Messenger v Commonwealth of Australia (Represented by the Department of Finance)

[2022] FCA 677

FEDERAL COURT OF AUSTRALIA

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677  

File numbers:

TAD 28 of 2017
TAD 32 of 2017

Judgment of:

SNADEN J

Date of judgment:

10 June 2022

Catchwords:

INDUSTRIAL LAW – employment – adverse action – related matters – applicants in the two matters husband and wife – applicants employed by first respondent – applicants engaged and supervised in their employment by second respondent – second respondent a member of the Australian Senate – applicants subjected to “show cause” processes – whether show cause processes amounted to adverse action – applicants dismissed from employment – whether applicants made complaints or inquiries that they were able to make in relation to their employment – whether applicants made complaints or inquiries that they were able to make to persons that had the capacity under workplace laws to seek compliance with such laws or with workplace instruments – whether adverse action taken because of complaints or inquiries – whether applicants entitled to payment in lieu of notice upon termination of employment – whether dismissal effected in contravention of enterprise agreement – whether second respondent intended to coerce successor member of the Australian Senate into not employing applicants – applications dismissed   

Legislation:

Fair Work Act 2009 (Cth) ss 12, 50, 51, 323, 340, 341, 342, 355, 360, 361, 539, 550, 793, 795

Members of Parliament (Staff) Act 1984 (Cth) ss 13, 16, 20, 23

Public Interest Disclosure Act 2013 (Cth) ss 8, 13, 19, 22, 26, 29, 69,

Superannuation Guarantee (Administration) Act 1992 (Cth)

Work Health and Safety Act 2011 (Cth) s 19

Fair Work Regulations 2009 (Cth) regs 1.07, 6.08, 6.09

Cases cited:

Alam v National Australia Bank [2021] FCAFC 178

Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251

Blyth Chemicals v Bushnell (1933) 49 CLR 66

Carter v Dennis Family Corporation [2010] VSC 406

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Community and Public Sector Union v Telstra (2000) 101 FCR 45

Concut Pty Ltd v Worrell (2000) 176 ALR 693

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131

Cook v Australian Postal Corporation (2018) 264 FCR 72

Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524

Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400

Eldridge v Wagga Wagga City Council [2021] NSWSC 312

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551

Esso Australia Pty Ltd v Australian Workers’ Union (2015) 245 FCR 39

Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242

Fair Work Ombudsman v Maritime Union of Australia (2014) 243 IR 312

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427

Laws v London Chronicle Ltd (1959) 1 WLR 698

LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992

National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709

National Tertiary Education Industry Union & Anor v University of Sydney (2021) 392 ALR 252

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225

Rankin v Marine Power International Pty Ltd (2001) 107 IR 117

Ryder v Aphrodite Gold Ltd [2017] WASC 377

Sabapathy v Jetstar Airways [2021] FCAFC 25

Salama v Sydney Trains [2021] FCA 251

SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601

Sent v Primelife Corporation Ltd [2006] VSC 445

Serventi v John Holland Group Pty Ltd [2006] FCA 1049

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

Tattsbet Ltd v Morrow (2015) 233 FCR 46

The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352

Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366

Wong v National Australia Bank & Anor [2021] FCA 671

Division:

Fair Work Division

Registry:

Tasmania

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

416

Date of last submissions:

19 March 2021 (respondents)
7 May 2021 (applicants)

Date of hearing:

19-30 October 2020, 8-11 February 2021, 31 May-1 June 2021

Counsel for the Applicants:

The applicants appeared in person

Counsel for the First Respondent:

Ms J. Firkin QC 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:	10 JUNE 2022

THE COURT ORDERS THAT:

1.The application 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:	10 JUNE 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

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

REASONS FOR JUDGMENT

PART 1:  OVERVIEW	[1]
PART 2:  THE PROCEEDINGS	[9]
PART 3:  BACKGROUND	[25]
3.1  The employment relationships	[26]
3.2  Relevant time periods	[30]
3.3  July 2014 to July 2016—the first term	[33]
3.4  July 2016 to December 2016	[37]
3.5  February and March 2017	[49]
3.6  27 March to 3 May 2017—the show cause process and the dismissals	[78]
3.7  Post-script:  the Brian Carlton interview	[101]
PART 4:  THE ADVERSE ACTION CASE	[102]
4.1  Summary	[102]
4.2  Relevant legislative provisions	[106]
4.2.1  The MOPS Act	[107]
4.2.2  The FW Act	[111]
4.2.3  The Public Interest Disclosure Act 2013 (Cth)	[124]
4.3  Relevant legal principles	[132]
4.3.1  Adverse action	[134]
4.3.2  Complaints or inquiries related to employment	[138]
4.3.3  What does it mean to be “able to” complain or inquire?	[141]
4.3.4  Proof of a proscribed purpose	[151]
4.3.5  Attribution of purpose	[152]
4.3.6  Accessorial liability	[155]
4.4  Were the Messengers subjected to adverse action?	[157]
4.5  Did the Messengers exercise workplace rights?	[172]
4.5.1  Some preliminary observations	[175]
4.5.2  Complaints about language	[181]
4.5.3  Complaints about alcohol consumption	[191]
4.5.4  Complaint about driving under medication	[201]
4.5.5  Complaints about staff treatment	[209]
4.5.6  Complaints about public statements	[220]
4.5.7  Complaints about workloads	[232]
4.5.8  Complaints about office security	[242]
4.5.9  The meeting of July 2016	[254]
4.5.10  The emails of 6 and 7 December	[263]
4.5.11  The emails of 5 and 8 March 2017	[267]
4.5.12  The emails of 9 March 2017	[273]
4.5.13  The PID	[278]
4.5.14  The First Show Cause Response Letter	[290]
4.5.15  The Second Show Cause Response Letter	[294]
4.5.16  What about s 341(1)(c)(i)?	[297]
4.5.17  Conclusion	[302]
4.6  Why was adverse action taken?	[303]
4.6.1  The First Show Cause Letters	[307]
4.6.2  The Second Show Cause Letter	[316]
4.6.3  The Dismissals	[322]
4.7  Conclusions	[332]
PART 5:  THE UNDERPAYMENT CASE	[336]
5.1  Summary	[336]
5.2  Relevant legislative provisions	[340]
5.3  The competing submissions	[348]
5.4  Relevant legal principles	[355]
5.5  Analysis of the relevant conduct	[361]
5.5.1  The Show Cause Responses	[362]
5.5.2  Non-compliance with a direction	[369]
5.5.3  The interaction with Mr Walker	[373]
5.5.4  Conclusion	[379]
5.6  Entitlement to payment in lieu of notice	[380]
PART 6:  THE COERCION CASE	[382]
6.1  Summary	[382]
6.2  Relevant legislative provisions	[384]
6.3  Relevant legal principles	[387]
6.4  Preliminary issue regarding s 361	[391]
6.5  Unlawful, illegitimate or unconscionable threat	[398]
6.5.1  What, if anything, was threatened?	[401]
6.5.2  Illegitimacy	[404]
6.6  Intent	[410]
6.7  Conclusion	[414]
PART 7:  CONCLUSIONS	[415]

SNADEN J:

PART 1:  OVERVIEW

1. Between 1 July 2014 and 3 May 2017 (and at other times beyond), Senator Jacquiline Lambie, served as a member of the Australian Senate.  In her capacity as such, she maintained offices in Burnie, Tasmania and at Parliament House in Canberra; and was entitled to (and did) engage a complement of staff to assist her in the discharge of her duties.  Two such staff members who were employed during that period (to which I shall refer hereafter as the “Relevant Period”) were the husband-and-wife applicants in the two proceedings to which these reasons relate:  namely, Mr Robert Desmond Messenger (the applicant in matter TAD28/2017) and Mrs Fern Ashleigh Messenger (the applicant in matter TAD32/2017).

2. Although engaged and supervised (and, in the end, dismissed) by Senator Lambie, each of Mr and Mrs Messenger was in fact employed over the Relevant Period by the Commonwealth.  The precise nature of their respective engagements is explored in more detail below; but, for now, it suffices to note that they were engaged, respectively, as Senator Lambie’s “Chief of Staff” and “Office Manager” (or, at the very least, in roles that came to be known by those descriptions).

3. By their respective actions, Mr and Mrs Messenger each maintain that they had occasion over the course of their employment to raise with Senator Lambie various matters concerning the operation and output of her offices.  Those matters—which are the subject of detailed exploration below—ranged from issues of office security and staff workloads to the manner in which Senator Lambie handled certain situations.  Those communications (to the extent that they occurred) assume some significance, to which much attention will shortly turn.

4. In the second half of 2016 and early 2017, the relationship between Mr and Mrs Messenger (on the one hand) and Senator Lambie (on the other) soured.  That degeneration manifested in various ways, including in the form of confrontation.  Both of Mr and Mrs Messenger were subjected to “show cause” processes, by which each was required to respond to various allegations that were made against them.  By written notice provided to each of them on 3 May 2017, both were summarily dismissed from their employment.

5. The Messengers maintain that their respective dismissals, and their earlier subjection to the “show cause” processes just described, amounted to “adverse action” for the purposes of pt 3‑1 of the Fair Work Act 2009 (Cth) (the “FW Act”). They attribute those fates to the fact that they had raised inquiries or complaints about various matters with Senator Lambie. Each submits that, by those various communications, they should be understood to have exercised “workplace rights”; and that the “adverse action” to which they were each subjected was taken against them in contravention of s 340(1) of the FW Act. They each allege that Senator Lambie was “involved in” those contraventions. They seek, as against both the Commonwealth and Senator Lambie (respectively the first and second respondents in each matter), relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with those alleged statutory contraventions.

6. Additionally, Mr and Mrs Messenger each submit that their employment was terminated contrary to the requirements of an applicable enterprise agreement. Specifically, each submits that they were entitled to—but not afforded—notice of the termination of their employment, or, more specifically, payment in lieu thereof. They allege that, by effecting their dismissals in the manner in which they were effected, the Commonwealth contravened ss 50 and 323 of the FW Act; and that Senator Lambie was “involved in” those contraventions. Again, they seek as against both respondents relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with those alleged contraventions.

7. A third cause of action is pursued against Senator Lambie alone. It concerns a radio interview that she gave in November 2017. At around (or not long before) that time, it emerged that Senator Lambie was constitutionally ineligible to sit as a member of the Commonwealth Parliament. The Senate vacancy created by that reality was to be filled by another member of the “Jacqui Lambie Network” political party, Mr Steven Martin. During the interview in question, Senator Lambie was asked about the prospect that Mr Martin might, upon (or in connection with) his ascension to office, employ either or both of the Messengers, who by then had commenced the present proceedings. Senator Lambie indicated that, were he to do so, Mr Martin would face being dis-endorsed by the “Jacqui Lambie Network”. Mr and Mrs Messenger each allege that Senator Lambie’s comments were made with the intention of coercing Mr Martin into not employing them; and, therefore, contravened s 355 of the FW Act. They each seek as against Senator Lambie relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with that alleged contravention.

8. For the reasons that follow, none of the causes of action that are advanced is made out.  Both proceedings must (and will) be dismissed.

   PART 2:  THE PROCEEDINGS

9. Each of the present proceedings was commenced by originating application.  In the case of Mr Messenger, that instrument was dated 31 July 2017.  The equivalent document pertaining to Mrs Messenger was dated 11 August 2017.  Both were subsequently amended in ways that require no exploration.  By orders made by a former docket judge on 11 May 2018, it was determined that the two matters would be heard together and decided upon evidence common to both.  Consistently with usual practice, it was further determined that questions of liability would be determined separately and prior to any consequential questions concerning what, if any, relief the court ought to grant.

10. The matters progressed on the strength of pleadings, which were prepared and filed in the orthodox way.  At the time of the trial, each of the Messengers relied upon a second further amended statement of claim dated (in each case) 1 June 2018.

11. At that point (mid 2018), Mr and Mrs Messenger were each represented by a firm of solicitors and their pleadings were, in each case, settled by counsel.  Not long thereafter, the Messengers’ representatives withdrew from each proceeding and Mr and Mrs Messenger represented themselves from that point onwards.

12. As it sometimes does, that reality proved costly to the efficient disposition of the matters.  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.

13. 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.

14. By way of example, each of the applicants gave viva voce evidence in the presence of the other; sometimes in narrative (and often sprawling) form; other times by way of answer to questions posed by the other.  Each was present during the cross-examination of the other.  The questions that they asked, both of each other and of the other witnesses (and regularly in “tag team” format), were very often not of a standard that this court would typically permit.  Many ventured into irrelevant territory, or into territory that strayed beyond the observable limits of the pleadings.  Many assumed the form of statements or submissions rather than interrogatories.  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.

15. 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.

16. 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.

1. Again, those 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.

2. And that is so even before mention is made of the impact wrought by executive reaction to the covid-19 pandemic.  Due to restrictions on people’s freedom of movement (particularly from and within Victoria, where my chambers are located), the entirety of the trial—14 days of evidence and two days of oral submissions—was conducted by remote means.  It was attended by every conceivable limitation that could attach to hearings of that kind.

3. It is time to move past those cathartic observations.  At trial, oral evidence was led from 14 witnesses.  In addition to themselves, Mr and Mrs Messenger led evidence from nine others, namely:

   (1)Mr Mitchel Walker;

   (2)Ms Kelcey Walker;

   (3)Ms Lyn Carey;

   (4)Mr Trevor Reading;

   (5)Ms Tammy Tyrell;

   (6)Ms Karen Philpott;

   (7)Ms Gemma Lynd;

   (8)Ms Aryelle Sargent; and

   (9)Ms Kirsty Balthazaar-Proctor.

4. With the exception of Ms Carey and Mr Reading, all of those individuals were former or current members of Senator Lambie’s staff with whom Mr and Mrs Messenger had previously worked.  All of them (that is, all other than Ms Carey and Mr Reading) gave evidence on subpoena.  Ms Carey is a retired cleaner who cleaned Senator Lambie’s electorate office in Burnie, Tasmania.  Mr Reading was a local graphic designer who provided various services to Senator Lambie’s office.

5. The respondents led evidence from three witnesses, namely:

   (1)Mr Andrew Witheford;

   (2)Ms Toni Rikys; and

   (3)Senator Lambie herself.

6. Mr Witheford and Ms Rikys were each, at relevant times, employees of a division within the Commonwealth Department of Finance known as “Ministerial and Parliamentary Services” (or, it seems more generally, “MaPS”).  MaPS exists to provide to members of the Commonwealth Parliament advice and support services regarding the employment of their staff.  It serves, in effect, as a human resources function in respect of parliamentary staff.  In ways that are the subject of exploration below, both Mr Witheford and Ms Rikys were involved in the “show cause” processes that ultimately culminated in the termination of the Messengers’ employment within Senator Lambie’s office.

7. In addition to that oral testimony, 151 documents were tendered and received into evidence.  Although I have considered them all, a significant portion of them are largely irrelevant and comparatively few are referred to in these reasons.

8. The parties also filed extremely comprehensive and helpful written submissions, upon which they elaborated orally (and, in part, by post-hearing written material).

   PART 3:  BACKGROUND

9. For the most part, the evidence presented before the court was the subject of heated contest.  There are, however, aspects of it that were not materially in doubt, which it is convenient now to set out.

   3.1  The employment relationships

10. Mr and Mrs Messengers’ stints as members of Senator Lambie’s staff began (or, at least, officially began) upon her assumption of office on 1 July 2014.  They were each employed pursuant to pt IV (and possibly also pt III) of the Members of Parliament (Staff) Act 1984 (Cth) (the “MOPS Act”). Between 1 July 2014 and 18 April 2017, their employment was covered by an enterprise agreement made under pt 2‑4 of the FW Act: namely, the Commonwealth Members of Parliament Staff Enterprise Agreement 2012-2015.  Thereafter (until their dismissal on 3 May 2017), their employment was covered by a successor agreement, namely the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (hereafter, the “EA”).

11. Although formally classified (at least for most of the Relevant Period) as an “Adviser (Non-government)”, Mr Messenger was known within Senator Lambie’s office as her “Chief of Staff”.  Mrs Messenger was engaged in the role of “Electorate Officer” but was apparently known as Senator Lambie’s “Office Manager”.  Nothing turns on the differing nomenclature.

12. Mr Messenger’s duties included the following, namely:

    (1)protecting and enhancing the Senator’s reputation;

    (2)writing Senator Lambie’s policies, and advising her on political strategy, Parliamentary processes and legislation;

    (3)writing and researching Parliamentary speeches and questions, media releases and newsletters, and producing multimedia content for social media platforms;

    (4)engaging with the media, including managing media inquiries and public relations;

    (5)meeting with other politicians, community representatives and lobbyists;

    (6)counselling and managing Senator Lambie generally;

    (7)recruiting, training and managing Senator Lambie’s staff; and

    (8)ensuring staff safety, including by identifying and reporting risks about work health and safety, and liaising with security and law enforcement personnel as required.

13. Mrs Messenger’s key tasks included:

    (1)the management of Senator Lambie’s electorate office, including staff, personnel and administrative issues;

    (2)establishing office administration and record-keeping procedures;

    (3)recruiting and hiring staff;

    (4)training or arranging training for staff;

    (5)managing budgets, reconciling expenses, and overseeing Senator Lambie’s pecuniary register;

    (6)managing travel and accommodation booking;

    (7)diary management;

    (8)providing political and tactical advice to Senator Lambie;

    (9)identifying and reporting work health and safety risks;

    (10)implementing measures for complying with work health and safety policies;

    (11)ensuring that work health and safety roles within the electorate office were filled and performed;

    (12)liaising with security and law enforcement personnel about safety concerns and threat referrals; and

    (13)personal administration for the Senator (such as banking and dealing with real estate issues).

    3.2  Relevant time periods

14. The events of primary relevance to these matters all occurred within four discrete time periods.  The first spanned the period between July 2014 and July 2016, during Senator Lambie’s first term as a member of the Senate.  The second spanned July 2016 through until December 2016, after she commenced her second term.  The third concerns February and March of 2017.  The fourth concerns the period from 27 March through until 3 May 2017, when the Messengers’ employment was (in each case) summarily terminated.

15. There is a fifth point of secondary relevance:  namely Tuesday, 28 November 2017, when Senator Lambie was interviewed about (amongst other things) the possibility that her then-successor, Mr Martin, might engage the Messengers as members of his staff.

16. I will separately address the events of each relevant period.

    3.3  July 2014 to July 2016—the first term

17. Senator Lambie was first elected to the office of Senator for the state of Tasmania in 2013.  She assumed her office with effect from 1 July 2014.

18. At the point that she was elected, Senator Lambie was a member of what was then known as the Palmer United Party.  A few months after her election, she resigned her membership of that organisation and served as an independent.  By her own admission, she was inexperienced in the art of politics.  She was introduced to Mr Messenger and, shortly thereafter, agreed to engage both he and Mrs Messenger as members of her Parliamentary staff.  Mr Messenger was (and is) a former member of the Queensland Parliament.  Mrs Messenger had experience working in a political office.  Senator Lambie considered that she would be—and, at least initially, she was—reliant upon Mr and Mrs Messenger for political, strategic and administrative advice.

19. Throughout the course of Senator Lambie’s first term, the Messengers claim to have raised with her several matters that they now characterise as complaints related to their employment.  Those communications are the subject of evidential dispute and are addressed in greater detail below.  For now, it suffices to note two things.  The first concerns the subject matters that the Messengers contend were the subject of the communications upon which they rely.  Specifically, they say that, during that first term, they raised with Senator Lambie the following by way of complaint:

    (1)her “aggressive and confrontational” behaviour;

    (2)her regular use of profane and vulgar language;

    (3)her “excessive alcohol consumption”;

    (4)her operation of a work vehicle whilst medicated or recovering from a medical procedure;

    (5)her “bullying, derisive and unfairly critical treatment of staff”;

    (6)her public discussion of her sex life during a radio interview in July 2014;

    (7)the volume of work that she expected of her staff, particularly in relation to the provision of assistance to military veterans;

    (8)the physical security of the Senator’s Burnie office; and

    (9)threats to her personal safety associated with a speech that she gave at a Melbourne high school.

20. Second, the respondents contend that many of the communications to which the Messengers point were not, in fact, made; that they did not, in any event, qualify as “complaints”; and/or that they were not, in any event, complaints the making of which qualified, in each case, as the exercise of a workplace right for the purposes of pt 3‑1 of the FW Act. Some, they say, were explored in evidence despite having not earlier been pleaded; and they maintain objections to those matters factoring into the court’s deliberations. It will be necessary to return to each of those considerations later.

    3.4  July 2016 to December 2016

21. At the double dissolution election of July 2016, Senator Lambie was returned to the office of Senator for Tasmania.  Between July and December 2016, the Messengers claim to have had occasion to raise with her various other matters by way of relevant complaint or inquiry.

22. The first was raised during a meeting that the Messengers had with Senator Lambie in the boardroom of her electorate office in Burnie in early July 2016.  Again, the content of that discussion is the subject of contest.  For now, it suffices to note what is alleged to have been discussed.  Mr Messenger maintains that he complained to Senator Lambie about a range of grievances, including the long hours that he and Mrs Messenger were working, the Senator’s insistence on providing assistance to military veterans and the resultant stresses under which her staff were labouring, her (Senator Lambie’s) use of inappropriate language, her “excessive alcohol consumption” and how her “behaviour was a risk to staff”, “risky”, “erratic” and “abusive”.

23. In late November of 2016, the relationship between Senator Lambie and the Messengers began to show more outward signs of decline.  The week commencing Monday, 28 November 2016 was the final Parliamentary sitting week of that year.  Mrs Messenger, Ms Tyrell, Ms Sargent and Ms Balthazaar-Proctor all travelled with Senator Lambie to Canberra for that week.  Mr Messenger, who usually travelled with the Senator during sitting weeks, remained in Tasmania.

24. On Wednesday, 30 November 2016, Mr Messenger made attempts to contact Senator Lambie by telephone in order to discuss a matter of business that was before the Senate.  The Senator did not answer or return his calls.  He then rang Mrs Messenger directly and asked that she put him on to the Senator.  Mrs Messenger made approaches to the Senator to that end but, again, Senator Lambie declined them, indicating to Mrs Messenger that she was busy and, in any event, felt that she was able herself to handle the issue that was to be transacted in the Senate chamber.

25. By all accounts, the exchange that took place between Mrs Messenger and Senator Lambie was a heated one.  In consequence of it, Mrs Messenger declined an invitation to dine with the Senator and her other staff that evening.  She then decided to return home to Tasmania the following day (rather than on the Friday, as had earlier been arranged).  She did not discuss her change of plans with the Senator.

26. On Tuesday, 6 December 2016—and at least partially in consequence of the exchange between Senator Lambie and Mrs Messenger in Canberra the previous week—Mr Messenger was moved to commence what became a series of emails exchanged as between he and Senator Lambie.  The content of that exchange bears some significance and it is convenient to replicate it in full.  It began thus (errors original):

    Dear Jac,

    I'm very worried about the harmful effect your emails are having on Fern.

    She's working very hard and very efficiently - and you seem to be finding fault with everything.

    Your criticism and constant inaccurate sniping are not welcome or warranted.

    If you'd like to call and have a chat - that would be great.

    Constant - unwarranted criticism - is very wearing.

    Its seems that your default position of late - is to make myself or Fem guilty of any perceived offences - when the opposite is true.

    We're both working very hard - and we're on top of our game.

    Is there another agenda at work?

    Are you deliberately trying to break our spirit?

    Cheers 

    Rob

27. Later that evening, Senator Lambie responded:

    If you can actually find anything harmful in those emails you let me know.  Ta

28. Mr Messenger responded a few minutes later (errors original):

    I'm being very serious - we all want to make you happy - and have a smoothly running office - Ferns near in tears tonight after your latest emails ..

    We've all been under a lot of stress ...

    She's been spot on with answering emails and organising diary- and Xmas functions ...

    If you think we need to improve our performance - fair enough thats your right as a boss - and I happy to talk about how you want us to do better ... but you of all people who rallies against bullies in the military - should not be treating your staff in a way that is hurtful to them .. .

    If you are having trouble with your pain levels - OK lets have a chat - but in the wind down to Xmas let just have a happy office - and be nice to one another?

29. Mr Messenger’s reference to the Senator’s “latest emails” is unclear (and was not clarified during evidence).  Regardless, Senator Lambie responded later that evening (errors original):

    I still have no idea what you are talking about I said if there is an email that has been a problem let me know, but by attacking and patronising me for something that I haven't done, will not fix whatever ferns issue is, thank you

30. The following morning, Mr Messenger replied (errors original):

    HI Jac,

    I'm not patronising you - I'm telling you the truth.

    Because of your wild mood swings you have a whole office which is scared of you and walking on egg shells around you.

    This is a problem that only you can fix.

    We'll continue doing out best - but its clear from your comments and the fact you will not engage or speak with me or Fern - that our best is not good enough for you.

    And to be frank - it realy hard to write a book about someone that is being nasty to you.

    If I was giving you advise - or doing work that was harming you - I could understand your anger - but the work and advise I've given to you is top shelf stuff.

    The same goes for Fern and others.

    But you hardly ever acknowledge good work, and you pounce on what you perceive is the slightest error - and often there is no error- but you've failed to read a diary properly or someone has whispered the wrong strategy in your ear.

    Its time to relax - and its time you ensured that good work was acknowledged

    Cheers

    Rob

31. That same week, Senator Lambie, Ms Tyrell and Ms Balthazaar-Proctor embarked upon a road trip through north-west Tasmania to speak with constituents.  At some point during that trip, Senator Lambie raised for discussion the events that had transpired in Canberra the previous week as between her and Mrs Messenger.  That led to Ms Tyrell and Ms Balthazaar-Proctor raising with Senator Lambie a number of concerns of their own about the Messengers.  The Senator was told that:

    (1)her staff regarded Mr Messenger as “intimidating” and “overpowering”, and prone to displays of disrespect toward them;

    (2)her staff had been asked by Mr Messenger to report back to him about conversations and meetings in which the Senator participated without him;

    (3)the Messengers (or, at the least, Mr Messenger) had requested that staff use their personal rapport with the Senator to influence her decisions or positions on certain matters;

    (4)the Messengers actively and regularly discriminated against staff who expressed opinions that were contrary to their own;

    (5)the Messengers were able to (and did) track the Senator’s movements via software linked to her mobile telephone;

    (6)Mr Messenger insisted upon working externally to Parliamentary information technology systems; and

    (7)her staff had wanted to raise with her their issues concerning the Messengers but had not felt comfortable doing so.

32. Upon her return from the road trip, Senator Lambie had discussions with other members of her staff about the Messengers and the matters that Ms Tyrell and Ms Balthazaar-Proctor had raised with her, the substance of which was to similar effect.  She resolved to act upon the concerns that had been ventilated with her in the new year.

    3.5  February and March 2017

33. On 9 February 2017, Ms Tyrell—at Senator Lambie’s request—sent an email to MaPS (specifically, to a generic “mpshelp” address) requesting “…a detailed brief on each of her current staff detailing their progression of pay grades, allowances, annual and sick [l]eave applications and if medical certificates were provided etc”.  According to Senator Lambie, this information was sought because she “had just about lost confidence” in Mrs Messenger.

34. On 15 February 2017, Senator Lambie and Ms Tyrell met with Mr Witheford and another MaPS employee.  The Senator sought advice from Mr Witheford as to how she might best address the concerns that she had about the Messengers and the breakdown of her working relationship with them.  One potential pathway that emerged from that meeting was the possibility of engaging in some form of mediation.

35. Later that month (on 22 February 2017), Senator Lambie and Mrs Messenger had an ugly confrontation in the boardroom of the Senator’s Burnie office.  The particulars of the exchange are contested; but the fact that it occurred and is fairly described as ugly are not.  Although it could be clearer, it appears to have concerned (or partly concerned) the work of Ms Walker.  Not long after it, Mrs Messenger visited her general practitioner, whereupon she was issued a medical certificate that she later emailed to the Senator.  She was absent from work on personal leave on Thursday, 23 February 2017.

36. On that day (Thursday, 23 February 2017), Ms Walker tendered her resignation from the Senator’s office.  She did so by email, within which she recorded that her decision had been made (or partly made) “…due to [her] mental health deterioration which ha[d] been a result of [her] employment within the office.”

37. Meanwhile, the possibility of some kind of formal mediation was progressed.  On Wednesday, 1 March 2017, Senator Lambie spoke with Mr Witheford and asked him to arrange for a session to occur with Mrs Messenger.  She had, by then, formed the view that it might be possible “to work things out” with Mrs Messenger but did not consider that the same could be said of Mr Messenger, with whom she considered that her relationship was “too far gone”.  Later that day (1 March 2017), Mr Witheford confirmed by email that he would arrange for a specialist provider, Davidson Trahaire Corpsych, to coordinate the planned mediation with Mrs Messenger.

38. Also on 1 March 2017, Senator Lambie received an email from Mr Greg Isolani, a solicitor known to her and, more broadly, to the Jacqui Lambie Network party.  Unbeknownst to the Senator, Mrs Messenger had sent a copy of Ms Walker’s resignation email to Mr Isolani, which prompted him to respond.  It was that response that was copied to Senator Lambie.

1. A few days later, Senator Lambie wrote an email to Mrs Messenger (and, it would appear, to Mr Messenger) about her having sent to Mr Isolani a copy of Ms Walker’s resignation email.  She expressed some concern about “a break in protocol” and explained her belief that there had been “a breach of privacy”.  That prompted a response from Mr Messenger in the following terms (errors original):

   Good call Jac,

   A meeting will be important.

   Although I don't think Veterans privacy/ protocol was breached - no Veterans' personal details were ever released from our office - and any time you spoke in parliament using Veteran stories we always had their permission.  So I'm confident we're OK on that legal aspect.

   However I think you and the office could be exposed to a large worker's comp claim - if [Ms Walker] decides to pursue any sort of legal action.

   Greg being a personal injury Lawyer will be able to give you an authoritve legal opinion.  Its important that you are fully briefed on this matter and aware of any threats to your personal finances.

   But exposing staff members to suicide calls from Veterans - and stories of rape, assault etc without proper training or counselling - is a very serious matter that we'll have to address before a new person takes [Ms Walker]’s old DVA position.

   We don't want them being harmed in the same way [Ms Walker] was.

   I think Fern has already contacted MOps - and asked them provide advise on what staff should do when they receive those nasty harmful calls.

   It will be interesting to see what they say.  The Government must have some sort of training in place for DVA workers - and if they can do it for them - why not our staff?

   Cheers

   Rob

2. At or around that time, Senator Lambie arranged to employ another member of staff, Mr Norbert Keough.  On Wednesday, 8 March 2017, Mr Messenger sent an email in the following terms to Ms Sargent, which Senator Lambie subsequently saw (errors original):

   Dear Jac,

   I've just found out. Congratulations on employing Norbert.  He sounds like a nice guy.

   Just a few suggestions regarding the DVA position.

   I understand that Norbert has a law degree which is a great addition to the office skills set, however when Norbert is speaking to constituents as an employee of our office, he must be very careful not to offer legal advise on legislation or the personal circumstances of those constituents.

   It would expose you personally and the office generally to legal action by constituents who may follow that advise - and then claim they suffered harm or detriment as a result of following that legal advice authorised by Senator Lambie's employee.

   Any advise legal or otherwise - that we refer back to constituents on your letter head or in official phone calls / conversations - must always come from a government minister - after we've advocated for those constituents to the government minister.

   In other words, I strongly recommend that Norbert follow the office processes that we have in place currently to deal with constituent inquiry and complains.

   Another important suggestion I'd like you to consider - is to put in place a process that will protect Norbert and the staff from the harmful psychological effects of disturbing, threatening and or suicidal calls -which in the past have mainly come from Veterans.

   I suggest as part of workplace health and safety that we keep a log of all calls that staff have to deal with which can reasonably considered disturbing, threatening and suicidal.

   For example, I now know that a lot of damage was caused to [Ms Walker] as a result of her receiving calls from Veterans detailing rapes and other sexual assaults - and also expressing their intention to commit suicide.

   It's important to remind staff regularly - that we are all in a high stress work environment where daily we deal with life and death matters - and that a free confidential counselling service is available to all employees of the government - and there's no shame in accepting or seeking out that mental health service.

   And lastly - I recommend that we officially find out whether specialised training is available for all staff which shows us how to safely deal with people who say they are going to kill themselves - or want to disclose details of graphic personal trauma.

   My first concern is for the safety and wellbeing of the staff - who can be seriously harmed after hearing the details of rapes, assaults etc. in phone calls.

   At what point should a staff member say in a distressing phone conversation,

   "Look, I understand how much this event has harmed you, but I don't think I'm a qualified person to hear about this - perhaps its best you ring .... (insert name of a councillor) if you want to talk with someone, however I'm happy to send your complaints to the minister if you write your complaint on our constituent form. "?

   I'm happy to have a meeting at any time to further discuss my recommendations and any other issue you want me to be aware of.

   Regards

   Rob

3. Later on 8 March 2017, there was a further email exchange as between Mr Messenger and Senator Lambie concerning Ms Walker’s resignation.  Senator Lambie told Mr Messenger that she had asked for information from her staff as to whether anybody had contacted Ms Walker during periods during which she was absent on sick leave, or “…about work or her condition”.  By way of reply later that evening, Mr Messenger inquired as to whether Ms Walker had “…started formal legal action” and whether he ought to “…ask [his] lawyer for legal advise [sic]”. 

4. The following morning, Senator Lambie responded to Mr Messenger as follows (errors original):

   Firstly I didn't know about the lunch, just like I was not told that a dinner had been organised outside work to tell Mitch he would not be re employed, thirdly if Fern has been sick because of stress and it is work related then I need to make sure she is getting the support she needs.

5. Mr Messenger replied later that morning (errors original):

   Jac,

   Firstly, if its not illegal - Its not your business what staff do outside work hours.

   Secondly Mitch was not told he would not be re-employed.  He was told that he's done a good job and any employment decision is up to you.

   Thirdly - Fern is sick because of work stress, but her and her medical professionals are managing it nicely - just like you manage your mental health issues with your medical professionals.

   However trying to force Fern to illegally fill out "statements regarding [Ms Walker]" is not helping the stress levels - and contacting staff members on their recreational leave is also not helping.  Both acts could be interpreted as harassment and bullying.  Check with Greg if you think I'm giving you wrong advise.

   The resignation of [Ms Walker] was a huge shock and very stressful event for all the office - we've all got different ways of coping with it.  We're all trying to move on and do our jobs to the best of our ability.

   Norbett is a good choice - but that doesn't mean we can't learn the lessons from [Ms Walker].

   And I'm really glad that Norbert has strongly recommended that we do not take on any more veterans from mainland - its something you'll recall I'v been calling from since the election win.

   Today I'm working very hard on the book.

   Have a great weekend.

   We'll be doing lots of great personal stuff and be ready for work bright and early on Tuesday.

   Rob

6. On Friday, 10 March 2017, Mr Witheford rang Senator Lambie’s office for the purposes of obtaining information about a potential mediation session with Mrs Messenger.  Later that day (and apparently in consequence of the matters that had earlier been discussed), he drew up a document for the purposes of briefing a mediator, within which he recorded details about the parties that would participate (namely, Mrs Messenger and Senator Lambie) and a brief description of the conflict that had arisen between them.  He provided a draft of that document to the Senator’s office later that day (Friday, 10 March 2017).  Under the heading “Nature of conflict”, Mr Witheford recorded:

   Issues between the parties have been escalating for the last six months, and are now at the point where communication between the two parties has broken down completely.  There are significant performance issues and moodiness, to the point where the functioning of the office is seriously impacted.

7. That description was accepted as an accurate summary of Senator Lambie’s concerns at the time.

8. Later in March 2017, Ms Tyrell sent by email to Mr Witheford a document titled “Issues for Mediation Prepared by Sen. Lambie”.  The purpose of that document (to which I shall hereafter refer as the “Draft Mediation Paper”) was to “outline[…Senator Lambie’s] specific concerns” ahead of the then-proposed mediation.  Primary responsibility for its creation lay with the Senator herself, although Ms Tyrell and at least some others also had input into it.

9. The Draft Mediation Paper identified matters regarding Mrs Messenger that were of concern to Senator Lambie.  Those matters included some of what was raised with the Senator by Ms Tyrell and Ms Balthazaar-Proctor during their December road trip (see above, [47]), as well as other matters.

10. The preparation of that document coincided with what might fairly be described as an air of general tension in Senator Lambie’s office.  On Wednesday, 15 March 2017, Mr Messenger commenced a period of personal leave, which he attributed to workplace stress.  On or around that same day, Mrs Messenger reported to Ms Balthazaar-Proctor that she felt as though Senator Lambie no longer wanted her to be in the office.  She resigned her position as secretary of the Jacqui Lambie Network that day.

11. On Tuesday, 21 March 2017, Ms Tyrell and Mr Witheford exchanged emails about the progression of the then-proposed mediation.  Mr Witheford undertook to provide a copy of the Draft Mediation Paper to the proposed mediator, which he then did.  In the afternoon of Thursday, 23 March 2017, Mr Witheford spoke to Ms Tyrell and asked her to make enquiries of Mrs Messenger as to whether she (Mrs Messenger) would be prepared to participate in a mediation session with Senator Lambie.  Ms Tyrell then did precisely that.  Mrs Messenger told Ms Tyrell that she was agreeable to participating in some form of mediation, which Ms Tyrell then fed back by email to Mr Witheford.

12. Later that day, Ms Caroline Deeks, from Davis Trahaire Corpsych, left a message on Mrs Messenger’s answering machine requesting that she (Mrs Messenger) return her call.  At approximately 9:00am on the following day (Friday, 24 March 2017), Mr Messenger called Ms Deeks on Mrs Messenger’s behalf.  That call was placed from the Messengers’ car and Mrs Messenger was present.  Unbeknownst to Ms Deeks, Mr Messenger recorded the conversation that ensued.

13. Mr Messenger asked Ms Deeks whether she was aware that Mrs Messenger was on sick leave.  As it happens, Mrs Messenger was not (or not yet) on sick leave; but little if anything turns on that.  Mr Messenger also asked whether there was a “list of grievances”.  Quickly appreciating that Mrs Messenger might not have been as amenable to a mediation session as she had been led to believe, Ms Deeks encouraged Mr Messenger to speak with Mr Witheford.  Ultimately, she told Mr Messenger that she would call Mr Witheford herself and tell him that she would “…withdraw [her]self from the situation until he is working with [Mr and Mrs Messenger] about when you are in a state where it is OK to go ahead with a mediation”.

14. Mr and Mrs Messenger then attended upon their general practitioner, Dr Wassam, who gave Mrs Messenger a medical certificate to excuse her from work that day.

15. Shortly (and perhaps immediately) after Mrs Messenger’s medical appointment, Mr and Mrs Messenger drove to Senator Lambie’s electorate office.  Senator Lambie was not there at the time (she was in, or was returning from, Hobart).  That was a reality of which they were aware in advance.  Whilst Mr Messenger waited in the car, Mrs Messenger went into the office via the rear entrance.  She made her way into her office and emerged with a tub of papers, which she then took to another room that housed a secured “shredding bin” and a shredding machine.  What then happened was the subject of some contest (which it is not necessary to resolve); but, at the very least, Mrs Messenger proceeded to feed a volume of documents into the secured “shredding bin”.  That enterprise took somewhere in the order of 20 (and possibly as many as 30) minutes, whereupon Mrs Messenger re-joined Mr Messenger in their vehicle and they left.

16. At approximately lunch time on that day, Mr Walker attended at the Messengers’ home.  Whether he did so upon his own volition or at their invitation was the subject of some contest; but, regardless, the events that followed are a matter of record.  Whilst at the Messengers’ home, it was agreed (and, again, the particulars of that agreement needn’t now be explored) that Mr Walker would sign a statutory declaration attesting to some of his experiences as an employee in Senator Lambie’s office.  That document was drawn up at the Messengers’ home and signed later that day at a nearby pharmacy (to which Mr Messenger and Mr Walker travelled for that purpose once the document was ready).

17. Mr Walker’s statutory declaration raised serious criticisms concerning the operation of Senator Lambie’s office (and of her behaviour more generally).  It is convenient to replicate parts of it (errors original):

    On a daily basis I witnessed bullying harrassment as defined by the Members of Parliament (Staff) Act 1984 in the form of:

    •Abusive , insulting or offensive language - for example , Senator Lambie's use of [identified phrases that needn’t here be replicated]…and as a male I found this very offensive and made me feel very uncomfortable.

    •On 22 February 2017 at approx. 9:30am I witnessed an outburst by Senator Lambie directed at my Office Manager, Fern Messenger, using language that frightened me, humiliated me in front of all the staff.  I heard her distinctly scream "no they don’t understand the law" to which Fern responded "you haven't offered them any training" to which she responded "they just don't get it" .  This was in regard to my and [Ms] Walker's job performance.  The Senator then stormed into the office area screaming at Fern "How about you do some more hours and start doing your fuking job".

    …

    During a staff "handover meeting I witnessed Senator Lambie lie about the workload that the position entailed.  She stated that overtime was never necessary and the workload was not that great.  In fact she inferred that [Ms Walker] was not up to the job and that the DVA client files were incomplete and in disarray.  This was a blatant lie which my office manager refuted in the meeting.

    …

    My office manager was on two days annual leave (9 & 10 March) and I witnessed the senator colluding with 2 of my colleagues (one a casual) to undergo training as an office manager - and this was done in a very secretive way.

    …

    I fear for the safety and well-being of my colleagues as I believe Senator's Lambie is unstable and this results in harm to her staff. I have been left with feelings of anxiety, stress, worthlessness and inadequacy has affected my self esteem and personal relationships.

18. It will be necessary later to return to the circumstances surrounding the creation of that document.

19. As that development played out, Senator Lambie learnt of the discussion (or the import of the discussion) that Ms Deeks had had earlier that day with Mr Messenger.  Ms Deeks told Senator Lambie that the mediation was unlikely to succeed given Mrs Messenger’s apparent reluctance to participate.

20. At around that time, Senator Lambie spoke by telephone with Ms Philpot.  Ms Philpot informed the Senator that Mrs Messenger had attended at the electorate office and had fed a volume of documents into the secure “shredding bin” and the shredding machine.

21. Senator Lambie returned to her electorate office sometime late in the afternoon of Friday, 24 March 2017.  She made arrangements to have the secure “shredding bin” opened so that the content of what Mrs Messenger had fed into it could be reviewed.  That occurred.  Neither Senator Lambie nor her staff noticed anything in the shredding bin that was noteworthy.

22. Thereafter, Senator Lambie spoke by telephone with Mr Witheford.  She told him that Mrs Messenger had attended at her office earlier that day for the purposes of destroying (or disposing of) documents.  Senator Lambie informed Mr Witheford that her relationship with both of the Messengers had deteriorated to the point that she no longer trusted either of them, and that she wanted to progress toward severing their respective employment relationships.  Mr Witheford told Senator Lambie that he would draft some “show cause” letters outlining her concerns, to which the Messengers would be invited to respond.  Mr Witheford was concerned to ensure that the process that would ensue was procedurally fair.  He and the Senator also discussed steps that might be taken more immediately to limit or remove the Messengers’ access to information technology and communications systems, and to the Senator’s office.

23. At 5:24pm on Friday, 24 March 2017, Ms Tyrell emailed the Department of Parliamentary Services (or, more specifically, a generic inquiries email address) to request that Mrs Messenger’s access to her parliamentary email address be removed owing to “…concerns [that] government documents may be jeopardised”.  That request was swiftly actioned.

    3.6  27 March to 3 May 2017—the show cause process and the dismissals

24. Over the weekend of 25 and 26 March 2017, Mr and Mrs Messenger drew up a document that they have come to describe as a “public interest disclosure” or “PID”.  Its precise statutory character is the subject of consideration below; but, for now, it suffices to record its content and what was done with it.

25. The so-called PID comprised of a signed, 8-page letter dated “27 March 2016 [sic 2017]” addressed to the then Prime Minister, The Hon. Malcolm Turnbull MP. Attached to that letter were a number of documents, one of which being a copy of the statutory declaration that Mr Walker had signed in the afternoon of Friday, 24 March 2017 (above, [70]-[71]).

26. The terms of the so-called PID are best not replicated; but it is convenient to recite a couple of its proverbial high notes.  Amongst other things, the document accused Senator Lambie of having:

    (1)embarked upon “illegal or negligent conduct causing an unsafe work place”;

    (2)“negligently [and] in a drunken state…disregarded the safety and health” of a member of her staff;

    (3)embarked upon a “bizarre, cold-hearted argument where Senator Lambie wanted [the Messengers] to guess how long [a staff member’s terminally ill] mother had left to live” and of having “complained…about the length of time it took for [that staff member’s] mother to die”;

    (4)confided in the Messengers that “…she had ‘upped her medication’ used to treat her mental illnesses”;

    (5)engaged in “excessive swearing” in the presence of her staff (graphic examples of which were then outlined);

    (6)regularly made inappropriate comments to her staff about her sex life;

    (7)failed “…properly [to] understand or respect the rules of conduct regarding the wastage of public money or the abuse of public trust”; and of having

    (8)impaired “memory and cognitive function” to a point adverse to “…staff safety and Australia’s national interests”.

27. By an email sent at 9:18am on Monday, 27 March 2017, Mr Messenger provided the so-called PID (including its attachments) to three members of the Prime Minister’s staff, the then Senate President, Senator the Hon. Stephen Parry, and the then Attorney-General, Senator the Hon. George Brandis (as well as members of Senators Parry and Brandis’s respective staffs).

28. The timing assumes some significance.  Later on Monday, 27 March 2017, each of Mr and Mrs Messenger was sent correspondence requiring that they show cause as to why their employment ought not to be terminated.  Mr and Mrs Messenger maintain that a reason why that course was embarked upon was that they had, earlier that day, emailed their so-called PID to the offices of the Prime Minister, the Senate President and the Commonwealth Attorney-General.

1. The documentary evidence tells a different story.  Consistently with the discussion that he had had with Senator Lambie in the afternoon of Friday, 24 March 2017, Mr Witheford sent an email to Ms Tyrell at 11:23am, within which he set out some “[p]ossible wording to draw upon” in the correspondence that it was anticipated would be sent to the Messengers:

   This seems to me a clear indication that our working relationship has broken down to the extent that it is irretrievable.  In the circumstances, I am forming the view that I may have no real option other than to terminate your employment.  This would not be a decision I would take lightly and before reaching a decision, I would like to give you the opportunity to put your views.  If you wish to respond, would you do so in writing please no later than…...

2. Ms Tyrell then set about typing and formatting what ultimately became the first “show cause” letters of 27 March 2017 (to which I shall hereafter refer as the “First Show Cause Letters”).  At 12:43 that afternoon, she sent to Mr Witheford drafts of the two letters, in respect of which he suggested (by reply email sent at 2:05pm) some stylistic changes.  After getting approval from Senator Lambie to do so, Ms Tyrell emailed the First Show Cause Letters to the Messengers at approximately 3:10pm.

3. It is convenient to replicate the First Show Cause Letters in full.  The letter that was sent to Mr Messenger read as follows:

   It has come to my attention that there has been a significant breakdown of employer–employee trust as a number of concerns have been brought to my attention.  The main concerns are as follows:

   (a) You have asked staff to ‘spy’ or to report back on my activities;

   (b) You have asked staff to use their personal rapport with me to influence decisions or positions;

   (c) You suppressed personal staff advice.  Staff were yelled at, belittled or given the ‘cold shoulder’ and thus punished for expressing opinions that conflicted with your stated positions;

   (d) Your unpredictability, moodiness, overt negativity to staff, and/or vindictive attitudes to staff, and your undermining me in front of staff verbally have had a negative impact on staff in the office;

   (e) Without my permission, linking my iPhone to an iCloud account maintained by the Advisor Rob Messenger which enables mirroring of phone calls, logging of phone calls and messages and personal location tracking - running a second iCloud diary without using the APH diary system;

   (f) Refusing to work on Parliamentary devices, information sharing systems, and using a private Bigpond email account even when I had directed you transfer over to the appropriate Parliamentary systems.

   The above conduct evidences a breakdown in our working relationship to such an extent that I believe I can no longer have trust or confidence in you.  In the present circumstances, and given the seriousness of the actions you have taken, as detailed above, I am of the view that I may have no real option other than to terminate your employment.  Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views on this matter forward.  If you wish to respond, please do so in writing no later than close of business Wednesday, March 29, 2017.  After I have time to consider any response you may have, I will make my final decision on your continued employment in my office.

   I look forward to your response.

   Yours faithfully

   Senator Jacqui Lambie

   Senator for Tasmania 

4. The equivalent letter that was sent to Mrs Messenger read as follows:

   It has come to my attention that there has been a significant breakdown of employer–employee trust, as a number of concerns have been brought to my attention.  The three main concerns are as follows:

   (a) I have been made aware that you provided an employee’s resignation letter to a known legal practitioner, without my knowledge or permission;

   (b) I have been made aware that you have linked my iPhone to an iCloud account maintained by Robert Messenger, which enabled mirroring of phone calls, logging of phone calls and messages, and personal location tracking; and

   (c) I am aware that you attempted the unauthorised destruction of documents in the Burnie Electorate Office on March 24, 2017, when such documents were placed in a security bin destined to be shredded.

   The above conduct evidences a breakdown in our working relationship to the extent that I believe I can no longer have trust or confidence in you.  In the present circumstances and given the seriousness of the actions you have taken, as detailed above, I am of the view that I may have no real option other than to terminate your employment.  Such a decision would not be taken lightly, and before reaching a decision, I would like to give you the opportunity to put your views on these matters forward.  If you wish to respond, please do so in writing no later than close of business Wednesday, March 29, 2017.  After I have time to consider any response you may have, I will make my final decision on your continued employment in my office.

   I look forward to your response.

   Yours faithfully

   Senator Jacqui Lambie

   Senator for Tasmania

5. As is apparent, each letter identified “concerns” that Mr and Mrs Messenger were invited to address.  The terms in which those concerns were expressed were crafted by Senator Lambie, with some assistance from Ms Tyrell and Mr Witheford.  Regardless, they were, in each case, a faithful reproduction of the concerns that Senator Lambie wished to ventilate.

6. Each of the First Show Cause Letters envisaged that its recipient would reply by the close of business on Wednesday, 29 March 2017.  That deadline was not enforced and, through their lawyers, the Messengers indicated instead that they would respond on or before Wednesday, 12 April 2017.

7. On Tuesday, 28 March 2017, Mr Messenger received an email from Mr Ben Bartlett, Senior Adviser to the Prime Minister regarding the so-called PID.  Mr Bartlett advised Mr Messenger that MaPS was responsible for “…handling matters such as those raised in your letter” and that a Ms Sharon Forester, MaPS Director, would be available to discuss those matters with him.

8. On Wednesday, 12 April 2017, Mr and Mrs Messenger responded to the First Show Cause Letters.  That response assumed the form of correspondence from their solicitor, to which was attached a 9-page letter addressed to Senator Lambie and signed jointly by both of Mr and Mrs Messenger.  Each was dated 12 April 2017.  The terms of the solicitor’s letter are unimportant; save to note that it recorded that a copy of the attached correspondence from the Messengers (hereafter, the “First Show Cause Response Letter”), together with copies of the First Show Cause Letters in respect of which it had been produced, had “…been emailed to both the Prime Minister’s office and the Director of M[a]PS”.

9. Although lengthy, it is prudent to set out in full the terms of the First Show Cause Response Letter (errors original):

   Despite recent events involving serious breaches of the WPHS Act and certain conduct by yourself, which has made the workplace unsafe for all your staff - being each served a show cause notice has come as a great shock to Fern and myself.

   We've often had conversations with you where you've indicated that we would be employed at least until the end of your new 6-year tenure as a Senator, most likely beyond because you have stated that you need us to help win re-election again in 2022.

   So we structured our finances accordingly to reflect those circumstances and promised employment security.  At no stage prior to receiving our show cause notices did you officially or unofficially indicate to us that the quality or professional standards of our work were lacking, and that there was a threat to our employment security.

   Fern ensured that the electoral office in Burnie, Tasmania ran as smoothly as possible given the unique and dangerous challenges staff found being employed by yourself.

   And I made sure that when Parliament sat, the Canberra office ran as efficiently as possible and you made speeches, questions and parliamentary contributions, ministerial and prime ministerial representations - that put forward the best interests of your chosen pet subject "Veterans and ADF members' welfare" and in the best interests of all Tasmanians.

   The public record will show that your staff, during the time that Fern Messenger and I were in key office management positions - were as safe as possible given the extra security challenges created by your public statements and your sometimes unpredictable behaviour.

   From all key indicators and feedback from parliamentary services both the Canberra and Tasmanian offices ran very effectively, efficiently and successfully.

   Feedback from constituents and positive results we achieved while advocating for them also will show the office processes and procedures we established in your office were very effective.

   Your office, under our senior management, would have submitted to Ministers and the Prime Minister, one of the highest number of professionally written letters and briefs on behalf of the people we advocated for which often produced positive results.

   Use of Private Email Account and Computer

   For the time I've worked for you - I've written nearly every speech and official Question Without Notice while receiving little correction or advice from you who accepted my work with little questioning.

   Sometimes you would change an adjective and add a "bloody" to a sentence.  However, you have never warned me officially or unofficially not to use my personal email account and Apple Mac for this work - in fact you encouraged me to do so for the following reasons:

   •Following a disastrous interview by you on local commercial radio regarding your love life, which made headlines worldwide and resulted in an extraordinary number of abusive phone calls and emails to staff - with your whole-hearted agreement, I then put in place a strict media management policy.

   •Practically it meant that all media questions were put to me in writing and I replied to their questions and requests in writing - or I wrote a script for you to read, and I then videoed your performance - edited the footage of you reading my words and posted it online for the media to access.

   •This lessened the risk of you speaking off the top of your head and repeating the disastrous public relations blunder on Heart FM and thereby exposing staff to more extreme abuse and ridicule.

   •I then began writing policy for you to memorise and parrot during further media interviews.  Until recently all of your policy, parliamentary contributions, major interviews, media commentary, election ads and newsletters were written and edited by myself.

   •During all major media interviews I prepared scripts and especially during radio interviews where the journalists could not see that you were reading from a prepared script - you parroted the lines I wrote for you, dropped in a few "umms" and "ahhhs" to pretend you were answering the questions spontaneously.

   •You knew that for me to provide you with a comprehensive, Public Relations Digital Media service which was able to quickly respond to questions and requests from journalists from remote locations, I needed to operate a laptop Apple Mac computer with its superior digital media editing platform and to use a private email account for my work address and online posts.

   •You approved the creation of at least two different sets of my business cards showing my position as Chief of Staff and bearing my private email account.

   •For years you personally handed my business cards displaying my private email address out to lobbyists, ministers, ministerial staffers and members of the public and allowed them to be displayed in both the Canberra and Burnie offices.

   •If your allegations regarding my personal email and computer usage were truthful, why were you so eager to hand out my business cards as recently as my last trip to Canberra?

   •You knew and acknowledged that the most efficient and quickest way for me to operate remotely away from the blue lead of the parliamentary intranet - was to use my private email account and laptop Apple Mac computer.

   •In fact, you ordered me to buy back-up storage devices for those devices which I did so from my own funds.

   •You also knew that official personal email addresses, especially in the 44th parliament where you held a share of the balance of power in the Australian senate - were the target of frequent organised denial of service attacks - and the use of private email accounts offered some protection from these damaging denial of service attacks.

   •You, as recently as a few weeks ago, when I commenced sick leave, still used a private email account, for the same reason above - and like myself, had the Office Manager monitor, edit and manage our official email account.

   If you can use a private email account and refuse to use a work computer - why would you make your Chief of Staff do the opposite?

   So for you to suddenly use my use of a private email account and computer as grounds for a show cause notice, which skipped all the normal procedural warnings prior to me receiving it - and while I was on sick leave - beggar's belief!

   High Standard of Work

   During my time as COS the speeches and parliamentary contributions from you often received high praise and compliments from parliamentarians from all political backgrounds.

   For example on the 17.6.2015, Senator Ian McDonald a noted critic of yourself said:

   Business/Hansard/Hansard Display?bid=cha mber/hansards/b 72114df-d068-4aeb-8fd0-833d5a01 f955/&sid=0216

   That being the case, perhaps I should not have jumped in before the minister.  As I have the call, I just want to draw the senator's attention to a wonderful speech made this morning by Senator Lambie on this very subject.  Senator Lambie, as a Tasmanian senator, understands what this is all about.  I was delighted that Senator Lambie has shown herself to be the only non-government senator from Tasmania who understands just what a destructive force the Greens political party has been in the whole debate and in the Tasmanian economy as well.

   As shown, some of that praise for your speeches is recorded in official Hansard.

   You would often relay to your staff that a speech or question I had written had "kicked arse" and you'd enjoyed the praise of fellow senators and their staff after my work had been delivered.

   During the time I was Chief of Staff, you were prolific in your parliamentary contributions.  The official senate statistics will show that you, as an independent senator, made one of the highest contributions to the chamber with lengthy detailed speeches - which was largely due to the long hours I worked and the good management, supervision and monitoring of staff under my direction.

   You, following my advice and work, became one of the few crossbench senators in parliamentary history to have their private member's bill passed by the senate.

   And once again following my tactical political advice single-handedly forced the previous Prime Minister to deliver a fair pay rise to members of our ADF.

   You, also following my advice and reading my speeches, convinced the senate to establish historic investigations into Veterans' suicide, likely breaches of the Geneva Convention and human rights by Special Forces during their Resistance to Interrogation training, the so-called Jedi Council sex scandal which exposed the high level corruption in the ADF and the corruption and mismanagement within the Australian dairy industry.

   Swearing at Staff

   Watching the delivery of my speeches live on the Canberra office TV situated above my desk was a time of great excitement and often frustration - because your reading and speaking skills are very poor causing embarrassing and cringe worthy mispronunciations - which would spoil the effect of a well written, reasoned speech and argument.

   Sometimes during those moments when you stumbled over words with more than 2 syllables - or misread a speech - I would verbalise my frustration towards the Canberra office TV monitor above my desk, at your failure to competently read and pronounce simple words.

   Those private expressions of disappointment I made at a TV monitor are now being used to incorrectly allege that I yelled at or swore at staff who I greeted each day with a cheery "Hello beautiful people!"

   And constantly praised in an effort to make up for your lack of acknowledgement of good work and sudden wild angry mood swings which left all staff drained of energy and felt as though they were walking on "egg shells".

   What you have failed to state in your show cause letters was that the majority of the time when you followed the script - all staff cheered and excitedly celebrated (high fived each other) following the successful delivery of a speech or question by yourself in the chamber.

   Indeed, in your own quirky way (even though you consistently failed to offer praise, even for praise worthy work) would tell all who would listen, that your success was due to the fact that you were "just the Billboard" and we (Fern and I) were the brains behind the message that went on the Billboard.

   In fact, on some occasions both sober and under the influence of alcohol - you bluntly and succulently said "I would be fucked if we (Fern and I) ever left."

   This general assertion is supported by the facts.

   Putting aside the press releases, video production, online presence, letter writing, constituent advocacy, strategic political advice and policy creation Fern and I undertook on a volunteer basis for 9 months - between the time of the 2013 election and when you officially took your seat in the Senate in July 2014 - we were able to increase your political effectiveness, profile and popularity despite some major public relations disasters.

   The obvious test of our work came during the historic double dissolution election when you, despite the odds, increased your primary vote from approx. 1200 to 69,074, the second highest vote for a Tasmanian senator that won you a 6-year senate term.

   This achievement came at a great personal cost to Fern and myself.  To keep you performing at a high level Fern and I took on an unbelievable workload.

   Fern in particular, while carrying out her normal office duties, after hours organised the registration of the Jacqui Lambie Network (JLN), ran the JLN as the secretary of the JLN and complied with all the AEC requirements, ran the state election campaigns for 4 senate teams, while also managing all the personal and tax finances of yourself and some of your family.

   In short Fern and I were available to you 24/7, even during weekends, family holidays, sick leave (the rare occasions we took it) and regularly completed 80 to 90 hours of work - sometimes greater - each week.

   In fact, our slavish devotion to duty for such a long period of time, led you to think it was normal to be able to contact us by phone or email during weekends, recreational leave, even following the recent election win.

   Our workload and your insistence to contact us outside work hours was a contentious issue - which we raised with you during a key meeting following your last political victory.  This was the meeting where we raised a number of contentious matters which we described in our PID - and this meeting marked a change in your attitude towards us.

   Until recent times when our physical and mental health failed us and following critical work place incidences, that are also the subject of an official Public Interest Disclosure - Fern and I each accrued about two months sick leave in the space of about 2.5 years' service.  We believe this shows how high our level of loyalty was personally to you and how much belief we had in the good that was caused by all the staffs' hard work.

   Until recently both Fern and I sincerely believed that despite the pitfalls and hazards of working for a person who was at times unpredictable - we were making a positive difference for all the people who approached us for help.

   Denial of Natural Justice and Attempt of Constructed Dismissals

   However, being served show cause notices without any of the usual procedural warnings and while on official sick leave - has increased our feeling of shock and created additional feelings of dread, depression, fear and left us wondering if all our efforts have been worthwhile.

   The manner in which you have attempted to execute the show cause notices - has also contributed to the great harm Fern and I are currently suffering.

   It's clear from the content and timing of your show cause notices, combined with your hiring of key staff without informing Fern Messenger, the Office Manager and myself - and withholding other information - that you have attempted to predetermine and / or construct our dismissals.

   "Spying" on Senator Lambie.

   When Fern and I read that one of the reasons why we are being asked to show cause is because we are trying to monitor or spy on your behaviour - then it further increases our feelings of confusion, helplessness, dread and depression given that your actions, words and behaviour over 3 years shows that you see nothing wrong with:

   1. Exposing staff to extraordinary public abuse after telling a radio host in a cringe worthy radio interview that any man who wants to get to know you personally, They must have heaps of cash and they've got to have a package between their legs, let's be honest," and asking a telephone caller to the radio program if he was "well hung."

   2. taking staff members shopping in Adult stores, for sex toys.

   3. trying to sack a young staff member who spent too much time away from work while caring for a mother who suffered terminal cancer and was in palliative care.

   4. regularly announcing to staff members, including a young male - that you "haven't got laid in a long time" and you desperately "need a root".

   5. regularly using vulgar / obscene language in front of the staff - particularly using [an identified phrase] to describe critics and people who disagreed with you.

   6. ringing a staff member during business hours while you were under the influence of alcohol- and then giving orders which seriously harmed that staff member and led to their resignation,

   7. requiring untrained staff members to take suicide calls or calls containing details of graphic sexual assault at all times of the day, from war veterans.

   8. the office staff becoming the target of a credible, unresolved death threat from an Australian terrorist/ ISIS supporter (or supporters) but then failing, along with the Commonwealth, to put in place proper security measures, despite a total of 20 official office security threat referrals being made to the AFP and other security agencies over a 2.5 year period.

   9. regularly swearing at, abusing and bullying staff members, including myself and Fern.

   10. criticising most staff at some stage for poor work performance, while the facts and official records showed the opposite.

   11. constantly ringing staff outside work hours, on weekends, on sick leave and on recreational leave raising petty personal and work related issues.

   12. regularly abusing the Office Manager because she took action to prevent questionable claims and behaviour relating to your personal travel and accommodation.

   13. regularly abusing the Office Manager because she took action to prevent breaches of standing orders, contempt of parliament and questionable behaviour relating to your pecuniary interest register.

   14. constantly failing to properly read official meetings / travel times and dates linked electronically to your IPhone, while then blaming the Office Manager for your own failure to note the dates and times.

   Putting aside the obvious fact that part of any competent Chief of Staff's role is to make themselves aware of and take action to avoid any threat to the physical, mental or public reputational well-being of their employer - to be forced to answer the charge in a show cause letter that the Office Manager and myself spied on or excessively monitored your behaviour - given the above facts and at times your unpredictable behaviour, resulting in frequent explosive public/parliamentary demonstrations, we find it an insult and very hurtful that we have to defend ourselves from false and defamatory claims.

   In summary

   Our response to the individual points outlined in the show cause letters to both myself and Fern Messenger is that they are baseless, factually incorrect, malicious, designed to hurt our personal and professional reputations and grossly defamatory.

   We will take every opportunity to defend our personal and professional reputations and reserve the right to take legal action against any person who repeats or rebroadcasts these easily disprovable lies.

   The fact that your show cause letters fail to reasonably and properly raise questions about our competencies in the roles of Office Manager and Chief of Staff, while also conveniently ignoring the massive workload imposed on us by yourself, and the highly dangerous and unsafe workplace your actions have caused, indicates that your correspondence is unbalanced, unfair, misleads by omission and is designed to illegally construct our dismissal.

   It is important to note that the majority of the staff have at varying stages over the last 2 years expressed to both of us their serious concerns about your behaviour.

   In fact, in recent times the majority of the staff indicated to both of us that should Steve Martin, a JLN number 2 senate candidate have been successfully elected as a senator for Tasmania, then the majority of staff would like to leave your employ and immediately work for Mr Martin.

   These show cause letters by yourself may have been based on false reports from fellow staff who may have been coerced by you or you have just made up the allegations to suit your purpose to quickly terminate our employment.

   If the staff were allowed to express their views about your behaviour without the threat of dismissal and losing their income for the next 5 years, it is our firm view that they would agree with everything stated in this letter.

   We will take every opportunity to give fellow staff an opportunity to swear under oath and disprove the points in our reply to your show cause letters.

   We eagerly look forward to an opportunity of putting our hands on the bible and swearing to tell the truth to an appropriate tribunal of fact or court which is empowered to make a decision on whether illegal conduct and breaches of the Workplace Health and Safety Act has occurred by both you and the Commonwealth Government.

   Lastly, as previously mentioned, our concerns about certain conduct and an unsafe work environment were put in an official Public Interest Disclosure and given to the Prime Minister and other authorised internal parliamentary office holders.

   Approximately 6 hours and 3 mins after that official PID was made, your employment show cause letters were delivered to us by email. This now raises the possibility that your show cause letters were part of an official reprisal act as described in the Public Interest Disclosure Act 2013 after the contents of our PID were leaked illegally to yourself.

   We also hereby give notice that we reserve the right to make complaints and take legal action under the Commonwealth Public Interest Disclosure Act 2013 in order to protect our legal rights.

1. The Messengers also sought to justify their sending of the Show Cause Responses to the office of the Prime Minister on the basis that he was their supervisor or “ultimate” supervisor, or was otherwise responsible for establishing protocols under the MOPS Act pursuant to which they were engaged. They submitted that they “…owed an overriding fidelity or duty and responsibility to the Commonwealth and its workplace laws through the Office of Prime Minister rather than to Senator Lambie.” They went so far as to suggest that the office of Prime Minister “…is not a political office”.

2. Those submissions were as misconceived as they were contrived.  It is patently absurd to suggest that the operatives of a political office were duty bound to serve the interests of anybody other than the elected representative in whose service they were employed.  It is even more absurd to suggest that the office of Prime Minister is “…not a political office”.  If those contentions were even remotely sound, it would follow that disaffected staff within an opposition representative’s office could, with impunity, copy to the Prime Minister—to their representative’s primary political rival—all manner of embarrassing, scandalous or damaging allegations.  That is a self-evidently preposterous notion to which, despite the obvious misgivings of the court, the Messengers unwisely adhered.

3. The ridiculing nature of the First Show Cause Response Letter, in particular, should not be undersold.  In it, the Messengers made reference to Senator Lambie having “parroted” lines that were written for her, having feigned spontaneity during interviews, having “very poor” reading and speaking skills, having delivered “cringe worthy [sic] mispronunciations” during speeches, and having been unable to “competently read and pronounce simple words”.  How it might ever be appropriate for a political staffer to share accusations like that with the Prime Minister’s office defies explanation.

4. The Show Cause Responses were transparent and calculated acts of betrayal.  It beggars belief that they were shared with the office of the Prime Minister.  There was no possible justification for the Messengers embarking on that course and no employee in their position could realistically expect to remain in his or her employment having done so.  Their efforts in sending the Show Cause Responses constitute some of the clearest examples of serious misconduct imaginable.

   5.5.2  Non-compliance with a direction

5. The respondents also suggest that the Messengers each engaged in an act of serious misconduct insofar as they sent the Second Show Cause Response Letter to the office of the Prime Minister, despite an implicit direction that they should not do so.

6. The Second Show Cause Letter made a point of communicating to the Messengers Senator Lambie’s opposition to their having shared their First Show Cause Response Letter with the office of the Prime Minister.  Yet, in their Second Show Cause Response Letter, the Messengers defiantly reiterated what they had said in the First Show Cause Response Letter and indicated that they intended “…to keep the Prime Minister’s office fully informed…”

7. Whether or not the Second Show Cause Letter contained a direction to the Messengers that they should refrain from copying the Prime Minister’s office into their response may be doubted.  It didn’t say so in terms; although it could not possibly have left the Messengers in any doubt that Senator Lambie was upset about them having taken that course.

8. Whether the sending of the Second Show Cause Response Letter to the office of the Prime Minister amounted to serious misconduct because it involved defiance of an implicit (and reasonable and lawful) direction or because it employed (or “reiterate[d]” from the First Show Cause Response Letter) deliberately derisive and scornful undertones doesn’t much matter.  Either way, it was an act of serious misconduct.

   5.5.3  The interaction with Mr Walker

9. Senator Lambie says, further, that Mr and Mrs Messenger were guilty of serious misconduct insofar as they persuaded Mr Walker on Friday, 24 March 2017, to sign a statutory declaration containing various allegations against her that did not, in truth, reflect what he felt; and that, in any event, were derogatory or damaging toward her.

10. There are multiple dimensions to that contention.  The first is that the preparation and signing of Mr Walker’s statutory declaration—which, it is to be remembered, formed part of the material that was sent to the offices of the Prime Minister, the President of the Senate and the Attorney-General on Monday, 27 March 2017 (see above, [79])—was orchestrated at the Messengers’ initiative, rather than that of Mr Walker himself.  The Messengers both told the court that they did not arrange for Mr Walker to visit them on Friday, 24 March 2017; and that the preparation of his statutory declaration was a matter that arose organically when he did.  Mr Walker’s evidence, on the other hand—which he gave under subpoena issued at the Messengers’ request—was that he was summoned to their house on that day and that the preparation of the statutory declaration was their idea.

11. I prefer the evidence of Mr Walker.  Unlike the Messengers, he presented as a credible and uninvested witness.  He did not try to hide from the fact that his statutory declaration, despite his agreeing to sign it, contained content that he didn’t think was fairly reflective of his views about Senator Lambie or his time in her office.  Moreover, the idea that he simply happened upon the Messengers with material that they might use, at a time when they knew that their relationship with the Senator was not healthy, is far too coincidental to be credible.  I have no hesitation in accepting Mr Walker’s evidence that he was asked to attend upon the Messengers and that the preparation of his statutory declaration was something that they initiated.

12. Second, the evidence conflicted as to who it was that drafted the language up to which Mr Walker eventually signed.  Mr and Mrs Messenger gave evidence that they merely assisted Mr Walker in the preparation of his statutory declaration; principally by typing it for him and ensuring that it assumed a proper form.  Mr Walker’s evidence was that they did a little more than that.  He told the court that Mr Messenger drove the inclusion of passages containing serious allegations against Senator Lambie, including the references to her being a liar and “unstable”.

13. Again (and for reasons equivalent to those outlined above, at [375]), I accept Mr Walker’s evidence over that of the Messengers.  What happened during the afternoon of Friday, 24 March 2017 is tolerably clear.  Mr and Mrs Messenger, correctly appreciating that their relationship with Senator Lambie was in its death throes, set upon a course to extract from Mr Walker a written indictment against the Senator, which they intended to use in corroboration of their own criticisms of her (which they ultimately did by including it as an attachment to their so-called PID).  Mr Walker—whose own employment in the Senator’s office had come, or was about to come, to an end—was more obliging than was prudent.  He agreed to the course that Mr and Mrs Messenger urged upon him and to the words that they effectively placed under his hand.  He did so as a courtesy to them and without properly considering the significance of what they had asked of him.  Regardless, the entire episode transpired at their direction.  At the very least, they were active and willing participants in an exercise that was calculated to embarrass, damage and betray the Senator.

14. That being the case, it is not difficult to see that what Mr and Mrs Messenger did during the afternoon of Friday, 24 March 2017 was sufficient to constitute serious misconduct.  They actively solicited or engineered a written document that was deliberately harmful to their employer, and they did so in order that they might use it to inflict that harm.  No employee in their position could seriously expect to remain in employment having embarked upon that course.  Mr and Mrs Messengers’ interactions with Mr Walker during the afternoon of Friday, 24 March 2017 were very clear examples of serious misconduct.

    5.5.4  Conclusion

15. There is no doubt that, at the time of their dismissals, each of Mr and Mrs Messenger was guilty of serious misconduct.

    5.6  Entitlement to payment in lieu of notice

16. It necessarily follows from the conclusion just stated that, at the time of their dismissals, neither of Mr or Mrs Messenger was entitled to notice of termination or payment in lieu thereof. The Commonwealth’s decision not to afford them such notice or payment in lieu thereof was not inconsistent with the requirements of cl 63 of the EA. There was no resultant contravention of either of ss 50 or 323 of the FW Act.

17. This aspect of the present matters should (and will) be dismissed.

    PART 6:  THE COERCION CASE

    6.1  Summary

18. The third broad cause of action that the Messengers prosecute concerns the Carlton Interview of Tuesday, 28 November 2017 (see above, [101]). At the risk of over-simplifying their contention, Mr and Mrs Messenger allege that, by means of the things that she said during that interview, Senator Lambie threatened to take action against Mr Martin with the intent of coercing him into not employing them. That, they say, transpired in contravention of s 355 of the FW Act. They each seek relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with that contravention.

19. Senator Lambie denies that anything that she said during the interview of Tuesday, 28 November 2017 was sufficient to contravene s 355 of the FW Act.

    6.2  Relevant legislative provisions

20. Section 355 of the FW Act provides (and, at the material time, provided) as follows:

    355      Coercion—allocation of duties etc. to particular person

    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

    (a)       employ, or not employ, a particular person; or

    ...

21. Sections 360 and 361 of the FW Act (above, [116]-[117]) apply in relation to s 355 in the same way as they apply to s 340(1) (see above, section 4.3.4 [151]).

22. Section 355 of the FW Act is (and was) a “civil remedy provision” for the purposes of pt 4‑1. As with the other provisions upon which the Messengers each rely, this court has jurisdiction to hear applications for relief relating to conduct engaged in in contravention of its requirements (see above, [118]).

    6.3  Relevant legal principles

23. Conceptually, coercion and persuasion are not the same.  The former requires the satisfaction of two elements—the negation of choice and the use, to that end, of unlawful, illegitimate or unconscionable means:  Esso Australia Pty Ltd v Australian Workers’ Union (2015) 245 FCR 39, 84 [174] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding); Fair Work Ombudsman v Maritime Union of Australia (2014) 243 IR 312, 354 [300]-[303] (Siopis J).

24. In order that a person might be understood, by reason of particular conduct (or threatened conduct), to have intended to coerce another, it is “…unnecessary that the person organising, taking or threatening the action know[s] that the action is, or intend[s] that the action be, unlawful, illegitimate or unconscionable”.  It suffices that there be an intention to negate another person’s choices:  Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, 560-561 [2] (Kiefel CJ, Keane, Nettle and Edelman JJ). In combination, then, the section is engaged if action that is or would be objectively unlawful, illegitimate or unconscionable is organised, taken or threatened against a person with a subjective intention of negating that person’s choice as to some prescribed matter.

25. For the purposes of s 355 of the FW Act, conduct that is organised, threatened or taken will (or, at the least, may), if it is not unlawful or unconscionable, nonetheless be relevantly illegitimate if “…there is no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supports”: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 401 (Lord Scarman); applied in a context equivalent to the present in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130, 179-180 [148]-[151] (Reeves J). In Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, a full court of this court observed (at 301 [160] (Allsop CJ, Collier and Rangiah JJ)):

    In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:

    … it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party’s compliance in commercial and related contexts.

26. For the purposes of establishing a contravention of s 355, it is unnecessary to show that a person against whom action was organised, threatened or taken was, in fact, coerced. Action may be engaged in or threatened with an intent that suffices to attract the operation of s 355 even if that intent goes unrealised: Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39, 84 [180] (Buchanan J, with whom Siopis J agreed).

    6.4  Preliminary issue regarding s 361

27. By her written closing submissions, Senator Lambie advanced the following contentions (references omitted):

    332. The pleading of intention is at the heart of any cause of action alleging a breach of s.355 (or s.343 and/or s.348) of the FW Act. Where the pleading pleads no more than an intention to coerce, the pleading does not engage s.361 of the FW Act.

    333. The pleading in each proceeding does not expressly plead out the particular intention to negate choice.  There is no more than a circular pleading of ‘intent to coerce’. In relation to s.361 of the FW Act, the ‘first pre-condition’ is absent: there must be a pleading of a particular intent, and it must be pleaded precisely and distinctly so as to be identified.  There must be a pleading of the particular intent of an intention to negate choice.

    334. The pleading of the statutory cause of action is not complete by simply asserting, in a circular fashion, an intention to coerce.  That creates ambiguity. The pleading is defective.  The defect seeds an injustice to a respondent facing a civil penalty – what case must she meet?  How does the respondent know what facts are advanced in respect of the ‘high degree of compulsion’ which must be alleged and proved against her?

    335. Accordingly, section 361 of the FW Act, the presumption, cannot be, and has not been, engaged by this pleading.

28. Those submissions rely heavily upon the following observations of the full court in Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, 355 [14] (Tracey, Reeves and Bromwich JJ):

    …an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105])…

29. Later (at 356 [19] and 358 [25]-[26]), their Honours continued:

    …an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent.

    …

    It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements:  the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1])…

    …most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element.  This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.

30. After examining the pleadings that had been prepared in that case, their Honours ultimately went on to conclude that the presumption for which s 361(1) provides was not there engaged. Their Honours held (at 367 [41]):

    Finally, as is mentioned above at 26, the relevant “particular intent” in a contravention of ss 343 and 355 is an intent to negate choice. That particular intent has not been alleged in either of the two sets of allegations set out above. Instead, the expression “intent to coerce” has been used. As has also been mentioned above at 25, in this context, that expression conveys the two elements of coercion under ss 343 and 355 of the FWA. The pleaded allegations do not, therefore, convey the relevant particular intent required for a contravention of those provisions, namely an intent to negate choice… That being so, we do not consider that the presumption in s 361 operated with respect to the alleged contraventions of ss 343 and 355.

31. Here, both of the second further amended statements of claim relevantly alleged that Senator Lambie, “…threatened to take action against Mr Martin with intent to coerce [him] not to employ” either of Mr and Mrs Messenger. It is said that such a pleading falls short of what s 361(1) of the FW Act requires in order that the presumption for which it provides might be engaged.

32. In light of the observations made in Hall, that conclusion is inescapable. Neither of the second further amended statements of claim suffices to enliven the presumption for which s 361(1) provides. In proving that Senator Lambie threatened, by her participation in the Carlton Interview, any action with an intent proscribed by s 355 of the FW Act, Mr and Mrs Messenger can here draw no assistance from s 361(1).

33. For the reasons that follow, though, that reality does not bear materially upon the outcome of this element of the matters.

    6.5  Unlawful, illegitimate or unconscionable threat

34. By their respective pleadings, neither of the Messengers identified how it might be said that the conduct that Senator Lambie threatened during the Carlton Interview was (or would be) unlawful, illegitimate or unconscionable.  By their written closing submissions, it was alleged that her comments amounted to a threat to dis-endorse Mr Martin (that is to say, to have his endorsement by the Jacqui Lambie Network withdrawn somehow) or to force his resignation from the Jacqui Lambie Network in the event that he were to hire either or both of the Messengers as members of his own staff.  In either case, it was said that those threats were relevantly “illegitimate”.

1. How those submissions align with the pleadings can be put to one side for now (properly or otherwise).  Instead, it is convenient to address two questions, namely:

   (1)did Senator Lambie threaten those things; and

   (2)if she did, were those threats relevantly illegitimate?

2. Only if both questions are answered in the affirmative does it become necessary to consider questions of intent.

   6.5.1  What, if anything, was threatened?

3. It bears repeating the specific passages of the 28 November 2017 interview from which the threats of present relevance are said to have (or might be said to have) emerged:

   Mr Carlton:OK – you know why I’ve asked that question… don’t you?

   Senator Lambie:    Yes I do.

   Mr Carlton:You don’t want to go there – do you?

   Senator Lambie:    Ohh – you know what – I’ll be brutally honest with you.  If that was the scenario – Umm – then that’s going to be a problem.  And I’ll be brutally honest with you – this morning … if that person was to be employed – umm – the damage that’s already – been done to my staff ... and the process … the court process that is going on …

   That’s going to make very – things very, very difficult.

   The network … ahh – prides itself on its own integrity … and I’ll tell you right now … if that was to happen then the network would be looking for 500 signatures – because Martin would be as an independent.

   I’ll be brutally honest about that this morning.

   Mr Carlton:OK so the - the … it’s not quite a veiled threat … what can you do should Steve Martin – the individual we’re talking about here – is your former Chief of Staff Rob Messenger.

   And presumably his wife … now the media reporting suggests that ahh – ahh he is prep...– ahh – angling if you like – to get his old job back – and part of the trade off there is – he’ll drop his legal action you should that happen…

   Is that how – is that how you read it?

   Senator Lambie:    Yeah – that’s how I read it… I found it quite sickening to be honest.  Umm ... You know like I said … I’ve got … well they are not my staff any more... but … they’ve been through a lot … umm … they are going to be witnesses … and this is going to make things very, very difficult.

   So – Umm – to not put them through that … if that be the case … if Steve decides to go down that way – then umm – he’ll be on his own two feet as an independent.  Simple as that …

   Mr Carlton:So – if okay … again let me clarify here completely Jacqui … if Steve Martin hires Rob Messenger – his wife or both – as ahh – as staff … senior staff – or any kind of staff … you will what, dis-endorse him?

   You’ll throw him out of the party?

   Senator Lambie:    No well … he’ll go out – as an independent … so... umm I think he’s...

   Mr Carlton:What, what mechanism would that be Jacqui … you’d throw him out or he’d resign?

   Senator Lambie:    Well he can umm – you know, he can resign … but people would know – umm what this is all over … and all the rest…. Umm – whether I dis-endorse him or he resigns – but something will have to happen fairly quickly.

   Mr Carlton:Do you know whether Steve Martin is in discussion with Rob Messenger over that … ahh any potential job?

   Senator Lambie:    Ahh you know what – I just read the papers like you do… Brian … Umm and that’s what’s going on at the moment.

   Mr Carlton:So you’ve not – you’ve not discussed this with Steve Martin actually?

   Senator Lambie:    No – umm - No I haven’t … so I’m not quite sure where Steve … I’m not quite sure that Steve knows what – where’s he’s going with it either so – which is more frightening for me…. I just … yeah it’s the integrity of the network…

   And see – it’s what I owe – umm the former employees in my office.  It’s what I owe them – and it is the right to do.  But I’ll be standing by them through thick and thin … just like they will be with me – as witnesses going through a court process.

   And ahh – it will be a very silly move of Steve Martin to do that…

   Mr Carlton:What’s your relationship with Steve – working … working relationship?

   Senator Lambie:    Umm … look I … I’ve only spoke with Steve yesterday … we’re talking about organized crime.  He’s obviously put out a statement today.  Ahhmm... you know – well – I’ve spoken to him I think, for about five minutes … that’s not a problem.

   There’s been a couple of emails over the last week.  He – he understands that – ahh – is very clear that I’m out there trying to help the candidates and do what I can – and that’s where my time is right now.  And he still has his Mayor duties.  And until we can figure out what’s going on in the High Court – whether or not he’s going to be referred – we are just getting on with the job – that we’re supposed to be getting on with.

   Mr Carlton:OK – Interesting developments – ahh behind the scenes – there in the Jacqui Lambie Network.

4. Senator Lambie denied that anything that she said during the Carlton Interview rose to the standard of a threat.  Respectfully, her opinions on that front were of limited (if any) assistance.  In any event (and with respect), I do not share Senator Lambie’s opinion as to the proper character of what was said.

5. It is tolerably clear from the excerpts replicated above that Senator Lambie was of the view (and, more importantly, sought to communicate her view) that, in the event that Mr Martin were to hire either or both of Mr and Mrs Messenger, it would be necessary or prudent to sever his ties to the Jacqui Lambie Network.  Whether that occurred by reason of his resignation (or, perhaps, “forced” resignation, howsoever achieved) from the Jacqui Lambie Network or because Senator Lambie would orchestrate his removal or expulsion in some form was not clarified.  But it was clear enough that Senator Lambie envisaged (and, by her words, should be understood to have threatened) that, in some form or another, a severing of ties as between Mr Martin and the Jacqui Lambie Network would be brought about.

   6.5.2  Illegitimacy

6. Mr and Mrs Messenger alleged (at least by way of submission) that the conduct that was the subject of Senator Lambie’s threat would, if actioned, have been relevantly illegitimate (as opposed to unlawful or unconscionable).  More colloquially, they described it as a “dirty tactic”.

7. I pause to note (if it is not clear enough already) that it was by reason of his membership of the Jacqui Lambie Network political party that Mr Martin was endorsed as a candidate for election to the Senate in 2016; and it was partly by reason of that endorsement (and his consequent inclusion in the Jacqui Lambie Network Senate “ticket” for the July 2016 federal election) that his potential in 2017 for ascent to the office of Senator arose.

8. There are other aspects of context that should bear repeating as well.  By November 2017, Senator Lambie’s relationships with Mr and Mrs Messenger had ended; and, on any view, had ended badly.  As is addressed in some detail above, Mr and Mrs Messenger had seen fit to air all manner of derogatory and demeaning allegations against her, in some cases for consumption by representatives of rival political movements (or their staff).  They had commenced proceedings against her in this court, the defence of which would likely draw upon the involvement of other members of Senator Lambie’s staff.  Even assuming that some of the Messengers’ allegations might have had some truth behind them (which, to be clear, I do only for the sake of argument), it could hardly come as much of a surprise that, by November 2017, Senator Lambie had come to hold strong negative opinions about them.

9. Equally, it could hardly come as a surprise that Senator Lambie would not welcome their engagement as staff in the office of a representative who was elected under the banner of a political movement that bears her name.  Why, it might rhetorically be asked, should it be considered illegitimate for Senator Lambie to hold or express such views, or to say or do things with a view to avoiding what she felt was best avoided?  Having quite obviously formed the view that Mr and Mrs Messenger were not people in whom should be entrusted the advancement of a political movement that she had founded, why shouldn’t she have been able publicly to say so, or to take or threaten lawful action with a view to avoiding that outcome?

10. Respectfully, when those questions (or analogues thereof) were put to them during closing submissions, Mr and Mrs Messenger were unable to offer any convincing response.  In the circumstances that prevailed at the time, I consider that Senator Lambie had a legitimate interest in ensuring that the staff engaged by elected representatives of her party were not openly or apparently hostile to her.  That reality, were it to eventuate, would have obvious adverse ramifications:  it would (or could) have called publicly into question Senator Lambie’s influence over, or the confidence that electors should have in, her own movement.  That being so, the comments that Senator Lambie made (or the threats that were inherent in them) were not disproportionate to the interest that she sought validly to protect.

11. It follows that I do not accept that the action that Senator Lambie threatened, during the Carlton Interview, to take against Mr Martin in the event that he were to hire either or both of Mr and Mrs Messenger was relevantly illegitimate.  It was not alleged to be unlawful or unconscionable.  It could not, then, have been coercive (even if its purpose was to negate Mr Martin’s choices as to whether or not he should hire Mr or Mrs Messenger).

    6.6  Intent

12. Having concluded as I have, it is not necessary to address whether the threat that Senator Lambie made during the Carlton Interview was made with intent to coerce Mr Martin into not employing the Messengers.  Nonetheless, the following observations may be made.

13. First, no evidence was led—either in chief or through cross-examination—as to why Senator Lambie was moved to make the comments that she made during the Carlton Interview. Had I formed the view that the statutory presumption for which s 361(1) provides was engaged, it would necessarily have followed—and I would have found—that Senator Lambie made them with a relevant intent to negate Mr Martin’s choice as to whether he might hire Mr or Mrs Messenger.

14. Second, having formed the opposite view about the application of s 361(1) (see above, section 6.4, [391]-[397]), there is no evidence to establish positively, as Mr and Mrs Messenger must, the state of mind that actuated, or partially actuated, the threat that was made. None can safely (which is to say properly) be inferred from the content of the interview, nor from any other evidence that might serve as surrounding context. Those things being so, I can (and do) make no finding about the Senator’s intention in making the threat that was made.

15. Even if there was some aspect of illegitimacy to that threat, it cannot be said that it was animated (or partly animated) by any intention sufficient to qualify its making as a contravention of s 355 of the FW Act.

    6.7  Conclusion

16. The Messengers’ allegation that, by saying what she said during the Carlton Interview, Senator Lambie contravened s 355 of the FW Act is not made good.

    PART 7:  CONCLUSIONS

17. None of the Messengers’ causes of action is established.  Both applications must (and will), therefore, be dismissed.

18. Section 570 of the FW Act applies to limit the court’s capacity to award costs. It is possible that the respondents might wish to be heard as to whether matters that have not yet been put before the court should bypass those limitations. If either or both of them wish to make a claim or claims for costs (in either or both matters), they may do so in the usual way; preferably after liaising with Mr and Mrs Messenger about appropriate procedural directions. In the meantime, there shall be no order as to costs.

I certify that the preceding four hundred and sixteen (416) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate: 

Dated:       10 June 2022