The substantive decision
18 It is prudent at this juncture to make some observations about the Primary Judgment and the cases that were advanced at the trial.
19 By their further amended statements of claim, the Messengers each advanced three causes of action. The first was that they were subjected to adverse action (principally in the form of the termination of their employment) in contravention of s 340(1) of the FW Act. The second was that the first respondent had contravened the FW Act by failing to pay them in lieu of notice of those terminations in accordance with the terms of an applicable enterprise agreement. The third was that the second respondent had contravened s 355 of the FW Act by threatening to take action against a third party with intent to coerce him to not employ them.
20 All three causes of action were dismissed. The court's reasons for dismissing them speak for themselves; but it is convenient to summarise a small number of matters that bear upon the present applications.
21 The trial of the proceedings extended over 16 days. The court's reasons for judgment (at [12]-[17]) contained the following observations relevant to that:
…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.
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.
…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.
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.
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.
…[T]hose 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.
22 The Messengers' adverse action cases proceeded on the basis that they had each been dismissed because, or for reasons that included that, they had made complaints or inquiries that they were able to make in relation to their employment (and had, thereby, exercised "workplace rights" of the kind recognised by s 341(1)(c) of the FW Act). At the trial of the matters, evidence was led of a voluminous array of discussions and written communications that were said to have given voice to the complaints or inquiries upon which the Messengers relied. In the court's reasons for judgment, each such species of complaint or inquiry was addressed; but, in advance of that analysis, the following observations were made about the Messengers:
Mr and Mrs Messenger did not present as credible witnesses. Throughout the trial, they were consistently argumentative, and exhibited the clearest and most constant desire to exact upon the Senator as much reputational damage as they could by ventilating the many and various matters about which they claimed to have complained during their employment. Much of what they said - particularly about some of the communications that they claim to have made early on in the Relevant Period - had a distinct air of reinvention to it. Mr Messenger, in particular, appeared very carefully to curate his evidence such that he might more easily characterise the discussions that he recounted as complaints or inquiries related to his employment. Despite repeated warnings from the court - stated in escalating terms over the course of the trial - he exhibited an unrelenting tendency to air matters of scandal prejudicial to Senator Lambie, most apparently for the consumption of media representatives who observed and reported on the trial. His evidence appeared calculated and, at times, vengeful.
Mrs Messenger exhibited similar tendencies. She frequently overstated matters in the service of her case and regularly punctuated her evidence with gratuitous observations - usually slurs - self-evidently designed to humiliate or disgrace the Senator. Like Mr Messenger, she proceeded at times throughout both her evidence and her conduct of the trial more broadly as though the proceedings served as some form of judicial inquiry into the many and varied character shortcomings that she attributes to Senator Lambie. She, too, was warned against doing so; but, all too often, those warnings appeared not to dent her enthusiasm.
23 The Primary Judgment then set about exploring the complaints or inquiries that the Messengers said that they had advanced during their time in the second respondent's office; and, in particular, whether there had been communications amounting to the exercise or exercises of workplace rights. With one exception, it was concluded that the Messengers had not partaken of any communications that sufficed to amount to the exercise of a workplace right. That was so for varying reasons, including:
(1) that some of the communications that were said to have been made were, in fact, not made;
(2) that some of the communications that were made did not assume the form of complaints or inquiries;
(3) that some of the complaints or inquiries that were made were not complaints or inquiries that were made in relation to the Messengers' employment; and
(4) that some of the complaints or inquiries that were made were not complaints or inquiries that the Messengers (or either of them) were relevantly "able to make" for the purposes of s 341(1)(c)(ii) of the FW Act.
24 Over the course of the analysis, the court had occasion to make some unflattering observations about many of the communications (or species of communications) upon which the Messengers relied. Some were said to have been exaggerated or embellished; others were said to have been unremarkable communications that the Messengers had sought to revise, reinvent or repurpose as complaints or inquiries. Many were recognised as vehicles through which the Messengers sought, either at the times that they were made or by their ventilation in these proceedings, to visit a measure of humiliation upon the second respondent.
25 There was, nonetheless, one occasion on which the court recognised that the Messengers had exercised a workplace right by making a complaint or inquiry that they were able to make in relation to their employment. It concerned discussions that the Messengers had with the second respondent following receipt of a death threat that had been issued to her Burnie, Tasmania office. That occurred in February 2015 and the relevant discussions followed shortly thereafter. The court ultimately accepted that, when she resolved to dismiss each of the Messengers in May 2017, the second respondent was not actuated in any way by their having made that species of complaint or inquiry.
26 The Messengers' case under s 50 of the FW Act was straightforward. It presupposed that they were entitled either to notice of the termination of their employment or payment in lieu thereof. They received neither. The respondents contended that they were not entitled to notice or payment in lieu thereof because they were summarily dismissed for serious misconduct. This aspect of the Messengers' claims thus turn upon whether or not that was so.
27 Two instances of serious misconduct were advanced against the Messengers. The first concerned the content of correspondence that they sent in March and April 2017 to, amongst others, the office of the then Prime Minister, the Hon. Malcolm Turnbull MP. It is unnecessary to revisit its content; save to note that it was highly critical of the second respondent.
28 The second instance of serious misconduct concerned events that transpired on Friday, 24 March 2017. On that day, another employee (or former or soon-to-be former employee) of the second respondent's office, Mr Walker, attended at the Messengers' home, whereupon a statutory declaration was prepared, which he later signed. Again, the content of that declaration need not be revisited, save to note that it too was highly critical of the second respondent. The Messengers were alleged to have been instrumental in its preparation.
29 On both fronts, the court accepted that the Messengers had engaged in serious misconduct sufficient to disentitle them to the amounts that they said had been wrongly withheld.
30 The Messengers' case under s 355 of the FW Act concerned a radio interview in which the second respondent participated on 28 November 2017, after the present proceedings had been instituted. During that interview, the second respondent - who, at that time, had ceased to be a member of the Australian Senate - was asked about the prospect that her proposed successor, Mr Martin, might employ one or both of the Messengers. The second respondent indicated that, were that to transpire, steps would be taken to sever ties between Mr Martin and the Jacqui Lambie Network political party. The Messengers alleged that that threat amounted to coercion, which the second respondent visited upon Mr Martin in contravention of s 355 of the FW Act.
31 The court rejected that submission. I concluded, instead, that the threat that the second respondent had made was not relevantly unlawful, unconscionable or illegitimate; and, therefore, was not relevantly coercive. Some observations were made about the manner in which that aspect of the proceedings had been pleaded but it is not necessary to recite them here.