Martin v Norton Rose Fulbright Australia (No 11)
[2020] FCA 1641
•16 November 2020
Federal Court of Australia
Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641
File numbers: SAD 49 of 2017
NSD 1610 of 2016Judgment of: KERR J Date of judgment: 16 November 2020 Catchwords: TORTS – tort of deceit – where national firm of legal practitioners in dispute with a person who was formerly a “Fixed Profit Share Partner” of the firm but claimed to have been a “Clayton’s partner” who had in truth been an employee of the partnership intentionally misled its opponent’s legal representatives regarding the circumstances of the filing of a proceeding in the Federal Court of Australia seeking to prevent the Fair Work Commission from dealing with a general protections application involving dismissal under the Fair Work Act 2009 (Cth) (Fair Work Act) – where firm’s opponent relied on those misrepresentations and suffered damage as a result in the form of various legal costs incurred – tort of deceit established – damages, including aggravated and exemplary damages, awarded
CONSUMER LAW – claim that certain representations made in the course of discussions between legal representatives regarding the institution of a proceeding in the Federal Court of Australia were made “in trade or commerce” and were relevantly misleading and deceptive contrary to Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law s 18 – representations found not have been made in trade or commerce – claim dismissed
TORTS – tort of abuse of process – where national firm of legal practitioners instituted a proceeding in the Federal Court of Australia seeking to prevent the Fair Work Commission from dealing with a general protections application under the Fair Work Act advanced by a person who was a former “Fixed Profit Share Partner” of the firm but claimed to have been a “Clayton’s partner” who had in truth been an employee of the partnership – proceeding alleged to have been an abuse of process – proceeding found to have been without merit – consideration of Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321; 238 IR 42 and Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 – firm found to have instituted the proceeding not for the purpose of obtaining to any substantial extent relief within the scope of the remedy it ostensibly sought, but rather as a vehicle to prevent its opponent from accessing the judicial power of the Commonwealth by preventing him from obtaining from the Fair Work Commission a certificate pursuant to s 368(3) of the Fair Work Act as he required in order to litigate his claims in the Federal Court of Australia pursuant to s 370 of that Act – where firm’s opponent suffered damage as a result in the form of various legal costs incurred – tort of abuse of process established – damages awarded
COSTS – costs of proceeding instituted by national firm of legal practitioners to prevent the Fair Work Commission from dealing with a general protections application involving dismissal under the Fair Work Act advanced by a person who was a former “Fixed Profit Share Partner” of the firm but claimed to have been a “Clayton’s partner” who had in truth been an employee of the partnership – where proceeding had collapsed to the issue of costs after the firm’s opponent discontinued his application to the Fair Work Commission – where proceeding found to have been an abuse of process – where proceeding therefore also instituted without reasonable cause such that if s 570 of the Fair Work Act applied, the exception in s 570(2)(a) was engaged – costs awarded against law firm on an indemnity basis
PRACTICE AND PROCEDURE – whether appropriate to refer papers in proceedings to a body regulating the legal profession, in view of possible breaches of the professional obligations of a national firm of legal practitioners party to the proceedings – referral made
PRACTICE AND PROCEDURE – application for suppression order prohibiting publication or disclosure of constitution of law firm party as filed in the proceedings pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) – application advanced on the basis that disclosure would potentially permit the Court’s processes to be used as a vehicle for significantly disadvantaging the commercial interests of the firm – order sought found to be necessary to prevent prejudice to the proper administration of justice – application upheld and order made that the firm’s constitution be suppressed and kept confidential for ten years, subject to further order
Legislation: Acts Interpretation Act 1901 (Cth) s 25C
Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law ss 2, 18, 236
Evidence Act 1995 (Cth) s 144
Fair Work Act 2009 (Cth) ss 365, 366, 368, 370, 570
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AJ, 51
Federal Court Rules 2011 (Cth) rr 2.21-2.25, 2.27
Partnership Act 1892 (NSW) s 2(3)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 6.1, 22.1
Cases cited: ALDI Foods Pty Ltd v Transport Workers’ Union of Australia [2020] FCA 269
Australasian Meat Industry Employees Union v Fair Work Australia (No 2) [2012] FCAFC 103; 203 FCR 430
Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170
Australian Competition and Consumer Commission v Sampson [2011] FCA 1165
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2019] FCA 1677
Badenach v Calvert [2016] HCA 18; 257 CLR 440
Barfly’s Nominees Pty Ltd v Klinger Partners (a firm) [2019] VSCA 256
Bayne v Blake (No 1) [1909] HCA 55; 9 CLR 347
Berry v CCL Secure Pty Ltd [2020] HCA 27
Bhagat v Global Custodians Ltd and Ors [2000] NSWSC 321
Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732
Bride v Shire of Katanning [2016] FCA 65
Briginshaw v Briginshaw [1938] HCA 34; 50 CLR 336
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd (No 2) (1988) 18 FCR 212
Christie v Federal Commissioner of Taxation [2004] AATA 1396; 58 ATR 1142
Clark v National Australia Bank Limited (No 2) [2020] FCA 652
Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Coghill v Indochine Resources Pty Ltd (No 3) [2015] FCA 1131; 237 FCR 282
Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987
Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; 209 FCR 123
Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; 203 FCR 371
Digital Pulse Pty Ltd v Harris [2002] NSWSC 33; 166 FLR 421
D.S. Clarke Nominees Pty Ltd v Adder Holdings Pty Ltd [2015] FCA 277
Duke Group Ltd (In Liq) v Pilmer) [1999] SASC 97; 73 SASR 64
Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; 160 CLR 1
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Hacker v Weston [2015] FCA 363
Hearn v O’Rourke [2003] FCAFC 78; 129 FCR 64
Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321; 238 IR 42
Hollis v Vabu [2001] HCA 44; 207 CLR 21
Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
Legal Services Commission v Mullins 2006 LPTO12
Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177
Lunt v Victoria International Container Terminal Limited [2020] FCAFC 40
MacDougal v Mitchell [2015] NSWCA 389
Magill v Magill [2006] HCA 51; 226 CLR 551
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Mariconte v Nobarani [2020] FCA 1485
Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494
Martin v Norton Rose Fulbright Australia [2019] FCA 1101
Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96
Martin v Norton Rose Fulbright Australia (No 4) [2019] FCA 1441
Martin v Norton Rose Fulbright Australia (No 8) [2020] FCA 274
Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275
Martin v Norton Rose Fulbright Australia (No 10) [2020] FCA 281.
Martin v Norton Rose Fulbright Australia [2019] FCAFC 234
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221
Mineralogy v State of Western Australia [2020] FCA 1517
Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457
Neville’s Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd [2018] FCA 2098
New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496
OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 1659
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388
Pihiga Pty Ltd v Roche [2011] FCA 240
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118
PNJ v The Queen [2009] HCA 6; 252 ALR 612
Probuild Constructions (Aust) Pty Ltd v Shade Systems Ltd [2018] NSWSC 540
Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd [1990] FCA 653; 27 FCR 86
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Re Opal Producers Australia Ltd [2011] NSWSC 689
Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43; 223 FLR 406
Ross v Paea trading as Bombora Café [2020] FCA 766
Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; 225 FCR 357
Uren v John Fairfax & SonsPty Ltd [1966] HCA 40; 117 CLR 118
Williams v Commonwealth Bank of Australia [1999] NSWCA 345
Williams v Spautz [1992] HCA 34; 174 CLR 509
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448
Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818
Colvin, CG, “Virtue, Honour and Ethics: Problems with a Deontological Perspective on Ethical Responsibilities of Lawyers” (Western Australian Bar Association Spring CPD, 2020)
Maher, F, “An Empirical Study of Exemplary Damages in Australia” (2020) 43(2) MULR 694
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 461 Date of last submissions: 17 April 2020 Date of hearing: 2-5 March 2020 Counsel for the Applicant: Mr A Cameron Counsel for the Respondent: Mr J Potts SC and Ms N Laing Solicitor for the Respondent: King & Wood Mallesons ORDERS
SAD 49 of 2017 BETWEEN: THOMAS PATRICK MARTIN
Applicant
AND: NORTON ROSE FULBRIGHT AUSTRALIA
Respondent
order made by:
KERR J
DATE OF ORDER:
16 november 2020
THE COURT ORDERS THAT:
1.There be judgment for the Applicant for the tort of deceit.
2.In respect of the tort of deceit, the Applicant be awarded $60.00 as damages.
3.In respect of the tort of deceit, the Applicant be awarded $10,000.00 as aggravated damages.
4.In respect of the tort of deceit, the Applicant be awarded $150,000.00 as exemplary damages.
5.The Applicant’s claim under the Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law s 18 be dismissed.
6.There be judgment for the Applicant for the tort of abuse of process
7.In respect of the tort of abuse of process, the Applicant be awarded $470.00 as damages.
8.The Respondent have leave to file and serve any written submissions upon which it might seek to rely in relation to costs, limited to 4 pages in length, within 14 days of the publication of the Court’s reasons.
9.The Applicant have leave to file and serve any responsive submissions upon which he might wish to rely, limited to 4 pages in length, within 28 days of the publication of the Court’s reasons.
10.Subject to either party applying to advance oral submissions and the Court being persuaded of the necessity for such, the Court will determine the question of costs on the papers.
11.Pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) and in order to prevent prejudice to the proper administration of justice, the constitution of Norton Rose Fulbright Australia as filed in these proceedings, subject to further order, be suppressed and kept confidential for ten years from the making of this order.
12.The Registrar be directed to refer the papers in this proceeding with my reasons to the Legal Services Commissioner of New South Wales for such consideration as the Commissioner sees fit.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1610 of 2016 BETWEEN: NORTON ROSE FULBRIGHT AUSTRALIA
Applicant
AND: TOM MARTIN
Respondent
order made by:
KERR J
DATE OF ORDER:
16 November 2020
THE COURT ORDERS THAT:
1.Subject to a reduction of $500.00 to adjust for damages awarded to the Respondent in SAD49/2017, the Applicant pay the Respondent’s costs in these proceedings on a solicitor client basis as agreed or in default of agreement as taxed.
2.Pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) and in order to prevent prejudice to the proper administration of justice, the constitution of Norton Rose Fulbright Australia as filed in these proceedings, subject to further order, be suppressed and kept confidential for ten years from the making of this order.
3.The Registrar be directed to refer the papers in this proceeding with my reasons to the Legal Services Commissioner of New South Wales for such consideration as the Commissioner sees fit.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
Proceedings SAD49/2017 and NSD1610/2016 both arise out of a dispute between a law firm and one of its former “Fixed Profit Share Partners”, Mr Martin. The dispute has been bitter, protracted, and undoubtedly costly for both sides. It has travelled far beyond the substance of the original complaint Mr Martin made against the firm under the Fair Work Act 2009 (Cth) (Fair Work Act). The circumstances of this litigation are particularly unfortunate given that in the result it may be thought that in seeking total victory, each party has inflicted damage on the other to a degree beyond the significance of the substantive issues as were initially in dispute between them.
The circumstances of this proceeding are also salutary as to the potential risks of even a large global law firm choosing to self-represent in respect of a dispute involving a breakdown of prior professional relationships, where caution might suggest that external representation would be better advised.
The critical issues in dispute in these proceedings largely concern events that occurred during a relatively confined period: Monday 19 September 2016 to Friday 23 September 2016 inclusive.
BACKGROUND
However, first it is appropriate to provide context and background to what is in dispute.
On 12 January 2013 Mr Martin, admitted to practice as a lawyer, commenced employment in the Perth Office of Norton Rose Fulbright Australia (NRFA). NRFA is an Australian law firm with a national presence and international connections.
On 12 March 2015, NRFA offered Mr Martin a position as a “Fixed Profit Share Partner”. It is uncontentious that on 1 May 2015, Mr Martin became a Fixed Profit Share Partner. Whether his change of status caused him thereupon to have ceased to be an employee of NRFA is discussed later in these reasons.
On 15 July 2016, following a deterioration of Mr Martin’s relationship with NRFA its managing partner Mr Wayne Spanner sent an email to Mr Martin terminating or purporting to terminate his position as a “Fixed Profit Share Partner” with immediate effect.
On 5 August 2016 Mr Martin, then represented by Harmers Workplace Lawyers (Harmers), filed a general protections application in the Fair Work Commission (FWC) against NRFA and against certain individuals within the firm (Wayne Spanner; Cameron Harvey; Dylan McKimmie and Chris McLeod).
On 8 August 2016, NRFA instructed Mr David Cross (an equity partner within that firm) to act for it in relation to Mr Martin’s FWC application.
On 9 August 2016, the FWC issued a Notice of Listing requiring the attendance of the parties at a telephone conciliation conference on 20 September 2016 at 2:15pm. On 12 August 2016, NRFA’s response to the FWC application fell due. NRFA did not file its response.
On 22 August 2016, NRFA notified Harmers that it intended to commence Federal Court proceedings seeking a writ of prohibition to prevent the FWC from further dealing with Mr Martin’s application on jurisdictional grounds.
Correspondence subsequently passed between the parties with a view to arranging a mediation of the dispute.
The disputed events then occurred. Within the period from 19 to 23 September 2016, NRFA commenced an action in the Federal Court of Australia (proceeding NSD1610/2016, described by Mr Martin as the Prohibition Proceeding). That action named the “President and Members of the FWC” as the First Respondents, and Mr Martin as the Second Respondent. The originating application identified the relief sought as follows:
On the grounds stated in the statement of claim, the Applicants apply for the following relief under section 39B of the Judiciary Act 1903.
1.Pursuant to section 21 of the Federal Court Act of Australia 1976 (the Act), a declaration that the Fair Work Commission does not have jurisdiction under Part 3-1 of the Fair Work Act 2009 (Cth) to deal with the ‘General Protections Application Involving Dismissal’ dated 5 August 2016 filed by the Second Respondent (FWC Application).
2.Pursuant to section 23 of the Act, an order in the nature of prohibition against the First Respondents restraining them from dealing with, or otherwise purporting to exercise jurisdiction over the Applicants in respect of, the FWC Application.
3.An order that the Second Respondent pay the Applicants’ costs of these proceedings on an indemnity basis.
The basis for NRFA’s jurisdictional objection was two-fold. In brief, it contended that Pt 3-1 of the Fair Work Act:
(a)had no application to NRFA in respect of its employees in Western Australia, that state not having referred the relevant powers to the Commonwealth; and
(b)had no application in the relevant circumstances because Mr Martin was not an employee of NRFA (being instead a partner), and therefore had not been “dismissed” for the purposes of ss 365 and 386(1) of the Fair Work Act.
NRFA alleged that against those circumstances the FWC lacked jurisdiction and yet threatened:
to act on the [Fair Work] Application, to purport to exercise jurisdiction over the Applicants and to compel the Applicants, inter alia, to attend a conference convened by the Fair Work Commission.
By reason of certain events that occurred on 19 September 2016, to which detailed attention will later be given, arrangements were made by consent to adjourn the telephone conciliation conference before the FWC listed for 20 September 2016. Arrangements were also made for the parties to attend a private mediation.
On 7 October 2016, the parties attended the private mediation. It was adjourned until 14 October 2016 to permit Mr Cross to obtain instructions on a potential offer of settlement. However, before that date the parties came to an agreement that there was no utility in pursing attempts to mediate the dispute.
On 17 October 2016, Mr Martin filed a notice of discontinuance in the FWC. Mr Harmer (of Harmers Workplace Lawyers) sent an email to Mr Cross giving service of the notice in the following terms:
… Notwithstanding, our client’s decision to discontinue the Fair Work Commission proceedings, our client maintains that he has a genuine claim for breach of the General Protection Provisions in the Fair Work Act 2009 (Cth) and that he was entitled to commence proceedings in that jurisdiction.
However, in light of the failed attempt to resolve the dispute through private mediation, and your insistence to engage in a costly and protracted pre litigation dispute in the Federal Court of Australia, our client has decided to pursue his claim in an alternative forum.
In these circumstances, our client does not foresee there to be any basis for you to seek costs against our client and as such, invites you to immediately discontinue the Federal Court proceedings with no order as to costs.
On the same day, Mr Cross responded by email as follows:
…In light of your letter, and the demand for discontinuance of the Federal Court proceedings contained within, it is best that the parties appear at the directions hearing tomorrow so that the court may be fully informed and appropriate arrangements made for the disposition of the proceedings.
Proceeding NSD1610/2016 therefore appeared to have collapsed to a single issue: whether Mr Martin was liable to pay NRFA’s costs.
On 18 October 2016, proceeding NSD1610/2016 came before Justice Wigney. NRFA sought its costs. It is convenient to reproduce the following extract from the transcript (see at RCB222-228), which identifies the nub of NRFA’s position when the proceeding came before the Court on that occasion:
Mr Muddle SC: Your Honour, these proceedings were commenced by my client for an order in the nature of prohibition, to prevent proceedings commenced by the second respondent in the Fair Work Commission which we contended was out of jurisdiction. The second respondent has, yesterday, withdrawn his application to the Fair Work Commission so that the proceedings are now otiose in that we have achieved what we sought to achieve.
…
Mr Muddle SC: In those circumstances we merely seek our costs to be paid by the second respondent and the proceedings be dismissed. I have an affidavit annexing the correspondence that passed between the parties, together with a short outline of submissions. I might hand it up. In short, your Honour, the applicant wrote twice to the second respondent, [to] point out why we contend the Fair Work Commission lack[ed] jurisdiction to hear the matter and a third occasion enclosing a draft of the application and statement of claim. On each occasion we received very firm rebuttals contending that there was jurisdiction and that they were pressing on, and it’s only yesterday that we received the notice of discontinuance.
The deponent of the affidavit to which Mr Muddle SC referred was Mr Cross. The affidavit had been sworn and filed on the day of the hearing. It is uncontentious that Mr Cross at that time continued to have carriage of proceeding NSD1610/2016 on behalf of NFRA. Mr Cross’s affidavit of 18 October 2016 is in evidence in these proceedings as part of exhibit A7.
Wigney J ordered that any further affidavits be filed on or before 25 October 2016, and set down NRFA’s costs application for hearing at 2.15pm on 7 November 2016. Submissions and affidavits were subsequently exchanged. Mr Martin, for his part, sought a costs order against NRFA.
On 6 December 2016, Wigney J listed the parties’ respective costs applications for hearing on 20 February 2017.
On 7 December 2016, Mr Martin served a notice to produce on NRFA seeking what, by a condensed description, can be described as all documents in the control of NRFA in relation to the circumstances surrounding its initiation of proceeding NSD1610/2016.
On 10 February 2017, NRFA appointed external lawyers to act for it in relation to proceeding NSD1610/2016.
On 17 February 2017, Mr Martin instituted proceeding SAD49/2017 in this Court against NRFA. In that proceeding Mr Martin alleges (in crude summary) that he is entitled to relief sounding in damages because he has relied to his detriment on misleading and deceptive statements made by Mr Cross on behalf of NRFA in connection with the institution of proceeding NSD1610/2016. He also alleges that NRFA has engaged in the tort of abuse of process. In his originating application, Mr Martin’s claims for damages are as follows:
1.Compensatory damages for:
a.loss of opportunity to pursue a chose in action;
b.loss of the cost and expense incurred with respect to the FWC Application, NSD1610/2016, and the private mediation (as those matters are defined and referred to in the statement of claim);
c.loss of reputation.
2.General damages for emotional hurt and distress;
3.Aggravated damages on the grounds stated in paragraphs 58 to 64 of the statement of claim;
4.Exemplary damages on the grounds stated in paragraphs 2, 3, 55 and 56 of the statement of claim;
5.The relief is sought at common law and on the basis of Part 5-2, s 236 of the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2019 (Cth).
On 20 February 2017, Wigney J vacated the hearing of the costs applications in NSD1610/2016 listed for that date. His Honour later made orders providing for proceeding NSD1610/2016 and proceeding SAD49/2017 to be together set down for trial later that year, with evidence in one being evidence in the other. Those orders have since remained in force. However, the trial did not occur within the anticipated timeframe. That was due to protracted disputes regarding discovery: see Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96; Martin v Norton Rose Fulbright Australia [2019] FCA 1101; and Martin v Norton Rose Fulbright Australia [2019] FCAFC 234.
As will be apparent, both matters were later re-docketed to me. On 11 April 2019 NRFA discontinued proceeding NSD1610/2016 as against the First Respondents, the FWC.
On 19 June 2019, I made orders setting down the trial in both matters for five days from 23-27 September 2019. My orders required the parties to confer and file a joint court book by 2 August 2019.
On 2 August 2019, NRFA filed a Respondent’s court book.
However, having regard to the then unresolved litigation regarding discovery the planned for September trial dates had to be vacated. The proceedings were relisted for hearing in March 2020: Martin v Norton Rose Fulbright Australia (No 4) [2019] FCA 1441.
On 23 December 2019, I convened a case management hearing in both proceedings for the purpose of setting down procedural orders for the management of the trial. On 24 December 2019, I made certain orders. Among other things, my orders required Mr Martin to file and serve a supplementary court book and outline of submissions ahead of the trial. He did not take advantage of the opportunity to do so.
THE TRIAL
The trial of these proceedings took place in Adelaide. It commenced on Monday 2 March and continued to close of business on Friday 5 March 2020. Mr Martin, initially self-represented, advanced three interlocutory applications prior to opening his case. Each application, had it been accepted, would have required the trial to be adjourned. The Court dismissed all three applications: see Martin v Norton Rose Fulbright Australia (No 8) [2020] FCA 274; Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275; and Martin v Norton Rose Fulbright Australia (No 10) [2020] FCA 281.
Mr Martin opened his case on Wednesday 3 March 2020.
On Thursday 4 March 2020, Mr Cameron, instructed by Angela Pierce and Associates, announced an appearance for Mr Martin. Mr Cameron frankly acknowledged that he was coming in to the proceeding with only the most basic understanding of the issues. Nonetheless, in what were very difficult circumstances Mr Cameron assisted Mr Martin to present his case. He called Mr Martin as a witness and ensured that documentary evidence in support of Mr Martin’s contentions was adduced. At the conclusion of the hearing, having regard to the constrained opportunity that Mr Cameron had had to present submissions with respect to Mr Martin’s case, I made orders for post-hearing written submissions in the following terms:
4.The Applicant file and serve any written submissions on which he would wish to rely, of no more than 20 pages, no later than 4:00pm Monday 23 March 2020.
5.The Respondent file and serve any further written submissions on which it would wish to rely, of no more than 20 pages, no later than 4:00pm Friday 3 April 2020.
6.The Applicant file and serve any written submissions on which he wish to rely in reply, of no more than 6 pages, no later than 4:00pm Friday 10 April 2020.
Those dates were extended by consent on various occasions. During the timeframe within which written submissions were to be filed, Mr Martin was represented by Angela Pierce and Associates, then by Bourne Lawyers, then, ultimately, self-represented once again.
Mr Martin filed his written submissions on 6 April 2020. NRFA filed its written submissions on 17 April 2020.
My orders of 27 May 2020 had given Mr Martin leave to file and serve reply submissions in the following terms:
4.Mr Martin have leave to file and serve written submissions in reply to those filed on behalf of Norton Rose Fulbright Australia, of no more than 6 pages, no later than 4:00pm on Friday 5 June 2020.
5.No further extension of time for the filing of written submissions shall be granted, and that any written submissions lodged by or on Mr Martin’s behalf after the time provided for in Order 4 not be accepted for filing.
Mr Martin, by that time again self-represented, lodged his purported reply submissions after the time provided for in Order 4. His late submissions were erroneously accepted for filing, but were later administratively removed from the court file. After correspondence had been exchanged between the Court and Mr Martin, my associate advised the parties as follows:
I confirm that, as previously advised, Mr Martin’s reply submissions have been removed the court file.
The parties should proceed on the basis that they will remain removed, unless Mr Martin advances a formal application. If any such application is made, it should be supported by a short affidavit. Each party will have leave to file any written submissions on which they would wish to rely, of no more than one page. His Honour would then list the application for a short oral hearing, by telephone.
Mr Martin filed no such application. Accordingly, I have had no regard to the reply submissions that he had earlier purported to file.
The evidence
In most instances, what was adduced or not adduced as evidence requires no further explication. Much of the evidence before the Court is in the form of emails, the provenance of which is not in dispute. However, there is some evidence that requires explanation with respect to its admission or where it appears in the Court file.
That is because late in the trial Mr Martin, having become represented by counsel and instructing solicitors, applied to tender three hard copy bundles of materials. The documents in those three bundles were, by consent, admitted into evidence on the understanding that they would later be electronically filed by Mr Martin’s then solicitors as exhibits A5, A6, and A8 respectively.
Unfortunately, Mr Martin’s then representatives subsequently electronically filed a single “tender bundle” titled “Index of Documents tendered by the Applicant”. That bundle included a considerable number of documents, primarily emails, sorted in chronological order. There was nothing to indicate which of those documents had been admitted as part of exhibits A5, A6 or A8 respectively. NRFA’s representatives - understandably - raised concern on its behalf that there might be discrepancies between the materials that had been tendered in Court without objection as exhibits A5, A6 and A8 and the single bundle of non-disaggregated materials later filed on Mr Martin’s behalf. Correspondence on this point ensued between the parties and with the Court.
On 27 May 2020, I convened a case management hearing to resolve the issue. The parties agreed to a way forward with respect to the exhibits. They agreed on the terms in which exhibits A5, A6 and A8 should have been, and would be, filed. They also agreed that Mr Martin should be granted leave to file a further bundle of documents as had been inadvertently omitted from what had been tendered as Ex A9.
Relevantly, I made the following orders:
1.Mr Martin have leave to file as evidence in his case in the trial of matters SAD49/2017 and NSD1610/2016 Exhibits A5, A6 and A8 in paginated electronic form, being respectively those documents the parties agree were tendered in Court in bundles but without their being included on the electronic court file, no later than 4:00pm on Friday 29 May 2020.
2.Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), the Court dispenses with any provision of the Rules as would prevent Mr Martin also filing as evidence in his case in the trial of matters SAD49/2017 and NSD1610/2016 Exhibit A9, being a paginated bundle of seven documents as identified by the parties during the case management hearing held on Wednesday 27 May 2020, and as they agreed should be received as evidence in those proceedings, no later than 4:00pm on Friday 29 May 2020.
The Court noted that:
1.Norton Rose Fulbright Australia’s legal representative appearing at the case management hearing undertook on that firm’s behalf that it will provide Mr Martin’s legal representatives with the agreed versions of Exhibits A5, A6, A8 and A9 in paginated electronic form in sufficient time to permit Mr Martin’s legal representatives to file those documents with the Court, as provided for by Orders 1 and 2.
2.The parties agree that the Court will disregard any documents other than Exhibits A5, A6, A8 and A9 as have been earlier filed in purported compliance with Mr Martin’s obligation to electronically file those documents tendered on his behalf in Court.
On 29 May 2020, the relevant exhibits were filed electronically in accordance with my orders. I have disregarded the materials earlier filed as referred to at [44] above.
Objections to evidence
On the first day of the trial I made rulings in respect of objections to evidence that NRFA had filed regarding certain affidavit evidence upon which Mr Martin had, in accordance with pre-trial directions, given notice that he intended to rely. My rulings, as provided to the parties at the time in tabular form, are those included as Annexure A to this judgment. Subject to those rulings the affidavit of Thomas Martin, sworn 19 October 2018, was admitted without further objection as Ex A4. The affidavits of Michael Harmer affirmed 25 October 2016 and 4 November were admitted without further objection as Ex A1 and Ex A2 respectively. The affidavit of Madeline Boyd (another Harmers lawyer) sworn 8 February 2017, which had not been the subject of objection, was admitted as Ex A3.
It proved unnecessary for the Court to make rulings with respect to the objections that Mr Martin had advanced in respect of five affidavits of Mr David Cross that NRFA had filed, and upon which it had earlier indicated that it would be relying. That was because on 20 February 2020, NRFA advised my associate and Mr Martin as follows:
NRFA will not be relying on the evidence/affidavits of Mr David Cross at the trial commencing on 2 March 2020.
The asserted unfairness of Mr Martin having been advised of that circumstance only in the teeth of the trial gave rise to one of Mr Martin’s three interlocutory applications. I rejected Mr Martin’s application for an adjournment on that premise for the reasons I gave in Martin v Norton Rose Fulbright Australia (No 10) [2020] FCA 281.
Tender of Mr Cross’s several affidavits as admissions
Mr Martin remained unrepresented for the first three days of the trial. However, on day three Mr Cameron of counsel indicated that he anticipated receiving instructions. Subsequently on days four and five he appeared as counsel for Mr Martin.
On the final day of the trial Mr Cameron applied to tender the affidavits of Mr Cross as evidence in Mr Martin’s case. His having done so, I drew Mr Cameron’s attention to the fact that Mr Martin when earlier self-represented had sought assurance from the Court that if he were to tender the affidavits of Mr Cross for the purposes of adducing evidence of what he submitted were admissions it would not be open to NRFA to place any reliance upon those materials. I had declined to provide him with that assurance. I had advised Mr Martin that (T123, lines 16-19):
[i]f there is evidence before the Court for good or ill, the Court takes such consideration of it as it sees fit. The parties can make such submissions as they think appropriate as to the weight, if any, to be given to particular evidence.
Mr Cameron indicated that he was aware of Mr Martin’s earlier expressed concerns but wished nonetheless to proceed with the tender. Out of caution, I gave Mr Cameron the opportunity of an adjournment to seek instructions on the matter from his client who was then giving evidence. Mr Martin however publicly indicated from the witness box, in order to “save some time”, that he felt “much more comfortable about that issue with [the] representation of Mr Cameron” (T219, lines 22-23).
Mr Cameron then re-applied to tender the five affidavits of Mr Cross. Two of those affidavits were as had been affirmed by him on 28 October 2016. The remaining three were as had been affirmed by him on 18 October 2016, 1 February 2017 and 14 December 2018 respectively.
NRFA’s senior counsel Mr Potts SC did not object to the tender of the five affidavits of Mr Cross as evidence in Mr Martin’s case. Mr Cameron did not seek any orders qualifying the use to which the evidence he was seeking to adduce might be put. Accordingly Mr Cross’s five affidavits, as had earlier been proposed to be adduced on behalf of NRFA prior to its late advised decision not to call him as a witness, were taken into evidence for all purposes as Ex A7.
INTRODUCTION TO SAD49/2017
Claims based on alleged false representations
In brief summary Mr Martin claims that during the disputed period (19-23 September 2016) NRFA, acting through its then lawyer and agent Mr Cross, on Monday 19 September 2016 falsely represented to him, via his then legal representatives, that it had “stopped” the filing of the Prohibition Proceeding in order to secure his consent to an adjournment of the FWC conciliation conference. To cover up its initial deception and to mollify Mr Martin in respect of the arrangements to which the parties had since come on Mr Martin’s earlier understanding, on Friday 23 September 2016 NRFA then falsely asserted that it had earlier been too late to “stop” the filing of the Prohibition Proceeding.
Mr Martin submits that by making those representations, upon which he had been induced to act, NRFA (a) committed the tort of deceit and (b) engaged in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) (Competition and Consumer Act 2010 (Cth) Sch 2).
The elements of the tort of deceit are that there is a representation; made with knowledge that it is false or in circumstances where the maker is reckless as to its truth; with the intention that the applicant should act in reliance upon it; and the applicant does act in reliance upon it; and sustains damage as a result: Magill v Magill [2006] HCA 51; 226 CLR 551 (Magill) at [114] per Gummow, Kirby and Crennan JJ.
In its written submissions NRFA cites Gleeson CJ’s observation in Magill at [141] that “the tort of deceit does not set out to compensate people for wounded pride or dignity, or for the pain that results from broken illusions”. I accept that submission. I am satisfied that without proving that he has suffered actual loss in reliance on NRFA’s conduct, Mr Martin cannot make good his case based on the tort of deceit.
Damage is not strictly an element of misleading and deceptive conduct contrary to the ACL. The elements of misleading and deceptive conduct under statute are that a person engages in conduct; in trade or commerce; that is misleading or deceptive or likely to mislead or deceive. However, to obtain the remedies he seeks pursuant to s 236 of the ACL Mr Martin must prove that he has “suffer[ed] loss or damage” because of NRFA’s conduct. That requires him to establish that he would have been in a better position had he not been misled. As McHugh, Hayne and Callinan JJ observed in Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494 at [48]:
48.A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted …
In oral submissions, Mr Potts conceded that “one could, in theory, have a declaration of a contravention of section 18” (T269, lines 26-27). However, he submitted as follows (T269, line 41-T270, line 17):
Mr Potts SC:But they don’t seek any other remedy under that Act, your Honour; that’s the point. So if one has the pleadings in SAD49 of 2017 which are in volume 2 of the court book, one has the originating application at tab 74. I think your Honour has volume 2 at tab 74, and there your Honour has at page 338 the originating application in that proceeding. And at page 340 your Honour has the relief sought, and your Honour sees prayers 1 to 4 are all monetary relief, and your Honour sees in 5 it’s made clear that it’s sought at common law and under section 236 of the Australian consumer law. So there is no non-compensatory or damages-style relief sought under the Australian consumer law. And so having sued us for damages under 236 they have to prove some loss. It’s not the gist of the action in the same way as a tort is …
His Honour: Yes.
Mr Potts SC:… that if there were some utility and if it were claimed, your Honour might be able to make a declaration that there had been misleading or deceptive conduct in contravention of the section. But I’m almost certain – there is certainly authority at the Full Court level or at a Court of Appeal level which says one shouldn’t make a declaration of, for example, a breach of duty of care as a signpost along the way to a finding about damages for negligence. Now, that may be a slightly inapt analogy, but there is no claim simply, for example, for a declaration that something that was done was misleading or deceptive.
I accept that submission. Whether Mr Martin has actually suffered any prejudice or disadvantage by reason of his reliance on NRFA’s conduct is thus potentially relevant in respect of not only the common law but also the statutory basis of this aspect of proceeding SAD49/2017.
Claim based on NRFA instituting and prosecuting proceeding NSD1610/2016
Mr Martin claims that in commencing proceeding NSD1610/2016 and prosecuting that proceeding in the manner in which it did, NRFA committed the tort of abuse of process. It is convenient first to identify the basic elements of that tort.
In PNJ v The Queen [2009] HCA 6; 252 ALR 612, French CJ, Gummow, Hayne, Crennan and Kiefel JJ observed at [3]:
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a) the invoking of a court’s processes for an illegitimate or collateral purpose;
(b)the use of the court’s procedures would be unjustifiably oppressive to a party; or
(c)the use of the court’s procedures would bring the administration of justice into disrepute.
(Emphasis added).
In respect of whether the Court’s processes have been invoked for an illegitimate or collateral purpose, I am satisfied that I am to be guided by what had earlier been said in Williams v Spautz [1992] HCA 34; 174 CLR 509 (Spautz). In that decision the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) stated (at 523) that it is central to the tort of abuse of process that “the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers”.
Their Honours held (at 529) that it is enough that the person alleging an abuse of process show that the “predominant purpose” (emphasis in original) of the other party in using the legal process has been one other than that for which the process has been designed.
Further, for the reasons stated by Brennan J in Spautz at 535 as applied in Lunt v Victoria International Container Terminal Limited [2020] FCAFC 40 (accepting that special leave has been given in respect of the latter decision, but in limited terms which I do not understand to challenge the correctness of Brennan J’s observation in that limited regard), I proceed on the basis that:
[t]here is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose – or motive – which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include – at least to any substantial extent – the obtaining of relief within the scope of the remedy.
Actual damage is an element of this tort (Bayne v Blake (No 1) [1909] HCA 55; 9 CLR 347 at 355 per Griffith CJ).
FACTUAL FINDINGS IN SAD49/2017
Chronology
As noted above, the disputed events that are the subject of SAD49/2017 occurred over the period from Monday 19 September 2016 to Friday 23 September 2016 inclusive. However, the parties are also in dispute as to the context in which those events are to be understood.
Mr Martin relevantly submits that:
77.The inter partes correspondence between Harmers and the Respondents speaks for itself on the topic of the proposed terms for any agreement to undergo private mediation. It could hardly have been made any clearer in the parties’ correspondence that a private mediation would require both parties to suspend progress of their foreshadowed litigation: the Applicant by consenting to an adjournment of the conciliation conference, and the Respondent by not commencing the ‘Prohibition Proceeding’ until such time as the private mediation had failed to achieve a compromise.
78.The contemporaneous email records corroborate that the Respondents clearly had the same understanding as the Applicant with respect to the terms of the deal being struck for private mediation, what it would entail for the anticipated litigation, and the status of the negotiations. Specifically, the Respondents well understood that participation in a private mediation would, in attention to resulting in the adjournment of the FWC conciliation conference, also preclude the commencement of the Respondents’ foreshadowed proceedings in the Federal Court.
(Footnotes omitted).
By contrast, NRFA disputes that the common understanding of the parties was that NRFA would suspend the institution of the Prohibition Proceeding while the mediation was on foot. In that regard, NRFA submits that:
The terms of the agreement to mediate were explicitly recorded in writing, save as for specific outstanding terms regarding location and costs which were initially disputed but subsequently agreed.
…
While the parties had agreed a term that the FWC would be notified of NRFA’s intention to litigate the jurisdictional issue if agreement at mediation was not reached, no term was negotiated and agreed to the effect that NRFA would abstain from filing the proceedings until such time.
(Footnotes omitted).
Against those submissions, it is helpful to identify a chronology based on objective documentary evidence (predominately in the form of emails) to which the parties have drawn the Court’s attention as relates to the relevant negotiations.
Mediation negotiations chronology
(a)On 22 August 2016, NRFA sent Harmers an email that included a letter and draft originating documents for proceeding NSD1610/2016 (RCB24). The letter includes the following passage:
The Fair Work Commission has no jurisdiction over Norton Rose Fulbright Australia, or any of its partners, nor any jurisdiction to entertain the FW application, for the reasons set out in the enclosed settled, but as yet unfiled, Application and Statement of Claim.
(b)On 26 August 2016, Harmers sent a letter to NRFA including the following passage (RCB43):
6.… we do not intend to engage in any further correspondence in relation to these issues as we do not consider this to be in the interests of resolving the dispute. To this end, we request your consent to seek an adjournment of the Fair Work Commission Conciliation Conference, on the basis that the parties meet for a private mediation to resolve the matter. Should the matter not resolve at such private mediation, both parties reserve their rights to pursue any action they consider appropriate …
(c)On 12 September 2016, Mr Cross sent a letter by email to Harmers which included the following passage (RCB55):
In relation to the second paragraph of your letter, the firm is prepared to mediate privately subject to all of the following conditions being agreed and adhered to:
(1)Within 24 hours of acceptance of this offer, the parties will jointly notify the FWC that:
(a)the Respondents contend that the jurisdiction of the FWC has not been validly invoked by the Applicant, and that the parties will endeavour to reach some agreement by private mediation, failing which the issue of litigation will be litigated in the Federal Court of Australia;
(b)the Respondents will serve any Federal Court proceedings on the FWC …
This offer is open until 5 pm 14 September 2016.
(d)On 13 September 2016, Harmers by email sent a letter to Mr Cross in the following terms (RCB58-59):
…
Our client is willing to agree to private mediation on the terms you have stipulated, save for the variations he would propose as outlined below by reference to the numbered paragraphs in your letter:
1.The joint communication with the Fair Work Commission should for the sake of clarity state that in the event that the parties do not reach agreement in the private mediation, the Respondent proposes to litigate the issue of jurisdiction in the Federal Court of Australia.
2.Our client is prepared to agree to your preferred mediator in Peter Jacobson QC.
3.As our client is willing to accede to your preferred mediator (among other terms you have stipulated) it is appropriate that Norton Rose Fulbright Australia meet the mediator’s costs (and associated costs) in full. By participating in the mediation, our client will effectively forego an immediate opportunity to pursue alternative dispute resolution via a Fair Work Commission conciliation conference that would not involve any substantial additional cost. Further, our client has already incurred unnecessary additional costs on account of the firm declining earlier proposals for mediation, the earliest of which was made over two months ago on 12 July 2016.
4.Our client is prepared to agree to your client’s required conditions for the exchange of position papers prior to the mediation. For the avoidance of doubt, we understand your proposal as to timing for provision of the position paper to be a reference to five (5) business days. We note for completeness that Mr Jacobson QC is likely to appreciate also being provided by each party with a sensibly confined bundle of relevant background documents (for example, the firm’s Constitution may well be considered relevant). We will be content to confer further with you in good faith in relation to this issue once we have been advised as to Mr Jacobson QC’s preference in this regard.
5.A one day mediation occurring within 21 days of the deadline for submission of the position paper is suitable to our client, subject to ascertaining the availability of Mr Jacobson QC. Given the short notice of mediation that you would seek to impose on our client, and the fact that Mr Jacobson’s chambers are located in Sydney, as is the firm’s head office, and our client has limited scope at present due to family responsibilities to travel from where he is residing in regional South Australia, our client considers Sydney to be the most feasible venue for the mediation.
6.As your participation will be entirely voluntary it does not seem strictly necessary that this condition be the subject of specific agreement. Our client does not intend to propose any additional terms for the conduct of the mediation that would restrict your ability to terminate the mediation in the manner you have described. If your client requires that this term be specifically agreed, however, in light of the costs to be thrown away and the potential discourtesy to Mr Jacobson QC in the unlikely event that this should occur, and the fact that the parties will have informed the Fair Work Commission that they will be endeavouring to reach some agreement, it would be appropriate that both parties give their undertaking that they will not enter the negotiations with an intention to terminate the mediation in this manner and would only exercise their right to do so in good faith.
On the basis of the matters set out above, our client is prepared to participate in the private mediation as proposed.
Please confirm by 5pm on 14 September 2016, that you find these proposed variations to the terms acceptable.
(e)On 13 September 2016 at 2:59pm, Mr Cross sent an email to certain of his colleagues within NRFA advising (Ex A9, p 2):
I have contacted the FWC … I told the person that we have not taken any step in the FWC proceeding because we contend that the first respondent (the firm) is not amendable to the tribunal’s jurisdiction because it is a partnership and the matter is not connected with a referring State. I advised that we were considering an application to the Federal Court for prohibition. I also advised that this issue had been raised with the applicant and that the parties were considering a private mediation. If that came about then the parties would jointly ask that the matter in the FWC stand adjourned for a period.
She told me that we had to file a response and there is no exception. I repeated that we did not want to take a step in the matter that might then preclude us from approaching the Federal Court. She said that there is a box on the response form where we can identify the existence of a dispute over jurisdiction. I said that the box is intended to capture an objection based on the applicant’s eligibility – eg. the applicant is not an employee or independent contractor. Whilst that is an issue here, there is also an issue about FWC’s power in relation to the first respondent. By completing the form we may be taken to have conceded that issue …
(f)On 14 September 2016, Mr Cross sent a letter to Mr Harmer which included the following passage (RCB61):
We refer to your letter of 13 September 2016.
…
We agree with what is proposed in numbered paragraphs 1 and 4 of your letter dated 13 September 2016.
We insist on the matters set out in numbered paragraphs 3, 5 and 6 of our letter dated 12 September 2016.
(g)On 15 September 2016 at 10:07am, NRFA’s managing partner Mr Spanner (who had effected Mr Martin’s termination) emailed his NRFA colleague Mr Harvey in the following terms (Ex A9, p 4):
Will you follow up with David [Cross] to lock down a mediation date and keep the FWC at bay. The later it is into October or into November does not bother me.
(h)On 15 September 2016, Harmers wrote a letter to NRFA which included the following passages (RCB76-77):
We refer to your letter of 14 September 2016.
It is unreasonable for you to insist upon conditions without any attempt to explain what that is the case.
…
Our client remains prepared to engage in the private mediation proposed, on the following basis.
1. Terms 1, 2 and 4 are as agreed.
2. The mediation is to be held in Sydney;
3.The firm will meet the cost of the mediator and all other associated costs in full;
4.If the parties achieve a financial settlement at or immediately following the mediation, our client will reimburse 50% of the mediator provided it is deductible from the settlement monies.
If those terms are not agreed by your client, we would seek as a matter of urgency that you confirm how you propose to address your ongoing non-compliance with the Rules of the Fair Work Commission in relation to the filing of a Response and attendance at the listed conciliation conference …
It appears uncontentious, albeit unexplained, that NRFA did not receive or come to know about Harmers’ letter of 15 September 2016 until informed of it on 19 September 2016 (RCB75).
(i)On 15 September 2016 at 9:49am, the FWC sent an email to NRFA advising that its response to Mr Martin’s general protections application was overdue. At 11:55am, Mr Cross emailed his colleagues within NRFA with respect to that correspondence advising (Ex A5, p 1):
… Leave it with me. Just waiting for Harmers to respond with final acceptance of mediation arrangements and then there will be a joint email to FWC asking to adjourn the telephone conference thing.
(j)On 15 September 2016 at 6:25pm, Mr Cross sent an email to a number of his colleagues within NRFA advising (Ex A5, p 1):
Nothing has come in from Harmers to confirm acceptance of the mediation arrangements.
The FWC teleconference is scheduled for Tuesday 20 September and in order not to show the FWC discourtesy we really need to tell them tomorrow which way it is going to go: either (1) we have commenced action for an order of prohibition and so the matter must be stood down or (2) there is joint agreement that the matter should be adjourned pending mediation.
Wayne Muddle believes we should file in the Federal Court tomorrow.
(Emphasis added).
(k)On 19 September 2016 at 10:27am, Harmers sent Mr Cross a letter by email that included the following passages (RCB63-64):
On 22 August 2016 you wrote to us to assert that the Fair Work Commission does not have jurisdiction to deal with the dispute and threatened to file injunctive proceedings in the Federal Court on that basis on 26 August 2016.
You have not filed or otherwise progressed the foreshadowed proceedings, including by filing a ‘Genuine Steps’ Statement, notwithstanding extensive discussion in correspondence on that issue. Nor have you filed a Response to the Application. We are unaware of whether you have provided any indication to the Fair Work Commission as to whether you intend to participate in the conciliation conference tomorrow. You have not informed us of your intentions, notwithstanding the fact that we urged you to confirm your position in our letters of 9 September 2015 and 15 September 2016.
Your continuing failure to comply with the tribunal’s procedures is unacceptable. Whether or not you still harbour intentions of filing proceedings in the Federal Court, the delay in clarifying your intention has been prejudicial to our client’s interests in terms of cost and delay, not to mention discourteous to the Commission.
Since 26 August 2016, our client has sought to arrange a private mediation in order to provide an alternative means of progressing the matter notwithstanding your lack of diligence in doing so via the procedures of the tribunal, and your explained delay in commencing alternative litigation first threatened on an urgent basis almost a month ago …
As the above chronology shows, a mediation agreement was not yet in force on the morning of Monday 19 September 2016. It is however clear that such an agreement was in the common contemplation of Harmers (on behalf of Mr Martin) and NRFA and that, on that common contemplation, certain terms had been settled. One matter upon which the parties had settled was Term 1 of what they intended to become their agreement. As agreed, it was expressed as follows:
1.The joint communication with the Fair Work Commission should for the sake of clarity state that in the event that the parties do not reach agreement in the private mediation, the Respondent proposes to litigate the issue of jurisdiction in the Federal Court of Australia.
NRFA’s submissions emphasise that neither party had suggested a term as would have expressly prohibited NRFA from initiating legal proceedings to contest the jurisdiction of the FWC while the private mediation was on foot. I am satisfied however that, as Mr Martin submits, it is a necessary inference to be drawn from agreed Term 1 (to which NRFA had assented) that while that party was foreshadowing that it would institute such proceedings if mediation were unsuccessful, it would not “litigate the issue of jurisdiction [of the FWC] in the Federal Court of Australia” until after the mediation had concluded.
Affidavit of Michael Harmer Affirmed 25 October 2016
Evidence Basis for Objection Ruling The final sentence of paragraph [9]:
In this correspondence Harmers, made repeated requests for a private mediation to resolve the dispute.
NRFA object to the admission of this sentence on the basis that it is an unsupported assertion which is not reasoned or explained in a manner which is required as a precondition to admissibility.
NRFA further object to the admission of this sentence on the basis that it is hearsay.
Insofar as it is premised on this sentence being mere assertion, the objection is dismissed.
The objection on the basis of hearsay is also dismissed. In the absence of NRFA requiring Mr Harmer for cross-examination, the Court infers that this statement is drawn from Mr Harmer’s own knowledge.
The second sentence of paragraph [19]:
… to allow Mr Cross to get instructions on a potential offer of settlement in the amount of one year’s salary for Mr Martin (approximately $295,000).
NRFA object to the admission of this sentence in reliance on ss 131(1) and 138 of the Evidence Act.
The objection premised on s 131(1) is dismissed on the basis that NRFA having relied upon a Calderbank offer made on 24 August 2016 in support of Mr Martin’s asserted unreasonableness in maintaining his application before the Fair work Commission and in relation to costs in proceeding NSD1610/2016, s 131(2)(h) of the Evidence Act is now engaged such that this evidence is admissible in that proceeding. The Court notes however that the evidence is not admissible in proceeding SAD49/2017.
To the extent that it is asserted that the evidence was obtained improperly by reason of a breach of the mediation agreement, the Court is once again satisfied that its probative value outweighs the disadvantages of permitting its admission.
The last sentence of paragraph [19]:
During this discussion I also foreshadowed that should the matter not settle, Mr Martin was likely to purse his claim in an alternate forum namely that Australian Human Rights Commission.
NRFA object to the admission of this sentence on the basis that it is an unsupported assertion which is not reasoned or explained in a manner which is required as a precondition to admissibility.
NRFA further object to the admission of this sentence in reliance on ss 131 and/or 138 of the Evidence Act.
The objection is upheld on the basis that the Court is not satisfied that the evidence is relevant.
Paragraph [20] in its entirety:
On 11 October 2016, I am informed that Madeline Boyd of Harmers had a without prejudice conversation with Mr Cross where Mr Cross advised Ms Boyd that he did not have instructions to offer one year’s salary to settle the dispute. However, he stated that he had received instructions that the maximum he would be able to offer was $125,000.00.
NRFA object to the admission of this sentence in reliance on s 131(1) of the Evidence Act, which precludes the adducing of evidence of “a communication that is made between persons in dispute, or between on or more persons in dispute and a third part, in connection with an attempt to negotiate a settlement of the dispute”.
NRFA further object to the admission of this sentence on the basis that it is hearsay, and that it is an unsupported assertion that is not reasoned or explained in a manner which is required as a precondition to admissibility.
The objection is upheld on the basis that the evidence is hearsay, and there is nothing presently before the Court as would suggest that any of the exceptions to the hearsay rule in the Evidence Act are relevantly engaged.
Paragraph [21] in its entirety:
On 13 October 2016, I am informed that Ms Boyd of Harmers, had another telephone discussions with Mr Cross where it was agreed that the parties did not require the mediator for 14 October 2016.
NRFA object to the admission of this sentence on the basis that it is hearsay, and that it is an unsupported assertion that is not reasoned or explained in a manner which is required as a precondition to admissibility. The objection is upheld on the same basis as the previous objection. Affidavit of Michael Harmer Affirmed 4 November 2016
Evidence Basis for Objection Ruling The bolded lines of [10], including the annexure:
Prior to the mediation attended by the parties, Harmers on behalf of Mr Martin sent a mediation paper to NRFA which clearly set out Mr Martin’s position in relation to the question of jurisdiction objection. A copy of the first two pages of the mediation paper is annexed and marked “MDH-17”. The mediation proceeded substantially on the basis that the jurisdiction was not a determinative issue in the matter and the parties should direct their discussions of the substance of the dispute.
NRFA object to the admission of this paragraph in reliance on ss 131(1) and 138 of the Evidence Act. The objection premised on s 131(1) is dismissed on the basis that NRFA having relied upon a Calderbank offer made on 24 August 2016 in support of Mr Martin’s asserted unreasonableness in maintaining his application before the Fair work Commission and in relation to costs in proceeding NSD1610/2016, s 131(2)(h) of the Evidence Act is now engaged such that this evidence is admissible in that proceeding. The Court notes however that the evidence is not admissible in proceeding SAD49/2017.
To the extent that it is asserted that the evidence was obtained improperly by reason of a breach of the mediation agreement, the Court is once again satisfied that its probative value outweighs the disadvantages of permitting its admission.
Paragraph [11] in its entirety:
In paragraph 19 of my Earlier Affidavit, I refer to a discussion with Mr Cross at the private mediation. For completeness I note that this conversation took place towards the end of the mediation process on 7 October 2016, with Mr Cross and the mediator Mr Peter Jacobson. In an attempt to progress resolution of the matter, in this conversation I said words to the effect of:
Mr Harmer: I want to make it perfectly clear as to what our course will be if the matter cannot resolve at mediation. We will withdraw the Fair Work Commission application and avoid any fight over the pending compulsory conciliation at the Fair Work Commission and the issue of employee vs partner. We will lodge the exact same issues with the Australian Human Rights Commission and will run the discrimination and victimisation, in the alternative, whether as employee or partner.
We will support Tom throughout that process. You need to understand that this matter will not go away and will ultimately reach a hearing on the merits if it cannot be resolved amicably.
NRFA object to the admission of this paragraph in reliance on ss 131(1) and s 138 of the Evidence Act. The objection is upheld on the basis that the evidence does not appear to be material to the Calderbank offer which NRFA submit that Mr Martin was unreasonable in rejecting, and otherwise appears not to be relevant to any matter pleaded in these proceedings.
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