FEDERAL COURT OF AUSTRALIA Martin v Norton Rose Fulbright Australia (No 10) [2020] FCA 281 File numbers: NSD 1610 of 2016 SAD 49 of 2017 Judge: KERR J Date of judgment: 4 March 2020 Date of publication of reasons: 5 March 2020 Catchwords: PRACTICE AND PROCEDURE – application for adjournment of trial premised on respondent having given notice of intention not to call key witness only two weeks before trial due to commence – asserted prejudice to interests of unrepresented applicant who had intended to tender documents through cross-examination of witness – application advanced only after commencement of trial – application dismissed Cases cited: Jones v Dunkel [1959] HCA 8; 101 CLR 298 Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA Date of hearing: 3 March 2020 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr Martin appeared in person Counsel for the Respondent: Mr Potts SC and Ms Laing Solicitor for the Respondent: King & Wood Mallesons ORDERS SAD 49 of 2017 BETWEEN: THOMAS PATRICK MARTIN Applicant AND: NORTON ROSE FULBRIGHT AUSTRALIA Respondent JUDGE: KERR J DATE OF ORDER: 4 MARCH 2020 THE COURT ORDERS THAT: 1. The Applicant's interlocutory application for an adjournment of the trial set down for 2-6 March 2020 be dismissed. 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 JUDGE: KERR J DATE OF ORDER: 4 MARCH 2020 THE COURT ORDERS THAT: 1. The Respondent's interlocutory application for an adjournment of the trial set down for 2-6 March 2020 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) KERR J: 1 Mr Martin has applied for an adjournment of his week long trial which commenced on Monday 2 March 2020 but which to date has been occupied with consideration of other interlocutory applications. He advances that application on the basis that Norton Rose Fulbright Australia (NRFA) gave late notice to him of its intention not to call a witness, or rely on affidavits prepared by that witness, as it had earlier given him to understand had been its intention. It appears to be uncontentious that the date of that notice was 19 February 2020. NRFA confirmed its revised intention in a draft timetable for the concurrent trial of NSD1610/2016 and SAD49/2017, which it filed on 20 February 2020. Mr Martin submits that he had until that point - just two weeks before the trial was to commence - reasonably relied on NRFA's representations that it intended to call Mr Cross in the proceeding and to rely upon the evidence contained in his four affidavits as have been filed in these proceedings. Mr Martin submits - and I accept it to be the fact - that he had, on that understanding, filed objections to certain parts of Mr Cross' anticipated evidence. 2 Pressed to identify the prejudice that he would be liable to suffer because of those changed circumstances, Mr Martin identified specifically that in reliance on the reasonable expectation created by NRFA he had intended to tender certain emails produced in discovery through Mr Cross during cross-examination. He submits that in those circumstances NRFA should be accepted to be estopped from conducting their case on a new basis unless he, as an unrepresented party, can be provided with an adequate opportunity first to obtain advice and re-evaluate how he might adduce certain evidence that he had anticipated he would be able to adduce in the course of cross-examination of Mr Cross. 3 In my opinion it must be accepted, having regard to the long history of these matters and the manner in which they have been hitherto conducted, that until NRFA advised Mr Martin of its changed intention on 19 February 2020 Mr Martin could reasonably have anticipated that Mr Cross would be called on NRFA's behalf and his affidavits read in this trial. That is so notwithstanding the submission made by Mr Potts SC, counsel for NRFA, that Mr Martin was not entitled to rely on such anticipation because it is always open to a party not to call a witness whose evidence had been foreshadowed. There are particular circumstances in the present case as would suggest otherwise. Mr Martin set out in his oral submissions the many occasions in which NRFA had manifested its intention to call Mr Cross and read his affidavits, from NRFA on 13 February 2017 relying upon the affidavit evidence of Mr Cross at a hearing before Wigney J in NSD1610/2016 to it later calling Mr Cross as its sole witness in these proceedings. I did not take Mr Potts to have put that history in issue. 4 It may be accepted that when those circumstances changed that presented Mr Martin with a potential unanticipated challenge. There are two potential disadvantages that NRFA's change of position presented to Mr Martin. First, as he identified, it required him to formulate a different basis for the admission of the emails he had planned to tender through Mr Cross: in circumstances in which Mr Cross, as a party to them, would have been able to vouch for their authenticity. Second, he would lose any prospect that through cross-examination he might elicit admissions favourable to his case. 5 I place no weight at all upon the loss of the latter opportunity. Mr Martin effectively alleges fraud on the part of NRFA. He carries the burden of proof to the requisite standard in that regard. NRFA cannot be required to conduct its case such that Mr Martin might elicit an admission to bolster his own case: even assuming, without lending any support to that suggestion, that such an admission might be made. 6 As to the asserted difficulties of tendering certain emails discovered by NRFA by a different mechanism, I accept that on 19 February 2020 Mr Martin was faced with the unanticipated necessity of formulating a different basis for their admissibility if they were to be adduced in evidence. However, the circumstances in which he then found himself must be understood in context. On 24 December 2019, I had made procedural orders including the following: 4. The trial dates of proceedings SAD49/2017 and NSD1610/2016, to be heard concurrently, be confirmed for 2-6 March 2020 in Adelaide. 5. Mr Martin is to deliver to the Adelaide Registry of the Court and to Norton Rose Fulbright Australia a paginated, indexed Supplementary Court Book in hard and soft copy by 4.00pm on 21 January 2020. 6. Mr Martin, the Applicant in SAD49/2017, file and serve a written outline of submissions in relation to that proceeding (limited to 10 pages) and list of authorities, prepared in accordance with Practice Note CPN-1 and Practice Note GPN-AUTH no later than 4.00pm on 10 February 2020. 7 On the date on which he was made aware of NRFA's decision to not call Mr Cross (19 February 2020) Mr Martin had not, and indeed still has not, delivered a supplementary court book as Order 5 required him to do At that date Mr Martin had not, and still has not, filed and served any written submissions as he was entitled to do pursuant to Order 6. 8 Mr Martin acknowledged that the emails which, as he submits, he intended to adduce through Mr Cross in cross-examination are not included in the court book prepared and filed by NRFA. He submitted however that they are documents that were discovered by NRFA. Mr Martin submitted that if he were granted a relatively short adjournment as would allow him to produce an affidavit and written submissions further articulating his case for an adjournment of this trial, he would exhibit the emails on which he had intended to rely on as exhibits so that the Court could be informed as to their significance. Mr Martin submitted that if that course were adopted, there would still be time for the trial to conclude within the week. 9 However, the Court having indicated that it would not permit further delay, in his oral submissions Mr Martin then failed to descend to a description of the subject matter of the emails he submitted that he had planned to adduce into evidence through Mr Cross. The Court thus does not know - and has no means of assessing - what, if any, real prejudice Mr Martin might suffer: even assuming that he would have been entitled to put such materials into evidence through Mr Cross. I use the term "assuming" in that regard because there may have been objection had Mr Martin sought to adduce evidence that he had not included in a supplementary court book: notwithstanding that he had had leave to file one. Requiring parties to file in advance the materials upon which they may seek to rely at trial is an aspect of modern court practice and is designed to discourage trial by ambush. 10 Mr Martin submits that at the time that he received notice of NRFA's changed position he had other pressing matters in relation to this litigation circling in his mind , including whether to seek leave from the High Court to quash my earlier decision in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5. He submits that such reasons, when advanced by an unrepresented party, are open to be accepted as a reasonable excuse for not advancing an application for an adjournment prior to the commencement of the trial. The issue of delay, he submits, should not be regarded by the Court as a significant one given the circumstances. 11 On behalf of NRFA, Mr Potts submits that the trial should not be delayed. Mr Potts submits that Mr Martin had advanced no proper reason why the Respondent should be denied the opportunity to bring to finality through trial the two proceedings listed for hearing, both of which were filed more than three years ago. As noted above, he submits that any party to litigation has a right to decide which, if any, witnesses they will ultimately call. Mr Potts submits that, assuming Mr Martin might reasonably have expected Mr Cross to be called as a witness until notified otherwise two weeks prior to the trial commencing, Mr Martin had no entitlement to require that that would be the case. Mr Martin was the Applicant in SAD49/2017. That had required him to assume the burden of proving his case. The gravamen of Mr Potts' blunt submission was that there could be no estoppel as would require a respondent to shape its forensic choices to an applicant's interests. 12 As to the prejudice that Mr Martin asserts he would be liable to suffer by reason of the forensic decision by NRFA not to call Mr Cross, it became clear in the course of submissions that notwithstanding NRFA's decision not to call Mr Cross Mr Potts on its behalf intended to adduce as evidence in the trial a number of emails which Mr Cross had sent or received on the basis that those documents were NRFA's business records and thereby admissible as an exception to the hearsay rule. Mr Potts accepted, subject to any proper objection differently premised, that NRFA could not and would not resist Mr Martin having the same entitlement to tender and adduce into evidence any email NRFA had discovered to him that Mr Cross had sent or received. 13 In any event, Mr Potts submitted that Mr Martin had known of NRFA's forensic choice since 19 February 2020. He had not sought an adjournment before the trial had actually commenced, although it had been open to him to do so. Instead, he had done nothing. He should not now be permitted to abort the trial, no matter how he might earlier have anticipated it might have been conducted. 14 I accept Mr Potts' submission that generally a party cannot be precluded from altering its intentions with respect to which, if any, witnesses it will call. However, all litigation involves the interests of more than one party. In my view, the interests of justice may sometimes require that a significant, unanticipated change of position by one party will justify the opposing party being provided with an opportunity to accommodate its interests to the new circumstances. For that reason I concede the possibility that had Mr Martin brought an interlocutory application seeking an adjournment of the five day trial scheduled to commence on 2 March 2020 immediately upon or shortly after he became aware of NRFA's altered position, that application may have been upheld having regard to Mr Martin's more limited capacity as a represented litigant: albeit one who is legally qualified and admitted to practice. However, that is an entirely hypothetical proposition stated in the abstract. The fact is, as Mr Potts submits, that Mr Martin chose to take no such step. Mr Martin's reasons, as advanced, for not taking such a step cannot be accepted as a reasonable explanation. I reject his submission that the delay was not significant in the circumstances. 15 Mr Martin's choice not to file a supplementary court book and to defer his application for an adjournment until after the commencement of the trial bears upon the balance of considerations relevant to the respective prejudice to which the parties would be exposed if his application were granted. It is not open to the Court to accept those considerations as inconsequential. The Respondents assert they stand ready to commence the trial. Mr Martin is not entitled to rely on the consequences of his own default to establish the premise for the present necessity of an adjournment. 16 Moreover, I am left in the dark as to what weight, if any, I should give to Mr Martin's assertion that he will suffer significant prejudice if an adjournment is not granted. I accept that I declined to give him additional time to prepare written submissions and to file an affidavit exhibiting the emails that he asserted would be relevant to that contention. However, Mr Martin has pressed his application on the second morning of the week set aside for the trial. He gave no reason for him not having been prepared to make the application he made orally. He advanced no explanation as to why he was not in a position to identify with any specificity the emails he submits he would be unable to tender, save through cross-examination of Mr Cross. Moreover, given that Mr Potts has accepted (subject to objection on other grounds) that NRFA will not resist Mr Martin tendering into evidence any discovered emails authored by or sent to Mr Cross, the premise for his suffering a significant disadvantage on those grounds is elusive. 17 In the balance, I also take into account that NRFA's forensic choice not to call Mr Cross potentially has consequences not wholly adverse to Mr Martin given the principles enunciated in Jones v Dunkel [1959] HCA 8; 101 CLR 298. Depending on the view I take as to the inferences properly to be drawn having regard to Mr Cross' absence from these proceedings, Mr Martin's case may potentially be strengthened by the application of those principles. 18 In any event, I am not satisfied that Mr Martin has established the interests of justice are balanced in his favour so as to require that this trial, of which he has had long notice, be adjourned. I dismiss his application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate: Dated: 5 March 2020