Keyamo v Geologicai Services Pty Ltd
[2025] FedCFamC2G 1230
•1 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keyamo v Geologicai Services Pty Ltd [2025] FedCFamC2G 1230
File number(s): SYG 2223 of 2025 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 1 August 2025 Catchwords: PRACTICE AND PROCEDURE – Interlocutory Application seeking orders for the preservation of documents – applicant concerned about potential deletion of Microsoft Teams messages – where respondents had already taken steps to preserve relevant material – no credible or imminent risk of destruction identified – application for preservation orders refused. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.06(2)
Federal Court Rules 2011 (Cth) rr 14.01, 14.11
Cases cited: Polis v Zombor (No 3) [2019] FCA 1477 Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 1 August 2025 Place: Sydney Solicitor for the Applicant: In Person Solicitor for the Respondents: Mr J. Pomeroy and Ms J. Kim of Gilbert + Tobin ORDERS
SYG 2223 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BENZ KEYAMO
Applicant
AND: GEOLOGICAI SERVICES PTY LTD
First Respondent
YANNAI SEGAL
Second Respondent
MATTHEW BROCKMAN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
1 AUGUST 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 21 July 2025 is dismissed.
2.Costs of the application be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
On 27 June 2025, the applicant commenced proceedings alleging that his dismissal contravened the general protections provisions under the Fair Work Act 2009 (Cth). The applicant’s claims arise out of the context of his employment with the first respondent.
On 21 July 2025, the applicant filed an application in a proceeding seeking orders for the preservation of evidence (application in a proceeding). The application in a proceeding is supported by an affidavit affirmed by the applicant and filed on 14 July 2025 (applicant’s affidavit). The evidence in relation to which the applicant seeks preservation has been identified by the applicant in Annexure KEY13 of the applicant’s affidavit.
The first respondent relies upon the affidavit affirmed by Ms Jamie Su En Kim and filed on 1 August 2025 (Ms Kim’s affidavit). Ms Kim is a lawyer in the law firm Gilbert + Tobin which acts for the first respondent.
In the applicant’s affidavit, the applicant makes the following assertions:
(a)Throughout May 2025 he made repeated inquiries about workplace benefits and complained about XRF safety course issues and reported ergonomic issues that caused him injury.
(b)The respondent uses Microsoft Teams which automatically deletes messages after 90 days in accordance with its IT policy and therefore the applicant’s termination-related communications will be permanently erased by August 2025.
(c)He fears imminent destruction of documents because, without Court orders, critical evidence to his case including draft termination letters, HR meeting minutes and Teams messages may be destroyed before the trial.
The application in a proceeding came before me on 21 July 2025 at which time the following orders were made:
1.On or before 4.00pm on Wednesday 23 July 2025, the Respondents are to notify the Applicant with details of the steps taken to preserve documents relevant to this proceeding.
2.On or before 4.00pm on Friday 25 July 2025, the Applicant is to notify the Respondents and Chambers whether he withdraws or intends to pursue the application in a proceeding filed 21 July 2025.
Following the orders, Gilbert + Tobin sent a letter to the applicant on 23 July 2025 (the first respondent’s solicitor’s letter dated 23 July 2025). That letter, which appears at Annexure A to Ms Kim’s affidavit, relevantly reads:
Dear Mr Keyamo
SYG2223/2025 - Geologicai Services Pty Ltd & Ors ats Benz Keyamo
We refer to the case management hearing and orders of Judge Papadopoulos dated 21 July 2025 (Orders).
During the case management hearing, His Honour identified, which you accepted, the following categories of documents which may be relevant to these proceedings:
· draft termination letters, HR meeting minutes and Teams messages as referred to in “Ground B” on page 3 of your affidavit dated 14 July 2025; and
· the emails referred to in your application dated 27 July 2025 (Application).
In accordance with Order 1 of the Orders, we confirm:
·GeologicAI has taken steps to preserve all Teams messages where you were either the sender or the recipient of the message by copying these messages and securely storing them on our client’s IT system. As we noted at the case management hearing, this includes the Teams message referred to in paragraph 12 of the Application;
·all individual respondents (other than David Garry) are current employees of GeologicAI (or a related entity). Any email between you and any of these individual respondents which is in their account is not currently subject to any automatic deletion. As we noted at the case management hearing, this includes the emails referred to in paragraph 8 of the Application;
·Mr Garry is not an employee of GeologicAI and does not have any account with GeologicAI. Our client does not have access to Mr Garry’s account(s) with the third-party entity which he is employed by; and
·GeologicAI has not disposed of any draft employment termination letters or HR meeting minutes (if any).
In addition, we are instructed that, if any of the individual respondents who are currently employed by GeologicAI (or a related entity) cease to be employed, our client will ensure that any function which automatically deletes the contents of a user’s account is disabled for that individual until the conclusion of these proceedings.
Our client reserves all its rights including the right to claim a legal privilege over any document referred to in this letter.
The applicant’s reply to the first respondent’s solicitor’s letter dated 23 July 2025, which appears at Annexure B to Ms Kim’s affidavit, relevantly reads:
Subject: SYG2223/2025 - Urgent: Non-Compliance with Court Orders
Benz Keyamo v GeologicAI Services Pty Ltd
Dear Ms Kim,
Re: Failure to Comply with Orders of His Honour Judge Papadopoulos dated 21 July 2025
I refer to your correspondence dated 23 July 2025, which fails to comply with the Court's Orders requiring your client to:
1. Notify me of the details of steps taken to preserve documents; and
2. Preserve all documents relevant to this proceeding.
Specific Deficiencies
1. Teams Messages
Your client has only preserved:
o Direct 1:1 communications with me, while excluding:
§ Group discussions involving decision-makers (including Yannai Segal, Rubina Gilani, et al. as per the Application);
§ Metadata (edit/delete logs) proving integrity.
Demand: Full preservation of all Teams channels/chats concerning my employment/termination.
2. Draft Termination Documents
The qualified statement "if any" regarding draft termination letters/HR minutes is unacceptable. Your client must:
o Confirm under oath their existence/non-existence;
o If existing, provide:
§ The documents; and
§ Metadata (creation/modification timestamps).
3. Verification Failures
Your client has not provided:
o Audit logs of preservation;
o Sworn IT affidavits; or
o Employee declarations of compliance.
Required Action
By 4:00 PM (24 July 2025), your client must either:
1. Fully comply; or
2. Provide a substantive explanation for non-compliance.
Failure to comply will necessitate further action.
I reserve all rights, including tendering this correspondence to the Court.
Despite the effect of the first respondent’s solicitor’s letter dated 23 July 2025, the applicant notified the respondents and the Court that he wished to pursue the application for orders in relation to preservation of documents.
The application in a proceeding was listed for hearing on an urgent basis before me at 11.00 am on 1 August 2025.
HEARING OF THE APPLICATION
The submissions of the parties summarised
The applicant submitted that the first respondent’s solicitor’s letter dated 23 July 2025 was ‘legally insufficient’. I understood his complaint essentially related to the insufficiency of the details provided by the first respondent’s solicitors in relation to the steps taken by the first respondent to preserve the relevant documents. The applicant insisted the first respondent’s solicitor’s letter dated 23 July 2025 did not satisfy Order 1 of the Orders made on 21 July 2025 as it did not contain sufficient detail of the steps taken to preserve documents relevant to the proceedings. The applicant raised concerns about lack of transparency and indicated he had not been provided sufficient assurance that the documents would not be destroyed. On that basis, the applicant reiterated his application for preservation orders was urgent and serious in nature.
On behalf of the first respondent, Mr Pomeroy relevantly made submissions detailing the steps taken by the first respondent to preserve the documents. In particular, Mr Pomeroy drew my attention to the following specific assurances provided by way of the first respondent’s solicitor’s letter dated 23 July 2025:
(a)All Teams Messages sent or received by the applicant have been preserved by the first respondent by way of copying those messages and securely storing them on the first respondent’s IT system.
(b)Any email between the applicant and the individual respondents (other than Mr Garry) who are currently employees of the first respondent (or a related entity) are being held in each individual respondent’s email account which is not currently subject to any automatic deletion protocol. In the event that any individual respondent ceases to be employed by the first respondent (or a related entity), the first respondent will ensure that any function which deletes the contents of a user’s account is disabled for that individual until the conclusion of these proceedings.
(c)The first respondent has not disposed of any draft employment termination letter or HR meeting minutes (if any).
Mr Pomeroy submitted that on the basis of this information, the applicant’s fear that the documents would be destroyed, or not otherwise unavailable if required during the course of proceedings, is unfounded. He further submitted that the demands contained within the applicant’s letter of 23 July 2025 were unreasonable, and need not be met or otherwise addressed, as they go beyond the scope of the Orders made on 21 July 2025. Mr Pomeroy concluded by way of confirming:
(a)the first respondent’s acknowledgment and understanding of its obligation to preserve all documents relevant to these proceedings;
(b)the first respondent’s acknowledgment and understanding of adverse consequences that may arise for the first respondent should the steps taken to preserve documents as detailed in the first respondent’s solicitor’s letter dated 23 July 2025 prove to be deficient;
(c)his appreciation of the consequences that may arise in the event of non-compliance with his professional obligations, including his duty to the court, during the conduct of the proceedings.
CONSIDERATION
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) do not expressly provide for the Court granting orders in relation to the preservation of documents. However, rule 1.06(2) of the GFL Rules provides that in a particular case where the GFL Rules are insufficient this Court may apply the Federal Court Rules 2011 (Cth) (Federal Court Rules).
Accordingly, I note that rule 14.11 of the Federal Court Rules provides for the Court making orders for the preservation of property. Rule 14.01 of the Federal Court Rules provides that property includes ‘land, document or any other thing’. The evidence in relation to which preservation is sought largely relates to documents and data which, in my view, falls within the broad definition of property set out in rule 14.01. I note that his Honour Justice O’Bryan in Polis v Zombor (No 3) [2019] FCA 1477 considered and made orders under rule 14.11 of the Federal Court Rules preserving data and information.
I have declined to make the order sought by the applicant given the matters set out in the first respondent’s solicitor’s letter dated 23 July 2025. I am satisfied the first respondent has taken active steps to preserve the evidence that is likely to be relevant to the substantive matter. I am also satisfied the first respondent’s solicitors have explained to the first respondent the importance of ensuring that the evidence is preserved pending the final determination of the substantive matter and the consequences of not doing so. Therefore, I am of the view there is not a real possibility that the first respondent might fail to preserve or otherwise destroy relevant evidence or cause it to be unavailable for use in evidence in the proceedings.
CONCLUSION
The order for preservation of evidence is refused. I therefore dismiss the application in a proceeding filed on 21 July 2025.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 1 August 2025
SCHEDULE OF PARTIES
SYG 2223 of 2025 Respondents
Fourth Respondent:
ED SLOBODIAN
Fifth Respondent:
GRANT SANDEN
Sixth Respondent:
DAVID GARRY
Seventh Respondent:
MICHAEL PETER FLACH
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