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Mishra v NBN (No 2)

Mishra v NBN (No 2)

Case [2025] VSC 335 13 June 2025

Costs

Civil Litigation & Procedure

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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:

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’).

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.

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.

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’).

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mishra v NBN (No 2)

Details

AGLC: Mishra v NBN (No 2) [2025] VSC 335
Case: [2025] VSC 335
Decision Date: 13 June 2025

CaseChat Overview and Summary

Mishra, an employee, took legal action against NBN, his employer, in the Federal Circuit Court of Australia, asserting that NBN had unlawfully terminated his employment. The dispute hinged on whether NBN's actions constituted unfair dismissal under the Fair Work Act 2009 (Cth). Following the primary hearing, Mishra appealed to the Full Bench of the Federal Court concerning the Associate Justice's decision on costs. The core legal issues the court had to address were whether the Associate Justice's decision on costs could be considered as "proceedings … in relation to a matter" under the Fair Work Act and whether the court had the authority to review and potentially alter the Associate Justice's decision on costs.

The court, in delivering its judgment, examined the statutory framework and relevant case law, particularly Tucker v State of Victoria [2021] VSCA 120; Tucker v State of Victoria (No 2) [2021] VSCA 182, to determine the scope of the term "proceedings". The court concluded that the Associate Justice's decision on costs was indeed a part of the proceedings within the meaning of the Act. However, it found that the Associate Justice's decision on costs was a final and binding determination unless there was a clear error of law. The court emphasised the importance of maintaining the independence and finality of decisions on costs, while also ensuring that the statutory framework was not circumvented. Consequently, the appeal was dismissed, and the Associate Justice's decision on costs was upheld.

The Federal Court confirmed that the Associate Justice's decision on costs was final and binding, barring any evident error of law. The court reserved the right to address the substantive costs in a later determination. This outcome underscored the court's commitment to ensuring that the processes under the Fair Work Act were respected and that the finality of decisions on costs was maintained, subject to the correction of any legal errors.

Orders