Following a tense – and at times useless and confusing – cross-examination of the ABC’s chief people officer, counsel for Antoinette Lattouf argued the national broadcaster should be hit with a severe penalty for its conduct during and after the termination proceedings.
In submissions handed up to the Federal Court on Wednesday (3 September), counsel Oshie Fagir and Philip Boncardo said the ABC’s illegal firing of Antoinette Lattouf in late 2023 justified “substantial deterrent penalties” of between $300,000 and $350,000.
In June, Justice Darryl Rangiah found Lattouf was unfairly dismissed for reasons that included her political opinions on the war in Gaza and ordered the ABC to compensate her $70,000. The recent costs proceedings sought penalties on top of the compensation.
During oral submissions, Boncardo said the ABC’s proposed total penalty of between $37,560 and $56,340 was “but a drop in the ocean” compared to its funding and revenue, and a severe penalty would ensure it is “stung” by its breach of the Fair Work Act.
To support the higher penalty, Boncardo said the ABC had “fought tooth and nail from go to woe” and was still advancing a claim that the breach was due to an “inadvertent mistake” on the part of Chris Oliver-Taylor, the broadcaster’s then-chief content officer.
On the latter, Boncardo said it was “plainly wrong” and the premise was a “faulty one” that should be objected by Justice Rangiah.
Boncardo also claimed that while the ABC should be “commended” for hosting a training session before the board and senior legal team, he said it was a “one-hour session with PowerPoints that really don’t do anything more than tell people they need to comply with the law”.
Lattouf’s legal team then relied on a leak of her termination to The Australian, which had been live before she made it home on the day.
While there was no evidence on where the leak came from, Boncardo alleged the article “contained a whole host of information which could have only come from someone who was close to the action”.
Aside from that, Boncardo said the lack of investigation by the ABC into how the story was leaked proved it was “entirely disinterested” and compounded the “humiliation and stress of my client”.
In reply submissions, Ian Neil SC said the penalty should be modest because the conduct was “manifestly unlikely to be repeated”.
When it was raised with Neil how it could be given that the ABC regularly receives complaints – as it did in Lattouf’s case – the counsel said that gave rise to the observation that the contraventions had not occurred prior, “notwithstanding complaints are made all the time”.
Justice Rangiah then asked what made it different in Lattouf’s case.
Neil pointed to the “febrile state of controversy of the issue in question”, being the war in Gaza, that The Australian was “chasing the story”, and the complaints were continuing to come in.
“It all came together at one very specific, short period of time and produced a circumstance where a decision-maker, the single decision-maker, was operating under what we have characterised as human emotions [of] pressure, stress, confusion, panic,” Neil said.
In the written submissions, the ABC pressed that the conduct was a “one-off” and it was relevant that Oliver-Taylor no longer worked at the ABC.
“The loss and damage occasioned by the contraventions is not a significant factor in the assessment of penalty, because it was confined to a single employee, did not include any financial loss, and has been fully addressed by the compensation ordered by the court,” the written submissions added.
Judgment was reserved.
Cross-examination a ‘waste of time’, judge observes
At one point during barrister Fagir’s cross-examination of the national broadcaster’s chief people officer, Deena Amorelli, Justice Rangiah observed it “has so far been a waste of time”.
Prior to the interruption, Fagir had been questioning Amorelli on a statement released by managing director Hugh Marks on the day of the judgment, which – on Amorelli’s evidence – had been a public apology to Lattouf for the circumstances around her dismissal.
Fagir then went on to question Amorelli on the training session that had been delivered to the senior leadership team and board, evidence about whether “email campaigns” were typical at the ABC, and whether there had been a genuine expression of remorse.
On the latter, Justice Rangiah said evidential issues going to whether expressions of remorse should be considered genuine manifestation of insight and desire to avoid further contraventions should be made in the oral submissions put directly to him, rather than Amorelli.
He then added: “I won’t stop you from continuing your cross-examination, but I have to say that so far, I haven’t found much of it useful. [The] lengthy cross-examination doesn’t really go beyond what you could have submitted [to me] to any great extent.”
To this, Fagir said the scope of his cross-examination should not be dictated by Neil’s repeated objections “of what can be dealt with in submissions and what can be dealt with in cross-examination”.
“Well, your opponent is entitled to object to the relevance of the cross-examination so I am not going to be making any blanket ruling on that issue. I have made my doubts about the efficacy of your examination clear, I have indicated that I will allow you to ask the last question you asked, so please repeat it and move on,” the judge said.
At a following objection over a question that suggested Amorelli’s views differed from those of the ABC, Fagir said it was “another spurious objection” by the national broadcaster’s legal team.
“This has reached the point where the questions you are asking have now become quite irrelevant. What I’m concerned with is any contrition on the part of the ABC,” Justice Rangiah said.
“The witness has indicated that her own views are reflected in the affidavit, and it seems to me that for you to go any further is impermissible, and I won’t allow you to ask that question.”
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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