Federal Court of Australia

Martin v Norton Rose Fulbright Australia [2021] FCAFC 216

ORDERS

THE COURT ORDERS THAT:

1.    The appeal of Thomas Martin in respect of SAD49/2017 be dismissed.

2.    The cross-appeal of Norton Rose in respect of SAD49/2017 be allowed.

3.    The appeal of Norton Rose in respect of NSD1610/2016 be dismissed.

4.    Orders 1-4, 6, and 7 made on 16 November 2020 in SAD49/2017 be set aside.

5.    In lieu thereof it be ordered that Thomas Martin’s originating application and further amended statement of claim in SAD49/2017 be dismissed.

6.    Thomas Martin pay Norton Rose’s costs of the appeal of Thomas Martin and cross-appeal of Norton Rose in SAD173/2020.

7.    There be no order as to costs of the appeal of Norton Rose in respect of NSD1610/2016.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 made on 15 December 2020 in SAD49/2017 be set aside.

2.    In lieu thereof it be ordered that Thomas Martin pay Norton Rose’s costs in respect of SAD49/2017 as agreed or taxed.

3.    Thomas Martin pay Norton Rose’s costs of the appeal of Norton Rose in SAD187/2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1.1    The case below

1    The claims the subject of these reasons for judgment all arise from the same circumstances. In 2013 Norton Rose Fulbright Australia (Norton Rose or NRFA) employed Thomas Martin as a lawyer. On 1 May 2015 Mr Martin became a fixed profit share partner of Norton Rose. Norton Rose terminated Mr Martin’s position as a fixed profit share partner on 15 July 2016 with immediate effect. The parties have been litigating since.

2    Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641 (J) concerned two proceedings, SAD49/2017 (the damages proceeding), a claim by Mr Martin against Norton Rose for damages for the alleged torts of deceit and abuse of process, and for alleged misleading and deceptive conduct, and NSD1610/2016 (the prohibition proceeding), a claim by Norton Rose against Mr Martin where the only remaining issue was costs. The primary judge (Kerr J) concluded that Mr Martin had established his claims against the Norton Rose for the torts of deceit and abuse of process, but rejected Mr Martin’s claims that Norton Rose had also engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth). In the damages proceeding the primary judge awarded Mr Martin: (a) $60.00 as damages in respect of the tort of deceit, (b) $10,000.00 as aggravated damages in respect of the tort of deceit, (c) $150,000.00 as exemplary damages in respect of the tort of deceit, and (d) $470.00 as damages in respect of the tort of abuse of process. The primary judge also ordered Norton Rose to pay Mr Martin’s costs of both proceedings on an indemnity basis: Martin v Norton Rose Fulbright Australia (No 12) [2020] FCA 1795.

1.2    Background

3    After Norton Rose summarily terminated Mr Martin’s fixed share partnership on 15 July 2016 Mr Martin filed an application in the Fair Work Commission (or FWC) under s 365 of the Fair Work Act 2009 (Cth).

4    Despite another partner of Norton Rose, Mr Cross, having had some involvement in the process by which Norton Rose terminated Mr Martin’s partnership, Norton Rose decided to appoint Mr Cross to represent it in respect of Mr Martin’s proceeding in the Fair Work Commission. This involved a serious error of judgment. Failing to ensure it had independent legal representation did not cause the subsequent events, but Norton Rose’s lack of independent legal representation in its dispute with Mr Martin exposed Norton Rose and Mr Cross to Mr Martin’s claims.

5    On the basis that it was a partnership and Mr Martin was not an employee but a fixed profit share partner, Norton Rose decided to file a proceeding in this Court seeking a writ of prohibition alleging that the Fair Work Commission did not have jurisdiction to deal with Mr Martin’s application. This is proceeding NSD1610/2016, the prohibition proceeding, which was lodged and then filed in this Court between 19 and 23 September 2016 (the circumstances of the filing are part of the dispute). Mr Cross was also the lawyer for Norton Rose in the prohibition proceeding.

6    The parties agreed to attend a private mediation. A conciliation conference in the Fair Work Commission listed for 20 September 2016 was adjourned until 19 October 2016. The mediation commenced on 7 October 2016 and was scheduled to continue on 14 October 2016. By 10 October 2016 the parties agreed that there was no point in continuing the mediation. On 17 October 2016 Mr Martin filed a notice of discontinuance of his application in the Fair Work Commission, apparently on the basis as communicated by his then lawyers, Harmers Workplace Lawyers, to Norton Rose, that Mr Martin “has decided to pursue his claim in an alternative forum” (apparently, before the Australian Human Rights Commission).

7    The prohibition proceeding was listed before the original docket judge in this Court, Wigney J, on 18 October 2016. As Mr Martin had discontinued the proceeding in the Fair Work Commission, the prohibition proceeding no longer had utility. Before Wigney J, Norton Rose sought an order that Mr Martin pay its costs of the prohibition proceeding supported by an affidavit from Mr Cross. Mr Martin sought an order that Norton Rose pay his costs of the prohibition proceeding. After some interlocutory issues Wigney J listed the costs issue for hearing on 20 February 2017.

8    Norton Rose appointed external lawyers to act for it on 10 February 2017.

9    On 17 February 2017, Mr Martin lodged proceeding SAD49/2017, the damages proceeding.

10    Suffice to say, the scope of the dispute then continued to expand, albeit never including the legality or otherwise of the termination of Mr Martin’s partnership in Norton Rose (which might be thought to be the real issue).

11    Eventually, in March 2020, after 13 judgments of this Court (including two judgments of the Full Court) the primary judge (not the original docket judge) heard the damages proceeding and the issue of costs in the prohibition proceeding. As noted, the primary judge held that Norton Rose had committed the torts of deceit and abuse of process in connection with the filing of the prohibition proceeding.

12    Mr Martin then filed an appeal and Norton Rose filed a cross-appeal in respect of the damages proceeding, as well as an appeal in respect of the order for indemnity costs against Norton Rose in the prohibition proceeding.

13    As explained below, the conclusions of the primary judge cannot be sustained. His Honour’s substantive orders result from error. Mr Martin’s appeal must be dismissed. His allegations, including of actual and apprehended bias, are without foundation. Norton Rose’s cross-appeal must be allowed. The damages proceeding must be dismissed with costs.

14    Mr Martin may or may not have a legitimate grievance against Norton Rose for its summary termination of his partnership. Mr Martin indicated during the hearing of the appeal and cross-appeal that he still intends to pursue a substantive claim against Norton Rose in this regard. What is apparent is that whatever may be thought of Norton Rose’s conduct in summarily terminating Mr Martin’s partnership, or its error of judgment in acting for itself in the initial stage of the dispute which then ensued, or of Mr Cross’s conduct in the initial stages of dispute, Norton Rose did not thereby commit the tort of deceit by reason of Mr Cross’s dealings with Mr Martin and his lawyers and did not commit the tort of abuse of process in commencing the prohibition proceeding.

2.    APPELLATE REVIEW

15    The principal issues which arise do not involve any challenge to the primary judge’s factual findings. The focus is the inferences which the primary judge drew and the conclusions he reached from the evidence and the facts as found. Accordingly, we are in as good a position as the primary judge to decide what inferences should be drawn and conclusions reached: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551-552. It is not necessary that we be persuaded that the primary judge’s findings are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” nor “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29].

3.    THE KEY FACTS

16    These are the key facts only. The risk of identifying each and every fact is a loss of perspective about the essence of the dealings between the parties.

3.1    Up to the filing of the prohibition proceeding

17    Norton Rose employed Mr Martin as a lawyer from January 2013. On 1 May 2015 Mr Martin became a fixed profit share partner of Norton Rose. Things did not work out. Norton Rose terminated Mr Martin as a fixed profit share partner on 15 July 2016 without notice.

18    On 5 August 2016 Mr Martin’s lawyers, Harmers, filed a general protections application on behalf of Mr Martin in the Fair Work Commission under s 365 of the Fair Work Act. Section 365 provides that a person who has been dismissed may apply to the Fair Work Commission to deal with the dispute. Under s 386(1) “dismissed” means, relevantly, that a person’s employment with his or her employer has been terminated on the employer’s initiative.

19    Norton Rose appointed one of its own partners, Mr Cross, to act for it in respect of the dispute with Mr Martin.

20    From 22 August 2016 two strands of dealings were in play.

21    First, Norton Rose informed Harmers that it considered that as Mr Martin was a fixed profit share partner and not an employee, the Fair Work Commission had no jurisdiction to deal with Mr Martin’s application under s 365. Norton Rose prepared documents for filing in this Court constituting the proposed prohibition proceeding and provided Harmers with copies of the draft originating application and statement of claim in the proposed prohibition proceeding.

22    Second, Harmers proposed an adjournment of a telephone conciliation conference in the Fair Work Commission scheduled for 20 September 2016 to enable the parties to engage in a private mediation.

23    Norton Rose agreed to engage in private mediation on two conditions or terms that the Fair Work Commission be jointly notified: (a) of Norton Rose’s contention that the Fair Work Commission did not have jurisdiction so that if the mediation failed Norton Rose would litigate that issue in this Court, and (b) Norton Rose would serve the prohibition proceeding on the Fair Work Commission.

24    Harmers agreed to this proposal subject to its own suite of terms including so-called term 1 that the “joint communication with the Fair Work Commission should for the sake of clarity state that in the event that the parties do not reach agreement in the private mediation, the Respondent proposes to litigate the issue of jurisdiction in the Federal Court of Australia”.

25    In a response of 14 September 2016 Mr Cross said that he agreed to, amongst other things, term 1, but also insisted on agreement about certain other terms raised previously.

26    In the meantime, Norton Rose was meant to have filed a response to the application in the Fair Work Commission on 12 August 2016. Mr Cross spoke to the Fair Work Commission explaining that Norton Rose did not wish to file the response given the possible prohibition proceeding in this Court, but the Fair Work Commission told Mr Cross that it required the response to be filed.

27    On 15 September 2016 Harmers responded to Mr Cross saying that it was unreasonable for Norton Rose to insist on certain conditions for the mediation but that Mr Martin remained prepared to engage in private mediation on the “following basis” which included that “[t]erms 1, 2 and 4 are as agreed”. It is not in dispute that Norton Rose did not receive this email until 19 September 2016.

3.2    The filing and service of the prohibition proceeding

28    There can be no doubt from the chronology at J [81] that on the morning of 19 September 2016 Mr Cross instructed a staff member, Ms Smith, to cause the filing of the prohibition proceeding in this Court.

29    Later on 19 September 2016 Harmers wrote to Mr Cross saying:

On 22 August 2016 you wrote to us to assert that the Fair Work Commission does not have jurisdiction to deal with the dispute and threatened to file injunctive proceedings in the Federal Court on that basis on 26 August 2016.

You have not filed or otherwise progressed the foreshadowed proceedings, including by filing a ‘Genuine Steps’ Statement, notwithstanding extensive discussion in correspondence on that issue. Nor have you filed a Response to the Application. We are unaware of whether you have provided any indication to the Fair Work Commission as to whether you intend to participate in the conciliation conference tomorrow. You have not informed us of your intentions, notwithstanding the fact that we urged you to confirm your position in our letters of 9 September 2015 and 15 September 2016.

Your continuing failure to comply with the tribunal’s procedures is unacceptable. Whether or not you still harbour intentions of filing proceedings in the Federal Court, the delay in clarifying your intention has been prejudicial to our client’s interests in terms of cost and delay, not to mention discourteous to the Commission.

Since 26 August 2016, our client has sought to arrange a private mediation in order to provide an alternative means of progressing the matter notwithstanding your lack of diligence in doing so via the procedures of the tribunal, and your explained delay in commencing alternative litigation first threatened on an urgent basis almost a month ago …

30    On receiving this letter Mr Cross realised that he had not seen Harmers’ letter of 15 September 2016. Mr Cross emailed Norton Rose’s counsel and colleagues, including Mr Spanner, Norton Rose’s managing partner, saying:

This has come in from Harmers.

They propose to file an application for directions in the FWC unless we either agree to mediation on the terms referred to in their letter of 15 September or being [sic] proceedings in the [Federal Court] – by noon.

We did not receive a letter from them on 15 September and so I have gone back to them urgently on that and asked for a copy.

The [Federal Court] documents have been filed electronically with the Court this morning and we are waiting for sealed versions to be sent back.

(Emphasis in original).

31    Mr Cross also emailed Harmers on 19 September 2016 saying:

We did not commence the Federal Court proceedings on Friday because we anticipated that Ms Boyd would return our call – but that did not happen. In the absence of any response from your firm we commenced steps to file the Federal Court proceedings. In light of the fact that we have not seen a potentially important letter from you, we have stopped the process of filing the documents in the Federal Court.

Please send the 15 September letter to us as a matter of urgency.

32    After he sent this email, Mr Cross received an email from Ms Smith telling him that the prohibition proceeding had been filed by facsimile in this Court. Mr Cross also received a copy of Harmers’ letter of 15 September 2016 from Mr Harmer.

33    Mr Cross and Mr Harmer then discussed the proposed mediation in two telephone calls. They agreed a basis upon which the mediation could proceed and the conciliation conference in the Fair Work Commission could be adjourned. As contemplated, the Fair Work Commission was so informed and adjourned the conciliation conference until 19 October 2016 and notified the parties to that effect.

34    Mr Cross was informed later on 19 September 2016 that the filed prohibition proceeding documents had not yet been returned to Norton Rose by the Registry of this Court.

35    On 20 September 2016 Mr Cross emailed Norton Rose colleagues saying:

The documents relating to the prohibition application were filed in the Federal Court yesterday morning. As that was happening we received a letter from Harmers which was chasing a reply to an earlier letter of theirs’, sent on 15 September, that we have never seen. I telephoned the Harmers office to obtain a copy of the 15 September letter and to make the point that (a) we never got it and (b) I had left several messages on Friday to discuss the arrangements mediation and received no call back.

Anyway, that led to me getting a call from Harmer himself – who was in Canberra. There followed some discussions which resulted in agreement on the arrangements for a mediation in terms satisfactory to Wayne. This was communicated to the FWC and the conciliation hearing has been vacated. The mediation will take place against the background of those proceedings, which is no bad thing.

36    When Norton Rose had not received the sealed documents constituting the prohibition proceeding from the Registry by the morning of 21 September 2016, Mr Cross called the Registry. He was told there was a filing backlog and the sealed documents may not be issued that day although the Registry would try to do so.

37    In the afternoon of 21 September 2016 the Registry emailed Mr Cross noting that the filing fee had not been paid and the originating application had not been signed, and requested that Mr Cross provide a signed copy of the originating application. Mr Cross forwarded the Registry’s email to Ms Smith under a “?”. Ms Smith emailed in response, also on 21 September 2016:

I will arrange for the payment.

It is correct that you didn’t sign the originating application by the looks of things. Are you likely to be in any time this afternoon to sign it? Then I can email the signed version. Otherwise we can do tomorrow morning.

38    Mr Cross emailed Ms Smith in reply shortly afterwards saying:

Some 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. So I will reconnect with you about it tomorrow. Thanks for your help.

39    On 22 September 2016 the Registry informed Ms Smith that the prohibition proceeding had been listed before Wigney J on 18 October 2016 and she informed Mr Cross to this effect in an email. Mr Cross emailed Ms Smith back saying that the date (for a case management hearing before Wigney J) “is good”.

40    Later on 22 September 2016 the Registry also returned sealed copies of the unsigned originating application, and signed statement of claim and signed genuine steps statement to Norton Rose. Ms Smith emailed Mr Cross shortly thereafter saying “Weird … this is the one that has not been signed and they’ve still accepted it for filing …?”. Ms Smith then emailed Mr Cross again saying “I am assuming we just sign the sealed originating application and email it back to the court and then serve the signed copy?”.

41    This is not what occurred. While Ms Smith did send a signed originating application to the Registry the next day and at the same time confirmed that the filing fee had been paid, it is apparent that Mr Cross signed and put the date 19 September 2016 on the sealed but unsigned originating application returned to Norton Rose by the Registry. Norton Rose then served that version of the sealed originating application, as well as the sealed statement of claim and genuine steps statement on the Fair Work Commission and Harmers on 23 September 2016. In serving the documents on Harmers Mr Cross said in the covering email:

The process of filing the documents with the Federal Court had progressed too far on Monday [19 September 2016] 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.

42    The front page of the originating application as served states that it was lodged electronically on 21 September 2016 at 1:11:00 PM AEST and is dated under the seal 22 September 2016 3:59:44 PM AEST. The schedule to the originating application as served has a handwritten date of 19 September 2016 on it. This also appeared on the version as sent to the Registry on 19 September 2016. The last page of the document shows a signature of Mr Cross and immediately above it the date “19/9/16”. This signature and this date were added by Mr Cross after the Registry returned the sealed documents to Norton Rose.

43    As noted, the mediation occurred on 7 October 2016 and was adjourned until 14 October 2016. By 10 October 2016 the parties decided to cease mediating.

44    On 17 October 2016, two days before the scheduled conciliation conference in the Fair Work Commission, Harmers filed a notice of discontinuance of that proceeding. Harmers served the filed notice of discontinuance on Norton Rose under a letter saying:

Please find enclosed by way of service the Notice of Discontinuance which was filed on behalf of our client, in the Fair Work Commission today.

Notwithstanding, our client’s decision to discontinue the Fair Work Commission proceedings, our client maintains that he has a genuine claim for breach of the General Protection Provisions in the Fair Work Act 2009 (Cth) and that he was entitled to commence proceedings in that jurisdiction.

However, in light of the failed attempt to resolve the dispute through private mediation, and your insistence to engage in a costly and protracted pre litigation dispute in the Federal Court of Australia, our client has decided to pursue his claim in an alternate forum.

In these circumstances, our client does not foresee there to be any basis for you to seek costs against our client and as such, invites you to immediately discontinue the Federal Court Proceedings with no order as to costs.

(Emphasis in original).

45    The “costly and protracted pre litigation dispute in the Federal Court of Australia” is the prohibition proceeding. Consistent with this letter, in his affidavit, Mr Martin said that after the mediation failed he considered his options and that defending the prohibition proceeding would cost at least $100,000 and may take up to a year. Mr Martin said:

In order to avoid unwarranted cost and delay, I decided to pursue the statutory aspect of the claim in the human rights jurisdiction of the Federal Court, despite the likelihood this would take a further 6-12 months to go through the Human Rights Commission. I was of the view that I would be unlikely to recover the costs of contesting the jurisdictional issues, even if successful on all grounds, due to the Fair Work act’s costs provisions, and this formed an important part of my decision.

46    In other words, the affidavit evidence of Mr Martin accords with the contemporaneous letter from Harmers. Mr Martin decided to discontinue his application in the Fair Work Commission because he did not want to be exposed to the time and cost of the prohibition proceeding as: (a) he anticipated the prohibition proceeding would take a year to be determined, and (b) if he succeeded in the prohibition proceeding, he would not recover all of his costs of defending that proceeding.

4.    MISLEADING OR DECEPTIVE CONDUCT?

4.1    Before the prohibition proceeding documents were sent to the Registry

47    The primary judge said:

[74] As the above chronology shows, a mediation agreement was not yet in force on the morning of Monday 19 September 2016. It is however clear that such an agreement was in the common contemplation of Harmers (on behalf of Mr Martin) and NRFA and that, on that common contemplation, certain terms had been settled. One matter upon which the parties had settled was Term 1 of what they intended to become their agreement. As agreed, it was expressed as follows:

1. The joint communication with the Fair Work Commission should for the sake of clarity state that in the event that the parties do not reach agreement in the private mediation, the Respondent proposes to litigate the issue of jurisdiction in the Federal Court of Australia.

[75] NRFA’s submissions emphasise that neither party had suggested a term as would have expressly prohibited NRFA from initiating legal proceedings to contest the jurisdiction of the FWC while the private mediation was on foot. I am satisfied however that, as Mr Martin submits, it is a necessary inference to be drawn from agreed Term 1 (to which NRFA had assented) that while that party was foreshadowing that it would institute such proceedings if mediation were unsuccessful, it would not “litigate the issue of jurisdiction [of the FWC] in the Federal Court of Australia” until after the mediation had concluded.

48    We cannot agree with this characterisation of the facts. The mediation agreement had not yet been settled. Mr Harmer knew this to be so, as his email of 19 September 2016 discloses. Harmers’ email of 19 September 2016 is also fundamentally inconsistent with any suggestion that the parties were proceeding on a common assumption that Norton Rose would not “litigate the issue of jurisdiction [of the FWC] in the Federal Court of Australia” until after the mediation had concluded. The email of 19 September 2016 communicates a complaint that despite having first raised the proposed prohibition proceeding on 22 August 2016, Norton Rose had not yet filed that proceeding. This complaint about delay in filing the proposed prohibition proceeding is irreconcilable with the primary judge’s inference that the parties shared a common assumption that Norton Rose would not litigate that proceeding until after the conclusion of the mediation.

49    It follows that the primary judge’s conclusion at J [78] that “the parties were proceeding on the basis that if they agreed to mediate then NRFA would hold off on instituting the Federal Court proceedings that it had foreshadowed: pending the outcome of the mediation” is untenable. Leaving aside the fact that there is a difference between instituting and litigating a proceeding (and the primary judge has moved from the idea of “not litigating” to “not instituting” the proposed prohibition proceeding without explanation), the inference is misconceived. These are legally represented parties. Mr Martin is also a lawyer. They all knew that the terms of the mediation had not been agreed. They must have understood that unless and until all terms were agreed there was no agreement to mediate at all, including no agreement about term 1. That Mr Harmer fully understood this is clear from his email of 19 September 2016 – Mr Harmer was saying to Norton Rose that Norton Rose could delay no longer as it had to file its proposed prohibition proceeding in this Court or comply with the requirements of the Fair Work Commission or agree the terms of the proposed mediation.

50    The email which Mr Cross sent colleagues in Norton Rose on 20 September 2016 noting that the prohibition proceeding had been filed in this Court on 19 September 2016 does not support this aspect of the primary judge’s conclusions, contrary to his Honour’s statement to this effect at [80]. The email said in part that the “mediation will take place against the background of those proceedings, which is no bad thing”. “Those proceedings” refers to the prohibition proceeding in this Court. This email does not support the idea that the parties commonly believed that the prohibition proceeding would not be filed until after the mediation had concluded. From the perspective of Mr Martin it would only be “no bad thing” for the mediation to be conducted against the background of the prohibition proceeding if Mr Martin knew that the prohibition proceeding had been filed before the mediation. From the perspective of Norton Rose, it knew that the prohibition proceeding had been lodged with the Court for filing. Both are inconsistent with the conclusion that the parties shared an assumption that the prohibition proceeding would not be filed until after the mediation had concluded.

51    This is important because it is apparent that the balance of the reasoning of the primary judge assumed: (a) the existence of a common understanding on the part of Mr Cross and Mr Harmer (and thus Mr Harmer’s client, Mr Martin) that the prohibition proceeding would not be filed until the mediation had been completed (and, by inference, failed), (b) that this common understanding was important to both Mr Cross and Mr Harmer, and (c) Mr Cross and Mr Harmer both understood the importance of this common understanding to the conduct of the mediation.

52    Once these erroneous assumptions are set aside and it is inferred, as it should be from the evidence, that both Mr Cross and Mr Harmer were reasonable and rational lawyers neither excessively suspicious nor credulous, it is apparent that the subsequent inferences and conclusions of the primary judge also involve error and cannot be sustained.

4.2    Alleged representations on 19 September 2016

53    Mr Martin pleaded that by Mr Cross saying to Mr Harmer on 19 September 2016 that “… we commenced steps to file the Federal Court Proceedings … [and] [i]n light of the fact that we have not seen a potentially important letter from you, we have stopped the process of filing the documents in the Federal Court” Norton Rose represented that it had stopped taking steps to file the proposed prohibition proceeding and/or had not filed the proposed prohibition proceeding (the direct stop representation) and/or would not file the proposed prohibition proceeding while discussions occurred with Harmers with a view to agreeing to undertake the proposed private mediation (the implied stop representation).

54    Norton Rose accepted that it had made the direct stop representation and it was potentially misleading: J [101].

55    The primary judge correctly accepted that Norton Rose had not made the implied stop representation: J [107]. This was correct because Mr Cross’s communication is inconsistent with the proposition that Norton Rose would not file the proposed prohibition proceeding while discussions occurred with Harmers with a view to agreeing to undertake the proposed private mediation. The representation was only that Norton Rose had stopped the process of filing the prohibition proceeding.

56    The primary judge accepted that Norton Rose had made the direct stop representation: J [102]. No complaint can be made in that regard as Norton Rose conceded this to be so. Having made that concession the primary judge’s conclusion that the direct stop representation was false was inevitable. It was inevitable because Mr Cross had not “stopped” the filing. The primary judge also considered that the direct stop representation was knowingly false and would have been knowingly false even if the direct stop representation had been that Mr Cross had “taken steps to cease the process of filing”: J [117].

57    We cannot agree with this inference of knowing falsity of the direct stop representation.

58    Leaving aside the fact that counsel for Mr Martin tendered all of Mr Cross’s affidavits (which is part of the dispute in the appeal), Mr Cross was available to be called as a witness but was not called. On orthodox principles, and leaving aside the tender of Mr Cross’s affidavits, the primary judge was thereby entitled to infer that Mr Cross’s evidence would not have assisted Norton Rose’s case, but was not entitled to infer that Mr Cross’s evidence would have damaged Norton Rose’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. As noted, however, we would not accept that in circumstances where Mr Martin’s counsel made a deliberate forensic decision to tender all of Mr Cross’s affidavits, any Jones v Dunkel inference was available.

59    The primary judge was also bound by s 140(2) of the Evidence Act 1995 (Cth) to take into account “the gravity of the matters alleged” in determining if Mr Martin had discharged his onus of proof. The allegations against Mr Cross, of deceit by a lawyer in the course of litigation to his own advantage, are very serious. Whether or not Mr Cross was called to give evidence it was important that findings of that degree of seriousness not be made against him (and thus attributed to Norton Rose) on the basis of “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. The primary judge said that he was mindful of this principle (J [120], [128], [162]) but, once the whole of his Honour’s reasons is evaluated, it is difficult to escape the conclusion that the outcome in this case results from an erroneous acceptance of Mr Martin’s contentions relying on improbable inferences founded on an excess of suspicion and purported causal connections of the most tenuous kind.

60    In a case of this kind the objective contemporaneous evidence is by far the best evidence. In assessing what inferences are to be drawn from that evidence it is important to apply the precept that, ultimately, a tribunal of fact “must feel an actual persuasion” of the fact or inference from fact before that fact or inference can be found: Briginshaw at 361. Mere speculation about possibilities is always insufficient. Further, where inference involves “grave moral delinquency”, the standard of proof remains on the balance of probabilities but the application of that standard, as s 140(2) of the Evidence Act reflects, recognises that “exactness of proof” is required: Briginshaw at 362-363.

61    Ordinary human experience, through the prism of rational and reasonable expectations of human conduct, is also relevant. Unless the evidence proves to the contrary, “grave moral delinquency” is not be assumed or inferred from a lack of care or even outright inaccuracy in communications, even communication from a lawyer. The circumstances of the present case, where Norton Rose failed to ensure independent representation in its dispute with Mr Martin and Mr Cross’s communications were demonstrably wrong on more than one occasion, mean that it is particularly important that in the process of drawing inferences well-deserved judicial disapproval does not replace the need for clear proof of all species of fraud. Foolishness, carelessness, incompetence, self-serving statements, outright inaccuracy, dilatoriness, and failures to follow through are all part of ordinary human experience, even in the context of lawyers providing legal services. They do not prove deceit.

62    The primary judge inferred that Mr Cross believed it would be to the advantage of Norton Rose that “Mr Martin agree to the adjournment of the pending proceeding he had commenced in the FWC before he came to know that proceeding NSD1610/2016 [the prohibition proceeding] had been filed”: J [121]. Further, according to the primary judge at J [122], the:

Direct Stop Representation secured Mr Martin’s consent to the adjournment of the FWC conciliation conference listed for Tuesday 20 September 2016. By 12:40pm on 19 September 2016 both parties had thus confirmed their consent to the adjournment. I infer that Mr Cross thought that once that background was in place, participating in a mediation in circumstances where proceeding NSD1610/2016 had been not merely flagged as a possibility but had actually been filed might leave Mr Martin with reduced bargaining power with respect to a potential settlement. It is that which explains why Mr Cross advised his colleagues at 11:43am on Tuesday 20 September 2016 by email … [the “no bad thing” email.]

63    This process of reasoning is not supported by the evidence.

64    First, the idea that Mr Martin might have reduced bargaining power in the mediation because the prohibition proceeding had been filed is untenable. Norton Rose had flagged the proposed prohibition proceeding for the best part of a month. Harmers (and thus Mr Martin) must have known that if the mediation failed, Norton Rose would pursue the prohibition proceeding.

65    Second, the direct stop representation could not have secured Mr Martin’s consent to the adjournment of the conciliation conference in the Fair Work Commission. It is plain that the agreement reached about the mediation between Mr Cross and Mr Harmer in their telephone calls secured Mr Martin’s consent to the adjournment of the conciliation conference in the Fair Work Commission.

66    Third, there is no evidence that Mr Martin was aware of the direct stop representation in the short period between the time it was made and the subsequent telephone call between Mr Harmer and Mr Cross (see immediately below). Rather, Mr Martin’s evidence is that it did not enter his mind that Norton Rose would commence the prohibition proceeding despite an agreement to mediate being reached. This is inconsistent with any reliance on the direct stop representation (and on the so-called “nascent mediation agreement” including term 1).

67    Fourth, the primary judge does not mention in this part of his reasoning Mr Harmer’s evidence of the first telephone call on 19 September 2016 at 11.15am in which according to Mr Harmer Mr Cross said “I had set in train steps to file the Federal Court Proceedings but I will call that off on the basis that we can proceed to mediation to attempt to resolve the matter”. That statement, “I will call that off”, is inconsistent with the representation that Mr Cross had stopped the filing process. Had Mr Cross intended to deceive Mr Harmer by making the direct stop representation, it may be inferred that he would have continued the deceit in the telephone call, but he did not and instead said he “will call that [(the filing)] off”, meaning he had not yet done so.

68    Fifth, if Mr Harmer had believed there was already an agreement that Norton Rose would not file the prohibition proceeding before the mediation (as the primary judge concluded at J [74], [75] and [78]), then it would be expected that Mr Harmer would have said something about that common understanding having been breached by the fact that Norton Rose had started the filing process. Mr Harmer said nothing of the kind, which supports our conclusion that there was no such common understanding. This also indicates that the primary judge’s initial misconception about the position of the parties has skewed his Honour’s subsequent inferences and conclusions against Mr Cross and thus Norton Rose.

69    Sixth, Mr Cross and Mr Harmer are both lawyers. They must be taken to have known that, depending on what had occurred within the Registry, Mr Cross might not be able to stop the process of filing the prohibition proceeding. They must also have known that this would not be material as, even if the prohibition proceeding had been filed, Mr Cross could seek to adjourn the prohibition proceeding with Mr Harmer’s consent if necessary. If Mr Harmer was keeping Mr Martin informed of his every dealing with Mr Cross in this period (which is not an inference that could be drawn from Mr Martin’s evidence), Mr Martin (who was also a lawyer) must have shared the same understanding.

70    Seventh, as we have said, Mr Cross’s “no bad thing” email only makes sense if Mr Martin knew about the filing of the prohibition proceeding before the mediation. The context within which the mediation was going to occur was always the fact or prospective fact of the prohibition proceeding, be it filed and adjourned, in the process of filing but somehow deferred, or about to be filed. The prohibition proceeding (filed or unfiled) was not a “new” background as the primary judge states at J [80]. The changed circumstance Mr Cross was informing his colleagues about was the fact that Mr Cross had agreed the arrangements with Mr Harmer for the mediation.

71    The consequences of this are:

(1)    Mr Harmer could not have believed that Mr Cross had in fact stopped the process of filing the prohibition proceeding because by 11.15am as, on his own evidence, Mr Harmer was then told that Mr Cross “will call that [(the filing)] off…”;

(2)    there is no rational foundation for the inference that Mr Cross deliberately lied to Mr Harmer in making the direct stop representation;

(3)    the only rational inference available is that Mr Cross made the direct stop representation carelessly because, at the time, whether the prohibition proceeding was filed, about to be filed or deferred somehow in the process of being filed, was not important. What was important to Mr Cross was obvious, namely:

(a)    the mediation could take place before the Fair Work Commission conciliation conference; and

(b)    if the mediation failed, Norton Rose could prosecute the prohibition proceeding; and

(4)    what was important to Mr Harmer is equally obvious. Mr Harmer wanted the mediation to occur. Had Mr Harmer been concerned that: (a) Mr Cross had taken steps to file the prohibition proceeding, (b) what Mr Cross said in the 11.15am conversation (that he “will call that off”) was inconsistent with the direct stop representation (he had stopped the process of filing), or (c) the process of filing the prohibition proceeding had to cease before his client would mediate, Mr Harmer would have said so. He did not, we infer, because these concerns would have been irrational.

72    The same conclusions must apply to Mr Martin who was Mr Harmer’s client. It follows that the primary judge should have rejected the alleged direct and implied stop representations cases.

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.

5.    DECEIT?

5.1    General

132    Mr Martin’s claim in deceit also must fail. This claim relied on the same representations as the misleading or deceptive conduct case. Mr Martin alleged that these representations were knowingly or recklessly or carelessly false, made with intent that Mr Martin rely upon them, and that Mr Martin did rely upon them, and suffered damage as a result: Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 at [114].

5.2    Direct stop representation

133    Accepting that the direct stop representation was made and assuming (contrary to the fact) it was not qualified in the subsequent call between Mr Cross and Mr Harmer (where Mr Cross said he “will call that [(the filing)] off” and not that “we have stopped the process of filing”), there is no proper basis upon which to infer that Mr Cross made the direct stop representation knowing it to be false and intending Mr Martin to rely on it. As we have explained, the objective contemporaneous evidence undermines the primary judge’s inferences as follows:

(1)    there was a nascent mediation agreement including agreement that Norton Rose would not file the prohibition proceeding until after the mediation had failed – there was no such nascent mediation agreement;

(2)    it was significant to Mr Harmer and Mr Martin being willing to continue with the proposed mediation that Norton Rose would not file the prohibition proceeding until after the mediation had failed – this inference is inconsistent with the objective contemporaneous evidence and the thought processes of a reasonable person (and certainly of a reasonable lawyer);

(3)    Mr Cross knew that it was significant to Mr Harmer and Mr Martin being willing to continue with the proposed mediation that Norton Rose would not file the prohibition proceeding until after the mediation had failed – this inference is inconsistent with the objective contemporaneous evidence and the thought processes of a reasonable person (and certainly of a reasonable lawyer);

(4)    Mr Cross believed it would be to Norton Rose’s advantage that Mr Martin agree to adjourn the conciliation conference in the Fair Work Commission before he came to know about the filing of the prohibition proceeding – there was no such advantage and a reasonable lawyer in Mr Cross’s position could not have believed there was any such advantage;

(5)    the direct stop representation secured Mr Martin’s agreement to adjourn the conciliation conference in the Fair Work Commission – this inference is inconsistent with the objective contemporaneous evidence and the thought processes of a reasonable person (and certainly of a reasonable lawyer); and

(6)    in making the direct stop representation Mr Cross had intended to deceive Mr Harmer or Mr Martin – such an inference is inconsistent with the objective contemporaneous evidence and the thought processes of a reasonable person (and certainly of a reasonable lawyer).

134    It is also not reasonably open to conclude that Mr Harmer or Mr Martin relied on the direct stop representation.

135    As discussed, Mr Martin’s own evidence is inconsistent with reliance. Mr Martin said (J [220]) that the prospect of Norton Rose commencing the prohibition proceeding despite reaching agreement about the mediation “did not enter my mind”. This does not suggest that the prospect did not enter Mr Martin’s mind because of the direct stop representation.

136    At J [224] the primary judge said “Mr Harmer’s agreement that the proceedings in the FWC be adjourned was secured in reliance, inter-alia, upon Mr Cross having represented to him that NRFA had stopped ‘the process of filing the documents in the Federal Court’”. For the reasons already given, this cannot be accepted.

137    At J [224] the primary judge also said “Mr Cross having sought and obtained Mr Harmer’s agreement that NRFA’s willingness to participate in a private mediation would ‘not count against us on a jurisdictional basis’ would make no sense unless he had induced Mr Harmer to proceed on that basis”. This, too, cannot be correct. The statement to this effect by Mr Cross makes sense whether or not the prohibition proceeding had been commenced. The mediation was a mediation of Mr Martin’s application in the Fair Work Commission. Mr Cross’s concern must be inferred to have been that if Norton Rose indicated to the Fair Work Commission that the conciliation conference should be adjourned by consent to enable the mediation to occur, Mr Martin might be able to rely on that conduct to argue that Norton Rose had submitted to the jurisdiction of the Fair Work Commission. The validity (or invalidity) of that concern was unaffected by the commencement or not of the prohibition proceeding.

138    The primary judge said at J [225] that:

…Mr Martin gave evidence in cross-examination that had he been aware that the filing of proceeding NSD1610/2016 in fact had not been stopped he would have sought a certificate from the FWC and that “it is highly unlikely that [he] would have agreed to a mediation at that point in time” (T192, lines 39-43). He was not shaken in cross-examination, and I accept that evidence.

139    One problem is that Mr Martin’s evidence is not to that effect and does not mention the direct stop representation. Mr Martin’s evidence was this:

…if David Cross had informed Michael Harmer on 19 September 2016 when they first had a telephone conversation on that morning that he had just taken decisive steps to file NSD1610 of 2016 and I had been informed of that, then I – I think it is highly unlikely that I would have agreed to a mediation at that point in time. I would probably, and again, your Honour, I have to hypothesise here because I’m trying to give an answer based upon a chain of events that – that never transpired, but I would probably have proceeded to the conciliation conference – a telephone conciliation conference – and at the end of that conference if it was successful I would have got a certificate and then I would be in a position to proceed in the Federal Court.

140    Another problem is that Mr Cross did tell Mr Harmer that he had taken decisive steps to file the prohibition proceeding on 19 September 2016. If Mr Harmer had been concerned about the filing of the prohibition proceeding he could have done any number of things to protect Mr Martin’s position at the time. He (and Mr Martin) did nothing because it did not matter. It did not matter because, if filed, the prohibition proceeding could be adjourned to allow the mediation to be completed.

141    A further problem is that the primary judge appears not to have appreciated the nature of Mr Martin’s evidence as a reconstructed hypothesis. As White J observed in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 4) [2019] FCA 686 at [192]:

Evidence of this kind has to be treated with caution as it involves a witness giving evidence of his or her attitude in a hypothetical situation and in which the potential for ex post facto rationalisation is obvious: Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434 at [26]; Campbell v Backoffice Investments at [146].

142    The primary judge’s acceptance of Mr Martin’s hypothetical evidence as supporting his supposed reliance on the direct stop representation is inconsistent with these principles. It is also inconsistent with what might reasonably be expected of a person in Mr Martin’s position and the objective contemporaneous evidence. We have explained above why no reasonable person (let alone a reasonable lawyer) in the position of Mr Harmer and Mr Martin could have considered the fact or not of the filing of the prohibition proceeding to be significant. Importantly, the objective contemporaneous evidence shows that:

(1)    Mr Harmer never asked Mr Cross at any time between 19 and 23 September 2016 if Mr Cross had succeeded in stopping the prohibition proceeding being filed;

(2)    there is no evidence that between 19 and 23 September 2016 Mr Martin instructed Mr Harmer to ask Mr Cross to confirm that Mr Cross had succeeded in stopping the prohibition proceeding being filed;

(3)    as noted, the documents as served on 23 September 2016 disclosed a lodgement date of 21 September 2016 and a filing date of 22 September 2016, which were both inconsistent with Mr Cross’s statement in the 23 September 2016 email that the filing process had progressed too far on Monday, 19 September 2016 to be reversed. If the filing date mattered to Mr Martin, Mr Harmer would have known it. Mr Harmer then would have had a reason to check the lodgement and filing date. There is no suggestion he did so;

(4)    had the filing date (or fact of filing) been of any significance then it could be expected that Mr Harmer would have communicated to Mr Cross after 23 September 2016 that:

(a)    Mr Martin was now unwilling to engage in the mediation and would be re-listing the conciliation conference in the Fair Work Commission;

(b)    the fact of filing was a breach of the “nascent mediation agreement”;

(c)    the fact of filing was inconsistent with the direct stop representation and the subsequent call between Mr Harmer and Mr Cross; or

(d)    Mr Harmer and Mr Martin had been misled by Mr Cross.

No such communication occurred; and

(5)    had the filing date (or fact of filing) been of any significance then it could be expected that Mr Martin, who gave evidence that he noticed that the time of filing on the served documents “seemed odd”, would have instructed Mr Harmer to take one or more of the steps described at (4) above, but there is no suggestion he did so. Rather, Mr Martin said that there did not seem to be any utility in raising these concerns at the time as the mediation had been scheduled for 7 October 2016. This evidence is fundamentally irreconcilable with the construct which the primary judge accepted. If the date of filing of the prohibition proceeding mattered then it is highly implausible that having noticed the filing date seemed “odd” Mr Martin would have done nothing, yet nothing is what he did.

143    For these reasons, the only reasonable inference open on the evidence was that neither Mr Harmer nor Mr Martin relied in any way on the direct stop representation. Nor could it be possible for them to have done so from the time when they were served with the prohibition proceeding which falsified the direct stop representation. It follows that the direct stop representation cannot have caused Mr Martin any damage.

5.3    Implied stop representation

144    The implied stop representation was not made. If made, the reasoning above applies. Mr Cross did not intend to mislead Mr Harmer or Mr Martin. Mr Harmer and Mr Martin did not rely on the implied stop representation. Any such representation could not have continued after they had been served with the prohibition proceeding. It follows that the implied stop representation cannot have caused Mr Martin any damage.

5.4    Service and process representations

145    The same reasoning also applies to the process and service representations. The primary judge said at J [227] that he accepted that Mr Martin had relied on the process and service representations, referring to Mr Martin’s evidence quoted at J [226]. According to Mr Martin he discovered that Mr Cross had signed and backdated the originating application when he gained access to the Court file in the context of Norton Rose’s disputed application for costs of the prohibition proceeding in November 2016. Mr Martin said:

If I had known before then that the originating application had not been duly signed, I would have instructed Harmers to apply to the Court to have the originating application and service set aside, so that I could proceed with the conciliation conference, obtain the certificate and commence my claim in the Federal Court. I would not have discontinued the Fair Work Application. Having discontinued the Fair Work Application, there is no way to revive the claim that I had intended to pursue in the Federal Court.

146    Again, this is reconstructed hypothetical evidence which required caution. Further, it is evidence focused only on the fact that the originating application was not signed before it was lodged and accepted for filing. It says nothing about the date of 19 September 2016 which Mr Cross had placed on the sealed originating application after it was returned by the Registry. As a result, Mr Martin, on his own evidence, only relied on element (c) of the service representation (Cross had signed the True Originating Application on 19 September 2016, before the document had been filed). Mr Martin’s evidence is inconsistent with the conclusion that the date of filing of the prohibition proceeding mattered to the mediation, but the date (not the signature) is the foundation for the primary judge’s construct of a course of deception by Mr Cross.

147    Mr Martin’s evidence is also highly implausible. Nothing in the primary judge’s reasons suggests that the primary judge’s acceptance of his evidence involved any assessment of his demeanour or credit, so there is no call for appellate deference to the primary judge in this regard. When the evidence being given necessarily involves hypothetical reconstruction, it is necessary to keep in mind the observations McLelland CJ in Eq made in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 about evidence of conversations given the fallibility of human memory and that fact that, over time, cognitive processes (including recall) are “overlaid, often subconsciously, by perceptions or self interest”. McLelland CJ in Eq described this process as “a matter of ordinary human experience”. It is because of ordinary human experience that we know that evidence about what a person believes they would or might have done in the past requires caution irrespective of the honesty or credit of the person giving the evidence. Evidence of that kind is inherently fraught as it is necessarily a product of hindsight and belief separate in time from the events in question.

148    Assume that on 23 September 2016 Mr Cross had explained to Mr Harmer that he had forgotten to sign the originating application before lodging it, that the Court had requested a signed originating application, that to his surprise the Court then said the prohibition proceeding had been listed on 18 October 2016 before Wigney J so Mr Cross believed the documents had been accepted for filing and paid the filing fee, and then the Court returned the sealed but unsigned originating application so he signed it and dated his signature 19 September 2016 because that is when he intended to sign the document and that was the date all the originating documents had been lodged with the Registry. Then what?

149    Mr Martin says he would have instructed Mr Harmer to apply to set aside the originating application so that he could proceed with the conciliation conference before the Fair Work Commission. But the reason the conciliation conference was adjourned was the mediation scheduled for 7 October 2016. That mediation remained scheduled. Mr Martin had the onus of proving reliance. But his evidence does not begin to grapple with the inconsistency between his clear desire at the time to proceed to mediation and his hypothetical after the event evidence that he would have proceeded with the conciliation conference. The fact is that Mr Martin could have applied to reinstate a conciliation conference before the Fair Work Commission at any time, but the apparent reason he did not do so was the mediation. The mediation would have existed in the hypothesised world of Mr Martin knowing that Mr Cross had added the signature after the sealed originating application had been returned by the Registry. Why would knowledge of the signature debacle at the time have made Mr Martin want to give up or risk losing the opportunity to mediate?

150    The next question is: how does it follow that, if Mr Martin had known about the signature issue on 23 September 2016, he would not have discontinued his application in the Fair Work Commission? Assume all hypothesised circumstances in Mr Martin’s favour. On becoming aware of the signature issue on 23 September 2016 assume Mr Martin instructed Mr Harmer to apply to this Court to set aside the prohibition proceeding and to obtain a new date for the conciliation conference before the Fair Work Commission. Norton Rose either would or would not have been willing to proceed with mediation on 7 October 2016. It is fanciful to imagine that this Court would have invalidated the prohibition proceeding. Mr Martin’s hypothesised application would have failed given the terms of s 51(1) of the Federal Court of Australia Act and r 1.34 of the Federal Court Rules. Even if his application had succeeded there would have been no chance that Norton Rose would have been prevented from lodging the same documents, all signed, a second time. The prohibition proceeding would have still existed even if there was a brief hiatus in its existence. Norton Rose would still have insisted the prohibition proceeding be heard before any substantive action in the Fair Work Commission. Whatever view it might have taken about the ultimate merits of the prohibition proceeding, this Court would have facilitated the hearing and resolution of the prohibition proceeding, if possible, before substantive action was required in the Fair Work Commission. On that basis, it is not apparent how the Fair Work Commission could satisfy itself that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, as required by s 368(3) of the Fair Work Act before a certificate permitting Mr Martin to have commenced a proceeding in this Court could have been issued. Unless and until the prohibition proceeding had been resolved against Norton Rose, the Fair Work Commission could not know if all reasonable attempts to resolve the dispute were likely to be unsuccessful.

151    Leaving all this aside, it is impossible to accept that the signature issue could have made any difference to events as they occurred. The reality is that Mr Martin wanted the mediation, so that would still have occurred. The mediation would still have failed. Mr Martin could then have decided if he wanted to prosecute his application in the Fair Work Commission given the prohibition proceeding or not. After the mediation failed Mr Martin filed the notice of discontinuance in the Fair Work Commission on 17 October 2016 because he had “decided to pursue his claim in an alternative forum” (agreed to be the Australian Human Rights Commission). As noted, he did so because of the time and cost of the prohibition proceeding. This, however, is exactly the same position Mr Martin would have been in on his hypothetical evidence. That is, Mr Martin would have still had his proceeding in the Fair Work Commission on foot. He would have still been confronted with the prohibition proceeding. He could still decide between doing whatever needed to be done to obtain a certificate from the Fair Work Commission under s 368(3) of the Fair Work Act (which would require him to deal with the prohibition proceeding) or pursuing some alternative claim.

152    The best evidence of what Mr Martin would have done in late September or early October 2016 had he known about the signature issue is exactly what he did do on 17 October 2016, being to discontinue his application in the Fair Work Commission. On that basis, Mr Martin did not lose the opportunity to obtain a certificate under s 368(3) of the Fair Work Act because he did not know on 23 September 2016 that Mr Cross had added his signature to the originating application after the Registry returned a sealed copy of that document for service.

153    For these reasons, the counter-factual hypotheses in Mr Martin’s pleading (in contrast to his evidence) cannot matter. If they do matter the primary judge’s analysis of them involves the errors identified above. We adopt the primary judge’s sub-headings below to deal with these pleaded but unproven counter-factual hypotheses.

5.5    But for the [Direct] Stop Representation, would Mr Martin have had the opportunity to obtain a certificate from the Fair Work Commission?

154    The first problem is that the primary judge acknowledged at J [258] that “[n]either party has led any direct evidence as would illuminate the possibilities”. Mr Martin bore the onus of proof. The lack of evidence on his part should have been the end of this part of the matter. The primary judge was not entitled to undertake an exercise in speculation with a view to seeing if any possibility might be plausible and, if so, conclude that Mr Martin had discharged his onus of proof. But this is what the primary judge did at J [259]-[296].

155    The second problem is that the primary judge has overlooked the qualification of the direct stop representation in the discussion between Mr Cross and Mr Harmer that occurred shortly after the email making the direct stop representation on 19 September 2016.

156    The third problem is that the direct stop representation could not have had any consequence after Mr Harmer was served with the originating documents in the prohibition proceeding on 23 September 2016. The mediation did not occur until 7 October 2016. Mr Martin did not discontinue his application in the Fair Work Commission until 17 October 2016. Until 17 October 2016 Mr Martin could have prosecuted his application in the Fair Work Commission and, depending on the outcome of the prohibition proceeding, could have obtained a certificate under s 368(3) of the Fair Work Act if the Fair Work Commission was willing to issue a certificate.

157    Leaving these problems to one side, the speculative process in which the primary judge has engaged, of its nature, is incapable of yielding any finding or inference that could be said to be more probable than not. For example:

(1)    as to J [263] (it “must have been premature and misleading for Mr Cross at 10:51 am to have asserted to Mr Spanner and others that he had already filed the relevant documents electronically with the Federal Court”), the primary judge has not considered the fact that when Mr Cross said in the email to Norton Rose’s counsel, copied to Mr Spanner, at 10.51 am on 19 September 2016 that the “[Federal Court] documents have been filed electronically with the Court this morning and we are waiting for sealed versions to be sent back” it is clear that Mr Cross meant only that the documents had been lodged with the Registry, not that the Registry had accepted them for filing. It is also impossible to divine any possible reason why Mr Cross would wish to mislead Norton Rose’s own counsel and managing partner. There cannot be any real doubt that Mr Cross assumed that Ms Smith had already sent the prohibition proceeding documents to the Registry when he sent the email at 10.51 am on 19 September 2016;

(2)    as to J [264], having already said to Mr Harmer in an email that he had stopped the filing, there is no rational reason to infer that in any hypothesised world Mr Cross would not have raised the filing issue with Mr Harmer in their subsequent conversation on 19 September 2016;

(3)    as to J [265], the primary judge seems to have overlooked the fact that Mr Cross did raise the filing issue with Mr Harmer in their subsequent conversation on 19 September 2016. Mr Harmer also did not respond as the primary judge posits at J [265]. It is not possible to understand why it would be inferred that in the very same circumstance as in fact occurred on 19 September 2016, Mr Harmer would have acted differently from how he in fact acted – which was to ask no questions at all about the filing issue;

(4)    according to the reasoning in J [266] and [267], Mr Cross was involved in a scheme of deception not only against Mr Harmer (and thus Mr Martin), but also Norton Rose’s own counsel and managing partner. Why this might have been so remains unexplained. The very fact that Mr Cross was informing Norton Rose’s own counsel and managing partner that the prohibition proceeding had been “filed” at this time exposes the reality that:

(a)    Mr Cross was using “filed” to refer to “lodged”. This is obvious given that in the same email Mr Cross disclosed that he was awaiting the return of the documents from the Court. The recipients of the email, all lawyers, would have known that Mr Cross meant only that he had caused the documents to be sent to the Court for filing, not that the Court had accepted the documents for filing;

(b)    Mr Cross had taken steps to cause Ms Smith to send the documents to the Court before he sent the email to Norton Rose’s counsel and managing partner. Consistent with other manifestations of Mr Cross’s tendency to prolepsis in communications, Mr Cross treated his intention as having been achieved. It was in fact achieved by Ms Smith sending the documents to the Registry by facsimile only a few minutes after Mr Cross’s email – again, the time discrepancy cannot found any rational inference of Mr Cross intending to deceive Norton Rose’s own counsel and managing partner;

(c)    Mr Cross’s reference in an email to his colleagues on 15 September 2016 to adjourning the prohibition proceeding assumes the commencement of that proceeding on both alternatives (see at J [73(j)] – “either (1) we have commenced action for an order of prohibition and so the matter must be stood down or (2) there is joint agreement that the matter should be adjourned pending mediation”);

(d)    the same email records counsel’s advice that Norton Rose should file the prohibition proceeding the next day, 16 September 2016 (see J [73(j)]);

(5)    J [269] imposes a hypothetical speculation on circumstances which, in reality, were unaffected by the making of the direct stop representation. It is plain that if he believed it mattered and thus had been careful and accurate, Mr Cross would have instead said to Mr Harmer on 19 September 2016 that he had caused the prohibition proceeding to be lodged with the Court but would see if he could try to stop the proceeding being accepted for filing. And Mr Harmer’s response would have been the same as it was in fact – that is, to ask and do nothing because the fact of filing did not matter one way or another. Nothing supports the speculation that but for the direct stop representation Mr Cross would have “chosen to defer calling Mr Harmer until he was in possession of the sealed process returned from the Court”. Mr Cross did not do that in the email containing the direct stop representation. He did not do that in the subsequent telephone conversation. He did not hesitate to let Mr Harmer know, twice on 19 September 2016, that he had taken steps to commence the prohibition proceeding;

(6)    for the same reasons the primary judge’s conclusion at J [272] that Mr Cross would have acted with more urgency than he did had he not made the direct stop representation is speculation – none of Mr Cross’s conduct suggests he considered that filing the prohibition proceeding was urgent;

(7)    we infer that the word “realistic” in J [274] should be “unrealistic”. Dismissing the prospect of Mr Cross calling Mr Harmer does not allow for the fact that Mr Harmer called Mr Cross because he wanted to discuss the letter of 15 September 2016 with him. That would have been the case in any hypothetical scenario. There is no reason to suppose that in that conversation, but for the direct stop representation, Mr Cross would not have said exactly what he did say, which was that he “will call that [(the filing)] off”. That is, there is no rational basis to infer anything on 19 September 2016 would have been different but for the direct stop representation;

(8)    otherwise, as to J [274], it may be accepted that Mr Cross would not have received the sealed documents from the Court before the scheduled conciliation conference on 20 September 2016. But the agreement to adjourn the conciliation conference had nothing to do with the direct stop representation. As discussed, the reason the parties agreed to adjourn the conciliation conference on 20 September 2016 was the mediation;

(9)    even if, contrary to the necessary inferences, Mr Martin would not have agreed to the adjournment of the conciliation conference on 20 September 2016 to enable the mediation to occur, there is only one rational possibility open on the evidence, that Norton Rose would have sought an adjournment of the conciliation conference because it had lodged the prohibition proceeding and was awaiting its return by the Registry for service. The primary judge, however, rejected this as the only possible rational inference at J [283], and instead entertained a further range of speculative possibilities at J [276]-[283]. All of this speculation springs from the erroneous notion of Norton Rose and Mr Cross being in an “awkward position” due to the “nascent mediation agreement” including a term that the prohibition proceeding would not be filed until after the mediation; and

(10)    the primary judge concluded that Norton Rose had adduced “no evidence at all” to support this conclusion (J [284]). By this, the primary judge can mean only direct evidence in the form of witness testimony. Such evidence would necessarily have been reconstruction by Mr Cross of what he would or might have done in various hypothetical circumstances. Evidence of this kind would have attracted the requirement for caution discussed above. There was better evidence than this available. The contemporaneous documentary record supports the existence of only one rational possibility, that is, had Norton Rose lodged the prohibition proceeding but not received sealed versions from the Court for service before the conciliation conference scheduled for 20 September 2016, Norton Rose would have sought an adjournment of the conciliation conference.

158    Further, and contrary to J [285]-[287], if the Fair Work Commission had refused to adjourn the conciliation conference to enable the prohibition proceeding to be heard and determined by this Court, it must be inferred that Norton Rose would have put exactly the same contentions to the Fair Work Commission. The Fair Work Commission either would or would not have accepted those arguments. What cannot be doubted is that the Fair Work Commission at least would have heard those arguments before deciding whether or not to grant the certificate under s 368(3) of the Fair Work Act. One way or another Mr Martin was going to be caught up in the time and cost of dealing with the substance of the prohibition proceeding. Yet it is this very fact (the unavoidability of the substance of the prohibition proceeding) which, it must be inferred and Mr Martin said in his evidence, caused Mr Martin to discontinue his application in the Fair Work Commission on 17 October 2016.

159    Accordingly, there is no apparent logic to Mr Martin’s case. If Norton Rose was right that Pt 3-1 of the Fair Work Act did not apply, then Mr Martin could not obtain a certificate under s 368(3) to start a proceeding in this Court under the Fair Work Act (with the protection from costs offered by s 570 of that Act). If Norton Rose was wrong and Mr Martin needed and could obtain a certificate under s 368(3) to start a proceeding in this Court under the Fair Work Act and wanted to do so then, in order to ensure he could obtain such a certificate, he would not have discontinued his application before the Fair Work Commission on 17 October 2016. It is this objective reality which the primary judge has not factored into his reasoning in J [287]-[289].

160    The primary judge’s conclusion at J [289], that there was a real chance that Norton Rose would have decided to abandon its jurisdictional issue altogether, is inconsistent with the contemporaneous evidence. It also involves an error of principle. Causation of some loss must always be proved on the balance of probabilities. Once this has been proved then, in the case of a lost chance, a court may assess damages by reference to the possibilities of success: Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 349 and 355, Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 at [142], Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440 at [38]-[41]. However, a court may not determine that the requirement of causation is satisfied on the basis of a mere possibility.

161    For these reasons, the primary judge’s assessment at J [289] that there was a 10% chance of the Fair Work Commission issuing a certificate under s 368(3) of the Fair Work Act (because of a chance that Norton Rose would not have pressed its jurisdictional issue at all) is immaterial. It is impossible to infer on the balance of probabilities that Mr Martin would have been in any different position from the position he was in as at 17 October 2016 when he decided to discontinue his application in the Fair Work Commission. Accordingly, the requirement of causation of some damage is not satisfied.

162    In oral submissions in the appeal, Mr Martin said his position would have been different because he would not have wasted time and money on the mediation. Two responses to this must be given. First, there is no suggestion to this effect in Mr Martin’s affidavit. Rather, he said that he was anxious to discontinue the Fair Work Commission proceeding before the first mention of the prohibition proceeding in this Court. Second, there is no basis upon which to infer that Mr Martin’s position would have been any different had the mediation not occurred – Mr Martin would still have been anxious to discontinue his application in the Fair Work Commission to render the prohibition proceeding pointless.

163    At J [291] the primary judge’s reasoning depends on his Honour’s conclusion of an earlier nascent mediation agreement which we do not accept. At J [292]-[294] the primary judge further entertained the unfounded notion that Norton Rose may “simply have forgone its intention to restrain the FWC from conducting its scheduled conference” for a myriad of speculative reasons (also assessed to involve a 10% chance of the Fair Work Commission having issued a certificate under s 368(3) of the Fair Work Act).

164    For these reasons we are satisfied that the primary judge’s conclusion at J [296], that Mr Martin lost a potentially valuable opportunity to litigate his claims in this Court as a result of losing the opportunity of being issued a certificate under s 368(3) of the Fair Work Act, involves error. Mr Martin lost that opportunity on 17 October 2016 when he discontinued his application in the Fair Work Commission. His decision to discontinue that application has not been proved, on the balance of probabilities, to have anything to do with any conduct by Norton Rose (including the direct stop representation) other than its determination to contend that the Fair Work Commission had no jurisdiction over the dispute with Mr Martin under Pt 3-1 of the Fair Work Act. Mr Martin’s own evidence was that he considered that defending the prohibition proceeding would involve at least $100,000 in cost and up to a year in delay. It is worth repeating that Mr Martin’s evidence was that:

In order to avoid unwarranted cost and delay, I decided to pursue the statutory aspect of the claim in the human rights jurisdiction of the Federal Court, despite the likelihood this would take a further 6-12 months to go through the Human Rights Commission. I was of the view that I would be unlikely to recover the costs of contesting the jurisdictional issues, even if successful on all grounds, due to the Fair Work act’s costs provisions, and this formed an important part of my decision.

165    Mr Martin then instructed Mr Harmer to discontinue the application in the Fair Work Commission. The evidence could not be clearer – Mr Martin discontinued his application in the Fair Work Commission because he did not want to defend the prohibition proceeding. This has nothing to do with any alleged misrepresentations by Norton Rose.

166    Norton Rose’s determination to prosecute the prohibition proceeding was also unaffected by any of its allegedly misleading conduct.

167    The idea that Mr Martin would have been in any different position on 17 October 2016 but for the alleged misrepresentations is wholly speculative.

5.6    But for the Service and Process Representations, would Mr Martin have had the opportunity to obtain a certificate from the Fair Work Commission?

168    The conclusions above apply not only to the direct stop representation, but also to the service and process representations. The primary judge concluded that although Mr Martin relied on those representations (a conclusion we consider affected by error) he did not thereby suffer any loss of a chance. This is because the primary judge considered that, but for the service and process representations, there was no real chance that Mr Martin would have applied to set aside the prohibition proceeding before he discontinued the Fair Work application: J [297]-[302].

169    Again, we consider the correct approach is to ask whether Mr Martin proved, on the balance of probabilities, that the service and process representations (if made, which they were not) caused Mr Martin to discontinue his application in the Fair Work Commission. The answer to that question, leaving aside Mr Martin’s oral evidence of what he would have done had he known the originating application was not signed before being lodged and accepted for filing is clear – Mr Martin would have been in no different position on 17 October 2016 from the position he was in fact in on that date. Accordingly, his case must fail also at the stage of causation in respect of the service and process representations.

5.7    If Mr Martin lost an opportunity to obtain a certificate from the Fair Work Commission permitting him to bring his proceedings in this Court, would that opportunity have had any value?

170    For the reasons given above, this question does not arise. However, the primary judge was right to conclude at J [319] that Mr Martin had adduced no evidence supporting a conclusion that his lost opportunity to obtain a certificate under s 368(3) of the Fair Work Act and, thereby, to be able to litigate his dismissal claim in this Court was of any value.

5.8    Loss of reputation

171    While we disagree with his reasoning at J [324], the primary judge was also right to reject this aspect of Mr Martin’s claim at J [325]. In accordance with our reasoning above, there is no basis to infer that but for any of the allegedly misleading conduct of Norton Rose the article identified at J [322] would not have been written.

5.9    Emotional hurt and distress

172    Given that Mr Martin has not established the commission of the tort of deceit by Norton Rose, this head of alleged damage must be rejected. The primary judge’s conclusion to this effect at J [329] is correct.

5.10    Costs incurred as a detriment

173    For the reasons given we consider that the primary judge’s conclusions at J [330]-[345] involve error.

174    First, such costs as Mr Martin incurred in preparing for the conciliation conference before the Fair Work Commission on 20 September 2016 or as deferred until 19 October 2016 could not have been affected one way or another by the alleged misrepresentations. The first alleged misrepresentation occurred on 19 September 2016, the day before the conciliation conference. Mr Martin would have incurred all costs up to that date regardless of the misrepresentations. There is no evidence of any costs incurred from 19 September 2016 in respect of the conciliation conference that would not have been incurred but for the alleged misrepresentations.

175    Second, the contention that Mr Martin would have avoided the costs in connection with the prohibition proceeding but for the alleged misrepresentations is mere speculation. As discussed, there is no evidentiary foundation supporting the inference that, if Mr Martin wished to prosecute his application in the Fair Work Commission, Norton Rose would not have prosecuted its prohibition proceeding. The objective contemporaneous evidence all supports a contrary inference.

176    Third, the inference that, but for the alleged misrepresentations, Mr Martin would not have engaged in the mediation is inconsistent with the objective contemporaneous evidence.

177    The primary judge said at J [334] that while “Mr Martin has not provided evidence as to the quantum of his loss”, his Honour did not “take it to be disputed however that he incurred the costs of legal representation in respect of costs thrown away in the FWC, in preparing for a private mediation and in defending proceeding NSD1610/2016 [the prohibition proceeding]”. The problem with this is that Norton Rose did dispute that its alleged misrepresentations had any causal connection to these costs.

178    We are also of the view that, as a result of the fact that causation had not been proved, it was not open to the primary judge at J [340]ff to speculate about the chance that Mr Martin’s liabilities in regard to these costs would not have arisen. At J [340] the primary judge reduced the 10% speculative possibility he had reached as discussed above to 6% to reflect “Mr Martin’s lost opportunity to avoid a detriment overall”. The problems with this analysis are: (a) it assumes the requirement of causation of loss is satisfied by the existence of the 10% or 6% chance, when causation of loss had to be proved on the balance of probabilities, and (b) it assumes that Mr Martin incurred loss by being both required to pay and in fact having paid legal costs when there was no evidence before the primary judge proving that fact. As to the latter, the primary judge said at J [341] that all that is “self-evidently apparent is that he was represented at material times by Harmers and that at least in some significant part Mr Harmer, the most senior lawyer in that firm, personally had carriage of the matter”.

179    In these circumstances it was not open to the primary judge to speculate to the effect that Mr Martin must have incurred some legal costs. Mr Martin is a lawyer. He chose not to provide admissible evidence about what legal costs he had paid and was liable for, saying in his affidavit that he had been caused to incur and continued to incur significant financial costs he would be unable to recover and that in the mediation Mr Harmer said Mr Martin had incurred about $70,000 in total legal costs.

180    The principle that a court must do the best it can to assess damages assumes that the court has some evidence of loss. It does not authorise a court to assume (as opposed to infer from evidence) a liability to pay legal costs which has not been proved. Nor does it permit a court to engage in guesswork when the party claiming loss could have, but did not, adduce evidence of loss: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 at [38]. Hacker v Weston [2015] FCA 363 at [140]-[146], to which the primary judge referred at J [342], does not suggest the contrary. In that case, Flick J had evidence that personal property of some, albeit debatable value, had been taken. That is different from assuming a liability to pay or the fact of payment of legal costs which could readily have been proved by Mr Martin.

181    Despite the primary judge saying at J [343]-[344] that he could only award “an amount that [the Court] is satisfied has been proven” it is apparent that his Honour’s estimate of five hours of work at a rate of $200 per hour is mere speculation. For these reasons it was not open to the primary judge at J [344] to say that he was:

…satisfied that Mr Martin’s [case] proves a detriment (which he had a 6% chance of avoiding were it not for NRFA’s misrepresentation) of at least $1,000.00. His proven damage is accordingly $60.00.

182    The primary judge appeared to acknowledge that this conclusion was problematic at J [345] saying:

I appreciate that such a modest award might be thought derisorily small. It can be defended only on the basis that an applicant who provides no particulars of a loss (Mr Martin’s pleadings assert they were to be provided prior to trial but none were) and who has adduced no evidence as would enable their loss to be quantified on a more generous basis, risks such an outcome if a court charged with assessing quantum has been left without any basis to award a higher amount.

183    As discussed above, however, the problems with Mr Martin’s claims are more fundamental than the primary judge identified. The primary judge was able to reach the conclusion at J [345] only due to error.

5.11    Aggravated and exemplary damages

184    For the reasons given above, Mr Martin’s claim for deceit ought to have been dismissed. No claim for aggravated or exemplary damages ought to have been entertained.

185    The hurt and distress Mr Martin may well have felt by reason of his dealings with Norton Rose after his summary termination are not compensable by aggravated damages as Mr Martin’s cause of action in deceit must be rejected. The primary judge’s award of aggravated damages explained at J [356] cannot stand.

186    The primary judge’s conclusion at J [359] that exemplary damages should also be awarded because he was satisfied “to the high degree of satisfaction required for such a finding that NRFA’s conduct has been proven to have involved ‘conscious wrongdoing in contumelious disregard’ of Mr Martin’s rights” also cannot stand in the face of our contrary conclusions above.

5.12    Other observations

187    We refused Mr Martin leave in the appeal/cross-appeal to tender an invoice from Harmers dated 31 August 2016. Our reasons for refusing leave are that: (a) it was too late for Mr Martin now to seek to prove loss, (b) the invoice is dated 31 August 2016, before any of the alleged misrepresentations, and (c) it is not apparent that Mr Martin paid or remains liable for that amount.

188    We also refused Mr Martin leave in the appeal/cross-appeal to tender an invoice from the Hon PM Jacobson QC dated 19 October 2016 in respect of the mediation. Our reason for refusing leave is that it was too late for Mr Martin now to seek to prove loss.

6.    ABUSE OF PROCESS?

189    Mr Martin claimed that in commencing the prohibition proceeding in this Court Norton Rose committed the tort of abuse of process.

190    The primary judge at J [371] referred to the elements of the cause of action for the tort of abuse of process identified in Pollack v Retravision (NSW) Ltd [1997] FCA 1049. In Pollack Sackville J identified that, consistent with the reasoning in Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35 and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, and as explained by Clarke JA in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 107ff: (a) “[an] action on the case for abuse of the process of the court will lie where it has been proved that process ancillary to a principal claim for relief has been used to effect an object not within the scope of the process and damage has resulted”, but (b) “[t]he action will not lie where the claim is that a party has instituted proceedings, whether principal or ancillary, in order to effect an object within the scope of the proceedings. This is so even if the proceedings have been irregularly or maliciously instituted”.

191    In Varawa at 91 Isaacs J explained that the tort of abuse of process:

…connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose.

192    In Spautz at 523 the High Court confirmed that the tort was not committed unless the party instituting proceedings had done so for “a purpose or to effect an object beyond that which the legal process offers”. At J [68] the primary judge quoted Spautz at 535 to the effect that there is no “impropriety of purpose … when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose – or motive – which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce” and that to “amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include – at least to any substantial extent – the obtaining of relief within the scope of the remedy”.

193    In Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245; (2019) 100 NSWLR 734 Bell P observed that:

(1)    the tort will not be established simply as a result of the identification or existence of an improper purpose, citing Spautz at 526: [19] and [25];

(2)    whilst proceedings may be or may amount to an abuse of process and be liable to be stayed or dismissed for that reason, it does not follow from that fact alone that the tort of collateral abuse of process has been committed, referring to Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [31] per Spigelman CJ (“[it] is necessary to distinguish the tort from the broader based concept of ‘abuse of process’ which arises in the context of stay applications or assertions of miscarriage of justice”): [22];

(3)    clear authority for the proposition that more than improper purpose or motive is required for the tort of collateral abuse of process is supplied by the decision of Clarke JA in Hanrahan v Ainsworth at 123: [26];

(4)    in Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481 at [54] it was said that a “plaintiff in a tort action for collateral abuse of process is required to prove, in addition to improper purpose of the defendant, deployment of the relevant process, in furtherance of that purpose, by way of an overt act or threat distinct from pursuit of the proceeding itself according to its ordinary course”. This is consistent with the reasoning in Butler v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 2 Qd R 252 at [38], Paradise Grove Pty Ltd v Stubberfield [2001] QCA 117; and The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [14]: [31];

(5)    it is not sufficient, for the tort to be established, that proceedings simply have a vexatious or oppressive effect on the defendant in those proceedings, as the proceedings must have been brought in order to “coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate...” (Varawa at 91): [33]; and

(6)    a party may have an improper purpose, and further or seek to effectuate it by the commencement of proceedings, without seeking to secure a collateral advantage or benefit thereby in which event a stay of the proceeding may be justified, but not an action in damages for commission of the tort of collateral abuse of process: [35].

194    In The Law of Torts (9th ed, LBC Information Services, 1998), the last edition written by the eminent legal scholar, Professor John Fleming, the author noted at p 687 fn 122 that “[t]he conditions for staying an action [on the ground of an abuse of process] are less rigorous” than those which apply to the tort.

195    In Spautz at 553 Gaudron J observed that there are few reported cases in Australia in which a plaintiff has been successful in establishing the commission of the tort. E Hynard and A Lerch, “The Tort of Collateral Abuse of Process” (2021) 44(2) UNSWLJ 714 (Hynard and Lerch) at fns 32, 42-43 identify only four successful claims in Australia of which Mr Martin’s was one. In Land Securities PLC v Fladgate Fielder (A Firm) [2009] EWCA Civ 1402; [2010] Ch 467, Etherton LJ observed at [67] that in England and Wales there has only ever been one such case, Grainger v Hill (1838) 4 Bing. (N.C.) 211; 132 ER 769, in which an action on the case for abuse of process was first recognised, and possibly a second, Gilding v Eyre (1861) 10 CB (N.S.) 592, 142 ER 584. Three years after Land Securities Lord Sumption JSC declared that the tort was “on the verge of extinction, with the only recent sightings being in Australia”: Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17; [2014] AC 366 at [149]. Also at [149] Lord Sumption JSC said:

The essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably owing from or connected with the relief sought. The paradigm case is the use of the processes of the court as a tool of extortion, by putting pressure on the defendant to do something wholly unconnected with the relief, which he has no obligation to do. Such cases are extremely rare …

196    Mr Martin’s case was that Norton Rose’s predominant purpose in commencing the prohibition proceeding was “to deny him an entitlement to access the judicial power of the Commonwealth to resolve his dispute in this Court” which was “outside the lawful scope of the remedy sought” in the prohibition proceeding: J [380]. The primary judge concluded at J [381] that such a finding was open and should be made.

197    Central to the primary judge’s conclusion was the orthodox proposition that a tribunal, including the Fair Work Commission, has jurisdiction to determine its own jurisdiction: Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591. This caused the primary judge to conclude at J [385] that the prohibition proceeding was “entirely without prospect of success”. This in turn led to the primary judge concluding at J [396] that Norton Rose’s “decision to commence proceeding NSD1610/2016 [the prohibition proceeding] was an abuse of process” and “can be properly be characterised as bringing the administration of justice into disrepute”. In the primary judge’s words at J [398] that:

…the commencement and maintenance of proceeding NSD1610/2016 by NRFA was for a purpose which did not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy it ostensibly was seeking. Proceeding NSD1610/2016 was of no utility save as a vehicle to lock Mr Martin out of his right to pursue a general protections application in this Court.

198    The primary judge also accepted at J [403] that Mr Martin had suffered damage as a result being the costs of defending the prohibition proceeding.

199    We consider that this process of reasoning involves error.

200    First, it is not apparent that the primary judge recognised that to establish the tort of collateral abuse of process, more than an improper purpose was required to be proved. Mr Martin also had to prove that Norton Rose commenced the prohibition proceeding to obtain an advantage other than the relief in the prohibition proceeding. Identifying as the primary judge did, that Norton Rose had an improper purpose of preventing Mr Martin from being able to institute a proceeding in this Court based on a certificate under s 368(3) of the Fair Work Act, even if correct as to Norton Rose’s purpose being improper, did not prove any purpose of obtaining an advantage collateral to (in the sense of extraneous to) the relief sought in the prohibition proceeding.

201    Second, and relatedly, the alleged improper purpose (to deny Mr Martin an entitlement to access the judicial power of the Commonwealth to resolve his dispute in this Court), properly characterised, is not improper at all. Hynard and Lerch put it this way at 735:

… when courts refer to an ‘improper purpose’ to found the tort of collateral abuse of process, they mean that it must be proven that the defendant had a specific intent to cause an advantage or disadvantage beyond the lawful scope of the legal process instituted.

202    While Hynard and Lerch at 735 also cite the primary judge’s decision as an example of where a court has found an improper purpose (which is accurate), the difference from the other examples provided is obvious. The other examples involve a purpose wholly extraneous to the relief sought in the litigation (excluding case citations, the other examples are using a legal process to “affect negotiations to take control of a company; put pressure on an opposing party to settle a different dispute; prevent a bank taking possession of property; interfere with, embarrass and hinder a police officer from carrying out his duties to investigate corruption in the poker machine industry; induce a university to secure the defendant’s reinstatement; delay or defer the time for payment of an obligation; vex a criminal defendant”). The present case is different – the posited purpose is nothing more than an inevitable consequence of the relief sought being granted. That can never be an improper purpose. So much is clear from Spautz at 526 (also cited by Hynard and Lerch at 735) where the High Court said:

… the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour.

203    This principle applies in the present case. If, as Norton Rose contended, the Fair Work Commission had no jurisdiction over the dispute because Mr Martin was not an employee of Norton Rose then the Fair Work Commission could not issue a certificate under s 368(3) of the Fair Work Act enabling Mr Martin to commence a general protections application in this Court. Accordingly, the inevitable effect of Norton Rose being correct would be to deny Mr Martin the capacity to commence a general protections application in this Court, being a proceeding under the Fair Work Act and subject to the special costs regime in s 570. In other words, the alleged improper purpose is a mere inevitable effect of the proper purpose of obtaining the relief sought in the prohibition proceeding (a declaration that the Fair Work Commission had no jurisdiction over the dispute and consequential orders restraining it from exercising jurisdiction). Such an effect, even if intended by Norton Rose, is not extraneous to the object of the legal remedy sought.

204    Third, the fact that the Fair Work Commission had jurisdiction, at least in the first instance, to decide that it did or did not have jurisdiction to issue a certificate under s 368(3) of the Fair Work Act does not mean that the prohibition proceeding was hopeless. This Court had jurisdiction to determine, finally, if Pt 3-1 of the Fair Work Act applied to the dispute between Mr Martin and Norton Rose. The primary judge’s reasoning at J [385]-[392] is not self-evidently correct. The issues which his Honour characterise as unarguable, meaning that the prohibition proceeding was doomed to fail from the outset, are contestable. We prefer not to express any final views in this regard as we have not had the benefit of proper submissions about the issue. It is sufficient for us to observe that:

(1)    contrary to J [388];

(a)    the power of the Fair Work Commission to issue a certificate under s 368(3) of the Fair Work Act is conditioned on the existence of a dispute embodied in an application under s 365;

(b)    s 365 provides that if a person has been dismissed then the person may apply to the Fair Work Commission to deal with the dispute; and

(c)    the definition of “dismissed” in s 386 discloses that the concept requires dismissal from employment; and

(2)    if Norton Rose was correct that Mr Martin was not an employee, then it is by no means obvious that any certificate issued under s 368(3) of the Fair Work Act would have been valid. The arguments for and against a person’s status as an employee being a jurisdictional fact conditioning the power of the Fair Work Commission to issue a certificate under s 368(3) are more finely balanced than the primary judge allows at J [390].

205    In any event, as explained by Hynard and Lerch at 720 and 731, in contrast to the tort of malicious prosecution, the tort of collateral abuse of process does not depend on there being no reasonably arguable cause of action. Accordingly, the prospects of success of the proceeding is not relevant other than to the extent that those prospects might support an inference about the party’s purpose being extraneous to the legal remedy sought.

206    Fourth, the primary judge erred in concluding that Mr Martin’s costs of the prohibition proceeding constituted relevant damage (whether or not the damage proved must be special damage, being a precisely quantifiable amount) as required for the tort of collateral abuse of process. A party cannot recover legal costs in one proceeding as damages in another proceeding against the same party (as opposed to a third party). Rather, the issue of the costs of the prohibition proceeding as between Mr Martin and Norton Rose was to be finally determined by such order for costs as the primary judge decided to make in the prohibition proceeding itself: Berry v British Transport Commission [1962] 1 QB 306 at 320-321, Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674 at 682 and 690, Gray v Sirtex Medical Ltd [2011] FCAFC 40; (2011) 193 FCR 1 at [13]-[39]. The primary judge dealt with the costs of the prohibition proceeding at J [410]ff, deciding that Mr Martin should be awarded costs on an indemnity basis. This conclusion demonstrates why the primary judge could not, simultaneously, treat the very same costs as part of Mr Martin’s damage for the tort of collateral abuse of process.

207    For these reasons, Norton Rose’s commencement of the prohibition proceeding did not involve an abuse of process at all, let alone the tort of collateral abuse of process. No question of damages, be they compensatory, aggravated or exemplary, could arise.

7.    COSTS OF DAMAGES PROCEEDING

208    The conclusions above mean that the primary judge’s order of December 2020, that Norton Rose pay Mr Martin’s costs of the damages proceeding on an indemnity basis, also involved error.

8.    MR MARTIN’S APPEAL

8.1    Introduction

209    Mr Martin’s grounds of appeal may explain how it is that a partnership dispute between a lawyer and his former partners has generated 15 judgments in this Court over a period of five years, without ever broaching the question of the legality or otherwise of the summary termination of Mr Martin’s partnership on 15 July 2016.

210    The grounds of appeal (set out in a supplementary notice of appeal) are difficult to follow, illogical, and inconsistent with the orders sought. They include a most serious allegation of actual bias against Wigney J on bases which are wholly spurious. They include allegations of apprehended bias against both Wigney J and Kerr J on equally spurious grounds. They include allegations of negligence against the Court’s Registry and an apparent refusal to accept the outcomes in earlier judgments whether the subject of a rejected appeal or not. The grounds call for rejection in the most firm and concise terms possible.

211    It should also be noted that despite ample opportunity to do so Mr Martin did not file any submissions in support of his grounds of appeal.

8.2    Ground 1(a)

212    Ground 1(a) alleges that the Court’s jurisdiction fundamentally miscarried due to an alleged “fraudulent alteration” of the sealed originating process in the prohibition proceeding said to have been facilitated by the negligence of “a Registry clerk”.

213    The circumstances giving rise to these allegations have been identified above. The idea that those circumstances mean that the Court’s jurisdiction fundamentally miscarried in the prohibition proceeding, let alone Mr Martin’s own damages proceeding, is misconceived.

214    As discussed, there was no “fraudulent alteration” of the sealed originating process in the prohibition proceeding. There was no negligence by the Registry. The Registry made an error by accepting the unsigned originating application for filing. The Registry should not have accepted the unsigned originating application for filing: rr 2.15 and 2.27 of the Federal Court Rules (which provide, respectively, that a document filed by a party in a proceeding must be dated and signed by, relevantly, the party’s lawyer and that the Registry will not accept a document for filing that is not properly signed).

215    Filing errors occur. Courts should try to minimise filing errors but that is not because they are subject to any duty of care to parties. Further, not every error affects the validity of what has been done. It is obvious that Mr Cross’s failure to sign the originating application was mere inadvertence given that he had signed the genuine steps statement and statement of claim. The error did not have any effect on the validity of the prohibition proceeding given the terms of s 51 of the Federal Court of Australia Act and r 1.34 of the Federal Court Rules.

216    The error of the Registry in not ensuring the originating application accepted for filing was signed was a formal defect or irregularity. It was incapable of causing any injustice to Mr Martin because it is clear that Norton Rose intended to and had authorised Mr Cross to file the prohibition proceeding.

217    As a result, Mr Martin’s contention that in the prohibition proceeding the “well of justice was poisoned at its source” because the Registry made an error and Mr Cross then signed the originating application and placed the date of 19 September 2016 on it before service is unsustainable. Those two facts have no effect whatsoever on the validity of the prohibition proceeding or the exercise of the Court’s jurisdiction in that proceeding.

218    It is not apparent how it is said that the exercise of the Court’s jurisdiction in the damages proceeding is affected in any way by the circumstances relating to the filing and service of the originating application in the prohibition proceeding.

219    Ground 1(a) is rejected.

8.3    Ground 1(b)

220    Ground 1(b) alleges actual and apprehended bias against Wigney J based on numerous sub-grounds. The allegations are scandalous and vexatious and should not have been made.

221    Mr Martin could not explain on any rational basis how these allegations against Wigney J while his Honour was the docket judge between 2016 and 2018 could bear upon the orders Kerr J made on 16 November 2020. On that basis, we refused to grant Mr Martin leave to rely on documentary evidence said to support his allegations in ground 1(b)(i) (MFI 1). Ground 1(b)(ii) is a mere scandalous assertion. Ground 1(b)(iii) is an unfounded allegation that Wigney J caused inordinate delay in the damages proceeding when the record of judgments in the matter clearly discloses Mr Martin’s predilection for interlocutory disputation. Ground 1(b)(iv) is illogical. Mr Martin asserts that Wigney J abrogated his judicial duty by not hearing and determining Mr Martin’s recusal application because Wigney J ceased to be the docket judge. This makes no sense. The purpose of Mr Martin’s application for Wigney J to recuse himself must have been for Wigney J to do so, the inevitable result of which would have been that Wigney J ceased to be the docket judge. Ground 1(b)(iv) seems to be a complaint that Mr Martin achieved his aim of Wigney J ceasing to be the docket judge without having had the satisfaction of making the argument before Wigney J that he do so. Grounds 1(b)(v) and (vi) are not legitimate grounds for complaint. It is a fact that Mr Martin ceased to have legal representation in the long course of the proceedings, but that does not expose any error affecting the validity of the primary judge’s decision in the proceedings. Nothing in the history of the proceedings supports ground 1(b)(vii), and Mr Martin’s assertion of the proceedings having become “fundamentally unjust” by reason of his status as a person (albeit a lawyer and former partner of Norton Rose) without legal representation must be rejected.

222    Ground 1(b) is rejected.

8.4    Ground 2

223    Ground 2, involving an allegation of a reasonable apprehension of bias on the part of Kerr J who became the docket judge for the proceedings, has no factual or legal foundation. Mr Martin failed to identify any fact, matter or circumstance in support of ground 2 said to give rise to a reasonable apprehension of bias on the part of Kerr J.

8.5    Ground 3

224    Ground 3 involves further allegations of apprehended bias against Kerr J based on specified circumstances.

225    The circumstance in ground 3(a) is the subject of Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA 1481. In those reasons the primary judge explained why an email his associate sent to all parties to the prohibition proceeding but not to Mr Martin could not possibly give rise to a reasonable apprehension of bias on the part of Kerr J. The email related to Norton Rose discontinuing the prohibition proceeding against the Fair Work Commission. At [58] the primary judge rightly said:

I reject that a fair minded lay observer, with knowledge of the circumstances of this case and wholly uninformed and uninstructed about the law in general and the issues to be decided, might conclude that an apprehension of bias might arise by reason of Mr Martin being deprived of an opportunity to participate in an inevitably futile hearing given that a right to discontinue is expressly conferred, without the requirement of leave, by the [Federal Court Rules]...

226    The circumstance in ground 3(b) is the subject of Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5. In those reasons the primary judge explained why he rejected Mr Martin’s application that his Honour recuse himself for apprehended bias on the ground that his Honour said that had “commenced work on draft reasons, subject to both parties’ submissions being heard” so the reasons could be published before the Christmas break. At [54] the primary judge rightly said:

A fair minded lay observer understanding the practices of the Court and its judges would clearly understand that commencing the outline of a judgement, referring to the relevant sections in issue, and to the submissions of the parties such as had been provided in writing, is far from uncommon. In the present circumstances my preparation was no more than a means of ensuring that I would be in a position to provide my written reasons to the parties over the Christmas period with the least delay. Nothing I said during the hearing of 23-24 December 2019 could suggest that I had formed a closed mind or pre-determined the outcome of Mr Martin’s application prior to hearing his submissions. For that reason, I dismissed Mr Martin’s application for my recusal.

227    The circumstance in ground 3(c) is the subject of Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275. In those reasons the primary judge explained why he rejected Mr Martin’s application that his Honour recuse himself for apprehended bias on various grounds including the primary judge’s refusal of Mr Martin’s request for an adjournment of the hearing. The primary judge correctly concluded that even if earlier interlocutory decisions he had made in Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA 1481 and Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5 were wrong, that was a matter for an appellate court and not the primary judge to correct, and Mr Martin had not applied for leave to appeal against either decision. The primary judge also rejected Mr Martin’s application that the primary judge disqualify himself on the ground of apprehended bias on numerous other bases as none of them meant that a fair minded lay observer might apprehend that the primary judge might not bring an impartial mind to the proceedings. The primary judge was correct to so conclude for the reasons he gave.

228    Ground 3 is rejected.

8.6    Ground 4

229    Ground 4 alleges that the primary judge erred by failing to refer the proceedings to the Full Court as alleged to be required by s 20(2) of the Federal Court of Australia Act. The primary judge considered and rejected Mr Martin’s application to the same effect in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5.

230    Section 20(2) of the Federal Court of Australia Act provides that:

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.

231    The prohibition proceeding is not a matter within the scope of s 20(2). The primary judge was correct to reject Mr Martin’s application. The prohibition proceeding concerned the jurisdiction of the Fair Work Commission. It did not “come from” the Fair Work Commission. Nor did it come from the Fair Work Commission while constituted by the nominated persons. The Fair Work Commission had never been constituted in respect of the prohibition proceeding. Section 20(2) did not apply to the prohibition proceeding.

232    Ground 4 is rejected.

8.7    Ground 5

233    Ground 5 concerns some of the primary judge’s rulings on evidence.

234    Contrary to ground 5(a) the primary judge was entitled to rule on objections on the papers. Mr Martin has not identified how any alleged error about an evidentiary ruling could be material to the outcome. Contrary to ground 5(b), no material error is discernible in the evidentiary rulings of the primary judge. Ground 5(c) is mere assertion.

235    Ground 5 is rejected.

8.8    Ground 6

236    Ground 6 alleges error in the primary judge’s statement at J [334] that “Mr Martin has not provided evidence as to the quantum of his loss”. In ground 6(a), Mr Martin referred to his affidavit in which this was said:

At one stage he [the Hon PM Jacobson QC] came into our room and advised that the Respondents wanted to put an offer to me in good faith, and sought to know what costs I had incurred. He was told it was about $70,000 to that stage and left to speak to the Respondents, before returning to convey an offer of $70,000 as a settlement sum.

237    That is not evidence of Mr Martin having suffered loss for the purpose the damages proceeding because: (a) the primary judge was right to conclude this evidence of the mediation was not admissible in the damages proceeding as a result of s 131(1)(a) of the Evidence Act (evidence is not to be adduced of communications in connection with an attempt to negotiate a settlement of the dispute), (b) in any event, the sum of $70,000, on its face, relates to all costs incurred by Mr Martin and not costs which would not have bene incurred but for the alleged misrepresentations.

238    Further, as to ground 6(b), it was for Mr Martin to prove that he had suffered loss in the damages proceeding caused by the alleged misrepresentations. Mr Martin was not entitled to await a process of taxation given that his claimed loss was for costs which would not have been recoverable in the damages proceeding (such as the costs of the proceeding in the Fair Work Commission and in respect of the mediation).

239    Ground 6 is rejected.

8.9    Ground 7

240    Ground 7 alleges that the primary judge erred by not ruling or finding that Norton Rose was “in contumelious breach” of a notice to produce dated 5 December 2016 in the prohibition proceeding.

241    Mr Martin has not explained how a notice to produce dated 5 December 2016 is relevant to the primary judge’s conclusions. The primary judge was not bound to refer to every submissions made by or for Mr Martin, nor every interlocutory step he took.

242    Ground 7 is rejected.

8.10    Ground 8

243    Ground 8 depends on Mr Martin having succeeded in his tortious claims for deceit and abuse of process. The alleged consequence is that, as there is no privilege in iniquity, Norton Rose could not maintain its claims for client legal privilege in respect of documents the subject of such a claim in its discovery. The statutory embodiment of this principle is in s 125 of the Evidence Act.

244    The contention must be rejected because: (a) the primary judge was wrong to conclude that Norton Rose had committed the torts of deceit and abuse of process, and (b) in any event, under s 125(2), a conclusion that a fraud or abuse of power has occurred does not operate retrospectively; a party must apply for the disclosure of documents on the basis of loss of client legal privilege by reason of the communication being in furtherance of a fraud or abuse of power.

245    Ground 8 is rejected.

8.11    Ground 9

246    Ground 9 concerns events after the completion of the hearing. The primary judge explained as follows at J [34]-[41]:

(1)    at the conclusion of the hearing the primary judge permitted the parties to file further written submissions having regard to the constrained opportunity that counsel for Mr Martin had had to do so (as counsel appeared for Mr Martin only from the third day of the hearing onwards). After several extensions of time by consent submissions for Mr Martin and Norton Rose were filed in April 2020 and the primary judge ordered on 27 May 2020 that:

4. Mr Martin have leave to file and serve written submissions in reply to those filed on behalf of Norton Rose Fulbright Australia, of no more than 6 pages, no later than 4:00pm on Friday 5 June 2020.

5. No further extension of time for the filing of written submissions shall be granted, and that any written submissions lodged by or on Mr Martin’s behalf after the time provided for in Order 4 not be accepted for filing.

(2)    by that time Mr Martin was again unrepresented. Mr Martin lodged submissions in reply after 4:00 pm on Friday 5 June 2020. Those submissions were accepted for filing and then “administratively removed from the court file”. The primary judge’s associate advised the parties that they should proceed on the basis that the submissions in reply had been and would remain removed from the Court file “unless Mr Martin advances a formal application”; and

(3)    Mr Martin did not make any formal application and thus the primary judge said that, accordingly, he “had no regard to the reply submissions that [Mr Martin] had earlier purported to file”.

247    Mr Martin did not dispute that the reply submissions were lodged 27 minutes after 4.00 pm in Adelaide where the proceedings were heard. For reasons best known to itself, but presumably because of the terms of order 5, the lawyers for Norton Rose objected to the acceptance of the reply submissions for filing despite the delay being only 27 minutes. The primary judge considered the circumstances, decided that the reply submissions should not have been accepted for filing given the terms of order 5, and the parties were advised that if Mr Martin had a different view he “should advise the Court accordingly and make an appropriate application”. Mr Martin asserted that he had sent the unsealed reply submissions by email to Norton Rose and the primary judge’s associate at 3.59 pm and that it would be “acutely unfair” for the primary judge to disregard the reply submissions. It appears the 3.59 pm time stamp on the email does not relate to the time in Adelaide, but AEST. The primary judge’s associate then wrote to the parties confirming that the reply submissions would remain removed from the Court file unless Mr Martin made an application. Mr Martin then requested a fee waiver for the application to which the associate replied that she “cannot provide advice” in that regard. After further communications the associate again wrote to the parties on 22 June 2020 saying “any submissions that you would wish to advance will be considered, contingent on your filing an interlocutory application and it being listed for hearing”.

248    While we would not have acceded to Norton Rose’s request for the reply submissions to be removed from the Court file in the circumstances, the primary judge’s decision to do so accorded with order 5 and involved an exercise of discretion which was not unreasonable in the circumstances. It is also not apparent that Mr Martin contacted the Registry to seek a waiver of the filing fee. In these circumstances, the apparent complaint that Mr Martin was denied procedural fairness by the primary judge having disregarded his reply submissions cannot be accepted.

249    We have considered the reply submissions. They do not affect any of the conclusions we have reached that the primary judge erred as discussed above. In particular J [52]-[56] disclose that:

(1)    counsel for Mr Martin tendered Mr Cross’s affidavits having been informed that the primary judge said to Mr Martin he would not limit the use that could be made of that material as “[i]f there is evidence before the Court for good or ill, the Court takes such consideration of it as it sees fit” and without seeking “any orders qualifying the use to which the evidence he was seeking to adduce might be put”;

(2)    accordingly, Mr Martin’s submissions in reply that the primary judge should limit the use to be made of those affidavits are inconsistent with the forensic decision made by Mr Martin’s counsel during the hearing. It follows that the primary judge was not bound to make any order under s 136 of the Evidence Act limiting the use that he could make of the affidavits of Mr Cross;

(3)    Norton Rose was not bound to put Mr Cross’s affidavits in evidence at the hearing or to call Mr Cross to give evidence. The fact that at earlier interlocutory hearings Norton Rose had relied on some or other of the affidavits is immaterial. It was always open to Norton Rose at the final hearing of the proceedings not to adduce evidence from Mr Cross;

(4)    Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 is not authority to the contrary. The proposition that a judge, in the exercise of a discretion, can require the deponent of an affidavit that has been used in a proceeding to submit to cross-examination, depends on the fact of a relevant use of an affidavit in the proceeding. In the present case, there had been no such relevant use;

(5)    in any event, it is not apparent that the primary judge relied on any aspect of Mr Cross’s testimony in his affidavits which was material to the outcome;

(6)    the fact that Norton Rose did not adduce evidence from Mr Cross at the hearing did not mean that the primary judge was bound to adjourn the hearing. Mr Martin is a lawyer. He must have known that Norton Rose could make whatever forensic decision it wished about calling Mr Cross at the hearing;

(7)    as noted, the affidavit of Mr Cross was not deployed by Norton Rose at the substantive hearing of the proceedings before the primary judge. As such, s 47(6) of the Federal Court of Australia Act (testimony at the trial of causes shall be given orally in court) and r 29.09(1) of the Federal Court Rules are irrelevant (a party may give notice requiring a person making an affidavit to attend for cross-examination). For the same reason s 27 of the Evidence Act (a party may question any witness) is irrelevant, as a witness is a person “giving evidence”, which means giving evidence in the hearing in which it is sought to question the person; and

(8)    the submissions were meant to be in reply only. Mr Martin’s complaint about the restriction on page numbers overlooks the fact that he had made written submissions in chief.

250    Ground 9 is rejected.

8.12    Ground 10

251    Ground 10 depends on ground 6 rejected above.

8.13    Ground 11

252    Ground 11 concerns aggravated damages for the alleged tortious abuse of process. Norton Rose did not commit that tort.

8.14    Ground 12

253    Ground 12 concerns exemplary damages for the alleged tortious abuse of process. Norton Rose did not commit that tort.

8.15    Ground 13

254    Ground 13 concerns exemplary damages. As no torts were committed the issue of damages does not arise.

8.16    Ground 14

255    Ground 14 alleges some error by the primary judge in apportioning equal blame to Mr Martin and Norton Rose for the delay and difficulty in the proceedings. If the primary judge did so, it is immaterial to his reasoning.

8.17    Ground 15

256    Ground 15 concerns exemplary damages. As no torts were committed the issue of damages does not arise.

8.18    Conclusion

257    Mr Martin’s appeal must be dismissed, with costs.

9.    ORDERS

258    For the reasons given above it is necessary to set aside orders 1 to 4, 6, and 7 of the orders made by the primary judge on 16 November 2020 in the damages proceeding. It is also necessary, in consequence, to set aside order 1 awarding Mr Martin costs on an indemnity basis made by the primary judge on 15 December 2020 in the damages proceeding. As Norton Rose did not prosecute its appeal against orders 1 and 3 in the prohibition proceeding that appeal should be dismissed. Mr Martin’s originating application in the damages proceeding must be dismissed in its entirety. Costs should follow the event.

Associate:

Dated:    26 November 2021