Martin v Telstra Corporation Ltd (No 3)

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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

  1. 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…

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Details
Case
[2025] FedCFamC2G 274
Decision Date

CaseChat Overview and Summary

In the matter of Martin v Telstra Corporation Ltd (No 3), the Federal Circuit and Family Court of Australia was tasked with determining orders that should be made to give effect to reasons for judgment, particularly concerning the award of pre-judgment interest. The dispute between the plaintiff, Ms Martin, and the defendant, Telstra Corporation Ltd, centred on whether there was good cause for not awarding pre-judgment interest on damages awarded to Ms Martin.

The court had to decide several legal issues. Firstly, whether there was a basis for Telstra not to pay interest on damages for non-economic loss, and why the delay in assessing Ms Martin’s economic loss should affect the award of interest. Additionally, the court considered Telstra’s contention that Ms Martin’s readiness to perform her role should negate her entitlement to interest. The characterisation of Telstra’s actions as a repudiation of contract and the absence of a repudiation plea in Ms Martin’s statement of claim were also examined.

The court found that Telstra did not provide a valid reason for not awarding interest on damages for non-economic loss, nor did it adequately explain why the delay in assessing economic loss should preclude interest. Telstra’s argument about Ms Martin’s readiness to work was rejected as it undermined the findings regarding her persistent depressive disorder. The court also highlighted that Telstra’s conduct could be legally characterised as a repudiation of the contract, despite the absence of the term "repudiation" in Ms Martin’s pleadings. Consequently, the court concluded that there was no good cause to withhold pre-judgment interest.

In making its final order, the court noted Telstra’s request for a stay of the execution of the judgment pending appeal. The court held that while it has the power to stay execution under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), there was no sound reason to grant such a stay given the prima facie correctness of the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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)

Ratio Decidendi

Legal Principle Established

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