Atanaskovic Hartnell Corporate Services Pty Limited v Kelly

BACKGROUND

1. The factual background to the dispute between the appellants and the respondent is detailed in the Liability Decision of the first primary Judge at [108]-[147]. I do not understand there to be any dispute as to the accuracy of the following general facts.
2. In summary, AHCS was a company which provided corporate and general management services to Atanaskovic Hartnell, of which Mr Atanaskovic was the managing partner. From 19 April 2004 until 4 November 2016, Mrs Kelly was the general manager of AHCS. From 1 September 2014 to 16 November 2016, Mrs Kelly was also a director of AHCS.
3. As general manager of AHCS, Mrs Kelly was responsible for human resources, administration, information technology and finance. She was required to report directly to Mr Atanaskovic. Mrs Kelly's annual salary, as at 4 November 2016, was $237,315.59 including superannuation.
4. As the first primary Judge explained, following the cessation of Mrs Kelly's employment, the following events occurred:
5. On 4 November 2016, Mrs Kelly had accrued but untaken annual leave totalling 100.5256 days and constituting a gross (pre-tax) figure of $83,564.92 and a net (after tax) figure of $49,647.40.
6. On 4 November 2016, Mrs Kelly had accrued but untaken long service leave totalling 10.875 weeks or 54.3744 days and constituting a gross figure of $45,200.36 and a net figure of $26,854.34.
7. On 4 November 2016, Mrs Kelly had accrued but unpaid salary for two days (3 and 4 November 2016) constituting a gross amount of $1,662.56 and a net figure of $1,062.78.
8. On 23 November 2016, Mrs Kelly made two demands for payment of the accrued but untaken annual leave and long service leave entitlements and the unpaid salary.
9. On 29 November 2016, AH outlined a breach of the Employment Contract in relation to the failure of Mrs Kelly to supply supporting documentation for an application to renew a UK visa required for the continued operation in the UK of AH and AH LLP and requested that Mrs Kelly respond to six queries relating to the failure before AHCS decided whether to pay the accrued but untaken annual leave and long service leave entitlements and the unpaid salary.
10. On 23 December 2016, the solicitors for Mrs Kelly made a demand for payment of the accrued but untaken annual leave and long service leave entitlements and the unpaid salary.
11. On 6 and 7 January 2017, Mr Atanaskovic responded to the demand by sending an email expressly in the name of and on behalf of AH, and as solicitor on behalf of AHCS, stating expressly the reliance of AHCS on the principles of set-off in relation to the loss suffered in respect of Mrs Kelly failing to supply the supporting documentation for the visa. (footnotes omitted)
12. In the Liability Judgment, the first primary Judge made the following declaration and orders: THE COURT DECLARES THAT:
13. The first and third respondents breached ss 90(2) and 323 of the Fair Work Act 2009 (Cth) by failing to pay the applicant her statutory and contractual entitlements. THE COURT ORDERS THAT:
14. The first and third respondents shall pay the sum of $130,427.84 to the applicant within 21 days, plus interest up to judgment.
15. The first and third respondents shall pay general damages to the applicant in the sum of $30,000.
16. The application as amended is otherwise dismissed.
17. The cross-claim as amended is dismissed.
18. Civil penalties were subsequently ordered by the second primary Judge in the Penalties Judgment to be paid by the appellants directly to the respondent.
19. On 29 April 2022, in the current proceedings before the court, the appellants filed a notice of appeal. As I noted earlier, the appellants subsequently filed amended notices of appeal, including relevantly the notice of appeal presently before the Full Court filed on 19 October 2023.
20. On 19 May 2022, the respondent filed a notice of cross-appeal which she discontinued on 4 July 2023.
21. On 28 July 2023, the respondent filed a notice of contention to the effect that the judgment of the first primary Judge should be affirmed on the following ground:
22. The Respondent contends that the ultimate orders of the primary judge are maintainable, either in whole or in part, on the basis of defences to the cross-claim raised by the Respondent that the primary judge did not need to determine and did not determine, namely defences by way of contributory negligence or proportionate liability. Particulars The defences of contributory negligence and proportionate liability were pleaded in the Respondent's Reply to the Cross-Claim at paragraphs 89-102.

GROUNDS OF APPEAL

1. The appellants challenged the decisions of the first and second primary Judge on the following grounds: LIABILITY JUDGMENT Alleged breach of contract by AHCS
2. The primary judge erred in: (a) finding that the second appellant (Mr Atanaskovic) was liable for breaches of the respondent's (Mrs Kelly) contract of employment (Liability Judgment at [407] and [453]); and (b) ordering Mr Atanaskovic to pay damages for breaches of the contract of employment (Liability Judgment [463], order 2]). Particulars Mr Atanaskovic was not a party to Mrs Kelly's contract of employment with the first appellant (AHCS) and as such, was incapable of breaching it.
3. The primary judge erred in finding that AHCS breached the Safe System of Work Term (Liability Judgment at [405]-[407], [452]), in circumstances where the primary judge did not identify anything that AHCS could have or should have done to comply with the Term, and which it failed to do.
4. Further or in the alternative to [2] above, the primary judge erred in finding that AHCS breached the Safe System of Work Term, in circumstances where the conduct of Mr Atanaskovic towards Mrs Kelly did not expose a person in the circumstances of Mrs Kelly to injury (as opposed to what in the factual context constituted mere upset, hurt feelings, annoyance or embarrassment).
5. In the alternative to [2]-[3] above, the primary judge erred in finding that Mrs Kelly's pain and suffering (for which she was awarded general damages for non-economic loss: Liability Judgment at [457], order 2) was caused by AHCS's breach of the Safe System of Work Term, in circumstances where: (a) the primary judge had found that the pain and suffering was caused by the conduct of Mr Atanaskovic, not the conduct of AHCS (Liability Judgment at [402]-[404], [451], [453]); (b) the primary judge had found that there was nothing AHCS could do to prevent Mr Atanaskovic's conduct (Liability Judgment at [404], [447]-[448], [453]); and (c) the primary judge's finding that Mrs Kelly's pain and suffering was caused by AHCS's breach of the Safe System of Work Term was otherwise contrary to the evidence.
6. In the further alternative to [1]-[4] above, the primary judge erred in awarding Mrs Kelly damages for pain and suffering in respect of any breaches of her contract of employment (Liability Judgment at [455] and [457], order 2). Particulars (a) The primary judge ought to have held, and erred in failing to hold, that damages for pain and suffering were not recoverable for any breach of Mrs Kelly's employment contract, in the absence of any finding of physical or psychiatric injury. (b) Even if there were a finding of physical or psychiatric injury, the primary judge ought to have found, and erred in not finding, that Mrs Kelly's contractual claim for damages, in respect of the alleged failure of her employer to provide a safe workplace, was in substance a claim in respect of an injury caused by the negligence or other tort of AHCS, and hence a claim to which Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) (WCA) applied by virtue of s 151E(3) of that Act (cf Liability judgement at [103], [406]). (c) Accordingly, even if there were a finding of physical or psychiatric injury, the primary judge erred by awarding damages for pain and suffering, and by awarding damages in the absence of a finding that Mrs Kelly had suffered permanent impairment of at least 15%, contrary to ss 151F and 151G of the WCA. Visa cross-claim Breach
7. The primary judge ought to have found, and erred in failing to find, that Mrs Kelly breached her contractual duties to AHCS by failing to provide documents specifically requested of her for the purpose of the visa application (the Requested Documents) (cf Liability Judgment at [172(a)]). Particulars (a) The primary judge erred by not addressing the case, as put by AHCS, that the failure to provide the Requested Documents was, without more (and irrespective of Mrs Kelly's understanding of the Requested Documents' significance), a breach of these duties (cf Liability Judgment at [179], [183]). (b) Mrs Kelly's failure to provide the Requested Documents was a breach of her duties to comply with lawful and reasonable directions, and to act with reasonable care, skill and diligence. Causation and loss
8. The primary judge erred in finding that any loss suffered by AHCS was not caused by Mrs Kelly's breach of contractual duties to AHCS (Liability Judgment at [172(b)], [189]). Particulars (a) The primary judge should have found, and, particularly in the absence of any consideration of the provisions of the Civil Liability Act 2002 (NSW) (CLA) governing findings as to causation and contributory negligence, erred in not finding, that Mrs Kelly's failure to provide the Requested Documents caused the UK Home Office's rejection of Mr Atanaskovic's visa application (cf Liability Judgment at [189]). (b) In the face of the UK Home Office stating that it had rejected Mr Atanaskovic's visa application because that application did not include the Requested Documents, the primary judge should not have speculated on other reasons why the UK Home Office might have rejected the application, and erred in doing so (cf Liability Judgment at [171], [184]). (c) Particularly in the absence of any consideration of the provisions of the CLA governing findings as to causation and contributory negligence, the primary judge erred in finding that any absence of action by Mr Atanaskovic or Mr Powlson somehow negated Mrs Kelly's liability for her breach of contractual duty to AHCS (cf Liability Judgment at [172(c), (d)], [195], [198], [202]). (d) The primary judge ought to have found, and erred in failing to find, that the payment by AHCS to Atanaskovic Hartnell (AH), on account of the Deloitte fees incurred in respect of Mr Atanaskovic's visa application (Deloitte Costs), was caused by Mrs Kelly's breaches of contract.
9. The primary judge erred in finding that AHCS did not suffer any loss as a result of Mrs Kelly's breach (Liability Judgment at [203]). Particulars (a) The primary judge erred in (apparently) finding that if AH's payment of the Deloitte Costs to AH LLP was "voluntary", then this meant AH (and hence AHCS) had suffered no loss (Liability Judgment at [205]). (b) The primary judge ought to have found, and erred in failing to find, that the liability of AHCS to AH in respect of the Deloitte Costs was absolute, rather than contingent (cf Liability Judgment at [208]). (c) The primary judge ought to have found, and erred in failing to find, that AHCS was liable to compensate AH in tort or contract in respect of the Deloitte Costs, irrespective of the letters between AHCS and AH referred to in the Liability Judgment at [206]-[207]. (d) In the alternative to (c) above, the primary judge erred in finding that if the basis of AHCS's liability to AH (and hence of AHCS's loss) was the letters (and associated board minutes), that they were, in substance, a sham or contrived transaction engaged in by legal practitioners for the purpose of perpetrating a fraud on the Court, where that grave allegation was neither pleaded nor put to those legal practitioners, nor supported by, or available on, the evidence (Liability Judgment at [172(e)], [206], [207], [210], [214], [216]). 8A. Further or in the alternative to [8(d)], the primary judge provided inadequate reasons for the finding identified above at [8(d)]. Particulars (a) The finding was inconsistent with the evidence, but the primary judge did not recognise, address or explain that inconsistency. (b) The finding necessarily required the primary judge to address and explain a variety of documentary and testimonial evidence, but he never did so. 8B. Further or in the alternative to [6]-[8] and [8A], the primary judge otherwise erred in law and/or provided inadequate reasons for dismissing the Visa cross-claim, in circumstances where the primary judge's purported reasons for doing so consisted entirely of a near verbatim copy, without attribution, of the corresponding paragraphs of Mrs Kelly's closing written submissions on that topic, without any consideration, analysis, evaluation or disposition (one way or another) by way of reasoning, of any of AHCS's submissions (written and oral) on the cross-claim. Summary
10. By reason of the matters in [6]-[8], the primary judge erred in dismissing the Visa crossclaim (Liability Judgment at [172], order 4). LexisNexis cross-claim Breach
11. The primary judge ought to have found, and erred in failing to find, that Mrs Kelly breached her contractual duties to AHCS by (Liability Judgment at [219]-[220]): (a) failing to provide LexisNexis with the required notice to cancel AH's subscription prior to the automatic renewal date (a Notice); (b) failing to alert the partners of AH to the date of the expiry of AH's contract with LexisNexis, the fact that the contract would automatically be renewed unless a Notice was given and the deadline for giving such a Notice; and (c) failing to confirm or record in writing any undertaking given to her orally by LexisNexis, that LexisNexis would not enforce the automatic renewal provisions of its contract with AH. Particulars (i) The primary judge erred by not addressing the breaches, as put by AHCS, articulated above at [10(b)] and [10(c)]. (ii) The primary judge ought to have found, and erred in failing to find, that a person performing Mrs Kelly's work with the degree of competence and skill expected of a person in her position, would have done the things in [10] above. (iii) The primary judge ought to have found, and erred in failing to find, that if Mrs Kelly had taken reasonable care not to cause loss or injury to AHCS in the course of performing her work, she would have done the things in [10] above. Causation and Loss
12. The primary judge erred in finding that any loss caused by Mrs Kelly's contractual breaches was that of AH, not AHCS (Liability Judgment at [234], [249]-[250]). Particulars (a) The primary judge erred in finding that if the basis of AHCS's liability to AH (and hence of AHCS's loss) was the letters (and associated board minutes), that they were, in substance, a sham or contrived transaction engaged in by legal practitioners for the purpose of perpetrating a fraud on the Court, where that grave allegation was neither pleaded nor put to those legal practitioners, nor supported by, or available on, the evidence (Liability Judgment at [249]). (b) In any event, the primary judge ought to have found, and erred in failing to find, that AHCS was liable in tort or contract to compensate AH for the loss arising from the LexisNexis dispute independently of the letters between AHCS and AH referred to in the Liability Judgment at [249]. (c) The primary judge erred in holding that AHCS "cannot recover any loss until they [sic] account for any benefit they [sic] may have received" from LexisNexis, there being no evidence of such a benefit (Liability judgment at [232]). 11A. Further or in the alternative to [11(a)], the primary judge provided inadequate reasons for the finding identified above at [11(a)]. Particulars (a) The finding was inconsistent with the evidence, but the primary judge did not recognise, address or explain that inconsistency. (b) The finding necessarily required the primary judge to address and explain a variety of documentary and testimonial evidence, but he never did so. 11B. Further or in the alternative to [10]-[11] and [11A], the primary judge otherwise erred in law and/or provided inadequate reasons for dismissing the LexisNexis cross-claim, in circumstances where the primary judge's purported reasons for doing so consisted entirely of a near-verbatim copy, without attribution, of the corresponding paragraphs of Mrs Kelly's closing written submissions on that topic, without any consideration, analysis, evaluation or disposition (one way or another) by way of reasoning, of any of AHCS's submissions (written and oral) on the cross-claim.
13. The primary judge erred in finding that Mrs Kelly's breaches did not cause loss to AHCS in the amount of $154,085, being the value of the time spent by Michael Sophocles dealing with the dispute with LexisNexis, calculated at his usual charge-out rates (Liability Judgment at [248]). Particulars (a) The primary judge should have found, and erred in failing to find, that Mrs Kelly's breaches caused significant disruption to the business of AH by diverting Mr Sophocles' time to dealing with the firm's dispute with LexisNexis (cf Liability Judgment at [241], [248]). (b) The primary judge should have found (by inference), and erred in failing to find, that if Mr Sophocles' time had not been thus diverted, he would have applied it to generating revenue at his usual charge-out rate (cf Liability Judgment at [241], [248]). Mitigation
14. The primary judge erred in finding that any loss suffered by AHCS was not compensable because AH had failed to take reasonable steps to mitigate that loss (Liability Judgment at [225], [228]). Particulars (a) The primary judge erred in basing findings in relation to the extent of Mrs Kelly's liability to AHCS, upon the supposed failure of third parties (i.e. AH) to mitigate their loss. (b) Further or in the alternative to [13(a)], the primary judge erred in finding that AH had acted unreasonably by deciding not to accept offers from LexisNexis, where those offers were for services that AH did not want, at prices that AH did not want to pay for those services (Liability Judgment at [225]). (c) Further or in the alternative to [13(a)], the primary judge erred in finding that AH had acted unreasonably by defending, rather than settling, the litigation brought by LexisNexis (Liability Judgment at [227]-[228]). (d) Further or in the alternative to [13(a)], the primary judge erred in finding that at the outset of its litigation with LexisNexis, AH somehow should have predicted the course that the litigation would take and therefore should have agreed to settle it at the outset (Liability Judgment at [228]). Summary
15. By reason of the matters in [10]-[13], primary judge erred in dismissing the LexisNexis crossclaim (Liability Judgment at [251], order 4). Fair Work Act contraventions
16. The primary judge erred in failing to find that the Visa cross-claim and/or the LexisNexis cross-claim constituted a defence to any finding of contravention or liability of AHCS for Mrs Kelly's unpaid entitlements by reason of the principles of equitable set-off (Liability Judgment at [93]) and accordingly, erred in finding (Liability Judgment at [252], declaration 1, order 1) that by failing to pay Mrs Kelly her: (a) annual leave entitlement upon the cessation of her employment, AHCS contravened ss 90(2) and 323 of the Fair Work Act 2009 (Cth) (FW Act); (b) long service leave entitlement under the Long Service Leave Act 1995 (NSW) upon the cessation of her employment, AHCS contravened s 323 of the FW Act; and (c) her statutory and contractual entitlements to wages, AHCS contravened s 323 of the FW Act. 15A. Further or in the alternative to [15], the primary judge erred in concluding (Liability Judgment at [252], declaration 1) that any failure by AHCS to pay to Mrs Kelly upon the cessation of her employment, her accrued annual leave entitlement under the FW Act and/or her long service leave entitlement under the Long Service Leave Act 1995 (NSW), constituted a contravention of s 323 of the FW Act.
17. The primary judge erred in finding that Mr Atanaskovic was knowingly involved in, and an accessory to, the contraventions by AHCS of ss 90(2) and 323 of the FW Act for the purposes of s 550 of the FW Act (Liability Judgment at [258]-[259], declaration 1, order 1). Particulars (i) Those allegations, and the material facts necessary to support those allegations, were not pleaded. (ii) The findings of fact made by the primary judge do not support those conclusions, including because the primary judge did not identify the essential matters constituting the contraventions, nor make any findings as to Mr Atanaskovic's state of knowledge as to those matters. (iii) Further or in the alternative, in reaching those conclusions, the primary judge relied on matters that were required to be, but were not, put to Mr Atanaskovic in cross-examination (Liability Judgment at [258], [260]). (iv) Further, by reason of the matters in (i) and (iii) immediately above, the primary judge denied Mr Atanaskovic procedural fairness. PENALTY JUDGMENT Penalties
18. The primary judge erred in ordering that AHCS pay penalties (Penalty Judgment, order 1), by reason of the matters in [15] above.: (a) because of the matters above at [15]; or, in any event, (b) because of the erroneous finding(s) (including those in [20] below) that the belief of AHCS (and if relevant, Atanaskovic) that AHCS had a right of set-off such that Ms Kelly's entitlements were not payable to her by AHCS, was anything other than genuinely, honestly and reasonably held.
19. The primary judge erred in ordering that Mr Atanaskovic pay penalties (Penalty Judgment, order 2), by reason of the matters in [16] above.: (a) because of the matters above at [16]; or, in any event, (b) because of the erroneous finding(s) (including those in [20] below) that the belief of AHCS (and if relevant, Atanaskovic) that AHCS had a right of set-off such that Ms Kelly's entitlements were not payable to her by AHCS, was anything other than genuinely, honestly and reasonably held. 18A. Further or in the alternative to [17] and [18], the primary judge erred in ordering (Penalty Judgment, orders 1(a)-(b) and 2(a)-(b)) that AHCS and Mr Atanaskovic pay penalties in respect of a failure to pay to Mrs Kelly upon the cessation of her employment, her accrued annual leave entitlement under the FW Act and/or her long service leave entitlement under the Long Service Leave Act 1995 (NSW), for the reason given above at [15A].
20. In the alternative to [17]-[18A] above, the primary judge erred in failing to find that the three contraventions of s 323 of the FW Act of each of AHCS and Mr Atanaskovic, arose out of a course of conduct by each of them in each case (Penalty Judgment at [93]), and ought: (a) not to have imposed more than one penalty for those contraventions pursuant to s 557 of the FW Act; and (b) to have applied the "course of conduct principle" in the determination of an appropriate penalty for each contravention.
21. In the further alternative to [17]-[19] above, the primary judge's discretionary assessment of the appropriate penalties to be imposed miscarried because the primary judge had regard to irrelevant considerations and mistook the facts, in making the assessment (in part) on the basis that: (a) AHCS and Mr Atanaskovic had engaged in scheming and deception involving deceit and dishonesty (Penalty Judgment at [59]-[60], [64]), in circumstances where: (i) no allegations of scheming or deception were pleaded; (ii) allegations of that kind were not put to Mr Atanaskovic, Mr Sophocles or Mr Hartnell in cross-examination; and (iii) any finding that AHCS and Mr Atanaskovic had engaged in scheming and deception was not supported by the evidence; (b) AHCS and Mr Atanaskovic had engaged in a plan to deprive Mrs Kelly of her entitlements (Penalty Judgment at [61], [95]-[101]), in circumstances where: (i) no allegations of such a plan were pleaded; (ii) allegations of that kind were not put to Mr Atanaskovic, Mr Sophocles or Mr Hartnell in cross-examination; and (iii) any finding that AHCS and Mr Atanaskovic had engaged in such a plan was not supported by the evidence; (c) the contraventions of AHCS and Mr Atanaskovic involved the production of board minutes to give false credence to their incorrect content (Penalty Judgment at [113]), in circumstances where: (i) allegations of that kind were not put to Mr Sophocles, who signed the board minutes; and (ii) the finding was contrary to the evidence; (d) AHCS pursued its cross-claims against Mrs Kelly based on contrived letter agreements, designed to shift loss to it that it had not otherwise suffered (Penalty Judgment at [140]), in circumstances where: (i) AHCS's loss, and its case on loss, was not based on the letter agreements; and (ii) AHCS had suffered loss independent of the letter agreements (as to which, see paragraphs [8(c)] and [11(b)] above); (e) the contraventions of AHCS and Mr Atanaskovic involved a flagrant or wilful disregard of AHCS's obligations, an intention to resist legal obligations even by means of deceit, and did involve deceit (Penalty Judgment at [111]-[114], [139], [146]), in circumstances where: (i) there were no findings to that effect; (ii) allegations of that kind were not put to Mr Atanaskovic, Mr Sophocles or Mr Hartnell in cross-examination; and (iii) such findings would have been contrary to the evidence; (f) there was no basis for the institution of the cross-claims against Mrs Kelly other than a finding by the primary judge that Mr Atanaskovic allegedly had personal animus towards Mrs Kelly (Penalty Judgment at [106]), in circumstances where: (i) there was no finding to that effect; (ii) allegations of that kind were not put to Mr Atanaskovic, Mr Sophocles or Mr Hartnell in cross-examination; and (iii) such a finding would have been contrary to the evidence; (g) the conduct of Mr Atanaskovic was relevant to assessing penalties to be imposed on AHCS (Penalty Judgment at [76], [142], [144]), in circumstances where: (i) there was no finding that Mr Atanaskovic's conduct was attributable to AHCS; and (ii) alternatively, any finding that Mr Atanaskovic's conduct was attributable to AHCS was not supported by the evidence. Costs
22. The primary judge erred in awarding Mrs Kelly her costs, on an indemnity basis or at all, because for the reasons set out above: (a) Mrs Kelly's application should have been dismissed; (b) the primary judge erred in finding that the cross-claims were not brought bona fide (Penalty Judgment at [188]) or were otherwise commenced and pursued unreasonably (Penalty Judgment at [192]-[193]); and (c) the primary judge erred in finding that the cross-claims were brought in wilful disregard for known facts (Penalty Judgment at [189]).
23. In the alternative to [21] above, the primary judge erred in awarding costs to Mrs Kelly of the amended penalty/costs application (Penalty Judgment at [194]), in circumstances where: (a) AHCS and Mr Atanaskovic were entitled, if not obliged, to make submissions in respect of penalties and costs; (b) there was no finding that the participation in, and conduct of, the penalty/costs phase of the proceeding involved any unreasonable act or omission by either AHCS or Mr Atanaskovic, or any other qualifying conduct under s 570(2) of the FW Act; and (c) such a finding would have been contrary to the evidence. (tracked changes omitted)
24. The appellants sought the following orders: Orders sought
25. Appeal allowed.
26. Declaration 1 and Orders 1, 2 and 4 of the orders made by the court below on 31 March 2022, and order 1 of the orders made by the court below on 24 October 2022 be set aside.
27. Judgment for the first appellant against the respondent in the amount of $95,804.74 plus interest to the date of judgment.
28. In the alternative to 3 above, the proceeding be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing.
29. Orders 1, 2 and 3 of the orders made by the court below on 2 February 2023 be set aside.
30. In the alternative to Orders 2-4, the Court impose any pecuniary penalty(ies) pursuant to s 546(1) and (3) of the FW Act for any contraventions of ss 323 of the FW Act by the appellants.
31. In the alternative to 6 above, the question of penalty(ies) to be imposed on the appellants be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing.
32. Prior to the hearing of the appeal, the appellants sought that the Full Court hear and determine grounds of appeal 8B and 11B separately from and before other questions in the proceeding. The Full Court determined that the appeal should be heard in its entirety rather than risk the necessity of the Full Court being reconvened at a later time in the event that the appellants' arguments in respect of grounds of appeal 8B and 11B were unsuccessful.
33. Having heard the submissions of the parties in their entirety however, I now consider that it is convenient - and efficient - to separate grounds of appeal 8B and 11B for consideration before proceeding to consider the balance of the grounds. Grounds of appeal 8B and 11B concerned the manner in which the first primary Judge addressed the appellants' cross-claims at first instance. For clarity, grounds of appeal 8B and 11B are as follows: 8B. Further or in the alternative to [6]-[8] and [8A], the primary judge otherwise erred in law and/or provided inadequate reasons for dismissing the Visa cross-claim, in circumstances where the primary judge's purported reasons for doing so consisted entirely of a near verbatim copy, without attribution, of the corresponding paragraphs of Mrs Kelly's closing written submissions on that topic, without any consideration, analysis, evaluation or disposition (one way or another) by way of reasoning, of any of AHCS's submissions (written and oral) on the cross-claim. … 11B. Further or in the alternative to [10]-[11] and [11A], the primary judge otherwise erred in law and/or provided inadequate reasons for dismissing the LexisNexis cross-claim, in circumstances where the primary judge's purported reasons for doing so consisted entirely of a near-verbatim copy, without attribution, of the corresponding paragraphs of Mrs Kelly's closing written submissions on that topic, without any consideration, analysis, evaluation or disposition (one way or another) by way of reasoning, of any of AHCS's submissions (written and oral) on the cross-claim.
34. The utility of determining grounds of appeal 8B and 11B prior to considering the remaining grounds was explained by Mr Follett SC for the appellants at the hearing in the following terms: MR FOLLETT: Ms Kelly also brought a claim for three forms of employment entitlements payable on termination of employment. She had two days' salary outstanding, given the way the pay runs worked. That was a claim in contract, because her employment was not covered by an award or enterprise agreement. She had accrued long service leave under the state Long Service Leave Act of New South Wales and she had accrued annual leave pursuant to section 90(2) of the Fair Work Act. The cross-claims arose in respect of those entitlement claims. It was contended by AHCS that it had two cross-claims, the Visa cross-claim and the LexisNexis cross-claim, which, if upheld, provided for damages which exceeded the entitlements claim. The entitlements claim was some $130,000. And the next step in that argument, if the cross-claims were upheld, was the contention that that - those cross-claims - their mere existence and then their upholding constituted a substantive defence to the failure to pay the entitlements under the Long Service Leave Act and the Fair Work Act and in contract. As your Honours will have seen, each of those cross-claims were dismissed and, as a consequence, his Honour did not need to determine whether an equitable set-off would have been available… (transcript 15 November 2023 p 7, emphasis added).
35. I agree. Plainly, in the event that the appellants are successful in respect of grounds 8B and 11B the appeal in its entirety should be allowed.

Appellants' submissions

1. The gravamen of the appellants' complaint, as found in grounds of appeal 8B and 11B, was that 81 of the 82 paragraphs of the reasons of the first primary Judge addressing the cross-claims were a "near verbatim copy, without attribution" of the now respondent's closing submissions below. Further, the appellants submitted that "[n]ot a single written or oral submission or contention of AHCS on the merits of the cross-claims, nor any of the extensive evidentiary references in writing, were referred to, analysed or considered and rejected (let alone accepted) by the [first primary Judge]."
2. The appellants also took issue with the fact that several aspects of the cross-claims, including "sham" allegations by Mrs Kelly before the first primary Judge, turned upon issues of credit. The appellants submitted that issues of credit were not addressed or resolved by the first primary Judge in the Liability Judgment. In particular, the appellants submitted that the first primary Judge stated he would "deal with credibility issues" in a "confined way" in the course of the broader reasons in the Liability Judgment (at [158]). The appellants submitted that dealing with credibility issues in this way amounted to a "gross inadequacy" where such broader reasons constituted a "copy-and-paste job".
3. In submissions filed 5 July 2024 the appellants drew the attention of the Court to the decision of the Court of Appeal of the Australian Capital Territory in Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122 (Porter). In Porter, a ground of appeal referable to unattributed copying of submissions of one party by the first Judge in that matter was dismissed. The appellants in the present case submitted that the extent of copying by the first primary Judge below was far more significant, in terms of both its nature and volume, than the 20 paragraphs copied in Porter. Further, the appellants submitted that the copying in the Liability Judgment resulted in "a wholesale failure to identify, analyse and address the merits of (with adequate reasons) all of the contested factual and legal issues that arose on the cross-claims, including issues of witness credit."
4. In contrasting the nature of copying in the Liability Judgment with the copying in Porter, the appellants submitted that the first primary Judge in the Liability Judgment did not:

• provide a comprehensive summary of the evidence relevant to the cross-claims, as large parts of that evidence (particularly in relation to the "sham" issue) were not referred to at all;
• summarise at any length (or at all) any submissions of the appellants on the cross-claims;
• respond to, analyse or reject any submissions of the appellants on the cross-claims;
• address and provide independent reasoning with respect to any other significant issues relevant to the merits of the cross-claims; or
• provide any independent concluding remarks about witness credit.

Respondent's Submissions

1. The respondent's Outline of Submissions filed 20 October 2023 took specific issue with the appellant relying Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143 (Ultimate Vision) in its submissions. The respondent noted that Ultimate Vision was "a decision dealing with the obligations cast on statutory tribunals, not judicial determinations." Rather, the respondent submitted that the decision of the Court of Appeal of Queensland in King v Australian Securities and Investments Commissions [2018] QCA 352; 134 ACSR 105 (King) was a more suitable authority to assess the issue of "judicial copying" because it related to a judicial determination. In particular, the Court in King noted that it was important to be mindful of the fact that it may be open to "time-poor" trial judges to accept by way of adoption one party's submissions, rather than postponing other pressing work in order to rewrite the reasoning and conclusions in the judge's own words.
2. The respondent contended that the first primary Judge in the Liability Judgment made express reference to the parties' "exceptionally detailed closing submissions, which were augmented orally" at [107], and that his Honour identified all of the evidence relied on by the parties at [104]-[106]. To this end, the respondent submitted that the first primary Judge had regard to all the material to which his Honour referred in the Liability Judgment.
3. The respondent further submitted that the first primary Judge's replication of Mrs Kelly's closing submissions was "unsurprising" given the "lack of merit and transparently contrived nature" of the appellants' position on the substantive issues on appeal.
4. I note that the respondent filed no submissions referable to the decision in Porter notwithstanding the Orders of Logan J made 26 June 2024.

Consideration

1. The appellants relied in particular on the decision in Porter. In that case the Court of Appeal of the Australian Capital Territory provided the following comprehensive overview of principles referable to judicial copying of submissions into judgments: [28] As both parties submitted, the starting point for consideration of the first ground of appeal is with the duty of a judge to provide reasons for their decision. [29] Although there is no statutory requirement for a judge to give reasons for a decision on sentence (cf s 68C(2) of the Supreme Court Act 1933 (ACT)), the common law requires that such reasons be given. The purpose of this requirement is so that justice may be seen to be done (both by the parties and the wider public), and to enable an appellate court to ascertain the reasoning on which the decision is based for the purpose of determining any appeal against the decision: Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54] - [58]; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [42]. [30] The extent of the reasons which will be required varies "according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision": DL at 12 [32]. The reasons given do not need to be elaborate: IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 at [4] quoting Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386; Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 at 443. [31] However, it is necessary for the reasons to demonstrate that the judge "engage[d] with the case presented", "expose[d] his or her reasoning on points critical to the contest between the parties", "[made] findings as to material questions of fact", and "explain[ed] why evidence or material has been rejected": Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 at [20], citing inter alia, Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40], DL v The Queen [2018] HCA 26; 266 CLR 1 at [130] - [131], Beale at 431 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258. [32] In the present case, the appellant did not contend that the primary judge had failed to address material evidence or submissions. Rather, he submitted that the primary judge's reasons were deficient because they contained substantial extracts from the prosecutor's submissions, without attribution. A complaint of this nature raises concerns of a different complexion to cases in which it is alleged that the reasons are deficient because relevant evidence or submissions were not addressed by the primary judge. [33] A fundamental concern that is raised when there is extensive copying of a party's submissions in a judge's reasons for decision is with the integrity of the judicial process. Such a practice raises the spectre that the judge has not independently considered the evidence or reached their own independent conclusions of fact or law. [34] For this reason, courts in both Australia and overseas disapprove of reasons which simply adopt a party's submissions as the Court's judgment: see, for example, Amaca at [16] ("as a general rule, it is most unwise to engage in wholesale copying of submissions without attribution"); Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143 at [6] ("Irrespective of the legal consequences of such copying, it should not happen. It is damaging to public confidence in the Tribunal"); and Cojocaru v British Columbia Women's Hospital and Health Centre [2013] SCC 30; 2 SCR 357 at [35] ("The 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 … Avoiding this impression is a good reason for discouraging extensive copying"). [35] Nonetheless, it is well established that such copying will not, of itself, vitiate a court's reasons. As the Full Court of the South Australian Supreme Court held in Amaca (at [17], citations omitted): … we are not prepared to find that where there is extensive copying without attribution, then, without more, the reasons are thereby inadequate and the resulting decision necessarily vitiated. Much depends on what has been copied and whether, nevertheless, the decisionmaker has performed the task of engaging with the case of each party and making decisions on what divides the parties, whether they be matters going to evidence, or matters referable to legal principles and the proper application of those to the evidence before the court. [36] Similarly, in Li v Attorney General for New South Wales [2019] NSWCA 95; 99 NSWLR 630 at [122], Brereton JA, after reviewing a number of authorities concerning judicial and administrative decisions in which the submissions of a party were adopted as the reasons for decision, concluded that that "it is not necessarily impermissible for a judge to incorporate, even extensively, with or without attribution, the submissions of one or both parties". His Honour continued (at [132]): 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. [37] Justice Brereton was in dissent in Li, but not in respect of the propositions outlined above. His Honour would have allowed the appeal in that case on the basis that the primary judge's reasons there: … [left] 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… [38] The majority (Basten and White JJA) dismissed the appeal. Justice Basten held that it had not been demonstrated that the primary judge had failed to take into account any material evidence or submissions. His Honour also held that it could not be inferred that the judge did not apply an impartial and independent mind to the issues raised by the application. Central to his Honour's decision in Li was the nature of the proceedings and the role of the Attorney General (whose submissions had been adopted). The proceedings in question related to an application for an inquiry under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). Rather than being an "adversary proceeding" in which both sides provided "conflicting evidence and submissions", the Attorney General's submissions set out, in neutral terms, both the arguments of the applicant and the responses to those arguments: Li at [48]. [39] Justice White agreed with Basten JA, but emphasised that the reasons of the primary judge would not have been adequate if the judge were acting judicially to decide a controversy between the parties: Li at [73]. [40] One issue which divided the Court in Li was whether there was an independent requirement that "justice be seen to be done". After reviewing various authorities, Brereton JA concluded (at [116]) that: (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 be 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. (emphasis added) [41] In contrast, Basten JA rejected the contention that the need for "justice to be seen to be done" constitutes a "free-standing legal principle": Li at [59]. His Honour held that this "aphorism… encapsulates a value or underlying rationale, not an applicable legal rule or legal principle": Li at [58]. His Honour also rejected the formulation of the issue as whether the applicant, "or a reasonable person in his position, would have a legitimate sense of grievance" arising from the adoption of his opponent's submissions as the substance of the judge's reasons for finding against him: Li at [78]. His Honour considered that the focus should instead be on whether "it should be found as a fact that the judge did not bring his own independent and impartial mind to bear on the issues": Li at [78]. [42] In Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 at [32] - [34], Basten JA referred to the decision in Li and reiterated that the adage that "justice must not only be done, but be seen to be done" identified the obligation to give reasons as an aspect of the principle of open justice, but that it did not otherwise provide assistance in identifying the standard to be applied. His Honour noted that this aspect of Brereton JA's dissent was rejected by the majority in Li and concluded that the adequacy of reasons is not to be undertaken by reference to a reasonable person in the position of the unsuccessful party: Alexandria Landfill at [34]. [43] In his written submissions, the appellant made a number of observations concerning Basten JA's decision in Alexandria Landfill. First, the appellant observed that the decision in Alexandria Landfill did not involve unattributed judicial copying of a party's submissions. Second, the appellant noted that although White JA had agreed with Basten JA that the primary judge's findings in Li were adequate for an administrative decision, White JA further held that those reasons would have been inadequate if the judge had been acting judicially. Third, the appellant observed that Basten JA's rejection of the phrase "justice must be seen to be done" as a criterion of validity appeared to be at odds with earlier authority, including Sun Alliance Insurance Ltd v Massoud [1989] VR 8. [44] However, the appellant did not contend that the need for "justice to be seen to be done" should be applied as a criterion for the assessment of the adequacy of reasons in this case. Rather, the appellant submitted that it was "unnecessary for this Court to resolve the divergent approaches adopted by Basten JA and Brereton JA". In particular, the appellant noted that the authorities considered by Brereton JA in Li indicate that the question of "whether judicial copying of a party's submissions warrants appellate intervention will depend on the circumstances". [45] In her written submissions in reply, counsel for the Director submitted that the need for "justice to be seen to be done' is not a criterion for the determination as to adequacy [of a judge's reasons], but is a principle that founds the rationale of the duty". In particular, she drew a distinction between "the determination as to adequacy (which turns on questions of degree in light of the nature of the issues) and the conclusionary statement that justice has not been seen to be done". She also emphasised that the obligation to provide reasons does not "require that the reasons be cogently argued, nor even correct". Rather, the reasons will be adequate "if the critical issues have been determined and the party can discern the basis on which they were decided". [46] There is force in the Director's submissions on this issue. The need for reasons to ensure that "justice is seen to be done" provides limited guidance in determining the adequacy of the reasons. It may also be apt to mislead. Viewed out of context, the phrase may wrongly suggest that an assessment of the adequacy of the reasons for the decision should encompass consideration of the correctness, logic or rationality of the reasons. [47] In this respect, it may also be observed that the authorities which have considered allegations of copying (both in judicial and administrative contexts) since Li have identified the question to be addressed as whether the reasons indicate that the judge gave independent and impartial consideration to the evidence and the issues, rather than whether justice was 'seen to be done': see, for example, Amaca at [14]. It may also be noted that, in his judgment in Li, Brereton JA described "the central issue" as being "whether the judge has - or appears to have - personally and independently engaged with the issues so as to render an independent and impartial judgment": Li at [124]. His Honour's conclusions as to the deficiency in the primary judge's reasons were expressed in the same terms: Li at [143]. [48] In any event, as the appellant submitted, it is not strictly necessary to resolve this issue in the present appeal. The appellant advanced his case on the basis that the reasons were inadequate because the extent and nature of the copied material was such as to indicate that the primary judge had not given independent and impartial consideration to the issues and did not contend that this Court should apply any wider formulation. [49] Nor is it necessary to resolve the other area of controversy between Basten JA and Brereton JA in Li, namely, whether a "reasonable person" test should be adopted (that is, whether a "reasonable person in the position of the unsuccessful party would have a legitimate sense of grievance about the lack of independent or impartial analysis"). Again, other than noting the matters set out at [43] above with respect to the decision in Alexandria Landfill, the appellant did not contend that a "reasonable person" test should be adopted. He submitted that the issue did not need to be determined. [50] Although the Director submitted that such a test should not be adopted, as it may "inappropriately broaden the duty", it is not clear that the assessment of the adequacy of a judge's reasons would differ under "the reasonable person" test as enunciated by Brereton JA, as compared to the approach of Basten JA. In bias cases, a "reasonable person" test ensures that judgments are not "based purely upon the assessment by some judges of the capacity or performance of their colleagues": Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 492 [12]. Whether or not a "reasonable person" test is adopted, it is clear that the test is objective. The personal characteristics of the judge alluded to in Johnson must not be taken into account when assessing the adequacy of the reasons provided. [51] In summary, it is not necessary to finally determine the limits of the appropriate test to be applied in relation to the adequacy of reasons which involve copying of a party's submissions. At a minimum, it is clear from the above authorities 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". (emphasis added)
2. I respectfully adopt the principles so thoroughly articulated by the Court of Appeal in Porter. In particular, their Honours analysed, discussed and explained in detail the authorities the subject of the submissions presently before this Court, including Li v Attorney General for New South Wales (2019) NSWCA 95; 99 NSWLR 630, DL v The Queen [2018] HCA 26; 266 CLR 1, Ultimate Vision, and Cojocaru v British Columbia Women's Hospital and Health Centre [2013] SCC 30; 2 SCR 357.
3. Returning to the case before the Court of Appeal in Porter, I note that the appellant in that case submitted that the reasons for the decision of the primary Judge were inadequate as those reasons consisted largely of "a direct recitation of the Crown written submissions" (at [25]). Materially, the Court of Appeal found:

• the primary Judge had comprehensively summarised the evidence in the proceedings without drawing her reasons from the submissions of either party (at [65]);
• her Honour briefly but accurately set out the legal principles to be applied to the determination of disputed facts before summarising the submissions made on behalf of the appellant (at [66]);
• in her Honour's summary of submissions, the primary Judge did not limit her observations to merely recounting the submissions made, but interposed her own responses to those submissions (at [66], [67],[68]);
• it was plain that the primary Judge's findings in the conclusion were heavily drawn from the prosecutor's written submissions (at [69]), and that in a number of paragraphs the prosecutor's written submissions were replicated without indication of the fact that the text had been so sourced (at [71]); and
• her Honour had made formal findings as to credit ([71]), acceptance of evidence (at [73]-[74]), and her satisfaction beyond reasonable doubt referable to the evidence before the court (at [75]-[76]).

1. Importantly, their Honours concluded: [78] It is clear from the authorities outlined above that whilst the unattributed replication of a party's submissions in a judicial decision is to be strongly discouraged, such copying does not, without more, vitiate a judgment. [79] The vice in the copying of a party's submissions in a judgment is not plagiarism or the appropriation of a party's intellectual property. Accordingly, determining whether a judgment has been vitiated by unattributed copying does not involve an assessment of the proportion of original material contained in the judge's reasons. Rather, the question to be asked is whether the copying is such that it should be inferred that the primary judge has not made an independent decision on the whole of the evidence and the law. [80] As the appellant submitted, some of the features of a judge's reasons which may be relevant to determining whether the reasons indicate that the judge made an independent and impartial decision will include: (a) The nature of the proceedings being determined (for example, whether the proceedings are judicial or administrative, criminal or civil, final or interlocutory); (b) The extent of the reproduction, including both its volume and its nature (for example, whether the material copied is of uncontested evidence or established authority, or is of the party's arguments and conclusions); (c) Whether the adoption of a party's submissions was accompanied by an independent analysis of the evidence and/or the legal principles to be applied; (d) Whether the judgment refers to the submissions of the unsuccessful party, and whether any aspects of the unsuccessful party's submissions were accepted; and (e) Whether the judge edited parts of the submissions which had been copied. [81] Whether or not the copied material is attributed to its author is also relevant to this assessment. There is a qualitative difference between a judgment which cites portions (even extensive portions) of a party's submissions, and then indicates agreement with those submissions, and a judgment which adopts the submissions of a party as the Court's reasons without acknowledging the source of the material copied. [82] In particular, where a judge openly expresses agreement with the submissions of a party, there is a transparency in the reasoning that is entirely absent where the judge simply adopts a party's submission as their own reasoning. As Mr Game SC submitted on behalf of the appellant, where the copied material is not attributed, there is a "concealment" of the process by which the judgment was created. For this reason, where the copied portion of the judgment is not attributed, particularly careful attention will need to be given to the assessment of whether the judge has in fact made an independent decision on the whole of the evidence and the law. [83] As can be seen from Annexure A, a considerable portion of the primary judge's conclusions in the disputed facts judgment were copied from the prosecution's written submissions, without attribution. Nonetheless, as the authorities cited above make clear, where there are other sufficient indications in the judgment that the primary judge actively engaged with the evidence and the submissions of both parties, the judgment will not be set aside by reason of the fact of copying alone. The judgment will only be vitiated where the reasons are such that it should be inferred that they are not the product of the active application of an independent and impartial mind. [84] There are features of the reasons which are cause for concern. It is of concern that the judgment related to factual findings concerning the sentencing of an offender for grave criminal conduct, which carried a maximum penalty of imprisonment for 25 years. It is of concern that the extracts of the prosecution's submissions that were adopted by the primary judge related to findings of credibility. It is of concern that the primary judge adopted the prosecutor's adjectives, without attribution and so presenting them as arrived at independently, when describing the evidence of the victim and the appellant, and that the primary judge used the prosecutor's examples (and no others) when illustrating the reasons for her findings of credibility of each. It is of particular concern that the primary judge did not cite the prosecutor's submissions, but rather adopted the prosecutor's prose as her own, without attribution, in a large portion of the conclusion. Each of these matters have caused us to approach the judgment with considerable caution. [85] However, despite these matters, we do not consider that it should be inferred that the primary judge did not apply an independent mind to the resolution of the issues before her.: Garay v The Queen (No 3) [2023] ACTCA 2 at [150]. The structure of It is necessary to read the judgment fairly, and as a whole the judgment is not determinative, and the concluding paragraphs of the judgment cannot be read in isolation: Garay (No 3) at [150]. [86] While a substantial part of the primary judge's conclusions were copied from the prosecution's written submissions, other significant aspects of the primary judge's reasoning were not. In particular, the primary judge accurately summarised all of the evidence that had been given in the disputed facts hearing, addressed the submissions made on behalf of the appellant in the course of her summary of those submissions and reiterated her final conclusions as to the credibility of the appellant and the victim. … [90] In summary, there are aspects of the judgment which are of concern (notably, the nature of the proceedings, the form and extent of the copying, and the lack of attribution). Nevertheless, when read as a whole, and particularly in light of the primary judge's extensive analysis of the evidence, engagement with the offender's submissions and reiteration of her Honour's conclusions, the reasons sufficiently demonstrate that the primary judge gave independent and impartial consideration to the evidence and the issues. Accordingly, ground 1 should be dismissed. (emphasis added)

• black font represents the submission of Mrs Kelly unaltered by the reasons of the first primary Judge;
• red font represents deletions from the submission of Mrs Kelly by the first primary Judge; and
• green font represents independent insertions by the first primary Judge into the reasons.

1. Examples of the categories identified above are as follows.

Examples of definitional differences

1. At para [169] of the Liability judgment, his Honour appeared to adopt para [376] of the closing submissions of the respondent below but simply redefined the words "Visa Cross Claim": The visa cross-claim 376.169 The factual background to the first claim made in the cross-claim (Visa Cross Claimvisa cross-claim) is as follows.
2. A similar example can be identified at para [179] of the Liability Judgment: 386.179 However, Mrs Kelly was employed as an accountant and not as a solicitor or immigration expert tasked with the job of ascertaining the appropriate documents to be submitted with the Visavisa application. Mr Atanaskovic gave evidence to the effect that even he, who had read the relevant Immigration Rulesimmigration rules and policy guidance note, was uncertain as to what documents would be required to accompany the Visavisa application.

Examples of moving references to evidence in the body of a paragraph in the respondent's submissions below to a footnote

1. At para [170] of the Liability Judgment, his Honour moved reference to the affidavit of Mr Atanaskovic made 3 March 2018 from the body of the paragraph to a footnote: 377.170 OnAs noted above, on or about 19 May 2011, AH LLP was incorporated in England and Wales and AH LLP opened an office in London. Between about March and June 2011, Mr Atanaskovic applied for, and subsequently obtained, a UK Tier 1 (Entrepreneur) Visa (Visavisa) for the purpose of establishing and conducting AH LLP's business: CB:464 (Atanaskovic 3/5/18, [5])..141 On or about 20 May 2016, Mr Atanaskovic caused a Visa renewal application to be submitted: CB:471 (Atanaskovic 3/5/18, [26]). The Visa application was refused on 14 July 2016: CB:472 (Atanaskovic 3/5/18, [27]). 2016, Mr Atanaskovic caused a visa renewal application to be submitted. 142 The visa application was refused on 14 July 2016.143 141 Atanaskovic, [5]
2. A further example of moving references can be seen at [178] of the Liability Judgment as follows: 385.178 Although the Implied Terms are cast perhaps more broadly than terms that are usually implied as a matter of lawbroadly, it is certainly the case that an employee has an obligation to perform the work agreed with reasonable and appropriate care and skill. Astley v Austrust Ltd (1999) 197 CLR 1 at148 [48] and an obligation to obey all lawful orders of the employer Adami v Maison de Luxe Ltd (1924) 35 CLR 143. 148 Astley at [48] and an obligation to obey all lawful orders of the employer: Adami v Maison de Luxe Ltd (1924) 35 CLR 143

Examples of very minor changes in wording or language

1. At paras [189] and [210] of the Liability judgment, his Honour can be seen to change wording such as "the Court can be satisfied" to "in my view" and "It cannot be said" to "I do not accept": 396.189 Further, the Court can be satisfied thatin my view it is more likely than not that this would have been fatal to the Rejected Visa Applicationrejected visa application as Mr Atanaskovic had not provided the documents required for self-employed persons (or, at the very least, AHCS has not discharged its evidentiary onus to show that the application would otherwise have been accepted). The Home Office plainly took very seriously a failure to provide the correct documents in support of an application as that was precisely the reason why the Home Office refused the Rejected Visa Applicationrejected visa application. 416.210 It cannot be saidI do not accept that the directors of AHCS genuinely considered AH's offer and entered into a binding agreement with AH (as opposed to the alleged agreement simply being a sham). This is because AHCS is said to have made this decision during the course of a board meeting held at AH's Sydney Office premises on 18 May 2017 at 11am11.00am (which is reflected in the supposed board minutes for this meeting: see Exhibit A1). The board minutes for this meeting record that Mr Hartnell was the chair of this meeting, yet Mr Hartnell gave the following evidence in cross-examination concerning the letter from AH to AHCS described in paragraphs 412 and 413 above (T528:42-529:46):at [208]-[209] above:169
2. A further example can be found at [226] of the Liability Judgment as follows: 432.226 Further, Mr Sophocles givesgave evidence that AH incurred (notionally) $154,085 of expense, which was time spent by him in dealing with the dispute (CB:2581 - 2602 (Sophocles 2/5/18, Annexure K)). It is, put simply,.191 It was in my view an uncommercial decision to incur such significant costs which exceed, by a significant margin, the amount in dispute (being less than $100,000). Ultimately, those proceedings were settled on the basis that AH would pay $60,000 to LexisNexis per annum (CB:564 - 565 (Atanaskovic 2/8/18, [30])),,192 being arguably on less favourable terms than the Second LexisNexis Offer made prior to the commencement of proceedings (they obtained further subscriptions but the contract was for a longer period of time, being two years).

Examples of simple formatting changes

1. At para [227] of the Liability Judgment, his Honour changed formatting to align with Court conventions, such as "(a)" rather than "a." and using double over single quotation marks: 433.227 Mr Sophocles givesgave evidence concerning why he considered it was reasonable to settle the LexisNexis proceedings in 2016. The implicit corollary of this evidence appears to be that it was not reasonable to settle in 2014 prior to incurring any costs in the litigation. Relevantly, his evidence is that: a.(a) Mr Sophocles was concerned about the factual contest regarding the undertaking given by Mr Ball not to enforce the 30 day notice provision: CB:623 (Sophocles 2/5/18, [17])..193 Mr Sophocles would have been aware of this matter since before the commencement of the LexisNexis proceedings (and indeed, prior to the commencement); b.(b) AH had alleged that the renewal provision constituted a penalty. This proposition has no meritappears weak. In any event, Mr Sophocles saysstated that at the time he prepared the defence in the LexisNexis proceedings (being in 2015), he was satisfied that a defence of this kind had reasonable prospects of success based on the decision of the High Court of Australia in Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205Limited194 but was concerned that the state of the law of penalties following the decision in Andrews was not entirely certain and that subsequent consideration of this matter by the High Court of Australia Court may result in the apparent scope of the doctrine being reduced: CB:623 (Sophocles 2/5/18, [18])..195 Mr Sophocles goes on to say that such concerns later turned out to be justified as, a few weeks after the settlement (which occurred in June 1062016), the High Court of Australia handed down the decision in Paciocco v Australia and New Zealand Banking Group Limited (2016) 258 CLR 525Limited196 which significantly narrowed the scope of the doctrine: CB:623 (Sophocles 2/5/18, [19])..197 The problem with this reasoning is as follows. Andrews was handed down on 6 December 2012. Paciocco was handed down on 27 July 2016, being after the LexisNexis dispute had been settled. Accordingly, the law had not changed at all between the period when Mr Sophocles was preparing the defence in the LexisNexis dispute (and indeed when the pre-litigation settlement offers were made by LexisNexis and wereandwere rejected) and the time that AH entered into a settlement with LexisNexis to resolve the proceedings. Accordingly, Mr Sophocles was in precisely the same position to form a view about the uncertain state of the law regarding the doctrine of penalties through this entire period. This evidence cannot be used to suggest that '"something changed',changed", such that it was reasonable for Mr Sophocles to settle the proceeding when AH did so, rather than at, or prior to, the commencement of proceedings;
2. These examples of unattributed and uncritical copying and pasting of the submissions of Mrs Kelly into the Liability Judgment are not isolated. Indeed, the scale of copying and pasting by the first primary Judge is significant.
3. The extent of copying and pasting referable to grounds of appeal 8B and 11B currently before the Court can be further demonstrated by the following examples.
4. In respect of the visa cross-claim (and ground of appeal 8B): 387.180 During cross-examination, Mr Atanaskovic gave the following evidence in relation to the "real time full payment submissions" (T660:24-8):":149 And you were aware that another type of document that may be required is a real time full payment submission?---That changed over time, and the regulations didn't - even in 2016 - make clear the significance that document had for applications in 2016. We took legal advice on it which frankly I didn't think was necessarily supported by the regulations themselves. I did become familiar with those rules, yes. 388.181 Later during the course of cross-examination, Mr Atanaskovic gave the following further evidence (T682:40-683:10 and T690:17-27)::150 But didn't you give evidence that when you reviewed the Immigration Rules and the [policy] guidance note that you knew what documents were required. Surely that means you were in a position to ascertain whetherascertainwhether or not the documents were adequate or not?---?---Mr Willis, I suspect you're familiar with relevant paragraph H of the regulations, and if you've read that I think you will share my view that it's not entirely informative. Later opinion was obtained by junior counsel in London, which you've probably seen, which I think - it's an opinion with which I may or may not agree, it focuses on the real-time full payment documentation. In essence the position as regards Home Office procedure appeared to have changedhavechanged over the period of 2014 to the time of the second application to rely more heavily on the real- time full payment documents. And, in fact, I would doubt that they refer to much else in practice, but that's only a suspicion of mine. But having read the regulation, both at the time but more particularly aparticularlya number of times subsequently. I would say I gave my best efforts to understanding the relevant regulation, and in circumstances where Mrs Kelly said we had no - she had no further documents to provide, as requested expressly by Mr Powlson, which proved to be incorrect. I - I - I - I cannot see that I could have done more by checking further - further, the documents that accompanied the application. further, the documents that accompanied the application.… …Her words that the - the March document to which I refer is in fact, I think, what the regulations referred to. Although the regulations - neither the regulations nor the policy guidance, in my view even toevento this day, but certainly in 2016, conveyed the significance of the real-time full payment documentation. I think because neither were amended following the full implementation and adoption for some years of theofthe real-time system. By the time that application went in I think that real-time entry of information was only about eight months old and in - this is in 2014 - and couldn't have satisfied what the Home Office was after because they required information regarding two people for a period of at least a year of the period of one's previous leave to remain or entry clearance… 149 T660:24-8 150 T682:40-683:10 and T690:17-27 further, the documents that accompanied the application.… 389.182 The gravamen of Mr Atanaskovic's evidence was to the effect that on the face of the regulations, there was some uncertainty as to the significance that the "real time full payment submissions" had to the application. 390. If Mr Atanaskovic, who proclaimsclaims to have some expertise in this area, was unable to ascertain the significance of these documents himself, it cannot be the case that the standard of any duty 183 cast on Mrs Kelly (who is not legally trained and had not read nor been directed to read the regulations or guidance note) should have hadrequired some better understanding than Mr Atanaskovic ofAtanaskovicof the documents required to accompany the application. Defects with 2016 Applicationapplication 391.184 As set out in paragraph 378 above, there is no dispute between the parties that the stated reason for the Home Office rejecting the Visavisa application was because, in general terms, "Confirmation Reports" were submitted rather than "Real Time Full Payment Submissions". However, the Visavisa application was materially deficient in at least one other respect, in which Mrs Kelly had no involvement in and which, if and when identified by the Home Office,mwouldmay well have resulted in the application being rejected. This is as follows. '"Self-employed'employed" vs "director of a new or existing business" 392.185 The Visavisa application form requires an applicant to identify whether they are "Registered as self- employed" or, alternatively, are "Registered as a director of a new or existing business". In the initial Visavisa application which was refused (Rejected Visa Applicationrejected visa application), the "Registered as a director of a new or existing business" box was checked (question L3 and M1): CB:1715; CB:1716.). In contrast, in the later application submitted by Deloitte that was successful (Accepted Visa Application), accepted visa application),the "Registered as self-employed" box was checked: CB:2371; CB:2372.
5. In respect of the LexisNexis cross-claim (and ground of appeal 11B): The LexisNexis claim 423.217 In September 2013, AH entered into a the LexisNexis contract with LexisNexis for the provision of legal information subscription services (LexisNexis Contract).. Relevantly, the front page of the LexisNexis Contract contained a clause 6 which is in the following terms (CB:2603 - 2606 (Sophocles 2/5/18, Annexure A))::177 6 Renewal a) Customer must notify LexisNexis in writing no later than 30 days prior to expiry of the Price Plan Period if it does not wish to renew this [Agreement]. b) In the absence of the above notice, for any period beyond the expiry of this [Agreement] during whichduringwhich LexisNexis has not received Customer's signed renewal of [the Agreement], Customer will be charged an increased monthly fee equal to one twelfth (1/12) of the Fixed Fee payable inpayablein the final year of this [Agreement] plus 10%. Any such monthly fees paid by Customer will be credited to the total amount payable under a renewal [Agreement]. 424.218 The "Fixed Fee" for the term of the LexisNexis ContactContract was $91,195.61 per annum (GST inclusive) and the "Price Plan Period" was 1 September 2013 to 31 August 2014. Accordingly, on 31 August 2014, the fixed term of the LexisNexis ContactContract came to an end: CB:2603 - 2606 (Sophocles 2/5/18, Annexure A)..178 219 Mrs Kelly (, initially with the assistance of another person (Ms Day) was involved in the negotiation of a new contract with LexisNexis that would operate from the end of the term of 177 Sophocles, Annexure A 178 Sophocles, Annexure A
6. the LexisNexis Contract. During the course of those negotiations, a representative of LexisNexis (who held himself out as being the firmsfirm's "new relationship manager") stated to Mrs Kelly that AH did not need to worry about LexisNexis'sLexisNexis' automatic renewal terms and that LexisNexis would not seek to hold AH to those terms: CB:235 (Kelly 28/6/18, [68])..179 426.220 It was reasonable for is plausible that Mrs Kelly, as a non-lawyer, to expectexpected that AH could rely on this undertaking. Accordingly,While it was unfortunate that the required notice was not given, I am unpersuaded that the failure to give written notice, in the circumstances of the oral undertaking, means that Mrs Kelly has not breached any of her contractual duties. 427.221 Following this representation, Mrs Kelly continued to negotiate with LexisNexis and, relevantly, managed to negotiate a discount such that the new contract would have attracted an annual fee of approximately $88,000 (incl.including GST): CB:236 (Kelly 28/6/18, [69]).).180 In this regard, on 27 October 2014, LexisNexis sent an offer to AH for the provision of services (CB:1039-1041)..181 Relevantly, for $88,000 (incl.including GST) per annum, LexisNexis offered 63 subscriptions (First LexisNexis Offer). This is in contrast to the existing LexisNexis contractContract under which AH only received 35 subscriptions (CB:801-804)..182 428.222 Mr Atanaskovic was not content with the offer of $80,000 and directed Mrs Kelly to make a counteroffercounter offer of $60,000 for the 63 subscriptions, which was not accepted: CB:236 (Kelly 28/6/18, [70]-[73]).. 183 At the direction of Mr Atanaskovic, on 31 October 2014, Mrs Kelly sent an email to LexisNexis stating that AH would not be renewing the LexisNexis Contract: CB:237 (Kelly 28/6/18, [75])..184
7. Can it be said that the unattributed replication of Mrs Kelly's submissions by the first primary Judge in the Liability Judgment, 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? I am satisfied that such an inference can, and should, be drawn.
8. The circumstances of the present case are not analogous with those in Porter, or King. The extent of reproduction of Mrs Kelly's submissions concerning the cross-claims by the first primary Judge was much more significant than in either of those cases. Further, the submissions of Mrs Kelly, uncritically adopted wholesale by the first primary Judge, were not simply in the nature of uncontested facts and bare evidence. Rather, the submissions copied and inserted into the Liability Judgment in relation to the cross-claims included assertions of credit, contentious value judgments, and conclusory legal and factual points, where such matters required independent consideration and determination by his Honour.
9. While the first primary Judge at [105]-[106] of the Liability Judgment identified the material on which the appellants relied, that of itself did not constitute meaningful engagement with the appellants' material. Similarly, reference by his Honour at [107] of the Liability Judgment to "the parties [filing] exceptionally detailed closing submissions, which were augmented orally" did not mean that his Honour had meaningfully engaged with the appellants' submissions.
10. It may very well be that the first primary Judge preferred the case of Mrs Kelly to that of the appellants. However, the appellants were entitled to have their submissions and evidence considered by his Honour in ultimately reaching such a preference. I am satisfied that, in simply adopting the submissions of Mrs Kelly to such a significant degree, without attribution or explanation, the first primary Judge did not consider the submissions and evidence of the appellants, and did not bring an active, independent and impartial mind to the resolution of issues before the Court in respect of the cross-claims which were essential to the appellants' case in meeting Mrs Kelly's claims.

CONCLUSION

1. I am satisfied that grounds of appeal 8B and 11B are substantiated. It is unnecessary, in my view, for this Court to consider the remaining grounds of appeal. The appeal should be allowed, the Liability Judgment and Penalties Judgment set aside, and the matter remitted for rehearing.
2. At the conclusion of the hearing the Court raised with the parties the prospect of an entitlement to a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
3. In McLoughlin v Randstad Pty Ltd (No 2) [2021] FCAFC 177, in circumstances where an appeal was allowed by the Full Court against a decision of the (then) Federal Circuit Court and the matter remitted for rehearing, the Full Court observed:
4. …The remittal arises due to no fault on the part of Ms McLoughlin or those acting on her behalf. Indeed it has occurred despite the filing of careful written submissions identifying the factual and legal issues for determination. In the circumstances described, we are satisfied that there should be a certificate of the kind described in s 8(3) of the Federal Proceedings (Costs) Act and we will so order.
5. The same observation could be made in respect of the present case before this Full Court.
6. This appeal has succeeded on a question of law, and the appeal has turned on the inadequacy of the reasons of the first primary Judge. Both issues were matters beyond the control of either party (see also Goodman J in BLG19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] FCA 506; 303 FCR 50 at 60 ([37])). I also note the following comments of the Full Court in Security & Technology Services (NT) Pty Ltd v Hurley [2022] FCAFC 90 which I consider equally applicable to the present circumstances: [14] The injustice that results is even more lamentable because the significant amounts of money which both parties no doubt have spent on legal costs are not recoverable in the Fair Work jurisdiction. The fact that the parties themselves will have to bear those costs through no fault of their own is a most regrettable result of the inevitable outcome of this appeal.
7. In circumstances where the respondent at least has reserved her position in respect of the costs of the appeal (transcript 17 November 2024 pp 194-195), I consider it appropriate that the Court should hear submissions from the parties referable to the issue of costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

Associate: Dated: 31 October 2024 REASONS FOR JUDGMENT LOGAN J:

1. Until 4 November 2016, the respondent, Mrs Elizabeth Kelly, was an employee of the first appellant, Atanaskovic Hartnell Corporate Services Pty Limited (AHCS), and a long-serving one at that. She commenced employment with AHCS on 19 April 2004.
2. AHCS was the service company associated with a firm of solicitors, JL Atanaskovic & AG Hartnell (trading as Atanaskovic Hartnell) (AH). The second appellant, Mr John Atanaskovic, was one of the partners in the partnership which carried on that firm's business. The other partners were a Mr Anthony Hartnell and a Mr Michael Sophocles. On and from 2011, when an English law firm, Atanaskovic Hartnell LLP, was incorporated in England and Wales (AH LLP), AHCS also provided services to that firm. Mr Atanaskovic and Mr Hartnell were the "designated members" associated with AH LLP.
3. Mrs Kelly was employed by AHCS as its General Manager. She was, and is, a Certified Practising Accountant. As General Manager, Mrs Kelly reported directly to Mr Atanaskovic, who was the managing partner of AH. Although he had undertaken the role beforehand, and did again from 2018, Mr Atanaskovic was not a director of AHCS during the period from 2014 to 2016. This notwithstanding, the conclusion reached in the Court below was that he was a persuasive influence in decisions made by AHCS concerning Mrs Kelly.
4. Mrs Kelly's cessation of employment was a sequel to a notice of resignation which she gave on 5 August 2016.
5. On 19 April 2017, Mrs Kelly instituted proceedings in the court then known as the Federal Circuit Court of Australia, since renamed the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). Almost five years later, on 31 March 2022, for reasons given in Kelly v Atanaskovic Hartnell Corporate Services Pty Limited (No 2) [2022] FedCFamC2G 112 (Liability Judgment), Mrs Kelly obtained the following orders in the Circuit Court:
   1. an order declaring that AHCS and Mr Atanaskovic breached s 90(2) and s 323 of the Fair Work Act 2009 (Cth) (FWA) by failing to pay the applicant her statutory and contractual entitlements;
   2. an order that AHCS and Mr Atanaskovic pay the sum of $130,427.84 to her within 21 days, plus interest up to judgment; and
   3. an order that AHCS and Mr Atanaskovic pay general damages to her in the sum of $30,000.
6. The contractual and statutory entitlements found not to have been paid related to accrued annual and long service leave. Neither the existence of such accrued entitlements nor their amount was controversial in the Circuit Court. Rather, it was put for AHCS that a right of set off meant that it had no obligation to pay Mrs Kelly.
7. All other claims for relief made by Mrs Kelly were dismissed. Her claim for alleged future economic loss failed because the Circuit Court concluded that she and her husband had, after her resignation, happily settled on a farm and that she was unlikely to return to employment as an accountant. Claims were also made by Mrs Kelly in respect of alleged adverse action against her by AHCS contrary to s 340 of the FWA. She alleged that she suffered adverse action as a result of complaints which she made concerning Mr Atanaskovic's conduct towards her on a number of occasions. These adverse action claims failed not because of any want of proof of occasion in various proved forms of bullying by Mr Atanaskovic for the making of such complaints or because of a failure to prove either that the complaints were not made or were not investigated. Instead, they failed because the Circuit Court concluded that she had not suffered resultant adverse action.
8. At the same time, the Circuit Court dismissed a cross-claim and related claim for set off made by AHCS. The cross-claim had alleged breaches by Mrs Kelly of express or implied terms of her employment contract with AHCS. These claims had two alleged foundations. One was said to be found in costs incurred in rectifying a United Kingdom visa application for Mr Atanaskovic which had failed in 2016 (Visa claim). The other foundation was said to have been found in loss allegedly incurred by AHCS as a result of Mrs Kelly's failure to cause AH to give notice to the legal publisher, LexisNexis, to prevent the automatic rollover of a contract for the provision of legal information services to it (LexisNexis claim).
9. The Visa claim failed for want of proof of any loss by AH (as opposed AH LLP, although the first primary judge was also not persuaded that any loss by the latter had been proved).
10. The LexisNexis claim failed because of a conclusion by the primary judge that AH had failed to mitigate its loss by rejecting two offers by LexisNexis which, if accepted, would have seen it incur no loss.
11. In respect of the Visa claim and the LexisNexis claim, the first primary judge also found that a purported agreement between AH and AHCS in relation to the alleged losses was "a contractual artifice designed to shift loss from AH to AHCS (so that AHCS could allegedly 'set off')".
12. These outcomes in the Circuit Court were a sequel to a trial which occurred over a broken period of 9 days (18-21 November, 11 December 2019, 18, 22-24 September 2020, 23 June 2021). In the Liability Judgment, the primary judge explained that this was occasioned in part by the effects in Australia of the COVID-19 pandemic and in part by witness availability. To set out the trial dates is to understand, as a matter of ordinary but happily receding experience and memory, why the effects of that pandemic intruded. I cannot also help but think that the case load of the Circuit Court and related judicial availability intruded, as did the diversity of issues for trial and the intensity of the conflict between the parties as to those issues.
13. However this may be, the proceedings in the Circuit Court were not concluded prior to the retirement, later in 2022, of the judge who delivered the Liability Judgment. In anticipation of his Honour's pending retirement, the proceedings were docketed to another judge of that court.
14. After a hearing on 24 October 2022, and for reasons given in Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1 (Penalty Judgment), the Circuit Court made the following orders on 2 February 2023:
15. Pursuant to the declaration made by the Court on 31 March 2022, and ss 546(1) and 546(3) of the Fair Work Act 2009 (Cth) (Act), the first respondent [AHCS] must pay civil pecuniary penalties as follows: (a) pursuant to s 323 of the Act for failing to pay the applicant's [Mrs Kelly's] accrued unused annual leave entitlements on cessation of her employment in full, without deduction, a penalty in the amount of $51,300; (b) pursuant to s 323 of the Act and s 4(5) of the Long Service Leave Act 1955 (NSW) (LSL Act) for failing to pay the applicant's long service entitlements in full, without deduction, a penalty in the amount of $51,300; and (c) pursuant to s 323 of the Act for failing to pay the applicant's unpaid wages in full, without deduction, a penalty in the amount of $51,300; to be paid to the applicant, within 28 days of the date of this order.
16. Pursuant to the declaration made by the Court on 31 March 2022, and ss 546(1), 546(3) and 550 of the Act, the third respondent [Mr Atanaskovic] must pay civil pecuniary penalties as follows: (a) pursuant to s 323 of the Act for his involvement in the first respondent's failure to pay the applicant's accrued unused annual leave entitlements on cessation of her employment in full, without deduction, a penalty in the amount of $10,260; (b) pursuant to s 323 of the Act and s 4(5) of the LSL Act for his involvement in the first respondent's failure to pay the applicant's long service entitlements in full, without deduction, a penalty in the amount of $10,260; and (c) pursuant to s 323 of the Act for his involvement in the first respondent's failure to pay the applicant's unpaid wages in full, without deduction, a penalty in the amount of $10,260; to be paid to the applicant, within 28 days of the date of this order.
17. Pursuant to s 570(2)(b) of the Act, the first and third respondents must pay the applicant's costs and disbursements of, and incidental to, the proceedings in relation to: (a) the claims pertaining to their contraventions of ss 44, 90(2) and 323 of the Act and s 4(5) of the LSL Act, on an indemnity basis; (b) the respondents' cross-claims, on an indemnity basis; and (c) the applicant's Application in a Proceeding filed on 28 April 2022, as amended, on an ordinary basis; as agreed or, failing agreement, by taxation pursuant to the Federal Court Rules 2011 (Cth).
18. AHCS and Mr Atanaskovic have each appealed against the orders made by the Circuit Court against them in both the Liability Judgment and the Penalty Judgment. The grounds of appeal, as finally formulated in their third further amended notice of appeal, are prolix but not necessarily the worse for that. These, together with some additional background facts, are reproduced in the reasons for judgment of Collier J, a draft of which came to my attention after preparing these reasons for judgment.
19. Mrs Kelly originally lodged a cross appeal in relation to so much of the orders as dismissed claims made by her but this came, prior to the hearing, consensually to be discontinued on terms that there be no order as to costs.
20. AHCS and Mr Atanaskovic promoted the separate determination of grounds 8B and 11B. These relate to the disposal of the cross-claim. Although, given the number of issues raised by the notice of appeal, there was a certain attraction in adopting this course, it carried with it the contingency, as applications for the separate determination of issues can so often, of prolongation rather than truncation of the final determination of the proceeding. That was because, if these grounds were decided adversely to AHCS and Mr Atanaskovic, it would then be necessary to hear submissions in respect of the remaining grounds and to reassemble the Full Court for that purpose. Further, dealing with the merits of these grounds entailed in any event examining the context in which the errors alleged occurred and thus much of the record in any event. So, the Court declined to follow that course.
21. As it happens, and for reasons which follow, these grounds, in conjunction with others which I identify, must, in my view, be upheld. The consequence, unfortunate though it is in relation to alleged causes of action grounded in events which occurred well-nigh, and in some respects beyond, a decade ago, is that, insofar as orders of dismissal have not been challenged, a re-trial in respect of liability and, depending on the result, also in respect of penalty and other, consequential relief, must occur. The Court's antipathy in this case for separate determination of issues is not affected by the wisdom of hindsight.
22. Before explaining why a retrial on this basis must occur, it is desirable to make observations about some other issues.
23. Even assuming that no error attended the conclusions reached in the Liability Judgment concerning what one might describe as a sustained pattern of workplace bullying by Mr Atanaskovic towards Mrs Kelly, she was never in law entitled to an award of general damages, either against AHCS or him, for pain and suffering in respect of any breaches of her contract of employment with AHCS. The object of that employment contract was never to provide enjoyment, relaxation or freedom from molestation. That being so, whatever mental distress Mrs Kelly suffered was not compensable via a claim for damages for breach of contract: Baltic Shipping Co v Dillon (1993) 176 CLR 344. Further, insofar as an award of such damages for breach of contract was made against Mr Atanaskovic, it was based on an insurmountable error. Mr Atanaskovic was not a party to the contract of employment.
24. It should be recorded that Mrs Kelly did not contest that, to this extent, the appeal would have to have been allowed in any event. Although all the orders in both the Liability Judgment and, consequentially, the Penalty Judgment under challenge by AHCS and Mr Atanaskovic must be set aside, the requirement for a retrial according to law carries with it, in light of the concession made concerning the claim for general damages for breach of contract, the consequence that the issues in that retrial do not include that damages claim. Further, as already mentioned, Mrs Kelly came not to challenge the orders dismissing certain other claims made by her. Other issues not for resolution at any re-trial are whether, set off apart, Mrs Kelly had the claimed long service entitlement and was not paid the amount of that entitlement. Whether Mr Atanaskovic was an accessory to any such failure by AHCS will be an issue for a retrial. That issue is also inherently bound up with whether there is a cross-claim as alleged.
25. Two further issues of law which were raised. These were not the subject as between the parties of a conceded position.
26. One was whether, even assuming that AHCS had otherwise made out either or each of the Visa claim and the LexisNexis claim, the amount of the damages awarded in respect of these claims could be the subject of an equitable set off. The submission made on behalf of Mrs Kelly was that s 323 of the FWA operated as a code to the exclusion of any right of set off. That proposition was contested by AHCS.
27. As the appeal must in any event be allowed, that issue should not, in my view, be determined. If the claimed set off and claimed inability to maintain it remain as issues, they will just fall to be resolved at the retrial. Whether they will arise at all is dependent upon AHCS proving its cross-claim in fact and law. If and only if the cross-claim is proved does the question of whether it can in law be set off arise for determination. An identical conclusion was reached by the first primary judge. Further, as his Honour concluded that the cross-claim was not proved, it became unnecessary for him to resolve whether, had it been proved, it would have been excluded by statute. That means that this Court does not have the benefit of any reasoned conclusion by the Circuit Court as to whether, as a matter of law, the cross-claim was excluded.
28. In my view, like considerations inform why it is that the Court should not decide whether the cross-claim was not maintainable by virtue of the operation of s 3 of the Employees Liability Act 1991 (NSW) (Employees Liability Act). This issue also would only arise if AHCS proves its cross-claim.
29. Section 3 of the Employees Liability Act provides: 3 Employee not liable where employer also liable (1) If an employee commits a tort for which his or her employer is also liable: (a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and (b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability). (2) Contribution under this section includes contribution as joint tortfeasor or otherwise.
30. The possible application of this provision to the exclusion of the cross-claim was not an issue raised at trial or by notice of contention. Rather, it was an issue which was raised by the Court in the course of submissions which provoked reflection about what liability Mrs Kelly might have as an employee, even if the Circuit Court were in error in dismissing the cross-claim. Having raised it, the Court stood the hearing of the proceeding down for a time to allow the parties an opportunity to consider its ramifications and whether its existence as an issue might be conducive to the compromise of this long-running dispute. As it happened, there was no resultant, consensual outcome. The Court made provision for supplementary, written submissions on the newly raised issue.
31. Thereafter, Mrs Kelly made a submission the essence of which was that s 3 was a law reform measure, should not therefore be narrowly construed and operated to extinguish the cross-claim, even though that was pleaded as a breach of contract, rather than as a breach of a tortious duty of care. The riposte of AHCS to this was that the provision was only applicable to a liability in tort and that such a cause of action was not advanced in the cross-claim.
32. The thought occurs that AHCS' riposte may not be a complete answer. In s 3(1)(a), "the liability incurred by the employer" is not stated to be a liability of the employer only in tort. Further, if Mrs Kelly did commit a tort, then AHCS as the employer would, by virtue of s 3(1)(b), be liable to indemnify her "in respect of liability incurred by the employee for the tort". One might apprehend that, in the circumstances of this case, if a breach of contract were proved so, too, would be a tort. One might also apprehend that the amount of any indemnity in respect of the tort would also be equal to and, arguably, able to be set off against, any liability Mrs Kelly had in contract. After all, so the argument would go, the construction of a law reform measure should not be approached on the basis that its enactment was in practice pointless, able to be subverted by a choice of cause of action. However, for the reason given, it is unnecessary to reach any concluded view on this subject.
33. It is now necessary to explain why the appeal must succeed in relation to the dismissal of the cross-claim. It will then be necessary further to consider what consequential orders that outcome dictates.
34. 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.
35. 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.
36. 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:
    1. 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);
    2. adoption in the Liability Judgment of slightly different short-titling conventions;
    3. removal in the Liability Judgment of selected words (ie "(an employed solicitor of AH LLP)" and "Extraordinarily,");
    4. changes of tense in the Liability Judgment (ie "must fail" to "fails");
    5. 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…");
    6. 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
    7. insertion in the Liability Judgment of "in my view".
37. 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.
38. AHCS and Mr Atanaskovic also filed written closing submissions in the Circuit Court.
39. The written submissions of each of the parties were supplemented by oral submissions.
40. 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.
41. 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 The Queen (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.
42. 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.
43. 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.
44. 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.
45. 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: + 1. 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"; 2. enabling judicial decisions to be scrutinised, whether by appellate courts or the public; and 3. 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".
46. 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.
47. 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.
48. 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).
49. 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.
50. 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.
51. With the digital age has also come an ability readily to compare the contents of two documents.
52. 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.
53. 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.
54. 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.
55. The other school of thought is that such reasons evidence that justice has not been seen to be done.
56. 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.
57. 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.
58. 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.
59. 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."
60. 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.
61. 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.
62. What then of the two Australian schools of thought?
63. These two schools of thought are starkly evident in Li v Attorney General for New South Wales (2019) 99 NSWLR 630 (Li).
64. 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.
65. 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 State of 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 is no 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]
66. 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.
67. 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]
68. 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.
69. 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.
70. In King 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 King (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.
71. 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]
72. 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.
73. The New South Wales Court of Appeal also considered the subject of judicial copying in James v Surf Road Nominees Pty Limited [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].
74. 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.
75. 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.
76. 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.
77. 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.
78. 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.
79. 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.
80. 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]:
81. 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.
82. 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.
83. 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.
84. 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.
85. 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.
86. 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.
87. 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.
88. 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 The Queen (2024) 21 ACTLR 122 (Porter), a judgment of the Court of Appeal for the Australian Capital Territory.
89. 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.
90. 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.
91. 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.
92. 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.
93. 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.
94. 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. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate: Dated: 31 October 2024 REASONS FOR JUDGMENT GOODMAN J:

1. I agree that the appeal should be upheld on the basis that the first primary judge in Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 2) [2022] FedCFamC2G 112 (Liability Judgment) failed to bring an independent mind to the determination of the appellants' cross-claims; and that as a result the second primary judge's orders on penalty in Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1 must also be set aside, and the matter remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-trial. As I have had the considerable advantage of reading the draft judgments of Collier J and Logan J, my reasons for agreeing can be expressed succinctly.
2. The relevant principles are conveniently drawn together in Porter v The Queen [2024] ACTCA 9; (2024) 21 ACTLR 122 at 129 to 133 ([28] to [51]) and are extracted in the reasons for judgment of Collier J at [32]. I respectfully agree with the conclusion reached by the Court of Appeal of the Supreme Court of the Australian Capital Territory (Mossop, Baker and Bromwich JJ) in that case at 133[51] that the authorities in this area establish 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'". Similarly at 139[83], where the Court of Appeal expressed the view that a judgment "will only be vitiated where the reasons are such that it should be inferred that they are not the product of the active application of an independent and impartial mind".
3. As the Court of Appeal noted in Porter at 130 ([33] to [34]), courts in Australia and overseas have disapproved of reasons which simply adopt one party's submissions as the Court's judgment because the practice of copying "raises the spectre that the judge has not independently considered the evidence or reached their own independent conclusions of fact or law". The Canadian decision of Cojocaru v British Columbia Women's Hospital and Health Centre [2013] SCC 30; (2013) 2 SCR 357 was cited in Porter as an overseas example. To this might be added the decision of the Hong Kong Court of Appeal in Wong To Yick Wood Lock Ointment Limited v Singapore Medicine Co (a firm) and Ors [2023] HKCA 740 at [12] to [28], in which Yuen JA (with whom Kwan VP and G Lam JA agreed) considered "judicial copying" cases that had been decided in Hong Kong, England and Wales, Canada (Cojocaru), the United States of America and Australia (Li v Attorney General for New South Wales [2019] NSWCA 95; (2019) 99 NSWLR 630). See also Lo Kai Shui v HSBC International Trustee Ltd And Others [2023] HKCA 983 at [9] to [15] (Kwan VP, with whom Yuen and G Lam JJA agreed); and the earlier analysis by the Full Court of this Court (North, Logan and Robertson JJ) of cases decided in Canada and the United States of America in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166 at 190 to 194 ([99] to [112]).
4. As Collier J and Logan J have explained the primary judge, when addressing the appellants' cross-claims, engaged in wholesale copying of the respondent's written submissions, making changes only of a cosmetic nature. The limited extent, and cosmetic nature, of the changes made to the respondent's written submissions are well-illustrated by the examples that Collier J has set out in her Honour's reasons for judgment at [42] to [54].
5. Of course, such wholesale copying is not, of itself, sufficient to vitiate the Liability Judgment: see Porter at 130[35]. It is necessary to consider whether the primary judge applied an independent mind in all of the circumstances.
6. Although the relevant circumstances have a quantitative dimension (i.e., the degree or extent of the copying), the court's assessment of the circumstances is primarily a qualitative exercise, in which consideration is to be given to factors such as manner and nature of the copying, including the subject matter of the reproduced text, and its relationship to the remainder of the reasons for judgment. In this regard, an inference that a judge has failed to bring and apply an independent mind may more readily be drawn if the reproduced text concerns matters of controversy between the parties (e.g., the credit of witnesses, or findings which resolve factual disputes), than if the reproduced text concerns matters in respect of which there is or ought be no controversy (e.g., undisputed background facts, or summaries of statutory provisions).
7. Quantitatively, the copying in the present case is significant and substantial, with paragraphs [169] to [251] of the Liability Judgment having been reproduced verbatim from the respondent's submissions, save for cosmetic changes. Those paragraphs comprise the entirety of the first primary judge's analysis of the cross-claims under the heading "CONSIDERATION".
8. Qualitatively, it is clear from paragraph [64] of the Liability Judgment that the first primary judge was required to resolve significant factual disputes arising on the cross-claims (and that the first primary judge recognised that he needed to do so). In that paragraph, the first primary judge wrote: There are significant factual disputes between the parties over the cross-claims, including whether: (a) AH LLP was obliged to engage third party professionals to complete the first visa application; (b) the first visa application was deficient in other respects such that it was unlikely to be granted in any event; (c) AHCS has constructed a contractual artifice in an attempt to shift loss onto it (in respect of both cross-claims); and (d) AHCS failed to mitigate its loss in respect of the LexisNexis Contract by accepting a reasonable offer put by LexisNexis.
9. Despite this identification of "significant factual disputes" requiring resolution, the part of the Liability Judgment that set out the first primary judge's consideration of the cross-claims (paragraphs [169] to [251]) simply reproduced, with cosmetic changes, the respondent's submissions. To the extent that the issues identified at paragraph [64] were addressed in paragraphs [169] to [251], there was a complete adoption of the respondent's position, no mention of the appellants' submissions, and an abdication of the judicial responsibility to bring an independent mind to the determination of the appellants' cross-claims.
10. By way of illustration only, the third issue identified by the first primary judge - whether, as the respondent has contended, AHCS had constructed a contractual artifice in an attempt to shift loss onto itself - was dealt with at various paragraphs in the Liability Judgment (e.g., [172(e)], [206] to [208], [214], [249] and [256]) simply by the adoption of the respondent's tendentious submissions. This contention was a contention of some gravity, and as might be expected, had been addressed by a detailed refutation in the appellants' written submissions to the first primary judge (e.g. at [550], [782] to [784] and [805]). Yet, the approach taken by the first primary judge meant that he was a mere amanuensis for the respondent.
11. I also agree with the view expressed by Collier J at [56] that the reproduced submissions included assertions concerning credit, contentious value judgments and conclusions of law and fact that required the application of an independent mind; and with the view expressed by Logan J at [144] to [145] that the determination of the cross-claims required resolution of credit issues, which did not occur.
12. Senior counsel for the respondent drew this Court's attention to other parts of the Liability Judgment which did not involve reproduction from the appellants' submissions in support of a submission that the first primary judge did bring an independent mind to the task. However, those paragraphs do not assist the respondent, as they either did not concern the cross-claims, or to the extent they did concern the cross-claims, did not involve analysis of the issues for resolution on the cross-claims but instead were prefatory to such analysis.
13. The clear and unmistakable impression created by the part of the Liability Judgment which contained the first primary judge's "consideration" of the cross-claims (paragraphs [169] to [251]) is that the first primary judge failed to bring an independent mind to the determination of those claims. As noted above, it follows that the orders made by both primary judges must be set aside and the matter remitted for re-trial. I agree with Collier J and Logan J that the parties should be heard on costs and whether an order should be made under the Federal Proceedings (Costs) Act 1981 (Cth). I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.