Appearing in the Federal Court, NRF maintained that its conduct was not intended to be misleading and argued that it didn’t result in any loss for Mr Martin. However, on Monday, 16 November 2020, Justice Duncan Kerr rejected this defence and pointed to three occasions where NRF made three false and misleading representations to him and his legal representatives, through equity partner David Cross, who acted for NRF in relation to Mr Martin’s Fair Work application. 

The first, the court heard, related to the “Direct Stop Representation”, whereby Mr Cross sent Mr Martin’s legal representatives (Harmers Workplace Lawyers, led by Michael Harmer) an email implying that NRF had stopped filing proceedings. 

NRF accepted that Mr Cross made the “Direct Stop Representation”, and that it was “potentially misleading”. 

“The word ‘stopped’ used in the 19 September email conveyed that the process of filing had already been halted when the email was sent. Whilst Mr Cross may have attempted to ‘stop’ the process, the process had not in fact already been ‘stopped’ at the time,” said NRF’s senior legal counsel Jason Potts SC on the firm’s behalf.

Mr Martin told the court that he “suffered loss and damage” caused by his reliance on the misrepresentation. The court heard Mr Martin lost the opportunity to pursue his claims before the FWC and was unable to commence proceedings in the Federal Court. While Justice Kerr agreed that the misrepresentation caused Mr Martin to lose out on opportunities he acknowledged that Mr Martin had not either proven nor quantified the value of any lost opportunity. 

“To recover damages for the loss of an opportunity to pursue an application in this Court under the [Fair Work Act], Mr Martin would need to prove what that claim may have been worth had it been made, and what his prospects of success might have been,” the court heard.

“He has not attempted to lead evidence proving any such matters. The Court cannot take a stab in the dark. The Court has no idea what any such claim might have been worth, nor any basis to conclude it was anything other than hopeless, as he was a partner, not an employee.”

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The second false and misleading representation identified involved the “Process Representation”, and included Mr Cross sending an email to Mr Martin’s legal representations, suggesting the filing of documents with the Federal Court “had progressed too far” to be reserved following receipt of the legal representatives’ email and their “subsequent agreement on mediation”.

Mr Martin argued that by stating that “the process of filing the documents with the Federal Court had progressed too far on Monday to be reversed...NRFA represented that: no further procedural step had been taken by, or was required of, the Respondents in order to commence Action 1610 prior to the Private Mediation”. This saw NRF deny that the Process Representation was made.

“I reject NRFA’s submission,” Justice Kerr said.

“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 NFRA 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.”

The third and final false and misleading representation related to “Service Representation”. Pointing to an email from Mr Cross, Mr Martin claimed that sealed originating documents served to him, through his legal representatives, were false. Mr Cross was found to had backdated a signature on the legal claim, upon realising it was missing, and passed them off as the “true originating application”.

“I am satisfied that NRFA’s submissions are to be rejected. I proceed on the basis that the ‘True Originating Application’ to which Mr Martin refers is the sealed originating application that the Court returned to NRFA on the afternoon of Thursday, 22 September 2016 with a missing signature: not the subsequent version of that sealed application that was later altered by being signed and backdated,” Justice Kerr said.

“I am satisfied that having regard to my findings as to what had occurred to create that (very unfortunate) situation, Mr Cross by omission and commission represented that he had signed and dated the originating application on Monday, 19 September 2016.”

NRF accepted that the representations were potentially misleading, as: “Mr Cross did not sign the originating application document on 19 September 2016, which is the handwritten date that appears above his signature on page 3. Although that date was consistent with the filing date according to the rules, and the date recorded elsewhere on the document, it was not the date upon which the document was signed. It was capable of representing that the signature had been affixed on 19 September 2016”.

“The originating application that was in fact filed and sealed did not bear Mr Cross’ signature. It is clear from the contemporaneous email correspondence, there was confusion within NRFA, as the registry had requested that a signed originating application be provided to it, and had apparently accepted the signed version of the sealed document that was consequently lodged. The registry was plainly conscious of this,” NRF said.

In conclusion, Justice Kerr declared the court has made findings “that through its agent, Mr Cross” NRF: intentionally misled its opponent in respect of whether it had stopped the filing of proceedings in the Federal Court of Australia; subsequently misled its opponent in respect of whether it could have stopped the filing of those proceedings; and; added a backdated signature to a sealed originating document filed in the Federal Court of Australia, in order to cover up the initial deception.

Justice Kerr ordered Mr Martin to be awarded $60 as damages, $10,000 as aggravated damages and $150,000 as exemplary damages.

“The dispute has been bitter, protracted, and undoubtedly costly for both sides,” Justice Kerr reflected in his decision on the matter.

“It has travelled far beyond the substance of the original complaint Mr Martin made against the firm under the Fair Work Act 2009 (Cth) (Fair Work Act). The circumstances of this litigation are particularly unfortunate given that in the result it may be thought that in seeking total victory, each party has inflicted damage on the other to a degree beyond the significance of the substantive issues as were initially in dispute between them.

“The circumstances of this proceeding are also salutary as to the potential risks of even a large global law firm choosing to self-represent in respect of a dispute involving a breakdown of prior professional relationships, where caution might suggest that external representation would be better advised.”

The full decision can be viewed on AustLII under Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641 (16 November 2020).