Two of Tasmanian senator Jacqui Lambie's former staffers have been ordered to pay tens of thousands of dollars in costs because of their "unreasonable conduct" in a court case they ultimately lost.
Robert and Fern Messenger had worked for Senator Lambie as her chief of staff and office manager.
In June, they lost an unfair dismissal case they brought against her, claiming they were unfairly dismissed in May 2017 after complaints about workplace health and safety.
Justice John Snaden found none of the Messengers' allegations stacked up, and that their evidence at trial was at times "vengeful".
On Wednesday, Justice Snaden handed down his decision relating to costs of the case, ordering the Messengers each pay $47,300 to the Commonwealth.
Combined, the payments represented about 55 per cent of the costs incurred by the Commonwealth as a consequence of what the judge called "the Messengers' unreasonable conduct".
While Justice Snaden did not agree with all of the "unreasonable conduct" alleged by the Commonwealth against the Messengers, he did find that they acted unreasonably by filing large amounts of irrelevant evidence; by filing 17 notices to admit; and by extending the length of the trial because of their "insistence on exploring matters that bore no connection with anything that they had pleaded".
'Large amounts of irrelevant evidence'
Justice Snaden said the Messengers — who did not have legal representation at trial — filed material in March 2019 and then "pressed the court to grant them leave to issue subpoenas to dozens of irrelevant witnesses".
"The Messengers were not at liberty here to press for subpoenas requiring the attendance at court of dozens of witnesses — including senior political figures, journalists and even members of [Senator Lambie's] family — who had no connection whatsoever with any of the causes of action that were pressed and whose presence at the trial was seemingly sought merely to smear [Senator Lambie]," he said.
Justice Snaden said the 17 notices to admit, served by the Messengers between August 2019 and August 2020, overwhelmingly, if not exclusively, "touched upon matters of scandal related to [Senator Lambie], sometimes repetitively and never in a way that bore any obvious connection with any issue raised by their pleaded cases".
"To a large degree, they were designed to elicit admissions regarding the many and varied character flaws that the Messengers attribute to [Senator Lambie]."
Justice Snaden said repeating those notices in his judgement "is beneath the dignity of the court".
"I have no hesitation in accepting that their conduct in that regard was unreasonable, and, in my view, it was plainly so," he said.
The trial length
Justice Snaden said he accepted the trial — which ran for 16 days in 2020 and 2021 — "was extended unreasonably by the Messengers' insistence on exploring matters that bore no connection with anything they had pleaded".
He said, however, the slow pace of the trial could not, and was not sought to be, attributed to the Messengers alone.
"The trial was an extremely difficult affair," he said.
Justice Snaden said it was conducted entirely by remote means and there were large amounts of documents associated with the case.
He said it was also, at times, a source of obvious emotional distress to the Messengers.
"All of those things [and others] cost time," he said.
"The Messengers did their best to confine themselves to what they thought required ventilation before the court. At times, they expressed awareness and regret that their inexperience with the legal process was causing the proceedings to drag on longer than they otherwise might have.
"That was plainly a source of some concern or embarrassment to them, and they sought to apply themselves to the demands of the trial with courtesy and diligence.
"Nonetheless, there were undoubtedly times throughout the trial during which they were … unable to contain the obvious personal animus that they reserve for [Senator Lambie]."
Relationship turned 'positively toxic'
Justice Snaden said he was unable to find that the case was brought "vexatiously", as argued by the Commonwealth and Senator Lambie.
He said it was "plain to see" that the relationship between the Messengers and Senator Lambie had soured in the second half of 2016, and by March 2017 was "positively toxic".
"At the point that their employment in [Senator Lambie's] office came to an end, the relationships were spiteful and venomous.
"It isn't difficult to accept that the poisonous situation was probably at least a reason why the Messengers were moved to institute their proceedings. But so to acknowledge is not to foreclose upon the likelihood that another was the vindication of rights upon which the Messengers perceived that the [Commonwealth and Senator Lambie] had transgressed," he said.
"No doubt, when they instituted their proceedings, the Messengers had multiple objectives in mind. Vengeance would seem to have been one of them.
"But I am not persuaded that it was the predominant purpose such that it might now be said that the proceedings were instituted vexatiously."
Justice Snaden also rejected the Commonwealth's claim that the proceedings were instigated "without reasonable cause", and rejected Senator Lambie's claim that the Messengers' rejection of her offer to compromise was unreasonable.
Justice Snaden said the Messengers, "even assuming that there was some unreasonableness to their conduct … they highlight the fact that they appeared for themselves, that they 'did their best' and that the [Commonwealth and Senator Lambie] enjoy reasonable means", but that "none of those things suffices to persuade me that I should not make an order for costs".
