Martin v Norton Rose Fulbright Australia

1. The trial dates of 23-27 September 2019 be vacated.
2. The parties advise the Court of any unavailability for a five day trial during March 2020 by 4.00 pm on Friday 27 September 2019.
3. Costs be reserved.
4. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 These proceedings have been listed for hearing in Adelaide commencing on 23 September 2019. The trial has an estimated length of 5 days. 2 On Thursday 29 August 2019, the parties appeared before me at my direction for case management. 3 The Court advised that it wished to hear from the parties as to whether the trial should proceed on the existing dates, or be adjourned until after a Full Court of this Court had heard and determined an appeal by Mr Martin from an interlocutory judgment of Charlesworth J. In that judgment, her Honour had upheld certain objections made by the Respondent (NRF) to discovery of documents on the basis of legal professional privilege: Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96. 4 On 15 July 2019, White J granted the Applicant leave to appeal on three proposed grounds: Martin v Norton Rose Fulbright Australia [2019] FCA 1101. I indicated to the parties that it was my anticipation that the appeal would be heard in the November Full Court and Appellate Sitting of the Court. 5 On its own motion, the Court indicated to the parties its preliminary view that it was a challenging proposition for the trial to proceed prior to determination by the Full Court regarding what might be relevant evidence. The Court further indicated that to effectively split the trial against the contingency that the matter might be subsequently reopened to receive new evidence was not a desirable course. 6 Mr Martin (the Respondent in NSD1610/2016 and the Applicant in SAD49/2017) appeared in person. He submitted that it would be "ludicrous" for the Court to proceed with a trial in September when there was an appeal pending in the Full Court regarding interlocutory issues of discovery. 7 Ms Ng, counsel for NRF, submitted that the hearing should nonetheless commence on 23 September 2019. 8 Ms Ng submitted that, notwithstanding Mr Martin having been granted leave to appeal by White J, he had taken no steps to institute an appeal. Mr Martin had not filed a notice of appeal within the 28 days provided for by the Federal Court Rules 2011 (Cth) (Rules) after leave had been granted. There was no application by Mr Martin to extend time. The Court was entitled to proceed on the basis that, no appeal having been filed, there was no live issue. It was entitled to accept that the decision of Charlesworth J was correct and not in dispute. 9 In response, Mr Martin informed the Court that he was still intending to file his notice of appeal. 10 I observed to Ms Ng that there were no materials in evidence before the Court to suggest Mr Martin's appeal had been abandoned. 11 Ms Ng accepted that the Court could not proceed on the basis that Mr Martin's appeal had been abandoned, but submitted that his failure to progress his appeal in accordance with the overriding purpose of the Rules should result in the hearing commencing on 23 September 2019 remaining listed. Ms Ng submitted that it was apparent from the Court file that no notice of appeal had been filed and that there had been no application to extend time. 12 I observed to Ms Ng that the course she was proposing still involved potential difficulties, including that, if Mr Martin were to make the application to extend time he had suggested he intended to make, the position might well revert to that which I had understood to apply: that an appeal was formally before the Full Court. I indicated that in those circumstances my preliminary view remained that I was not disposed to accept her submission that it would be appropriate to proceed with the trial pending the resolution of those matters, notwithstanding the inconvenience that delay might occasion her client. 13 The Court's preliminary observation notwithstanding, Ms Ng pressed NRF's submission that the trial should not be adjourned. She referred to correspondence from the Court registry to the parties dated 31 July 2019, following leave to appeal having been granted to Mr Martin. That correspondence advised that the Court was preparing to list matters in the November Full Court and Appellate Sitting period and sought, inter alia, the parties' assistance in identifying counsel to be instructed and providing an estimate of the time of the hearing. Ms Ng's instructors had replied, but Mr Martin had not. On 9 August 2019, the registry had sent an email to Mr Martin in the following terms: Dear Mr Martin Further to the below, I do not appear to have received a response from you, and would be grateful for your response as soon as possible. Please note that any unavailable dates cannot be taken into account in listing this matter if they are not notified to the Court by midday on Monday, 12 August 2019. 14 Ms Ng noted that 12 August 2019 was also the date on which Mr Martin had been required to file his notice of appeal. 15 Ms Ng indicated that she was instructed that Mr Martin had not replied to that communication. Ms Ng submitted that Mr Martin had not progressed his appeal, and as there was no extant appeal before the Full Court the matter should remain listed for hearing on the existing timetable. 16 Mr Martin accepted that the matters Ms Ng had referred to were factually correct, but rejected what he described as Ms Ng's prejudicial characterisation of what had occurred. He submitted that the administrative correspondence from the Court had no bearing on whether the appeal was on foot, or whether he was intending to continue with it. If the Court was willing to entertain Ms Ng's position it was a matter requiring evidence and therefore he required an adjournment to respond. 17 The Court advised Mr Martin that the starting position was that a timetable had been set, and it was the Court of its own motion which had raised the issue of whether it would be appropriate to proceed with the trial. 18 Mr Martin then made an oral application that I recuse myself. 19 Having heard submissions in that regard, I dismissed Mr Martin's application for my recusal on the basis that I was not satisfied that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of outstanding issues in this proceeding. I undertook to publish reasons in due course. Those reasons will be published separately. 20 I proceeded on the basis that delaying my consideration as to the date of trial until after publication of those reasons would be undesirable. The parties are entitled to know without delay whether a trial listed to commence in only a few weeks will proceed or not. 21 That is so notwithstanding that Mr Martin, having made submissions in support of my recusal, declined to take any further part in these proceedings and left the court. In his absence, I heard further from Ms Ng. 22 Having heard further from Ms Ng I indicated as follows: … I have considerable sympathy for the position that you advance, Ms Ng, and I note that Mr Martin has not formally sought an adjournment. But I take from what transpired today that he would regard it as ludicrous, as he put it, for the proceeding not to be adjourned, the court having raised it. I asked about actual forensic prejudice because that seemed a significant material consideration. I am troubled by listing this matter for a final disposition in the teeth of a proceeding in the Full Court in which White J has given leave notwithstanding that you have very properly raised that Mr Martin has as yet failed to take steps to secure his entitlement. I would be minded to have this matter relisted at the first occasion possibly in the new year and in an appropriate way with notice to all parties to advise the Full Court of that listing so that if it is possible there be no impediment to that hearing proceeding in whichever way ultimately that matter is resolved whether it be by Mr Martin not pressing his appeal, by the court rejecting his appeal, or by the court accepting it in some part or in all parts. At least in that circumstance the court would be in a position to know precisely where the position stands which is what troubles me that if this goes ahead as listed in September and Mr Martin does seek and secure leave to file a notice of appeal out of time, there is going to be considerable challenges to the way in which this court could fairly dispose of its determination of factual issues and the likelihood without knowing the material, and having no idea what its content is, and whether it's significant or otherwise, but that it might require the court to come back after September to hear further evidence perhaps to permit further cross-examination, and at the very least occasion what is an unprofitable and difficult forensic task of trying to unscramble that omelette. 23 Following further discussion, Ms Ng then advanced the following submission: … [W]ould your Honour be minded by this alternative course? I mean, I'm just conscious of the fact that we've got these precious five days starting on 23 September. Would your Honour be minded to make an order that unless Mr Martin makes his application by a certain date, say, 20 September, that the trial otherwise proceeds. So unless that application is made, the trial proceeds. 24 As the transcript reveals, the Court expressed some ongoing doubt as to the appropriateness of that course. However, orders were made on the basis that the Court would be prepared to determine the question on the papers provided Ms Ng's client put on an affidavit the following day as to the facts of the correspondence between the Court and the parties to which Ms Ng had referred. I concluded the hearing stating: I will determine it on the papers on the basis of counsel's undertaking to provide the affidavit that has been mentioned and a draft of the orders that the applicant would seek by way of responding to the court's concerns about the difficulty of there being an apprehended appeal overlapping with the hearing and determination of the substantive proceeding. As I say, I am not finally resolved to make orders in terms that are being proposed, but I see the merit, potentially, of it. I want to give some thought as to whether or not it would fully dispose of the concerns that I have about the difficulties that might arise. 25 On 29 August 2019, NRF filed an affidavit and proposed orders in compliance with the orders I had made permitting that course. It filed a supplementary affidavit on 30 August 2019. 26 The terms of NRF's draft short minutes of orders are: THE COURT NOTES THAT: 1. Orders 1 to 3 of the Orders of Justice Kerr dated 11 June 2019 required the parties to prepare and file a Joint Court Book. 2. The Respondent delivered to the Adelaide Registry of the Court and the Applicant a hard copy of the Respondent's paginated, indexed Court Book on 30 July 2019 and delivered to the Adelaide Registry of the Court a USB of the Court Book on 2 August 2019. THE COURT ORDERS THAT: 1. Unless the Applicant files an application pursuant to Rule 36.05 of the Federal Court Rules 2011 (Cth) seeking an extension of time to file a Notice of Appeal in relation to proceeding SAD40/2019 by 4.00pm on 12 September 2019, the hearing currently set down from 23 to 27 September 2019 is to proceed. 2. If the Applicant does not file an application in accordance with Order 1 by 4.00pm on 12 September 2019: (a) The Applicant is to deliver to the Adelaide Registry of the Court and the Respondent any paginated, indexed Supplementary Court Book in hard and soft copy by 4.00pm on Friday 13 September 2019. (b) The time for the Applicant to file and serve a written outline of submissions and list of authorities prepared in accordance with Practice Note CPN-1 and Practice Note GPN-AUTH be extended to 4.00pm on Friday 13 September 2019. (c) The time for the Respondent to file and serve a written outline of submissions and list of authorities prepared in accordance with Practice Note CPN-1 and Practice Note GPN-AUTH be extended to 4.00pm on Wednesday 18 September 2019. 3. The Applicant is to pay the Respondent's costs thrown away if the hearing currently set down from 23 to 27 September 2019 needs to be vacated because the Applicant files an application in accordance with Order 1. 4. There be liberty to apply. 27 I accept that NRF has a legitimate interest in having this matter, which has already been in the dockets of two other judges, proceed to trial without further delay. 28 I accept on the basis of the affidavit of Mr Max Robert Fergus Cash, dated 29 August 2019, that the correspondence Mr Martin accepted had been sent to him by the Court was as Ms Ng submitted. I also accept on the basis of Mr Cash's supplementary affidavit, dated 30 August 2019, that as at 7.55 am on that day there was nothing on the Commonwealth Courts Portal to indicate that Mr Martin had filed an application for an extension of time within which to file a Notice of Appeal with respect to the decision of Charlesworth J. 29 However, I remain unpersuaded that it would be in the interests of justice for the trial to proceed, having regard to the orders of White J that granted Mr Martin leave to appeal. Justice White's orders did not include a guillotine provision requiring Mr Martin to file his appeal within the period prescribed by the Rules, and providing that in default his appeal be dismissed. 30 His Honour granted Mr Martin leave to appeal limited to Grounds 5, 6 and 7 of the draft Notice of Appeal attached to his Application for Leave to Appeal filed on 25 February 2019. The provision by Mr Martin of a formal notice of appeal does not allow him to raise new matters. NRF is on notice that those are the grounds that Mr Martin has leave to maintain. The scope of the potential appeal is therefore already clear. In such circumstances, while I would not go so far as accepting Mr Martin's submission that a Full Court could be expected to grant any application he might make for an extension of time, I reject that it is implausible that it would. 31 The proposal contained in NRF's draft short minutes of orders is that, as the trial judge, I should require the trial to proceed unless Mr Martin makes an application pursuant to r 36.05 of the Rules seeking an extension of time to file a Notice of Appeal by 4.00pm on 12 September 2019. That is superficially attractive, but would involve me purporting to constrain Mr Martin's entitlements in a matter within the appellate jurisdiction of the Court. 32 That is a good reason not to proceed in that manner. 33 Moreover, subject to the views of the Full Court, such an approach might prove ineffective to achieve the result sought. It would not prevent Mr Martin from making such an application at a later date, even in the teeth of, or during, the trial. Were the Full Court to grant such an application, the difficulties that might emerge need only be mentioned to be understood. 34 There is a further reason why the Court would decline to make the orders sought. On the materials before me it is clear that NRF has known, and has been on notice, that Mr Martin has been in default of his obligation to file his notice of appeal since 12 August 2019. 35 It has been within their hands from that point to have sought orders in the appellate jurisdiction of the Court pursuant to r 5.23 of the Rules either dismissing his appeal or requiring him to file a notice of appeal within a short period of time in default of which his appeal would be dismissed. 36 Had NRF taken that course, the difficulties that it now faces in persuading the Court to continue with the existing hearing dates notwithstanding the matter currently in the appellate jurisdiction of this Court would have been resolved one way or the other. 37 Finally I note, as is material to my consideration of these issues, NRF does not advance any contention that it would suffer any actual forensic prejudice by reason of the rescheduling of the trial. 38 It may be accepted that Mr Martin has been tardy in pressing his appeal for which he was granted leave, but it was in the hands of his opponent to ensure that any such tardiness was addressed. NRF not having done so, it is not for a judge at first instance to yield to its insistence that the trial proceed notwithstanding Mr Martin having obtained leave to appeal a potentially critical interlocutory decision relating to the evidence capable of being adduced at trial. 39 For those reasons, I am unpersuaded that the 23-27 September 2019 trial dates should be maintained. 40 I will order that those dates be vacated. I will order the parties to advise the Court no later than 4.00 pm on Friday 27 September 2019 of any dates on which they will be unavailable for a trial to be listed for five days in March 2020. I will relist this matter for further case management on a date to be advised. I grant liberty to apply. 41 I will reserve the question of costs. 42 I note that after preparing these reasons in draft, I received an email from Mr Martin objecting to the Court receiving evidence by way of affidavit from NRF as I had directed. Given the substantive conclusion that I have reached, I do not propose to take any further step in respect of that submission. I note however that Mr Martin, having elected not to participate further in the case management hearing on 29 August 2019 after making submissions in respect of my recusal, chose not to avail himself of the opportunity to object to the course I then thought fair, and in his interests, to adopt. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.