Zarev v Taurleo Pty Ltd as Trustee for Pintaudi Trust
[2024] FedCFamC2G 872
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zarev v Taurleo Pty Ltd as Trustee for Pintaudi Trust [2024] FedCFamC2G 872
File number(s): PEG 21 of 2023 Judgment of: JUDGE VASTA Date of judgment: 2 September 2024 Catchwords: PRACTICE & PROCEDURE –Non-compliance with Orders – where Rule 13.04 and 13.05 are enlivened – where applicant applies for Adjournment – where respondent applies for dismissal of the action – where it is possible that the actions of the applicant may be seen as unreasonable – where an order for security for costs is warranted if an adjournment was granted Legislation: Fair Work Act 2009 (Cth): s 570(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04, 13.05
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 2 September 2024 Date of hearing: 2 September 2024 Place: Perth Counsel for the Applicant: the Applicant appearing on his own behalf Solicitor for the Respondent: Mr Dasey, Solicitor of D’Angelo Legal ORDERS
PEG 21 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZARE STEFAN ZAREV
Applicant
AND: TAURLEO PTY LTD ATF THE PINTAUDI TRUST
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The matter be adjourned for mention/directions only at 11:30am Brisbane time (9:30am Perth time) on 2 December 2024 in the Federal Circuit and Family Court of Australia sitting at Brisbane by telephone.
2.The Applicant file and serve any affidavit material intended to be relied upon by no later than 4:00pm on 11 November 2024.
3.The Respondent file and serve affidavit material in reply, if any, by no later than 4:00pm on 18 November 2024.
4.The parties are to file and serve written submissions by no later than 4:00pm on 25 November 2024.
5.By no later than 4.00pm on 28 November 2024, the Applicant must pay the sum of$10,000 by way of security for costs into the Federal Court of Australia to be held pending further order of the court.
IT IS NOTED THAT:
A.In the event the Applicant fails to file material or pay security for costs pursuant to orders herein, the Court will consider dismissing the matter pursuant to rule 13.04 and rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.
B.In order to balance the rights and interests of both parties, the Court considered it appropriate to adjourn the matter and order security for costs be paid.
C.For the purpose of the directions hearing on 2 December 2024, parties are to use the dial in details below:
Parties Dial: 02 9161 1229
Enter Conference ID: 744 840 424#
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
(Ex tempore)
JUDGE VASTA
On 21 February 2023, the applicant, Zare Stefan Zarev launched a proceeding in this Court asking that the Court find that the respondent, Taurleo Proprietary Limited, had contravened the Fair Work Act 2009 (Cth) (“the Act”) and were, therefore, liable to pecuniary penalties and compensation for that contravention. The matter has somewhat meandered through this Curt, going to a Registrar mediation, which was unsuccessful.
The matter, having been allocated to His Honour Judge Lucev, was the subject of a directions hearing on 2 February 2024 before His Honour. The Applicant appeared in person and the Respondent was represented by Mr Dasey, who appears today.
The orders made on that date were:
1.The Respondent to file and serve an amended response (including points of defence) by 1 March 2024.
2.The Applicant to file and serve any affidavit evidence on which he intends to rely at final hearing by 1 April 2024.
3.The Respondent file and serve any affidavit evidence on which it intends to rely at final hearing by 1 May 2024.
4.The Applicant to file and serve any affidavit evidence in response to the Respondent’s evidence by 1 June 2024.
5.Parties are to exchange a list of objections to any of the affidavit evidence 35 days before final hearing and are to confer with a view to resolving those objections.
6.The Applicant to file and serve an Outline of Submissions by 1 August 2024.
7.The Respondent to file and serve an Outline of Submissions by 15 August 2024.
8.The matter be listed for final hearing at 10:00am on 2 and 3 September 2024.
9.There be liberty to apply generally on 3 days’ notice.
10.Costs, if any, reserved.
On 20 March 2024, the Applicant was sent a copy of those orders by email directly after the mention before Judge Lucev. On 14 March 2024, the Applicant wrote to a number of people about this matter, who do not seem to have any actual relevance to the matter, but, certainly, the addressees included His Honour Judge Lucev’s Associate.
The Applicant wrote:
I have reviewed the orders and received a threat from Pintaudi that prevents me from complying with the Judge's orders for tomorrow (meaning 15 March). I ask that the matter be recalled before the Judge, for Sam to withdraw his threat and for substitute orders be made.
I have reviewed some material from John Esq., and it appears there is new information pertaining to non-performance. This appears to be the oral direction by Sam to me not to tell anyone they were stealing water from a neighbouring business believed to be a church. It now appears Sam's actions to direct are best described as a concealing and compounding offense and are racketeering.
To The Commissioner of Police - Please commence theft charges against Sam Pintaudi and refer the Racketeering allegations to the AFP.
Thank you and Kind Regards,
His Honour’s Associate replied to the applicant, saying:
As per the attached orders (having sent them again to the applicant) made by Judge Lucev on 2 February 2024, as the Applicant you were not due to file any documents until the 1 April 2024.
At this stage the matter will not be recalled before Judge Lucev.
Kind regards,
The Applicant was, in effect, told that the orders were to remain in force. The Applicant did not file his material on 1 April, and I do note that, in that letter that was sent, the only reason the applicant gave for not being able to comply with filing the material by 15 March was some disguised threat by the Respondent, upon which he did not elaborate.
On 17 April, 17 days after he was supposed to file material, the applicant wrote again to a number of people, but included His Honour’s Associate. He wrote:
My doctor believes I may have cancer and so I am undergoing further testing and have not been able to attend to these matters. I seek leave to amend my claim based on new information, including that received by the respondent in their submission. It would now appear that the respondent conspired to conceal and compound multiple criminal offenses and/or engaged in adverse action in addition to the existing grounds. The existing grounds are sought to be expanded. This is in particular reference to a drawing that was left on my work desk, after which I was almost killed at the Northbridge Magistrates Court Watchhouse.
I do have medical certificate(s) but due to injuries am unable to attend a library in order to scan and upload. I request that the matter be recalled before Lucev, and a hearing date be set not before May, but preferably not before July. I do have unavailabilities in June, but I need to look those up.
Attention was drawn to the alleged Director Sam in relation to comments made by his current and or former staff member Lisa that confirm his knowledge of my medical history, prior to my dismissal where I was compared to Eppstein. His assertion remains disputed that he did not now. Further he had delegated control of the company to the Indian girl, so his knowledge or alleged lack thereof was moot regardless. The delegation of control was intercepted by KSS and was sent in the form of an email from him to her, that he ought to have provided you.
I also seek to further allege that the addition of a job role during a meeting effectively doubled my workload so it was forseeable that the original job role would suffer and thus sabotaged the agreement that can now be seem to have been entered into in bad faith particularly due to the nexus with the Department of Communities and Centrelink after I sought their assistance after my room was broken into. Again, KSS may be able to provide a transcript if I can be provided with the date of the meeting, however requires time to decrypt...
I have prior requested the matter be recalled before Lucev and now note it is after the 1st of April and so it is now more urgent that a hearing date be set... Anna would have access to my unavailabilities (civil and criminal) so may be able to assist in advising when to avoid a hearing (as per the original).
He then sent another email, it would seem, about four and a half hours later, saying:
In relation to today's demand/threat by Paul, please find an email copy of the prior medical certificate covering today. I have also requested an email copy from the Dr for the prior period encompassing Monday 1st April (the date of the missed order). Otherwise I will need to wait until I am well enough to get to a library.
Also I note a quick correction, that I meant to write judge, not just magistrate, in the prior email when referring to Lucev (as per the original).
The attachment was a medical certificate that covered the days just before 17 April, which said that the Applicant was not fit for work. It did not go into why it was that the Applicant was not able to comply with the order and compile and file his material. There was no further communication by the Applicant.
It doesn’t seem, on what I can see, that there was any reply by the Chambers of His Honour Judge Lucev. The Applicant has told me, orally, that he was arrested and was incarcerated for 60 days on remand until he was able to make bail. He says that he was in custody then from end of May, or beginning of June, to the end of July, beginning of August 2024.
On 24 July 2024, my Chambers sent an email to the parties simply to say that the matter was now docketed to me, and that I would be hearing the matter on 2 and 3 September. It would seem that the Registry contacted the Applicant on 6 August, though it is difficult to see why, but it simply noted that a Serbian interpreter may have been required for the trial, and asked the Applicant to confirm if the interpreter has been booked, and there was no reply by the Applicant.
The next contact was by the Applicant on 25 August 2024. That was because a solicitor from the firm representing the Respondent wrote to the Applicant on 19 August 2024. In that email was attached the affidavit of the main director of the Respondent. This affidavit was technically not required because that affidavit had to respond to the Applicant's affidavit, which had never been filed.
Nevertheless, the Respondent did file affidavit material, and the Applicant also filed the outline of submissions, as was decreed in the order of Judge Lucev of 2 February 2024.
The Applicant replied to that paralegal from the firm representing the Respondent but copied in the Court Registry. He said to Sarah:
Only the cover page is shown. Can you please send through the other pages.
Please also be advised that my business was burned down, and it would appear due and or at the behest of the convicted arsonist that sat opposite me at Class Professionals after WAPOL made a threat to fuck me up and after a male threatened to kill and bury me while I was visiting my GP. Please provide her contact details for service.
I am currently still receiving medical treatment and will be seeking to apply for a directions hearing and to vacate the trial and set a new trial date (as per the original).
As previously noted that email was sent by the Applicant on 25 August 2024. That was received by the Associate to Judge Lucev and the Associate to Judge Kendall, as well as a number of other persons on that Sunday, 25 August. The email was then forwarded to my Chambers, and late on 26 August 2024, given the time difference between the east coast and the west coast, my Associates sent to the Applicant, it would seem, two emails. The first email said that the trial would be commencing at 2.15 pm, rather than 10 am, on 2 September, and then with another email saying:
Good morning parties,
We refer to the above matter which is listed before his Honour, Judge Vasta, on 2 September 2024 for hearing.
We note Chambers has received the below correspondence from the Perth Registry.
Given the contents of this correspondence, and the proximity of the trial, this matter has been listed for directions hearing by telephone. Please see below the listing details and dial in details.
That is, that the matter would be heard at 11.30 am, Brisbane time, which is 9.30 Perth time, by telephone before me on 28 August, which would be on the next day. It would seem, actually, that email was sent not on the 27th, but on 26 August, but fairly late.
The matter was then heard by me as a directions hearing on the 28th, a Wednesday morning. The Applicant did not appear, and the Court telephoned him. The Applicant said that he was unaware of the hearing date and had not been notified of that. When he was told that an email had been sent, he said to the Court, on that day, that he had not checked his emails. He then told the Court that he wanted the adjournment because a combination of his medical ailments, and his troubles with the State police and incarceration, had conspired to defeat his desire to comply with the orders of His Honour Judge Lucev.
He was told, during that hearing, that he had to provide the details of the medical people, who could attest to his medical state as at these times, and would be able to explain why it was that he could not have complied with his obligations to file material.
As I said during this hearing, it is because of the back and forward nature of what occurs in those matters that the Court, through my Associate, followed up with an email to the Applicant, which restated what the Court had asked, and also included the Order. I do note that this was exactly what happened with Judge Lucev on 2 February 2024, earlier this year, when His Honour made orders, and sent a copy to the parties of the orders. My Associate did exactly the same thing.
The Order was that the matter would remain listed. It noted that the Court had received the correspondence from the Applicant. It noted that the applicant has not complied with court orders to file material, that the Applicant indicated to the Court that he has been suffering from various medical conditions impacting his ability to file material and appear at court events. However, no medical evidence has been presented to the Court.
The Court also noted to the Applicant that, in the event he seeks an adjournment on 2 September 2024, he would need to provide independent medical evidence to the Court, including evidence from an independent medical professional who can attest to his health issues since April 2024. The Court also noted:
A.In the event the Applicant intends to call a medical professional to give evidence by way of audiovisual link, then that medical professional will themselves need to contact Chambers and seek leave of the Court to do so.
B.In event the Applicant does not present any satisfactory medical evidence to explain his non-compliance with Court orders, the Court may proceed to deal with the matter under rule 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2(General Federal Law) Rules 2021.
Today, the Applicant has appeared before the Court and has said that he did not receive that email from my Associate, and he certainly did not read the Order. He said that he was of the belief that all he had to do was to send through the medical certificates, and to give details of the doctors. He did send some material through but had not told those doctors that they had to contact the Court themselves to arrange a medical link.
Whilst I have some misgivings as to this given the previous history where he certainly said he received the emails from Judge Lucev’s Chambers, nevertheless, I will take the Applicant at his word. That means, though, that there is no medical evidence properly before the Court as to why the Applicant did fail to comply with the Court orders. There are medical certificates that he has sent through that simply say he was unfit for work, but that was the reason that the Court had said to the Applicant that they wanted the medical professionals to be present, so they could answer those questions. A simple medical certificate that says someone is unfit for work is simply not good enough for the Court's purposes.
So, this meant that the Applicant was in default of the Court orders and had not provided a satisfactory response to this. It is then a matter for the Court’s discretion as to whether the Court allowed the matter to continue, and would give the Applicant an adjournment, or whether, pursuant to r 13.04 and r 13.05 of the Federal Circuit and Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), would dismiss the matter because the Applicant was in default.
The Court looked at what material was before the Court. On a very superficial level, because the Court can only deal with the material that is before it, the Applicant alleges that he had a workplace right. That workplace right was to ask for leave for a medical reason. In his material, the Applicant says that, on or before 23 November 2022, he, the Applicant, sought personal leave to see a doctor to address an issue of the exacerbation of his pre-existing back injury.
He said that sometime around this date, the Respondent spoke to the Applicant and expressed dissatisfaction about the fact that the Applicant had applied for leave for medical reasons. Nevertheless, whether that happened or not, the facts of the matter were that the Respondent did grant that leave.
The Applicant also said that, on 2 December 2022, he submitted a proposal for an automated scheduling system to the Respondent. He said that the Respondent expressed satisfaction with the proposal, and the Applicant and the Respondent discussed implementation of the proposal.
He said on 5 December 2022, the Respondent dismissed the Applicant from his employment. The Applicant asserts that he didn’t ever get to actually take the approved medical leave that he had sought.
The applicant also attached the letter of dismissal from his employer, which said:
I refer to our meeting on 5 December 2022. As discussed, we have reviewed your performance during your period of probation, and, regrettably, confirm that you will not be offered ongoing employment in this position. The reason for termination of your employment is unsatisfactory performance. Accordingly, we confirm your employment with us is terminated effective 5 December 2022 -
The letter then went through what payments he was to receive because of that. What is clear in that letter is the Respondent was saying that the Applicant was dismissed for unsatisfactory performance, and that the dismissal occurred within the period of probation.
The Applicant was warned by me that these matters are very difficult. They do trick up many lawyers, and it is very rare for self-represented Applicants to be successful in these claims. That is because it is a difficult matter to truly understand the exercise of a workplace right. This became very evident to me when, during the course of the argument, the Applicant, totally unsolicited, said to the Court that the real reason that he was dismissed was because the respondent wanted to employ cheaper labour. He even handed up an email he had found addressed to the Respondent, from a third party, indicating cheaper overseas labour that could be sourced by the company, if it wanted.
As I said to the Applicant, if this were the case as to why he was dismissed, then his action would be unsuccessful. He seemed somewhat puzzled by that, and I had to keep explaining that he would only be successful if it were that I was not satisfied by the Respondent that he was dismissed because he exercised his workplace right of asking for leave for a medical matter.
I said to him that, quite frankly, I thought that there were going to be problems with this when, on his own evidence, the Respondent ended up acceding to this request from the Applicant, but, in effect, the Applicant submits that they acceded to that request through gritted teeth, and ended up terminating him before he had a chance to access that leave, and that this is why he was terminated.
I said to him that the Court only needs to be satisfied by the Respondent that they did not terminate him for that reason, for him to be unsuccessful. The Applicant said that he thought he needed to read more case law on this matter.
So, what I had before me was an Applicant who had a somewhat tenuous claim and who had not complied with Court orders. There was certainly sufficient cause, in those circumstances, for me to exercise my discretion and to dismiss the application pursuant to the Rules. However, I am not totally convinced that I should do that.
What I do have is great sympathy for the Respondent's position when they had done what they can to comply with these orders and have been frustrated by the Applicant. The Applicant, even today, had repeated, almost ad nauseum, that he is in excruciating pain, and that this affects his concentration, and that he would not be able to conduct a trial today, in any event, and has trouble remembering matters in their minute detail.
The Applicant also has said that, when he was arrested, that police took four bags full of correspondence, but only returned one of those to him. He says that he needs the other two or three bags that they have, so that he can actually comply with the Orders.
The Respondent has submitted that the Court should consider, if the matter is to be adjourned, making an order for security for costs. This is because, having understood the frailty of the position that is the Applicant's case, for the Applicant to proceed further could easily be seen as an unreasonable act, which would enliven the discretion under s 570(2) of the FW Act. I warned the Applicant as to the consequences of his continuing this matter, and that he did render himself liable to such an order.
It seems to me that it would be a very great indulgence for the Court not to dismiss this matter today. The Applicant, however, is adamant that there is a case of contravention, and he is adamant that he wishes to pursue it.
It seems to me then, in trying to balance the interests of the Respondent and the Applicant, and, therefore, the interests of justice, that an order for security for costs should be made if it is that I adjourn the matter. The security for costs would ensure that the Respondent would be at least partially compensated for an unreasonable act if that’s what ended up occurring, and if the Applicant is correct that there is a case, then the money that is the security for costs would be returned to him, and he would receive further money as compensation and pecuniary penalties from the Respondent.
The Applicant, however, says that he simply could not come up with such a sum. It seems to me that this may be an unfortunate circumstance for the Applicant, but that should not stop the Court ensuring fairness between all the parties, rather than the absolute one-way indulgences that the Applicant is seeking. Having looked at the matter, I am of the view that I should grant the Applicant an adjournment.
The matter will be adjourned for mention at 11.30 am, Brisbane time, on Monday, 2 December. If it is that the Applicant has not filed his material on those dates, or has not filed the security for costs, the Court will look at dismissing the application.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 18 September 2024
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