Martin v Telstra Corporation Ltd (No 3)
[2025] FedCFamC2G 274
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martin v Telstra Corporation Ltd (No 3) [2025] FedCFamC2G 274
File number(s): SYG 339 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 February 2025 Catchwords: INDUSTRIAL LAW – determination of orders that should be made to give effect to reasons for judgment – whether good cause has been shown for not awarding pre-judgment interest – final order made. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211(3)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 25.01
Cases cited: Brasser v Graham [1985] WAR 180
Cullen v Trappell (1980) 146 CLR 1
Esco Corporation v PAC Mining Pty Ltd [2008] FCA 1018
Kipriotis v Royal Tiles Pty Ltd [2008] NSWSC 871
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174
Northern Territory v Griffiths [2019] HCA 7
Volonakis v Erceg (No 2) [2020] NSWSC 371
Division: Fair Work Number of paragraphs: 21 Date of last submission/s: 20 December 2024 Date of hearing: Decided on the papers Place: Sydney Solicitor for the Applicant: Wotton & Kearney Lawyers Solicitor for the Respondent: Hall & Wilcox Lawyers ORDERS
SYG 339 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VALERIE MARTIN
Applicant
AND: TELSTRA LIMITED
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.There be judgment for the applicant in the amount of $45,933.92.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 8 November 2024 I published reasons for judgment (earlier reasons) in which I concluded as follows:[1]
Ms Martin has failed on all of her claims other than her claim based on Telstra’s breach of Ms Martin’s employment contract. I have found that, but for Telstra’s breach of contract, there was a 15% chance that Telstra would have continued to employ Ms Martin until 18 May 2023. Assuming Ms Martin is correct that she would have earned $330,064.07 gross, had she remained employed by Telstra until 18 May 2023 Ms Martin would be entitled to damages equal to 15% of this amount, being $49,509.61, less the $37,516.20 that Telstra paid to Ms Martin on 26 June 2020. Thus, Ms Martin would be entitled to damages for loss of wages in the sum of $11,994.41. Alternatively, on the assumption that Telstra would have terminated Ms Martin’s employment by no later than 1 April 2020, Ms Martin would be entitled to damages equal to the wages (including shift allowances and penalties) she would have received from 8 November 2019 to 1 April 2020, less the $37,516.20 Telstra paid her. I have also concluded that Ms Martin is entitled to general damages, assessed in the amount of $30,000.
[1] Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174
I ordered the proceeding be listed at 9:30 am on 22 November 2024, or at such other time and date convenient to the parties and the Court, for the purpose of pronouncing final orders.
The parties disagree on the final orders I should make to give effect to the earlier reasons; and, this arises from disagreement about three matters. The first is the amount of damages I should award the applicant, Ms Martin, for the economic loss I found she sustained because of the respondent’s (Telstra’s) breach of Ms Martin’s employment contract; the second is whether Telstra should be ordered to pay pre-judgment interest and, if so, in what amount; and the third is by when Telstra should be required to pay the judgment that will be entered against Telstra.
The parties filed written submissions on the outstanding issues, and they agreed that I determine those issues without a further hearing. In these reasons for judgment I consider and determine the outstanding issues between the parties, and the orders I should make on the basis of my determination.
QUANTUM OF DAMAGES FOR ECONOMIC LOSS
The first issue arises from the following two passages from the earlier reasons (emphasis added):
[254] I am satisfied that, given the length and persistence of Telstra’s perceptions that Ms Martin was not consistently performing to the level she was expected to perform, it is very unlikely that Telstra would have continued to employ Ms Martin until 18 May 2023. In my view, 15% represents a fair estimate of the probability that Telstra would have retained Ms Martin in its employment until 18 May 2023. Accordingly, Ms Martin’s damages for lost wages should be calculated by applying 15% to the amount Ms Martin would have earned, including shift allowances and penalties, up to and including 18 May 2023 had she remained employed with Telstra up to that time.
[255] If, on the other hand, it were necessary to find, on the balance of probabilities, the period for which Ms Martin would have remained employed by Telstra, I would find that, given that Telstra had applied PSPs in November 2018, March 2019, June 2019, and September 2019, and Telstra’s continuing perceptions of Ms Martin’s poor performance, it is more probable than not that Ms Martin’s performance under the September PSPS would not have risen to the level that would have met Telstra’s expectations; and that, by no later than 1 April 2020, Telstra would have terminated Ms Martin’s employment.
Telstra submits these passages constitute alternative findings of Ms Martin’s entitlement to damages for loss of wages, and that I should award damages on the basis that in April 2020 Telstra would have terminated Ms Martin’s contract of employment by notice. Ms Martin, on the other hand, submits that the finding in paragraph 254 of the earlier reasons is the dispositive finding, and that it was unnecessary for me to have made the finding in paragraph 255 of the earlier reasons.
I intended paragraph 254 of the earlier reasons to be dispositive; and that is because of my understanding of the principles that apply to assessing damages for future economic loss. The principles are those stated in the passages from the judgments of the High Court in Malec v J C Hutton Proprietary Limited I reproduced in paragraphs 252 and 253 of the earlier reasons;[2] they require the happening or non-happening of future events that are relevant to the assessment of damages to be assessed, not by applying the civil standard of proof, but by assigning a probability to the future event happening or not happening. I assigned a 15% probability to Ms Martin’s remaining employed by Telstra until 18 May 2023 based on the findings I made in the earlier reasons. I made the finding in paragraph 255 of the earlier reasons to cater for the possibility that the parties might wish to contend to an appeal court that my understanding of the assessment of damages for future economic loss is wrong, and yet have the benefit of a finding if it were appropriate to assess future contingencies by reference to the balance of probabilities.
[2] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, at pages 639-640, and page 642-643.
Telstra does not in its written submissions address the principles in Malec and, therefore, does not submit that I am bound to assess the happening of future contingencies relevant to the assessment of damages, such as the possibility of Telstra terminating Ms Martin’s employment, by reference to the balance of probabilities. Thus, I confirm the dispositive finding I made in paragraph 254 of the earlier reasons that Ms Martin is entitled to damages for loss of wages in the amount of $11,994.41.
INTEREST
The power of this Court to order interest up to judgment in all proceedings (other than family law or child support proceedings) is conferred by s 211(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which provides:
If:
(a) an application is made under subsection (2); and
(b)the Federal Circuit and Family Court of Australia (Division 2) or the Judge is not satisfied that good cause has been shown for not making an order under this subsection;
the Court or the Judge must either:
(c)order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge thinks fit on the whole or any part of the money for the whole or any part of the period between:
(i)the date when the cause of action arose; and
(ii)the date as of which judgment is entered; or
(d)without proceeding to calculate interest in accordance with paragraph (c), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
Ms Martin claims simple interest of 5.5% calculated on the $11,994.41 loss of damages and $30,000 general damages, as from 7 November 2019.
Telstra, on the other hand, submits there is good cause not to make an order that Telstra pay interest. In written submissions filed on 17 December 2024 Telstra relies on the following matters:
(a)Not all of Ms Martin’s economic loss accrued from 7 November 2019, but accrued gradually.
(b)The amount of $41,994.41 “includes a substantial component of non-economic loss (approximately 71.5%), for which no pre-judgment interest should be payable”.
(c)The amount for economic loss has been assessed by the Court 4 years after the impugned conduct occurred.
(d)The non-economic loss arises where Ms Martin always pleaded she was ready, willing, and able to perform her role.
(e)The calculation of damages for lost wages “is based on a period until” Ms Martin “turned 75 on 18 May 2023, and which extended for 3 years, 1 month and 185 days beyond the last day that the Court found [Ms Martin] had been dismissed”.
(f)In June 2020 Ms Martin received substantial repayments from Telstra.
In its written submissions filed on 20 December 2024 Telstra relies on the following additional matters:
(a)There were multiple amended statements of claim.
(b)There was a lack of co-operation of Ms Martin in attempts to address her employment situation.
(c)Ms Martin did not in her various statements of claim plead repudiation, as a consequence of which Telstra did not have an opportunity at the hearing to squarely defend and address the Court on the issue of repudiation of Ms Martin’s contract of employment.
Telstra’s submissions are to be determined by reference to the purpose for which “general statutory interest provisions now exist in State, Territory and federal courts legislation which generally provide for the award of interest upon judgment debts and damages”.[3] Hallen J identified those purposes in Volonakis v Erceg (No 2):[4]
The purpose of an award of interest is to compensate a plaintiff, or plaintiffs, for actual loss the plaintiff, or plaintiffs, suffers, or suffer, by being kept out of his, her, or their money from the time when the loss was suffered until the date of judgment: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663, 666; [1991] HCA 3; Grincelis v House (2000) 201 CLR 321; [2000] HCA 42. It is not awarded to punish the debtor for the non-payment or refusal to pay: Batchelor v Burke (1981) 148 CLR 448 at 455 (Gibbs CJ); [1981] HCA 30.
[3] Northern Territory v Griffiths [2019] HCA 7 at [354] (Edelman J)
[4] Volonakis v Erceg (No 2) [2020] NSWSC 371, at [53]
In the earlier reasons I determined Ms Martin was entitled to damages for two heads of losses. One is economic loss in the form of lost wages for the period ending 18 May 2023, discounted by 85%. That is a loss that accrued progressively between the time I held Ms Martin suffered the injury which gave rise to the economic loss, namely, 7 November 2019, and 18 May 2023, when Ms Martin resigned. It would overcompensate Ms Martin if I were to award interest on the $11,994.41 from 7 November 2019, given that her loss would have accrued gradually. It is usual to make allowance for such overcompensation by halving either the rate of interest or the period for which the otherwise applicable rate of interest is to be applied.[5] I therefore propose to calculate interest by applying the otherwise appropriate interest rate on $11,994.41 from 7 November 2019 to 27 February 2025, being the date on which I will pronounce final orders, and then halve that amount.
[5] Cullen v Trappell (1980) 146 CLR 1, at page 19 (Gibbs J); Kipriotis v Royal Tiles Pty Ltd [2008] NSWSC 871, at [227]–[228] (Hall J)
The second head of loss for which I held Ms Martin is entitled to damages is loss of amenities or pain and suffering, for which I assessed $30,000 general damages to be appropriate.[6] Ms Martin’s loss of amenities extends beyond 7 November 2019, being the date on which I found Ms Martin sustained the injury; and the $30,000 damages I have assessed is compensation for a loss of amenities that continued after 7 November 2019. In those circumstances, Ms Martin would be overcompensated if I were to award interest on the entire amount of $30,000 as from 7 November 2019.[7] I therefore propose to calculate interest by applying the otherwise appropriate interest rate to $30,000 from 7 November 2019 to 27 February 2025, being the date on which I will pronounce final orders, and multiply that amount by 25%. I consider 25%, rather than 50%, to be an appropriate percentage for general damages because it is reasonable to proceed on the basis that Ms Martin will live at least to the average life expectancy which extends well beyond the 73 years of age at which Ms Martin intended to resign from Telstra.
[6] Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174, at [260]
[7] See Brasser v Graham [1985] WAR 180, at page 181: “Even so, it seems to me in exercising a discretionary judgment it is appropriate to recognise that some of the components of an award for pain and suffering have not been suffered as at the date of the judgment and so it would be unfair to a tortfeasor to award interest on the sum representing those components.”
I propose to apply the 5.5% rate suggested by Ms Martin because this is slightly less than the average of the six monthly rates of interest specified in the Federal Court Practice Note GPN-INT from 1 July 2019 to 30 June 2025, namely 5.83%.
Before I leave this section of my reasons, I should address some of the matters on which Telstra relies for contending there is good cause for not awarding interest.
(a)Telstra does not identify the basis on which it contends that interest should not be payable on the damages for non-economic loss. Interest may be ordered to be paid on damages for non-economic loss, provided care is taken that interest is not awarded in relation to an amount that may be taken to compensate future non-economic loss.[8]
(b)Telstra does not explain why the fact that Ms Martin’s economic loss was assessed four years after the event that gave rise to the loss is a reason for not ordering interest on the damages I have assessed for that loss.
(c)Telstra’s reliance on the contention that Ms Martin always pleaded she was ready, willing, and able to perform her role appears to seek to go behind the findings I made that Ms Martin suffered persistent depressive disorder as from 7 November 2019, as a consequence of which she was no longer fit to work as an ECSO from that date.
(d)It is the case that Ms Martin did not use the word “repudiation” in her statement of claim. But the statement of claim identified the conduct in which Telstra had engaged which Ms Martin alleged was done in breach of her employment contract, and which I characterised as a repudiation, that conduct being Telstra’s directing Ms Martin not to attend work;[9] and in her written submissions Ms Martin contended that this and another direction Telstra gave to Ms Martin were unlawful because they each constituted a direction to suspend Ms Martin from working without pay and, at common law, an employer has no right to suspend an employee without pay.[10] As I noted in the earlier reasons, Telstra did not submit otherwise; and it did not submit that the direction Telstra gave to Ms Martin on 7 November 2019 was not a suspension. The proper legal characterisation of an employer’s purporting to suspend an employee without pay (in the absence of any contractual term to the contrary) is a repudiation of the contract.[11]
[8] Brasser v Graham [1985] WAR 180, at page 181.
[9] Amended statement of claim, [24]
[10] Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174, at [212(d)]
[11] Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174, at [222]
WHEN JUDGMENT SHOULD BE SATISFIED
Telstra submits that it should be required to pay the amount of the judgment “within 21 days of the date 28 days after the making of final orders”, but subject to “a further order providing that in the event that any party files an appeal against the Judgment and orders, the orders will be stayed pending further order of the Court”.
By this submission Telstra in effect applies for a stay of the execution of the final orders I propose to make; and the only basis of Telstra’s submission is the fact that Telstra will have the right to appeal to set aside the orders I will make. That does not afford a basis for staying an order or judgment of this Court. Under r 25.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) this Court has power to stay the execution of a judgment pending an appeal from that judgment. There is, however:[12]
a prima facie assumption that the judgment the subject of the appeal is correct and that the Court should not deprive a person of the fruits of victory by granting a stay. It is not necessary for the party seeking the stay to show that special or exceptional circumstances exist, but the Court must be satisfied that a sound reason has been presented to warrant exercise of the discretion: see Powerflex 67 FCR at 66; Re Middle Harbour Investments Ltd (In liq)(unreported, New South Wales Court of Appeal, 15 December 1976).
[12] Esco Corporation v PAC Mining Pty Ltd [2008] FCA 1018, [19] (Tamberlin J)
I therefore do not propose to make any order that will stay the operation of the final orders I will make. If Telstra does appeal, the likelihood is that the parties will come to some arrangement in relation to the enforcement of the orders I will make, pending the determination of the appeal, without Telstra having to apply to this Court for a stay.
DISPOSITION
I propose to order that there be judgment in favour of Ms Martin in the sum of $45,933.92, which is the total of the following four amounts:
(a)$11,994.41, being the damages I assessed for Ms Martin’s economic loss.
(b)$1,750.44, being 50% of the interest calculated by applying 5.5% to the $11,994.41 referred to in (a) from 7 November 2019 to 27 February 2025, being the date on which I will pronounce orders.[13] The period is 5 years and 112 days[14].
[13] [(5.5% x $11,994.41 x 5) + [(5.5% x $11,994.41/365) x 115)] x 50% = [$3,298.46 + $202.41] x 50% = $1,750.44
[14] 24 days in November 2019 + 31 days in December 2019 + 31 days in January 2025, and 27 days in February 2025 = 115 days.
(c)$30,000, being the general damages I assessed for Ms Martin’s loss of amenities or pain and suffering.
(d)$2,189.07 being 25% of the interest calculated by applying 5.5% to the $30,000 referred to in (c) from 7 November 2019 to 27 February 2025, being the date on which I will pronounce orders.[15]
[15] [(5.5% x $30,000 x 5) + ((5.5% x $30,000/365) x 115)] x 25% = [$8,250+ $506.30] x 25% = $2,189.07.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 February 2025
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