Repeated calls for ferocious litigator to “step back” and take a cold shower … History repeats itself … Fervid correspondence … Disproportionate amounts of time and money fighting over piddling matters … Too much ego, too little reason … Being impaled by Vlad the Impaler 

McDougall was critical of the “ill-advised and intemperate … epistolary grenades” in which John Atanaskovic had a hand. He added, on each side that “ego has triumphed over reason” in relation to peripheral issues. 

Memories of the Mark Pistilli, Diana Chang and Danny Simmons litigation of eight years ago come flooding back – the case about the missing billables, where Atanaskovic was accused of firing off letters that had more to do with “ego and entrenched position” than costs and delay.  

On June 8, McDougall knocked back an application from Gordon’s cash box Birketu Pty Ltd and his regional TV business WIN Corporation for an order to stop John Ljubomir Atanaskovic and his firm from directly contacting the principals or employees of the plaintiffs’ companies. 

Those companies are in the process of suing Atanaskovic Hartnell, Westpac, Sportsbet, Betfair and others in the wake of one of the Atanaskovic’s solicitors, Brody Clarke, allegedly pillaging over $8 million from former client Bruce Gordon. 

Some of the money has been recovered and is in court waiting to for a decision  as to where it should go. 

HWL Ebsworth is acting for Gordon’s companies and the law firm complained because Antagonistic was contacting the senior executives of the companies directly, proposing mediation and seeking the recovery of over $1 million in fees he claimed were owed from other proceedings. 

In relation to the mediation correspondence, Atanaskovic suggested the possibility of a claim against LawCover. HH was puzzled by this: 

“I am not entirely clear why Mr Atanaskovic thought that it was his role to suggest to the plaintiffs, who were then represented by HWL Ebsworth, how to proceed.” 

HWLE asked that Atanaskovic, “immediately cease all communications with our clients” and that all future correspondence be sent to the firm. 

This upset Vlad the Impaler who replied saying their letter was, “on its face something of an embarrassment to the legal profession, inter alia since your letter itself constitutes a breach of relevant legal conduct rules and is therefore hypocritical”. 

Inter alia, no less. 

On May 25, 2019, Atanaskovic sent an email to Bruce Gordon saying that LawCover’s insurer had made an offer that was “generous” and that if it wasn’t accepted then it left the plaintiffs “at some risk of having to pay the insurer’s future legal expenses in full”. 

Again, HH was perplexed: 

“It is very difficult to understand in light of what had passed between the parties, why Mr Atanaskovic thought it was appropriate to write that letter.” 

There was also a flurry of snarky correspondence over the fees AH claimed from the plaintiffs. At one point HWLE replied with assertions that Atanaskovic Hartnell had failed to account appropriately for a payment received, or to deal with it in accordance with instructions. 

McDougall said, “It is hardly surprising that this letter was not well received.” Among other things, it caused Atanaskovic to resume his contact direct with the plaintiffs. 

The judge said in some circumstances it may be appropriate for the principal of one litigant to communicate with the principle of another to arrange some form of ADR. 

“Whether that is appropriate where one of the principals is not only a legal practitioner, but the former legal practitioner acting for the other side, is open to question.” 

The application of Gordon’s companies was based on s.61(1) of the Civil Procedure Act and UCPR r.2.1. McDougall thought that the section did not exist merely to remedy “discourtesy or pugnacity” and that there was no basis for applying the section or rule 2.1. He added: 

“I would consider giving a direction that each side take a step back and a cold shower and then resume the civilised preparation of the litigation. But that is an order for which no precedent exists, and which I perceive to be beyond even the wide powers conferred by r.2.1.” 

He ordered that the plaintiffs pay John Atanaskovic and Tony Hartnell’s costs. 

In 2010 former AH partners Mark Pistilli, Diana Chang and Danny Simmons claimed they were diddled out of billings at the time they left the firm to set up their own boutique.  

This was to do with the time recording of work and whether it had been done in accordance with a warranty in their retirement agreements. Again, we witnesses overwrought litigation. 

The dispute ended up before Magistrate Daphne Kok who opened up with:

“The plaintiffs are solicitors. The defendants are solicitors. Both parties are or have been separately legally represented. Not only do the proceedings involve too many lawyers, they involve too many experienced and well-informed lawyers. Too much heat and emotion has been engendered … There have been too many submissions including attempts to shore up or bolster earlier submissions and to counteract prior opposing submissions. Far too much time and money has been spent.” 

She decided that there had been no breach of warranty because it had not come into effect until after all the relevant billing times had been entered.   

Earlier in the same litigation magistrate David Heilpern made much the same point: 

“If they choose to spend 143 hours at $600 an hour on a Local Court matter before it is even set down for hearing, there is little that the court can do … I am not sure what was done in all of the 142 hours and 54 minutes given that it equates to three or four weeks full-time work for a partner of a major commercial firm.”

There were also the “threatening and prolix letters” sent by Atanaskovic to Clayton Utz, acting for the plaintiffs in the Pistilli case, where he threatened to refer solicitors and clients to the Legal Services Commissioner “and perhaps elsewhere as well”. 

Magistrate Heilpern went on, in an echo of the more recent advice from Justice McDougall:

“This threat is repeated. Mr Atanaskovic is treading on very thin ice. It is a serious criminal offence to threaten a potential witness with a detriment – s.326(2) of the Crimes Act 1900.

It is, at the very least, ridiculous to throw such threats around in an effort to effect the conduct of litigation, and then claim prejudice and a breach of s.56 [Civil Procedure Act] when the threats and demands are not heeded. 

If this matter were to have any hope of being settled, I would urge the parties (and Mr Atanaskovic) in particular to take a step back and allow lawyers with the carriage of the matter to manage it on a sensible basis.” 

In living memory we also recall Atanaskovic’s extravagant insistence that ASIC apologise to his client Meredith Hellicar after Spigelman CJ and the NSW Court of Appeal cleared her of wrongdoing and coverups in the James Hardie shambles. 

From his antique encrusted bolt-hole in Elizabeth Street the ferocious Serb insisted: 

“ASIC … and perhaps … the former federal treasurer Peter Costello … owe apologies to these former directors … they own apologies to taxpayers as well.” 

There was an embarrassed silence after the High Court sent the Court of Appeal’s screw-ball reasons into the dust bin.  

More recently, there were reports of litigation from Elizabeth Kelly, AH’s general manager for more than a decade, who resigned alleging, “bulling, harassing and abusive conduct” by Antagonistic. 

The matter was before the Fair Work Commission last year but was sent to mediation after AH unsuccessfully opposed a decision by Commissioner John Ryan to grant Kelly extra time to lodge her application. The commissioner rejected the “nonsensical” argument from AH that the 21 day clock started when Kelly gave notice, rather than her last day of employment.