Missed deadline in employee dispute ‘inconceivable’, judge says

A Federal Court judge has come down hard on the lawyers behind a chief legal officer for missing a deadline that he said should have taken a barrister and paralegal a half day’s work to complete.

Appearing in the Federal Court on Wednesday (11 September), Paul Moorhouse, counsel for two former in-house lawyers of Super Retail Group (SRG), told a frustrated Justice Michael Lee they had missed the deadline to file an outline of evidence on its legal representation.

“It is unacceptable,” Justice Lee said.

“I wanted to reduce the costs associated with this case and get it on as quickly as possible, and I made that perfectly clear. It is inconceivable why … you would not comply with a court timetable without an explanation other than it was just a bit too hard.”

Former chief legal officer Rebecca Farrell and former group secretariat and corporate legal Amelia Berczelly commenced action following tensions over SRG chief executive Anthony Heraghty’s undisclosed relationship with the chief human resources officer.

According to an April ASX statement, the former employees also alleged there was inappropriate company travel, bullying, victimisation and adverse treatment, unreasonable workloads, and unsatisfactory company record management.

Justice Lee said that while he does not ordinarily get “too concerned” about a missed deadline, he spent a “lot of time on this matter” after hours to accommodate the proceedings “because I recognise that, in cases like these, every week that goes on means more and more legal costs” for applicants like Farrell and Berczelly.

He added he worked hard to publish the August judgment concerning SRG’s suppression order application and “didn’t ring the parties to say I couldn’t … because I’ve got better things to do”.

He also suggested he could have written the outline in half a day.

When Moorhouse said there was a “significant tender bundle” to be filed alongside the outline, Justice Lee said the task “would have taken a paralegal half an hour to put together”.

Considering the deadline has been in place since early August – and the orders revised again on 22 August – Justice Lee said he was tempted to disallow costs for Wednesday’s hearing.

“I would think half a day at most of a barrister’s time and a paralegal putting together a bundle of documents is all the costs that should be allowed … and not be charged for the purpose of re-listing,” he said.

The court moved onto dates and arrived at a hearing time in early December. Justice Lee said that while the parties would only need two days, he would add a third so he could deliver a judgment.

Moorhouse also flagged Berczelly had filed a general protections claim in the Fair Work Commission to preserve her entitlements. She received a certificate to allow her to proceed after the usual deadline.

Justice Lee said an unfiled version of the originating application in this “foreshadowed proceeding” should be sent to his chambers so it “doesn’t get lost in the system”, and he can consider if it should be heard concurrently with the current matter.