Employment lawyer loses latest round in employment case … Lengthy struggle … Nor much resolved … No deceit by Norton Rose … Self-serving puffery … Big law firm not deceitful … Max Shanahan reports
Last month, the full bench of the Federal Court overturned a previous finding in Martin’s favour by Justice Duncan Kerr.
Kerr J had found that Norton Rose Fulbright (NRF) had acted deceitfully in making false representations as to its intention to cease an action challenging the validity of Thomas Martin’s prospective Fair Work Commission litigation.
The full benched quashed Kerr’s award of $150,000 in exemplary damages, and imposed a hefty costs order on the unfortunate Martin.
The saga began in July 2016, when Tom Martin, an employment law specialist and fledgling partner in NRF’s Perth branch, had his partnership unceremoniously terminated in undisclosed circumstances (“things did not work out,” as the bench put it kindly).
Jilted by the firm, Martin sought to fight back by means of his intimate understanding of employment law, filing an unfair dismissal claim in the Fair Work Commission, and setting up a much-anticipated and potentially “game changing” battle over the employment rights of firm partners.
However, as should have been expected with the preponderance of lawyers involved, the case quickly became bogged down in a quagmire of procedural disputes.
At the heart of the painful five year litigation was a supposed agreement between the parties to adjourn their competing FWC proceedings in order to pursue mediation. Martin argued that NRF had acted deceitfully in representing that they intended to hold off on their jurisdictional challenge, while nevertheless continuing with filing and registration of their action.
According to his statement of claim, reliance on these allegedly misleading representations deprived Martin of the opportunity to pursue his original substantive FWC claim.
Kerr J found that such misleading and deceitful representations did exist, and awarded Martin the princely sum of $60 for his lost opportunity.
However, another $150k in exemplary damages was slapped on NRF by Kerr for showing “no remorse” and “contumelious disregard” of Martin’s rights, while he dispatched the firm off to the Legal Services Commissioner for a good talking to.
Also worthy of a kicking was NRF’s decision to choose its own partner, who had been peripherally involved in Martin’s sacking, to represent the firm in early proceedings. The full bench described the move as “a serious error of judgment”.
Riding high on a delicious victory against his former employer, Martin was brought resoundingly back down to earth by the full bench. Justices Jagot, Katzmann and Banks-Smith found that no agreement regarding mediation conditions existed, and that there was no deceitful conduct by NRF.
Their honours made some choice remarks, which will come as welcome relief to lawyers everywhere:
“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.”
While the good lawyers of NRF might have been foolish, careless and incompetent, the lack of deceit saw Martin’s damages award overturned and replaced with a costs bill that is likely to be staggering, what with Bret Walker SC and King & Wood Mallesons acting for NRF.
Despite the flaws in his judgment, Kerr J put it accurately:
“The dispute has been bitter, protracted, and undoubtedly costly … 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.”
And what of that substantive unfair dismissal issue? Martin, displaying a lawyerly love for litigation, still plans to bring a claim in respect of his sacking, five years and 14 judgments after the fact.