General Manager, Fair Work Commission v Asmar (Stay application)

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FEDERAL COURT OF AUSTRALIA

General Manager, Fair Work Commission v Asmar (Stay application) [2025] FCA 67

File number: VID 835 of 2024
Judgment of: DOWLING J
Date of judgment: 11 February 2025
Catchwords: PRACTICE AND PROCEDURE – application for stay of proceedings – whether criminal proceedings “on the cards” – whether real risk of prejudice – progress of criminal investigation unknown – cannot be satisfied criminal proceedings “on the cards” – insufficient prejudice to stay proceedings – stay application dismissed
Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) ss 285, 286, 287, 312

Federal Court Act of Australia Act 1976 (Cth) ss 23, 37M

Federal Court Rules 2011 (Cth) r 10.24

Cases cited:

Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2016] FCA 504

Australian Competition and Consumer Commission v FFE Building Services [2003] FCAFC 132; 130 FCR 37

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 5) [2013] FCA 369

Australian Securities and Investments Commission v Craigside Co Ltd [2013] FCA 201; 93 ACSR 176

Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32

Citation Resources Ltd v Landau [2016] FCA 1114; 116 ACSR 410

Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153

Impiombato v BHP Group Limited [2020] FCA 350

McMahon v Gould (1982) 7 ACLR 202

Obeid v Commissioner of Taxation [2017] FCA 1135

Re Australian Property Custodian Holdings Ltd (in liq) (recs and mrgs apptd) (controllers apptd) (No 2) [2012] VSC 576; 93 ACSR 130

Re AWB [2008] VSC 473; 21 VR 252

Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 89
Date of hearing: 22 November 2024
Date of last submission 19 December 2024
Counsel for the Applicant Mr M Follett KC and Mr M Minucci
Solicitor for the Applicant Ashurst Australia
Counsel for the First Respondent Mr R Nathwani KC and Mr Y Bakri
Solicitor for the First Respondent Davies Lawyers
Solicitor for the Fourth Respondent Mr A O’Bryan of Galbally & O’Bryan
Counsel for the Fifth Respondent Mr N Harrington
Solicitor for the Fifth Respondent Peter Vitale and Associates
Counsel for the Sixth and Seventh Respondents Mr C Massy and Mr D Murphy
Solicitor for the Sixth and Seventh Respondents Maurice Blackburn

ORDERS

VID 835 of 2024
BETWEEN:

GENERAL MANAGER OF THE FAIR WORK COMMISSION

Applicant
AND:

DIANA ASMAR
First Respondent

KERRY GEORGIEV
Second Respondent

NICK KATSIS (and others named in the Schedule)
Third Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

11 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The first respondent’s interlocutory application dated 12 September 2024 is dismissed.

Note:   Entry of orders is dealt with in Rule…

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Details
Case
[2025] FCA 67
Decision Date

CaseChat Overview and Summary

The case involves a stay application filed by Ms Asmar, seeking to halt proceedings brought by the General Manager of the Fair Work Commission over allegations of misappropriation of union funds. The court was tasked with determining whether there was a real risk of prejudice that would warrant a stay of the proceedings, given the potential for criminal proceedings against Ms Asmar.

The primary legal issue was whether the court should grant a stay based on the uncertainty surrounding the progress of a criminal investigation by Victoria Police. Ms Asmar argued that there was a real risk of prejudice due to the ongoing investigation, which could lead to her being charged. However, the court found that there was insufficient evidence to confirm that criminal proceedings were imminent. The status and intentions of the investigation were unclear, and communications from Victoria Police explicitly stated that Ms Asmar was not under investigation at that time.

The court concluded that there was not a real risk of prejudice sufficient to warrant a stay of the proceedings. The potential for future criminal charges did not meet the threshold required to justify halting the current proceedings. The court balanced the interests of all parties and found that the stay was not appropriate at that time.

The court dismissed the interlocutory application for a stay and scheduled a case management hearing to proceed with the matter. The decision highlighted the necessity for clear evidence of impending criminal charges to justify a stay, which was absent in this case.

Orders

Orders of the court

1. The first respondent’s interlocutory application dated 12 September 2024 is dismissed.

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

Background

Background to the litigation

For the reasons set out below I refuse the application for a stay. Balancing justice between the parties I am not satisfied that a stay is appropriate at this time. CHRONOLOGY AND BACKGROUND FACTS The General Manager’s allegations of misappropriation of the funds of the Union are constituted by allegations that: (a)Ms Asmar and Ms Georgiev knowingly effected transfers from Branch accounts in purported reimbursement of illegitimate business expenses incurred by Ms Asmar between August 2018 and November 2020; (b)Ms Asmar, Ms Georgiev and Mr Katsis knowingly effected transfers from Branch accounts to Ms Asmar for expenses not properly incurred by Ms Asmar; (c)Ms Asmar and Ms Georgiev transferred funds of $2.8 million from Branch accounts between June 2016 and June 2021 to Southern Publishing for no goods or services; and (d)Ms Asmar, Mr Katsis, Mr Eden, Mr Atkinson and Ms Barclay engaged in a practice of providing the password assigned to them by the Commbiz mobile application to Ms Georgiev and thereby enabling Ms Georgiev to authorise transactions from the Branch’s Commonwealth Bank accounts without verification (it seems with respect to the alleged illegitimate expenses and Southern Publishing payments). Ms Asmar and Mr Asmar are alleged to have received deposits into their personal bank accounts at or around the time that payments were made to Southern Publishing. Mr Asmar is alleged to have aided or abetted the contraventions by Ms Asmar or alternatively been knowingly concerned in the contraventions by Ms Asmar. The contravening conduct is alleged to be in contravention of ss 285, 286, 287 of the Act. Ms Asmar relied upon a number of news reports. They were tendered without objection. One of those reports included what purported to be a statement from Victoria Police which said that their investigation into the Branch “commenced in October 2023 after information was provided to police in relation to allegations of false invoices linked to a union and a private company”. On 26 March 2024, the Fair Work Commission wrote to the Branch regarding “concerns relating to payments of reimbursements to Ms Diana Asmar by the Branch”. On or around 15 May 2024, Victoria Police executed search warrants on the offices of Commerce Press and the home of Mr Peter Walsh, a director of Tintern Heights Pty Ltd (trading as Southern Publishing), and seized folders of documents, including documents related to Southern Publishing, as well as a desktop computer, hard drives and telephones. Commerce Press is described in the General Manager’s statement of claim in this proceeding as the Union and/or Branch’s “legitimate and long-term supplier of printing, stationery and merchandise”. As identified above the statement of claim alleges that the Branch, with the knowledge of Ms Asmar, paid invoices of Southern Publishing in circumstances where it did not provide any goods or services to the Union or Branch. Mr Walsh is named in the statement of claim as a director and shareholder of Southern Publishing.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Balancing the potential risk of real prejudice of all parties I am not satisfied that a stay of the proceeding is appropriate at this time.CONCLUSION AND DISPOSITION In all of the circumstances, and balancing justice between the parties, I am not satisfied that a stay is appropriate at this time. The interlocutory application of Ms Asmar is dismissed. Section 329 of the Act restricts the Court in awarding costs. No costs order was sought or will be made. I will list the matter for a case management hearing at a time convenient to all of the parties and the Court.

Ratio Decidendi

Legal Principle Established

Mr Eden submitted that the stay is precipitative. He says that there has been no clear indication to him, or it seems, any other respondent, that they are the subject of criminal investigation by Victoria Police. Consideration Whilst it is apparent that there has been investigation by Victoria Police into the circumstances related to those matters contained in the statement of claim in this proceeding, the status of that investigation is unknown. As to whether Ms Asmar is the subject of that investigation, the most explicit communication from Victoria Police is the email of 10 September 2024 from Det Insp Jones to Ms Asmar’s solicitor confirming “that Ms Asmar is NOT currently under investigation” (Original emphasis). Det Insp Jones is the officer in charge of the Financial Crime Squad and in a position of authority to make such a representation. Det Insp Jones repeated the relevant contents of that email two days later in a communication to Ms Asmar’s counsel, Mr Nathwani KC. I do not accept, as Ms Asmar contends that Det Insp Jones responses were hasty. The email from Det Insp Jones was sent approximately 4 months after a warrant had been executed on the premises of Commerce Press and the home of Peter Walsh, and approximately 1 week after a warrant had been executed on the offices of the Branch’s accountants. On the material before the Court Victoria Police first became aware of the allegations against Ms Asmar in or about October 2023. In the 16 months since that time there has been no communication from Victoria Police suggesting that Ms Asmar will be charged. The emails identified above are to the contrary effect. Mr Walsh was arrested on or about 14 November 2024. He was not charged. The current state of the investigation into Mr Walsh is unknown. I accept that the arrest of Mr Walsh affects the likelihood of charges against Ms Asmar, however the intentions of Victoria Police with respect to Mr Walsh or Ms Asmar are still unknown. Again, the only communications explicitly addressing the investigation into Ms Asmar are the September emails from Det Insp Jones. The respondents (save Mr Eden) submitted that whilst charges under the Criminal Code 1995 (Cth) might be directed to the Union, any fraud offences under the Crimes Act 1958 (Vic) would necessarily be directed at an individual. Whilst I accept that much, the progress, status and detail of the investigation by Victoria Police, or the AFP is unknown. There is no evidence of any particular potential charges being pursued by Victoria Police, or the AFP, against the respondents. In Craigside Jagot J had the advantage of the investigator (ASIC) being the party before her in the civil proceeding. It was ASIC that was to decide whether to prosecute the individuals (or to brief the Commonwealth Director of Public Prosecutions with respect to the laying of a charge or indictment). ASIC confirmed to her Honour that it was continuing to investigate Mr Merity (and her Honour concluded that it was continuing to do so to decide whether to prosecute him). ASIC also did not rule out a prosecution of Mr Merriman although it said he was not the subject of a prosecution at present. Having found those things her Honour was positively satisfied that a prosecution was on the cards for Mr Merity and for Mr Nedderman. Unlike Craigside the parties are not in a position to provide any current information as to the status or ongoing intention of the investigation by Victoria Police (or the AFP). The current status and intention of the investigations are unknown.