4.3 Alleged representations on 23 September 2016
73 The primary judge then used subsequent circumstances to reinforce his conclusion that Mr Cross was engaged in a continuing deceitful course of conduct. It will be recalled that in serving the sealed documents on Mr Harmer Mr Cross said:
The process of filing the documents with the Federal Court had progressed too far on Monday to be reversed following receipt of your email and our subsequent agreement on mediation. The Court sent us sealed copies yesterday.
So it is best we go ahead with service as per the attached letter.
The date for directions (18 October 2016) falls well after the mediation. If mediation activities are still going on than we can sort out an adjournment.
Give me a call to discuss.
74 "Monday" was 19 September 2016. Mr Cross served the documents on Friday, 23 September 2016.
75 Hindsight is easy. Mr Cross could have called the Registry on 19 or 20 September 2016 to seek to withdraw the documents or place the filing process on hold. He could have told Mr Harmer on 20 or 21 September 2016 that he had not tried to stop the filing process. No matter how regrettable these facts, what cannot be inferred is that Mr Cross was involved in a deceitful scheme to mislead Mr Harmer and Mr Martin to their detriment and Norton Rose's advantage. If applicable (given that counsel for Mr Martin tendered Mr Cross's affidavits), Jones v Dunkel could not operate to permit that inference to be drawn.
76 First, the evidence of Mr Cross's email to Ms Smith in the afternoon of 21 September 2016 ("[s]ome developments have just happened which may mean that we don't want to proceed with filing the [Federal Court] docs right now. There may be a mediation…") discloses that at that time he considered he could still defer the filing of the documents. As such, it must be inferred that despite his apparent dilatoriness, at this time, Mr Cross was contemplating action consistent with his telephone call to Mr Harmer.
77 Second, from the time he was told that he had omitted to sign the originating application and the Registry requested a signed version (the afternoon of 21 September 2016), it cannot be inferred that Mr Cross anticipated that the Registry would accept the unsigned originating application for filing rather than await the receipt of a signed originating application in accordance with its request. Nor, at that time, can Mr Cross have anticipated that the Registry would accept the documents for filing without the filing fee having been paid. Mr Cross must have thought he had achieved the objective of stopping the process of filing without having done anything except overlooking that he had to sign the originating application and not having ensured the filing fee was paid at the time of lodgement of the documents.
78 Third, and critically, we know from the contemporaneous documents that before Ms Smith paid the filing fee and provided a signed copy of the originating application to the Registry, the Registry called and informed Ms Smith on 22 September 2016 (who then informed Mr Cross at 12.06 pm on 22 September 2016) that the prohibition proceeding had been listed before Wigney J on 18 October 2016.
79 The fact that Mr Cross was not called to give evidence (again leaving aside that Mr Martin's counsel tendered Mr Cross's affidavits), does not found a rational inference that having told Mr Harmer he had "stopped" or "will stop" the filing, Mr Cross then (or always) calculated that if he did nothing after the time of his email to Ms Smith saying the mediation may mean that "we don't want to proceed with filing the [Federal Court] docs right now" (4.52 pm on 21 September 2016), the Registry would accept the documents for filing and he could gain an advantage over Mr Martin by pretending this was outside his control. This is profoundly implausible.
80 By 21 September 2016, Mr Cross knew that he had not signed the originating application and the Registry had asked for a signed originating application. Yet at 12.06 pm on 22 September 2016 Mr Cross was told that the prohibition proceeding had been listed before Wigney J on 18 October 2016. From a litigation lawyer's perspective, the listing of the prohibition proceeding necessarily meant the prohibition proceeding had been accepted by the Registry for filing and the filing fee was a debt due to the Court. On the sequence of the contemporaneous documents, it is apparent that Mr Cross then caused Ms Smith to pay the filing fee - that is, after he must have understood the prohibition proceeding had been filed. What Mr Cross could not have known, however, is that the Registry did not in fact irrevocably accept the documents for filing until around 4.00 pm on 22 September 2016, after Norton Rose paid the filing fee but before it had provided a signed version of the originating application.
81 Mr Cross then made what, with hindsight, turned out to be another poor decision. After receiving the sealed documents back from the Registry on 23 September 2016, he signed the originating application and put the date 19 September 2016 on it above his signature. At J [184] the primary judge took this action to be evidence of Mr Cross's ongoing sinister intent.
82 However, consider this action both without hindsight and without assuming deceitful intent based on implausible inferences about Mr Cross's earlier conduct being the start of a continuing process of deceit. On that basis:
(1) Mr Cross had signed the statement of claim and genuine steps statement both of which had a date of 19 September 2016 on them and intended to sign the originating application at that time;
(2) the originating application also had the date 19 September 2016 on it on another page;
(3) Mr Cross had caused all of the documents to be sent to the Registry on 19 September 2016 intending that they be filed;
(4) Mr Cross must be inferred to have had authority from Norton Rose to lodge the prohibition proceeding as at 19 September 2016;
(5) Mr Cross had received from the Registry sealed copies of all of the documents including the unsigned originating application on 22 September 2016; and
(6) on their face these documents showed that they had been lodged on 21 September 2016 (not 19 September 2016) and accepted for filing on 22 September 2016.
83 This is the objective contemporaneous context within which Mr Cross acted. With hindsight, he could have signed a fresh originating application and dated it 23 September 2016, asked the Registry to seal that document, and then served that document on Mr Harmer. He could have signed the sealed originating application returned by the Registry and written the date 23 September 2016 above his signature. He did not. He signed the sealed originating application returned by the Registry and wrote the date 19 September 2016 above it.
84 Considered in the objectively ascertainable contemporaneous circumstances it could never have occurred to any reasonable lawyer in Mr Cross's position that he was doing anything improper or potentially misleading or deceptive. The only way in which a reasonable lawyer in Mr Cross's position could have conceived of a basis on which it would be improper or potentially misleading or deceptive to do what Mr Cross had done was by accepting the constructs which the primary judge had accepted and we have rejected that: (a) the parties were working on a common assumption that Norton Rose would not file the prohibition proceeding until after the mediation, (b) Mr Cross thought he could get Mr Martin to agree to the mediation only if the prohibition proceeding had not been filed, and (c) Mr Cross thought that he could obtain an advantage over Mr Martin in the mediation by the prohibition proceeding in fact being filed before the mediation took place.
85 As we have said, these constructs are unsustainable. Without them, it would not have occurred to a reasonable lawyer in Mr Cross's position that the documents as served or the covering email could have misled anyone, let alone have conveyed to Mr Martin the so-called service representation or process representation. Those pleaded representations were that by the email and service of the documents on Mr Harmer, Norton Rose represented that:
(a) the Sealed Documents served on the Applicant were identical copies of the "sealed copies" issued to the Respondents by the Registry of the Court on 22 September 2016;
(b) the served sealed Originating Application was the True Originating Application;
(c) Cross had signed the True Originating Application on 19 September 2016, before the document had been filed;
(d) the True Originating Application issued by the Court was duly signed and dated accordingly;
(e) the True Originating Application had been filed, and Action 1610 commenced, in substantial compliance with the Federal Court Rules 2011
(collectively called the service representation); and
…
no further procedural step had been taken by, or was required of, [Norton Rose] in order to commence Action 1610 prior to the Private Mediation (the process representation).
86 The statement in the email that the "process of filing the documents with the Federal Court had progressed too far on Monday to be reversed following receipt of your email and our subsequent agreement on mediation" is wrong. Mr Cross could not have known whether this was so one way or another on Monday, 19 September 2016 as he had not tried to reverse the process on that day. But did the email convey the process representation? And was the statement a deliberate falsehood?
87 The primary judge concluded that the process representation had been made and that in making the representation Mr Cross had intended to deceive Mr Martin.
88 We cannot agree with the primary judge's reasoning.
89 The statement that the "process of filing the documents with the Federal Court had progressed too far on Monday to be reversed" did not convey that no further procedural step had been taken by, or was required of, Norton Rose in order to commence the prohibition proceeding prior to the mediation. The pleaded process representation, in truth, does not make sense. Presumably it means that what was conveyed was a representation that Norton Rose did not or was not required to take any procedural step in the Court after the discussions between Mr Cross and Mr Harmer on 19 September 2019 to effect the commencement in the Court of the prohibition proceeding.
90 However, there is a large gap between the statement that the "process of filing the documents with the Federal Court had progressed too far on Monday to be reversed" and the alleged process representation. It is not apparent how the primary judge got from the statement to the alleged process representation. All the primary judge says in this regard at J [138] is that:
Having regard to the terms of Mr Cross's email I am satisfied that the Process Representation Mr Martin pleads was made. In context, I am satisfied that his statement that the process could not have been reversed after [NRFA] had lodged its documents at 12:02pm on Monday 19 September 2016 conveyed the representation that no further procedural steps, as from that time, had been required of NRFA in order to complete the process of filing.
91 The actual representation Mr Cross made in the email was that he could not stop the process of filing the documents with the Federal Court because it had progressed too far on 19 September 2016. As noted, this was wrong because the truth is that Mr Cross could not have known one way or another whether the process had progressed too far on 19 September 2016 as he had not attempted to stop the process on that day. But that was not the pleaded representation and Mr Martin did not suggest he had relied on it.
92 The reality is that whether the process representation was made or the representation made was that Mr Cross could not stop the process of filing because it had progressed too far to be reversed, they were both wrong. Accordingly, the primary judge was right at J [158] to conclude that the process representation was false - but as we have said, it was not made at all.
93 The fact that the representations (if made) were both wrong also does not mean that Mr Cross deliberately deceived Mr Harmer and thus Mr Martin in that regard. The primary judge reasoned as follows:
[166] I am therefore satisfied that - notwithstanding the seriousness of the conclusion that follows -as at 4:27pm on Friday 23 September 2016 Mr Cross was well aware that the "process of filing" could have been reversed from Monday 19 September until some days later. He well knew that NRFA would have been able to stop the process of "filing the [Federal Court] docs", because he had had to take steps to secure that outcome. He had actively participated in ensuring that the process could be completed by arranging for the payment of the required filing fee. It is entirely implausible that I should conclude that Mr Cross could have believed anything else having regard to the terms of the email he sent to Ms Smith on the afternoon of Wednesday 21 September 2016, in which it is assumed on his part that as at that time it was still within NRFA's power not "to proceed with filing the [Federal Court] docs right now".
[167] Buttressing my conclusion with respect to what I am entitled to find was Mr Cross's state of mind, I am satisfied that he had a motive to deceive Mr Martin with respect to the events that had occurred on Monday 19 September 2016.
[168] I have earlier reasoned that to secure the benefit he thought likely to be afforded to NRFA by the making of the Stop Representation (that is, to ensure that the mediation occurred against a background where proceeding NSD1610/2016 had already been filed) Mr Cross would have known he needed to carefully manage the circumstances in which Mr Martin would become aware that those proceedings had been commenced. Otherwise, Mr Martin would identify that he had been deceived and potentially might withdraw from those private settlement negotiations.
[169] I infer that this is why although it had been Ms Smith who had arranged for the service of the originating documents on the FWC, it was Mr Cross who wrote the covering email serving the same documents on Mr Martin. The chronology I have set out above for Friday 23 September 2016 makes plain that Mr Cross insisted that it be him rather than Ms Smith who would convey NRFA's reasons for the filing to Mr Harmer. By his then making the (false) representation that the filing had earlier been irreversible, Mr Cross falsely conveyed the impression that NRFA had adhered to the spirit of the nascent mediation agreement into which it had been on the threshold of entering but had been unable to stop its filing of the Prohibition Proceeding by circumstances beyond its control.
94 All of this depends on the implausible constructs already dismantled.
95 There was never an agreement that Norton Rose would not file the prohibition proceeding before the mediation, so there was no "nascent mediation agreement into which [Norton Rose] had been on the threshold of entering" as proposed in J [169]. As such, there was no "spirit" of any such nascent agreement as proposed in J [169].
96 No reasonable lawyer could have imagined that anything much turned on the fact as to whether the prohibition proceeding had not been lodged with the Registry, had been lodged with the Registry but not accepted by the Registry for filing, or had been lodged with the Registry and accepted for filing before the mediation. It was known to and understood by both parties that if the mediation failed, Norton Rose would prosecute the prohibition proceeding. The precise status of that proceeding in the Court could not matter to any reasonable and rational person, still less a reasonable and rational lawyer.
97 The conduct of Mr Harmer reinforces this conclusion. It must be inferred from the evidence that he was not fussed that Mr Cross had taken steps to file the prohibition proceeding. He was not concerned to ask how exactly Mr Cross proposed to stop the filing process. He did not ask to be informed as to what steps Mr Cross would take to stop the filing process. He did not ask that Mr Cross inform him that he had succeeded in stopping the filing process. He did not suggest the agreement as to mediation was conditional on Mr Cross stopping the filing process. He did not perceive any inconsistency of any materiality between Mr Cross having said he had stopped or will stop the filing process.
98 None of this suggests any carelessness on Mr Harmer's part. The inescapable inference is that it simply did not matter to Mr Harmer one way or another whether the prohibition proceeding had been commenced or not; the necessary and rational inference is that provided the parties did not have to incur any unnecessary expense in respect of either the Fair Work Commission proceeding or the prohibition proceeding before the mediation had been completed, Mr Harmer had no concern about the intricacies or nuances concerning the commencement of the prohibition proceeding.
99 The constructs which we are unable to accept are further exposed by the primary judge's observation at J [166] that Mr Cross "well knew that NRFA would have been able to stop the process of 'filing the [Federal Court] docs', because he had had to take steps to secure that outcome. He had actively participated in ensuring that the process could be completed by arranging for the payment of the required filing fee". The observations assume the filing of the prohibition proceeding had a significance to Mr Cross and Mr Harmer which it did not have. It also overlooks some critical aspects of the context and some critical facts.
100 In terms of context:
(1) it must be inferred that Mr Cross, as a partner of Norton Rose whom Norton Rose entrusted to handle the dispute with Mr Martin, was a reasonably experienced litigator familiar with Court processes including how documents get filed, sealed by a Court Registry, and returned to a party for service;
(2) reasonably experienced litigators know that in order to file a proceeding, the relevant initiating documents have to be signed. If the party is legally represented, the lawyer with the carriage of the proceeding must sign the initiating documents. If the party is not legally represented, the party commencing the proceeding must sign the initiating documents;
(3) given that he signed the statement of claim and the genuine steps statement, Mr Cross's failure to sign the originating application was a clear accidental oversight;
(4) whether he knew their details or not Mr Cross, accordingly, must be inferred to have known that this Court would have rules to the effect of r 2.15(1)(a) of the Federal Court Rules 2011 (Cth) (a document (other than an affidavit, annexure or exhibit attached to another document) filed by a party in a proceeding must be dated and signed by the party's lawyer) and r 2.27(c) (a document will not be accepted for filing if it is not properly signed);
(5) Mr Cross also must be inferred to have known that rules of court are generally procedural and can be dispensed with (as is the case under r 1.34 of the Federal Court Rules);
(6) while litigation lawyers say they have "filed" documents in a court, they know that they have lodged the documents and it is for the court to accept documents for filing, but such acceptance usually occurs as of course;
(7) Mr Cross lodged the prohibition proceeding documents on 19 September 2016 intending that the Registry accept them for filing. Again, whether he knew the details of r 2.25 of the Federal Court Rules or not, Mr Cross would have known that lodging documents with a Registry is one thing, and the Registry accepting them for filing is another. Under r 2.25 a document is filed if it is lodged with the Court (including in person, by facsimile, post or electronically under r 2.21) and is accepted in the Registry by being stamped as "filed". Further, under r 2.01(2)(a) the seal of the Court is to be fixed to, amongst other things, an originating application; and
(8) because a party is required to serve the documents initiating a proceeding, under r 2.21(4) the party intending to file those documents must provide sufficient copies for sealing, stamping or signing. Once the initiating documents are sealed, stamped and signed as required by the Court (that is, signed by the Registrar as contemplated by r 2.01(3)(b)), the Registry will return the sealed, stamped and signed copies to the party for service.
101 In terms of facts:
(1) as noted, Mr Cross caused the initiating documents to be sent to the Registry on 19 September 2016 intending them to be accepted for filing and, no doubt, with the intention he would then cause the filed documents to be served;
(2) Mr Cross told Mr Harmer that he had stopped the filing process not because of any perceived concern Mr Harmer might have had that the prohibition proceeding had been lodged with the Registry for filing, but because Mr Cross had not seen Mr Harmer's letter of 15 September 2016 (described by Mr Cross as a "potentially important letter from you" in Mr Cross's email to Mr Harmer of 19 September 2016);
(3) the fact that Mr Cross had not stopped the filing process at the time of his email of 19 September 2016 to Mr Harmer and did not take steps thereafter to stop the filing process does not mean that he intended to deceive Mr Harmer either when he sent the email or when he said to Mr Harmer in conversation shortly thereafter "I will call that [(the filing)] off…";
(4) on 21 September 2016 the Registry informed Mr Cross that he had not signed the originating application, requested a copy of the originating application, and said the filing fee had not been paid. Mr Cross, it must be inferred, was surprised by this information as he emailed Ms Smith saying "?". Ms Smith confirmed that he had not signed the originating application and said she would pay the filing fee;
(5) Mr Cross then said to Ms Smith (also on 21 September 2016) that developments had happened which may mean that he did not want to proceed with the filing, that there may be a mediation, and he would "reconnect" with Ms Smith on 22 September 2016. In other words, Mr Cross must be inferred to have believed at this time that the documents that had been lodged with the Registry had not been filed and would not be accepted for filing until Norton Rose provided a signed copy of the originating application and paid the filing fee. This is entirely inconsistent with Mr Cross having been involved in a deceptive course of conduct to make Mr Harmer believe the prohibition proceeding had not been filed while, secretly, Mr Cross wanted the prohibition proceeding to be filed. Had Mr Cross been involved in such a deceptive scheme from the time of his email and discussion with Mr Harmer on 19 September 2016 then he would not have informed Ms Smith that developments had happened which may mean that he did not want to proceed with the filing. Rather, he would have taken steps on 21 September 2016 to sign a copy of the originating application and cause Ms Smith to pay the filing fee. There is no evidence indicating he did either of these things on 21 September 2016;
(6) before any evidence discloses Mr Cross "reconnecting" with Ms Smith, the Registry contacted Ms Smith on 22 September 2016 saying the proceeding had been listed before Wigney J on 18 October 2016. At 12.06 pm on 22 September 2016 Ms Smith passed this information on to Mr Cross. She also told Mr Cross that the Registry had asked if an earlier date before Wigney J was required (to which Mr Cross responded that the date was "good"). The necessary inference from this is that Mr Cross would have understood that, despite the originating application not being signed and the filing fee not being paid, the Registry had accepted the documents for filing and listed the proceeding for a case management hearing before Wigney J. This necessary inference does not mean that:
(a) Mr Cross was unsurprised by the fact that the Registry had accepted the documents for filing when the originating application was unsigned and the filing fee not paid; or
(b) after his email to Ms Smith of 21 September 2016 saying developments had happened which may mean that he did not want to proceed with the filing, that there may be a mediation, and he would "reconnect" with Ms Smith on 22 September 2016, Mr Cross intended that the Registry should accept the documents for filing despite having been informed that the originating application was unsigned, the Registry requested a signed originating application be lodged, and the filing fee had not been paid;
(7) it does not take much to infer that from the time that he was informed of the call from the Registry to Ms Smith at 12.06 pm on 22 September 2016, Mr Cross was proceeding on the assumption that the documents had been accepted by the Registry for filing, the prohibition proceeding had thus been commenced, and nothing could be done to change that fact. This is the obvious inference that a lawyer with any litigation experience would draw in the circumstances - that the Registry had accepted an unsigned originating application for filing (perhaps because the other documents had been signed so the omission of the signature on the originating application was a mere oversight) and had done so without the filing fee having been paid (perhaps because Norton Rose is a large law firm with which the Registry had many dealings and the Registry had no concern as a result that the filing fee would be paid);
(8) it is apparent that Norton Rose (presumably Ms Smith) then paid the filing fee. Ms Smith received from the Registry confirmation of receipt of the filing fee at 3.14 pm on 22 September 2016. Again, the obvious and necessary inference is that, having been informed that the prohibition proceeding was listed for hearing before Wigney J on 18 October 2016, Mr Cross must have believed that the Registry had accepted the documents for filing on an understanding that Norton Rose would pay the filing fee. This inferred understanding of Mr Cross is necessary and obvious because, in the ordinary course and leaving aside applications for urgent interlocutory orders, courts do not list proceedings for any kind of hearing before a judge or registrar unless and until the proceeding has been filed. From the sequence of the contemporaneous documents the only available inference is that Mr Cross then caused Ms Smith to pay the filing fee. Mr Cross was not to know that the Registry had not in fact accepted the documents for filing at 12.06 pm on 22 September 2016;
(9) this is important because it changes the complexion of the fact that it must be inferred Mr Cross caused Ms Smith to pay the filing fee on 22 September 2016. If, as must be inferred, by 12.06 pm on 22 September 2016 Mr Cross believed the prohibition proceeding had been filed and given a hearing date before Wigney J on the basis of the Registry understanding Norton Rose would pay the filing fee, there is no inconsistency between Mr Cross's email to Ms Smith on 21 September 2016 about not wanting the prohibition proceeding to be filed and on 22 September 2016 causing Ms Smith to pay the filing fee later. If, as Mr Cross must have believed, the filing had occurred, then paying the fee was not causing the documents to be filed; it was complying with his understanding that the Registry had accepted the documents for filing on the basis that Norton Rose would pay the filing fee; and
(10) irrespective of the fact that the originating application was not signed, it was accepted for filing by the Registry, as were the accompanying documents, at the times disclosed on the cover page of each document, being (a) originating application, 22/09/2016 at 3:59:44 PM AEST, (b) statement of claim, 22/09/2016 at 3:59:47 PM AEST, and (c) genuine steps statement, 22/09/2016 at 3:59:49 PM AEST.
102 The primary judge has not recognised the significance of the call from the Registry to Ms Smith and Ms Smith informing Mr Cross about the content of that call at 12.06 pm on 22 September 2016. Even if an inference can be drawn in this case that Mr Cross's evidence would not have assisted Norton Rose, the best evidence is the contemporaneous documents. The events occurred in 2016. The idea that Mr Cross could give reliable evidence about what he was thinking in September 2016 one, two or more years after the events other than by reconstruction from documents is untenable. The inferences that should be drawn from the documents are clear. In short, Mr Cross caused the filing fee to be paid after being informed the proceeding had been listed for a hearing because he must have understood the proceeding had been filed and the filing fee was owed by Norton Rose and had to be paid.
103 On this basis, the primary judge's observation at J [166] that Mr Cross "well knew that NRFA would have been able to stop the process of 'filing the [Federal Court] docs', because he had had to take steps to secure that outcome… [and] had actively participated in ensuring that the process could be completed by arranging for the payment of the required filing fee" involves a significant distortion of the events. After hearing from the Registry on 21 September 2016 Mr Cross would have believed that he could stop the filing because he then knew that he had not signed the originating application, the Registry wanted a signed originating application, and he had not paid the filing fee. By 12.06 pm on 22 September 2016 Mr Cross must be inferred to have believed that the prohibition proceeding had been filed and that he had an obligation to ensure that Norton Rose paid the filing fee.
104 As discussed already, Mr Cross had no motive to deceive Mr Harmer unless an objectively unreasonable construct is accepted to the effect that Mr Cross believed that Mr Harmer considered that the fact of filing or not filing the prohibition proceeding was important to the conduct of the mediation. As noted, this construct is contrary to the evidence that: (a) on 19 September 2016 Mr Harmer wrote to Mr Cross effectively complaining that Norton Rose had neither commenced the prohibition proceeding nor agreed terms for the mediation, (b) Mr Cross had no concern about telling Mr Harmer twice on 19 September 2016 that he had commenced the process of filing the prohibition proceeding, (c) in his email of 19 September 2016 the reason Mr Cross said to Mr Harmer that he had stopped the filing process was not due to the mediation but the fact that Mr Cross had not seen Mr Harmer's letter of 15 September 2016, (d) Mr Harmer did not suggest to Mr Cross on or after 19 September 2016 that the steps taken to file the prohibition proceeding would or could undermine the proposed mediation, (e) in the subsequent telephone call on 19 September 2016, according to Mr Harmer, Mr Cross said he "will call that [(the filing)] off" so the mediation could proceed, and (f) Mr Harmer did not suggest to Mr Cross that if he could not do so, the proposed mediation would not take place or might be undermined in any way.
105 Accordingly, the purported motive of Mr Cross to deceive Mr Harmer referred to by the primary judge at J [167] does not buttress the primary judge's conclusion that Mr Cross was involved in some deceitful course of conduct from 19 September 2016. As discussed, the objective contemporaneous evidence is to the contrary.
106 The associated conclusion of the primary judge at J [168] that Mr Cross knew he would have to "carefully manage the circumstances in which Mr Martin would become aware" that the prohibition proceeding had been filed is equally untenable. It is derived from Mr Martin's after the event case theory in the damages proceeding, not a reasonable view of the objectively contemporaneous evidence of events as they occurred in 2016. The statement of the primary judge at J [168] that if not managed carefully "Mr Martin would identify that he had been deceived and potentially might withdraw from those private settlement negotiations" is divorced from the reality of the circumstances in 2016 which was that:
(1) Mr Harmer, as Mr Martin's agent, was keen for the mediation to occur;
(2) Mr Harmer knew Norton Rose's position that the Fair Work Commission had no jurisdiction in respect of the dispute;
(3) Mr Harmer knew that if the matter did not settle at the mediation, Norton Rose would prosecute the proposed prohibition proceeding;
(4) the direct stop representation did not occur in a vacuum but was quickly followed by a call between Mr Cross and Mr Hamer in which, on Mr Harmer's own evidence, Mr Cross said that he "will" call off the filing of the prohibition proceeding, not that he had stopped the filing;
(5) at the time of this telephone call Mr Harmer must have known that the prohibition proceeding might have already been accepted for filing by the Court and that Mr Cross might not be able to stop the filing, depending on the circumstances, but asked no questions of Mr Cross indicating any concern as to the fact of filing one way or another; and
(6) Mr Harmer's lack of concern about whether or not the prohibition proceeding was filed makes sense given that, if filed, the proceeding could be adjourned until after the mediation without Mr Martin incurring any associated costs.
107 In these circumstances, there was no foundation for the idea that Mr Cross thought he had to carefully manage the circumstances in which Mr Martin would become aware of the commencement of the prohibition proceeding or otherwise might believe he had been deceived and withdraw from the mediation. The only thing Mr Harmer could have believed by the end of 19 September 2016 was that Mr Cross would try to stop the Court from accepting the prohibition proceeding for filing. Further, Mr Cross would have had no reason from his communications with Mr Harmer to suspect, let alone believe, that if Mr Cross did not stop the Court from accepting the prohibition proceeding for filing Mr Harmer (and thus Mr Martin) would believe themselves to be deceived or that Mr Martin might instruct Mr Harmer that he would withdraw from the mediation. To attribute these beliefs to Mr Cross, in the objectively ascertainable contemporaneous circumstances, involves glaring improbability of the kind that would enable the appeal court to overturn primary factual findings; as noted, however, this form of error is not necessary to justify appellate intervention in this case given the issue is one of inferences from the evidence which we are as well-placed to evaluate as the primary judge.
108 It also follows that there is nothing suspicious about Mr Cross drafting and signing the covering email of service to Mr Harmer on 23 September 2016 instead of Ms Smith. There is no basis in the evidence for inferring that Mr Cross "insisted" he send the covering letter of service to Mr Harmer (on the primary judge's construct, so Mr Cross could cover his deceitful tracks). To the contrary, Ms Smith first said to Mr Cross that she thought he had better send the documents to Mr Harmer. Ms Smith then said she could email the documents by way of service to both the Fair Work Commission and Mr Harmer. Mr Cross responded that Ms Smith should "[j]ust do the FWC one for now". Far from Mr Cross carefully crafting his covering email to Mr Harmer, Mr Cross drafted the email and accidentally forwarded it to Ms Smith instead of Mr Harmer. Once Ms Smith informed Mr Cross that she had received the email instead of Mr Harmer, Mr Cross sent the email to Mr Harmer. None of Mr Cross's actions suggests that he was a careful and strategic deceiver.
109 As noted, the email of 23 September 2016 is wrong because it says the "process of filing the documents with the Federal Court had progressed too far on Monday to be reversed following receipt of your email and our subsequent agreement on mediation" when, in fact, Mr Cross had not tried to stop the process of filing on Monday, 19 September 2016. But how drastic is this error when a reasonable view is taken of the objective circumstances at the time? Mr Cross was slow. He did not take steps to see if he could stop the filing process on 19, 20 or 21 September 2016. Instead, he did nothing. But Mr Cross also evidently had no concern that the prohibition proceeding had not been accepted for filing as his email to Ms Smith in the afternoon of 21 September 2016 discloses (that there had been developments that "may mean that we don't want to proceed with filing the [Federal Court] docs right now"). In other words, Mr Cross was hardly intent on ensuring his purported deception stayed on track by ensuring the prohibition proceeding was filed. Mr Cross was apparently content if the prohibition proceeding did not get filed "right now" for good reasons: (a) it would achieve what Mr Cross told Mr Harmer on 19 September 2016 he would do (without Mr Cross having done anything but forget to sign the originating application and pay the filing fee), and (b) it would not matter if the prohibition proceeding did not get filed before the mediation because everyone involved had known at all times that if the mediation did not result in settlement Norton Rose would file the prohibition proceeding.
110 The error in the email of 23 September 2016 is that it says that the process of filing the documents had progressed too far "on Monday [19 September 2016] to be reversed following receipt of your email and our subsequent agreement on mediation". The truth was that: (a) Mr Cross had not tried to stop the filing on 19 or 20 September 2016, (b) on 21 September 2016 Mr Cross was told he had not signed the originating application, that the Registry wanted a signed copy of the originating application, and the filing fee had not been paid, (c) from that time Mr Cross must have believed the Registry would not accept the documents for filing until he provided a signed originating application and caused the filing fee to be paid, (d) the next day, 22 September 2016, Mr Cross was told that prohibition proceeding had been listed before Wigney J on 18 October 2016 and from that time must have believed the prohibition proceeding was filed so he had an obligation to pay the filing fee which he caused to occur on 22 September 2016, and (e) when the Registry returned the sealed documents it is apparent that they were not accepted for filing until after the filing fee had been paid.
111 It is no surprise that Mr Cross made no attempt to disclose this convoluted series of events in his email to Mr Harmer of 23 September 2016. By this email:
(1) at worst, Mr Cross was trying to make it look like he had done something to try to stop the filing on 19 September 2016 when he had not. If this was Mr Cross's intention, the dishonesty involved was a form of self-serving puffery; or
(2) at best, the email exhibits a lack of care and precision about what was being communicated.
Even if the worst possible complexion is put on the email, it is impossible to infer that Mr Cross believed that, by so doing, he could obtain any advantage over Mr Harmer or Mr Martin other than that they might think he had been more active in trying to stop the process of filing than he in fact was. Neither the worst nor the best explanation is commendable in a lawyer, but nor do they involve any intent to deceive to obtain an advantage.
112 The primary judge's further observation at J [169] that by the email of 23 September 2016 Mr Cross was deliberately and falsely conveying "the impression that NRFA had adhered to the spirit of the nascent mediation agreement into which it had been on the threshold of entering" suffers from the defects already identified - there was no nascent mediation agreement and there was certainly no nascent mediation agreement which depended on a common understanding of Mr Harmer and Mr Cross that the prohibition proceeding would not be filed unless and until the proposed mediation had failed.
113 Contrary to J [170] the supposed "advantage" Mr Cross was seeking to secure was not just "objectively illusory". On the evidence it cannot be inferred that the supposed "advantage" subjectively existed in the mind of either Mr Cross or Mr Harmer. It follows that there is no evidentiary foundation for Mr Cross having any motive to make the false representations.
114 The primary judge accepted at J [173] that elements (a) and (c) of the service representation had been made (that "the Sealed Documents served on the Applicant were identical copies of the sealed copies' issued to the Respondents by the Registry of the Court on 22 September 2016" and "Cross had signed the True Originating Application on 19 September 2016, before the document had been filed"). This is fair enough and Norton Rose does not assert error in this regard.
115 The primary judge rejected element (e) of the service representation (that "the True Originating Application had been filed, and Action 1610 commenced, in substantial compliance with the Federal Court Rules 2011") at J [174]. That conclusion must be right. There is no basis upon which a lawyer (including Mr Martin) being served with an originating application, statement of claim, and genuine steps statement could reasonably believe that the proceeding had been commenced in substantial compliance with the Federal Court Rules.
116 First, although r 2.27(b) says that a document will not be accepted for filing if it does not substantially comply with the Rules, r 1.34 says the Rules can be dispensed with.
117 Second, many aspects of the Rules are contestable, such as the required content of a pleading: see Pt 16 of the Rules.
118 Third, in any system mistakes can be made.
119 Fourth, if a mistake matters the Rules enable it to be corrected by applications for strike out (r 16.21) and summary judgment (r 26.01).
120 Fifth, if it should be inferred that Mr Harmer or Mr Martin considered r 2.27(b) at the time (which seems highly improbable), then they must also be inferred to have been aware of both r 1.34 and, more importantly, s 51(1) of the Federal Court of Australia Act 1976 (Cth) which provides that:
No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.
121 The primary judge also accepted at J [175] that elements (b) and (d) of the service representation were made (that the served sealed Originating Application was the True Originating Application and the True Originating Application issued by the Court was duly signed and dated accordingly). Given the definitions in Mr Martin's further amended statement of claim in the damages proceeding this means that Mr Cross represented that the version of the originating application he served was the same as the version returned by the Registry to Norton Rose and the version returned by the Registry to Norton Rose had been signed and dated 19 September 2016 by Mr Cross. While, at one level, we understand why the primary judge accepted that these representations were made, at another level, that acceptance is divorced from reality. Is it seriously suggested that Mr Harmer or Mr Martin actually formed these states of mind at the time of receipt of the served documents? Neither said so in their affidavits.
122 Norton Rose rightly accepted that, if made, the service representation was potentially misleading for the obvious reason that Mr Cross had signed and dated the sealed originating application as 19 September 2016 on 23 September 2016 after return of the sealed version of the application from the Court. The primary judge found that the service representation (excluding element (e) which was not made) was actually misleading and false (J [177]), and deliberately so (J [183]-[186]). Consistently with our reasoning above, we disagree.
123 To be misleading or deceptive or likely to mislead or deceive a person, the conduct must in fact operate or be likely to operate on the mind of the person to induce some kind of error or involve a real chance of so doing. As noted, there is no sufficient evidentiary foundation to support any inference that Mr Harmer or Mr Martin in fact formed any states of mind consistent with the service representation at any relevant time. Nor are we able to accept that there was a real chance of them so doing. We do not deny that it is possible that some person, of a highly suspicious nature and excessively literal turn of mind, might have conceived the states of mind in elements (a) to (d) of the service representation as a result of Mr Cross's email of 23 September 2016, if that person had a reason to think about those issues at all. But we do not consider that any reasonable person would or could have done so. A reasonable person would not have turned their minds to any of the elements of the service representation. A reasonable person in the position of Mr Harmer and Mr Martin, on receiving the 23 September 2016 email and leaving aside the process representation, would have thought nothing more than that: (a) Norton Rose had commenced the prohibition proceeding, (b) the directions hearing was on 18 October 2016, and (c) if the mediation was not completed by 18 October 2016, Norton Rose would agree to adjourn the prohibition proceeding to a later date to enable the mediation to be completed.
124 Nor can we agree with the primary judge's conclusion that Mr Cross intended to deceive Mr Harmer and Mr Martin. Any Jones v Dunkel inference (even if available) could not extend further than an inference to the effect that Mr Cross's evidence would not have assisted Norton Rose's case. It could not, of itself, support an inference that Mr Cross intended to deceive Mr Harmer and Mr Martin. Other evidence supporting that inference was required. The primary judge considered that there was such other evidence but, as we have said, this involved the primary judge accepting inferences irreconcilable with the objectively contemporaneous evidence and objectively reasonable norms of human behaviour.
125 Put aside undue suspicion and focus on what Mr Cross did. He signed and dated the statement of claim and genuine steps statement on 19 September 2016. It is obvious he intended to sign and date the originating application 19 September 2016 on 19 September 2016, but did not do so. He received the documents back from the Registry sealed and ready for service. He then signed the originating application and put the date 19 September 2016 above his signature. As a reasonable lawyer he had no reason to believe that Mr Harmer or Mr Martin (who is also a lawyer) would be remotely interested in the oversight which led to Norton Rose trying to file an unsigned originating application. Even without Mr Cross's affidavit evidence, the proper inference is that it would never have occurred to a reasonable lawyer in Mr Cross's position as at 23 September 2016 that it would make any difference to Mr Harmer or Mr Martin if Mr Cross had not signed the originating application at all or had signed and dated it 23 September 2016. Any reasonable lawyer would understand that the Court had accepted the documents for filing and that, if they sought to challenge the validity of the commencement of the proceeding, at worst, a judge might order that a signed version of the originating application be filed and served. In other words, nothing could be done about the fact that the prohibition proceeding had been validly commenced.
126 At J [183] the primary judge referred to the evidence in Mr Cross's affidavit as tendered by counsel for Mr Martin that when he signed the originating application:
…it already carried the date of 19 September 2016; and the Federal Court seal and time stamp had already been applied. In signing the document returned to the Respondent by the Federal Court Registry and inserting the date '19/9/16' above my signature, I did not intend to create a misleading impression regarding its date. Had it occurred to me that this might be misleading, I would have crossed out the date on the final page of the document, and inserted '23/09/16' above my signature.
127 The primary judge said:
[184] In different circumstances, that might be accepted as a wholly plausible explanation. However, I have found that Mr Cross deceived Mr Martin with respect to the filing of proceeding NSD1610/2016 having been stopped and subsequently with respect to it having been too late to stop that filing. It is entirely implausible that Mr Cross would not have recognised that his signing the application and dating it as at the true day on which it had been signed would have stood tellingly to the contrary. Backdating his signature and then serving the backdated document on Mr Martin avoided that inconsistency standing out. I infer, applying Jones v Dunkel, that anything that Mr Cross could have said by way of explanation would not have assisted NRFA. I am satisfied that I am entitled to find that his applying a backdated signature was not only intentionally misleading but also inconsistent with his duty of frankness to his opponent. I therefore reject NRFA's submissions.
[185] I am satisfied, again notwithstanding the seriousness of my finding, that I am entitled to conclude that the reason that Mr Cross had backdated his signature on the originating application was to avoid attention being drawn to NRFA not having taken steps to stop the filing of that application on Monday 19 September 2016. Doing so would keep Mr Martin's legal advisors in the dark, and keep Mr Martin willing to proceed with the scheduled private mediation: notwithstanding the filing of proceeding NSD1610/2016. I am therefore satisfied that the representations made by the service of the backdated originating application were deliberate falsehoods made with the intention that Mr Martin should rely upon them.
128 This exposes the primary judge's construct of a deceptive course of conduct by Mr Cross which we have rejected. The construct only works if Mr Cross could have believed that the date on which the prohibition proceeding commenced was significant. As explained above, it was not significant. The concern attributed to Mr Cross, that if he had dated the document 23 September 2016 his deceit would be exposed by the inconsistency between that date and his email referring to the filing process having been too far advanced on Monday 19 September 2016 to reverse, exposes further fundamental problems with the construct. As noted, all of the documents as served exposed on their face the exact time at which they had been accepted by the Court as filed - (a) originating application, 22/09/2016 at 3:59:44 PM AEST, (b) statement of claim, 22/09/2016 at 3:59:47 PM AEST, and (c) genuine steps statement, 22/09/2016 at 3:59:49 PM AEST. They also showed that the documents had not been lodged electronically until: (a) originating application, 21/09/2016 at 1:11:00 PM AEST, (b) statement of claim, 21/09/2016 at 1:11:00 PM AEST, and (c) genuine steps statement, at 1:11:00 AEST. All of these dates are inconsistent with Mr Cross's email, so why would Mr Cross have any concern about putting a date of 23 September 2016 on the originating application?
129 Further, had Mr Harmer or Mr Martin been remotely concerned about the inconsistency between the email and what the documents showed as to their lodgement and filing and its possible impact on the mediation, they had from 23 September until 7 October 2016 to voice that concern. They did not do so. Mr Martin explained this by saying that while he noticed that the time of acceptance for filing seemed odd, he did not see any utility in raising this as the mediation was already scheduled to occur on 7 October 2016. This is not the reaction of a person who conceived of the service and process representations. It is not the reaction of a person who relied on those representations. It is not the reaction of a person who, at that time, cared one way or another about the course of the filing of the prohibition proceeding.
130 Given these conclusions, it is not necessary to say anything about the primary judge's conclusion that the alleged representations were not made in trade or commerce.
131 For these reasons the misleading or deceptive conduct case was required to be rejected.