Ponzio v Ashley Services Group Limited - [2025] FedCFamC2G 289

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ponzio v Ashley Services Group Limited [2025] FedCFamC2G 289

File number(s): PEG 314 of 2023

Judgment of: JUDGE LUCEV

Date of judgment: 27 February 2025

Catchwords:
PRACTICE AND PROCEDURE – Affidavits – whether to allow filing of further affidavits – subpoenas – bias – application of Magna Carta – contempt of court – communications with Chambers – whether to issue order prohibiting communication with Chambers

INDUSTRIAL LAW – Application alleging contravention of general protection – alleged unlawful termination

Legislation:
Constitution Ch III, s 51

Fair Work Act 2009 (Cth), ss 368, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 142, 190

Immigration Restriction Act 1901 (Cth)

Judiciary Act 1903 (Cth) s 55ZF

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 16.01, 16.03, 16.05, 16.06, 20.02

Federal Circuit Court Rules 2011 (Cth) r 15A.05

Legal Services Directions 2017 (Cth)

Magna Carta Act 1297 (UK)

Cases cited:
Arnold & Anor v State Bank of South Australia & Ors (1992) 38 FCR 484

Bostan v European Operations Company Pty Ltd (No 3) [2023] FedCFamC2G 1026

Chia Gee & Ors v Martin [1905] HCA 70; (1905) 3 CLR 649; (1905) 12 ALR 425

Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577

Ex parte Walsh and Johnson; in re Yates [1925] HCA 53; (1925) 37 CLR 36

Faulkner v Tidewater Marine Australia Pty Ltd [2014] FCCA 1487

Fisher & Anor v Westpac Banking Corporation & Ors (unreported, Federal Court of Australia, No 64/92, 18 August 1992)

Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743

Irwin v Irwin [2016] FCA 1565

Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 86 ALJR 14; (2011) 282 ALR 685

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; (2023) 409 ALR 65; (2023) 66 Fam LR 369

Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84; (1991) ATC 4028

Witham v Holloway [1995] HCA3; (1995) 183 CLR 525; (1985) 69 ALJR 847; (1995) 83 A Crim 472

Woolmington v Director of Public Prosecutions [1935] AC 462; [1935] All ER Rep 1

Division: Division 2 General Federal Law

Number of paragraphs: 121

Date of last submission/s: 14 February 2025

Date of hearing: 14 February 2025

Place: Perth

Applicant: In person

Counsel for the Respondent: Mr M Diamond

Solicitor for the Respondent: Mark Diamond & Associates Lawyers
ORDERS

PEG 314 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
LAURA PONZIO

Applicant

AND:
ASHLEY SERVICES GROUP LIMITED

Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

14 FEBRUARY 2025

THE COURT ORDERS THAT:
1.Notwithstanding the previous orders of the Court:
(a)the Applicant file and serve any further affidavit evidence by 1 March 2025;
(b)the Respondent file and serve any further affidavit evidence by 1 April 2025;
(c)the Applicant file and serve an outline of submission by 15 April 2025; and (d) the Respondent file and serve an outline of submissions 29 April 2025.

2.
(a)No party to this matter is to communicate to the Court by way of email directed to the following email address: [email protected];
and
(b)all future email communication to the Court in this matter is to be directed to the following email address: [email protected] and to be dealt with by a Registrar of the Court.

3.Costs, if any of today, reserved.
4.Reasons for Judgment in relation to the above Orders will be published from Chambers at a later date.

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 LUCEV
INTRODUCTION

On 27 December 2023 the applicant, Laura Ponzio (“Ms Ponzio”), filed an application in the Fair Work Division of this Court alleging contraventions of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).
At a directions hearing before the Court as presently constituted on 28 June 2024 the usual procedural and programming orders were made, and the matter was listed for a final hearing for two days on 3 and 4 June 2025. Since then, and in particular in the lead up to and following a further directions hearing on 28 November 2024 the matter has been marked by issues raised by Ms Ponzio concerning the programming orders made, the lawyers for the respondents, Ashley Services Group Limited (“Ashley Services”), the presiding Judge (including inquiries as to issues of alleged bias and partiality), Chambers and Registry staff, and the date of the final hearing.
As a consequence of the plethora of issues raised (and in some cases re-raised) by Ms Ponzio since the November 2024 Directions Hearing the Court held a further directions hearing on 14 February 2025.
At the 14 February 2025 directions hearing the Court made the following orders (“February 2025 Orders”):
1.        Notwithstanding the previous orders of the Court:
(a)the Applicant file and serve any further affidavit evidence by 1 March 2025;
(b)the Respondent file and serve any further affidavit evidence by 1 April 2025;
(c)the Applicant file and serve an outline of submission by 15 April 2025; and (d) the Respondent file and serve an outline of submissions 29 April 2025.
2.
(a)No party to this matter is to communicate to the Court by way of email directed to the following email address: [email protected];
and
(b)all future email communication to the Court in this matter is to be directed to the following email address: [email protected] and to be dealt with by a Registrar of the Court.
3.        Costs, if any of today, reserved.
4.Reasons for Judgment in relation to the above Orders will be published from Chambers at a later date.
In order to understand the issues raised and the basis upon which the Orders were made it is necessary to set out the litigation history of the matter, some of the many issues raised by Ms Ponzio, and to make observations thereon. Ordinarily the Court would not provide Reasons for Judgment in relation to the February 2025 Orders – which are essentially programming orders made at a directions hearing. The nature and volume of issues raised by Ms Ponzio, and the manner in which they have been raised, is however such that the Court has considered it prudent to set out, at some length and in some detail, the reasons for the manner in which it has dealt with the matter and for making the February 2025 Orders.
HISTORY
Application
The matter commenced as, and remains, an application for orders in respect of an alleged contravention of general protections under the FW Act, filed on 27 December 2023, with an accompanying Form 2 setting out the alleged contraventions, and annexing the required certificate under s 368 of the FW Act.
March-May 2024
The matter was listed for a first court date on 12 March 2024, but on 6 March 2024 the Court (Judge Ladhams) adjourned the first court date to 23 April 2024.
On 22 April 2024 Ashley Services filed a Response opposing Ms Ponzio’s claim and seeking that it be dismissed in its entirety.
On 23 April 2024 a directions hearing was held at which the Court (Judge Kendall) made standard orders referring the matter to mediation before a Registrar of the Court, and for the matter to be listed for a further directions hearing if mediation was unsuccessful. Mediation was evidently unsuccessful, the matter being listed for a directions hearing before the Court as presently constituted on 28 June 2024.
On 15 May 2024 Ms Ponzio filed an affidavit of some seven paragraphs in the proceedings (“Ponzio May 2024 Affidavit”).
June 2024
The parties were advised at 12.50 pm on 11 June 2024 that the matter had been listed for a directions hearing on 28 June 2024 with leave to Ashley Services (whose lawyers are based in Balmain in New South Wales) to appear by videolink. Less than an hour later at 1.48pm on 11 June 2024 Ms Ponzio wrote to the presiding Judge’s Associate (“Associate”) indicating that she did not agree with Ashley Services request to appear by videolink and asked why she was the only one who had to appear in person, and that Ashley Services must have a budget for flights and accommodation for matters such as this. The Court’s response in a 12 June 2024 email was to give all parties leave to appear by video link at the directions hearing only.
On 25 June 2024 at 10.59 am the Court sent the standard pre-directions hearing email to the parties inviting them to send any proposed minutes of consent orders to Chambers prior to the directions hearing, or if unable to consent to appropriate programming orders, to forward to Chambers a copy of any proposed orders.
Ms Ponzio’s responded to the standard pre-directions hearing email at 6.10 am on 26 June 2024, emailing the Associate referring to the Ponzio May 2024 Affidavit (filed on 15 May 2024) and asked if this was not sufficient to address the matters raised, and further indicated that if the Court required her to reiterate those points in dot form to advise her accordingly so that she could provide them by the time requested. By email the same day the Associate replied to Ms Ponzio advising that the 28 June 2024 directions hearing was entirely procedural and that orders would be made to programme the matter to a final hearing and to deal with any preliminary issues that may arise, and that the purpose of the pre-directions hearing email was so that any consent or proposed orders could be addressed at the directions hearing.
On 28 June 2024 the Court made orders (“June 2024 Orders”) as follows:
1. The Applicant is to file and serve any affidavit evidence on which they intend to rely at the final hearing by 28 September 2024.
2. The Respondent is to file and serve any affidavit evidence on which it intends to rely at the final hearing by 28 November 2024.
3.The Applicant is to file and serve any affidavit evidence in response by 28 January 2025.
4. The parties are to exchange a list of objections to any of the affidavit evidence and confer with a view to resolving those objections no later than 35 days before the final hearing and are to file a table stating the resolved and outstanding objections to the affidavit evidence with the basis of the objection identified and the response to that objection by no later than 7 days before the final hearing.
5. The Applicant is to file and serve an outline of written submissions 28 days before the final hearing.
6. The Respondent is to file and serve an outline of written submissions 14 days before the final hearing.
7. The matter is listed for final hearing for two days on 3 and 4 June 2025 at 10:00am.
8. The parties have liberty to apply on 3 days notice.
10. Costs, if any, are reserved.
The June 2024 Orders are standard programming orders for a Fair Work matter following an unsuccessful mediation.
Following the directions hearing on 28 June 2024 the parties were sent a Notice of Listing advising that the matter had been set down for final hearing on 3 and 4 June 2025 (in accordance with the June 2024 Orders made that day).
25 November- 3 December 2024
On 25 November 2024 Ashley Services’ solicitors wrote to the Court (copied to Ms Ponzio) indicating that they had not received any material from Ms Ponzio beyond what was already on the Court file on 28 June 2024 when the June 2024 Orders were made, and requesting that the matter be re-listed for directions so that both the Court and Ashley Services could obtain an indication as to whether Ms Ponzio was “seriously pressing a case with no evidence”.
Within the hour Ms Ponzio had responded to the above request from Ashley Services’ solicitors (and copied to the Associate) indicating that:
I have a copious amount of evidence could you please advise to whom it should be sent to.
I am confirming that the case is still continuing. As I’ve made you aware Mr Diamond [Ashley Services’ solicitor] that I was overseas and you sent me an email requesting the evidence without including other relevant parties.
Could I please be updated with what form the Court requires the evidence and the date it is required by.
On 26 November 2024 the Court sent the parties a Notice of Listing for a “Directions” hearing on 6 December 2024. Within the hour, Ms Ponzio responded confirming receipt of the Associate’s email and advising that:
I was under the impression that the hearing was adjourned for some time in June 2025. I have not received any notification of the date being changed.
Furthermore, yesterday I received an email from Mr Diamond in relation to the evidence that is required. For your information, Mr Diamond emailed me whilst I was overseas requesting for evidence without including the Court’s email as per instructions earlier this year.
In yesterday’s email I responded what evidence was required but I got an immediate automated response from Mr Diamond advising that he was on medical leave. Can you please provide some clarification to these matters?
The above email was not copied to Ashley Services’ solicitors.
On 27 November 2024 at 3.36 pm the Associate responded to Ms Ponzio in an email addressed to the parties and advised that:
(a)in accordance with the June 2024 Orders the matter remained listed for hearing for two days on 3 and 4 June 2025, which dates were unchanged, and that the June 2024 Orders (attached to the email) included the dates upon which evidence was due to be filed by all parties;
(b)the matter had been set down for a directions hearing in response to the 25 November 2024 email from Ashley Services’ solicitors seeking a directions hearing;
(c)parties are required to copy each other into all correspondence to Chambers, but Chambers is not required to be privy to all correspondence that may occur between the parties; and
(d)the matter remained listed for a directions hearing on 6 December 2024.
A little over an hour later at 4.57 pm on 27 November 2024 Ms Ponzio wrote to the Associate reiterating the points in her previous email and complaining that Mr Diamond had not followed the correct Court process when requesting evidence from her in an email when she was overseas, and enquiring as to how that “stands in a court of Federal law?”, and complaining that the clarification that she had been seeking had not been provided, and that she required it for the directions hearing on 6 December 2024.
On 28 November 2024 at 9.24 am the Associate wrote to the parties indicating that:
(a)Court staff cannot give legal advice;
(b)as per the June 2024 orders:
(i)Ms Ponzio was to file and serve any affidavit evidence on which she intended to rely at final hearing by 28 September 2024;
(ii)Ashley Services was to file and serve any affidavit evidence on which it intended to rely at final hearing by 28 November 2024; and
(iii)Ms Ponzio was to file and serve any affidavit evidence in response by 28 January 2025;
(c)advising that Chambers did not accept documents for filing, and explaining that documents could be filed in various ways, including via e-lodgement at by email to the Perth Registry, and by fax to the designated Registry facsimile number, and that information about registering for using e-lodgement could be found on the website and that if assistance was required the Registry could be contacted; and
(d)that if there were any further issues related to the matter they could be raised at the directions hearing on 6 December 2024.
A little over an hour later at 10.29 am on 28 November 2024 Ms Ponzio responded to the Associate indicating that she was not seeking legal advice just clarification as to what was required and stating that she was confused because the previous email had stated that the final hearing was on 28 November 2024 and that Ashley Services could provide affidavit evidence by 28 January 2025, and asking why the final hearing was on 28 November 2024. The Court notes that it is evident that Ms Ponzio misread the previous email which indicated that Ashley Services evidence for the final hearing was due to be filed by 28 November 2024, and any affidavit evidence in response from Ms Ponzio was due to be filed by 28 January 2025. The Associate responded to Ms Ponzio by email later on 28 November 2024 confirming receipt of Ms Ponzio’s most recent email (the 10.29am email) and indicating that the Judge would deal with the matters at the directions hearing on 6 December 2024.
On 28 November 2024 Ashley Services filed the affidavit of Aram Sahakian (“Sahakian November 2024 Affidavit”) in accordance with the June 2024 Orders.
On 2 December 2024 at 6.36 am Ms Ponzio wrote to the Associate as follows:
It clearly appears to me that this case, I highlight a Federal Court Hearing is being held in a very unconventional and underhanded manner.
I don’t believe that is the correct manner a judiciary system should function.
I would like and appreciate an explanation, at your earliest convenience, as to why this is occurring taking into consideration the seriousness of the matters.
At 6.57 am the same day Ms Ponzio forwarded a further email indicating that:
This is not the correct manner and functions of a judiciary system that is also guided and bounded by laws. I reiterate, I would like and appreciate an explanation, at your earliest convenience, as to why this is occurring taking into consideration the seriousness of the matters.
At 5.03 pm on 2 December 2024 the Associate wrote to the parties and indicated that any matters that they wish to raise could be raised at the directions hearing on 6 December 2024. Seven minutes later Ms Ponzio responded to the Associate’s email as follows:
I’ve raised many matters in my affidavit. That was not what my emails this morning were related to. If you could please provide me with the details that I requested I would appreciate it.
If I was not to attend the video link on Friday what would be the consequence of that? I would also appreciate a response to this question.
On 3 December 2024 at 11.48 am the Associate wrote to the parties indicating that:
(a)as had been reiterated in an email to the parties on 27 November 2024 at 3.36 pm the directions hearing was called on in response to an email sent by Ashley Services to Chambers on 25 November 2024, into which Ms Ponzio was copied, requesting that the matter had be listed for directions as Ms Ponzio had filed no material in accordance with the June 2024 orders;
(b)that if there were issues or concerns or questions concerning the orders previously made by the Court or compliance or non-compliance with those orders, or orders that the Court may make at the forthcoming directions hearing, or the Court’s practice and procedure in the matter, those issues or concerns or questions to be raised with the Judge at the directions hearing on 6 December 2024.

Within half an hour Ms Ponzio had responded requesting an answer to the questions posed in her previous email. Later on 3 December 2024 the Associate advised that:
(a)any issues, concerns or questions you have can be put to the Judge at the directions hearing on Friday; and
(b)if you do not attend, orders may be made in your absence.
A little over an hour later Ms Ponzio replied thanking the Associate for the reply and saying “With all due respect. Why was that so hard to answer to?”
Directions hearing – 6 December 2024
At the 6 December 2024 directions hearing the transcript indicates that:
(a)the Court explained to Ms Ponzio that:
(i)she had not filed any affidavits in accordance with the June 2024 Orders of the Court, but that if she wished to file further evidence then the filing of affidavits in the matter could be accommodated by a rescheduled timetable; and
(ii)the question was whether she wished to file any further affidavits;
(b)Ms Ponzio indicated that she did wish to file further affidavits;
(c)Ms Ponzio commenced to read out a statement that she wished to read out relating to seeing a former colleague from Ashley Services at a club in Fremantle, and that person’s seemingly positive reaction to seeing Ms Ponzio, and Ms Ponzio began to describe events involving the former colleague at or about the time of Ms Ponzio’s termination of employment with Ashley Services;
(d)the Court told Ms Ponzio that she could call the former colleague to give evidence at the hearing or have her file an affidavit;
(e)Ms Ponzio complained that there had been “complications in submitting this application with the [C]ourt” and that there was “this reluctance and avoidance to follow proper processes, even within the Courts”, to which the Court responded that:
(i)there was “nothing out of the ordinary in the way that this matter has been processed”;
(ii)it was as a consequence of Ms Ponzio’s non-compliance with the June 2024 Orders that Ashley Services had requested a directions hearing;
(iii)it was “entirely usual” in circumstances where a self-represented litigant said that they wished to take the opportunity to file evidence to put in place a revised timetable;
(iv)Ms Ponzio was entitled to subpoena witnesses, or she could have witnesses who would come along voluntarily;
(v)if (and this arose out of the statement Ms Ponzio was reading from) there were matters that were criminal in nature she should complain to the Police about them; and
(vi)everything that the Court needed to know should be in an affidavit so that the Court could have proper regard to the evidence;
(f)Ms Ponzio then complained that there was a lot of interference on her personal devices and she couldn’t submit her application properly;
(g)the Court told Ms Ponzio that if she wished to make a complaint about the Registry processes she should do so by writing to the Principal Registrar of the Court based in Sydney, but that it was not unusual for there to be difficulties in filing an application electronically and sometimes people had to come in to the Registry to file applications, but that in this case an application had been filed within time and that normal procedures had been followed;
(h)Ms Ponzio indicated that she had been in contact with the Commissioner of Police in Western Australia, and the Commonwealth Ombudsman over these matters, and that she had contacted the Legal Services Commission in New South Wales, and that she had “been pushed back and continuously told that I haven’t provided enough information”;
(i)in response to questions about who at Ashley Services were the “orchestrators of all the antics” she had witnessed from the time of her employment with Ashley Services and with the invasion of her privacy the Court told Ms Ms Ponzio that she had the right to give evidence about the issues and to cross-examine Ashley Services witnesses in relation to the conduct of Ashley Services at the hearing, if the matters were relevant to her general protections claim;
(j)Ms Ponzio queried why the directions hearing was by video-link “and not in person like in any other proceedings”, and the Court explained that a majority of directions hearings were now conducted by video-link, but that that the final hearing would be an in-person hearing, and that all parties and their witnesses would have to appear in person, in relation to which Ms Ponzio responded by indicating that she may not be in Australia in June 2025 when the matter is listed for final hearing;
(k)the Court responded by indicating that unless she made an application to appear by video link, and that application was granted, if she did not appear in person at the June 2025 final hearing it was a distinct possibility that her general protections contravention application would be dismissed for non-appearance;
(l)the Court explained that an application for a hearing by video-link for a final hearing ought to be made earlier rather than later, and that Ms Ponzio ought not take it for granted that simply because she made an application for a video link hearing that it would be granted, and that for final hearings video links hearings were still the exception rather than the rule;
(m)Ms Ponzio then said that at the time of the initial hearing (presumably a reference to the directions hearing before the Court (Judge Kendall) on 23 April 2024) and negotiations to settle the case that the parties were “clearly instructed…that all communication was to go through the Federal Court”, and contrary to that Ashley Services solicitor had emailed her directly, and “does that not mean that … [that conduct] has obstructed the natural course of justice of this [C]ourt?” ; and
(n)the Court indicated to Ms Ponzio that the Court was not troubled by the parties contacting one another directly about the matter, and that “the normal course is that the only contact which is required to be notified to all of the parties is when one of the parties has contact with the [C]ourt”, and that no order had been made by the Court in this matter as to communications between the parties, and that an instruction that all communication had to go through the Court “would be a most unusual instruction to give to the parties” and that the Court as presently constituted was saying that it was only those communications sent to the Court by a party that need to be communicated to all of the parties.
The Court then made orders (“December 2024 Orders”) as follows:
1.Set aside orders 1-3 inclusive of the Court’s orders of 28 June 2024 and in lieu thereof, order that:
a)the Applicant file and serve any further affidavit evidence on which she intends to rely at final hearing by 1 February 2025;
b)the Respondent file and serve any further affidavit evidence on which it intends to rely at final hearing by 1 April 2025; and
c)the Applicant file and serve any further affidavit in response by 1 May 2025.
2. Costs of today, if any, be reserved.
6 December 2024 -10 February 2025
Following the directions hearing and the forwarding of the December 2024 Orders to the parties Ms Ponzio sought clarification as to the meaning of reserved costs, and was advised in an email from the Associate that it meant that a determination of costs, if any, arising from the directions hearing had been reserved to be determined at a later date, and was further advised, that in fair work matters costs were subject to s 570 of the FW Act, the text of which was set out in the Associate’s email response. The Associate also wrote that:
You will note that I have CC’ed this email correspondence to the Respondent please ensure that all correspondence to to Chambers is copied to all parties in the matter.
Later on 6 December 2024 Ms Ponzio emailed the Associate forwarding a written statement which she said she had not been given the opportunity to read in its entirety at the 6 December 2024 directions hearing. Whilst the Court is aware that that statement has been forwarded to the Court it has not read the statement as it would be inappropriate to do so outside of Court.
On 7 December 2024 Ms Ponzio forwarded an email to the Associate saying that the presently presiding Judge “was not present from the commencement of this Federal Court Case and as there are records of what was discussed he can refer back to them as to what directions/instructions were given to all parties involved”.
On 9 December 2024 at 6.31 am Ms Ponzio sent an email to the Associate (not copied to Ashley Services solicitors):
(a)annexing a 28 September 2024 email from Ms Ponzio to Ashley Services solicitors (which, notwithstanding her assertion that all correspondence between the parties was to be copied to the Court, Ms Ponzio did not copy to the Court at the time it was written); and
(b)indicating that she had “a large amount of photographic evidence” and asking in what format she was required to provide that photographic evidence.
At 10.12 am on 9 December 2024 the Associate responded that evidence must be filed in an affidavit with attached annexures, and attached a blank pdf and Word format of the general federal law affidavit to be used to file evidence, and a reminder that documents were not to be sent to Chambers for filing via email.
At 11.01 am on 9 December 2024 Ms Ponzio forwarded a further email to the Associate reiterating that she sent her statement to the Court because she wasn’t given the opportunity to read the complete statement at the directions hearing on 6 December 2024, and asked if it needed to be re-sent in another way, and whether it needed to be provided to Mr Diamond.
The Associate responded at 12.06 pm on 9 December 2024 advising that the email had been “CC’ed” to Ashley Services’ solicitors and included the attachment sent to Chambers, and requested that all correspondence to Chambers be copied to all parties in the matter, and advised that correspondence not so copied to all parties may not be considered.
At 3.58 pm on 9 December 2024 Ms Ponzio responded saying that she was “somewhat confused now” and that this was a point that she raised at the 6 December 2024 directions hearing at which “Judge Lucev defended Mr Mark Diamond and now you are saying that all communication has to go through the court. This is contradictory information you are providing.” Ms Ponzio reiterated these matters in a further email sent at 5.59 am on 10 December 2024, in which she went on to say:
Judge Lucev is a Judge of the court and should not show bias towards either the applicant or the respondent which he has. The role of a Judge, I’m pretty sure, takes into consideration the facts presented to him/her. Isn’t that an obstruction of the natural course of justice as well?
At 9.13 am on 10 December 2024 the Associate responded to Ms Ponzio’s 3.58 pm 9 December 2024 email as follows:
The email sent by me yesterday:
(a)states that when parties who wish to communicate with Chambers … are required to copy all other parties in the matter into any such communication;
(b)does not state that all communication between the parties is to be copied to Chambers. Chambers is not required to be privy to communications solely between the parties; and
(c)does not contradict anything said by Judge Lucev at the directions hearing last Friday.
Within 9 minutes Ms Ponzio responded saying as follows:
As I have suggested. Please refer to all previous communications where Judge Lucev wasn’t present and perhaps not privy to.
At 10.10 am on 10 December 2024 Ashley Services’ solicitors wrote to the Court concerning the allegation of bias made Ms Ponzio and said as follows:
For the record the Respondent rejects any assertion that some form of bias exists in this matter. That is simply and plainly not the case. Likewise the Respondent denies the assertion that a breach of natural justice has occurred. By the observation of the writer the court has been more than patient with this Applicant and any suggestion that the rules of natural justice have somehow been breached is ludicrous.
What action the court now takes as a consequence of the Applicant’s email is a matter that the Respondent leaves with the court.
This email is copied to the Applicant.
Later on 10 December 2024 the Court wrote to the parties as follows:
I refer to Ms Ponzio’s email sent at 5.59am this morning.
If any party wishes to make an application that Judge Lucev recuse himself on the basis of bias, an Application in a Proceeding supported by affidavit/s can be filed by that party.
On 12 January 2025 Ms Ponzio forwarded an email to the Associate as follows:
I have reviewed the orders made by Judge Lucev to refresh my memory on the dates you require the affidavits.
Can I get clarification on the matters discussed during the video link and information provided in emails.
1.Why are there two dates for affidavits to be uploaded on your portal with an additional affidavit date in May?
2.I mentioned that I have photographic evidence. How would you like for me to present them to you?
3.Judge Lucev mentioned that witnesses can be subpoenaed. How would you like for me to provide the list of people that I consider crucial witnesses that can provide their account “under oath” of what occurred.
On 15 January 2025 Ms Ponzio wrote to the Associate indicating that she had mentioned towards the end of the video link that she may be going overseas again, and that the Judge had responded that she could make an application for the hearing in June to be held via video link. Ms Ponzio requested that she be provided with information on how to proceed with that application.
On 15 January 2025 at 9.46 am the Associate responded as follows:
Firstly, in the 6 December Orders made by His Honour Judge Lucev, there is one date for the applicant to file and serve affidavit evidence and then second date is for the respondent to file and serve affidavit evidence. The third date is for you as the applicant if you wish to file any affidavit evidence in response to the respondent’s evidence.
Secondly, in relation to photographic evidence I reiterate what was previously sent to you on 9 December 2024 at 10:12AM:
Evidence which you seek to file must be filed in affidavit form with anything you wish to attach annexed to that affidavit.
Please find attached a blank PDF and Word format of the General federal law affidavit which can be used to file your evidence.
This link will also direct you to the form on the Federal Circuit and Family Court of Australia website where you can find further information: Affidavit - General federal law and migration | Federal Circuit and Family Court of Australia.
Please do not send any documents to Chambers, as Chambers does not accept documents for filing via email.
•Please note that you must file your documents using one of the approved filing methods:
•Via eLodgement, at (please note, to use eLodgement you will need to create an account). eLodgment is the Court’s preferred method of filing.
•By email to [email protected]
•By fax, to 08 9268 7208
Information about registering for, and using, eLodgment can be found at that website. If you require any assistance with eLodgment, please contact the general federal law Registry on (08) 9268 7100.
Thirdly, if you wish to subpoena any witnesses, you must file the appropriate form (a blank version of which I have attached to this email) which must then be served on each party. Please see the following link which will direct you to the form on the Federal Circuit and Family Court of Australia website where you can find further information: Subpoena - General Federal Law and Migration.
Fourthly, if you wish to make an application for the hearing to be held by video link then then you may file an Application in a Proceeding supported by Affidavit which will then proceed to a hearing where His Honour will hear the parties submissions in regards to the application.
Ms Ponzio responded 18 minutes later advising that:
I hope you can appreciate that since my termination of employment with Ashley Services Limited I’ve had inappropriate and illegal interference on my devices. Something I am still trying to get to the bottom of.
Five days later on 20 January 2025 Ms Ponzio wrote to the Associate as follows:
With all the to and froing of emails I haven’t clearly understood when you require everything. I appreciate the clarity that you provided but you have not stipulated dates of when they all need to be submitted on the portal. I can’t remember the email with that information.
Can you provide me with a dated for each item in the email you sent me below.
The Associate responded on 20 January 2025 indicating the dates for the filing of material were as per the December 2024 Orders, and that a copy of the December 2024 Orders had been attached to the email “again for your convenience” and that the December 2024 Orders were also available on the Commonwealth Court’s Portal.
On 30 January 2025 Ms Ponzio wrote to the Associate and requested advice as to how to request an extension to the timetable for the filing of evidence and affidavits, and also advised that she had become homeless and was in financial hardship. The Associate responded advising that if the extension was not opposed by Ashley Services then the parties were to confer and submit a minute of proposed consent orders for the Judge’s consideration, but failing that, Ms Ponzio may file an Application in a Proceeding supported by affidavit. Later that day Ashley Services’ solicitors wrote to the Associate (copied to Ms Ponzio) indicating that they were not prepared to consent to the extension of time being granted “based on the history of this litigation”.
Ms Ponzio, seemingly not having seen the Associate’s response to her, wrote to Ashley Services’ solicitor advising that the question was not for his client but for the Associate to the Judge to respond to, and that the solicitor had only been included on the email in an attempt to be open and transparent and so that the solicitor was aware of her current circumstances.
Later on 30 January 2025 Ms Ponzio wrote to the Associate apologising for the fact that she had not seen the response to her email requesting that the Associate “elaborate on what you mean and ask Judge Lucev to take into consideration my current circumstances”.
At 11.17 am on 3 February 2025 Ms Ponzio wrote to the Associate as follows:
As I am still waiting on a response from you in relation to my questions as to when you require the evidence that I wish to present, witnesses that need to subpoenaed and what conclusion has Judge Lucev come to of the considerations I asked for him to make?
In addition to that, can you please advise where does the hearing stand in relation to the Law of the Courts when people involved in the case have compromised it by discussions outside of the court? I have advised a number of times the people I have contact with and my advice was not taken on board.
Finally, with what I have stated in the above statements and questions, my final question is if you could ,at your earliest convenience, provide me with what position does this confusing process lave me in?
As I have mentioned a number of times since the "get go" of this case that I want and need to bring closure to this case as soon as possible but it's dragging on way too long now. Your personnel at the courts, who are public servants, have compromised the hearing as well. This is since submitting the application on 29/12/2023 as far as I know, if not before.
If you could respond at your earliest convenance, as I'd something that is constantly on my mind as well as disrespectful as I'm pretty sure that a judge of any court should not demonstrate partiality which appear that this has occurred as well.
I reiterate, please provide me with a responses as to what I have written in this email and what position does this confusing process leaves me in?

At 12.12 pm on 3 February 2025 the Associate responded to Ms Ponzio as follows:
In relation to your query about when evidence is required I reiterate what was previously sent to you on 15 December 2024 at 9:27AM. The dates for the filing of material are contained in the 6 December 2024 Orders made by his Honour Judge Lucev which were sent to the parties on 6 December 2024 and again on 20 January 2025 (the orders have been attached to this email again).
The matter has been programmed for final hearing on 3 and 4 June 2025 as per the 28 June 2024 Orders made by His Honour Judge Lucev and per the listing email sent to the parties on 28 June 2024 at 1:31pm.
As per the email sent to the parties on 30 January 2025 at 2:01pm, if you seek to extend the time for filing of material then the parties are to confer and submit a minute of proposed consent orders to Chambers for Judge Lucev’s consideration. Where the respondent has indicated that they oppose the extension of time and as the Applicant you still seek to extend the timing for filing of material, you may file an Application in a Proceeding supported by Affidavit/s with the Court. The matter will then come before His Honour Judge Lucev where parties can make submissions in relation to that application in a proceeding.
As was stated in an email to the parties on 10 December 2024 sent at 10:23am, if any party wishes to make an application that Judge Lucev recuse himself on the basis of bias, an Application in a Proceeding supported by affidavit/s can be filed by that party.
At 1.05 pm on 3 February 2025 Ms Ponzio responded to the Associate in the following terms:
Thank you for your email but I have to say:
1. You have not answered my queries in the email sent to you this morning.
2. You have reiterated what you required, which I am more than willing to provide but you have not stipulated any dates.
3. Why do you require all the evidence six months prior to the hearing?
4. Your failure to respond to my queries in a timely manner is not only extremely exhausting, not open and transparent, stressful and from my point of view quite underhanded. Can you explain why this is occurring in a Court of Law?
5. It is not reciprocal. I attempted to address matters in an open, transparent and timely manner. You have not. What are the reasons behind these processes. I’m pretty sure that I have a right to some further clarification in relation to my emails today so that I can better understand what you are referring to with clear communication including dates of when and what you require of me.
At 3.19 pm on 3 February 2025 Ms Ponzio again emailed the Associate as follows:
Without Prejudice
Dear Associates and Judges
I’m pretty sure I’d mentioned this before in my communication with you all.
Are you aware that there is such a thing as THE MAGNA CARTA?
As people in the judiciary system you should. If not google it. There’s a pretty good description of the meaning.
At 4.01 pm on 3 February 2025 the parties were forwarded an email by the Associate the opening paragraph of which was as follows:
The matter has been listed for a directions hearing as follows. The directions hearing arises as a consequence of the issues raised by Ms Ponzio through email correspondence.
The Notice of Listing listed the matter for a directions hearing on 14 February 2025.
At 6.23 pm 3 February 2025 Ms Ponzio emailed the Associate as follows:
WITHOUT PREJUDICE
Good afternoon,
Why are you changing the goal post as it suits you! This is the third time you have made date changes and the second Judge I have had to deal with. Why is that?
You have still not answered my questions from today’s communication yet you are jumping the gun and changing hearing dates. What kind of judicial system is that? It appears quite clear to be a very manipulative, underhanded and not following the rules of your own legislation.
Early the next morning, at 7.08 am, on 4 February 2025 Ms Ponzio again emailed the Associate, this time in these terms:
WITHOUT PREJUDICE
Good morning,
My final question that I’d appreciate an immediate response to is …. why is the hearing, with the change of date to February, again as a video link when the one in June was scheduled for all parties to attend in person?
Taking into consideration the change of date I need to prepare myself. As you are very well aware that I am self-representing. Please provide me with the due dates you required the affidavits and list of the people involved to be subpoenaed. You do not have control over me and what I need to compile and prepare for the hearing. That is also an obstruction to the natural course of justice.
At 10.34 am on 4 February 2025 the Associate emailed Ms Ponzio as follows:
As stated in the listing email the matter has been set down for directions which arises as a consequence of the issues raised by yourself through email correspondence. This directions hearing does not displace the final hearing which remains listed on 3 and 4 June 2025 as per the 28 June 2014 Orders.
The directions hearing is occurring by video link as the respondent is interstate and therefore you were also given leave to appear by video link.
Any issues, concerns or questions you have can be put to the Judge at the directions hearing on 14 February 2025.
At 11.29 am on 4 February 2025 Ms Ponzio responded by email to the Associate as follows:
I don’t recall this video link being scheduled. Can you please explain why the change has occurred? It cannot be selective in the information you provide me with. It’s an obstruction of the course of justice again isn’t it?
At 4.44 pm on 5 February 2024 Ms Ponzio wrote to the Associate as follows:
In Addition to the below email and the email sent querying your awareness of the Magna Carta are you also aware that Commonwealth Agencies are subject to the Legal Services Directions 2005 which imposes Presumption of Innocence.
I am the innocent party in all these matters and quite frankly I am starting to feel like a broken record having to continuously repeat myself.
I would appreciate an immediate response so that I can prepare what you require for the hearing which you have still not responded about.
On 6 February 2025 at 4.27 pm Ms Ponzio wrote to the Associate as follows:
When will I be expecting your reply to my last email sent yesterday at 4.44pm?
On 7 February 2025 at 1.27 pm Ms Ponzio again emailed the Associate, this time as follows:
I am wondering, if it’s not too rude to ask, why I haven’t received responses to the most recent email that I have sent that pertain to the preparation for the video link on the 14/02/2025.
I have recently sent other emails that have not been received by the recipients therefore can you confirm receipt of the emails and provide responses, thank you.
The Associate responded to Ms Ponzio later on 7 February 2025 as follows:
I refer to your email received by Chambers on 7 February 2025 at 1.27pm.
As stated in the email sent to the parties on 4 February 2025 at 10.34am:
As stated in the listing email the matter has been set down for directions which arises as a consequence of the issues raised by yourself through email correspondence. This directions hearing does not displace the final hearing which remains listed on 3 and 4 June 2025 as per the 28 June 2024 Orders.
The directions hearing is occurring by video link as the respondent is interstate and therefore you will also be given leave to appear by video link.
Any issues concerns or questions you have can be put to the Judge at the directions hearing on 14 February 2025.
At 2.19 pm on 7 February 2025 Ms Ponzio responded to the Associate as follows:
I understand what you have already stated previously. They were not my questions.
I still haven’t been provided with a response as to why another video link was scheduled for 14/02/2025?
I’d appreciate at least a response with the reason why?
At 9.20 am on 10 February 2025 Ms Ponzio wrote to the Associate in an email headed “WITHOUT PREJUDICE”, the text of which was as follows:
As you are very well aware that I am self-represented due to problematic law firms that I have dealt with since the initial application on 29/12/2023.
Are you aware that the inappropriate behaviours by the public servants at the Perth Registry that I have been subjected to as a self-representative in a Federal Court Hearing proceedings constitute “CONTEMPT OF COURT”. If you require me to elaborate it means that there have been tendencies, in my case quite a number of times, to interfere with or undermine the authority, performance or dignity of the courts or those who participate in the proceedings.
I am more than willing to provide you with the numerous examples, I have identified, in writing. If you would like for me to do that please advise.
Would you care to provide me with an explanation as to why this is still occurring?
At the direction of the presently presiding Judge the Associate did not respond to the above email.
At 8.50 am on 12 February 2025 the Court forwarded to the parties the standard pre-directions hearing email. At 10.20 am that morning Ms Ponzio wrote to the Associate, again under cover of a “WITHOUT PREJUDICE” header, as follows:
For your information I will not be preparing any further questions regarding the communication that I have sent as I do not want to go through what I experienced during the last video link where I was not granted to say what I had spent time preparing. In my opinion, with all due respect, Judge Lucev had bias opinions and I don’t believe that is the role of a judge in a federal court hearing.
Therefore I would ask that your personnel at the court to prepare the answers with explanations to the questions that I have posed in the various emails that I had no response to so I can understand what you are asking of me.
Directions hearing – 14 February 2025 and disposition in relation to issues raised
Introduction
At the commencement of the directions hearing the Court said that the matter had been called on so that the Court could deal with a number of issues which have arisen in the course of email communication between Ms Ponzio and the Associates, and listed those issues as being in relation to affidavits, subpoenas, bias, Magna Carta, the presumption of innocence, the Legal Services Directions, contempt of court, and communications with Chambers.
It is convenient at this point to set out the various issues raised at the 14 February 2025 directions hearing and at the same time deal with the Court’s disposition in relation to each issue.
Affidavits
At the 14 February 2025 directions hearing in relation to affidavits (see transcript, pp 2-6):
(a)the Court noted that Ms Ponzio had filed the Ponzio May 2024 Affidavit, that there had been two orders of the Court since then, the June 2024 Orders and the December 2024 Orders, allowing Ms Ponzio to file any further affidavits by 28 September 2024 and 1 February 2025 respectively, but that no further affidavits have been filed by her. The Court also noted that Ashley Services had only filed one affidavit, that being the Sahakian November 2024 Affidavit;
(b)Ms Ponzio sought to “correct” the presiding Judge’s view that she had only filed the one affidavit by asserting that she had filed an affidavit with the originating application. The Court noted that no affidavit had been filed with the originating application or the Form 2 in support thereof, but that a cut and paste of part of what appeared to be Ms Ponzio’s application to the Fair Work Commission was annexed to the Form 2;
(c)Ms Ponzio asserted that queries that she had concerning the filing of affidavits had not been answered, but when asked what her queries were concerning affidavits she was unable to articulate any issue concerning affidavits or the filing of affidavits, but said she did have an issue with respect to the subpoenaing of witnesses; and
(d)Ms Ponzio confirmed that she did wish to file a further affidavit or affidavits. Likewise, Ashley Services said that they wished to file further affidavits. Ashley Services said nothing as to their indication to the Court in an email of 30 January 2025 that they would oppose the further filing of affidavits by Ms Ponzio: see [52] above.
Ms Ponzio has filed the Ponzio May 2024 Affidavit in these proceedings. As indicated at [12] above that is an affidavit of some seven paragraphs (and a total of less than three pages) of substantive content. It is the only affidavit which has been filed by Ms Ponzio on her behalf.
Ms Ponzio has had two further opportunities to file affidavits in support of her case provided by the June 2024 Orders and the December 2024 Orders, but she has not availed herself of those opportunities. That Ms Ponzio did not file any affidavits in accordance with the terms of those two Orders was a matter for her. Notwithstanding Ms Ponzio’s many emails seeking clarification and asserting confusion, the two Orders were plain on their face. Furthermore, the explanations given to Ms Ponzio by the Associate in relation to how to go about filing affidavits were also clear on their face. Ordinarily, in these circumstances, and having regard to the provisions of s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”) it might be inappropriate to allow Ms Ponzio yet another opportunity to file further affidavits. Three factors do, however, weigh in favour of allowing the filing of further affidavits (by both parties):
(a)both parties say that they wish to file further affidavits;
(b)neither party objected to the other party being allowed to file further affidavits; and
(c)perhaps most critically of all, it is apparent that both cases have significant evidentiary deficits on the presently filed affidavits, and that in order to put the Court in a position to quell the controversy and properly deal with the issues seemingly raised by the originating application, further evidence may be necessary from both parties.
In the circumstances, the Court determined that it was appropriate to grant both parties leave to file further affidavits, and order 1(a) and (b) of the February 2025 Orders was accordingly made.
Subpoenas
At the 14 February 2025 directions hearing in relation to subpoenas the Court advised Ms Ponzio that (see transcript, pp 6-7):
(a)there are three types of subpoenas: a subpoena to give evidence, a subpoena to provide documents, and a subpoena to give evidence and provide documents;
(b)it is a matter for a party as to who they subpoena, and issuance of a subpoena is at a party’s request, made by completing the prescribed form in the rules and filing it with the Court, following which the subpoenas usually issue administratively;
(c)the party issuing the subpoena is required to serve them on the person subpoenaed and provide them with conduct money to attend Court; and
(d)that under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) there is a limit of five persons who may be subpoenaed, unless the Court grants leave for more persons to be subpoenaed.
The Court notes that:
(a)it had previously advised Ms Ponzio at the 6 December 2024 directions hearing that it was open to her to issue subpoenas for persons whom she sought to have give evidence at the final hearing; and
(b)the Associate had previously advised Ms Ponzio by email on 15 January 2025 (see [48] above) that if she wished to subpoena any witnesses she must file the appropriate form, attached a blank version of the subpoena application to the email, advised her that the subpoena must be served, and provided a link to the “Subpoena – General Federal Law and Migration” page on the Court’s website.
There are various types of subpoenas: to give evidence, produce documents, and to give evidence and produce documents which may be issued at the request of a party, or on the Court’s or the Registrar’s own initiative: GFL Rules, r 16.01. Usually, a request is made by completing the prescribed form and filing it with the Court, the form is then stamped and served on the party. The form is required to specify the name or designation by office or position of the person subpoenaed, and for production an adequate description of the document or thing and the time and place for production is required. For service of subpoenas requiring attendance to give evidence, the subpoena must be served by hand to the person being subpoenaed not less than 7 days before they are required to attend and at the time of serving and conduct money must also be provided: GFL Rules, rr 16.03, 16.05 and 16.06. If the subpoena requires the person to produce documents, then the subpoena must be served 10 days before the date they are required to attend or produce the documents and a subpoena for production only may be served on the person by ordinary service: GFL Rules, rr 16.03 and 16.05.
The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 per Jordan CJ:
… a party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purposes of ‘fishing’, ie, endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all … (Emphasis added) (Citations omitted)
Although a little lengthy the parties might benefit from reading the following passages in Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 (“Haley (No 4)”) at [4]-[11] per Judge Manousaridis which set out the principles for issuing and setting aside subpoenas (footnotes omitted):
[4]This Court has power under r 16.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to issue a subpoena to give evidence at the request of a party. A party usually makes such request by completing a prescribed form of subpoena and filing it with the Court. The Court usually issues the subpoena without any order of a Judge or a Registrar; and it is issued by staff at the Court’s Registry accepting for filing a completed form of subpoena and recording on it the place at which and the time and day on which the person to whom the subpoena is addressed must attend to give evidence.
[5]Even though a subpoena is usually issued by the Court on the application of a party without any order authorising its issue, the Court has power under r 16.08 of the GFL Rules to set aside a subpoena that has been issued. There are many authorities that identify the principles for setting aside subpoenas for production. The Full Federal Court stated those principles in Wong v Sklavos [[2014] FCFCa 120 at [12]] as follows (emphasis added):
The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52 . A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd(No 2) (1989) 88 ALR 90 ; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39] –[40] ; McHugh v Australian Jockey Club Ltd (No 2) [2011] FCA 724 at [13] ; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35] ; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17] . Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420 ), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927 ), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v R (1984) 154 CLR 404 at 414 ; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13] , [35] –[38] .
[6]There are some authorities, however, that have also considered the circumstances in which a court may set aside a subpoena to give evidence. Heydon JA (as his Honour then was) referred to a number of these in Witness v Marsden [[2020] NSWCA 52 at [60]] , and noted the “authorities indicate that there are numerous circumstances in which the recipient of a subpoena ad testificandum, or equivalent process, can move to have it set aside”. One of those cases is R v Baines [[1909] 1 KB at p 261], where, in a criminal trial, persons on whom subpoenas to give evidence had been issued successfully obtained an order setting aside the subpoenas on the ground that the subpoenas were not issued in good faith for the purpose of the persons against whom they were issued giving relevant evidence. Bigham J said (emphasis added):
There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicants occupy [one was Prime Minister, H H Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty’s subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant. . . . We have before us the affidavits of the applicants, in which they both swear that they are wholly unable to give any evidence which can possibly be relevant to any issue which may arise. I believe that to be true. Therefore it would be an idle waste of time and money to require them to go down to Leeds to give evidence. The applicants further say that no application has been made to them by the defendants for any proof of the evidence to be given by them. That statement satisfies me that this process has not been issued for the simple and proper purpose of obtaining evidence, but for a different and ulterior purpose, a purpose to which the process of this Court ought not to be applied.
[7]These passages might be read as suggesting that it will be sufficient to establish a legitimate forensic purpose if the person who has applied for the issue of the subpoena shows that the documents called for by the subpoena, or the evidence the person against whom the subpoena has been issued is expected to give, are likely to be relevant to any material fact in issue in the proceeding in which the subpoena has been issued. That, however, would not be correct.
[8]Parties apply for the issue of a subpoena in the context of adversarial litigation where each party is responsible for adducing evidence to prove facts in relation to which he or she bears the burden of proof, and to contradict or undermine evidence the other party has adduced or may adduce. A subpoena will be issued for a legitimate forensic purpose only to the extent it can be shown that there is a sufficient prospect the subpoena will bring before a court documents or testimony that not only may be relevant to a fact in issue, but may be relevant in a way that may assist the case of the party who applies for the issue of the subpoena, either by providing evidence that may assist the party to prove facts the party has the burden of proving, or that may assist the party to contradict or undermine evidence the other party will or may adduce.
[9]What I say in the preceding paragraph is supported by the emphasised portion of the passage from the judgment in Sklavos reproduced above. It is also supported by the judgment of Beazley JA in Attorney General (NSW) v Chidgey :
It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v A-G (NSW) (1993) 70 A Crim R 162 . In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181:
… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding. (Emphasis added)
His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, “mere relevance is not enough”. His Honour continued:
In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing ‘that there are reasonable grounds for’ the ‘suspicion or belief’ referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say ‘the document is relevant because, if it does anything, it establishes the case against me’. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: ‘I wish to see the document to see if it may assist my case.’ That, in my opinion, is not sufficient.
…
But in any event (and contrary to the respondent’s submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Cmr of the Australian Federal Police (1994) 72 A Crim R 278 at 282 –283 ; Bruce Harvey v New South Wales (Supreme Court of New South Wales, per Johnson J at 3–4, 15 June 2005, unreported) ;R v Robinson (1996) 89 A Crim R 42 at 61 ; Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88] ; and Re Don [2006] NSWSC 1125 at [6] .
The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11] , in the following terms:
The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14 , per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.
[10]The usual way of applying for the issue of a subpoena I have described above does not apply where a party applies for the issue of more than five subpoenas in a proceeding. Subrule 16.04(1) of the GFL Rules provides that a party must not request the issue of more than five subpoenas in a proceeding unless the Court directs otherwise. The principles that should guide the Court in deciding whether to grant such leave should at the very least include the principles that apply to determining whether to set aside a subpoena. The Court will not direct the issue of a subpoena that is liable to be set aside because, for example, the person requesting the issue of the subpoena cannot demonstrate there is a legitimate forensic purpose for its issue. Further, and in any event, the question whether there is a legitimate forensic purpose must also be assessed in the context of s 190 of the FCFC Act, which relevantly provides:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)       according to law; and
(b)       as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)       the efficient disposal of the Court’s overall caseload;
(d)       the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
[11]The question I must consider, therefore, is whether Mr Haley applies for the issue of the subpoenas against the proposed witnesses for a legitimate forensic purpose, having regard to the matters stated in s 190 of the FCFC Act. That requires me, first, to identify the issues in the proceeding and, second, to identify the evidence Mr Haley submits each of the proposed witnesses will be in a position to give at the hearing.

In relation to subpoenaing more than five witnesses, which at the 14 February 2025 directions hearing Ms Ponzio indicated she may do, the Court directs attention to what was said in Haley (No 4) at [10] per Judge Manousaridis. The Court also notes that the issue was also considered in Faulkner v Tidewater Marine Australia Pty Ltd [2014] FCCA 1487 (“Faulkner”). In Faulkner there was an application by the respondent for the issuance of subpoenas under then r 15A.05 of the Federal Circuit Court Rules 2011 (Cth) which limited the number of subpoenas a party in a proceeding may request to five, unless the Court directed otherwise. In Faulkner the Court (then the Federal Circuit Court), at [16]-[17] per Judge Lucev, said that:
[16]Ultimately, it might be perceived that r 15A.05 of the FCC Rules is intended to give effect to the objects of the FCCA Act and the FCC Rules by limiting the number of witnesses who might be called in proceedings in this Court, or, at the very least, causing the parties, and ultimately the Court, to give serious consideration as to the necessity for witnesses to be subpoenaed to give evidence in proceedings in this Court, and thereby using streamlined procedures to resolve proceedings justly, efficiently and economically, and without protracting proceedings or causing undue delay.
[17]In Comcare v John Holland Rail Pty Ltd & Anor (No.5) [(2011) 195 FCR 43; [2011] FCA 622]…in relation to an application for leave to issue a subpoena…the Federal Court observed that:
a)the capacity to call a witness may be regulated by the Court's power to control and supervise proceedings and the requirement on the Court to take into account case management considerations;
b)the nature and importance of the step involved in a party adducing additional evidence can be assessed by examining whether a legitimate forensic purpose exists for calling the evidence, and the likely importance of the evidence to the determination of the proceeding. If importance is shown, a balancing process is required, one taking into account costs, delay and prejudice, in the context of the point the litigation has reached;
c)on an application to issue a subpoena, the test for the existence of a legitimate forensic purpose is apparent relevance, and apparent relevance is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material might permit a case to be made.
It would appear that no-one has yet been subpoenaed to attend Court on the final hearing dates or to produce documents.
BIAS
At the 14 February 2025 directions hearing in relation to bias the Court advised Ms Ponzio that (see transcript, pp 7-9):
(a)that in two emails, on 10 December 2024 and on 12 February 2025 (see [41] and [72] above), she had raised an allegation of bias in relation to the presently presiding Judge;
(b)that if there was an allegation of either actual or apprehended bias and recusal of the presently presiding Judge was sought, that it was for Ms Ponzio make an application supported by affidavit, and that that application would then be dealt with; and
(c)that if an application for recusal was made Ms Ponzio would need to specify either actual bias, that is, something that the Court has done to compromise its impartiality, or apprehended bias, which is where a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question that the Judge is required to decide.
The Court notes that Ms Ponzio said that the basis for the alleged bias is the alleged refusal of the Court to allow her to read a statement at the 6 December 2024 directions hearing, but she went on to say that it was “kind of a side matter, really”.
Whether there is actual bias depends upon an assessment of the state of mind of the decision-maker in question, here the presently presiding Judge, which is an assessment to be made on what the decision-maker said and did: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 86 ALJR 14; (2011) 282 ALR 685 at [33] per Gummow ACJ, Hayne, Crennan and Bell JJ.
In relation to disqualification for apprehended bias, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 (“Ebner”) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ the plurality majority in the High Court observed that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.” In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; (2023) 409 ALR 65; (2023) 66 Fam LR 369 (“QYFM”) at [67] per Gordon J it was observed that the “Ebner test has two steps”:
(a)first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits,
and that once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed, as follows: QYFM at [68]-[71] per Gordon J:
[68]Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge’s actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.
[69]Second, it is a test of possibility, not probability - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision-maker. That said, a finding of apprehended bias is “not to be reached lightly”. In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and “the nature of the decision …, what is involved in making the decision and the identity of the decision-maker”.
[70]Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: “the hypothetical observer would recognise that judges are human, not a ‘passionless thinking machine’ or robot just assessing information”.
[71]Fourth, the adjective “lay” in relation to the fair-minded observer is critical – “[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer’ with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. “[I]t is the court's view of the public's view, not the court's own view, which is determinative”.
At this stage no application seeking recusal of the presently presiding Judge has been made by Ms Ponzio, and consequently no orders in relation to the question of bias need to be made.
MAGNA CARTA
On 3 February 2025 Ms Ponzio in an email addressed to “Associates and Judges” (see [58] above) Ms Ponzio suggested that she had previously raised the matter of Magna Carta with the Court and then asked whether the addressees were “aware that there is such a thing as THE MAGNA CARTA?”, before suggesting that “[i]f not google it”. The Court notes that Ms Ponzio had not previously raised Magna Carta as an issue.
At the directions hearing on 14 February 2025 the Court asked Ms Ponzio what provision of the Magna Carta she sought to rely upon in these proceedings, and what submissions she wished to make with respect to the application of the Magna Carta in these proceedings (see transcript, p 9).
Ms Ponzio’s response was to (see transcript, pp 9-11):
(a)allude to difficulties she had had with various law firms, and citing Magna Carta as stating that “people … have the tendency to think that they’re above the law”;
(b)express her desire that “all parties involved in this case to be open and transparent”;
(c)say that “it wasn’t in relation to the case, it was in relation to the people involved in the case”; and
(d)say that it related to her “initial application” and her “dealings’ with the Court where she had to “physically take the paperwork to the [C]ourt” to submit it, because her “devices were being interfered with” and at that time the Registry staff were “misleading” her.
The Court told Ms Ponzio that (see transcript, pp 9-11):
(a)Magna Carta did not assist her; and
(b)said that if she had complaints with Registry staff she should complain to the Court’s Principal Registrar in Sydney, reiterating what it had said to her at the 6 December 2024 directions hearing.
In relation to Magna Carta the Court observes (adapting slightly what it said in Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216 at [59]-[66] per Judge Lucev) that:
(a)the Charter of Magna Carta was signed by King John of England “in the meadow that is called Runnymede between Windsor and Staines” on 15 June 1215. Only three of the original clauses remain in effect in the United Kingdom, one of those clauses being cl 39 which became cl 29 in 1225. The current enactment dates from 1297;
(b)the Immigration Restriction Act 1901 (Cth) (“Restriction Act”) was challenged in Chia Gee & Ors v Martin [1905] HCA 70; (1905) 3 CLR 649; (1905) 12 ALR 425 (“Chia Gee”) as “unconstitutional, on the basis that its provisions were contrary to the provisions of Magna Charta and the Statutes which had since confirmed it”: Chia Gee, CLR at 652-653 per Griffith CJ. Sir Samuel Griffith, the first Chief Justice of the High Court of Australia, and arguably the principal drafter of what became the Constitution of the Commonwealth of Australia (“Constitution”), brooked no argument on this contention, dismissing it in a single sentence: “The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation”: Chia Gee, CLR at 653 per Griffith CJ The other two initial Justices of the High Court of Australia, Barton and O’Connor JJ, contented themselves with concurring with the Chief Justice: Chia Gee, CLR at 654 per Griffith CJ. Barton J, who was the first Prime Minister of the Commonwealth, and O’Connor J, were both involved in the Constitutional conventions which led to the drafting of the Constitution, Barton extensively so. Such was the authority of the first three Justices of the High Court of Australia that no more needed to be said;
(c)in Ex parte Walsh and Johnson; in re Yates [1925] HCA 53; (1925) 37 CLR 36 (“Walsh and Johnson”), also a case concerning the Restriction Act, Isaacs J discussed the Constitutional significance of Magna Carta in an Australian context. Referring to cl 29 of Magna Carta Isaacs J said, Walsh and Johnson, CLR at 79, that:
The chapter, … recognises three basic principles, namely, (1) primarily every free man has an inherent individual right to his life, liberty, property and citizenship; (2) his individual rights must always yield to the necessities of the general welfare at the will of the State; (3) the law of the land is the only mode by which the State can so declare its will.
(d)Isaacs J recognised that personal liberty and property give way to a declaration by the State (in this case the Commonwealth) of the law of the land, observing, Walsh and Johnson, CLR at 79, that:
These principles taken together form one united conception for the necessary adjustment of the individual and social rights and duties of the members of the State.
(e)in Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84; (1991) ATC 4028 (“Skyring”) the Full Court of the Federal Court of Australia, faced with a contention that Commonwealth tax legislation violated property rights secured by Magna Carta, held that the power conferred on the Commonwealth Parliament by the taxation power in s 51(ii) of the Constitution, to legislate with respect to taxation, extends to the imposition of taxation and its collection, even though it has the effect of requiring the person on which taxation is levied to pay the tax out of property which he owns: Skyring, ATR at 87 per Gummow, Einfeld and Heerey JJ;
(f)in Arnold & Anor v State Bank of South Australia & Ors (1992) 38 FCR 484 (“Arnold”) the appellants sought to attack a mortgage on the basis that the debt secured by the mortgage involved the creation by the respondent bank of a book entry credit at no cost to itself. Magna Carta was invoked as guaranteeing the rights of the appellants to their matrimonial home and livelihood. Challenges were also made on the basis of passages from the Bible, and in particular those striking at usury. The Full Court of the Federal Court of Australia, in dismissing the appellants’ appeal, did not specifically refer to Magna Carta in its reasoning, but approved what had been said in two recent cases before single Judges of the Federal Court: Arnold at 485-486 per Burchett, Hill and Drummond JJ, including in Fisher & Anor v Westpac Banking Corporation & Ors (unreported, Federal Court of Australia, No 64/92, 18 August 1992) (“Fisher”)
(g)in Fisher the plaintiffs sought to set aside a claim made by a bank under a mortgage to their matrimonial home on the basis that the matrimonial home was guaranteed not to be abrogated from or interfered with by anyone by reason of authority derived ultimately from Magna Carta. Similar pleas were also made by reference to biblical authority. In the Federal Court of Australia French J, like the first Chief Justice of the High Court of Australia in Chia Gee, dismissed the plea by reference to Magna Carta in a single sentence, Fisher at p 15 per French J, as follows:
In relation to the remaining pleas based on the Magna Carta and the Bible, it is sufficient to say they disclose no legally tenable cause of action.
It follows that Magna Carta has no apparent operation in the circumstances of this case, the law of the land in relation to the unlawful termination action being that set out in the FW Act, and to the extent that this issue concerns the process and procedure of this Court, then as set in the FCFCA Act and the GFL Rules.
Legal Services Directions and the presumption of innocence
Ms Ponzio raised the Legal Services Directions and the presumption of innocence in an email dated 5 February 2025 to the Associate: see [65] above. Ms Ponzio stated that:
… Commonwealth Agencies are subject to the Legal Services Directions 2005 which imposes Presumption of Innocence.
I am the innocent party in all these matters…
The Court notes that the current version of the Legal Services Directions is the Legal Services Directions 2017 (Cth).
At the 14 February 2025 directions hearing in relation to the Legal Services Directions and the presumption of innocence the Court advised Ms Ponzio that (see transcript, pp 12-13):
(a)the Legal Services Directions are a set of binding rules issued by the Commonwealth Attorney-General, to regulate the performance of Commonwealth legal work by lawyers engaged by the Commonwealth. The directions deal with lawyers, both the Australian Government Solicitor and private lawyers, who are engaged to perform work for the Commonwealth, and does not have anything to do with the work performed by employed public servants working at the Court; and
(b)the presumption of innocence is the right of a criminal accused to be presumed innocent until their guilt is proven beyond a reasonable doubt, which applies in criminal proceedings, but not to civil law proceedings, which these are, under the FW Act, and did not apply to the circumstances referred to by Ms Ponzio relating to what witnesses to be called at hearing to give evidence.
The Legal Services Directions 2017 (Cth) are a set of binding rules made by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth) to regulate the performance of Commonwealth legal work by lawyers. The directions set out requirements for sound practice in the provision of legal services to the Australian Government. They are of no relevance to, and have no application to, any of the parties in these proceedings. They are certainly of no relevance to, and have no application to the Court itself, which, constituted as it is under Ch III of the Constitution, is independent of the executive (and legislative) arms of government.
The Legal Services Directions 2017 (Cth) do not refer to the presumption of innocence. Likewise, no earlier versions of the Legal Services Directions referred to the presumption of innocence. The presumption of innocence, described in the House of Lords as the "golden thread" running through the “English Criminal Law”, refers to a fundamental element of fair criminal trials: the right of persons accused of criminal conduct to be presumed innocent until proven guilty and the burden on the prosecution to prove the accused’s guilt: Woolmington v Director of Public Prosecutions [1935] AC 462; [1935] All ER Rep 1, AC at 481 per Viscount Sankey LC. The presumption applies in criminal proceedings and is not applicable to civil law proceedings such as the present proceedings which involve an application for alleged contravention of a general protection under the FW Act.
CONTEMPT OF COURT
Ms Ponzio has referred to alleged contempt of court by officers of the Registry and has offered to provide details to the Court: see [70] above.
At the 14 February 2025 directions hearing in relation to contempt of court the Court told Ms Ponzio that (see transcript, pp 13-14):
(a)contempt of court was “a very serious allegation” and one which “requires a very high standard of proof”;
(b)a person may be in contempt of court if their words or actions interfere with the proper administration of justice or constitute a disregard for the authority of the Court, which has to be something which has interfered with the proper administration of the matter or which has shown a disregard for the authority of the Court;
(c)it was not aware of anything that has shown a disregard for the authority of the Court, or anything that has interfered with the proper administration of justice, in this matter; and
(d)if she wished to make an allegation of contempt, the GFL Rules provide that an application has to be made in accordance with the approved form stating the contempt alleged, and it has to be supported by an affidavit setting out the facts relied upon.
Pursuant to s 142(1) of the FCFCA Act:
The Federal Circuit and Family Court of Australia (Division 2) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Rule 20.02 of the GFL Rules provides that:
(1)If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.
(2)      An application must:
(a)       be in accordance with the approved form; and
(b)       state the contempt alleged; and
(c)       be supported by an affidavit setting out the facts relied on.
(3)      An application may be made:
(a)if the contempt is in connection with a proceeding—by a party to the proceeding; or
…
(7)      After hearing evidence in support of the allegation, the Court may:
(a)if the Court decides there is no prima facie case—dismiss the application; or
(b)       if the Court decides there is a prima facie case:
(i)invite the person to state the person’s defence to the allegation; and
(ii)       after hearing any defence, determine the charge.
(8)If the Court finds the charge proved, the Court may make an order for the punishment of the person.

In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 at 356 per Burchett J it was observed that:
The doctrine of contempt of court covers a broad spectrum of actions that, if permitted, might impede the courts in their role of doing justice in a society ruled by law. Those actions are not identified, despite the suggestive expression “contempt of court” and Lord Hardwicke's phrase (in Re Read & Huggonson (St lames’s Evening Post Case) (1742) 26 ER 683 at 684; (1742) 2 Atk 469 at 471) “scandalizing the court”, by their tendency to affront the dignity of a judge. Or even, as Lord Atkin made clear in Ambard v Attorney-General (Trinidad & Tobago) [1936] AC 322 at 335, by their involving a quite direct F attack on the way justice has been administered in a particular case. a democracy, that must be allowable. What marks a contempt of court is its effect on the ability of the courts to uphold the rights of persons and enforce the law: see Solicitor-General v Radio New Zealand Ltd [1994] I NZLR 48 at 53, per Eichelbaum CJ and Greig J. So, without attempting to be exhaustive, actions as different as disobedience of an injunction or disregard of an undertaking (see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107; Director-General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456), the publication of material prejudicial to a court hearing (see Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56, per Gibbs CJ; Hinch v Attorney-General (Vic) (1987) 164 CLR 15), disturbance of proceedings in court (see the fascinating report of Harrison’s Case (1638) Cro Car 503; [1638] 79 ER 1034; Morris v Crown Office [1970] 2 QB 114), interference with judge, jury or counsel (see R v Hill [1986] Crim LR 457; R v Powell (1993) 98 Cr App Rep 224 at 228; Re Goldman [1968] 3 NSWR 325; R v MacDonald [1994] I VR 414), or interference with a witness (a topic to which I shall turn shortly), may each be a contempt of court because each may obstruct the course of justice.
The standard of proof for contempt, whether civil or criminal, is proof beyond a reasonable doubt: Witham v Holloway [1995] HCA3; (1995) 183 CLR 525; (1985) 69 ALJR 847; (1995) 83 A Crim 472, CLR at 534 per Brennan, Deane, Toohey and Gaudron JJ.
At this stage no application alleging contempt of court has been made by Ms Ponzio, and consequently no orders in relation to that issue need to be made.
COMMUNICATION WITH CHAMBERS
This Court has no formally binding rule or practice note dealing with communication with Chambers by the parties. The Federal Court’s Central Practice Note at Part 15 provides that:
15.1At all times, parties are expected to communicate courteously with each other, the Court and all Court staff.
15.2In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.
15.3For further information about communicating with the Court, parties and their lawyers are referred to the following guides on the Court’s website:
•Guide to Communications with Chambers Staff;
•Guide to Communications with Registry Staff.
The Federal Court Practice Note cited at [109] above provides general guidance on communications with Chambers. Some matters, however, ought not to be the subject of communication with Chambers, including:
(a)seeking advice on matters relating to the Court's Rules or whether a certain Court document will be accepted for filing. Such enquiries should be directed to Registry staff, noting that Court staff cannot provide legal advice;
(b)unilateral communications, other than in relation to ex-parte and urgent originating applications, particularly in relation to substantive issues in the litigation;
(c)irrelevant or unnecessarily burdensome communications, for example, copying Chambers into email correspondence between the parties which does not require the Court's knowledge or involvement;
(d)communications that are scandalous or vexatious; and
(e)sending to Chambers, or copying Chambers into, emails that disclose "without prejudice" communications.
In Bostan v European Operations Company Pty Ltd (No 3) [2023] FedCFamC2G 1026 (“Bostan (No 3)”) at [20] and [23] per Judge O’Sullivan this Court observed that:
… where parties frequently communicate, or seek to communicate, as they have done in this case, with the Chambers of a Judge by emailing the Judge’s Associate. It has long been the protocol of the Federal Circuit and Family Court of Australia (Division 2) that communications with Chambers is only to occur with the prior consent of all parties to the litigation and only to concern matters of case management. Most unfortunately, this has not occurred in this case.
…
Litigants should also not be allowed to labour under the misapprehension that they can make applications to courts by email to the Judge’s Chambers rather than filing applications and affidavits properly. It is a mistake in legal proceedings to confuse the ease of use of email as giving rise to a correlative relaxation of those requirements. The advent of the use of email between legal practitioners, parties and the courts was to enable the parties to approach chambers swiftly for case management purposes only. Emails containing applications, allegations or matters of substance should not be forwarded to chambers without the agreement of all parties John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; R v Fisher (2009) 22 VR 343 at [38]. Expedience and formality are not mutually exclusive. Email cannot be used to make applications to a Judge’s Associate instead of properly filing and serving the application. None of those matters contradict the overarching purpose of this Court’s practice and procedure as set out in sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’) and rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’).
In Irwin v Irwin [2016] FCA 1565 (“Irwin”) at [59]-[61] per Charlesworth J the following observations were made about the appropriate use of email:
59.A party to proceedings before this Court does not have an absolute right to correspond with the chambers of a presiding judge by way of email correspondence to the judge’s associate. The liberty to send correspondence to the associate to a judge is to be exercised sparingly and with the utmost professional courtesy. The email inbox of an associate to a judge of the Court is not an arena for combat or rhetoric. Nor is the associate’s inbox to be regarded as a repository for uninvited submissions, assertions of fact or accusations of fraud or misconduct against another party or third parties to the proceedings.
60.Practice Note CPN-1 prescribes some of the protocols in respect of such communications. It provides:
15.1….
15.2In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.
61.The protocols are not to be regarded as expressing a mere convenience on the part of the Court. Rather, the protocols are designed to promote fairness, integrity and efficiency in litigation. Where emails from one party are sent to an associate of the presiding judge without the foreknowledge or consent of the other party, the potential for unfairness, whether real or apprehended, is obvious. Absent the leave of the Court, submissions of substance in an action are to be made in a proceeding by way of oral argument transcribed in open court or written submissions properly filed and served in the action, and not by way of unsolicited emails. The efficient use of the judicial and administrative resources of the Court is not served by parties expecting that lengthy and unsolicited submissions directed to the associate of a presiding judge (often expressed in a discourteous tone) will be considered, read and responded to.
Much of what was said in Bostan (No 3) and Irwin is applicable to this matter, and in particular to Ms Ponzio’s use of email in her communications with the Associate.
At the directions hearing on 14 February 2025 the Court, in addition to the matters dealt with above, and in dealing with the issue of communications with Chambers said that (see transcript, pp 14-17):
(a)the Court does not need to deal with or be copied into every piece of correspondence between the parties; and
(b)the direction is that there not be unilateral communications with the Court other than in ex-parte or urgent duty matters, which this matter is not.
Ms Ponzio submitted that the parties had been told, prior to the presently presiding Judge becoming involved, that all communications between the parties were to be copied to Chambers and suggested the Court examine its records in this regard. It suffices to observe that this would be an extraordinary direction, contrary to the normal practice, and one of which there is no evidence of its having been made. The Court has listened to the audio recording of the directions hearing on 23 April 2024 (before Judge Kendall which was conducted by telephone and lasted less than six minutes (from 12.28pm to 12.33pm), and at which no issue arose or was discussed in relation to communications between the parties or the parties and the Court.
Further the Court has read all of the emails prior to the presently presiding Judge becoming the docket Judge in June 2024, and notes that:
(a)by email on 23 February 2024 an officer from the Perth Registry of the Court provided to Ms Ponzio a copy of a document entitled “Communication with the Court” in which the following is set out:
When can I contact Chambers staff?
You should only contact chambers in very limited circumstances. Except for ex parte applications (see below), it is inappropriate for you to unilaterally contact chambers staff.
If you are self-represented, your first point of contact should always be the local Registry. In some registries, there is dedicated Self-represented Co-ordinators.
Any contact with chambers must be open and uncontroversial and, where possible, by email and copied to all parties involved in the matter.
An ex parte application is an application that is brought by one person without the other parties having to be notified. For example: certain freezing orders, injunction and subpoena applications are ex parte applications.
Before contacting chambers, you should discuss any issues with the other parties in the matter, and attempt to reach an agreed position. The Court expects that such discussions will be conducted in good faith to avoid the Court's intervention or unnecessarily burdening the Court.
Examples of inappropriate communications with chambers and registry staff
When communicating with the Court, it is inappropriate for you to:
•be rude, aggressive or abrasive
•attempt to unduly influence the Judges, Judicial Registrars or other Court staff, or the procedure of the litigation
•seek legal advice, or raise substantive legal issues. This includes asking:
•whether you should commence matters at the Court
•how to draft a Court document
•asking for advice on what to say in Court
•asking what the decision or judgment of the Court might be
•asking for advice on the meaning of orders made by a Judge or a Judicial Registrar
•ask for recommendations for a lawyer
•provide irrelevant, scandalous or vexatious documents to the Court
•send broadcast emails (to a range of recipients, such as to the Court staff, parties in the matter or third parties, even though the contents of the email is not directly relevant to the recipient).
Examples of appropriate communications with chambers and registry staff
Whether the proposed communication is appropriate depends on the relevant context, including the subject matter or nature of the communication, and the sequence of events leading to the communication.
Examples of when it is appropriate for you to contact chambers staff:
•provide a copy of a signed consent order for the Judge's consideration and approval
•clarify that you cannot attend Court for a listed hearing due to a serious personal circumstance (such as a serious illness)
•explaining that there will be delay in your attending a hearing in Court
•raise a matter in accordance with an order/direction from the Court to do so
The following are examples of appropriate matters which may be discussed with registry staff:

Operation of the Court
Information about the Court's practices and procedures, practice notes and matters on the Court's website

Information about interpreters

How a matter is case managed and the process involved in each step leading up to the final hearing

Court forms and documents
What Court forms are needed to be used

Where to access the forms

Whether a form or other document has been sufficiently completed to be accepted for filing (for example, that signatures and any relevant attachments are present)

Filing Court documents
How to formally file a document (e.g. over-the-counter, eLodgment)

Whether a document has been accepted for filing

Court fees
Whether fees are payable, the amount payable,

If relevant how to apply for a fee exemption or deferral

Referrals for legal advice
Basic information about legal aid / community legal centres which may provide free or low-cost legal advice or assistance

Information about Court appointed referrals for legal assistance

Mediations Basic information about Mediations and the process involved

(b)by email on 27 February 2024 another officer from the Perth Registry of the Court provided a further copy of “Communicating with the Court” to Ms Ponzio in relation to a possible adjournment application;
(c)in an email dated 6 March 2024 from Judge Kendall’s Associate to Ms Ponzio, Ms Ponzio was advised that:
Communications with Chambers
You are not permitted to communicate directly with the presiding Judge.
However, Chambers and Chambers’ staff can be contacted (and may contact parties to a matter) in certain circumstances. Chambers will, for example, contact the parties to a matter in the lead up to a court date to provide information about a listing or to request confirmation that documents have been filed with the Court or compliance with Court orders. Please note that once the respondent has been properly served and has filed a Notice of Address for Service with the Court, all communication to (and from) Chambers must also include the respondent (or their legal representative). You can find more guidance about communicating with the Court on the Court’s website (here). Please note that Chambers cannot provide any legal advice to parties in relation to the matter.

(d)the guidance document referred to in the 6 March 2024 email is the same document quoted from at [(a)] above;
(e)in an email on 2 April 2024 to Ms Ponzio from Judge Kendall’s Associate Ms Ponzio was advised that:
Please note that any future correspondence to Chambers in relation to this matter should now also include the respondent’s solicitor (copied in on this email).

(f)in an email of 19 April 2023 from Judge Kendall’s Associate to Ms Ponzio, Ms Ponzio was advised that:
Because the respondent now has legal representation, Mr Diamond (or a representative from his firm) may contact you ahead of the first court date with proposed orders for your consideration. If that does not happen or if the parties are not able to agree on the orders they would like the Court to consider ahead of the listing at 12pm on Tuesday, the Court will discuss the orders that should be made (or any steps that should be taken by the parties) to progress the matter at the first court date listing.

(g)Ms Ponzio’s response to the 19 April 2024 email from Judge Kendall’s Associate was in terms such that later on 19 April 2024 Judge Kendall’s Associate “reminded” Ms Ponzio “of the Court’s guidelines regarding communicating with chambers”, and again attached a copy of those guidelines.

Having examined its records the Court concludes that Ms Ponzio has never been told by the Court, or anyone from the Court, that all communications between the parties were to be copied to Chambers.
From a reading of Ms Ponzio’s email correspondence to the Court since June 2024 it is apparent that it:
(a)is, in its totality, burdensome in both volume and content;
(b)raises unnecessary matters, such as enquiries on filing dates, often multiple times, the answers to which are obvious from orders of the Court;
(c)has sought advice, either generally, or on the Court’s rules and procedures, those being matters which ought to have been directed to Registry staff;
(d)is often inappropriate, for example where it suggests to the Associate that the presently presiding Judge is biased or that persons employed to work at the Court are guilty of contempt of court, or where it is headed: “Without Prejudice”; and
(e)often unnecessarily argumentative in content, or discourteous or sarcastic in tone: “[are you] aware that there is such a thing as THE MAGNA CARTA? … “[i]f not google it”, being but one example.
In the above circumstances the Court considered it was necessary and appropriate to make order 2 of the February 2025 Orders that:
(a)no party to this matter is to communicate to the Court by way of email directed to the following email address: [email protected]; and
(b)all future email communication to the Court in this matter is to be directed to the following email address: [email protected] and to be dealt with by a Registrar of the Court.
CONCLUSION
It was for the above reasons that the Court made the February 2025 Orders, and did not make orders in relation to other matters.
The Court notes that if Ms Ponzio wishes to:
(a)seek the issuance of subpoenas; and
(b)make applications supported by affidavits in relation to the issues of bias and contempt of court,
it remains open for her to do so.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 27 February 2025

File number(s):	PEG 314 of 2023
Judgment of:	JUDGE LUCEV
Date of judgment:	27 February 2025
Catchwords:	PRACTICE AND PROCEDURE – Affidavits – whether to allow filing of further affidavits – subpoenas – bias – application of Magna Carta – contempt of court – communications with Chambers – whether to issue order prohibiting communication with Chambers INDUSTRIAL LAW – Application alleging contravention of general protection – alleged unlawful termination
Legislation:	Constitution Ch III, s 51 Fair Work Act 2009 (Cth), ss 368, 570 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 142, 190 Immigration Restriction Act 1901 (Cth) Judiciary Act 1903 (Cth) s 55ZF Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 16.01, 16.03, 16.05, 16.06, 20.02 Federal Circuit Court Rules 2011 (Cth) r 15A.05 Legal Services Directions 2017 (Cth) Magna Carta Act 1297 (UK)
Cases cited:	Arnold & Anor v State Bank of South Australia & Ors (1992) 38 FCR 484 Bostan v European Operations Company Pty Ltd (No 3) [2023] FedCFamC2G 1026 Chia Gee & Ors v Martin [1905] HCA 70; (1905) 3 CLR 649; (1905) 12 ALR 425 Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 Ex parte Walsh and Johnson; in re Yates [1925] HCA 53; (1925) 37 CLR 36 Faulkner v Tidewater Marine Australia Pty Ltd [2014] FCCA 1487 Fisher & Anor v Westpac Banking Corporation & Ors (unreported, Federal Court of Australia, No 64/92, 18 August 1992) Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 Irwin v Irwin [2016] FCA 1565 Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 86 ALJR 14; (2011) 282 ALR 685 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; (2023) 409 ALR 65; (2023) 66 Fam LR 369 Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84; (1991) ATC 4028 Witham v Holloway [1995] HCA3; (1995) 183 CLR 525; (1985) 69 ALJR 847; (1995) 83 A Crim 472 Woolmington v Director of Public Prosecutions [1935] AC 462; [1935] All ER Rep 1
Division:	Division 2 General Federal Law
Number of paragraphs:	121
Date of last submission/s:	14 February 2025
Date of hearing:	14 February 2025
Place:	Perth
Applicant:	In person
Counsel for the Respondent:	Mr M Diamond
Solicitor for the Respondent:	Mark Diamond & Associates Lawyers

PEG 314 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	LAURA PONZIO Applicant
AND:	ASHLEY SERVICES GROUP LIMITED Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	14 FEBRUARY 2025

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