Marzo v Cittadini
[2025] FedCFamC2G 1591
•29 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marzo v Cittadini [2025] FedCFamC2G 1591
File number(s): MLG 2662 of 2024
MLG 2660 of 2024Judgment of: JUDGE FORBES Date of judgment: 29 September 2025 Catchwords: PRACTICE AND PROCEDURE – Fair Work Act proceeding – application by applicants to appear and give evidence at trial via video-link – where one applicant resides in Italy and the other in Switzerland – where applicants claim hardship – where applicants contend small quantum of claim disproportionate to travel costs and other inconvenience – where applicants seek relief including imposition of civil penalties – where events occurred nearly 7 years ago – where identity of employer disputed and respondent denies connection with applicants – extensive cross-examination expected – discussion of principles relevant to court’s exercise of discretion – application dismissed Legislation: Fair Work Act 2009 (Cth), ss 345, 544, 545(5), 550
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 5, 190(2), 201(1), 202(1), 203(1), 204
Federal Court of Australia Act 1976 (Cth), ss 37M, 47A
Superannuation Guarantee (Administration) Act1992 (Cth)
Fair Work Regulations 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.04(1), 10.4(2)(a)
Restaurant Industry Award 2010
Cases cited: Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521
Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504
Australian Securities and Investments Commission v Wilson [2020] FCA 873
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Joy v UGL Operations and Maintenance Pty Limited (No 3) [2024] FCA 279
Keyamo v Silver Lakes (Deflector) Pty Ltd [2022] FedCFamC2G 984
Kirby v Centro Properties Ltd [2012] FCA 60
Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524
Southernwood v Brambles Limited (No.2) [2022] FCA 973
Tan v Commonwealth of Australia (Department of Defence) [2025] FedCFamC2G 439
Tetley v Goldmate Group Pty Ltd [2020] FCA 913
Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 25 September 2025 Place: Melbourne Solicitor for the Applicants: Mr Giannopoulos; JobWatch Counsel for the Respondent: Ms Goonetillake Solicitor for the Respondent: D.E. Phillips ORDERS
MLG 2662 of 2024
MLG 2660 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LUCA MARZO
Applicant
FABRIZIO FALCONIERI
Applicant
AND: ROSANNA CITTADINI
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
29 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicants’ application for leave to appear and give evidence at trial by video-link is dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
These two applications have been listed for trial to commence on 6 October 2025 on an estimate of 4 days and are to be heard together, with evidence in one case being admitted as evidence in the other. The trial is due to commence in less than a week.
Each of the applicants seek remedies against the respondent for alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act). In their Amended Statements of Claim, the applicants allege multiple contraventions of the FW Act by Ms Cittadini in respect of which they seek compensation (primarily recovery of unpaid or underpaid wages), interest, the imposition of civil penalties and costs.
An application has been made by the applicants’ solicitor for his clients to participate and give evidence in the hearing by video-link from their respective home locations of Italy and Switzerland. These reasons deal with that application.
BACKGROUND
The applications against Ms Cittadini are somewhat complex and deal with events which occurred in late 2018 and early 2019. The two applicants are Italian citizens, who at the relevant times lived and worked in Australia on working holiday visas. Each of the applicants alleged that they performed work at a business known as ‘Pep’s Beachfront’ in Rye, Victoria over the summer of 2018/19. Mr Marzo performed work as a cook/chef and Mr Falconieri as a waiter/barista.
Each of the applicants alleged that the work they performed was covered by a Commonwealth industrial instrument, namely the Restaurant Industry Award 2010 (Award). The applicants allege that they were not properly paid in accordance with Award rates for the hours of work they performed. They also allege that their employer failed to comply with other provisions of the Award (such as the employer’s obligations to ensure that copies of the Award and the National Employment Standards were made accessible to employees) and provisions of the FW Act and Fair Work Regulations 2009 (Cth) (FW Regulations) which require the making and keeping of accurate employee records and the provision of payslips to employees. Other alleged causes of action include alleged misrepresentation by the employer in contravention of s 345 of the FW Act and non-payment of superannuation contributions.
According to the statements of claim, Mr Marzo claims he is owed $24,198.18 in unpaid wages and $3,140.05 in unpaid superannuation contributions. Mr Falconieri claims unpaid wages of $9,247.53 and unpaid superannuation contributions totalling $1,605.74. Both applicants seek interest on those outstanding amounts.
In addition to their claims for recovery of those underpayments, each applicant seeks declarations that their employer contravened the FW Act, the FW Regulations, the Superannuation Guarantee (Administration) Act1992 (Cth) and the imposition of civil penalties in respect of each contravention. If the contraventions are established, the maximum penalties for which the respondent may be liable may amount to many tens of thousands of dollars.
The applicants plead that the respondent, Ms Cittadini, is liable for the various contraventions on one of two alternative bases. They each allege that Ms Cittadini was, at all material times:
(1)their legal employer; or
(2)alternatively, materially involved in and therefore accessorily liable under s 550 of the FW Act for the contraventions of their employer who they contend was one or more of the following entities and persons:
(a)Zalu Café E Cucina Pty Ltd and/or alternatively;
(b)Civil & Comms Group Pty Ltd and/or alternatively;
(c)Marc Cittadini.
(which the statements of claim define individually or collectively as “Zalu”)
The success of the applicants’ claims will turn on them establishing that the respondent was either their employer or that she was accessorily responsible for the conduct of their employer, whoever that might be. The applicants bear the onus of establishing these factual elements of their claim. A failure to prove these critical matters will be fatal to their claim.
Relevantly, in her amended defence filed (out of time) on 1 September 2025, Ms Cittadini:
(a)denies that the applicants were employed by her;
(b)denies that the applicants were employed by Zalu Café E Cucina Pty Ltd or Civil & Comms Group Pty Ltd; but
(c)admits that the applicants were employed by her husband, Mr Marc Cittadini.
In relation to the alternative allegation of accessorial liability, the respondent denies that she is liable for any of the conduct of Marc Cittadini or Zalu Café E Cucina Pty Ltd or Civil & Comms Group Pty Ltd. She claims, in effect, that she had no involvement in the Pep’s Beachfront café business.
In terms of the matters which are likely be agitated at trial, it is relevant to note a number of objections and propositions which have been raised in the respondent’s defence. These include:
(a)that the statements of claim are generally confusing, defective and liable to be struck out;
(b)that the statements of claim contain allegations against persons or entities in respect of conduct about which the respondent has no knowledge and therefore cannot plead;
(c)that the claims appear to assert that the applicants had or may have had more than one concurrent employer, a concept not recognised in Australian law;
(d)that the respondent’s limited involvement with the Pep’s Beachfront business cannot support a finding that she was the applicants’ employer or that she was liable for the acts and omissions of their true employer;
(e)that the respondent cannot plead to allegations that are not properly based in law or fact;
(f)that she was not a participant in conversations which allegedly gave rise to the contract of employment as pleaded;
(g)that she could not have engaged in making any misrepresentations about the applicants’ terms and conditions of employment; and
(h)that the applicants have failed to plead any facts which could have given rise to a contract of employment between them and the respondent.
I note at this juncture that while the filed defence is replete with objections to the substance and form of the statements of claim, the respondent has not made any formal application to strike out the applicants’ pleading or to require them to replead. Perhaps the respondent has for strategic reasons chosen to allow the applicants to proceed to trial on the pleadings as they are.
Procedural background
The two proceedings were commenced by an application and statement of claim lodged on 8 August 2024. As mentioned, the claims relate to work performed over the summer months between late 2018 and early 2019. The proceedings were commenced within months of the expiry of the 6-year limitation period prescribed for the commencement of such litigation[1].
[1] Fair Work Act 2009 (Cth), ss 544, 545(5)
The proceedings were initiated by a Melbourne-based community law firm based on instructions from the two applicants. I infer from submissions made in this proceeding that the applicants had returned to Europe years prior to these applications being made and that the applicants were not in the jurisdiction when the proceedings were commenced on their behalf.
The parties by consent sought referral of the applications to alternative dispute resolution. Prior to the commencement of mediation, the respondent filed and served a defence to the statements of claim.
The two applications have been the subject of two days of mediation conducted by a registrar of the court. The court of course has no visibility as to what occurred during the course of mediation, save to note that the proceedings did not resolve. I have been informed, however, that the two applicants participated in the mediation by video from locations in Europe. The applicants’ solicitors say this occurred without objection or incident[2].
[2] Written submission of the applicants dated 28 Sept 2025 at [2]
On 6 June 2025, Registrar Curnow, who was responsible for convening the mediation, made case management orders to facilitate preparation of the matter for trial. The registrar made the following orders:
1.The proceeding be listed for hearing (in relation to liability) on 6 October 2025 for 4 days from 10:15am.
2.The applicant has leave to file an amended Statement of Claim by 4 July 2025.
3.The respondent has leave to file an amended Defence by 1 August 2025.
Evidence
4.By 15 August 2025, the Applicant file and serve any affidavit evidence upon which he will rely at trial.
5.By 29 August 2025, the Respondent file and serve any affidavit evidence upon which she will rely at trial.
6.By 12 September 2025, the Applicant file and serve any affidavit evidence in reply.
7. Subject to further order, evidence in chief at trial is to be given by affidavit.
Hearing
8. By 17 September 2025, the Applicant file and serve an outline of submissions.
9. By 29 September 2025 the Respondent file and serve an outline of submissions.
10. By 3 October 2025, the Applicant, following conferral with the Respondent, file and serve an electronic copy of a paginated, chronologically ordered court book consisting of:
(a) a table of contents;
(b) the current version of the pleadings;
(c) affidavits as filed;
(d) any other document to be relied upon by any party; and
(e) outlines of submissions.
11. There is liberty to apply.
Subsequent to the making of those orders and up until 22 September 2025 (approximately 2 weeks before the trial) a number of documents had been filed. Those are:
·4 July 2025 Amended statements of claim
·15 August 2025 Affidavit of Fabrizio Falconieiri
Affidavit of Luca Marzo
Affidavit of Vicenzo De Paolis
Affidavit of Michael Giannopoulos
·1 September 2025 Amended defence
I am the docketed trial judge. The trial date has been in my diary since early June 2025.
On 22 September 2025, the applicant’s solicitor emailed my chambers (copied to the respondent’s solicitor) in the following terms:
These matters are listed for hearing on 6 October 2025 for 4 days.
We note that:
1. The Applicants are currently overseas. Accordingly, we respectfully request that the Court make arrangements for the Applicants to attend via videoconference. We would be grateful if the Court could forward us a Microsoft Teams link. For the avoidance of doubt, the Applicants representatives intend to attend the Court in person.
2. Both Applicants speak Italian as their first language. Fabrizio Falconieri’s English is limited. Accordingly, we respectfully request that the Court could arrange for an Italian interpreter to assist the applicants. In support of this request, we refer to the Recommended National Standards for Working with Interpreters in the Courts and Tribunals. If possible, it may be convenient if the court could arrange [redacted] as an interpreter. [Redacted] was the interpreter during the mediations and is therefore familiar with these matters.
We look forward to hearing from you…
Later that same day, 22 September 2025, my chambers received further correspondence from the applicants’ solicitor (again copied to the respondent’s solicitor). The second email stated:
We note that:
1. on 6 June 2025, Registrar Curnow made orders in the foregoing matter, including orders that:
a. “The proceeding be listed for hearing (in relation to liability) on 6 October 2025 for 4 days from 10:15AM”; and
b. “By 29 August 2025, the Respondent file and serve any affidavit evidence upon which she will rely at trial”;
2. On 4, 8, 10, 17 and 18 September 2025, we emailed the Respondent’s solicitors seeking the respondent’s affidavits;
3. On 17 September 2025, we left a message on the Respondent’s solicitor’s voicemail;
4. To date, we have not received a reply to the foregoing emails and message;
5. To date, we have not received the Respondent’s affidavits; and
6. We are in the process of preparing a written outline of submissions, but it is difficult to finalise and file our submissions in the absence of the Respondent’s affidavits.
Accordingly, it may be convenient for the Court to conduct a case management conference to establish how these matters are to proceed…
Given the impending trial date, I acceded to the suggestion that I convene a case management conference. That case management conference was scheduled for 25 September 2025 at 9:30 am. In correspondence from my chambers the parties were informed that I intended to deal with any outstanding case preparation issues including any requests by a party to attend the trial via videoconference.
On the evening prior to the case management conference, the applicants’ solicitors provided my chambers with a minute of proposed orders. The applicants’ minute proposed that the time by which the respondent be required to file her affidavit evidence be extended until 29 September 2025, failing which her amended defence would be struck out.
Immediately prior to the case management conference, correspondence was received from the respondent’s solicitor. The correspondence noted that two affidavits of the respondent and Marc Cittadini respectively, were in the course of being sworn and filed. The email from the respondent’s solicitor also included a form of proposed orders which provided that those two affidavits would be filed that day and that a third affidavit of Ms Stephanie Parton, would be filed and served on 29 September 2025. The respondent otherwise proposed amendments to the filing dates for reply evidence, written submissions and preparation of the electronic court book - all which would preserve the trial date of 6 October 2025.
Application by the applicants to appear remotely and give evidence by video-link
I have set out what I know of the background to these proceedings in some detail to set the context in which I have been asked to consider the applicants’ request to appear at trial by videoconference.
There has been no formal application made to the court by or on behalf of the applicants for leave to appear and give evidence via electronic means. The application arose from the correspondence to my chambers on 22 September 2025. There is no affidavit material before the court in support of the application, although the applicants do seek to rely on the affidavits filed in the substantive proceeding[3].
[3] See, Applicant’s written submissions dated 28 Sept 2025 and the footnotes thereto.
Applicant’s submissions
At the case management conference on 25 September 2025, the applicants were represented by their solicitor Mr Giannopoulos.
Mr Giannopoulos submitted that the court should grant leave for the two applicants to appear and give evidence by videoconference, and he appeared somewhat surprised and perplexed to learn that the respondent intended to oppose the request.
Mr Gianopoulos submitted that his clients are Italian citizens who performed work in Australia while travelling on working visas. They both returned to Europe some years ago. Italian is their native language.
In an affidavit filed in the substantive proceedings on 15 August 2025, Mr Falconieri deposes that he lives in Nardo in southern Italy where he currently works as a furniture assembler. In an affidavit filed on the same day, the other applicant Mr Marzo deposes that he currently resides in Pontresina, Switzerland where he works as a chef. Neither affidavit gives any other details about their current employment.
Mr Giannopoulos submitted that the applicants would be subjected to severe hardship if required to travel to Australia for the trial. He said that the costs of flights to and accommodation in Australia would be significant and disproportionate to their means and the size of their claims. He submitted that the applicants are both employed and that any absence to attend a trial in Australia could put their employment at risk.
Mr Giannopoulos added that he had successfully used audiovisual communication to obtain instructions from his clients and to prepare documents on their behalf. He conceded that Mr Falconieri has quite limited English skills but said that could be overcome with the use of an interpreter. Mr Giannopoulos also submitted that his clients had been able to participate remotely in mediations before Registrar Curnow.
Respondent’s submissions
Ms Goonetillake of counsel appeared on behalf of the applicant. She indicated that she had not been briefed for the final hearing as the respondent was struggling to find the financial means to fund ongoing legal representation. Nonetheless, counsel said that she had been instructed to appear at the case management hearing and to oppose the application for remote attendance.
In short, Ms Goonetillake submitted that there was no proper basis for the court to accede to the applicants’ request and that if the application was granted her client would be significantly prejudiced.
The respondent’s counsel submitted that the applicants have been on notice of the trial date since early June 2025 and have had more than enough time to make arrangements to attend Court to prosecute their claims in person. She submitted that there were no compelling reasons for the Court to depart from the usual requirement that witnesses give evidence in person and that the onus of establishing otherwise rested with the applicants. On that point, Ms Goonetillake noted that there was no evidence before the court regarding the applicant’s financial circumstances, the cost of travel, their current employment and their claims of hardship. Ms Goonetilake submitted that her client had only become aware of the request for remote attendance when the applicant’s solicitors raised it in correspondence to my chambers on 22 September 2025.
Ms Goonetillake submitted that personal attendance by the applicants was critical in this case because much of their evidence will be contested, cross-examination is likely to be wide-ranging and lengthy, and the credit of the applicants will be squarely put in issue. Counsel submitted that her client’s defence will rely upon a completely different narrative and factual account of the alleged employment and work. The respondent denies that she was the applicants’ employer, denies that there are any facts which could support such a finding and denies being involved in any of the contraventions alleged by the applicants.
Furthermore, it was submitted that the significant and serious allegations made against the respondent related to work which was performed nearly 7 years ago and in respect of which the applicants seek the imposition of civil penalties. Ms Goonetilake submitted that the court will have to make findings about the identity of the applicants’ employer, the nature and hours of work they performed and other issues about which the credit of the parties will be key. She submitted that it would be unfair and prejudicial if her client was subjected to in-court cross-examination and the applicants were not. She submitted that the court’s assessment of the witnesses would not take place on a level playing field and might be skewed as a result.
Counsel also raised the impracticality of conducting a hybrid trial, particularly in the circumstances of this case. The applicants’ solicitor has conceded that one of his clients has difficulties with English and that an interpreter will be necessary to assist one or both applicants throughout the trial. The applicants are geographically distant and live in a time zone which would require them to participate in proceedings during the early hours of the morning and probably into their work time.
In support of her client’s opposition to the application, Ms Goonetillake relied on the approach to this issue taken by Murphy J in Southernwood v Brambles Limited (No.2) [2022] FCA 973 (Southernwood), a case to which I will return shortly. Ms Goonetillake submits that the financial and reputational stakes for the respondent are extremely high and far outweigh any inconvenience to the applicants. She submits that the interests of justice weigh heavily against the applicants’ request, and it should be refused.
Reply
In a brief reply, Mr Gianopoulos reiterated that the respondent’s opposition to the application had taken him by surprise. He felt that he had been placed at a disadvantage by not being forewarned of the respondent’s position.
I acceded to Mr Gianopoulos’ request to provide a short written reply. In his written submission, which I received today, Mr Gianopoulos advanced the following points:
(1)the quantum of the applicants’ claims are relatively small [1];
(2)the applicants participated in mediation without objection of complication [2];
(3)evidence-in-chief will be by affidavit and the court will only need to observe the witnesses during cross-examination and re-examination [2];
(4)the respondent did not raise any objection about the applicants appearing by video-conference before 25 September 2025 and that the objection may have been calculated to frustrate or delay the hearing, particularly having regard to the respondent’s lack of engagement in the proceeding [3];
(5)the applicants are of limited means. If required to travel to Australia the applicants will incur significant costs and their current employment may be imperilled [4];
(6)if the application to appear by video is refused, the applicants may be required to seek an adjournment of the trial [6];
(7)the courts discretion should be exercised having regard to ss 5, 190(2), 201(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Rules 1.04(1) and 10.4(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules);
(8)since the COVID-19 pandemic, courts and their lawyers now have extensive experience with conducting trials remotely [8];
(9)while there is no prima facie approach to the exercise of the court’s discretion, there are ample judgments[4] of this court and the Federal Court which support the proposition that proceedings conducted wholly or partially remotely will not diminish the court’s ability to make credibility findings [9]-[11].
[4] See e.g., Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (15 April
CONSIDERATION
I now turn to my consideration of the competing submissions.
Division 6, Part 6, Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) sets out various provisions regarding the use of video links and audio links in proceedings in Division 2 of this court. Pursuant to s 201(1) the court may direct or allow testimony to be given by video link or audio link in certain circumstances. Pursuant to s 202(1) the Court may direct or allow a person to appear before the court by electronic means. Section 203(1) empowers the court to receive submissions by the use of video or audio link. The Court’s discretion to allow a person to give evidence, to appear or to make submissions by video may be exercised on the application of a party to the proceedings or on the court’s own initiative.
The legislation includes the precautionary requirement at s 204 that the court must not exercise the powers conferred by ss 201(1), 202(1) or 203(1) unless it is satisfied that various technical and practical conditions can be met in relation to the electronic link. In the case of video, it is necessary that the facilities at both ends of the connection enable the persons in court to see and hear the person giving testimony and for the remote person to see and hear relevant persons who are present in the courtroom. The Court also has powers to give directions regarding how documents should be shown to or transmitted to remote witnesses and how oaths and affirmations are to be taken. The provisions to which I have referred are similar in content and effect to cognate provisions in s 47A of the Federal Court of Australia Act 1976 (Cth).
There is no doubt that the court has power to make an order of the type sought by the applicants. The court is also equipped to hear matters via electronic means or hybrid means (where some participants are in court and others are not) and it regularly does so. There would be few if any judges who have not heard cases in some form of hybrid or remote fashion in recent years. While I cannot speak for all courts, the Commonwealth Courts in this building are sufficiently resourced and equipped to accommodate remote participation when warranted.
That said, the real question to be determined on this occasion is whether the court should exercise its discretion to make the order for the applicants to appear and give their evidence by video from their respective locations in Italy and Switzerland.
Whether or not the court will exercise its discretion in any given case will depend upon the particular facts and circumstances of that case. There is no right to appear remotely – indeed in my view there is a presumption against it. Good reasons for the exercise of the court’s discretion must be made out by the party seeking the favourable exercise of that discretion: Australian Securities and Investments Commission v Wilson [2020] FCA 873 at [6], [24] (Wilson).
In Southernwood at [44], Murphy J noted that no one set of factors are either exhaustive nor prescriptive of the way in which the court’s discretion should be exercised. The discretion is a broad one in which the determining interest is the interests of justice in the case at hand. There is no presumption nor prima facie case as to the way in which the discretion is to be exercised. Murphy J held that the discretion involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with managing justice between the parties. That assessment should be guided by the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth)[5], namely, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
[5] See, the equivalent provisions regarding case management in the overarching purpose of civil practice and procedure set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link. There is generally a line of cases in favour of the use of audio or visual evidence, and a line of cases which urge a more cautious approach.
Several authorities emphasise the benefit that it is possible, with video, to obtain a clearer view of the witness, such that facial expressions, reactions, bodily movements and gestures are easier to discern when evidence is given remotely, as opposed to when the witness is positioned some distance from the bench in a courtroom: Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 at [49]; Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 at [32]. By contrast, other authorities raise concerns of a lack of solemnity about giving evidence remotely, as well as difficulty in appreciating and assessing non-verbal signals such as minor differences in emphasis or tone: Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524 at [43]-[47]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78].
In Southernwood, Murphy J surveyed a number of relevant authorities (including some of those cited by the applicant) which revealed changing attitudes and diverging opinions within the courts regarding the conduct of proceedings and the hearing of evidence across electronic platforms. In terms of the balancing exercise which underpins the discretion to permit testimony by video, the Courts have recognised that there have been substantial advances in the state of technology which can lead to savings in time and cost. The experience of the COVID-19 pandemic and the widespread adoption of video technology which became necessary to ensure that courts continued to function during periods of lockdown, have seen many judges enthusiastically embrace technology under the rubric of the overarching purpose – efficiency and avoiding undue delay, expense and technicality. Yet there are many Courts and judges who remain steadfastly of the view that there are inherent deficiencies, inefficiencies and complications when evidence is taken by video link. There is no one size fits all answer.
Some judges have expressed the view that where evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It can be a manner of ensuring a smooth trial by receiving evidence in an efficient, cost-effective and timely way. I completely agree.
That said, when doing justice between the parties, there can be a real and material difference between viva voce evidence and evidence given from a remote location via video.
Concerns regarding the effectiveness of cross-examination, the importance of certain witnesses and their credit to the determination of factual disputes, in-trial document management, reliability of technology and fairness to the parties loom as just some of the issues when considering applications of the kind made by the applicants. For many judicial officers, particularly trial judges who are required to extract the truth from a thicket of contested narratives, the task can be made all the more difficult when court participants are separated by distance, time-zone and technology.
In Kirby v Centro Properties Ltd [2012] FCA 60, Gordon J cited with approval the remarks of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) [2009] FCA 1306 where his Honour said at [78]:
I share the concerns expressed by Spender J in World Netscape [sic] and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. …
Improvements in technology (many of which emerged during or as a consequence of the COVID-19 pandemic) have addressed some issues but not all. There is no technology which can replicate the solemnity of the court room for the remote witness or bring the remote witness into the same physical and emotional environment in which other parties and witnesses must participate in the proceedings.
Having considered the authorities to which I have been referred by both parties and having undertaken the balancing exercise as to what will best serve the administration of justice in this particular case, I have decided against exercising my discretion to allow the applicants to appear and give evidence by audio-visual link.
The factors which I consider weigh against the exercise of discretion in this case are as follows:
First, in this case the application to appear and to give evidence by video relates to the participation of the applicants in their own cases. I am not being asked to entertain an application to consider the inconvenience to a lay witness who is required to attend court in a supporting capacity in someone else’s case. Here, the applicants commenced the proceedings and are the parties principal. They will be the principal witnesses in their respective applications and if the proceedings are to be conducted properly in accordance with their instructions, they will need to participate in the proceedings from beginning to end. This application is to be distinguished from those that consider applications to meet the convenience of third-parties to the litigation.
Secondly, the applicants have chosen to invoke the jurisdiction of the court in order to seek relief. They have done so from outside the jurisdiction, albeit using local solicitors. While it may be possible to prepare and file documents and manage the litigation remotely prior to trial, there is no right to participate or give evidence in the trial itself by electronic means. There is a presumption that a person who invokes the jurisdiction of the court and is a party to a proceeding will physically appear to prosecute their case unless the court determines otherwise. The applicants must have known this or should have been put on notice by their solicitors. The applicants and their solicitors cannot simply assume the court will conduct a hearing to meet their preference.
Thirdly, the applicants are the critical witnesses. The success of their respective cases will rise or fall on their evidence. It is clear on the pleadings that the applicants’ evidence will be contentious and issues of credit will loom large. The court will be called upon to make significant findings, including as to the identity of the applicants’ employer and the legal nature of the relationship between the applicants and the respondent, all of which will turn on the evidence of the principal parties.
Further, this is a case where the alleged contraventions may give rise to civil penalties, and that is a factor to be considered in conjunction with questions of cross-examination and assessment of credit: Wilson at [17] per Jackson J; see also Tan v Commonwealth of Australia (Department of Defence) [2025] FedCFamC2G 439 per Judge Lucev at [54]. The consequence for the respondent of findings against her will be very significant and she may be subject to financial penalties and reputational damage. I expect cross examination will be a lengthy process and that witnesses will be challenged on many fronts as the narrative of the opposing party is put to them.
Fourthly, as the authorities have identified, there is a distinct difference in atmosphere between proceedings which take place in court and those which involve physical distance and technology. The solemnity of the traditional hearing which, in my view, is a much preferable forum for cross-examination and fact-finding, cannot be compared to the more remote and less intimate world of a video link. As many judges have observed the latter environment is not as conducive to detecting the subtle shifts in manner, tone and non-verbal signals which all feed into the assessment of witness credit.
Fifthly, there are language difficulties in these proceedings which will almost certainly require the involvement of an interpreter. The applicants’ solicitor has conceded that taking instructions, at least from Mr Falconieri, has been difficult and requires interpretation. The prospect of an interpreter being in one place, presumably in the court in Melbourne, and the applicants being in different places on the other side of the world giving evidence or instructions in the middle of the night, is daunting. I have had sufficient experience of attempts to make that kind of situation work smoothly, but invariably there are complications, often unforeseen. If ever there is a risk that evidence will be lost in translation, it will be in the scenario I have just described.
Sixthly, there is no evidence before me about the physical locations from which the applicants would give their evidence, the facilities available to them, their competence with technology or their ability to give evidence in the early hours of the morning between their shifts at work. The court must by its own legislation be satisfied that proper facilities are available and secure, but I have been given no confidence that the applicants will be able to appear and give evidence as seamlessly as they would if physically present. Here, two proceedings will be running in tandem, and the applicants will be in different parts of Europe. This will require multiple links and will impose additional strains on the court and its staff.
Seventhly, I am not satisfied that a hybrid hearing will provide a level playing field for the doing of justice between the parties. While not knowing from where the applicants would give their evidence, the cases caution about witnesses being freed from the solemnity of the courtroom. The environment for cross-examination may favour the applicants over the respondent, who will be required to give evidence under the full glare of the judge and cross-examining counsel. I consider it unfair and undesirable for the applicants in this proceeding not to be in the proximity of the person they have brought to court.
Eighthly, I am far from persuaded that the conduct of the trial will be more efficient if the applicants appear by video. A particular issue in remote hearings is the difficulty of showing documents to a witness during cross-examination. There is some ability to manage the situation by providing a witness with a copy of the court book and relevant documents before they give evidence. But even with the best will in the world, witnesses have difficulty navigating court books (whether physical or electronic) and they cannot be assisted by their representative or the judge’s associate as often happens when they are in court. Furthermore, there are language difficulties, there will be translation issues and there will be circumstances where additional documents - not in the court book - have to be shown. I see potential for a logistical calamity which is best avoided.
Ninthly, I have not been provided with persuasive evidence, on affidavit, about the applicants’ inability or unwillingness to travel to Australia to participate in the proceeding and give evidence. They have not given evidence about their work commitments, their inability to take time off, the costs of travel and accommodation and so on. Their solicitor has made submissions to the court but at a high level of generality.
Tenthly, I am not persuaded that the cases cited by the applicants support anything other than that the court has a discretion and that it will be exercised as justice requires. There is no prima facie presumption that electronic or hybrid trials have become the norm. I note also that several of the cases I have cited (e.g. Capic; GetSwift; and Keyamo) occurred during COVID-19 where the courts had to favour electronic trials as a necessary but sub-optimal means of keeping the administration of justice moving forward.
Further, the authorities cited by both parties involve cases where the court has been asked to exercise its discretion to accommodate the convenience of a witness who is not a party to the proceedings. Usually where leave is granted for virtual evidence-giving the witness enters the courtroom electronically, gives his or her evidence and is then excused, with the technology shut off and the in-person hearing resuming. Here, where the applicants are the parties, the electronic link will have be open from the beginning to the end of a 4-day case, increasing the risk of temporary failure.
Finally and importantly, the application to appear remotely via video has been made very late – just two weeks prior to trial. The applicants and their solicitors had no basis to assume a right to a hybrid trial or that the respondent would agree. The applicants’ solicitor has not been unfairly ambushed by the respondent’s opposition, nor should he have been taken by surprise. An application for participation by video, supported by evidence could have been made months ago when the trial was listed. If that had occurred the respondent may have had a different attitude, as too may have the court. But the lateness of this application weighs against the exercise of my discretion.
Applicants who initiate litigation in any court are faced with inconvenience when matters go to trial. A party to litigation invariably will have to incur some cost, undertake some travel and take time off work to appear to give evidence, observe the proceedings and instruct their representatives. That inconvenience goes with the territory, and I imagine it is felt even more acutely by the respondent who contests the claim. As I mentioned in a previous paragraph, it is not for the court to accommodate the convenience of a party who has invoked the court’s jurisdiction just because that person has done so from abroad. The applicants should have been on notice that they might have to return to Australia if the matter went to trial.
DISPOSITION
The applicants’ application to appear and give evidence in the proceedings via videoconference is denied.
This ruling by the court may have consequences for the trial which is scheduled to commence on 6 October 2025. The court will hear submissions from the parties about the readiness of the matter for trial and other procedural issues at the case management hearing at 4.30pm on 29 September 2025.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 29 September 2025
2020), [19] (Capic); Joy v UGL Operations and Maintenance Pty Limited (No 3) [2024] FCA 279 (25 March 2024), [3], [46] and [65]; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [33] (GetSwift); Keyamo v Silver Lakes (Deflector) Pty Ltd [2022] FedCFamC2G 984, [16]-[18] (Keyamo).
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