Decision Set Aside on Appeal for Uncritical ‘Cut and Paste’ of One Party’s Submissions

In Atanaskovic Hartnell Corporate Services Pty Ltd v Kelly [2024] FCAFC 137 (31 October 2024), the Full Court of the Federal Court set aside a decision of the Federal Circuit Court of Australia – as it then was- that found that a long serving employee of the appellant was entitled to damages for unpaid employment entitlements, as well as general damages, and that the appellant had breached the Fair Work Act 2009 (Cth).  The principal ground of appeal concerned the trial judge – in respect of the appellant’s cross-claim – having engaged in substantial copying of the lengthy submissions of the respondent, denoting, it was argued, a lack of consideration of the merits of the appellant’s argument.  The Full Court found, unanimously, that this argument was correct, upholding the appeal and remitting the matter for further trial.  Each of the judges (Collier, Logan and Goodman JJ) gave reasons.  All are worthy of perusal, but for the assistance of readers, for the sake of brevity, below there is set out an excerpt from the reasons of Logan J, which are representative:

[95]  The Liability Judgment is no less than 464 paragraphs in length. Of these, paragraphs [169] to [251] inclusive are directed to an examination of the merits, if any, of the cross-claim. As pleaded, appeal grounds 8B and 11B are particular amplifications of appeal grounds 8A and 11A respectively, each of which allege an inadequacy in the reasons of the first primary judge for the dismissal of the cross-claim.

[96]  As so amplified, the grounds require a comparison between the identified paragraphs in both the Liability Judgment and Mrs Kelly’s written closing submissions as filed in the Circuit Court.

[97]  Such a comparison discloses that paragraphs [169] to [251] inclusive have been copied, almost verbatim, from Mrs Kelly’s written closing submissions. There are no differences of substance. Instead, the differences may be summarised as follows:

(a) removal in the Liability Judgment of in-text references in Mrs Kelly’s written closing submissions to evidence (sometimes deleted, sometimes moved to a footnote);

(b) adoption in the Liability Judgment of slightly different short-titling conventions;

(c) removal in the Liability Judgment of selected words (ie “(an employed solicitor of AH LLP)” and “Extraordinarily,”);

(d) changes of tense in the Liability Judgment (ie “must fail” to “fails”);

(e) slight changes of expression in the Liability Judgment (ie “inter alia” to “among other things” and “How could Mr Hartnell have genuinely agreed…” to “I fail to see how Mr Hartnell could have genuinely agreed…”);

(f) removal in the Liability Judgment of above paragraph references in Mrs Kelly’s written closing submissions (ie “As set out in paragraph 384 above” to “As set out above”); and

(g) insertion in the Liability Judgment of “in my view”.

[98]  The end to which such a comparison is directed is qualitative, in relation to whether there has been an exercise of the judicial function, not quantitative. However, in combination with an absence of any related judicial analytical content, quantitative measures may, in context, evidence a qualitative failure.

[99]  AHCS and Mr Atanaskovic also filed written closing submissions in the Circuit Court.

[100]  The written submissions of each of the parties were supplemented by oral submissions.

[101]  There is no reference in the Liability Judgment to the submissions, either written or oral, made on behalf of AHCS and Mr Atanaskovic with respect to the factual merits of the cross-claim.

[102]  Irrespective of whether the judgment of the New South Wales Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376 “broke new ground” in relation to the existence of an obligation to give reasons when exercising judicial power (qv Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond), at 666 per Gibbs CJ and cf as to whether “new ground” was broken, Fleming v R (1998) 197 CLR 250, at [22] per the Court), it may be accepted that a judge of the Circuit Court exercising judicial power finally to determine the subject of liability in respect of the various claims and the cross-claim made in this case was subject to such an obligation.

[103]  The position at common law with respect to an exercise of judicial power in relation to an obligation to give reasons differs from the position at common law with respect to an exercise of executive or administrative power, where there is no such common law obligation: Osmond. The obligation of a judge exercising, as the first primary judge did, the judicial power of the Commonwealth under Ch III of the Constitution to give reasons may be regarded as an inherent feature of holding an office permitting the exercise of such power: Wainohu v New South Wales (2011) 243 CLR 181, at [104]–[109] per Gummow, Hayne, Crennan and Bell JJ.

[104]  Writing extra-judicially, a former Chief Justice of the High Court of Australia, Sir Anthony Mason, has opined that the judicial obligation to give reasons forms part of a “culture of justification” that exists in modern democracies: Sir Anthony Mason, ‘Reply to David Dyenhaus’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (Federation Press, 2003) 52, 54. Justification is certainly a key reason for why there is such a judicial obligation. However, assuming the existence, in a modern democracy, of a culture of justification, that does not, with respect, offer a wholly satisfactory rationale for why, at common law, an exercise of judicial power attracts an obligation to give reasons but an exercise of administrative power does not. A more satisfying rationale for the distinction may perhaps be that it is an inherent feature of adjudication that it entails the giving of reasons for that adjudication, whereas it is an inherent feature of an exercise of executive power at common law that it may be peremptory, requiring instant obedience and compliance, even at the risk of death (eg a command by a superior to a subordinate on the battlefield). The example given is an extreme one but executive power falls for its exercise in such a wide variety of circumstances that it would be impractical, as a matter of policy, to condition the validity of its exercise on whether, in given circumstances, an obligation to give reasons either existed or had, or had not, been discharged.

[105]  Consistent with the case authorities just mentioned, it was not controversial between the parties that the first primary judge was subject to an obligation to give reasons.

[106]  In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 279, McHugh JA (as his Honour then was) identified three purposes served by the furnishing of reasons in an exercise of judicial power:

(i) enabling “the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”;

(ii) enabling judicial decisions to be scrutinised, whether by appellate courts or the public; and

(iii) allowing the members of the society served by the excise of its judicial power “to ascertain the basis upon which like cases will probably be decided in the future”.

[107]  The first primary judge did not, by the Liability Judgment, fail to give reasons either at all or in respect of his Honour’s dismissal of the cross-claim. However, in respect of the cross-claim, the reasons given gave no indication that the submissions of AHCS and Mr Atanaskovic had been considered at all, let alone understood. On their face, the reasons are, in substance, an uncritical, wholesale ‘cut and paste’, without attribution, analysis or even just expression of agreement, of Mrs Kelly’s written, closing submissions. A reader thereof, cognisant of the written submissions made by AHCS and Mr Atanaskovic in respect of the cross-claim, might, with respect, reasonably form the view that the first primary judge was but a cypher for Mrs Kelly.

[108]  With the exception, during the period when such an appeal lay from an Australian court, of proceedings before the Judicial Committee of the Privy Council (an interlocutory step in Judicial Committee practice, preceding oral submissions, was the preparation of the Case, which included a summary in writing of the submissions of a party: see Judicial Committee Rules 1957, SI 1957 No 2224 (UK), r 63 and Atkin’s Court Forms (2nd Ed), Vol 5, Appeals, [27]), any form of written advocacy in Australian judicial proceedings is a modern phenomenon. In earlier times, but still within living memory, submissions in both original and appellate jurisdiction were wholly oral.

[109]  The facility readily to cut and paste passages from one document to another is another phenomenon of modern times, of the digital age. So, too, with word processing, is there a ready facility for prolixity in written submissions (and, it must be conceded, judgments).

[110]  Modern times have also seen a much greater resort by judges to the delivery, after reservation of judgment, of reasons for judgment in writing, especially in respect of trials and even some interlocutory applications, rather than delivering those reasons ex tempore with those reasons as transcribed then being revised from transcript in respect of matters of grammar or style.

[111]  With increasing judicial workloads and without a commensurate increase in the number of judicial officers, these developments have, as never before, offered in combination a temptation to busy judicial officers, conscious of an obligation to give reasons, to cut and paste passages from the submissions of a party.

[112]  With the digital age has also come an ability readily to compare the contents of two documents.

[113]  The result is that, in a way not encountered in the exercise of appellate jurisdiction in earlier times, appellate courts are from time to time faced with questions such as are raised by the present appeal.

[114]  As will be seen from what follows, two schools of thought have developed in the exercise of appellate jurisdiction as to the vice presented by extensive, unattributed cutting and pasting into reasons for judgment the written submissions of a party.

[115]  One, taken up in the grounds of appeal and related submissions of AHCS and Mr Atanaskovic, is that the reasons given for the orders under challenge in the appeal are “inadequate”. What is meant by this is that, in light of the judicial obligation to give reasons, the exercise of judicial power has failed, because there is no adequate explanation given for the making those orders.

[116]  The other school of thought is that such reasons evidence that justice has not been seen to be done.

[117]  On analysis, these schools of thought are, in my view, but different sides of the same coin of a valid exercise of judicial power, which does not occur if justice is not seen to be done, with that manifested if reasons for judgment do not, in explaining why particular orders have been made, make some reference at least to why the submissions of a party that such orders not be made have been rejected. Further, justice will not be seen to be done if the reasons given by a judicial officer do not, reasonably viewed, evidence judicial independence, a hallmark of any exercise of judicial power. The wholesale, unattributed copying and pasting of the written submissions of one party, in combination with an absence of any reference to the submissions to the contrary of an opposing party, may reasonably suggest partiality on the part of a judicial officer. And that is so even if the judicial officer concerned was in fact scrupulously independent, just time-poor. Put another way, such reasons for judgment may give rise to a reasonable apprehension of bias, even if there can be no suggestion of actual bias. These are all but different ways of describing a failure to observe essential features of a valid exercise of judicial power.

[118]  It is apt to commence a discussion of cases concerned with unattributed copying of the submissions of a party with this Court’s judgment in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (LVR). LVR arose against the background of extensive, unattributed copying by the Administrative Appeals Tribunal (Tribunal) of the written submissions of one party to taxation review proceedings. Although the case contains reference by analogy to some of the Australian authorities concerning unattributed copying in judicial proceedings of the written submissions of a party, the Full Court was astute to note differences between the origins of an administrative body’s obligation to give reasons, the standard expected in respect of administrative reasons and the approach to their scrutiny on later, judicial review. For present purposes the importance of LVR lies in the extensive analysis, at [99]–[112], of North American (ie Canadian and United States) authorities concerning unattributed copying of the written submissions of a party in the exercise of judicial power.

[119]  The conclusion reached by the Full Court, at [111], as to the effect of United States authorities on the subject was that the analysis of such reasons was not merely quantitative, but qualitative and directed to the end of whether there had been a failure to perform the judicial function.

[120]  The conclusion reached, at [112], was that the Canadian approach was to consider, “could a reasonable and informed observer be persuaded that the trial judge had examined all of the evidence before him and made appropriate findings. The court looked beyond the words themselves and to the circumstances of their creation. Issues of public accountability and confidence in the administration of justice were invoked.”

[121]  The analysis of North American authorities in LVR supports the observation already made that extensive, unattributed copying of a party’s written submissions manifests a failure to perform the judicial function with evident schools of thought in Australian authorities being but different sides of the same coin.

[122]   Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia (2023) 297 FCR 143 offers another example in this Court of extensive copying by the Tribunal of the submissions of a party being held to invalidate the resultant decision but it is not necessary further to refer to that case.

[123]  What then of the two Australian schools of thought?

[124]  These two schools of thought are starkly evident in Li v Attorney General for New South Wales (2019) 99 NSWLR 630 (Li).

[125]  In strict form, Li did not arise from a judicial proceeding. It entailed a challenge in the New South Wales Court of Appeal by an unsuccessful applicant to the outcome of an administrative inquiry into his criminal sentence. The inquiry was conducted, as the governing legislation envisaged, by a Supreme Court judge, sitting in an administrative capacity. The judge copied, almost verbatim and without attribution, the submissions of the respondent Attorney General. The judge made at least stylistic amendments to every paragraph of the submissions, some paragraphs were omitted and other brief passages were added. Albeit by majority (Basten and White JJA, Brereton JA dissenting), the challenge failed. In part, that failure was attributable, on the part of the majority, to a differing standard applicable to the reasons of an administrative body, compared with a court, especially a superior court. However, the difference between the majority and the dissenting judge also entailed differing views as to the rationale for the setting aside of exercises of judicial power in circumstances where there was wholesale copying of the written submissions of a party.

[126]  The majority, Basten and White JJA, approached the question with reference to the adequacy of the reasons given. They each held that the primary judge’s adoption of the Attorney General’s submissions did not reveal jurisdictional error. This was because it was not shown that the reasons were not the judge’s own opinion or that he had not turned his mind to the decision. Further, this conclusion was supported by the recognition that there is a lower burden on administrative decision-makers in providing reasons than superior court judges. Thus, at [44]–[48], Basten JA, with whom White JA largely agreed, stated:

[44] In his written submissions, the Attorney referred to a number of cases in which appellate courts have held that the adoption by a judge of the submissions of one party might involve an inadequate exercise of jurisdiction. Three circumstances may be identified.

[45] In the first, where the reasons set out the submissions presented by both parties, and then simply express a preference for one set of submissions over the other, there will be a failure on the part of the judge to give reasons for his or her choice. So much was held in Commissioner for Railways for the Queensland v Peters and Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd.

[46] A second situation may arise where the judge adopts one party’s submissions almost in their entirety, whilst totalling ignoring the submissions of the other side. In substance, the result is the same as that in the first category of cases; there is an implicit preference for one set of submissions over the other without giving reasons for the choice.

[47] The third category also falls within the same pattern of error, but in form the emphasis is upon the reproduction of the submissions of one party, without attribution, and again without reference to the contending submissions of the other party. As noted above, the Attorney identified as the basis of error the extent of the “unattributed adoption” of one party’s submissions. However, the lack of attribution is not necessarily a critical factor; although it may indicate a failure to acknowledge what is being done, it will usually be immediately apparent to each party that one party’s submissions have been adopted.

[48] These decisions are of limited assistance for two reasons. One is structural: there is an important difference between the scope of the obligation to give reasons imposed on judges, especially in superior courts, as compared with administrative decision-makers. Indeed, there isno general law obligation on administrative decision-makers to give reasons. The second reason is substantive: the cases involved an adversary hearing in which the contesting parties had each articulated clear and rational submissions in support of their respective positions. These are not separate factors, but both apply in the present circumstances. That is, there was no adversary proceeding and no conflicting evidence and submissions. Rather, there was an application for an inquiry in the course of which the Attorney General articulated both the arguments of the applicant and the responses to those arguments. Had he not done so, the application could well have been dismissed on the basis that the applicant had articulated no satisfactory ground for doubting or questioning the sentence imposed in the District Court.

[footnotes omitted]

[127]  In dissent, Brereton JA identified that it was necessary for “justice to be seen to be done” in the provision of reasons. After reviewing authorities utilising this terminology, his Honour stated the following propositions, at [116]:

(1) reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done; and

(2) justice will not be seen to have been done if the “reasons” are such as to leave a reasonable person in the position of the unsuccessful party with a justifiable sense of grievance at the appearance that the decision-maker has not addressed attention adequately, or at all, to the arguments of the parties, and understood the unsuccessful party’s arguments and either accepted them, or, if rejected, that the rejection was based on a clear and rational process of reasoning.

[128]  Brereton JA then considered, at [117]–[132], cases of judicial copying of submissions. In the course of that consideration, Brereton JA stated, at [124]:

[124]… The cases in which the extensive incorporation of a party’s submissions has not amounted to error all share the characteristic that the reasons contained, in addition to the reproduced submissions, references to evidence, or to the submissions of the other party, or additional reasoning, which sufficed to show that the decision-maker had turned his or her mind to the issues. This illustrates that the central issue is whether the judge has — or appears to have — personally and independently engaged with the issues so as to render an independent and impartial judgment; “[t]he concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking”….

[footnote omitted]

[129]  The conclusion reached by Brereton JA, at [132], about prior authorities concerning judicial copying was:

[132] Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgment founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law.

[130]  As applied in the context of the adequacy of the primary judge’s reasons, the conclusion reached by Brereton JA, [143]–[144], was:

[143] In my view, the judge’s reasons are, by the relevant yardstick, deficient. The extensive adoption of the Attorney’s submissions, not only on uncontroversial matters, but particularly on the formulation and rejection of the applicant’s case, with the only reference to the applicant’s second submission being to a concession, is such as to create an impression that the judge has not independently and impartially engaged with the applicant’s claim and submissions and given serious consideration to them. The four matters inserted — which embellish submissions made by the Attorney rather than engage with submissions advanced by the applicant — are insufficient to overcome this impression, and the stylistic changes, and substitution of conclusions for submissions, even less so. A reasonable person in the position of the unsuccessful applicant would have a legitimate sense of grievance that his submissions had not been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made were just and in accordance with law, and that the judge did not bring his own independent and impartial mind to bear on the issues. The absence of attribution contributes to this impression, because it obscures the nature of what has been done.

[144] In my view, therefore, the extent of the unattributed reproduction of the Attorney’s submissions, particularly in respect of the formulation of the applicant’s case and its disposal, is such as to create an appearance, from the perspective of a reasonable person in the position of the unsuccessful applicant, that his application did not receive proper independent and impartial consideration. Before us, the Attorney conceded as much. Justice was therefore not seen to be done. And as has been explained, in this field, appearances matter, whatever the reality may be.

[131]  In R v Australian Securities and Investments Commission (2018) 134 ACSR 105 (King), one issue for resolution by the Queensland Court of Appeal was whether extensive copying by a trial judge of the submissions of a party dictated that the appeal had to be allowed. The proceeding in the Trial Division under appeal was a complex prosecution by the Australian Securities and Investments Commission (ASIC) of the directors of a failed investment scheme. The trial judgment was 334 pages in length, comprising 1,630 paragraphs. The appellants alleged that the reasons for judgment at first instance were inadequate in several ways, including because of widespread copying of ASIC’s submissions. The appeal did not succeed on that ground but did on the separate question of whether those charged were “officers” of the company (ASIC succeeded on an appeal to the High Court in respect of the latter issue (Australian Securities and Investments Commission v R (2020) 270 CLR 1). However, nothing in that later outcome detracts from the Queensland Court of Appeal’s survey of authorities concerning judicial copying and the conclusion it reached on that subject as to whether, in that case, there had been a failure in the judicial function.

[132]  The Court of Appeal approached whether there had been a failure to perform the judicial function by reference to whether the reasons of the trial judge demonstrated a failure to engage with the appellants’ submissions, thereby evidencing that justice was not seen to be done. The Court of Appeal’s approach pragmatically eschews mere copying being sufficient to make good a challenge, instead requiring that absence of engagement also be manifested. Thus, at [61]–[65], the Court stated:

[60] Given the nature of the case, being one in which, as the primary judge remarked, many of the essential facts were not particularly contentious, and the contentious issues related to the inferences to be drawn from the events that occurred and contemporaneous documents, it is unremarkable that the primary judge drew extensively upon submissions about those events.

[61] The authorities highlight the tension between the need for judges to demonstrate diligence in their reasoning and analysis, and acknowledgment that time-poor trial judges may adopt counsel’s submissions where “… nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words.”

[62] The adoption of one party’s submissions by a judge has been described as “… one method of providing adequate reasons.” In Cojocaru Smith J of the Court of Appeal of British Columbia stated:

… there is nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge’s own independent analysis and conclusions.

In that case Levine and Kirkpatrick JJ considered that the trial judge’s reasons did not meet the functional requirement of public accountability and the appearance of the proper administration of justice.

[63]On appeal the Supreme Court of Canada observed that judicial copying is a long-standing and accepted practice. However, if carried to excess it raises problems and may displace the presumption of judicial integrity and impartiality. The Court identified the issue as not so much a lack of originality or even a failure to attribute sources, but “whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided”.

[64] In Crinion v IG Markets Ltd, the English Court of Appeal emphasised that appearances matter, and the “copying and pasting” of submissions received can reflect poorly on the administration of justice. Nevertheless, if the trial judge “did in fact carry out a proper judicial evaluation of the essential issues and did not simply surrender his responsibility to counsel, then the judgement should stand.”

[65] Reproduction of submissions is not itself an error. Error will exist, however, where the judge fails to engage with significant arguments.

[footnotes omitted]

[133]  Reading the reasons for judgment as a whole, and notwithstanding the extensive copying from ASIC’s submissions in part of those reasons, the Court of Appeal concluded in King that the trial judge, although adopting ASIC’s submissions, had formed his own conclusions and had sufficiently explained the reasons for doing so.

[134]  The New South Wales Court of Appeal also considered the subject of judicial copying in James v Surf Road Nominees Pty Ltd [2004] NSWCA 475. In the overall context of that case, a statement in the reasons for judgment of the trial judge that, “The cross-defendant’s submissions were of substance and are generally adopted in what follows, albeit with minor modification.” was held sufficient to manifest that the trial judge had turned his mind to the issues for resolution with there being no need, in order for reasons to be adequate, to do other than indicate that the submissions of a party as reproduced explained the result: see [163]–[169].

[135]  An example the other way, in terms of a conclusion in the prevailing circumstances that extensive copying manifested a failure in the exercise at trial of judicial power, is Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd(No 2) (2002) 6 VR 1. The Victorian Court of Appeal found that the primary judge’s extensive adoption of one party’s submissions without attribution was inappropriate, stating, at [163]–[165]:

[163] A careful examination of the reasons for judgment shows that the judge adopted LMM’s closing submissions almost in their entirety. More than 40 paragraphs of the judgment correspond closely to the contentions advanced by LMM in its closing submissions. Fletcher mounted contrary arguments relying on particular evidence and contractual provisions, which were set out extensively in its closing submissions. Nowhere in the reasons is there any reference to those contrary submissions. Fletcher alleged that one of a number of defects in the design of the prison was that LMM overlooked the requirement that the walls of cells at the end of the row of cells needed to be of the same strength as other exterior walls. The defect was covered in Fletcher’s closing submissions but was not dealt with in LMM’s closing submissions. We think that it is significant that the judge, too, did not deal with this claimed defect.

[164] LMM submitted in this Court that the judge dealt with Fletcher’s submissions by reaching conclusions which necessarily implied the rejection of those submissions. That is no answer to Fletcher’s complaint. The Court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends.

[165] The contrast in the manner in which the judge dealt with the submissions of the parties is striking, to the point that it appears that most of Fletcher’s arguments and the evidence supporting its arguments were simply ignored by the judge. If his Honour had any reasoned basis for rejecting the arguments, he did not state them. Fletcher was entitled to complain of that treatment.

[136]  In 1990, writing extrajudicially in relation to judgment writing, Kirby P (as his Honour then was) observed, “The losing party is frequently said to be a primary focus of concern. The winner will often have little interest in the reason for success, usually being convinced of the rightness of the cause anyway. But in closely-fought and expensive litigation, the loser is entitled to have from the judge a candid explanation of the reasons for the decision”: M D Kirby CMG, ‘On the writing of judgments’ (1990) 64 ALJ 691, at 692. As Kirby P’s observation attests, the important purpose of explaining in reasons for judgment to a losing party the reasons for the loss was not, in 1990, a novel thought. It is an enduring truth.

[137]  This litigation was undoubtedly closely fought and, one might infer from the length of the trial, expensive. Also undoubtedly, Mr Atanaskovic in particular emphatically disagrees with the outcome. Although, unfortunately, his counsel have, to an extent, succumbed to translating that emphatic disagreement into some passages in written submissions which are less than respectful to the first primary judge, it is a given that, as a losing party, Mr Atanaskovic was entitled to know why he lost and by reasons which did not give rise, reasonably, to an apprehension that his evidence had not been independently assessed.

[138]  Context is most important in relation to whether wholesale copying vitiates a judgment given at trial. In this regard, context is broader than just the part copied in the context of the reasons for judgment as a whole, but also the issues in the case as apparently addressed by the passage copied. Each is part of a qualitative assessment. This point was, with respect, well made in the South Australian Court of Appeal’s judgment in Amaca Pty Ltd v Werfel (2020) 138 SASR 295, at [23]:

As well, even if the reasons (or aspects of the reasons) are apparently “inadequate”, this alone does not necessarily vitiate the entire decision under appeal. Rather, the inadequacy must relate to “material” aspects of the case. That is, issues on which the parties were divided, the resolution of which affected the outcome.

[139]  The reasoning in King, and especially the reference, at [61], to “time-poor judges”, was pressed by Mrs Kelly on the Court as a reason why the wholesale copying in this case ought not to lead to the allowing of the appeal.

[140]  I have no doubt that Circuit Court judges, including the first primary judge, are “time-poor”. That court’s various general and family jurisdictions are high case volume jurisdictions. Further, supervening medical or other exceptional issues apart, it is incumbent on a judge to determine, before retirement, cases which stand reserved. Related to that, it is necessary that heads of jurisdiction administer their courts in a way which allows a reasonable time for a retiring judge to discharge this duty. Given this duty and lead times in a busy court and with ever more looming impending retirement, I suspect that the first primary judge was more than usually time-poor. Looking at the reasons for judgment as a whole, originality, engagement with issues and submissions, and scholarship are displayed in those parts which do not deal with the cross-claim. That is not to say that all conclusions of law discussed were correct, only that they were addressed in a considered way. It is almost as if, having addressed issues other than the cross-claim, the first primary judge found himself running out of time and therefore resorted to the wholesale copying described. It may very well be that his Honour found the reasoning in Mrs Kelly’s submission about the cross-claim congruent with his own views but, unfortunately, his Honour did not say as much in his reasons.

[141]  It was put for Mrs Kelly that the cross-claim was “transparently contrived”. Its dismissal accords with the overall assessment as to credibility of witnesses expressed by the first primary judge, at [156]–[157]:

156. Much of the parties’ closing submissions, both in writing and orally, dwelt upon the credibility of witnesses, in particular Mrs Kelly, Mr Atanaskovic and Mr Sophocles. Mrs Kelly presented as a quiet, thoughtful and honest witness. The demeanour of Mr Atanaskovic presented a stark contrast. He was affable, brash to the point at times of arrogance, highly intelligent (which he was keen to demonstrate) and resolute. Mr Sophocles presented as cautious and watchful and protective of the reputation of both himself and Mr Atanaskovic.

157. Mr Hartnell is an elderly man and his powers of recall were somewhat diminished by time. He presented, however, as a sincere and honest witness.

[142]  Nowhere in the reasons for judgment did the first primary judge advert either to the reminder offered by s 140(2) of the Evidence Act 1995 (Cth) or by Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336, in relation to the reaching of a conclusion, even on the balance of probabilities, on grave issues. Adverting to this standard overtly is useful, because it is apt to underscore why a losing party in a case entailing potentially grave findings needs to understand how and why the adverse findings have been reached.

[143]  It is certainly possible to discern symmetry between the general credibility findings and the various behaviours of Mr Atanaskovic towards Mrs Kelly, as found by the first primary judge, which constituted the background to her adverse action claim and a disposition not to pay her long service leave entitlements. It is likewise certainly possible to regard the asserted set off as all too convenient for this purpose. Such a pejorative view is found in the copied and pasted part of the Liability Judgment. But that was not necessarily the only view one might take and the evidence led for the then respondents before the Circuit Court was directed to proving a different, favourable view of the existence and extent of the cross-claim. In particular, AHCS and Mr Atanaskovic were entitled to reasons which displayed, on their face, an independent assessment of the merits of the cross-claim.

[144]  The difficulty in terms of whether the judicial function has been discharged is that the cross-claim required the resolution of stark credibility issues as well as whether, in law, any loss had been sustained. Subject to statutory exclusion from set off, the fate of the cross-claim was determinative of whether there had been a failure to pay long service leave entitlements. Any such failure might have penal consequences.

[145]  The method employed here of unattributed, wholesale copying of Mrs Kelly’s submissions means that there is, objectively, an appearance that the credibility issues did not receive such an assessment. The vice in it is not plagiarism per se. The exercise of appellate jurisdiction is not to be assimilated with academic assessment of a student paper or thesis. Rather, in context, such extensive, unattributed copying may, in the circumstances of a particular case, give rise to an apprehension of an absence of independent judicial assessment. That, in context, can be the consequence of an absence of a reasoned explanation as to why the arguments found in the copied submission are being preferred to competing, unarticulated submissions.

[146]  Nothing in the foregoing means that reasons for judgment must be as prolix as preceding written submissions, chasing down every rabbit hole which the ingenuity of counsel has excavated. All it means is that the result must be explained and seen, objectively, to have been independently explained.

[147]  After judgment had been reserved, the parties drew the Court’s attention, and made related submissions, concerning yet another intermediate appellate judgment concerning judicial copying, Porter v R (2024) 21 ACTLR 122 (Porter), a judgment of the Court of Appeal for the Australian Capital Territory.

[148]  In Porter, a sentencing judge largely adopted the prosecution’s submissions but expressed the final conclusion in her own words. On appeal, the Court discussed, at [36]–[42], the divergence in approach between Basten JA and Brereton JA in Li (including subsequent dicta by Basten JA in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479). Without resolving which was to be preferred, the Court of Appeal determined, at [51], that “reasons will be inadequate where, when objectively assessed as a whole, they do not demonstrate that the judge ‘gave independent and impartial consideration to the evidence and the issues’”. That conclusion accords, in my respectful view, with the view expressed above by me that the apparently divergent schools of thought evident in Li are but different sides of the same coin. Approaching the appeal in Porter in this way, the Court of Appeal ultimately concluded, at [90], that the primary judge’s reasons, when read as a whole, were sufficient. That was because of the extensive analysis of the evidence, engagement with the offender’s submissions and reiteration of key conclusions. In terms of principle, Porter reinforces a conclusion, in the different circumstances of this case, that there was a failure in the judicial function in relation to the determination of the cross-claim.

[149]  The consequence of this conclusion means that the declaration in the Liability Judgment as to a contravention of s 90 and s 323 of the FWA by AHCS and, as an accessorial party, Mr Atanaskovic must be set aside. So, too, must be the orders that they pay Mrs Kelly the sum of $130,427.84 within 21 days, plus interest up to judgment and the order dismissing the cross-claim. As is separately conceded and for reasons given above, the order that AHCS and Mr Atanaskovic pay Mrs Kelly general damages in the sum of $30,000 must also be set aside.

[150]  A consequential corollary of these orders is that each of the orders made in the Penalty Judgment must be set aside. Although Mrs Kelly sought to preserve the penalty orders on the basis that s 323 of the FWA excluded a set off, that question only arises if the cross-claim is proved.

[151]  Given that a re-trial must occur, the various procedural fairness complaints made by AHCS and Mr Atanaskovic in other grounds of appeal become irrelevant. Also given that a re-trial must occur, it is neither necessary nor desirable that the Court reach conclusions about whether particular findings concerning witnesses who gave evidence relevant to the cross-claim were, or were not, open on the evidence.

[152]  It was also put for AHCS and Mr Atanaskovic that any order for a re-trial should specify that it not be heard by the second primary judge, having regard to observations and conclusions about AHCS and Mr Atanaskovic. In my view, such an order is not necessary. There is no reason to doubt that the chief judge of the Circuit Court will not, in his Honour’s judicial administration of that court, fail to take into account in docketing decisions the basis upon which the appeal has succeeded and the credibility findings made by the second primary judge.

[153]  As the appeal has succeeded on a question of law, it may be that a party to the appeal is eligible, and disposed, to make an application for an order under the Federal Proceedings (Costs) Act 1981 (Cth). I would therefore reserve liberty to apply to a party to make such an application. If only out of an abundance of caution, and although the appeal has succeeded on the basis of a judicial error to which no party contributed, provision should be made for the determination on the papers of such other costs application, if any, as a party to the appeal may make.

(emphasis added)

What falls from the judgments in this case, and the cases to which it refers, are essentially these two points:

• First, wholesale copying of submissions does not in itself serve to vitiate a judgment, but, prima facie, it calls up for steady consideration the second issue below.
• Second, as was noted in the 2024 Court of Appeal of the Supreme Court of the ACT decision in Porter v R:  “…[judicial] reasons will be inadequate where, when objectively assessed as a whole, they do not demonstrate that the judge gave independent and impartial consideration to the evidence and the issues” but that a judgment “will only be vitiated where the reasons are such that it should be inferred that they are not the product of an active application of an independent and impartial mind”.