Mishra v NBN (No 2)

[2025] VSC 335

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2022 00385

ABHISHEK MISHRA	Plaintiff
v
NBN CO LTD (ABN 86 136 533 741)	First Defendant
and
ERNST & YOUNG (A FIRM)	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 June 2025
CASE MAY BE CITED AS:	Mishra v NBN (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 335

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COSTS – Appeal from an Associate Justice – Whether ‘proceedings … in relation to a matter’ under the Fair Work Act 2009 (Cth) – Fair Work Act 2009 (Cth), s 570 – Tucker v State of Victoria [2021] VSCA 120; Tucker v State of Victoria (No 2) [2021] VSCA 182 considered – Costs reserved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	JG Levine	Matrix Legal
For the First Defendant	PG Liondas KC with JT Waller	Webb Henderson
For the Second Defendant	No appearance

HIS HONOUR:

1. On 20 May 2025, I allowed an appeal from an order granting summary judgment in respect of part of the plaintiff’s claim against the first defendant.[1]

   [1]Mishra v NBN Co Limited & Anor [2025] VSC 273 (‘Mishra’).

1. Consequently, order 1 of the orders made by the Associate Justice on 13 May 2024 was set aside.  By order 2 of those orders, the costs of, and incidental to, the first defendant’s summons dated 18 September 2023 had been reserved.

1. Upon the publication of reasons for judgment, counsel for the first defendant explained that the costs of the summons had earlier been reserved (by consent) because of an unresolved dispute relating to s 570 of the Fair Work Act 2009 (Cth) (‘FW Act’).  In the course of argument, it became apparent that the issue may also be said to affect the costs of the appeal.

1. The parties subsequently filed and served short written submissions.[2]  The issue is to be determined on the papers.

   [2]Plaintiff’s outline of submissions on costs filed 28 May 2025 (‘Plaintiff’s submissions’); Submissions of NBN Co Ltd on the question of costs filed 4 June 2025 (‘First defendant’s submissions’).

1. Section 570 of the FW Act provides, relevantly, as follows —

570     Costs only if proceedings instituted vexatiously etc.

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

…

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

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

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

(c)       the court is satisfied of both of the following:

(i)the party unreasonably refused to participate in a matter before the FWC;

(ii)the matter arose from the same facts as the proceedings.

1. It will be evident that, if it applies, s 570 constrains the discretion of the Court to make orders for costs.

1. The present issue is whether s 570 applies. In particular, whether the proceedings relate to a matter arising under the FW Act.

1. In his written submissions, the plaintiff contends that he succeeded in the appeal and that costs should ordinarily follow the event.[3] As to s 570(1) of the FW Act, he submits that —

   [3]Plaintiff’s submissions (n 2) [2].

(a)   the proceedings do not involve a matter arising under the FW Act because no relief has been sought under its provisions;[4]

[4]Ibid [4]-[7].

(b)  the claims in contract and under the Whistleblower protections are not part of a ‘single controversy’;[5]

[5]Ibid [8]. Cf Mishra (n 1) [1(e)].

(c)   the plea in respect of the FW Act is ‘so minor’ that ‘it’ should be held not to relate to a matter arising under the FW Act;[6]

(d)  the appeal did not constitute or involve a matter arising under the FW Act;[7] and

(e)   the appeal was primarily in respect of the Whistleblower protections and involved questions of law ‘separate and distinct’ to the factual issues in the proceeding.[8]

[6]Ibid [9].

[7]Ibid [10]

[8]Ibid [11]-[16].

1. For its part, the first defendant submits that the ordinary position does not obtain if s 570 applies.[9] In that connection, it submits that s 570 may presently apply because —

(a)   the plaintiff claims that certain entitlements were implied into his contract of employment by operation of the FW Act; and

(b)  in particular, the plaintiff claims damages for breach of contract, including an alleged failure to give reasonable notice of termination.[10]

[9]First defendant’s submissions (n 2) [2].

[10]First defendant’s submissions (n 2) [3].

1. That said, the first defendant submits that the applicability of s 570 should not be resolved ‘at this juncture’ because —

(a)   the proper characterisation of the proceeding cannot finally be answered at this point;[11]

(b)  there would be a risk of later and inconsistent findings;[12] and

(c)   for practical reasons, the respective positions of the parties are likely to depend upon which party enjoys ultimate success in the proceeding.[13]

[11]Ibid [5]–[6].

[12]Ibid [7].

[13]Ibid [8].

1. I should add that the first defendant also takes issue with various propositions advanced in the plaintiff’s written submissions.  In particular, the first defendant submits that —

(a) if s 570 is engaged, it applies to ‘the whole proceeding’, including any subsidiary application made;[14]

(b) if the matter under appeal is one to which s 570 applies, then s 570 would also apply to an appeal from that matter;[15] and

(c)   it is questionable whether the present appeal is a separate proceeding.[16]

[14]Ibid [10]–[11].

[15]Ibid [12].

[16]Ibid [13].

1. In the circumstances, the first defendant submits that the costs of the appeal should be reserved.[17]

   [17]Ibid [4].

1. The competing written submissions refer to various authorities concerning s 570 of the FW Act, as well as predecessor and similar provisions.[18]

   [18]In particular, Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2003) 129 FCR 271; Shackley v Australian Croation Club Ltd (1996) 141 ALR 736; Stanley v Service to Youth Council Inc (No 3) (2014) 225 FCR 357 (‘Stanley (No 3)’); BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 226 FCR 240; Joseph v Parnell Corporate Services Pty Ltd (2021) 284 FCR 546 (‘Joseph’); Tucker v State of Victoria (No 2) [2021] VSCA 182 (‘Tucker (No 2)’); Drummond v Canberra Institute of Technology (No 2) [2023] FCA 422 (‘Drummond’); Dandah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102.

1. Many authorities speak to the purpose of s 570. For example, in Ryan v Primesafe,[19] Mortimer J (as her Honour then was) stated —

The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. In so far as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.[20]

[19](2015) 323 ALR 107.

[20]Ibid 122 [64].

1. In that general connection, in Joseph v Parnell Corporate Services Pty Ltd, Logan, Katzmann and Snaden JJ confirmed that ‘s 570 is remedial and beneficial and should therefore be interpreted beneficially’.[21]

   [21]Joseph (n 18) 571 [115].

1. The relevant statutory history, as well as several relevant and important authorities,[22] were surveyed by the Court of Appeal in Tucker v State of Victoria (‘Tucker’).[23]

   [22]In particular, Re Polites; ex parte The Hoyts Corporation Ltd (1991) 173 CLR 78; Re McJannet; ex parte The Australian Workers’ Union of Employees, Queensland (No 2) (1997) 189 CLR 654; Stanley (No 3) (n 18); Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342.

   [23][2021] VSCA 120 (‘Tucker’).

1. In that connection, Kyrou, McLeish and Sifris JJA stated several presently relevant propositions, including that —

(a) s 570 will be engaged if ‘a right or duty sought to be enforced owes its existence [to the FW Act]’;

(b)  what is required is a ‘relevant relationship’ between the proceeding and a matter arising under the FW Act; and

(c)   that a proceeding encompasses ‘multiple matters, claims, or causes of action, only some of which arise under the [FW Act], will not take the proceeding as a whole, or any part of it, outside the scope of the provision’.[24]

[24]Tucker (n 23) [406].

1. In that context, their Honours stated —

[412]    The cases … all show that it is not necessary to have a claim for relief under the FWA [FW Act] in order for there to be a matter arising under the FWA. The associate judge erred, in our view, in approaching the case on the basis that the applicant needed to plead a case based on s 50 of the FWA in order for s 570(1) to apply. With respect to the associate judge, we do not think that Melbourne Stadiums [Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221] can be distinguished on the basis that it involved claims made under the FWA.

[413]    The fact that, in one way the case was pleaded, the rights relied upon by the applicant owed their existence to the FWA (specifically, ss 54 and 185) sufficed to mean that the matter constituting the justiciable controversy arose under the FWA.  The whole proceeding was one in relation to that matter even though it included claims based in common law or the PAA [Public Administration Act 2004].  The fact that the associate judge did not need to deal with any claim relying upon, or specifically brought under, the FWA does not alter that position.

1. Later, the Court of Appeal was required to consider the costs of the particular application for leave to appeal.  In that connection, Kyrou, McLeish and Sifris JJA stated —

The parties accepted that our conclusion in respect of the Trial Division proceeding meant that the section applied also to the three appeals in this Court. That result follows from the fact that the appeals constituted proceedings for the purposes of s 570 and the appeals were in relation to the same matters as those which arose under the FWA in the Trial Division.[25]

[25]Tucker (No 2) (n 18) [5].  See also Drummond (n 18) [9]–[10].

1. In light of the above, it seems to me that the first defendant was right to at least counsel caution in respect of several of the propositions advanced in the written submissions of the plaintiff.

1. That said —

(a)   the circumstances in the cases to which I was referred are not precisely on all fours with the present (although it might be said that the relevant circumstances in Tucker seem to have had at least some similarity with those in the present case); and

(b)  the relevant circumstances of the present case seem to me to be very uncertain.

1. In connection with the latter point, the plaintiff’s further amended statement of claim pleads claims against the first defendant in contract, breach of fiduciary duty and breach of the Whistleblower protections in pt 9.4AAA of the Corporations Act.  There are also claims pleaded against the second defendant.

1. For presently relevant purposes, those pleadings seem to include allegations that —

(a)   the FW Act operated to imply certain terms into the contract of employment made between the plaintiff and first defendant;[26] and

(b)  in various respects the first defendant breached the contract of employment, as a consequence of which the plaintiff suffered loss and damage.[27]

[26]UAB 58–60 [4], [5(h)–(l)].

[27]UAB 65–7 [10]–[11].

1. That said, none of the pleaded breaches, or loss and damage there particularised, seem to have anything to do with the terms said to have been implied by operation of the FW Act.

1. Nonetheless, the plaintiff’s particulars of loss and damage subsequently identified the following item —

Failure to provide reasonable notice of termination – one year of salary of $170,000.[28]

[28]UAB 79 [2].

1. However —

(a)   the stated item does not link specifically to any pleaded breach;

(b)  the only seemingly relevant term claimed to be ‘required’ by the FW Act is stated as follows —

The First Defendant may terminate the Employment Agreement upon one months [sic] notice (with one month’s remuneration (gross) payable if the termination is immediate) or such longer period as required by the Fair Work Act 2009 (Cth) (clauses 9, 10 and 15.2 of Standard Term).[29]

(c)   therefore the pleaded term does not link perfectly (or perhaps at all) with any pleaded breach, or the later stated particular of loss and damage.

[29]UAB 60 [5(l)].

1. For his part, the plaintiff presently acknowledges that he makes claims in contract ‘in which there are some particulars and terms pleaded under the FW Act’.  In that regard, however, his point seems to be that ‘no claim for relief has been made pursuant to the FW Act’.[30]  As I have noted, such a feature would not necessarily preclude the proceedings from being characterised as relating to the FW Act.

   [30]Plaintiff’s submissions (n 2) [7].

1. In short —

(a)   it may be that the proceeding (including the appeal) is properly to be characterised as relating to the FW Act;

(b)  that said, the plaintiff’s pleading is not exactly a model of clarity; and

(c)   any relevant allegation made concerning the requirements of the FW Act seems to be particularly obscure.

1. In the circumstances, it does not presently seem to me to be likely to be productive to conduct a further investigation into the true import of the allegations intended to be pursued by the plaintiff at trial. It is sufficient to say that in the presently apparent circumstances, I accept that s 570 of the FW Act may ultimately be found to apply to the proceeding and, in turn, the appeal.

1. Having regard to the unusual features to which I have referred, however, I also accept that, at this particular point, it is not desirable to come to any firm and final view concerning the application of s 570 of the FW Act when —

(a)   there does seem to me to be a significant risk that such a characterisation could be contradicted by later events (particularly at trial); and

(b)  the respective positions of the parties may well come to alter significantly depending upon how matters ultimately unfold.

1. In the circumstances —

(a)   it seems to me to be desirable that the present issue be determined at a later point and when the position is tolerably clear (perhaps at, and in the context of, any trial);

(b)  I accept the submission of the first defendant that the costs of the appeal should presently be reserved.

1. Such an approach, and order, is, of course, also broadly congruent with order 2 made by consent on 13 May 2024.

1. For completeness, I should note that the plaintiff submits that an order should be made dismissing the first defendant’s summons dated 18 September 2023.[31]  The first defendant does not oppose the making of such an order, although it seeks that the costs associated with paragraph 4 of the summons be in the cause.[32]

   [31]Plaintiff’s submissions (n 2) [1].

   [32]First defendant’s submissions (n 2) [14].

1. As an order dismissing the summons does not appear controversial, it will be made.  However, the further order sought by the first defendant will not be made as, for the reasons broadly sought to be outlined, the entire issue of the costs relating to the summons and subsequent appeal should presently stand reserved.

1. Orders consistent with the above will be provided to the parties together with these reasons.