Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 25 January 2023
• Neutral Citation: [2023] FCA 20
• Date: 25 January 2023
• Court: Federal Court

Federal Court of Australia

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

File numbers:	TAD 28 of 2017TAD 32 of 2017
Judgment of:	SNADEN J
Date of judgment:	25 January 2023
Catchwords:	COSTS – applications for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) (“FW Act”) – where primary judgment dismissed applications made under ss 50, 323, 340 and 355 of the FW Act – whether proceedings instituted vexatiously or without reasonable cause – whether applicants committed an unreasonable act or acts occasioning costs – where applicants filed irrelevant evidential material exceeding 1,000 pages – where applicants filed an excessive number of notices to admit – whether rejection of offer of compromise was unreasonable – whether conduct at trial was unreasonable – orders for costs made
Legislation:	Fair Work Act 2009 (Cth) ss, 340, 341, 355, 361, 570 Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 232 FCR 428 BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hartnett Legal Services Pty Ltd v Ballantyne (No 2) [2015] FCA 1027 Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 Nilsen v Loyal Orange Trust (1997) 76 IR 180 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53 Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 Williams v Spautz (1992) 174 CLR 509
Division:	Fair Work Division
Registry:	Tasmania
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	91
Date of hearing:	9 November 2022
Counsel for the Applicants:	Mr M Rinaldi
Solicitor for the Applicants:	Messenger Legal
Counsel for the First Respondent:	Ms J Firkin KC with Mr C McDermott
Solicitor for the First Respondent:	Ashurst Australia
Counsel for the Second Respondent:	Mr N Harrington
Solicitor for the Second Respondent:	DLA Piper Australia

ORDERS

		TAD 28 of 2017
BETWEEN:	ROBERT DESMOND MESSENGER Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE DEPARTMENT OF FINANCE) First Respondent ; JACQUILINE LOUISE LAMBIE Second Respondent

order made by:	SNADEN J
DATE OF ORDER:	25 JANuary 2023

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

		TAD 32 of 2017
BETWEEN:	FERN ASHLEIGH MESSENGER Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE DEPARTMENT OF FINANCE) First Respondent ; JACQUILINE LOUISE LAMBIE Second Respondent

order made by:	snaden j
DATE OF ORDER:	25 january 2023

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...