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

Federal Court of Australia

Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641 File numbers: SAD 49 of 2017 NSD 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