Martin v Norton Rose Fulbright Australia

1. The Second Respondent's application for Kerr J's recusal on the basis of apprehended bias be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 On Thursday 29 August 2019, Mr Martin (the Applicant in SAD49/2017 and the Second Respondent in NSD1610/2016, which have been ordered to be heard together) made an oral application that I recuse myself from further management and conduct of these proceedings. 2 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 these proceedings. I undertook to publish reasons in due course. These are my reasons. 3 The application was initially advanced on the basis that I ought to disqualify myself having regard to certain email correspondence as adverted to at [44]-[49] of my reasons in Martin v Norton Rose Fulbright Australia [2019] FCA 967 (Martin No 1). Subsequent to that decision, the Court made arrangements to provide Mr Martin with all of the email correspondence held by the Court as was relevant to those paragraphs. 4 It is convenient first to set out the background to these proceedings to provide the context in which the correspondence was made. For that purpose I respectfully adopt White J's short summary of what the underlying two proceedings (earlier ordered to be heard together) involve. His Honour's summary appears as a preface to his Honour's reasons granting Mr Martin leave to appeal an interlocutory decision of Charlesworth J to the Full Court: Martin v Norton Rose Fulbright Australia [2019] FCA 1101. Her Honour had upheld claims of legal professional privilege that Norton Rose Fulbright Australia (NRF) had advanced over a significant number of documents. It is as follows: 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: (a) 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; (b) 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; (c) 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; (d) on 19 September 2016, the FWC, at the request of the parties, adjourned the listed conciliation conference to 19 October 2016; (e) the proceedings in NSD1610/2016 were served on Harmers on 23 September 2016; (f) on 7 October 2016, the parties participated in a private mediation, but did not reach a concluded settlement; (g) on 17 October 2016, Mr Martin discontinued his General Protections Application in the FWC; and (h) 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 proceedings in NSD1610/2016 were false or misleading. 5. Mr Martin also seeks damages for the alleged deceit by NRFA constituted by the same conduct on which he relies for the s 18 claim. 6. Mr Martin alleges that the conduct of NRFA in commencing NSD1610/2016 constituted an intentional abuse of this Court's process because it was commenced for the purpose of causing him vexation and harassment, to obstruct, hinder and frustrate his FWC application as well as for other inappropriate purposes and not for the predominant purpose of obtaining relief to which NRFA may be entitled. Further, Mr Martin alleges that the action of NRFA in making the costs application in NSD1610/2016 was vexatious and an abuse of this Court's process. 7. Mr Martin alleges that, by reason of the alleged misleading or deceptive conduct and the alleged deceit, he discontinued the General Protections Application, and incurred costs and a potential liability for the costs of NRFA in Action NSD1610/2016, as well as other detriments. Several of Mr Martin's allegations concern the conduct of Mr David Cross, a partner in NRFA. Mr Martin alleges, and NRFA admits, that between 8 August 2016 and 8 February 2017, Mr Cross was instructed to represent the respondents in his FWC action and to represent NRFA in Action NSD1610/2016. 5 It will be observed from that summary that there are two proceedings being heard together. The first is NSD1610/2016, in which the President and Members of the Fair Work Commission (FWC) and Mr Martin were originally the First Respondents and the Second Respondent respectively. The second is SAD49/2017, in which Mr Martin is the Applicant and NRF is the Respondent. 6 In respect of NSD1610/2016 I take it to be uncontentious that, Mr Martin having discontinued his General Protections Application in the FWC, the only live issue remaining is as to costs. Mr Martin's other claims are as advanced by him in SAD49/2017. 7 That is sufficient background to provide context to the short chain of email correspondence that concluded with an email sent by my associate on 11 April 2019. 8 My associate's email is what Mr Martin submits gives rise to an apprehension of bias on my part. The email chain which concludes with my associate's email commences with an email sent by Ms Amelia Blefari to the associate of Charlesworth J on Tuesday 26 February 2019. I take it as uncontentious that Ms Blefari was acting for NRF. It may be noted that at that time, these matters were still in the docket of her Honour. The first was as follows: 9 On 4 March 2019, the associate to Charlesworth J replied to all addressees of that correspondence, acknowledging receipt of Ms Blefari's email. They were advised that an associate allocated the matter would be responding in due course. 10 No reply having been received, on Thursday 11 April 2011 Ms Blefari sent another email, on this occasion to my associate. 11 That was because, in the interim, the matter had been reallocated to my docket. Ms Blefari's email was as follows: 12 Later on the same day my associate replied to all addressees of that email as follows: Dear Practitioners My apologies that the 4 March 2019 correspondence [the reply sent by Charlesworth J's associate] was not brought to his Honour's attention. Pursuant to r 26.12(2)(b) of the Federal Court Rules 2011 (Cth), leave is not required to discontinue with the opposing party's consent. Please file the notice of discontinuance and it will be processed by the registry. 13 Two things should be acknowledged immediately. 14 The first is that Mr Martin was not included in the list of three addressees to whom that email was copied. In matter NSD1610/2017 (the subject of that correspondence) there were three parties: the Applicant (NRF), and two respondents: the FWC and Mr Martin. In those proceedings, NRF was represented by King & Wood Mallesons. 15 The second is that, while I have no present recall of the precise circumstances, I would not resist the inference that Mr Martin seeks to draw, that my associate would have drawn my attention to the terms of her proposed response to that communication before it was sent. 16 Mr Martin submits that, having regard to the fact my associate responded in the terms referred to above, I ought to disqualify myself "based on the communication that occurred between the Respondent and your Honour's associate in Chambers in April of this year without my knowledge or consent, about which I was not informed until June this year, with regard to the Respondent's discontinuance of proceedings in matter NSD1610/2016". 17 In support of that application, Mr Martin referred to Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 (Re JRL) and John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; 276 ALR 221 (John Holland). 18 In Re JRL, Gibbs CJ observed at 346: It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other … 19 Mason J observed at 350: A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice … Indeed, it is regarded as a serious contempt. A judge must therefore be alert not to receive any such communication … (Citations omitted.) 20 Mr Martin noted that both Gibbs CJ and Mason J had referred with approval to the statement of McInerney J in R v Magistrates' Court at Lilydale: Ex parte Ciccone [1973] VR 122 at 127 that: The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined. 21 Mr Martin then drew the Court's attention to the observations of Mason J (at 351) in which his Honour observed (citations omitted): As McInerney J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge. The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done. 22 With respect to John Holland, Mr Martin submitted: This involved another apprehended bias application where a party had a unilateral communication with a judge's associate. Now, I won't go, your Honour, to the detail of that judgment other than to identify that in that case the Full Court found that there was not any basis for reasonable apprehension of bias. Essentially on factual grounds, and the two factual matters that were essentially distinguishing that instance from other instances that would more readily be considered to give rise to a reasonable apprehension of bias were that, firstly, there was no evidence that the judge himself or herself in that case was aware of the communication with the associate. So it was the first distinguishing factor in circumstances where the judge themselves is not aware of the communication with the associate then that would not necessarily be open to conclude that the judge - that there was some apprehension of bias on the judge's part. And the other distinguishing factor was that the matters discussed between the party and the associate did not pertain to any substantive issue. It was really about - it was about the scheduling of a directions hearing where there was leave to apply - liberty to apply reserved as well. And so, the court found that there wasn't anything of substance that had occurred. Now, your Honour, neither of those circumstances are - or those distinguishing factors are present in what had transpired in this case. 23 Mr Martin submits that for the purpose of the principles discussed in John Holland at [22], the communication sent by my associate is properly to be characterised as being in relation to a matter of substance rather than in relation to "procedural, administrative or practical matters". 24 Mr Martin submits that the singular in r 26.12(2)(b) of the Federal Court Rules 2011 (Cth) (Rules) includes the plural such that the term "party's" in that provision should be read as encompassing "parties'". Such a reading, he submits, is consistent with the interpretive principle provided for in s 23(b) of the Acts Interpretation Act 1901 (Cth) (AIA) that the singular includes the plural. 25 So understood, my associate's correspondence involved a matter of substance. That was because NRF's discontinuance as against the FWC required leave. Such a grant of leave required judicial consideration and an exercise of discretion as to whether that course would be permitted or not permitted. 26 Mr Martin submits that NRF's communication to my associate without being copied to him, in those circumstances, was not only professionally improper, but also constituted contempt of the Court. He submitted that its solicitor writing to the associates of Charlesworth J and myself in the terms set out above was "intended to mitigate the adverse impact on Norton Rose Fulbright and, presumably, King & Wood Mallesons of an ongoing non-compliance with a notice to produce that was issued by Wigney J on 14 December 2016 …". My having participated within the factual matrix of facilitating NRF's miscreance, I would not be able to bring an independent mind to the resolution of any application to hold those parties in contempt if later pressed. My associate and I had become witnesses whose evidence was likely to be material. 27 For all of those reasons, Mr Martin submitted that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues arising in these proceedings. I should recuse myself and vacate the orders I had earlier made in Martin No 1 as to pre-trial timetabling and the setting down of the trial. 28 Ms Ng, counsel for NRF, opposed Mr Martin's application, contending initially that his application raising those contentions "[was] just part of Mr Martin's tactics to delay the inevitable hearing" of these proceedings. However, correctly in my view, Ms Ng did not press that objection. In any event, I would not have entertained such an objection. Whatever Mr Martin's suspected motivation might be on his opponent's part is of no account. Mr Martin is entitled, whatever his opponent might assert as his motive, to have his case heard and determined by a court free of a reasonable apprehension of bias. 29 Ms Ng subsequently submitted that there was nothing in Mr Martin's submissions as might give rise to apprehended bias on the part of a reasonable observer: The communication that was sent to your Honour's chambers and to which your associate responded is, in my respectful submission, nothing more than, as the Full Court said in John Holland, a matter of procedural practicality. It has nothing to do with the substance of - or the merits of the proceedings. And further, the communication from your Honour's associate is consistent with the patently clear words of rule 26.12(2)(b), that is, that only the parties to the discontinuance are required to consent and, with respect to any other parties involved in the proceedings, notice is given by way of service through rule 26.13. So contrary to what Mr Martin has submitted, his consent is not required … given that he is not a party to the [discontinuance], being another party. It's only the parties who are involved in the discontinuance itself, so that in this case, it's Norton Rose and the Fair Work Commission that are the necessary parties.