Martin v Norton Rose Fulbright Australia (No 2)

• Jurisdiction: Australia Federal only
• Judge: CHARLESWORTH J
• Judgment Date: 11 February 2019
• Neutral Citation: [2019] FCA 96
• Date: 11 February 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96

File number:	SAD 49 of 2017
Judge:	CHARLESWORTH J
Date of judgment:	11 February 2019
Catchwords:	PRACTICE AND PROCEDURE – order for discovery – asserted non-compliance with discovery order – where no application to cross-examine deponent of an affidavit verifying a list of documents – whether there is a reasonable basis to believe there are discoverable documents in existence so as to justify orders for the discovery of specific documents ; PRACTICE AND PROCEDURE – legal professional privilege – where legal practitioner is a partner of a law firm to whom the legal advice and services are provided – where the law firm is a party to litigation to which the advice and services relate – whether the legal practitioner lacked professional detachment from the firm and from the subject matter of the claims – role of independence in the assessment of privilege claims –Rich v Harrington [2007] FCA 1987 not followed – whether the Court should inspect documents subject to a privilege claim in circumstances where a lack of independence is alleged ; PRACTICE AND PROCEDURE – legal professional privilege – public policy exception – communications subject to a privilege claim alleged to have been made in furtherance of a wrong involving intentional deceit or abuse of process – where allegations of wrongdoing said to displace privilege are the same allegations of wrongdoing forming the subject matter of the suit – standard of evidence necessary to displace the privilege ; PRACTICE AND PROCEDURE – legal professional privilege – asserted waiver – whether party claiming privilege has adopted an inconsistent approach to privilege claims within its list of documents or otherwise in comparison to the party’s earlier response to a notice to produce – inconsistency not shown – no proper basis for waiver shown
Legislation:	Competition and Consumer Act 2010 (Cth) ss 5, 6, 131, Sch 2 Evidence Act 1995 (Cth) s 125 Fair Work Act 2009 (Cth) ss 340, 345, 351, 352, 365, 368, 386, 370 Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 2.21, 2.22, 2.25, 2.27, 20.11, 20.12, 20.15 Partnership Act 1892 (NSW) Desiatnik RJ, Legal Professional Privilege in Australia (3rd ed, LexisNexis Butterworths Australia, 2017)
Cases cited:	Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A (ACN 123 463 749)) v Sage Group PLC (No 2) (2013) 306 ALR 384 Attorney-General (NT) v Kearney (1985) 158 CLR 500 Balabel v Air India [1988] Ch 317 Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Forbes v Petbarn Pty Ltd [2018] FCA 256 Goldberg v Ng (1995) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 Jones v Treasury Wines Estate Ltd (2016) 241 FCR 111 Mann v Carnell (1999) 201 CLR 1 National Crime Authority v S (1991) 29 FCR 203 Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 R v Bell; Ex parte Lees (1980) 146 CLR 141 Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 Seven Network Limited v News Limited [2005] FCA 142 Seven Network Limited v News Limited [2005] FCA 1551; (2005) 225 ALR 672 Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 State of New South Wales v Jackson [2007] NSWCA 279 Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54
Date of hearing:	6 and 7 December 2018
Registry:	South Australia
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	217
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr Braham
Solicitor for the Respondent:	King & Wood Mallesons

ORDERS

		SAD 49 of 2017
BETWEEN:	THOMAS PATRICK MARTIN Applicant
AND:	NORTON ROSE FULBRIGHT AUSTRALIA Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	11 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The applicant’s interlocutory application dated 19 October 2018 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. On 21 June 2018, Wigney J made an order for non-standard discovery in this action in terms proposed jointly by the parties. The applicant, Mr Martin, alleges that the respondent (a firm) has not disclosed all documents falling within the scope of the order. He also seeks an order for the production of some 267 documents over which the respondent claims legal professional privilege in whole or in part.

2. By interlocutory application dated 19 October 2018, Mr Martin sought 16 orders with respect to these and other issues. The issues arising on the interlocutory application and the conclusions I have reached are broadly summarised at [22] and [27] – [34] below. It follows from the conclusions expressed in those paragraphs that Mr Martin’s interlocutory application must be dismissed.

CONTEXT

3. It is convenient to begin with an explanation of the legal context in which Mr Martin’s interlocutory application is made.

4. Mr Martin is a former staff partner of the law firm Norton Rose Fulbright Australia (NRFA). His position in the partnership was terminated by NRFA on 15 July 2016.

5. On 5 August 2016, Mr Martin lodged an application in the Fair Work Commission (FWC), expressed to be made under s 365 of the Fair Work Act 2009 (Cth) (FW Act). I will refer to that application as the FWC proceeding.

6. Mr Martin named, as first respondent to the FWC proceeding, “Norton Rose Fulbright Australia (a Firm and all partners thereof)”. Four partners were individually named as the second to fifth respondents. By his initiating documents, Mr Martin alleged that, by dismissing him from his position, NRFA contravened ss 340, 345, 351 and 352 of the FW Act. Broadly speaking, those provisions prohibit a person from...