Martin v Norton Rose Fulbright Australia

• Jurisdiction: Australia Federal only
• Judge: WHITE J
• Judgment Date: 15 July 2019
• Neutral Citation: [2019] FCA 1101
• Date: 15 July 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Martin v Norton Rose Fulbright Australia [2019] FCA 1101

Appeal from:	Application for leave to appeal: Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96
File number:	SAD 40 of 2019
Judge:	WHITE J
Date of judgment:	15 July 2019
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal against an interlocutory judgment of a Judge of this Court – s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – primary Judge dismissed an interlocutory application of the Applicant concerning issues of discovery and claims of legal professional privilege – whether there is sufficient doubt about the correctness of the primary Judge’s decision in the light of conflicting first instance decisions – leave to appeal granted in respect of limited grounds.
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law, s 18 Fair Work Act 2009 (Cth) Pt 3‑1 Federal Court of Australia Act 1976 (Cth) s 24(1A) Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) rr 1.21, 29.08
Cases cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[1981] HCA 39; (1981) 148 CLR 170 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) v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 House v The King[1936] HCA 40; (1936) 55 CLR 499 Lawrie v Carey DCM [2016] NTSC 23 Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd (Legal Privilege) [2017] VSC 704 R v Bell; ex parte Lees[1980] HCA 26;(1980) 146 CLR 141 Re Southland Coal Pty Ltd [2006] NSWSC 899 Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 Rinehart v Rinehart [2016] NSWCA 58 Samsung Electronics Co. Ltd v Apple Inc. [2013] FCAFC 138 Seven Network Ltd v News Ltd [2005] FCA 142 Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 The Attorney‑General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500 Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54
Date of hearing:	23, 24 and 27 May 2019 and determined on the papers
Date of last submissions:	7 June 2019 (Respondent). The Applicant did not file any further submissions.
Registry:	South Australia
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	82
Counsel for the Applicant:	The Applicant appeared in person on 23 May 2019 but did not attend on 24 and 27 May 2019
Counsel for the Respondent:	Mr P Braham QC with Ms B Ng
Solicitor for the Respondent:	King & Wood Mallesons

ORDERS

		SAD 40 of 2019
BETWEEN:	THOMAS PATRICK MARTIN Applicant
AND:	NORTON ROSE FULBRIGHT AUSTRALIA Respondent

JUDGE:	WHITE J
DATE OF ORDER:	15 july 2019

THE COURT ORDERS THAT:

1. The Applicant is granted leave to appeal with respect to Grounds 5, 6 and 7 contained in the draft Notice of Appeal attached to the Application for Leave to Appeal filed on 25 February 2019.

2. The Applicant is refused leave to appeal with respect to Grounds 1 to 4 inclusive and with respect to Ground 8.

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

REASONS FOR JUDGMENT

WHITE J:

1. On 11 February 2019, Charlesworth J dismissed an interlocutory application of the applicant (Mr Martin) which concerned, principally, issues of discovery: Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96. Mr Martin now seeks leave to appeal against that judgment.

Matters of background

2. In the underlying proceedings, Mr Martin seeks damages from the firm of Norton Rose Fulbright Australia (NRFA), following the termination of his staff partnership in that firm on 15 July 2016. There is an issue as to the correct characterisation of Mr Martin’s relationship with NRFA, and I am using the term “partnership” and its cognates for convenience only and without intending any pre‑judgment of that issue.

3. None of Mr Martin’s claims concern the actual termination of his staff partnership. Instead, they arise out of steps taken subsequent to that termination. Those steps, as alleged by Mr Martin, were:

1. on 5 August 2016, Mr Martin commenced in the Fair Work Commission (the FWC) a General Protections Application under Pt 3‑1 of the Fair Work Act 2009 (Cth) (the FW Act) seeking relief in respect of the termination. The respondents to that application were NRFA and four of its partners. A conciliation conference in those proceedings was listed before the FWC on 20 September 2016;

2. between 26 August 2016 and 19 September 2016, Mr Martin, by his then solicitors, Harmers, and NRFA engaged in discussions about participation in a private mediation;

3. on 21 September 2016, NRFA commenced proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth) (NSD1610/2016) seeking an order prohibiting the FWC from proceeding with Mr Martin’s General Protections Application, on the basis that it lacked jurisdiction to do so. NRFA had sent the Originating Application, Statement of Claim and a Genuine Steps Statement to the Court on 19 September 2016 at 10.59 am, but they were not accepted for filing until 21 September 2016;

4. on 19 September 2016, the FWC, at the request of the parties, adjourned the listed conciliation conference to 19 October 2016;

5. the proceedings in NSD1610/2016 were served on Harmers on 23 September 2016;

6. on 7 October 2016, the parties participated in a private mediation, but did not reach a concluded settlement;

7. on 17 October 2016, Mr Martin discontinued his General Protections Application in the FWC; and

8. on 18 October 2016, at the First Case Management Hearing in NSD1610/2016, NRFA sought an order that Mr Martin pay the costs of those proceedings.

4. Mr Martin’s claims, summarised at a high level of generality, are as follows. He seeks damages in respect of an alleged contravention of s 18 of the Australian Consumer Law (the ACL). Mr Martin alleges that statements and conduct by members of NRFA in relation to the negotiation of the agreement for the private mediation were misleading or deceptive, were made in order to induce him to continue the negotiation of terms for the private mediation, and were made to provide a basis on which NRFA could “force the adjournment” of the conciliation conference in the FWC. He also alleges that representations made by NRFA when serving the...