Martin v Norton Rose Fulbright Australia

The refusal of leave to amend 9 The proposed Amended Application included, primarily, an amendment seeking an order that (without alteration): The Respondents' solicitors, King Wood Mallesons, senior counsel Mr Peter Braham SC, and junior counsel, Bernice Ng, be restrained from further acting for the respondents on this Application for an Extension of Time, and in relation to proceedings NSD1610/2016, SAD40/2019 and SAD19/2017 in this Court An adjournment was also sought. 10 The order sought restraining the legal representatives of Norton Rose from further representing the Respondent was dismissed for two reasons, either of which would be sufficient, namely: the legal representatives had long represented Norton Rose and the circumstances relied upon to support the making of such an order had long been known to Mr Martin - any application seeking to have them precluded from further acting should have been made long ago. Mr Martin has been aware of the factual matter on which this application is based since at least 11 February 2019, when the primary Judge delivered judgment. The explanation provided by Mr Martin for the delay in raising the issue does not satisfactorily address the facts that were plainly known to Mr Martin for some time; and/or the factual foundation for the order was elusive and misconceived. The "elusive" nature of the case sought to be advanced by Mr Martin, with respect, characterised not only any question as to the factual foundation for the order seeking to restrain the legal representatives, but also much of his other claims for relief. The oral submissions of Mr Martin were more frequently characterised by general statements of principle rather than submissions directed to a specific submission as to fact or legal principle of relevance to the present case. 11 The central theme to the submissions made by Mr Martin was nevertheless said to be a fundamental breach of the duty owed by legal representatives to the Court. That breach of duty was said to arise by the Respondent's legal representatives allegedly misleading the primary Judge as to the status of evidence which proved to be of some importance to that Judge's decision to uphold the claim for privilege. 12 That evidence narrowed down to one paragraph of an affidavit filed by a partner of Norton Rose, Mr Cross. That paragraph, para [1] of his affidavit, provided as follows: On 8 August 2016 I was instructed to act for the respondents ('my clients') named in the 'General Protections Application Involving Dismissal' lodged in the Fair Work Commission (the 'FW proceedings') by [Mr Martin] ... This paragraph was set out in paragraph [27] of the second of Mr Toemoe's affidavits sworn on 5 December 2018 which was before the primary Judge (with this being referred to in the primary Judge's reasons as Mr Toemoe's third affidavit). 13 When upholding the claim made by Norton Rose for legal professional privilege, the primary Judge "afford[ed] some weight to this evidence…": [2019] FCA 96 at [151]. An issue dividing the parties before the primary Judge was "not merely the capacity in which Mr Cross acted, but his degree of 'independence' in fact": [2019] FCA 96 at [152]. 14 Mr Martin's contention was that the legal representatives had misled the primary Judge in submitting that the evidence was unchallenged whereas in fact the same paragraph in Mr Cross' evidence had been rejected in a separate proceeding before another Judge of this Court. Mr Cross' assertion that he had been "instructed to act for" Norton Rose was a characterisation very much disputed by Mr Martin. 15 The reliance sought to be placed by Mr Martin upon this asserted breach of duty on the part of the legal representatives was itself misplaced (if not misconceived) again for two reasons, either of which would be sufficient, namely: whatever may have been the issue in need of resolution when the order was being made for non-standard discovery, there was no issue in the principal proceeding as to Mr Cross having been "instructed by the Firm to represent the persons named as respondents to the Fair Work Application, and to represent the Firm in Action 1610…". That was the allegation made by Mr Martin in his pleading in the Further Amended Statement of Claim (at para [21]) and that allegation was admitted in the Defence for Further Amended Statement of Claim (at para [21]); and/or irrespective of the fact that the primary Judge, when resolving the legal professional privilege claim, "afforded very limited weight to the evidence of Mr Toemoe or, for that matter, Mr Cash in respect of facts affecting contentious issues such as independence and dominant purpose" ([2019] FCA 96 at [99]) and irrespective of any conclusions reached in respect to whether Mr Cross was sufficiently independent to act as a legal representative of Norton Rose as opposed to simply being its "agent", the primary Judge founded her conclusions when upholding the claims for privilege by reference to her own inspection of the documents: [2019] FCA 96 at [199] to [217]. Mr Cash, it may be noted, had prepared the affidavit verifying the list of documents for the purposes of the discovery order. 16 Mr Martin thus failed to make out a factual foundation for his submission that there had been a breach of duty on the part of the legal representatives. 17 Leave to amend the Application for an extension of time in order to seek an order restraining the legal representatives from further representing Norton Rose was thus refused. 18 It was because of the unfounded and misconceived assertions being advanced by Mr Martin as to serious misconduct on the part of the legal representatives that an order was made during the hearing pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) ("Federal Court of Australia Act") suppressing the publication or other disclosure of limited material. That order was made "until further order", thus permitting the docket Judge who will ultimately conduct the final hearing to entertain any further application to vary the order made.

An extension of time - unexplained delay 19 Rule 36.05 of the Federal Court Rules 2011 (Cth) provides for the making of an application for an extension of time within which to file a notice of appeal. 20 The nature of the discretion conferred upon the Court to make such an order is well-settled. Although it is routinely accepted that the discretion has been described as "unfettered", the starting point for any exercise of discretion is that the requirement to file an appeal within time is a manifestation of the public interest in bringing disputes to finality; any exercise of discretion to depart from that starting point must be soundly based: cf. Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 at [12] per Tracey J ("Reaper"); AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10] per North, Besanko and Flick JJ. 21 Of relevance to the exercise of the discretion to extend time in the present proceeding is the clear failure on the part of Mr Martin to progress his claims with any degree of diligence and his failure to comply with prior orders or directions to ready his case for hearing. 22 Separate from the failure on the part of Mr Martin to progress the present appeal with any degree of diligence are the earlier failures on the part of Mr Martin as outlined in the reasons for decision of the Judge granting leave to appeal ([2019] FCA 1101 at [25] to [32]), namely: a failure to provide an application book and an outline of submissions in accordance with "timetabling orders"; his failure to attend the adjourned hearing, when the hearing was adjourned from 23 to 24 May 2019, albeit in circumstances where an email had been sent to the Court claiming that Mr Martin was "unwell"; his failure to attend at a further adjourned hearing on 27 May 2019, albeit where a further email had been sent to the Court again claiming that Mr Martin was in "ill health" and further stating his wife had gone into labour; a failure to file any further submissions by 3 June 2019, as envisaged by orders made on 27 May 2019; and a failure to invoke liberty to apply, also granted on 27 May 2019. As noted by the Judge hearing that application, time had been taken on 23 May 2019 by reason of an oral application made by Mr Martin "for orders pursuant to r 1.21 of the FCR with respect to an action he proposed commencing in this Court": [2019] FCA 1101 at [28]. It was the time taken in resolving that application that necessitated the adjournment to the following day. 23 If attention is focussed upon the present appeal, the failure on the part of Mr Martin to progress his appeal in any diligent and timely manner is exposed by: his failure to be present in Court when the appeal was called on for hearing, Mr Martin for whatever reason preferring to be in the Registry of the Court seeking to file further documents; his failure to have available at the outset of the hearing the proposed Amended Application and an affidavit in support of that proposed Amended Application, the Court having to adjourn to permit the affidavit to be sworn and for copies to be made of both the proposed Amended Application and the affidavit so that they could be made available to both the legal representatives of Norton Rose and the Court; his failure to file a written Outline of Submissions identifying the argument/s he wished this Court to resolve. This is in a context where, as reflected in emails from Mr Martin to the Court, on at least three occasions Mr Martin contacted the Court and, in effect, requested an extension of time to comply with the Court's orders requiring him to file an outline of submissions. These requests were premised on the basis that the submissions would be ready to file the next day, or later on the day the email was sent. Mr Martin explained that the document was being prepared, and on one occasion explained that the difficulty was the need to bring it within 12 pages. Mr Martin failed to comply with the order to file submissions; and his failure to comply with orders in relation to preparation of the appeal books. Although Mr Martin prepared Part A and an index to Part B, both were filed late. Mr Martin did not prepare Part C, which the respondent then undertook to enable this hearing to proceed. The hearing of the Application for an extension of time before this Court did not progress smoothly. No substantive reason was proffered as to why the proposed Amended Application and affidavit in support had not been prepared and made available sufficiently in advance of the hearing of the appeal so that consideration could be given to them in advance of the hearing. The making of the application to amend had some of the hallmarks of the application made without notice on 23 May 2019, when the application for leave to appeal was under consideration. 24 Such failures on the part of Mr Martin tell heavily against any favourable exercise of discretion. So, too, does the absence of any real explanation for the delay in filing the Notice of Appeal pursuant to the leave granted on 15 July 2019. Although it may readily be accepted that prior to the delivery of the judgment granting leave to appeal in July 2019, Mr Martin and his family unfortunately had to confront the illness and hospitalisation of their newly born son in May/June 2019, further delay remained unexplained. Delay in complying with Court timetables during and around May/June 2019 may well have attracted an extension of time. But the period of time during which a sufficient explanation for delay should have been forthcoming - but was not forthcoming - was between: July to August 2019, namely that period of time after judgment had been delivered and when time to file a Notice of Appeal commenced to run and 29 August 2019 when Mr Martin was reminded of his failure to file a Notice of Appeal; and August to October 2019, namely that period of time after he had been reminded of the necessity to file a Notice of Appeal and when he ultimately took the step of filing the Application for an extension of time now before this Court. 25 Although, as a general principle, an absence of explanation for delay is not of itself a conclusive reason for refusing leave, in the circumstances of the present proceeding it is conclusive. Mr Martin should have visited upon him the consequences of his failure to exercise the limited right of appeal that had been granted to him in July 2019. He alone was responsible for his conduct.

The absence of appellable error 26 The refusal of the extension of time sought by Mr Martin in order to file his Notice of Appeal by reason of his delay renders it unnecessary to consider in any detail the merits of the proposed appeal, assuming time had been extended. It is also unnecessary to consider the Notice of Contention which the Respondent foreshadowed it would seek leave to file in the event that the Application for an extension of time was granted. 27 But the merits of the proposed appeal should be briefly addressed. Even assuming delay was not of itself a sufficient basis upon which to refuse the extension of time, the merits of the arguments sought to be advanced themselves presented insufficient prospects of success to warrant leave being granted, given the nature of the application now under consideration. 28 In very summary form, the primary Judge was presented with three fundamental issues which divided the parties in respect to the principles to be applied, namely: the adequacy of the evidence in support of the claim; the circumstances in which a judge could inspect documents when resolving a disputed claim for legal professional privilege; and whether Mr Cross was acting in a professional capacity as a lawyer, vis a vis, the other partners of Norton Rose as client. 29 As to the former matter, the affidavit of Mr Cash relied upon in support of the claim (this affidavit being an annexure to Mr Toemoe's affidavit affirmed 2 November 2018) provided, as set forth at para [96] of the primary Judge's reasons, as follows: [6] The documents set out in part 3 are in the control of the respondent but I claim privilege from production of each of these documents on the grounds that they are: (a) confidential documents recording or evidencing confidential communications, or from which the content or substance of such communications could be inferred or revealed, between the respondent and its counsel, made for the dominant purpose of providing the respondent with professional legal services relating to this proceeding, the FWC application and/or proceeding no. NSD1610/2016; or (b) documents that are, or that would reveal the contents of, confidential documents prepared for the dominant purpose of providing the respondent with professional legal services relating to this proceeding, the FWC application and/or proceeding no. NSD1610/2016. [7] The documents set out in part 4 are in the control of the respondent. Parts of some documents in part 4 are redacted. I object to producing unredacted copies of those documents on the ground that the redacted parts are privileged, and I claim privilege from production of each of these documents on the grounds that those parts: (a) record or evidence confidential communications, or from which the content or substance of such communications could be inferred or revealed, between the respondent and its counsel, made for the dominant purpose of providing the respondent with professional legal services relating to this proceeding, the FWC application and/or proceeding no. NSD1610/2016; or (b) reproduce, or would reveal the contents of, confidential documents prepared for the dominant purpose of providing the respondent with professional legal services relating to this proceeding. A principal argument sought to be advanced at the hearing in this matter was the contention made by Mr Martin that the evidence relied on by the Respondent, including the affidavit of Mr Cash, failed to discharge the onus of proof necessary to support a claim for privilege. 30 As a matter of general principle, it is not possible to describe the evidence necessary to support such a claim in all cases. As explained by Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 688 to 689, privilege is not "necessarily or conclusively established by resort to any verbal formula or ritual". The facts and circumstances in which a claim for privilege may be made may vary depending upon a myriad of circumstances, varying from: the factual and legal issues dividing the parties; and extending to: the number of documents said to attract the claim. Whatever else may be necessary in the circumstances of an individual case, as a matter of general principle it may be accepted that a mere assertion of privilege, or an assertion in conclusory terms as to the existence of the privilege, will not be sufficient: cf. Hancock v Rinehart (Privilege) [2016] NSWSC 12; Rinehart v Rinehart [2016] NSWCA 58. 31 The evidence of Mr Cash, with respect, may have fallen perilously close to a simple assertion as to the privilege without providing admissible evidence in support of the claim. But evidence in a comparable format is common in litigation. 32 As to the latter matter, even if it be assumed in favour of Mr Martin that the evidence fell short of establishing of itself the claim for privilege, the fact remains that the primary Judge inspected the documents and by reference to that inspection upheld the claim. She did so in accordance with an accepted discretion to do so. In the course of oral submissions, Senior Counsel for the Respondent contended that the Court's discretion to inspect documents "is not to be fettered". Whether the discretion is truly "unfettered" may be left to one side. It is a discretion to be exercised judicially. However the ambit of the discretion is expressed, the court has an unquestioned "power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege": Grant v Downs (1976) 135 CLR at 689. Whether the documents the subject of a claim should be inspected "is a matter for the discretion of the court, and primarily for the judge at first instance": Trade Practices Commission v Sterling (1979) 36 FLR 244 at 247 per Lockhart J. 33 Not only did Mr Martin have to confront the difficulties of challenging the manner in which the primary Judge exercised the discretion to inspect the documents, he further recognised that he had to establish a misapprehension as to the ambit of the discretion in accordance with the principles outlined in House v The King (1936) 55 CLR 499 at 504 to 505. Dixon, Evatt and McTiernan JJ there summarised the general principles as follows: … The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred ... The contention advanced by Mr Martin that the primary Judge erred in such a manner was misplaced, if not misconceived. 34 To bring himself within the constraints imposed by House v The King, Mr Martin sought to contend that the primary Judge necessarily had to refuse to inspect documents in circumstances where: the evidence relied upon was in the form stated by Mr Cash; and there was a "fundamental inconsistency", at least in Mr Martin's submission, between the claim for privilege set out in the Mr Cash's affidavit and that which was set out in Mr Toemoe's affidavit. Mr Martin further submitted that the primary Judge committed a House v The King error in inspecting the documents in circumstances where: a submission had been made to the primary Judge, and said to have been erroneously made, that para [1] of Mr Cross' affidavit was "unchallenged". Mr Martin went on to contend that the primary Judge "did not confine herself to the grounds upon which privilege had been actually claimed by the respondents, nor did she confine herself to the grounds upon which Mr [Toemoe] said the documents were privileged". Instead, so submitted Mr Martin, the primary Judge "went on a roving commission of inquiry". 35 But none of those factors, taken either alone or in combination, go anywhere near establishing a House v The King error. There is no reason to question the manner in which the primary Judge resolved the discretion to inspect the documents. 36 Mr Martin sought to contend that the primary Judge had erred in concluding that Mr Cross was acting in a professional capacity as a lawyer, vis a vis, the other partners of Norton Rose as client. This was referred to in argument as the "independence" issue. The primary Judge, in addressing this issue, referred to the approach taken by Branson J in Rich v Harrington [2007] FCA 1987, (2007) 245 ALR 106 ("Rich") and conducted a close analysis of the High Court's decision in Waterford v Commonwealth of Australia [1987] HCA 25, (1987) 163 CLR 54. Mr Martin sought to argue that the primary Judge erred in rejecting the approach adopted by Branson J in Rich. This issue raised a number of complex sub-issues, including whether, even if Mr Martin is right, there would be exceptions to the approach he relied on. The Court did not have the benefit of submissions on all aspects of this difficult issue. Furthermore, it is not irrelevant that the primary Judge's examination of the documents subject to Norton Rose's claim for privilege revealed few documents in respect of which the claim for privilege depended wholly upon an analysis of the independence of Mr Cross (in his professional capacity as lawyer), vis-a-vis, Norton Rose in its capacity as client, if "independence" is to be conceptualised as having the role identified by Branson J in Rich. It is concluded that, even if delay alone was not to be treated as sufficient to refuse the Application for an extension of time, this proposed Ground of Appeal does not, when considered with the other factors identified, have sufficient prospects of success to suggest that an extension of time should be granted. 37 Irrespective of how other arguments may have been resolved, the arguments sought to be pursued on appeal as to appellable error on the part of the primary Judge in upholding the claims for privilege lacked any sufficient prospects of success to warrant an extension of time being granted.

Additional evidence on appeal 38 Outstanding is the further application by Mr Martin to adduce additional evidence on appeal. 39 An appellate Court may admit additional evidence: Federal Court of Australia Act, s 27. It is a power which exists "to serve the demands of justice": cf. CDJ v VAJ (1998) 197 CLR 172 at 202 per McHugh, Gummow and Callinan JJ. 40 In the present case, the additional evidence sought to be adduced was understood to be the privilege documents said by Norton Rose to have been mistakenly provided to Mr Martin. These documents were provided to Mr Martin in July 2019. They were thus (obviously enough) not available to be tendered during the course of the hearing before the primary Judge when the hearing was conducted in December 2018 which preceded the judgment in February 2019: [2019] FCA 96. 41 But the application made to this Court to adduce that evidence is to be refused for two reasons, either of which would be sufficient, namely: the refusal of leave does not lead to irremediable prejudice to Mr Martin and there is no injustice; and/or the evidence is not of sufficiently central relevance to the issues to be resolved on appeal as to warrant the grant of leave. 42 As to the former, Senior Counsel for Norton Rose was most probably correct in his submission that it is sufficient for the purposes of resisting Mr Martin's application to adduce further evidence to make it abundantly clear to Mr Martin that the Respondent's claim for privilege is being maintained and (on Senior Counsel's approach) has not been waived. Although it would have been desirable to have had any argument as to whether the documents had been mistakenly provided to Mr Martin and any argument as to waiver of privilege resolved during the course of the present hearing, those arguments could not proceed without occasioning procedural unfairness to Mr Martin. The oral application for the return of the documents was thus, quite properly, abandoned. But any freedom on the part of Mr Martin to use such documents will have to be confronted when (for example) Mr Martin may seek to rely upon those documents when making a possible application to amend his Further Amended Statement of Claim or if he seeks to tender those documents during the course of any final hearing. Whether the provision of the documents in July 2019 operated as a waiver of a prior existing claim for privilege could then be tested. 43 Given this conclusion, it is unnecessary to consider whether any attempt could be made to revisit the existing interlocutory decision upholding the claim for privilege by reason of the circumstances in which Mr Martin came to be in possession of some of the privileged documents. 44 The refusal of leave to adduce the additional evidence on appeal thus does not preclude Mr Martin seeking to rely upon the documents at some later stage in the proceeding. 45 As to the latter reason for refusing leave to adduce additional evidence on appeal, of more immediate relevance to the issues to be presently resolved is the fact that the additional evidence did not seem to have immediate relevance to the manner in which those issues were to be resolved. Those documents may have had some relevance to the adequacy of the evidence relied upon by Norton Rose in support of their claims for privilege; but such documents would not have had any relevance to the primary Judge's inspection of the documents and the conclusions then reached as to the existence of the privilege. Although Mr Martin asserted that the documents were in some way relevant to the issue of "independence", he did not provide a convincing explanation as to how that was so. 46 Any relevance that the documents now sought to be adduced may have had in respect to the relief sought in the proposed Amended Application fell away when leave to amend was refused.

CONCLUSIONS 47 The circumstances in which leave for an extension of time in which to file a Notice of Appeal should be granted are confined by well-accepted principles. One of those principles is that there is a public interest in interlocutory disputes being resolved quickly and expeditiously. 48 Mr Martin has done little to either have his Application for leave to appeal or his Application for an extension of time in which to file a Notice of Appeal resolved quickly and expeditiously. Indeed his conduct is such as to be properly characterised as conduct more directed to delaying the resolution of interlocutory disputes and conduct directed to ensuring that the proposed final hearing in about March 2020 is delayed. 49 There may be many reasons why a plaintiff seeking relief may wish to defer a final hearing as long as possible. It is unnecessary, and indeed imprudent, to speculate as to what his reasons may be. 50 His delay in seeking an extension of time in which to file a Notice of Appeal in the present case is such as to warrant an extension of time being refused. Even if attention were shifted to the prospects of success of the arguments sought to be advanced had time been extended, the prospects of success are not such as to warrant an extension of time. The Application for an extension of time is thus refused. It is therefore unnecessary to resolve the substantive appeal or the Notice of Contention which was otherwise sought to be relied on by the Respondent. 51 The application to adduce additional evidence on appeal should also be refused. 52 There is no reason why the costs of the present hearing should not follow the event. The issues pursued, and the manner in which those issues have been pursued, should be resolved now and not deferred to be resolved as part of the overall costs of the proceeding.

THE ORDERS OF THE COURT ARE:

1. The application for an extension of time within which to file a notice of appeal dated 10 October 2019 be refused.
2. The application to adduce further evidence on the appeal dated 5 November 2019 be refused.
3. The applicant pay the respondent's costs of and incidental to the following: (a) the application for leave to appeal dated 25 February 2019; (b) the application for an extension of time within which to file a notice of appeal dated 10 October 2019; (c) the application to adduce further evidence on appeal dated 5 November 2019; and (d) the application to amend the application for an extension of time in which to file a notice of appeal dated 26 November 2019. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Flick and Abraham.