spanner martin cross

A bitter battle: Cross & Spanner v Martin 


After a "bitter, protracted, and undoubtedly costly" case, the Australian branch of Norton Rose Fulbright has been ordered to pay a former partner AUS$160,000 (£90,000) for tricking him into halting his case against it while it secretly pursued a case against him.

NRF made Tom Martin a fixed profit share partner in 2015, but demoted him the following summer after a "deterioration" of his relationship with Wayne Spanner, then the firm's Australia Managing Partner.

Martin disputed the decision and took his grievance to the Fair Work Commission, but halted his application on the understanding that NRF would not file its own application to stop his case in the Federal Court, and that the parties would mediate instead.

The Monday the arrangement was agreed, NRF equity partner David Cross emailed Martin's solicitors informing them that "we have stopped the process of filing the documents in the Federal Court".

But Cross had not stopped the process, and the firm's application meant Martin was then barred from pursuing his own Federal Court claim.

Martin sued over the perceived deception, which was denied by NRF with some eyebrow-raising defences.

NRF accepted that Cross's claim to have stopped the filing was “potentially misleading”, but it argued in court that he had merely used “infelicitous language”, and had intended to convey that he had "attempted" to stop the process.

Justice Iain Kerr said in his Federal Court judgment that "no plausible reading" supported that position, and that Cross's representation was "knowingly false".

Martin also sued over a second deception, where Cross sent Martin's team an email on the Friday of the critical week claiming that the process of filing the firm's application with the Federal Court "had progressed too far on Monday to be reversed".

Martin alleged that was false, pointing out that in the intervening days Cross rectified various issues with the application to ensure it was filed, including paying a late filing fee and adding a missing signature to it.

Justice Kerr ruled that Cross "well knew" that the firm would have been able to stop the process, "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".

NRF, though Cross' actions, was found guilty of intentionally misleading Cross twice and of backdating its application "in order to cover up the initial deception".

Justice Kerr said Martin's chances in his original case were negligible and only awarded damaged of $60, and he only added $470 damages for the backdated application. But he also awarded aggravated damages of $10,000 to compensate Martin for hurt and distress, and exemplary damages of $150,000.

"I am satisfied that an award of anything less than a substantial sum" would "merely irritate a large global and national law firm", the judge said, and while $150k was "modest" given the facts of the case, it was "sufficient to sting".

A Norton Rose Fulbright spokesperson said the firm "is considering what is a lengthy judgment and considering avenues for appeal".

"Respecting the judicial process, the firm will not comment further as to any aspect of this judgment or in regards to this long-running matter or its implications."


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Comments

RegulatoryLawyer 20 November 20 09:45

If there was knowing deception by NRF, this is undoubtedly SRA (or the Ozzie equivalent) territory. Intentionally misleading a colleague, with a view to gaining advantage in a dispute, is a clear breach of the SRA Principles. The firm should self report and face the music. 

Gobblepig 20 November 20 11:12

"NRF, though Cross' actions, was found guilty of intentionally misleading Cross twice and of backdating its application "in order to cover up the initial deception"."

Er, isn't that a basis for something a little bit more stringent than a financial penalty? That sounds as though it amounts to fraud, as described, and a basis for striking-off. 

James Kitching 20 November 20 11:21

"NRF, though Cross' actions, was found guilty of intentionally misleading Cross twice and of backdating its application "in order to cover up the initial deception"."

How many times have you heard of a junior lawyer being struck off for something similar, yet far minor! Surely if this is upheld, he will have to go.

Anonymous 20 November 20 11:53

What's that James? Are you suggesting that this is yet another case of old white male lawyers not getting struck off just because they are old white and male? When a young BAME paralegal would be struck off for the exact same thing?

I mean, now that you've brought it up, perhaps you have a point...

 

Will there ever be justice for Sana?

Anon 20 November 20 14:23

A partner of a major law firm who has found to have made "knowingly false" representations in legal proceedings must have no in the firm, let alone the profession.

What a disgrace.  His fellow partners must be deeply embarrassed.

Aussie expat view 20 November 20 16:11

Thanks RoF, interested to hear the latest move in this dispute.

Further reading from Australian Financial Review (most reputable business affairs newspaper): https://www.afr.com/companies/professional-services/leading-law-firm-hit-with-160-000-penalty-for-deceiving-former-partner-20201116-p56f12

Interesting points in the judgment about whether non-equity partners can be considered employees. 

To reassure the Roffers who've commented above: "[the judge] referred NRF's conduct to the Legal Services Commissioner of NSW, which deals with lawyers that breach their professional duties."

FFS 20 November 20 18:39

I never cease to be disgusted by the behaviour of people in what I once thought was an honourable profession but which now seems to be nothing but a rabble when it comes to senior management 

Anonymous 22 November 20 17:21

As long as they only broke the law in a limited and specific way I can't see what the problem is.

They misled but were not aware that they were doing it at the time because they didn't get any feedback.

They were using the documents to test their eyesight.  Or the printers.  Or something.

Unfortunately the British can no longer complain about lack of integrity in the law because our own attorney general supports breaking it.

Beebop 23 November 20 09:04

In his earlier NRF photo and seeing him round the London office Wayne always reminded me of Slenderman. 

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