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Judge’s ‘copy-and-paste job’ gives Sydney firm a second chance
A Sydney law firm will have another chance to defend itself against alleged breaches of the Fair Work Act because of the “significant” copy-and-pasting in the original judgment.
Naomi Neilson
An order by Judge Rolf Driver that Atanaskovic Hartnell pay former general manager Elizabeth Kelly just over $160,000 for unpaid salary, annual leave and long service leave was set aside by the Federal Circuit and Family Court of Australia late last month.
Justices Berna Collier, John Logan and Scott Goodman of the Federal Court found Judge Driver adopted the submissions of Kelly “to such a significant degree, without attribution and explanation”, and so did not bring an “active, independent and impartial mind” to the matter.
“Can it be said that the unattributed republication … to such a significant degree, was such that it should be inferred that his Honour did not make an independent decision on the whole of the evidence and the law before the Court?” The full bench considered.
“I am satisfied that such an inference can, and should, be drawn.”
After Kelly resigned in November 2016, she made two demands of Atanaskovic Hartnell for the salary and entitlements.
In response, Atanaskovic Hartnell alleged Kelly breached her employment contract by failing to supply documentation required for an application to renew a United Kingdom visa. Without this, the firm said it would be unable to continue its operation overseas.
In a cross-claim filed before Judge Driver in the original proceedings, Atanaskovic Hartnell also alleged Kelly breached her contractual obligations by failing to provide a legal technology provider with the required notice to cancel the firm’s subscription.
Atanaskovic Hartnell told the Federal Court that “not a single written or oral submission or contention of [the firm’s] on the merits of the cross-claim, nor any of the extensive evidentiary references in writing, were referred to, analysed or considered and rejected”.
In contrast, it was a “near verbatim copy” of Kelly’s submissions.
Lawyers for Kelly referenced King v Australian Securities and Investments Commission, which considered “time-poor” judges would adopt one party’s submissions, “rather than postponing other pressing work in order to rewrite the reasoning and conclusions”.
Further, they submitted Judge Driver referenced the “exceptionally detailed closing submissions” by Kelly’s team and said it was unsurprising he decided to replicate them given the “lack of merit and transparently contrived nature” of the firm’s position.
While Judge Driver may have preferred Kelly’s case, the court said Atanaskovic Hartnell was entitled to have their submissions and evidence considered before “ultimately reaching such a preference”.
The full bench also took issue with the copy-and-pasting of Kelly’s submissions that referenced the cross-claim, including assertions of credit, contentious value judgments, and conclusory legal points.
They said these matters “required independent consideration and determination by his Honour”.
The proceedings have been remitted to the Circuit Court for re-trial.
The case is: Atanaskovic Hartnell Corporate Services Pty Limited v Kelly [2024] FCAC 137 (31 October 2024)
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
