Flattery aside

Remembering the Rimmer affair ... Federal magistrate in Brisbane copies slabs of reasons from a judgment written by a colleague in Melbourne ... Synchronicity or plagiarism? ... Federal magistrates overworked, tired, sick, bothered & bewildered ... Ginger Snatch investigates ... From Justinian's archive, March 2006

Former Federal Madge Jenny Rimmer: scissors and paste FEDERAL magistrate Jennifer Rimmer, based in Brisbane, is an admirer of the craftsmanship of Federal Magistrate John Walters, based in Melbourne.

So much so that in her reasons for judgment in Frith v The Exchange Hotel she carefully copied out at least 25 paragraphs from an earlier judgment by Walters in Hughes v Car Buyers Pty Ltd.

Both cases concern workplace sexual harassment but Rimmer has taken this common thread a step or 25 further.

The plagiarised paragraphs are lifted holus bolus from Walters’ judgment, with just the names of the parties thoughtfully changed.

The scissors and paste are evident in the portions of her judgment dealing with liability and with the assessment of compensation – the stuff that requires some reasoning as opposed to recitation of facts and arguments.

When Walters cited a slice of Catherine Branson’s reasons in another sexual harassment case, Leslie v Graham, he said:

“With the greatest of respect to her Honour, I must confess to finding the above passage somewhat impenetrable ...”

Magically, Rimmer was struck in precisely the same way:

“With the greatest of respect to her Honour, I must confess to finding the above passage somewhat impenetrable ...”

On and on it went.

Rimmer even arrived at the same monetary range for determining the non-economic loss in the Frith case.

“I conclude that the appropriate award for (general) non-economic loss in the circumstances of this case is between $10,000 and $12,500.”

She plumped for $10,000.

Funny that. Seven months earlier, Walters said in the Hughes case:

“I conclude that the appropriate award for (general) non-economic loss in the circumstances of this case is between $10,000 and $12,500.”

He thought it would be “intellectually dishonest” to choose either of those two figures, so we went for the mid-point: $11,250.

Chief Madge John Pascoe (centre): sent Rimmer to boot camp

The court’s official response from its spokesmuffin to our query about this synchronicity was:

“The court had a major problem with outstanding judgments during the period in question due to the heavy volume of work. New systems for monitoring outstanding judgments were introduced and the number of outstanding judgments has been very significantly reduced. FM Rimmer was also suffering health problems at the time, from which she has now fully recovered. She currently has no outstanding judgments.

A corrected version of the judgment in Frith v The Exchange Hotel & Anor was issued on 28 August 2005.”

An inspection of the “corrected” version reveals that all the scissoring and pasting are still safely intact.

By the way, there were three years and four months between the time Rimmer heard the case and the time she delivered her borrowed judgment.

Overworked, stressed, rotten health, too tired, too rancid - not vastly dissimilar, it seems, from the condition the rest of us are in.

Have a look for yourself at the paragraphs in each judgment dealing with liability.

Walters FM in Hughes v Car Buyers Pty Ltd
August 31, 2004

[42] Although I have concluded that Car Buyers is vicariously liable for the actions of Mr Wright pursuant to s 106 of the SDA,3 it has been suggested that it may not necessarily follow that Car Buyers (itself) has unlawfully discriminated against Ms Hughes. In Leslie v Graham (2002) EOC 93-196, Branson J said (at [73]):

... while (the SDA) renders unlawful discrimination by an employer on the ground of sex, it does not render unlawful discrimination by a fellow employee on the ground of sex. While I have found that (the employer) is vicariously liable under (the SDA) for (the respondent employee’s) sexual harassment of (the applicant employee), nothing in (the SDA) deems an employer found vicariously liable for an act of sexual harassment to have itself engaged in the act of sexual harassment (cf s 105 of [the SDA]).

[43] With the greatest of respect to her Honour, I must confess to finding the above passage somewhat impenetrable. Section 106 of the SDA deals with vicarious liability.4 Leaving aside the exemption referred to in subs (2) – which does not apply in the present circumstances – the section clearly states that “where an employee or agent of a person” does a relevant unlawful act, the SDA applies “in relation to that person as if that person had also done the act”. The “person” referred to in s 106(1) can only be (in the present circumstances) an employer. It follows that, if Mr Wright does an act that would, if it were done by Car Buyers, be unlawful under s 14 of the SDA (which appears in Pt II of the SDA), then the SDA applies, in relation to Car Buyers, as if Car Buyers had also done the act. Thus, it seems to me that the SDA does render unlawful discrimination by a fellow employee (in this case, Mr Wright) on the ground of sex. Although it is true that Mr Wright may not himself have discriminated against Ms Hughes on the grounds of her sex within the meaning and contemplation of s 14 (because, after all, he was not her employer in his personal capacity), the effect of s 106 is that Car Buyers is deemed to have also done the relevant acts – thereby triggering the provisions of s 14.

[44] In any event, Car Buyers is, in every sense, the alter ego of Mr Wright. In my opinion, there can be no relevant distinction between Mr Wright’s acts and behaviour in relation to or in connection with Ms Hughes’ employment and the acts and behaviour of Car Buyers itself.

[45] I find, therefore, that Car Buyers has unlawfully discriminated against Ms Hughes on the ground of her sex by subjecting her to the kind of detriment referred to in [22] and [35] above.

Rimmer FM in Frith v The Exchange Hotel
April 1, 2005

[77] Although I have concluded that the Exchange Hotel is vicariously liable for the actions of Mr Brindley pursuant to s 106 of the SDA,3 it has been suggested that it may not necessarily follow that the Exchange Hotel (itself) has unlawfully discriminated against Ms Frith.

[78] In Leslie v Graham (2002) EOC 93-196; [2002] FCA 32, Branson J said (at [73]):

... while [the SDA] renders unlawful discrimination by an employer on the ground of sex, it does not render unlawful discrimination by a fellow employee on the ground of sex. While I have found that [the employer] is vicariously liable under [the SDA] for [the respondent employee’s] sexual harassment of (the applicant employee), nothing in [the SDA] deems an employer found vicariously liable for an act of sexual harassment to have itself engaged in the act of sexual harassment (cf s 105 of [the SDA]).

[79] With the greatest of respect to her Honour, I must confess to finding the above passage somewhat impenetrable. Section 106 of the SDA deals with vicarious liability.4 Leaving aside the exemption referred to in subs (2), which does not apply in the present circumstances, the section clearly states that “where an employee or agent of a person” does a relevant unlawful act, the SDA applies “in relation to that person as if that person had also done the act”. The “person” referred to in s 106(1) can only be (in the present circumstances) an employer. It follows that, if Mr Brindley does an act that would, if done by the Exchange Hotel, be unlawful under s 14 of the SDA (which appears in Pt II of the SDA), then the SDA applies in relation to the hotel, as if the hotel had also done the act.

[80] Thus, it seems to me that the SDA does render unlawful discrimination by a fellow employee (in this case, Mr Brindley) on the ground of sex. Although it is true that Mr Brindley may not himself have discriminated against Ms Frith on the grounds of her sex within the meaning and contemplation of s 14 (because, after all, he was not her employer in his personal capacity), the effect of s 106 is that the Exchange Hotel is deemed to have also done the relevant acts, thereby triggering the provisions of s 14.

[81] In any event, the Exchange Hotel is, in every sense, the alter ego of Mr Brindley. In my opinion, there can be no relevant distinction between Mr Brindley’s acts and behaviour in relation to or in connection with Ms Frith’s employment and the acts and behaviour of the Exchange Hotel itself.

[82] I find, therefore, that the Exchange Hotel has unlawfully discriminated against Ms Frith on the ground of her sex by subjecting her to the kind of detriment referred to in these reasons.

Rimmer lifted another 19 paragraphs from Walter’s judgment, dealing with the determination of compensation. Could the April 1 delivery date have anything to do with it?

Only the names of the parties were changed. 

We know that when Chief Federal Magistrate John Pascoe was running the bread maker George Weston Foods there was some funny price fixing business going on. 

When will this anti-competitive behaviour stop? 

Happily nowadays Jenny is running a mediations business in Brisneyland. 

Justinian also ran a follow-up story in March 2006 about Rimmer being sent by Pascoe CFM to re-education camp.

See: Rimmer now a glimmer