Federal Court of Australia

Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s interlocutory application dated 28 July 2022 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the lump sum of $47,300.00.

3.    The first respondent’s interlocutory application dated 7 October 2022 otherwise be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s interlocutory application dated 28 July 2022 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the lump sum of $47,300.00.

3.    The first respondent’s interlocutory application dated 7 October 2022 otherwise be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By separate originating processes, each of the applicants—Mr and Mrs Messenger (to whom it will be convenient to refer collectively as the “Messengers”)—brought proceedings against the respondents concerning the termination of their employment by the first respondent as members of the second respondent’s staff. Those proceedings alleged that the respondents had engaged in conduct in contravention of ss 50, 323, 340 and 355 of the Fair Work Act 2009 (Cth) (the “FW Act”). By judgment dated 10 June 2022, the court dismissed each application: Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 (the “Primary Judgment”; Snaden J).

2    Each of the respondents now applies, in each matter, for orders that the Messengers pay their costs, or alternatively part of their costs, of successfully defending each action. That course is embarked upon by means of four separate interlocutory applications: one filed by each respondent in each proceeding. In order that they might succeed, it will be necessary for the respondents first to overcome the prohibition for which s 570(1) of the FW Act provides (which is the subject of analysis below).

3    For the reasons that follow, I have determined that:

(1)    the second respondent’s costs applications should be dismissed;

(2)    the first respondent’s costs applications should partially succeed, such that the Messengers, having each engaged in instances of unreasonable conduct that occasioned the incurring of costs by the first respondent, should each pay to the first respondent costs fixed in the sum of $47,300.00; and

(3)    the first respondent’s costs applications should otherwise be dismissed.

The interlocutory applications

4    As has been recorded, there are presently four interlocutory applications before the court: one filed by each of the two respondents in each of the two proceedings. As between proceedings, the applications are materially identical (which is to say that each respondent seeks the same relief against Mrs Messenger in her matter as is sought against Mr Messenger in his). As with the substantive proceedings, then, it is convenient to treat the respondents’ two applications collectively: that is, to proceed as though each respondent makes a single costs application.

5    The interlocutory applications came before the court at a hearing that took place on Wednesday, 9 November 2022. The first respondent read four affidavits affirmed by its instructing solicitor, Mr Robert Andersen, on the following dates, namely:

(1)    15 October 2018;

(2)    18 April 2019;

(3)    7 October 2022; and

(4)    7 November 2022.

6    The second respondent read two affidavits of its instructing solicitor, Ms Elizabeth Cole, dated 28 July 2022 and 19 October 2022.

Costs: general principles

7    Before exploring the submissions that were advanced, it is convenient to identify some applicable principles that guide the court’s present task.

8    Section 43 of the Federal Court of Australia Act 1976 (Cth) relevantly provides as follows:

(1)    The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded. This is subject to:

…

(b)    section 570 of the Fair Work Act 2009; and

…

…

(2)    Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

(3)    Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following:

(a)    make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial;

(b)    make different awards of costs in relation to different parts of the proceeding;

(c)    order the parties to bear costs in specified proportions;

(d)    award a party costs in a specified sum;

(e)    award costs in favour of or against a party whether or not the party is successful in the proceeding;

(f)    order a party’s lawyer to bear costs personally;

(g)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise;

(h)    do any of the following in proceedings in relation to discovery:

(i)    order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery;

(ii)    order the party requesting discovery to give security for the payment of the cost of discovery;

(iii)    make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.

Note:    For further provision about the award of costs, see subsections 37N(4) and (5) and paragraphs 37P(6)(d) and (e).

9    Section 570 of the FW Act assumes central significance. It provides as follows:

570 Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

…

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs…

10    Sections 569 and 569A of the FW Act are not presently relevant.

11    As may be seen, the general prohibition against the awarding of costs in a matter arising under the FW Act (as each of these matters plainly did) is subject to exceptions. The court’s traditional discretion as to costs survives insofar as a matter might be said to have been instituted vexatiously or without reasonable cause. A similar discretion is available in respect of costs that are incurred in consequence of another party’s unreasonable conduct.

12    In Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 232 FCR 428 (Dowsett, McKerracher and Katzmann JJ), the full court of this court, after referring to other authorities, made the following observations (at 430-431 [7]) about s 570 of the FW Act:

…In our view the authorities establish the following principles:

(1)    The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause.

(2)    It follows from the protection offered by s 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Spotless Services Australia Ltd v Senior Deputy President Marsh [2004] FCAFC 155 (Spotless) at [12]-[13] (to the extent that the Full Court in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (Kangan) held otherwise, we would respectfully disagree).

(3)    The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J; Kangan at [60]. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-265 (approved in Kangan) Wilcox J said:

If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.

13    The policy underpinning s 570 of the FW Act recognises that an applicant might fairly (and without costs consequences) prosecute “…a weak case as long as it is not utterly hopeless”: Nilsen v Loyal Orange Trust (1997) 76 IR 180, 181 (“Nilsen”; North J).

14    A respondent who submits that a proceeding arising under the FW Act was brought vexatiously must demonstrate that the applicant’s predominant purpose in instituting it was to harass or embarrass, or to gain a collateral advantage unrelated to the vindication of the rights, privileges or immunities in respect of which it was instituted: Nilsen, 181 (North J). The onus is “a heavy one”: Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498 (Scarman LJ). If a proceeding is instituted by an applicant who does not intend to prosecute it to conclusion; but instead seeks to use it as a means of obtaining some advantage for which it was not designed or some collateral advantage that is beyond what the law offers, then it might be said to have been instituted vexatiously: Williams v Spautz (1992) 174 CLR 509, 526-527 (Mason CJ, Dawson, Toohey and McHugh JJ).

15    In BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347, [26] Halley J enumerated the following principles that guide the court in assessing whether, for the purposes of s 570(2)(b) of the FW Act, costs have been incurred in consequence of unreasonable acts or omissions:

The following principles emerge from the authorities with respect to the application of s 570(2)(b) of the FW Act:

(a)    the occasions on which costs will be awarded under s 570 of the FW Act are likely to be exceptional: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 (Mutch) at [8] (Bromberg J);

(b)    the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 (Grouped Property Services) at [26] (Katzmann J); Tucker v State of Victoria [No 2] [2021] VSCA 182 (Tucker) at [32(h)] (Kyrou, McLeish and Sifris JJA);

(c)    the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 (Clarke) at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 (Comcare (No 2)) at [8] (Bromberg J); Tucker at [32(h)];

(d)    the term “unreasonableness” is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the FW Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7];

(e)    unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v King [No 2] [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ);

(f)    it is well settled that the limitation imposed by s 570 of the FW Act seeks to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims: Mutch at [7] citing Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J); Comcare (No 2) at [8] (Bromberg J);

(g)    if the power to make an order pursuant to s 570 of the FW Act is enlivened then in determining whether to exercise its discretion to make an order, the Court is bound by s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to exercise that discretion in the way that best promotes the overarching purpose of any statutory provision on a matter of practice and procedure referred to in s 37M of the FCA Act: Grouped Property Services at [26] (Katzmann J).

16    The rejection of a reasonable offer to compromise proceedings can, though does not necessarily, constitute unreasonable conduct for the purposes of s 570(2)(b) of the FW Act. In PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53 (Rangiah, Charlesworth and Snaden JJ) the full court made the following relevant observations (at [20]):

…The rejection of a reasonable offer to compromise proceedings can (but does not necessarily) constitute an unreasonable act or omission of the kind to which s 570(2)(b) of the FW Act refers: Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221, 255 [166] (Tracey, Gilmour, Jagot and Beach JJ, with whom White J agreed on that issue). Again, whether the rejection of an offer to compromise proceedings can be impugned as unreasonable will be a question of impression and degree, to be informed by all of the circumstances that surround it. At the least, those circumstances will include the objective attractiveness of the offer, whether a more beneficial result was realistically possible and whether the effort required to achieve a more beneficial result was proportionate to any marginal benefit.

17    In determining whether a party has, in a FW Act matter, incurred costs in consequence of an unreasonable act or omission, unreasonableness is informed by its context, taking into account all of the circumstances: Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306, 342 [163]-[165] (Bromberg J), 344, [171] (Charlesworth J).

The substantive decision

18    It is prudent at this juncture to make some observations about the Primary Judgment and the cases that were advanced at the trial.

19    By their further amended statements of claim, the Messengers each advanced three causes of action. The first was that they were subjected to adverse action (principally in the form of the termination of their employment) in contravention of s 340(1) of the FW Act. The second was that the first respondent had contravened the FW Act by failing to pay them in lieu of notice of those terminations in accordance with the terms of an applicable enterprise agreement. The third was that the second respondent had contravened s 355 of the FW Act by threatening to take action against a third party with intent to coerce him to not employ them.

20    All three causes of action were dismissed. The court’s reasons for dismissing them speak for themselves; but it is convenient to summarise a small number of matters that bear upon the present applications.

21    The trial of the proceedings extended over 16 days. The court’s reasons for judgment (at [12]-[17]) contained the following observations relevant to that:

…Although they were, at all times, courteous and conscientious, Mr and Mrs Messenger were curtailed by a poor grasp of the law, of the cases that they had pleaded and of relevant trial processes. That observation should not be mistaken for criticism. On the contrary, the Messengers approached the prosecution of their matters with great energy and diligence. Nonetheless, their matters required substantial pre-trial case management and they embarked upon a series of procedural endeavours that more discerning litigants might have avoided. Two consequences emerged: first, the matter took substantially longer to proceed to trial than it ought to have (largely in consequence of the case-management concerns to which the court’s attention was directed, both before and after the matter found its way into my docket); and, second, the trial itself took substantially longer than it ought to have.

That second reality, in particular, deserves some exploration. As can sometimes occur with litigants who labour under the disadvantage of self-representation, Mr and Mrs Messenger had a tendency to fix upon matters that were irrelevant to the causes of action to which their pleadings gave voice. On occasions, they sought to amplify matters of political controversy, which, although irrelevant to those causes of action, they nonetheless had an apparent personal interest in ventilating. Appropriately enough, many of the procedural liberties that they took throughout the course of the trial (knowingly or otherwise—and overwhelmingly otherwise) were waived through without objection. Some were occasioned at the invitation of the court (or, more commonly, after it was made known that objection would be futile). To their credit—and quite obviously with a view to minimising the natural limitations that attend self-representation—the respondents extended to the Messengers considerable leeway in the way that they conducted the trial. On occasions, additional liberties were extended over the respondents’ polite and concise objections. A balance was struck between the need to progress the trial efficiently (on the one hand) and the need to ensure that all parties were treated fairly and in a manner befitting of the occasion of a trial in this court (on the other). Nonetheless, it is fair to say that the trial did not progress in an orthodox manner.

…Conscious of the difficulties under which they laboured (and anxious to minimise their regrettable impacts), Mr and Mrs Messenger did their best to confine themselves to what they thought required ventilation and their efforts in difficult circumstances are to be commended. Nonetheless, they required accommodations that came at considerable cost to the efficient progression of the proceedings.

Furthermore, the Messengers were, at times, unable to contain the obvious personal animus that they reserve for Senator Lambie. On occasions, they put matters—both in their evidence in chief and by way of questions to each other or to other witnesses—that were highly inappropriate and ought never to have been put. Some such matters were self-evidently scandalous and of no significance to either proceeding. Despite repeated warnings, the Messengers appeared at times determined to turn the trial into some kind of broad-ranging judicial inquiry into Senator Lambie’s character; or, which is worse, into a trial by media.

Those repeated excursions from what was appropriate to explore in evidence meant that the trial took considerably longer than it should have. What ought to have taken in the order of three or four days to hear instead extended over 16. It involved three separate sittings that spanned some seven months. The Messengers’ evidence alone occupied no fewer than six hearing days.

…[T]hose observations are offered not in criticism but as context. The slow progress of the matters through the ordinary processes of case management, to trial and now to judgment have been beset by difficulties that, in more ideal circumstances, would best have been avoided.

22    The Messengers’ adverse action cases proceeded on the basis that they had each been dismissed because, or for reasons that included that, they had made complaints or inquiries that they were able to make in relation to their employment (and had, thereby, exercised “workplace rights” of the kind recognised by s 341(1)(c) of the FW Act). At the trial of the matters, evidence was led of a voluminous array of discussions and written communications that were said to have given voice to the complaints or inquiries upon which the Messengers relied. In the court’s reasons for judgment, each such species of complaint or inquiry was addressed; but, in advance of that analysis, the following observations were made about the Messengers:

Mr and Mrs Messenger did not present as credible witnesses. Throughout the trial, they were consistently argumentative, and exhibited the clearest and most constant desire to exact upon the Senator as much reputational damage as they could by ventilating the many and various matters about which they claimed to have complained during their employment. Much of what they said—particularly about some of the communications that they claim to have made early on in the Relevant Period—had a distinct air of reinvention to it. Mr Messenger, in particular, appeared very carefully to curate his evidence such that he might more easily characterise the discussions that he recounted as complaints or inquiries related to his employment. Despite repeated warnings from the court—stated in escalating terms over the course of the trial—he exhibited an unrelenting tendency to air matters of scandal prejudicial to Senator Lambie, most apparently for the consumption of media representatives who observed and reported on the trial. His evidence appeared calculated and, at times, vengeful.

Mrs Messenger exhibited similar tendencies. She frequently overstated matters in the service of her case and regularly punctuated her evidence with gratuitous observations—usually slurs—self-evidently designed to humiliate or disgrace the Senator. Like Mr Messenger, she proceeded at times throughout both her evidence and her conduct of the trial more broadly as though the proceedings served as some form of judicial inquiry into the many and varied character shortcomings that she attributes to Senator Lambie. She, too, was warned against doing so; but, all too often, those warnings appeared not to dent her enthusiasm.

23    The Primary Judgment then set about exploring the complaints or inquiries that the Messengers said that they had advanced during their time in the second respondent’s office; and, in particular, whether there had been communications amounting to the exercise or exercises of workplace rights. With one exception, it was concluded that the Messengers had not partaken of any communications that sufficed to amount to the exercise of a workplace right. That was so for varying reasons, including:

(1)    that some of the communications that were said to have been made were, in fact, not made;

(2)    that some of the communications that were made did not assume the form of complaints or inquiries;

(3)    that some of the complaints or inquiries that were made were not complaints or inquiries that were made in relation to the Messengers’ employment; and

(4)    that some of the complaints or inquiries that were made were not complaints or inquiries that the Messengers (or either of them) were relevantly “able to make” for the purposes of s 341(1)(c)(ii) of the FW Act.

24    Over the course of the analysis, the court had occasion to make some unflattering observations about many of the communications (or species of communications) upon which the Messengers relied. Some were said to have been exaggerated or embellished; others were said to have been unremarkable communications that the Messengers had sought to revise, reinvent or repurpose as complaints or inquiries. Many were recognised as vehicles through which the Messengers sought, either at the times that they were made or by their ventilation in these proceedings, to visit a measure of humiliation upon the second respondent.

25    There was, nonetheless, one occasion on which the court recognised that the Messengers had exercised a workplace right by making a complaint or inquiry that they were able to make in relation to their employment. It concerned discussions that the Messengers had with the second respondent following receipt of a death threat that had been issued to her Burnie, Tasmania office. That occurred in February 2015 and the relevant discussions followed shortly thereafter. The court ultimately accepted that, when she resolved to dismiss each of the Messengers in May 2017, the second respondent was not actuated in any way by their having made that species of complaint or inquiry.

26    The Messengers’ case under s 50 of the FW Act was straightforward. It presupposed that they were entitled either to notice of the termination of their employment or payment in lieu thereof. They received neither. The respondents contended that they were not entitled to notice or payment in lieu thereof because they were summarily dismissed for serious misconduct. This aspect of the Messengers' claims thus turn upon whether or not that was so.

27    Two instances of serious misconduct were advanced against the Messengers. The first concerned the content of correspondence that they sent in March and April 2017 to, amongst others, the office of the then Prime Minister, the Hon. Malcolm Turnbull MP. It is unnecessary to revisit its content; save to note that it was highly critical of the second respondent.

28    The second instance of serious misconduct concerned events that transpired on Friday, 24 March 2017. On that day, another employee (or former or soon-to-be former employee) of the second respondent’s office, Mr Walker, attended at the Messengers’ home, whereupon a statutory declaration was prepared, which he later signed. Again, the content of that declaration need not be revisited, save to note that it too was highly critical of the second respondent. The Messengers were alleged to have been instrumental in its preparation.

29    On both fronts, the court accepted that the Messengers had engaged in serious misconduct sufficient to disentitle them to the amounts that they said had been wrongly withheld.

30    The Messengers’ case under s 355 of the FW Act concerned a radio interview in which the second respondent participated on 28 November 2017, after the present proceedings had been instituted. During that interview, the second respondent—who, at that time, had ceased to be a member of the Australian Senate—was asked about the prospect that her proposed successor, Mr Martin, might employ one or both of the Messengers. The second respondent indicated that, were that to transpire, steps would be taken to sever ties between Mr Martin and the Jacqui Lambie Network political party. The Messengers alleged that that threat amounted to coercion, which the second respondent visited upon Mr Martin in contravention of s 355 of the FW Act.

31    The court rejected that submission. I concluded, instead, that the threat that the second respondent had made was not relevantly unlawful, unconscionable or illegitimate; and, therefore, was not relevantly coercive. Some observations were made about the manner in which that aspect of the proceedings had been pleaded but it is not necessary to recite them here.

The case for costs orders

32    The respondents’ applications for costs proceed on multiple bases. It is convenient to identify each. As will be seen, not every basis is pursued by both respondents.

1. The proceedings were instituted vexatiously

33    Both respondents submit that each proceeding was instituted vexatiously. It was submitted that the predominant purpose animating each applicant to that end was not to vindicate rights upon which they claimed that the respondents had trespassed; but to subject the second respondent to a public trial, to ventilate within it all manner of scandal and criticism of her fitness for office, and, thereby, to visit upon her a significant measure of public humiliation.

34    That improper motive, it was said, was evident as a matter of inference from:

(1)    the instances of misconduct that preceded the Messengers’ dismissals, which in each case was reflective of their having embarked upon a campaign designed to humiliate or publicly discredit the second respondent;

(2)    the manner in which the Messengers prosecuted their matters, both before and during the trial, which included numerous episodes during which they sought to raise scandalous material that was designed to embarrass the second respondent and that was irrelevant to their pleaded causes; and

(3)    the efforts to which the Messengers went (and which the court recognised) to repurpose or exaggerate or, in some cases, invent communications that were alleged to have assumed the form of complaints or inquiries related to their employment, by all of which it was sought to portray the second respondent (and her fitness for office) in an extremely negative light.

2. The proceedings were instituted without reasonable cause

35    Both respondents also submit that each proceeding was instituted without reasonable cause.

36    Insofar as concerns the Messengers’ adverse action case, it is said that:

(1)    the complaints or inquiries upon which reliance was placed were, to a significant degree, contrived—that is to say, either did not occur, were not genuinely in the nature of complaints or inquiries, or did not genuinely relate to the Messengers’ employment—and, that being so, could not realistically have been expected to qualify as the exercise of workplace rights;

(2)    those complaints or inquiries were overwhelmingly not, in any event, complaints or inquiries that the Messengers were relevantly “able to make” in relation to their employment; and

(3)    the only species of complaint or inquiry that the court accepted as the exercise of a workplace right occurred more than two years prior to the adverse action that was taken against them.

37    Insofar as concerns the Messengers’ underpayment case, it is said that:

(1)    the content of the correspondence that they sent to (amongst others) the office of the then Prime Minister spoke for itself—and, on any view, was highly critical of the second respondent and, as the court concluded (Primary Judgment, [368]), “constitute[d] some of the clearest examples of serious misconduct imaginable”;

(2)    although their own evidence sought to conceal it, the true nature of their interactions with Mr Walker on Friday, 24 March 2017 were known to them—and their efforts in luring him to their house on that day, convincing him to make a statutory declaration and determining for him the damning content up to which he foolishly signed were, as the court found (Primary Judgment, [378]), “very clear examples of serious misconduct”; and

(3)    consequently, their claim to notice (or pay in lieu thereof) was so weak as to have been pursued without reasonable cause.

38    It is to be recalled that the Messengers’ claims under s 355 of the FW Act were added after their proceedings were instituted. Although the respondents submit that they, too, lacked reasonable cause, it is not necessary to rehearse why, nor to consider whether, that is so.

3. Costs were occasioned by unreasonable acts or omissions

39    The respondents each contend that, over the course of the proceedings, they incurred costs in consequence of unreasonable acts or omissions of the Messengers’. Four such instances are relied upon: three by the first respondent and one by the second respondent.

The filing of evidential material

40    The first concerns a very large body of evidential material that the Messengers filed in March 2019 and that was the subject of a hearing on 4 September 2019. The relevant history concerning those events was summarised without controversy in the written submissions of the first respondent. Though lengthy, it is convenient to replicate the following extract:

51.    On 11 May 2018, Tracey J ordered that the Messengers serve outlines of the evidence they proposed to be given by each witness they would call at hearing, together with a list of the documents upon which they intended to rely at the hearing. On 5 August 2018, the Messengers each filed a 15 page table titled “Outline of evidence proposed to be given in chief by each witness together with list of documents [a]pplicant intends to rely on” (the Messengers’ Table). The Messengers’ Table identified 46 potential witnesses (including themselves and Senator Lambie) and the suggested content of their evidence.

52.    On 8 August 2018, the solicitors for Senator Lambie sent an email to the Messengers outlining objections to the content of the Messengers’ Table, including the irrelevance and lack of particularity of the suggested evidence, as well as the impact of 46 witnesses on the trial estimate of 10 days. The solicitors for Senator Lambie proposed to seek directions from the Court to deal with these issues. The solicitors for the Commonwealth emailed the Messengers the following day noting that the Commonwealth also had concerns, and that it would be in the interests of the parties to have the matter brought back before the Court. On 13 August 2018, the Messengers agreed to have the proceeding listed for case management, but rejected the objections as “unsubstantiated”, “ill-formed” and “vexatious”.

53.    Various communications were exchanged between the parties and the Court, in part due to Tracey J’s retirement and interim arrangements for Bromberg J to case manage the proceeding. On 6 September 2018, a case management hearing was set down for 17 October 2018.

54.    On 12 September 2018, the Messengers emailed a letter to the solicitors of the Respondents to “put in writing” accusations that the [r]espondents had not provided specific details of their objections to the witness evidence and failed to act as “model litigants”, and flagged their intention to write to “the Prime Minister, Attorney General and Minister for Public Finances”. On 14 September 2018, the solicitors for the Commonwealth emailed the Messengers a letter which, amongst other things, identified the Commonwealth’s specific concerns with the Messengers’ Table, including that:

(a)    the number of witnesses (46) was disproportionate to the matters to be determined by the Court;

(b)    the evidence of a significant number of those witnesses was not relevant;

(c)    it appeared that the Messengers had not spoken to a number of the witnesses, such that the description of the evidence they would give was speculative. This risked “wasting time, causing unnecessary expense, unfairly prejudicing the [r]espondents and, ultimately, abusing the process of the Court”;

(d)    a significant portion of the evidence was directed to ventilating alleged behaviour of Senator Lambie that was inappropriate, such that the Commonwealth held a concern that the proceedings were being used “as a vehicle to criticise or embarrass” her and others, and “inappropriately draw other current and former Senators and Members of Parliament into the dispute”.

55.    On 17 October 2018, a case management hearing was held before Wheelahan J, who by that time had replaced Tracey J as the docket Judge. The Commonwealth made submissions regarding the problems associated with the Messengers’ Table identified above at [51]. The Commonwealth proposed that each of the Messengers file and serve:

(a)    an outline of evidence proposed to be given in chief for any witness they will call at the hearing that will not be subpoenaed;

(b)    an outline of the evidence the Messengers expect that witness that will require a subpoena will adduce; and

(c)    a list of the documents on which the Messengers intend to rely at the hearing.

56.    The Court observed that the Messengers’ proposed evidence was not in a satisfactory form, and that they needed to “start from scratch”. On 19 October 2018, Justice Wheelahan made the orders proposed on behalf of the Commonwealth.

57.    On 8 March 2019, the Messengers each filed approximately 1,300 pages of written materials. The 1,300 pages comprised:

(a)    witness statements from each of the Messengers;

(b)    signed witness statements from 9 witnesses who had agreed to give evidence in support of the Messengers;

(c)    unsigned witness statements from 29 individuals for whom the Messengers sought that the Court issue subpoenas, which included various scandalous and irrelevant matters including in relation to the Hon. Malcolm Turnbull MP, Mr Turnbull's son-in-law (James Brown), Mr Norbert Keough, (then) Senator Derryn Hinch, (then) Senator David Leyonhjelm and Senator Lambie’s sons (Brentyn Milverton and Dylan Milverton).

58.    By email dated 21 March 2019, the solicitors for the Commonwealth emailed the Messengers and the solicitors for Senator Lambie and suggested directions that the Respondents file and serve written submissions by 18 April 2019 addressing the Messengers’ proposed subpoenas and limiting the number of witnesses, and that the Messengers file responsive submissions by 10 May 2019. The covering email to each of the Messengers and Senator Lambie’s solicitors explained:

The purpose of the orders is to establish a timetable for the Court to determine the witnesses whom the applicants will be given leave to subpoena, and to also allow the Court to determine which of the cooperative witnesses the applicants will be permitted to call to give evidence. That is necessary because the Commonwealth continues to have concerns about the applicants' evidence, including that they propose to call or subpoena a significant number of witnesses who have no, or very little, relevant evidence to give.

59.    The Messengers did not reply to this proposal before the case management hearing the following day.

60.    On 22 March 2019, a case management hearing was held before Wheelahan J. The Respondents raised issues about the relevance of the material, the number of witnesses and whether there was a proper basis to call them, and the use of the Court to place Senator Lambie’s character on trial. His Honour ordered that the parties file and serve written submissions concerning the further case management of the proceeding, and listed a further case management hearing.

61.    On 18 April 2019, the Commonwealth filed written submissions seeking to exclude or limit much of the material that was filed by the Messengers on 8 March 2019 (18 April Submissions). The Commonwealth submitted (in summary):

(a)    the proposed evidence sought to be adduced and many of the documents were not relevant or admissible;

(b)    there was no proper basis for the Court to presume that any of the subpoenaed witnesses could give evidence as identified by the Messengers (i.e. it constituted “fishing”);

(c)    there was a question as to whether the Messengers had an ulterior purpose for seeking leave to issue subpoenas; and

(d)    certain subpoenas were unnecessary as the [r]espondents intended to call them.

62.    The 18 April Submissions contained five annexures (A-E), which contained an analysis of the 1,300 pages filed by the Messengers on 8 March 2019. This analysis was extensive because:

(a)    of the volume of the Messengers’ proposed witness materials and the need to identify the Commonwealth’s specific objections;

(b)    the Messengers’ witness evidence had already been the subject of two case management hearings and extensive correspondence;

(c)    the time and costs that would be incurred if the Messengers proceeded to call 40 witnesses would be significant.

63.    The 18 April Submissions put the Messengers on notice that the Commonwealth would seek its costs associated with and incidental to the Messengers’ filing of materials on 8 March 2019 pursuant to s 570(2)(b) of the FW Act on the basis that:

(a)    the overwhelming majority of the evidence the Messengers intend to lead was inadmissible, unnecessary and / or extraneous to any of the real issues in dispute;

(b)    the Messengers unreasonably sought to subpoena a significant number of those witnesses without proper basis and, in some instances, sought to invoke the Court’s processes for ulterior purposes disconnected from the real issues in dispute;

(c)    the Messengers proceeded to file material in support of the subpoenas despite protestations from the subpoenaed witnesses, and warnings by the Commonwealth and Senator Lambie that the proposed evidence lacked apparent relevance;

(d)    the Messengers’ conduct unreasonably caused the Commonwealth to incur significant costs and utilise significant resources in reviewing and responding to their witness materials.

64.    On 10 May 2019, the Messengers filed submissions in response, rejecting the concerns raised in the 18 April Submissions, including the submission of the Commonwealth that they sought to engage in a “fishing” exercise through issuing subpoenas. They submitted “the evidence had now simply jumped into the Court’s boat and is flopping about – waiting for the Commonwealth and [Senator Lambie] to acknowledge the self-evident, before the ‘fish’ dies and the legal ‘stench’ becomes unbearable for all” and that the evidence they would adduce on subpoena would put before the Court “enough ‘fish’ to cater for a month’s worth of encore performances…by Christ himself – without need for any miracles”. The Messengers proceeded to accuse Senator Lambie of being “a self-confessed alcoholic” suffering from “severe mental health and behavioural problems” and her son of being “a self-confessed Ice / drug addict, associating with organized crime figures”.

65.    On 4 September 2019, a case management hearing was held before Snaden J, who had replaced Wheelahan J as the docket Judge. At the case management hearing:

(a)    The [r]espondents acceded to Senator Lambie’s staff being the subject of subpoena (namely, Kelcey Walker, Mitchel Walker, Aryelle Sargent, Tammy Tyrrell, Karen Philpott, Kirsty Balthazaar-Proctor, Gemma Lynd and Kay Eastley).

(b)    The Commonwealth proposed to call Andrew Witheford;

(c)    The Court refused to grant leave to the Messengers to issue subpoenas to Mr Turnbull, Mr Bartlett, Mr Keough and Ms Smethurst;

(d)    The Messengers conceded that the rest of their proposed witnesses need not be called, save for Trevor Reading and Lyn Carey.

66.    The Court then made orders on 5 September 2019:

(a)    dismissing the Messengers’ application to issue subpoenas to 20 “proposed subpoena witnesses” and an unnamed ASIO Agent;

(b)    expunging from the Court’s file in each proceeding the Messengers’ proposed evidence, other than two “permitted witness statements” (of Trevor Reading and Lyn Carey);

(c)    otherwise conditioning the Messengers’ grant of leave to issue subpoenas to the “accepted subpoena witnesses” (Senator Lambie’s staff) only in respect of “relevant complaint evidence”.

67.    The Court made an order on 5 September 2019 that “the costs of and pertaining to the case management hearing [on 4 September 2019] be costs in the cause”. Having regard to s 570 of the FW Act, the Commonwealth understands by that order the Court intended to reserve the question of costs arising from this discrete event.

(references omitted)

41    It is said that it was unreasonable for the Messengers to file the very large body of material that was filed in March 2019 (the great bulk of which went to irrelevant matters) and then to insist that the court should issue subpoenas to a large number of potential witnesses who had no connection with the case that they had pleaded. That conduct is said to have led to the first respondent incurring costs that it should not have had to incur and that it should now be permitted to recoup.

The filing of notices to admit

42    The second instance of unreasonable conduct attributed to the Messengers concerns their attempts to extract admissions by means of 17 notices to admit that were served between 14 August 2019 and 26 August 2020.

43    The first respondent submits that those notices were numerically unjustifiable, were needlessly lengthy, involved at least a degree of repetition and sought admissions concerning matters that were scandalous and irrelevant. Most of them were served after the hearing that took place on 4 September 2019, at which the vast bulk of the evidential material upon which the Messengers had proposed to rely was expunged from the court files and leave to issue subpoenas was refused (or overwhelmingly so, in that most were to be directed to witnesses with no relevant connection to the pleaded case).

The conduct of the trial

44    The third instance of unreasonable conduct attributed to the Messengers concerns the manner in which they conducted themselves during the trial. The first respondent submits that, by their conduct—in particular, by their fixation during the trial upon matters that were irrelevant to their case and that tended to embarrass or scandalise the second respondent—the Messengers caused the trial to endure for far longer than it ought to have.

45    The first respondent seeks to recover a portion of its costs associated with attendance at and preparation for what it says was the unduly-extended trial.

Rejection of an offer to compromise

46    The fourth and final instance of unreasonable conduct attributed to the Messengers concerns an offer that was made to them in September 2020 to compromise their proceedings.

47    That offer was made on behalf of the second respondent. She offered to resolve both proceedings on the basis that each of the Messengers would be paid a sum equivalent to six weeks’ pay: in Mr Messenger’s case, $14,978.07 (less tax); and, in Mrs Messenger’s case, $9,557.65 (less tax). In each case, it was proposed that the sum would be taxed as what is known as an eligible termination payment. The six-week period in respect of which the figures were calculated represented the amounts that the Messengers claimed by means of their causes of action under s 50 of the FW Act.

48    By correspondence dated 1 October 2020, the Messengers rejected the second respondent’s offer. The terms in which they did so were intemperate and regrettable. Amongst other things, their letter referred to the offer as “an implicit acknowledgment of guilt” and “an attempt to rewrite history and cover up serious crimes committed by [the second respondent]”. It also noted that the second respondent had “expresse[d] no remorse” and that “[w]hile we’re always open to resolution before trial – it’s now clear to us that the only way we’ll achieve justice and remedy the harm caused to us, is to rely on a public decision from His Honour, after he fairly hears our cases.”

Were the proceedings instituted vexatiously?

49    In order that they might establish that the Messengers each instituted their proceedings vexatiously, the respondents must demonstrate that their predominant purpose at the time was to harass, annoy or vex the second respondent, or otherwise to realise some collateral benefit alien to their suits. In the present circumstances, I am not persuaded that the respondents can clear that hurdle.

50    The facts recorded in the Primary Judgment paint a very clear picture of the trajectory of the relationships between the Messengers (on the one hand) and the second respondent (on the other). It is plain that those relationships soured over the second half of 2016 and the first few months of 2017. By March 2017, they were positively toxic. By the end of that month, the Messengers were not on speaking terms with the second respondent and had solicited from Mr Walker a written indictment of her, which they paired with their own so-called “public interest disclosure” (copies of which, as history records, were sent to the office of the Prime Minister, amongst others).

51    Over the weeks that followed (until their dismissals in May 2017), things went from bad to worse. The Messengers offered some regrettable and pointed observations about the second respondent (which, again, were shared with the Prime Minister’s office) that made even the slightest prospect of reconciliation all but impossible. At the point that their employment in the second respondent’s office came to an end, the relationships were spiteful and venomous.

52    It isn’t difficult to accept that that poisonous situation was probably at least a reason why the Messengers were moved to institute their proceedings. But so to acknowledge is not to foreclose upon the likelihood that another was the vindication of rights upon which the Messengers perceived that the respondents had transgressed. That they would annoy or harass the second respondent, or otherwise serve as a vehicle through which a measure of public humiliation might be wrought upon her can be accepted; but from the point of view of the Messengers, those realities strike more as happy by-products than as predominant objectives.

53    I do not accept (which is to say that I would not infer from the circumstances to which the respondents point) that the Messengers would not have pursued the causes of action that they pursued but for those by-products. No doubt, when they instituted their proceedings, the Messengers had multiple objectives in mind. Vengeance would seem to have been one of them. But I am not persuaded that it was the predominant purpose such that it might now be said that the proceedings were instituted vexatiously.

Were the proceedings instituted without reasonable cause?

54    In order that they might establish that the Messengers each instituted their proceedings without reasonable cause, the respondents must demonstrate that, upon the facts known to the Messengers at the time, it was clear that their cases had to fail. Again (and with respect), that is a hurdle that the respondents cannot clear.

55    It is to be recalled that one aspect (indeed, the primary aspect) of the Messengers’ matters was that they were subjected to adverse action (including in the form of their dismissals) because they had made complaints or inquiries that they were able to make in relation to their employment. Having alleged as much, the statutory presumption under s 361 of the FW Act was enlivened and it fell to the respondents to establish that the adverse action to which the Messengers were subjected was not taken against them for reasons that s 340 of the FW Act prohibited.

56    That statutory presumption (sometimes referred to as a reverse onus) is significant. It relieved the Messengers of any obligation that they might otherwise have had to prove that the second respondent resolved upon the course that was taken against them because they had made any one or more of the complaints or inquiries upon which they relied. All the Messengers had to establish was that they had made them and that, by doing so, they had exercised a workplace right for the purposes of s 340(1) of the FW Act.

57    The respondents make three observations on that score. First, they say that many of the complaints and inquiries upon which the Messengers relied well pre-dated the adverse action to which they were subjected; such that it was inherently unlikely that any of them factored in the second respondent’s relevant decision making. Second, they say that many of the complaints and inquiries alleged either did not occur or were not in the nature of complaints or inquiries. Third, they note that all but one of the complaints and inquiries upon which the Messengers relied fell outside the realm of complaints or inquiries that they were relevantly “able to” make for the purposes of s 341(1)(c)(ii) of the FW Act. I shall address each observation in turn.

58    The fact that many (indeed most) of the complaints and inquiries upon which the Messengers relied were made well prior to the adverse action that was taken against them is not presently dispositive. It is true that there was an air of ambition to that part of the case: that it was inherently unlikely that the second respondent would be moved to take action against the Messengers so long after most of the communications were said to have been made. That, in turn, inevitably meant that the court would likely require less persuading than might otherwise be the case that those communications did not relevantly factor in decisions made much later in time. Nonetheless, two observations bear noting. First, although unlikely, it remained possible that the action taken against the Messengers between March and May 2017 might have been taken for reasons that included the communications made (in some cases) many months or years earlier. Second, the connection remained in any event a matter for the respondents to disprove. In combination, those circumstances preclude a finding now that what the Messengers advanced was bound to fail.

59    The fact that the court rejected that the Messengers had, in fact, made some of the complaints or inquiries upon which they sought to rely, or that they amounted to employment-related complaints or inquiries is also not dispositive. It could be accepted that the Messengers could or should have known, at the time that they instituted their proceedings, that some of the discussions upon which they relied were exaggerated or unlikely to find acceptance by the court. But not all of them were in that category. Indeed, one was successfully cast as the exercise of a workplace right.

60    The respondents’ contention about whether, or the extent to which, any of the complaints or inquiries advanced by the Messengers were complaints or inquiries that they were relevantly “able to” make is also not dispositive. True it is that, at the time of the trial, there was full court authority that held that complaints or inquiries made in relation to employment could only qualify as the exercise of workplace rights if they were made either pursuant to some right or entitlement conferred to that end, or otherwise to protect or vindicate some employment-related right or entitlement: see Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46, 55-56 [28] (Greenwood, Logan and Derrington JJ); PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Primary Judgment, [142]-[150]. However, at the time that the present proceedings were instituted, the position was less settled. There was conflicting first-instance authority on the point: Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, 440 [625] (Dodds-Streeton J) and Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307, 352 [143] (Jessup J). When they instituted their proceedings, it was not the case that complaints or inquiries made otherwise than pursuant to some right or entitlement, or otherwise than to protect or vindicate some employment-related right or entitlement, were necessarily bound to fall short of being characterised as the exercise of workplace rights. Complaints made at large were seemingly capable of doing so as well. There is recent full court obiter supportive of that principle: Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421, 435-441 [45]-[67] (Bromberg J in obiter, with whom Mortimer J agreed, 470-471 [209]; Anastassiou J contra, 485-489 [281]-[291]). It follows that the causes that the Messengers advanced could not then have been stigmatised as causes that were foredoomed to fail.

61    That suffices to address the respondents’ contentions about the proceedings having been instituted without reasonable cause. Nonetheless, I should address what was said about the Messengers’ underpayment cases (advanced pursuant to s 50 of the FW Act). It was put that that aspect of the proceedings was without reasonable cause because, on any view, the conduct in which the Messengers had engaged prior to their dismissals—in particular, in obtaining from Mr Walker the statutory declaration that he signed and in sending to the office of the Prime Minister correspondence that was critical of the second respondent—was serious misconduct by reason of which their claim for notice (or payment in lieu thereof) could not reasonably succeed.

62    I accept that proposition. There are, undoubtedly, grades of misconduct. Not all misconduct is serious misconduct and the line that divides that which is from that which is not is not easily identified. Often, there will be scope for debate. In these matters, though, the misconduct in which the Messengers engaged—and in which they must be taken to have known that they engaged—was so obviously serious that any submission to the contrary was bound to fail.

63    I should also note the third cause of action that the Messengers prosecuted: namely, the coercion case advanced under s 355 of the FW Act. It is to be recalled that it was added in after the proceedings were instituted. It does not inform the court’s assessment now as to whether or not the proceedings were instituted without reasonable cause.

64    Had the proceedings as instituted been limited to the underpayment claims, I would have been minded to accept that they were instituted without reasonable cause. But the adverse action components were not and that is sufficient. This aspect of the respondents’ contentions must be rejected.

Did the messengers act unreasonably by filing large amounts of irrelevant evidence?

65    The Messengers’ conduct in filing the body of material that they filed in March 2019 and then pressing the court to grant them leave to issue subpoenas to dozens of irrelevant witnesses has already been recited (above, [40]).

66    There is not really any room to doubt that that conduct comprised of unreasonable acts or omissions. At the hearings of the costs applications, counsel for the Messengers offered only muted resistance to that conclusion. It was said that the Messengers, as self-represented litigants, ought to be granted some leeway in recognition of their inexperience; and that they had done their best to ventilate before the court the material that they considered important.

67    As much may be accepted but it does not assist. Self-represented litigants are not at liberty to waste their opponents’ (and the court’s) time by requiring that they sift through and consider—and, as here, oppose—acres of irrelevant and scandalous material. The Messengers were not at liberty here to press for subpoenas requiring the attendance at court of dozens of witnesses—including senior political figures, journalists and even members of the second respondent’s family—who had no connection whatsoever with any of the causes of action that were pressed and whose presence at the trial was seemingly sought merely to smear the second respondent.

68    I accept that the Messengers acted unreasonably in that sense.

Did the Messengers act unreasonably by filing 17 notices to admit?

69    There is little, if anything, to be gained by attempting a summary of the matters that were the subject of the 17 notices to admit in each proceeding that the Messengers served between 14 August 2019 and 26 August 2020. Overwhelmingly—if not exclusively—they touched upon matters of scandal related to the second respondent; sometimes repetitively and never in a way that bore any obvious connection with any issue raised by their pleaded cases. To a large degree, they were designed to elicit admissions regarding the many and varied character flaws that the Messengers attribute to the second respondent, repetition of which here is beneath the dignity of the court. They were persistent, notwithstanding the observations of the court concerning the Messengers’ first attempts to file relevant evidential material. Many came after the case management hearing of 4 September 2019 (which was directed to equivalent topics).

70    Again, without conceding anything, counsel for the Messengers offered only the mutest of defences of his clients’ conduct. He very properly accepted that, to the extent that the court might be satisfied that some of the notices to admit were “excessive or extraneous”, it might find that they amounted to unreasonable acts in respect of which the first respondent might recover the costs expended in addressing them.

71    I cannot conceive of a proper justification for any of the notices to admit, even taking account of the Messengers’ status as self-represented litigants. They appear to have been little more than an extension of the Messengers’ attempts—indeed, their failed attempts—to put before the court evidence that, although damning (or potentially damning) of the second respondent, was wholly unrelated to any pleaded cause of action. I have little hesitation in accepting that their conduct in that regard was unreasonable; and, in my view, it was plainly so.

Did the Messengers act unreasonably by extending the duration of the trial?

72    The first respondent contends that the duration of the trial was extended by reason of unreasonable conduct attributable to the Messengers. It seeks to recover the costs that it incurred for the period of the trial that, but for that conduct, would not have transpired.

73    The first respondent’s contention rests upon the observations that were made in the Primary Judgment about the length of the trial and the causes of its extension beyond what should have been necessary (above, [21]). The first respondent submits that it was unreasonable of the Messengers to have spent as much time as they did at the trial adducing or attempting to adduce evidence that was irrelevant or scandalous (or both). Particularly is that said to have been so insofar as the Messengers’ approach to the trial was to effect “…some kind of broad-ranging judicial inquiry into [the second respondent’s] character; or, which is worse…a trial by media”: Primary Judgment, [15].

74    The slow pace of the trial cannot (and was not sought to) be sheeted home to the Messengers alone. The trial was an extremely difficult affair. It was conducted entirely by remote means and was “…attended by every conceivable limitation that could attach to hearings of that kind”: Primary Judgment, [18]. It bore a five-volume court book that extended to more than two thousand pages. At times, it was a source of obvious emotional distress to the Messengers. All of those things (and others) cost time.

75    As was made clear in the Primary Judgment (at [14]), the Messengers did their best to confine themselves to what they thought required ventilation before the court. At times, they expressed awareness and regret that their inexperience with the legal process was causing the proceedings to drag on longer than they otherwise might have. That was plainly a source of some concern or embarrassment to them, and they sought to apply themselves to the demands of the trial with courtesy and diligence.

76    Nonetheless, there were undoubtedly times throughout the trial during which they were “…unable to contain the obvious personal animus that they reserve for [the second respondent]”: Primary Judgment, [15]. On multiple occasions, they were warned about the content of their evidence or questioning. Many such warnings required explanations as to why they ought not to pursue topics that were of obvious personal interest to them. By the end of the lengthy trial, those explanations had become tedious and repetitive.

77    Although there is room to debate the extent (a topic to which I shall shortly return), I accept that the trial was extended unreasonably by the Messengers’ insistence on exploring matters that bore no connection with anything that they had pleaded. Their conduct in doing so was unreasonable. They are not to be spared the consequences that flow from that conclusion merely because they were self-represented.

Did the Messengers act unreasonably by rejecting the second respondent’s offer?

78    The second respondent maintains that the Messengers’ rejection of her offer to compromise the proceedings was unreasonable, such that they should pay the costs that she incurred thereafter (including those of the trial).

79    There is, contrary to the contentions advanced by the second respondent, nothing unreasonable about not accepting that which was offered. These reasons make clear that the Messengers’ claim as pleaded and advanced was beset by not-insignificant flaws—in particular, there was a measure of ambition to their adverse action claims; the coercion claim was not properly pleaded and the underpayment claim lacked merit. Those shortcomings do not, and did not, place beyond the realm of possibility that either Mr or Mrs Messenger could succeed; and, if they did, that they could realistically have expected to obtain judgment for considerably more than was offered. In that sense, the second respondent’s offer, taking account of the context in which it was made (and, in particular, the problems that attended the Messengers’ claims), was not so objectively attractive that it could not reasonably be rejected.

80    It should be said that the manner in which the Messengers rejected the second respondent’s offer does not bear on the reasonableness of the rejection, at least not in a manner that is dispositive. The rejection of the offer was regrettable; but it was not unreasonable.

Is an award of costs appropriate?

81    The Messengers submit that a finding of unreasonableness under s 570(2) of the FW Act serves to enliven the court’s discretion to order costs, rather than mandating that costs follow such a finding. They say that, even assuming that there was some unreasonableness to their conduct, the court retains its discretion as to whether or not it should make an order for costs. They invite the court here not to exercise that discretion. In that regard, they highlight the fact that they appeared for themselves, that they “did their best” and that the respondents enjoy substantial means (and, in the second respondent’s case, that insurance from the Commonwealth was available to her). None of those things suffices to persuade me that I should not make an order for costs. The hurdle erected by s 570(2) of the FW Act having been cleared, there is no reason to depart from the usual rule that the unsuccessful party should pay.

How much should be ordered?

82    The first respondent led evidence—none of which was here challenged or questioned—about the amounts that it spent attending to the conduct that I’ve identified as unreasonable. It seeks to recover, as lump sums, 55% of those amounts, which represents an estimate of what would be recoverable in the event that costs were assessed under the court’s practice note, GPN-Costs. That percentage is consistent with—in fact, is marginally below—the range within which costs assessments typically fall: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39, [42] (Meagher, White and Brereton JJA). What follows is an analysis based on that percentage and what it should yield in light of each of the unreasonable acts that are the subject of findings above.

83    The first impugned act lies in the Messengers having filed their burdensome and irrelevant evidential material (above, [40]-[41], [65]-[68]). The Commonwealth’s unchallenged evidence was that, in attending to that material, it expended costs nearing $131,000.00, 55% of which is approximately $72,000.00. That sum should be recoverable in its entirety—half from each of Mr and Mrs Messenger.

84    Equivalent reasoning applies with respect to the second instance of unreasonable conduct; namely, the filing of 17 notices to admit in each proceeding, (above, [42]-[43], [69]-[71]). The total amount incurred by the Commonwealth with respect to those notices was approximately $22,400.00, 55% of which rounds to $12,300.00. Half of that amount should be paid by each of Mr and Mrs Messenger.

85    I turn to the final instance of unreasonable conduct: the Messengers’ behaviour at the trial. For the reasons already given (above, [44]-[45], [72]-[77]), the Messengers’ conduct (comprising of the behaviour described above) was relevantly unreasonable. However, I do not accept that it accounts for as many as seven of the 16 days over which the trial proceeded. A more realistic estimate—and one that takes account of the other challenges that attended the trial—is one-to-two days.

86    I also do not accept that any costs associated with additional preparation should be recoverable as a consequence of the Messengers’ unreasonable conduct. What preparation was done needed in any event to be done, and can’t be said to have been done in consequence of the unreasonable conduct that I accept transpired.

87    The Commonwealth’s attendance over the 16-day trial led it to incur approximately $200,000.00 in costs. 55% of that total amount, apportioned on a pro rata basis for one-and-a-half days, is approximately $10,300.00. That amount should and will be awarded—payable in equal portions by Mr and Mrs Messenger.

88    The first respondent seeks also its costs of and associated with the application that it makes for costs. That was advanced on the basis that the costs that it has incurred in making this costs application are costs that were occasioned by the Messengers’ unreasonable conduct. I am not persuaded that that is so. The costs of and associated with the costs application have been incurred because the first respondent has resolved to apply for its costs. They have not been incurred as a result—certainly not a direct result—of any unreasonable conduct.

89    Moreover, the application for costs amounts in its own right to a proceeding for the purposes of s 570 of the FW Act: Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736, 745 (Wilcox CJ, with whom von Doussa J agreed); Hartnett Legal Services Pty Ltd v Ballantyne (No 2) [2015] FCA 1027, [9] (Rangiah J). There was nothing unreasonable about the Messengers’ conduct in defending it. They were at liberty to resist it on the bases that they have and they have been more successful than unsuccessful in doing so. No costs shall be awarded in respect of the first respondent’s application for costs.

Conclusion

90    There shall be orders requiring that the applicant in each proceeding pay to the first respondent costs fixed in the lump sum of $47,300.00. That amount represents half of approximately 55% of what the first respondent incurred in consequence of the Messengers’ unreasonable conduct.

91    The balance of each of the four interlocutory applications should and will be dismissed.

Associate:

Dated:    25 January 2023