Martin v Norton Rose Fulbright Australia (No 11)

• Jurisdiction: Australia Federal only
• Judgment Date: 16 November 2020
• Neutral Citation: [2020] FCA 1641
• Date: 16 November 2020
• Court: Federal Court

Federal Court of Australia

Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641

File numbers:	SAD 49 of 2017NSD 1610 of 2016
Judgment 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...