Alvarez Nino v Kuksal (No 3)
[2022] FedCFamC2G 650
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alvarez Nino v Kuksal (No 3) [2022] FedCFamC2G 650
File number(s): MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Judgment of: JUDGE FORBES Date of judgment: 15 August 2022 Catchwords: FAIR WORK – small claims procedure – application to file affidavit annexing documents obtained pursuant to Freedom of Information request – relevance of documents – admissibility – overarching purpose and efficient management of litigation Legislation: Evidence Act 2008 (Vic) s 55, 58, 69, 135, 138, 183
Fair Work Act 2009 (Cth) s 548, 550
Freedom of Information Act 1982 (Cth)
Cases cited: Alvarez Nino v Kuksal [2022] FedCFamC2G 401
Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548.
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 15 July 2022 Date of hearing: 4 July 2022 Place: Melbourne Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Applicants: Mr S Bunce Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Applicants: JobWatch Inc Counsel for the First Respondent: In Person Solicitor for the First Respondent: Erudite Legal ORDERS
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: WILMER JAHIR ALVAREZ NINO
First Applicant
ANA MELISA GARCIA CALVO
Second Applicant
JUAN CAMILO RIOS LONDONO (and others named in the Schedule)
Third Applicant
AND: SHIVESH KUKSAL
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
15 AUGUST 2022
THE COURT ORDERS THAT:
1.
The Applicants are granted leave to file the affidavit of Gabrielle Marchetti dated
30 June 2022.
2.The matter will remain listed for Final Hearing on 29 and 30 August 2022 at 10:15am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES:
This matter was listed for final hearing on 4 July 2022. This was the fourth occasion on which the matter had been listed for final hearing, the previous occasions having been adjourned for various reasons as set out in the background to my decisions in Alvarez Nino v Kuksal [2022] FedCFamC2G 401 and Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548.
In the months prior to the most recent hearing date, both the applicants and the respondent had filed and served a number of subpoenas, including upon the Fair Work Ombudsman (“the FWO”), seeking production of documents purportedly relevant to issues in dispute. Various subpoenas issued by the parties were the subject of objection.
On 27 May 2022, I made orders referring the subpoena objections to a Registrar of the Court. I did this in the hope that procedural disputes could be resolved prior to trial. The Registrar convened a hearing of the parties on 15 June 2022 and all objections, bar one, were determined that day. The outstanding matter involved an objection by the respondent to a subpoena from the applicants addressed to Sandra Parker from the FWO.
The applicants’ subpoena to Sandra Parker was issued on 24 February 2022 and reissued on
3 March 2022. The subpoena[1] is broad ranging and seeks the production of documents. Among other things, the subpoena seeks the production of copies of any complaints made to the FWO by any person who worked (either as an employee or contractor) for the respondent Mr Kuksal or companies owned and controlled by him, namely Kornucopia Pty Ltd (ACN 615 630 316) and Avant-Garde Ventures Pty Ltd (ACN 620 447 789) from any time up to and including 27 January 2018. The subpoena also seeks productions of copies of all documents or notes in the possession of the FWO concerning any complaints made by any person who worked for Mr Kuksal and/or one of those companies. The subpoena seeks correspondence between FWO and Mr Kuksal and/or the relevant companies including compliance letters, formal warnings and records of telephone conversations. It also seeks details of any visits made by the FWO to the locations where work was carried out by, for and on behalf of
Mr Kuksal and/or those companies during the relevant time period.
[1] CB18-27
The respondent’s objections to that subpoena could not be determined by the Registrar and this issue has returned to me.
It is to be noted that on 4 March 2022 Mr Kuksal issued his own subpoena[2] directed to the FWO seeking the attendance of an officer to give evidence at the hearing. No objection was raised by the applicants to that subpoena and I was informed that a Mr Hoare in fact attended Court in response to the subpoena. Mr Kuksal subsequently informed the Court that he did not intend to press that subpoena.
[2] CB29-36
On 30 June 2022 the applicants’ solicitor, Ms Marchetti, deposed to an affidavit[3] (“the Marchetti affidavit”) attaching various documents which had been obtained from the FWO in response to a request made pursuant to the Freedom of Information Act 1982 (Cth). An application in a proceeding was also filed by the applicants seeking leave to file and rely upon the Marchetti affidavit and the various documents annexed to that affidavit.
[3] CB41-169
As can be seen from the decision by the FWO to release the documents (a copy of which was annexed to the Marchetti affidavit[4]), it appears that the Freedom of Information application (“FOI application”) made by the applicants was similar in scope to the subpoena which was directed to Sandra Parker on 24 February 2022. In other words, by their FOI application the applicants have been able to obtain the documents which they were otherwise seeking to be produced under the subpoena which is the subject of Mr Kuksal’s objection.
[4] CB45-50
Counsel for the applicants explained that the FOI application had been made because of procedural difficulties resulting in delays to the Court determining the objections to the subpoena.
The Marchetti affidavit and the various documents obtained from the FWO were served on
Mr Kuksal. Mr Kuksal was notified by email on 29 June 2022, 2 days before the final hearing, that the applicants would be seeking leave to file the Marchetti affidavit and rely upon the FOI material. The further copy of the Marchetti affidavit and the FOI documents was included in the Court Book which was electronically served upon the respondent at 4:03 PM on the evening before the hearing.
At the commencement of the hearing on 4 July 2022, Mr Bunce for the applicants sought leave to file the Marchetti affidavit. He explained that the applicants wish to rely upon the FOI material, or at least parts of it, as it was highly relevant and probative, particularly as to the state of knowledge of the respondent in relation to the applicants’ accessorial liability case against him.
Mr Kuksal objected to the application on various bases. First, he contended that the application for leave to rely upon the affidavit and documents had been made without notice to him. He said that he had not seen the affidavit. He subsequently conceded that the document had been received by his office at Erudite Legal but that he had not read it. He said that he could not be expected to put everything to one side and that he did not have time to go through the documents.
Furthermore, Mr Kuksal submitted that the application was prejudicial to his interests. He described the application as a deliberate tactical ploy to ambush him, submitting that the application was procedurally unfair and reminded the Court of its earlier orders, including an order that no party could file further affidavits without leave.
Regrettably, this preliminary procedural point became overwhelmed by other issues including Mr Kuksal seeking a stay of the proceedings after informing the Court that he had taken steps that day to apply for an urgent injunction in the Federal Court of Australia. After I did not accede to his application for a stay, Mr Kuksal then made a further application that I recuse myself. I also dismissed that application and my reasons for so doing were subsequently set out in Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548.
Notwithstanding these tangential issues, Mr Bunce pressed his application for leave to file the Marchetti affidavit and rely upon the FOI documents. He submitted that the FOI documents were relevant to the issues in dispute and admissible on various bases. He submitted that the provenance of the FOI documents were not in question and that as business records of the FWO they fell within the exception to the hearsay rule in the Evidence Act 2008 (Vic) (“the Evidence Act”). Mr Bunce also submitted that if the Court did not grant leave to file the Marchetti affidavit, the applicants would call on the subpoena addressed to Ms Parker.
Mr Kuksal opposed the application and impressed upon the Court (quite incorrectly) that he was exposed to civil penalties in the proceedings and for that reason the Court should exercise its discretion to exclude evidence which is highly prejudicial and of little probative value. He contended that the business record exception to the hearsay rule in s 69(2) of the Evidence Act did not apply to documents created by the FWO because these documents had been prepared for or obtained for the purpose of conducting proceedings against him or in connection with an investigation relating to a criminal proceeding.
Furthermore, in relation to the transcript of a conversation between Mr Kuksal and an officer of the FWO, he submitted that as he had sought advice from the FWO regarding various matters and that the conversation was therefore subject to a claim for legal professional privilege.
As matters unfolded it became evident that it would not be possible for the trial of the matter to proceed in an efficient manner without resolution of this threshold issue regarding the FOI documents. It was also plain that it was in the interests of justice for the trial of the matter not to be overwhelmed by ongoing procedural disputation. Accordingly, I made the following orders and notations:
THE COURT ORDERS THAT:
1. The further hearing of these applications will be adjourned to the 29 and 30 August 2022 at 10:15am.
2. By no later than 15 July 2022 at 4:00pm, the Applicants are to file and serve a submission of no more than 5 pages which identifies which of the documents annexed to the affidavit of Gabrielle Marchetti dated 30 June 2022 (“the FOI documents”) the Applicants will seek to rely on and the basis upon which the Applicants contend that those documents are admissible in these proceedings.
3. By no later than 29 July 2022 at 4:00pm, the Respondent is to file and serve a reply of no more than 5 pages regarding the admissibility of the FOI documents identified by the Applicants.
4. By no later than 15 July 2022 at 4:00pm, the Applicants shall file and serve a list of the affidavits that they will seek to tender into evidence in support of the applications.
5. By no later than 29 July 2022 at 4:00pm, the Respondent shall file and serve a brief submission of no more than 5 pages identifying any objection he has to the admissibility of the affidavits on which the Applicants intend to rely.
6. By no later than 29 July 2022 at 4:00pm, the Respondent must file and serve any further affidavit upon which the Respondent seeks to rely in these proceedings.
7. By no later than 5 August 2022 at 4:00pm, the Applicants may file and serve a submission of no more than 5 pages as to any objection they may have in relation to any further affidavit filed by the Respondent pursuant to Order 6.
8. After the exchange of submissions, the Court may convene a case management hearing at which evidentiary objections shall be determined.
AND THE COURT NOTES THAT:
A. The Court has made these orders with a view to ensuring the matters can proceed without further procedural disputes on 29 and 30 August 2022.
B. The parties are reminded of the overarching purpose of civil practice and procedure, being the facilitation of the just resolution of disputes:
(a) According to law; and
(b) As quickly, inexpensively and efficiently as possible (see section 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth))
C. The parties are also reminded of section 538(3) and (4) of the Fair Work Act 2009 (Cth).
D. In determining the admissibility of evidence in these applications the Court will be guided by the above considerations.
On 15 July 2022, the applicants filed an outline of submissions regarding evidence and the FOI material. In that submission, Counsel for the applicants identified specific exhibits to the Marchetti affidavit which they would seek to tender in evidence, namely
(a)exhibit GM-1 which provides the details of the applicants’ FOI request and the FWO response to the request for the purpose of provenance/authentication of the documents obtained;
(b)exhibit GM-7 which is a customer enquiry record relating to a phone call dated 9 January 2017;
(c)exhibit GM-10 which is transcript of the phone call dated 9 January 2017; and
(d)exhibit GM-11 which records an email exchange with the FWO regarding an error in a date in GM-10.
These documents constitute a subset of the FOI material obtained by the applicants from the FWO. In his outline of submissions, Counsel for the applicants explains that the key document to be relied upon is GM-10, namely the transcript of the telephone call with Mr Kuksal. It is submitted that the whole of the transcript should be tendered into evidence to ensure as a matter of fairness that the necessary context is before the Court. It is conceded that it could be prejudicial to the respondent for the applicants to rely upon only those parts of the transcript which include relevant admissions by the respondent.
It is submitted that the transcript is centrally relevant to the issues in dispute because statements of the respondent contained in that transcript go directly to his knowledge of the application of industrial instruments for the purpose of accessorial liability under s 550 of the Fair Work Act 2009 (Cth). Furthermore, it is submitted that statements in the transcript attributed to the respondent are inconsistent with other assertions made by him in affidavit material (which is relevant to the question of his involvement in contraventions of the FW Act).
The applicants’ written outline of submissions also deals with the issues of authentication of the documents and their admissibility. I do not propose to rehearse those submissions in detail. In summary, however, the applicants contend:
(e)in order to authenticate the documents, the applicants can either seek to tender them from the bar table and rely on “self-authentication” by the Court or call a witness from the FWO to identify the documents;
(f)here, it is submitted that the documents can be tendered from the bar table and, by reason of sections 58 and 183 of the Evidence Act, the Court should examine the documents and draw any reasonable inferences, including as to the authenticity or identity of the documents, without the need for further evidence of the provenance of the documents;
(g)as to admissibility, the documents are “relevant” as defined in s 55 of the Evidence Act and, if there be any doubt, the Court can examine the documents to determine their relevance;
(h)that the various documents have a very high probative value as they contain admissions which go directly to a question in issue;
(i)although the Court has a residual discretion under s 135 of the Evidence Act to exclude evidence, the onus rests with the party seeking exclusion to demonstrate that the probative value of the evidence would be substantially outweighed by the danger of its unfair prejudicial effect. There must be a real danger of unfair prejudice, not a mere possibility, and a document is not prejudicial simply because it is adverse to a parties case;
(j)the hearsay rule does not apply to the evidence sought to be adduced because the evidence is not being used for a non-hearsay purpose and/or the business records exception in s 69 of the Evidence Act applies to the evidence and/or the evidence is of an admission;
(k)insofar as the business records exception is relied upon, s 138 of the Evidence Act provides that s 69 applies to documents of the FWO as it is “an Agency within the meaning of the Public Service Act 1999” or other body or organisation that is a Commonwealth owned body corporate;
(l)the respondent’s objections on the basis of whether the documents are sufficiently “connected” to him has no proper basis.
Also on 15 July 2022, and further to my orders made on 4 July 2022, the applicants filed a list of the affidavits that they will rely on in support of the applications. The affidavits upon which the applicants intend to rely are as follows:
(1)Affidavit of WILMER JAHIR ALVAREZ NINO: 25 February 2022
(2)Affidavit of ANA MELISA GARCIA CALVO: 25 February 2022
(3)Affidavit of JUAN CAMILO RIOS LONDONO: 25 February 2022
(4)Affidavit of JUAN CAMILO PINEROS TORRES: 25 February 2022
(5)Affidavit of LEONARDO FABIO HERNANDEZ ALARCON: 25 February 2022
(6)Affidavit of GERALDINE TORRES AMEZQUITA: 25 February 2022
(7)Affidavit of CAROLINA CORRALES RHENALS: 25 February 2022
(8)Affidavit of NICOLAS MORENO RIVERO: 25 February 2022
(9)Affidavit of GABRIELLE MARCHETTI: 30 June 2022
(a)Exhibit GM-1
(b)Exhibit GM-7
(c)Exhibit GM-10
(d)Exhibit GM-11 Specifically (as set out in our submissions dated 15 July 2022):
(10)Exhibit LX0702-2 to Affidavit of Lulu Xu 07 February 2022 (alternatively, if this Affidavit is not available or is withdrawn - noting that the document contains admissions and that the respondent may require leave to withdraw that document - then exhibits GM-4 and GM-6 attached to the Affidavit of Gabrielle Marchetti dated 30 June 2022).
The respondent did not file and serve a reply to the applicants outline of submissions regarding the admissibility of the FOI documents. Accordingly, he failed to comply with order 3 of the orders I made on 4 July 2022 which required a reply by 29 July 2022.
Nor did the respondent file and serve a submission identifying any objection he has to the admissibility of the affidavits on which the applicants intend to rely. He was required to file that submission by no later than 29 July 2022 and he has therefore failed to comply with order 5.
The respondent was also afforded the opportunity to file and serve any further affidavit upon which he intends to rely by no later than 29 July 2022. As at the date of these reasons, the respondent had not filed any further affidavit and he may not do so without leave of the Court.
DETERMINATION
The notation to my orders dated 4 July 2022 made plain that the Court wishes to proceed to a final hearing of these applications on 29 and 30 August 2022 without the distraction of further procedural disputes. To that end, I carefully laid out a path to afford both parties the opportunity to inform the Court of the evidence upon which they intend to rely and to object to the admissibility of evidence proposed to be adduced by their opponent.
As I have remarked in other decisions regarding this complex and long-running litigation, the parties and the Court are required to approach the resolution of the dispute as quickly, inexpensively and efficiently as possible[5]. It must not be forgotten that matters are all being dealt with as small claims proceedings and pursuant to s 548(3) of the Fair Work Act 2009 (Cth), the Court is not bound by the rules of evidence and may act in an informal matter and without regard to legal forms and technicalities.
[5] ss 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
The parties have been left in no doubt whatever of the Court’s expectation that outstanding preliminary issues are to be ventilated and determined prior to trial. They have been afforded that opportunity.
The applicants have now clearly identified the affidavits they proposed to seek to tender into evidence in support of the applications. The respondent has not filed a submission identifying any objection he has to the admissibility of those affidavits. Accordingly, it is unnecessary for me to convene a case management hearing to determine objections.
The applicants have also sought leave, as discussed above, to file the affidavit of Ms Marchetti dated 30 June 2022 and to seek to tender into evidence various documents obtained from the FWO pursuant to a FOI request. A submission in support of that application was made at the hearing on 4 July 2022 and it was further developed in the written outline filed by the applicants on 15 July 2022. The respondent has not filed a response to the written outline of submissions despite being given the opportunity to do so. Accordingly, it is appropriate that I now determine this issue on the papers.
I have considered the parties’ respective oral submissions and the written outline of submissions received from the applicants. The FOI documents which the applicants wish to rely on appear to me to be relevant to issues in dispute. There is no proper basis for Mr Kuksal’s submission that he is exposed to civil penalties in this case and I am not persuaded that the probative value of the documents is outweighed by prejudice to the respondent. Furthermore, I reject Mr Kuksal’s submission that the transcript of his discussion with the FWO is a communication which engages legal professional privilege or that it should be excluded pursuant to s 69(3) of the Evidence Act.
In the context of these small claims proceedings, I will allow the applicants to file the Marchetti affidavit and to seek to tender into evidence exhibits GM-1, GM-7, GM-10 and GM-11. I am a prima facie satisfied as to the provenance of those documents being business records of the FWO and no submission has been put to the contrary. If there be any issue or doubt regarding the authenticity of the documents, the Court can examine them and draw any necessary inferences.
Of course this ruling says nothing of the weight, if any, the Court will attach to any of this evidence. The Court has formed no view regarding the merit of the applications and the onus remains with the applicants to make out their substantive case.
I will grant leave to the applicants to file the affidavit of Ms Marchetti dated 30 June 2022. The applications will proceed to a final hearing before me on 29 and 30 August 2022.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 15 August 2022
SCHEDULE OF PARTIES
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Applicants
Fourth Applicant:
JUAN CAMILO PINEROS TORRES
Fifth Applicant:
LEONARDO FABIO HERNANDEZ ALARCON
Sixth Applicant:
GERALDINE TORRES AMEZQUITA
Seventh Applicant:
CAROLINA CORRALES RHENALS
Eighth Applicant:
NICOLAS MORENO RIVERO
2
2
0