Federal Court of Australia

Mokhtari v Piacentini & Son Pty Ltd [2025] FCA 26

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application by the applicant for orders for the preservation of documents be determined on the papers.

2.    The interlocutory application be dismissed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Mokhtari brings general protection claims under the provisions of the Fair Work Act 2009 (Cth) against his former employer Piacentini & Son Pty Ltd. His claims are based upon an alleged incident in which he says that he was subjected to 'workplace violence' by another employee as well as the way in which his complaint about the incident was dealt with by his employer. Mr Mokhtari seeks more than $17 million in damages as well as an order that pecuniary penalties be imposed and paid to him. He is conducting the proceedings in person.

2    The proceedings were commenced in February 2024. The events that are said to be relevant to Mr Mokhtari's claim took place in 2023.

3    Mr Mokhtari has been pressing for discovery of various documents by Piacentini & Son. The issue of discovery has been held in abeyance pending clarification of the nature and extent of Mr Mokhtari's claims. At a case management hearing on 24 October 2024, I indicated to the parties that once a defence was filed the proceedings would be referred to a registrar for a conference to be conducted concerning the production of further documents. The conference was to be conducted on the basis that the registrar would provide a report of the outcome of the conference if the parties were unable to agree orders for discovery. I would then consider the orders that would be appropriate to make sure that discovery was kept within reasonable bounds. Orders were made to that effect.

4    An amended defence was filed on 29 November 2024.

5    Mr Mokhtari then expressed concern that there was a need to make orders to preserve documents to ensure that they were available to be produced when required and sought orders in terms of a detailed minute of proposed orders. On 9 December 2024, I made orders for Mr Mokhtari to file and serve written submissions and any evidence in support of his application for proposed orders as to the preservation of documents. I indicated that I would make further procedural orders as to his application once those documents had been filed.

6    Mr Mokhtari has provided submissions and a short affidavit. He says that in August 2023 there was an update to a computing software program used by Piacentini & Son that compromised the 'audit trail'. He says that correspondence from Piacentini & Son 'highlights document accessibility issues'. The correspondence to which he refers was an email from lawyers acting for Piacentini & Son in response to a request from Mr Mokhtari. The email included the following:

Please find the following documents attached as requested:

1. Piacentini & Son Performance Management Procedure; and

2. Piacentini & Son Grievance Procedure.

We have been instructed that our client does not currently have, and has not previously had, a 'Redundancy Policy'.

Similarly, we have also been instructed that Piacentini & Son's 'MyOsh' system was updated on or around August 2023 and that, because of this, any screenshot in relation to the above policies being uploaded to 'MyOsh' would reflect the date of the system update rather than the date on which such policy was uploaded.

However, we note that the attached documents contain the date of issue at the bottom of each page in any event.

7    Based upon that communication Mr Mokhtari has expressed concern that critical documents will be lost because of risks such as system limitations on access to historical records and further system updates could cause 'additional data loss', documents may be subject to routine deletion and Piacentini & Son has demonstrated reluctance to provide documents.

8    As explained below, I am not persuaded that the affidavit of Mr Mokhtari provides any basis for the orders he proposes which concern the preservation of a detailed list of documents said to be in the possession of Piacentini & Son. Further, the orders sought by him would circumvent the proposed registrar's conference to be convened to ensure that discovery is kept within reasonable bounds.

9    In those circumstances, it is not necessary or appropriate to call upon Piacentini & Son to provide any answering material to the application or convene an interlocutory hearing. Rather, the appropriate course is for the application to be heard and determined on the papers and for the application to be dismissed.

10    The email communication does not suggest that any steps are being taken by Piacentini & Son to alter its records in any way or that there is some process of routine deletion of documents that might mean that documents of relatively recent origin (noting that the relevant events occurred in 2023) may be destroyed. There is no evidence to suggest that the system update occurred other than in the ordinary course of business. It is a past event of a kind that does not suggest that future steps may be taken that would compromise the available records.

11    The list of documents the subject of the proposed preservation orders includes the native files and logs from MyOsh for all revisions to various procedures including those undertaken before 5 April 2023. On the assumption that information of that kind is sufficiently relevant to the issues in the proceeding to require production by way of discovery (a matter about which I express no view), all that is suggested by the email is that screenshots that might now be taken of the state of the electronic record would reflect the date of the update to the system in August 2023. That is not a matter which would support the broad contention made by Mr Mokhtari that there is some foundation for a present concern that steps may be taken which would mean that relevant evidence would be destroyed.

12    Mr Mokhtari's application for preservation orders is to be considered in the context of the obligation of any party to court proceedings to preserve relevant evidence. An allegation of breach of that obligation is a serious one. The affidavit of Mr Mokhtari fails to establish any adequate foundation for a concern that Piacentini & Son may fail to preserve relevant evidence unless some form of order is made. Piacentini & Son is represented by lawyers and counsel. They are aware of the extent of the discovery sought by Mr Mokhtari. It may be expected that they will take steps to ensure that their client maintains the existing record.

13    Having regard to the orders that have been made, the appropriate way to raise issues in relation to discovery is at the conference before the registrar.

Associate:

Dated:    29 January 2025