Martin v Norton Rose Fulbright Australia

1. Paragraphs [47] and [48] of Justice Kerr's reasons in Martin v Norton Rose Fulbright Australia [2019] FCA 967 not be amended pursuant to rule 39.05 of the Federal Court Rules 2011 (Cth).
2. There be no order as to costs of the request or application made by the Applicant on 29 August 2019 for amendment of Justice Kerr's reasons in Martin v Norton Rose Fulbright Australia [2019] FCA 967. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 On 29 August 2019 in oral submissions Ms Ng, counsel for the Respondent Norton Rose Fulbright Australia, drew my attention to the terms of paragraphs [47] and [48] of my reasons in Martin v Norton Rose Fulbright Australia [2019] FCA 967. Ms Ng indicated that her client would be grateful if the Court would clarify that certain conduct therein referred to was not that of the Respondent but that of the Respondent's solicitors, King & Wood Mallesons. 2 As the transcript of that day's proceedings makes clear, I took that to be a request pursuant to the slip rule. I responded that it would be convenient if, having regard to that rule, counsel would supply me with a short note to indicate the changes it was submitted should be made to my reasons. As a matter of procedural fairness I gave leave to the Applicant Mr Martin, should he be so advised, to do the same. I would then determine the question on the papers. Both Ms Ng and Mr Martin later supplied my associate with written submissions on the issue. 3 The "slip rule" set out in r 39.05(h) of the Federal Court Rules 2011 (Cth) permits the Court on its own motion, or on the application of a party, to amend a judgment or order arising from an accidental slip or omission. It is not available to correct any question of substance. 4 After I had considered the submissions of both parties, my associate communicated to the parties by e-mail dated 10 September 2019 as follows: I refer to Norton Rose Fulbright's application to amend paragraphs [47] and [48] of his Honour's reasons in Martin v Norton Rose Fulbright Australia [2019] FCA 967. His Honour considers that those paragraphs would not be understood other than as referring to the conduct of Norton Rose Fulbright by its solicitors. In any event, his Honour's recusal reasons (Martin v Norton Rose Fulbright Australia (NO5) [2019] FCA 1481) make that position abundantly clear. Consequently, his Honour does not identify a reason requiring amendment of the judgment. 5 I took that to be sufficient advice to all of the parties of the reasons why the Court had declined of its own motion to take the action requested, there being no formal interlocutory application before it. 6 Notwithstanding, on 19 September 2019 Mr Martin sent an e-mail, copied to the other parties to the proceeding, to my associate stating that he would be grateful for a confirmation of when my formal reasons would be published. Mr Martin observed that in the absence of published reasons, or an ex tempore judgement, there would be no formal record of the Court's determination of Ms Ng's application. 7 Lest I be wrong in my characterisation of Ms Ng's request as counsel drawing the relevant question to the Court's attention to permit it to determine of its own motion whether or not revise its reasons as having been attended by a slip or accident, I confirm that the reasons communicated to the parties by my associate's e-mail of 10 September 2019 are my reasons for not exercising the power to amend the relevant paragraphs of my earlier judgment pursuant to the slip rule. 8 To the extent that Ms Ng's oral request is properly to be characterised formally as an interlocutory application, I would dismiss that application. 9 However, it is in the nature of the slip rule that it goes only to correction of errors of oversight made by the Court and cannot touch on any matters genuinely in dispute. Accordingly, it was a matter entirely without consequence for Mr Martin whether or not he would seek to make submissions as to the point raised. I have accepted, as Mr Martin submits, that no alteration to my earlier reasons was required. However, given the nature of the application and its want of any materiality with respect to Mr Martin's interests, in the exercise of my discretion, I would make no order for costs even assuming such an order is open to be made in Mr Martin's favour having regard to the decision of the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.