Martin v Norton Rose Fulbright Australia

KERR J: 1 On Friday 28 February 2020 at 3.37pm, my associate received an email from Mr Martin, the Respondent in proceeding NSD1610/2016. His email was copied to the representatives of the Applicant in that proceeding, Norton Rose Fulbright Australia. In his email, Mr Martin advised that he was giving notice of his intention to pursue an application to the High Court of Australia under s 75 of the Constitution seeking constitutional writs of prohibition and certiorari to quash my orders of 24 December 2019 and reasons for decision dated 6 January 2020, and further to restrain me from exercising jurisdiction in NSD1610/2016. Mr Martin's email continued: Those proceedings would have, as their objective, the removal of NSD1610/2016 from his Honour's docket for determination by a Full Court, with the necessary consequence of staying the trial which is presently listed to commence on Monday, 2 March 2020. 2 Mr Martin's email did not in terms make or foreshadow an application for adjournment of the trial. I however understood it to give rise to such an application, and the parties proceeded in argument before me on that premise. 3 By way of background, it is convenient to recall that a case management hearing in these proceedings was convened on 23 December 2019. The purpose of that hearing was the setting down of procedural orders for the management of the trial that is scheduled to commence today (2 March 2020) and continue for the further four days of this week. In the course of that case management hearing Mr Martin made an oral application that I remit proceeding NSD1610/2016 for determination by a Full Court on the basis that I as a single judge of the Court was without jurisdiction to hear and determine it. 4 The background to that oral application, and the submission that is presently before the Court seeking adjournment of the trial, is referred to in my reasons of 6 January 2020 (published as Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5) as follows: 1. On 19 September 2016, Norton Rose Fulbright Australia (NRFA) filed an originating application for the following relief under s 39B of the Judiciary Act 1903 (Cth), relying on the grounds set out in a statement of claim subsequently filed: 1. Pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the Fair Work Commission does not have jurisdiction under Part 3-1 of the Fair Work Act 2009 (Cth) to deal with the 'General Protections Application Involving Dismissal' dated 5 August 2016 filed by the Second Respondent (FWC Application). 2. Pursuant to section 23 of the Act, an order in the nature of prohibition against the First Respondents restraining them from dealing with, or otherwise purporting to exercise jurisdiction over the Applicants in respect, of the FWC Application. 3. An order that the Second Respondent pay the Applicants' costs of these proceedings on an indemnity basis. 2. The President and Members of the Fair Work Commission (FWC) were named as the First Respondents. Mr Martin was named as the Second Respondent. 3. The proceeding was originally in the docket of Wigney J. 4. It is not necessary to traverse any prior complexities in the proceeding. It is enough for the purposes of this decision to indicate that orders were subsequently made for the trial in the proceeding NSD1610/2016 to be conducted concurrently with the trial in separate proceedings: SAD49/2017, in which Mr Martin is the Applicant and NRFA the Respondent. 5. Ultimately, both matters were allocated to my docket. At the time of writing, they are listed for hearing from 2-6 March 2020. 6. In anticipation of that circumstance, I conducted a case management hearing on 23 December 2019 with the intention of settling any outstanding procedural issues in the lead up to the trial date. 7. However, during that hearing Mr Martin raised a threshold issue concerning whether I as a single judge of the Court had jurisdiction to further hear and determine the matter raised by NRFA's originating application in NSD1610/2016. 8. Mr Martin submitted that although s 20(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that "except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge", that general rule is subject to an express exception as provided for in s 20(2). That exception is as follows: (2) The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court. 9. Mr Martin submitted that I therefore lacked jurisdiction with respect to proceeding NSD1610/2016. I should refer the matter to a Full Court, and not make any further procedural orders. 10. Having regard to that submission I gave leave to both parties to file any written submissions, limited to 5 pages, they might wish to make on that issue. I adjourned the hearing until the following day, to provide an opportunity for further oral argument. 11. On 24 December 2019, after receiving submissions from both parties I made the following orders: 1. That the Respondent's oral application that this proceeding be remitted for determination by a Full Court on the basis that a single judge of the Court lacks jurisdiction to hear and determine it be dismissed. 2. The Respondent pay the Applicant's costs of that application, as agreed or assessed. 3. The Respondent's oral application for my recusal be dismissed. 12. I indicated that I would publish my reasons as shortly afterwards as was possible. These are my reasons. 5 Mr Martin did not make an oral application pursuant to r 35.01 of the Federal Court Rules 2011 (Cth) for leave to appeal. Rule 35.01 permits a party seeking leave to appeal an interlocutory order of the Court to make an oral application for such leave from the judge who has made it. Nor did Mr Martin make an application pursuant to r 35.13, which gave him the right to seek such leave from another judge of the Court within 14 days of my order having been made. Rule 35.14 permitted Mr Martin to apply for an extension of time in which to seek such leave to appeal. Again however, Mr Martin does not suggest that he availed himself of any such opportunity. 6 On the first day of the trial, 2 March 2020, Mr Martin raised in the alternative to his application that the trial be adjourned on the premises he had advanced an application that the Court might itself review the correctness of its earlier ruling and decision and, if satisfied that it was in error in having reasoned as it did, remit matter NSD1610/2016 for determination by a Full Court. 7 I decline to adopt that course. My reasons are as follows. 8 First, after the hearing on 23 December 2019 Mr Martin had the opportunity to provide written submissions and to draw the Court's attention to the authorities he now asserts might have minded it to reach a different decision. He had not taken that opportunity. Second, and critically, Mr Martin's email correspondence had not advanced a submission that there was any authority of this Court or of the High Court of Australia as would compel a different outcome to that which the Court had reached on 24 December 2019. The closest Mr Martin had come to that contention was his submission that the decision in Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877 was on all fours with the matter before the Court. 9 But it is not. The critical distinction between the circumstances arising in that case and those applying in the present matter is that the decision in that case was one actually made by the President of the Administrative Appeals Tribunal who also held office as a judge of this Court. Their Honours von Doussa, O'Loughlin and Mansfield JJ expressly refer to that circumstance at [3] of their reasons. 10 As I noted that in my reasons dated 6 January 2020, that factor also distinguishes the present matter from other cases such as JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; 201 FCR 297. As I indicated in those reasons, I infer that it was significant that the Full Court in that case expressly stated that the fact that Fair Work Australia was at the relevant time actually constituted by members who included a judge of the Court was the reason for their Honours exercising a jurisdiction that they would not otherwise have exercised. 11 That of course does not preclude the possibility that I might be in error. However, I am unpersuaded that in the circumstances prevailing I should review the correctness of my decision where I had heard substantive argument from the parties. 12 Mr Martin's email is not supported by an affidavit explaining the reasons for his delay. Nor does it annex the terms of the application that he asserts he intends to make to the High Court. I accept that Mr Martin in oral submissions drew attention to the timing of the circumstances that applied over the Christmas period. I accept that it could reasonably be expected that he had some family responsibilities in that period. I also note that Mr Martin drew my attention in oral argument to his having been required to address an application arising out of an application for a lump sum costs order sought by Norton Rose Fulbright Australia following the Full Court's dismissal of his appeal from orders of Charlesworth J in earlier interlocutory proceedings in this matter. 13 I accept that both those circumstances would have impacted upon the convenience of Mr Martin taking earlier steps. However, neither can amount to a reasonable explanation for his delay and his failing to take any steps prior to 28 February 2020 on the very eve of the trial, in circumstances where the trial had been set down for five days and procedural orders had been made for its management in 2019. I note in that regard that Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; 239 CLR 175 makes clear that rules of Court are to be applied having regard to the cost, timeliness and stage that litigation has reached, and the explanation for delay. 14 In these proceedings Mr Martin also draws my attention to the fact that on 21 May 2018 Wigney J, who had earlier had case management of these proceedings, had made orders that evidence in one proceeding be evidence in the other. That requires some short explanation. There are two proceedings currently listed for hearing in the five days of the present week: NSD1610/2016 and SAD49/2017. In NSD1610/2016, Mr Martin is the Respondent. In SAD49/ 2017, he is the Applicant. 15 Mr Martin's submission is that adjournment of the hearing of both matters would be a convenient course because were my continuing to hear proceeding NSD1610/2016 ultimately found to be without jurisdiction, that in turn would place in issue the validity of what is to be heard in SAD49/2017. However, I do not accept that submission. 16 The subject matter of NSD1610/2016 is confined to the issue of which party, if either, should be ordered to pay costs in that proceeding (and on what terms) in the aftermath of Mr Martin having discontinued the underlying proceeding in the Fair Work Commission. I accept, as was the premise of the orders made by Wigney J, that some, if not much, of the evidence in one proceeding will be admissible and relevant in the other. Nonetheless I am unpersuaded that were NSD1610/2016 not to proceed this week that that would form a proper basis for SAD49/2017 also not to proceed. These matters have had a long genesis. Arrangements for this trial were made from 2016, and the case management hearing before me on 23 December 2019 was set down to set a timetable for the remaining procedural steps. That timetable was set, and I advised the parties that they should anticipate that the Court would require both parties to comply with it. 17 In my view, ordinary court management principles apply such that it would be oppressive to the opposing party to yield to an application for adjournment in the terms pressed by Mr Martin made at such a late stage. If it need be said, I apprehend no reason to resile from the conclusion that I reached in my written reasons of 6 January 2020. Ultimately however, that is of no consequence. All judges may be in error. I am however unpersuaded that it is likely that in the absence of Mr Martin having taken the steps open to him in this Court to seek review of what he asserts to be an erroneous decision that the High Court would grant leave to permit that course. 18 If however I am wrong in that regard, and ultimately Mr Martin were to pursue and be successful in an application to the High Court, I am satisfied that no undue prejudice would be occasioned which would not be capable of being remedied by orders in respect of costs and other matters that might attend orders made by the High Court remitting proceedings NSD1610/2016 for rehearing before a Full Court. For those reasons, I would dismiss Mr Martin's application for adjournment of the hearing of the proceedings before me today. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.