, and has invited the State to consider making an ex gratia payment
to Liam, commensurate with what the Court has found was the damage he suffered, and
commensurate with the compensation awarded to the other applicants.
16 The Court has also granted declaratory relief relating to contraventions of the RDA, whereby
the Court describes the contraventions of the RDA it has found proven.
17 The Court has agreed with the applicants that there should be an apology, or apologies, but has
agreed with the respondents that the proper respondent to give that apology, or apologies, is
the State. In its orders, the Court has prescribed some steps to be taken between the parties to
negotiate a form of apology that is compatible with the Court’s reasons. If the parties cannot
agree on a form of apology, or apologies, one possible outcome is that the Court will not order
any apology to be given.

18 The Court has not agreed with any of the other relief sought by the applicants.
19 What follows are the detailed reasons for the conclusions I have expressed above.
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.
TERMINOLOGY AND NAMES USED IN THESE REASONS
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.
THE RDA ALLEGATIONS
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.

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.
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.
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.
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.

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.
THE CAUSES OF ACTION AND KEY ALLEGATIONS
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.
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.
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.
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.

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.
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.
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.
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.
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.
RESOLUTION: THE COMMON ALLEGATIONS
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….
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.
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.
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.
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’.
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.

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.”
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.

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.
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.
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.

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.
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.
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.

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’[.]
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”.
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.
Liam – pleadings
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[.]
(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.

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.
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.
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.

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.

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
consistent racist assaults and batteries from other students at the School which caused
him loss and damage including psychological injury and harm.
[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.
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
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.

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
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
[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
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.
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
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.

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

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
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.
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
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 CLAIMS – PLEADINGS
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.
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
(v) Haider, in which the Federal Court of Australia awarded $9,000 for

(vi) Kanapathy, in which the Federal Circuit of Australia awarded $12,500 for
(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”.
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:
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:
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:
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 AND EXEMPLARY DAMAGES: RESOLUTION
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.”
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.
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.
Associate:
Dated: 14 September 2023

SCHEDULE OF PARTIES
VID 391 of 2021

Applicants
Fourth Applicant: ZACK SNELLING
Fifth Applicant: LIAM ARNOLD-LEVY

Kaplan V State of Victoria

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FEDERAL COURT OF AUSTRALIA

Kaplan v State of Victoria (No 8) [2023] FCA 1092

File number(s): VID 391 of 2021

Judgment of: MORTIMER CJ

Date of judgment: 14 September 2023

Catchwords: HUMAN RIGHTS – racial discrimination – s 9(1) and

NEGLIGENCE – school principal’s duty of care – non-

DAMAGES – orders for compensation under s 46PO(4) of

Legislation: Australian Human Rights Commission Act 1986 (Cth)

Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1977 (NSW) s 8

Crown Proceedings Act 1958 (Vic) s 23(1)(b)

Convention on the Rights of the Child, opened for signature

Committee on Economic, Social and Cultural Rights,

John Tobin (ed), The UN Convention on the Rights of the

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Division: General Division

Number of paragraphs: 1806

Date of last submission: 21 March 2023

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Solicitor for the Applicants: Cornwalls

Counsel for the Respondents: Mr C Young KC with Mr T Jeffrie and Mr B House

Solicitor for the MinterEllison

Kaplan v State of Victoria (No 8) [2023] FCA 1092

VID 391 of 2021

BETWEEN: JOEL KAPLAN

GUY COHEN (and others named in the Schedule)

AND: STATE OF VICTORIA

ORDER MADE BY: MORTIMER CJ

THE COURT DECLARES THAT:

Racial Discrimination Act 1975 (Cth)

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THE COURT ORDERS THAT:

Removal of litigation representatives

Disposition of the originating application

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INTRODUCTION AND SUMMARY [1]

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INTRODUCTION AND SUMMARY

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6 The respondents contested liability on all three causes of action.

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(a) the sum of $63,780 to Joel;

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THE EVIDENCE AND SUBMISSIONS

(a) family members of the applicants:

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(a) former BSC principal Julie Podbury;

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24 The applicants called six expert witnesses:

(a) Dr Amanda Scott, a general practitioner;