Duplication of judicial handiwork by the same judge in a separate judgment – without citation or acknowledgement … Trouble if a student did it … Judges are free to “phone it in” … Ginger Snatch reports 

WHAT happens when a judge plagiarises himself? 

This is a question we pondered following a tip-off from a concerned reader that Philip Hallen, when an Associate Justice of the NSW Supremes, now HH Justice Hallen, forgot to cite one of his earlier judgments from which borrowed 13 paragraphs. 

The two cases had similar but far from identical facts relating to succession, family provisions and notional estates. 

You can see that Hallen AsJ lifted the 13 paras from Kastronis v Foundouradakis (paras 76 to 88) and repeated them in Kelly v Deluchi (paras 134 to 145). 

In Kelly v Deluchi two of the paragraphs from Kastronis were combined into one. There was a change here and there to punctuation and the adding of a section number. Apart from that it was a verbatim scissors and paste job. 

Normally it might be expected that an earlier slab of work would be referenced or cited. But not here. 

Is that a problem? It depends.

The University of NSW’s definition of plagiarism includes duplication: 

But what’s good for university students does not apply to judges. 

In journalism, self-plagiarism is regarded as rewarming the prose, coasting, slothfulness or, in Broadway terms, an actor who “phones it in”.  

There was a case nearly 10 years ago where federal madge, Jennifer Rimmer, who because of stress and pressure of work, copied out 25 paragraphs of reasons from fellow federal madge, John Walters. 

Chief magistrate John Pascoe sent Rimmer to reeducation camp. 

Justinian has reported previously on the Melbourne solicitor who was struck off for plagiarism. 

It’s not as though Phil Hallen is entirely alone among the judiciary. We’ve also got the inspiring example of Timbo Carmody, when he was a Family Court judge. 

The full court observed in relation to one of Old Glue Pot’s judgments: 

“It is not improper for a judge to repeat passages of general discussion, applicable across cases. But where as here, some of the comment is as to fact and is not applicable to the case in hand, confidence in the cogency of the fact-finding process may be diminished.” 

So while a law student would be kicked out of the course for “duplication” there’s only a slap on the wrist from higher up the foot chain for Timbo. 

In the two cases Hallen dealt with, both involved succession, family provisions and notional estates, and the duplication was confined to his explanation of a “notional estate”. It would have looked a whole lot better if he’d referenced and cited himself. 

Instead, it looks like a case of “phoning it in”. 

Here’s are the original paragraphs from Kastrounis v Foundouradakis … 

And all the same again in Kelly v Deluchi …