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
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…
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Details
- AGLC
- Marzo v Cittadini [2025] FedCFamC2G 1591
- Case
- [2025] FedCFamC2G 1591
- Decision Date
CaseChat Overview and Summary
The application in Marzo v Cittadini concerns an attempt by the applicants, Mr Marzo and Mr Falconieri, to participate and provide evidence at trial by video-link from their respective locations in Italy and Switzerland. The applicants, who were once working holiday visa holders in Australia, are seeking to recover unpaid wages, superannuation contributions, and seek declarations and penalties under the Fair Work Act. The respondent, Ms Cittadini, opposes the application on various grounds. The primary legal issue before the court was whether the applicants should be granted leave to appear and give evidence via video-link. The applicants argued that the travel costs and inconvenience were disproportionate to the small quantum of their claims and that they faced significant hardship if required to travel to Australia for the trial. They relied on their current employment situations and the potential risk to their jobs if they were to take time off work to attend the trial. The respondent opposed the application on the basis that the applicants had not formally applied for leave to appear via video-link, and that the small amount of the claims did not justify the grant of such leave. The respondent further argued that extensive cross-examination was expected and that the applicants' claims were complex, involving multiple alternative defendants and disputed employer identity.
The court considered the principles relevant to its discretion in allowing remote appearances, including the nature and complexity of the case, the inconvenience to the applicant, and the availability of other means to ensure a fair trial. The court noted that the applicants had not formally applied for leave to appear via video-link and that their claims, while not insubstantial, were relatively modest compared to the potential penalties sought. The court also considered the need for extensive cross-examination and the complexity of the case, which involved multiple defendants and disputed employer identity. Ultimately, the court found that the applicants had not demonstrated sufficient grounds to warrant the grant of leave to appear and give evidence by video-link. The application was dismissed.
The court considered the principles relevant to its discretion in allowing remote appearances, including the nature and complexity of the case, the inconvenience to the applicant, and the availability of other means to ensure a fair trial. The court noted that the applicants had not formally applied for leave to appear via video-link and that their claims, while not insubstantial, were relatively modest compared to the potential penalties sought. The court also considered the need for extensive cross-examination and the complexity of the case, which involved multiple defendants and disputed employer identity. Ultimately, the court found that the applicants had not demonstrated sufficient grounds to warrant the grant of leave to appear and give evidence by video-link. The application was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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”)
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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