A plaudit for barrister Adam Butt

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Professor Suzanne Rutland pens an article on Adam Butt, the barrister who represented five Jewish students who had been bullied through antisemitism at Melbourne’s Brighton Secondary College and took the Victorian Government to court.

The principal of the college tendered his resignation this week

Suzanne Rutland writes:

Adam Butt

On 14 September 2023, the Honourable Justice Debra Mortimer, Chief Justice of the Federal Court of Australia, announced her landmark judgment in favour of five former Jewish students of Brighton Secondary College (BSC) who claimed to have been subjected to antisemitic bullying and harassment while at the school.  She found that principals of BSC, Richard Minack and Julie Podbury, had been negligent, and that Mr Minack was in breach of the Commonwealth Racial Discrimination Act in failing to protect the students’ human rights. The time for appeal has now passed, and neither side has sought an appeal, so that her judgment now stands.

As Justice Mortimer worded Mr Minack’s less favourable approach to antisemitic bullying and harassment of Jewish students than other student groups at BSC in her summary:

“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…”

The significance of Judge Mortimer’s verdict cannot be overestimated. As barrister, Mr Adam Butt noted after the judgment was handed down at a function at the solicitors’ offices, it is the first case in Australian law that ‘applies the Convention on the Rights of the Child in this country’ and as such contains many ‘novel’ points of law. Without doubt, it will be used as a precedent for any future cases.

Her Honour’s ruling was welcomed by the five boys who were the applicants, together with their families, as well as by the leadership of the Jewish community. ECAJ president, Jillian Segal, stated:

“With meagre resources, they took on the might of the Victorian government and Education Department to stand up for truth and justice, and they were successful. We know the personal price all of them have paid in sweat and nerves, and the enormous financial sacrifice they have made.”

For the boys, with their parents, to take on the might of the Victorian government indeed required courage, determination, and dedication to this fight for justice. It was made possible because four families – including brothers Joel and Matt Kaplan – were willing to stand up for their rights. During the long, gruelling process, the families acted as a support group.

Students and parents generally walk away in such cases – it is much easier to change schools and put the whole issue behind them. As well, such cases require significant resources.

But, in this case, the lack of resources was overcome by the dedication of the legal team. In addition to the key role that the boys and their parents played – and they are, indeed, heroes – the sacrifices made by the legal team are equally important.

The legal team: Richard Hutchings, Adam Butt and Alex Marcou

Indeed, without the determination and dedication of the young barrister, Adam Butt, this case would not have happened. Adam would not let the matter go. He invested ongoing time, energy and his own resources, working on an essentially pro bono basis, to achieve this outcome.

Adam Butt grew up in Melbourne and graduated from Mount Scopus College. After completing his law/commerce degree at Monash and being admitted as a lawyer in 2008, he went overseas to pursue further studies. He completed a Master of Philosophy at Cambridge University and a Master of Laws at New York University.

A brilliant student, he spent a decade furthering his knowledge and broadening his horizons before returning to Australia to undertake the Bar exams. He was admitted to both the NSW Bar and to the New York Bar in 2017.

It did not take long for Mr Butt to demonstrate his abilities and skill in his work with his cases. For the last four years he has been nominated as Barrister of the Year, and in 2021 he received the Barrister of the Year award at the Australian Law Awards.

After his third time being shortlisted last year, the Lawyers’ Weekly’s headline said it all: ‘Why commitment and contribution are the cornerstone of barristerial success’ (https://www.lawyersweekly.com.au/wig-chamber/34417-why-commitment-and-contribution-are-cornerstones-of-barristerial-success).

Indeed, it was his commitment and central contribution that led to the success of this case, which ran over three years. It started with a ministerial inquiry – where the agenda had been set by the government – to the Australian Human Rights Commission, to the Federal Court.

As Mr Butt noted, it was ‘an incredibly grueling experience. A lot of blood and sweat went into it’.

Throughout, Mr Butt would not give up – as he says, ‘The lesson of this case is that when something bad happens, you have to fight, you have to be resilient, and you have to go and get it, because no-one is going to give it to you’. And fight he did!

However, he could not have done this on his own. The legal team behind him led by Richard Hutchings of Cornwalls in Melbourne also played a central role. Mr Butt became friends with Mr Hutchings during their law studies. When the boys were having problems finding the right legal team, Cornwalls entered the scene.

As Mr Butt noted about Mr Hutchings, ‘Richard is an exceptional solicitor, he has a way with people’. There is no doubt that ‘one cannot win a case without solicitors backing you’ and the legal team delivered.

As Mr Butt noted after Judge Mortimer announced her verdict, ‘…the Department has never lost a racial discrimination case, certainly not as far as I am aware of’. He also noted that the other victims of antisemitic bullying and violence in government schools, such as the incidents at Cheltenham High, have not received justice.

Yet, this case and its success would not have happened without the commitment and dedication of the legal team. As Peter Wertheim, the co-CEO of the ECAJ and a former lawyer for 32 years, commented:

“As a former lawyer, I believe I have some insight into the level of dedication and determination that was required of Adam to fight this case on behalf of his clients against much better resourced opponents. He used every ounce of his knowledge and skill for his clients. Adam’s advice to them to seek a reciprocal costs-capping order to limit their exposure to an adverse costs order if the case was dismissed, was knowingly given against his own personal financial interests.  Also, especially while he was sole counsel, I know the personal price Adam paid in sweat and nerves, in addition to the enormous financial sacrifice he made. In my opinion Adam acted in the highest traditions of the legal profession.”