Keyamo v Geologicai Services Pty Ltd - [2025] FedCFamC2G 1230

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keyamo v Geologicai Services Pty Ltd

Details

AGLC: Keyamo v Geologicai Services Pty Ltd [2025] FedCFamC2G 1230
Case: [2025] FedCFamC2G 1230
Decision Date: 1 August 2025

CaseChat Overview and Summary

Keyamo v Geological Services Pty Ltd was a case where the applicant sought an interlocutory application for orders to preserve documents, specifically concerned about the potential deletion of Microsoft Teams messages. The court in question was the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law). The legal issues before the court were whether there was a credible or imminent risk of destruction of evidence, and if the steps taken by the respondents were sufficient to prevent such destruction.

The court examined the steps taken by the respondents to preserve the relevant material and found them satisfactory. It was established that the respondents had already taken active steps to preserve the evidence, and the solicitors had explained the importance of preservation and the consequences of non-compliance to the respondents. The court concluded that there was not a real possibility that the respondents might fail to preserve or destroy relevant evidence or cause it to be unavailable for use in evidence in the proceedings.

The court's reasoning was that while the General Federal Law Rules do not expressly provide for the preservation of documents, the court has the discretion to apply the Federal Court Rules in cases where the General Federal Law Rules are insufficient. The court found that the evidence in question, relating to documents and data, fell within the broad definition of property as per rule 14.01 of the Federal Court Rules. The court also noted the precedent set by Polis v Zombor (No 3), where orders were made under rule 14.11 of the Federal Court Rules to preserve data and information.

Ultimately, the court declined to make the preservation order sought by the applicant and dismissed the application. This was based on the active steps taken by the respondents to preserve the evidence and the satisfactory explanation of the importance of preservation provided by the respondents' solicitors. The court concluded that there was no real possibility that the respondents might fail to preserve or destroy relevant evidence, or cause it to be unavailable for use in evidence in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

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

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