Federal judge spanked for running the case … Too much intervention … Judicial cross-examination … Rehearing … Start again … Also, allowance granted to AAT for “unattributed copying” … Two-third of a judgment lifted from a party’s submissions … Max Shanahan reports courtside   

The ticking off emerged from the FCFC judge’s conduct in the wrongful dismissal case of Hurley v Security and Technology Services (NT) Pty Ltd, in which HH awarded Hurley over $300k for his troubles. 

Security and Technology duly appealed to the Full Court alleging, among other things, that Street had “unfairly determined the proper presentation of its case”; given an “appearance of bias”; and acted in such a way as to “unduly compromise the judge’s advantage in objectively evaluating the evidence from a detached distance”. 

The fundamental complaint against the judge was that he had “not given any, or adequate, reasons for his decisions … had not given consideration to a large number of serious and substantial submissions made by STSNT’s counsel, and had not embarked sufficiently, or at times at all, on the fact-finding process”. 

Hurley’s counsel accepted the appellant’s grievances, adding that she had not been able to make closing submissions for her client, and submitting that both parties had been “equally badly treated”. 

The judgment from Katzmann, O’Callaghan and Thomas JJ does not make for relaxing reading. There was none of the judicial comity afforded to Street in one of his more recent bollockings. 

Their Honours begun:

“From the outset, the primary judge imposed arbitrary time limits on the cross-examination of witnesses regardless of their importance or the nature of their evidence. His Honour also repeatedly and unjustifiably interrupted the orderly conduct of the cross-examination …

“… the primary judge repeatedly cross-examined STSNT’s witness, at times aggressively, about case theories favouring Hurley’s case but not propounded by him, suggesting that His Honour had pre-conceived views about important aspects of the case.”

During closing submissions, Street: 

“… interjected, often abruptly, in such a way as to prevent counsel from fully developing the submissions that he wished to make, and on many occasions putting a variety of propositions for which Hurley never contended in his pleadings or otherwise.”

The full court concluded: 

“It is unnecessary to burden these brief reasons with any more of the myriad examples of the judge’s inappropriate interventions.” 

A rehearing was ordered before a different judge. 

Security & Technology Services v Hurley

While Street J felt the full weight of the Fulls for his misadventures, Andrew Maryniak QC of the Administrative Appeals Tribunal got a much gentler ride from the Federal Court for his “substantial reproduction” of submissions by Industry Innovation and Science Australia, an agency that advises the federal government on innovation and research. 

Justice Michael Wheelahan affirmed Maryniak’s decision that Ultimate Vision Inventions had not satisfied the definition of R&D activities for the purpose of s 355-20 of the Income Tax Assessment Act 1997. 

In a lengthy judgment, Wheelahan held that Maryniak’s “unattributed copying” did not give rise to an inference that the tribunal had failed to undertake an independent review, nor did it give rise to an inference that the tribunal – by copying slabs of its reasons – may have overlooked some considerations. 

HH further found that there is no requirement incumbent upon the Tribunal to ensure that justice “must appear to have been done”. Just as well. 

“In my view, it was not ideal for the tribunal to express its reasons for decision by reproducing mostly verbatim the respondent’s submissions to it, without acknowledging expressly that this was the course that it took. 

“Although it might be apparent what was done, for the tribunal to produce reasons in this way without attribution is liable to fuel perceptions on the part of applicants for review and others that the tribunal has not given independent consideration to the matters under review, and does little to meet the exhortation in s.2A(d) of the AAT Act that the tribunal is to pursue a mechanism of review that promotes public trust and confidence in its decision-making. 

“However, these observations do not address whether there were any legal consequences of the course that the tribunal took …”

Maryniak lifted two-thirds of his judgment directly from the submissions made by the statutory body Innovation and Science Australia. The copying extended to including the submission’s typos. 

ISA accepted that “unattributed copying, whether by tribunal members, academics, or judges is undesirable” but submitted that it did not impact on the validity of the tribunal’s decision. 

In reasoning that will give hope to desperate students everywhere, Wheelahan accepted ISA’s submission. 

HH pointed to two paragraphs in the tribunal judgment which had not been reproduced from the respondent’s submissions to find that “there are sufficient indications that the tribunal’s reasons are indeed its reasons for decision to which it gave independent consideration”. 

Maryniak achieved this high bar for independent judicial reasoning by including:

“Summaries of the legal principles, reference to the applicant’s submissions with some comments upon them, the framing of issues that arose on the review, and some conclusions.”

Plus:

“The fact that there was some material re-ordering of the paragraphs that were reproduced from the respondent’s submissions further supports the application of independent consideration.”

Wheelahan accepted that the tribunal’s self-affirming statement that it had made “a thorough analysis of the documentary evidence in this matter together with consideration of the oral matter,” guaranteed that no miscarriage of justice had been made. 

Ultimate Vision Entertainment Pty Ltd v Innovation and Science Australia