Ponzio v Ashley Services Group Limited

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).

1. These proceedings were commenced by the applicant on 27 December 2023, in an application that was lodged on that date and accepted for filing on 29 December 2023. In the application, the applicant has alleged contraventions by the respondent, Ashley Services Group Limited, of Part 3‑1 of the Fair Work Act 2009 (Cth).
2. The parties agree that the applicant started work for the respondent on 11 September 2023 as a trainer/assessor. The respondent's business is in vocational training. It operates nationally and provides services to students. The applicant was working in a program for young people from disadvantaged backgrounds. The respondent asserts that the employment ended on 13 October 2023, and a letter of termination is annexed to the response that was filed by the respondent on 22 April 2024. The respondent says that by that letter, the applicant's employment was brought to an end with immediate effect and that she would receive one week pay in lieu of notice and all accrued outstanding entitlements. That was acknowledged by the applicant who co-signed the letter.
3. The applicant's evidence about the end date is a little bit less clear. In the claim, she suggests that her contract was completed on 20 October 2023, being the last day she went to work, but she has also made statements agreeing that her employment was brought to an end on 13 October 2023. That is both in the application that she filed and also in an affidavit that she filed on 15 May 2024.
4. The procedural history of the matter was set out by Judge Lucev in Ponzio v Ashley Services Group Limited [2025] FedCFamC2G 289, and I refer to his Honour's recitation of the procedural history and events in the matter that are set out at paragraphs 1 through to 85 of that decision.
5. As is clear from those reasons, this matter is marked by a history of orders being made, extended and not complied with. That is significant given that hearing dates for 3 and 4 June 2025 were fixed on 28 June 2024. In other words, the parties had approximately 11 months from the date of trial allocation to adequately prepare the matter for trial.
6. A directions hearing was convened on 28 May 2025 at the respondent's request to discuss the practicalities of the hearing where the applicant had not filed any evidence or submissions in response to orders made by Judge Lucev on 14 February 2025. On that day, there was no appearance by or on behalf of the applicant, and she did not answer the telephone when she was called by the court. Orders were made enabling the respondent to file and serve an application for the proceedings to be dismissed in default pursuant to Division 13.2 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021, to be listed at the same time as the hearing. I made orders shortening the timeframes for the applicant to respond to the application given the hearing dates that had been fixed.
7. On 3 June 2025, the matter was called on for hearing. As the applicant is self‑represented, I provided her with an explanation of the procedural aspects of the hearing, as well as an overview of the respondent's application. I also provided the applicant with a copy of Division 13.2 of the GFL Rules.
8. The applicant submitted yesterday, and maintains that she is not in default for the purpose of rule 13.04(1), but today I have explained to her the options for the court in the event that I was satisfied that she was in default, and invited her to make submissions accordingly. I read out for the applicant rule 13.05(1) and also rule 13.05(6) and the broad powers the court has.
9. The applicant, whilst maintaining that she is not a party in default, asked me to make an order extending the time for her to file an affidavit listing the witnesses that she wishes to subpoena. That is a matter that was addressed by Judge Lucev in some detail on 14 February 2025, but I receive and consider the applicant's application for effectively an extension of time to file evidence and an adjournment of the hearing to another day.
10. Yesterday, at the commencement of the hearing, the applicant submitted that she came to court to see what was required of her, and that she expected her case to be decided. She told me in submissions today that she wants to bring closure to the case to get on with her life and wrap things up as soon as possible, and she also said that she is not the party in default. She does not want her application to be dismissed, and she has maintained in a general sense allegations of fraudulent behaviour that permeates through the proceedings.
11. The applicant was less clear to me, both yesterday and today, in explaining how her expectation that the case would be decided by the judge could realistically take place when she had not submitted any evidence in accordance with the orders of the court. She has made submissions to me today about the role of the court in investigating her claims. I do not accept that submission, and as I clarified with the applicant, it is the applicant's responsibility to lead evidence in support of her application. Yesterday, the applicant made references to having documents, including affidavits sworn before a JP in Fremantle which she was not able to file electronically because of technological constraints and other constraints, including her being homeless, which I again note was a matter that was raised before Judge Lucev in February.
12. The applicant had with her at the hearing yesterday a number of documents, but not trial affidavits, nor evidence or documents that she sought to rely on at trial. Ultimately, yesterday the applicant applied for an adjournment of the hearing to today to enable her to collate her material and to file and serve it.
13. On behalf of the respondent, that application was not opposed, and so I adjourned the proceedings to today, the second day allocated for the trial, and made orders requiring the applicant to file and serve any materials, including affidavits that she had previously made or obtained but not filed, by the end of the day. I also extended time for compliance with order 2 of 28 May 2025 to the end of the day yesterday.
14. The applicant provided a bundle of documents today which could not be accepted for filing by the court because they did not comply with the necessary forms. Further, on their face, the documents also do not appear to be relevant to the issues in the proceedings. However, I was prepared to accept the documents as an exhibit, and I did so without objection by the respondent, and they have been marked exhibit A1 as a bundle.
15. In the main, the documents relate to matters that post‑date the termination of the applicant's employment by the respondent. One of the documents is a statutory declaration that was made before a JP by the applicant on 18 December 2024 at Fremantle. The statutory declaration alleges fraudulent behaviour at the Perth registry of the court, without particulars, or a proper foundation.
16. As I have taken up with the applicant in the hearing today, that was a matter that was addressed by Judge Lucev with reference to an email that the applicant sent the court on 10 February 2025. His Honour explained to the applicant the seriousness of such an allegation, the standard of proof that is required as well as the process under which such an application could be pursued, and left it open in his reasons for that step to be taken by the applicant if she wished. That hasn't happened, but, in any event, I also note that the statutory declaration predates the directions hearing on 14 February 2025 when those matters were discussed, and, perhaps more crucially, when the applicant sought an extension of time to file affidavits, said to the court that she wanted to file further affidavits, and also said that she may wish to issue more than five subpoenas.
17. I have read the statutory declaration the applicant submitted. I have also read the typed, undated, unsigned supplementary statement, it would appear to be, but in any event speaks about things that are said to have occurred after the termination of employment. The document makes a reference to, "We are almost entering 2025", and that may provide some point in time reference for the statement, which would also mean that it predates the directions hearing in February. The statement otherwise asks the court a number of questions which, in my assessment, are not proper questions to be asked, and, again, Judge Lucev dealt with issues concerning this and the applicant's communication with the court and questions asked of it in the portion of his reasons under the subheading entitled Communication with Chambers. I have addressed this with the applicant to a degree at the hearing yesterday and particularly today in the context of her requests for certain things to be done, including the court to make investigations of her claim.
18. Another one of the documents that was submitted overnight by the applicant is an affidavit of service of the application that is dated in March 2024, and I have referred to the response that was submitted by the respondent in April 2024. There is also a bundle of photographs. They do not appear to have any apparent relevance to the issues in the case, and no submission was made about them. The photographs also include screenshots of an email and a text message, and, again, it is difficult to discern what relevance that might have to the applicant's general protections application, other than observing the question of a racial vilification complaint is apparent in the application, but as is also apparent from the response that was filed, the racial vilification complaint was made, it was investigated, it was deemed to have no substance or withdrawn, it seems, very soon after - I think within a day or so of it being made - and that was communicated to the applicant, it is said, in the response. It is difficult to discern, however, under the broader rubric of the general protections application, what the relevance of the material submitted by the applicant overnight is.
19. More relevant to the application that I need to consider today is that nothing has happened in the three and a half months or so since the directions hearing on 14 February 2025. The applicant has continued to assert that she is not the one at fault, but against the broad background I have referred to, the respondent has applied for the application dated 27 December 2023 to be dismissed, and it does not seek any order for costs. The application is supported by an affidavit of Mark Diamond dated 30 May 2025 and it alleges that the applicant has never filed any evidence in the proceedings since they were commenced. That is trial evidence. It is distinct from the affidavit that I received on the application made on behalf of the applicant that is dated 15 May 2024.
20. Mr Diamond's affidavit goes through the procedural history in a truncated fashion, which, as I say, is set out more comprehensively in Judge Lucev's decision. It asserts that the applicant has not displayed an intention of properly prosecuting her claims, and that this, together with the absence of evidence, provides a basis for the discretion to dismiss the application in default to be exercised. Reliance is placed on rule 13.04(1)(a) and (e) in terms of the circumstances of default, and then, on default, 13.05(1)(a). The applicant has said, as I have touched on, that she does not want the proceeding to be dismissed, though she does want it brought to closure and has asked me for the opportunity to submit a further affidavit.
21. The Federal Circuit and Family Court of Australia Act 2021 (Cth) provides at section 5(a) that its objects include:

To ensure that justice is delivered by federal courts effectively and efficiently.

1. That particular object must be read together with the provisions that relate to the overarching purpose of the civil practice and procedure provisions. That includes section 190 of the Act, which provide that the overarching purpose of those provisions is:

To facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

1. There is a corresponding obligation in section 191 of the FCFCOA Act for parties to conduct themselves in the proceeding in a way that is consistent with the overarching purpose. Section 192(3) and (4) go on to also provide that the court has power to dismiss proceedings in the event of a party's failure to comply with a direction. As I have said, rule 13.04 and 13.05 also provide the framework within Division 13.2 for how the court's powers in that regard can be exercised.
2. In Tahmasebi v Adelaide Transport Pty Ltd [2021] FedCFamC2G 288, Judge Brown summarised the principles that apply to the discretion to dismiss an application if an applicant is in default in the following way:

APPLICABLE LEGAL PRINCIPLES

[88] The court is conferred with a discretion, pursuant to rule 13.05 to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or prosecute the proceedings with due diligence.

[89] As with all discretions, the discretion provided by rule 13.05 must be exercised judicially and according to the dictates of justice. At a fundamental level, the court has an obligation to investigate and determine a claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned.

[90] On the other hand, the court retains it may be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party. These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.

[91] In these circumstances, the authorities are clear that the application of the discretion to dismiss an application for non-compliance with an order, is not to be regarded as being commonplace in its exercise. A range of factors dependant on the facts of each case will influence how the discretion is to be exercised.

[92] In Lenijamar Pty Ltd v ACC (Advances) Ltd , the Full Court of the Federal Court indicated that it was "undesirable [for the court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised". In this context, Wilcox and Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:

• Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;

• Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.

[93] In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:

[T]he Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep;

[94] In Professional Administration Service Centres Pty Ltd v Cmr for Taxation , the Full Court of the Federal Court attempted to tabulate considerations which were likely to be relevant to the exercise of the discretion, which can be summarised as follows:

• The nature of the default involved;
• The duration of the default and whether it is continuing;
• The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
• What has happened since the default, particularly whether an attempt has been made to rectify the breach;
• Whether the breach creates prejudice or places an unacceptable burden on the other party;
• Does the breaching party genuinely want the case to go to trial;
• The stage the proceedings have reached;
• Disruption to possible trial dates;
• The consequences for the applicant of dismissing the application.

1. As I have touched on, it is apparent that on 14 February 2025, the applicant told the court that she wanted to file further affidavits or a further affidavit or affidavits. She had earlier written, on 30 January 2025, to the Associate of Judge Lucev and asked for advice on how to request an extension to the timetable for filing of evidence and affidavits.
2. On 14 February 2025, Judge Lucev noted that the applicant had been provided opportunities to file affidavits but had not availed herself of those opportunities. That was a matter for the applicant. His Honour considered, in the circumstances, that, ordinarily, having regard to the provisions of the FCFCOA Act that I have referred to, in particular section 190, that it might be inappropriate to then allow yet another opportunity to file affidavits.
3. His Honour was persuaded otherwise by three things. First, that both parties said that they wished to file further evidence. Second, that neither party objected to the other being allowed to file further affidavits. And third, as his Honour expressed, critically, it was apparent to his Honour that both cases had significant evidentiary deficits on the presently filed material, and that in order for the court to be put in a position to quell the controversy properly, and properly deal with the issues seemingly raised in the originating application, further evidence may be necessary from both parties. It was in those circumstances that the court determined it was appropriate to grant both parties leave to file further affidavits.
4. At that stage, the applicant, as I have said, indicated that she may wish to issue more than five subpoenas. Judge Lucev noted that it appeared that nobody had yet been subpoenaed to attend court on the final hearing dates or to produce documents. I take from that that both parties were clearly on notice of what needed to be done to prepare the matter for trial in the following three and a half months, and of the, effectively, unusual circumstances in which Judge Lucev was prepared to grant one further procedural indulgence.
5. It is informative in the context of the application because it is difficult for me to understand the applicant's submissions that were made at the start of the hearing that she came to court to see what was required of her, and that she expected her case to be decided, and additionally, seeking to bring documents to court the following day based upon what was discussed and considered and decided by Judge Lucev. It is also difficult for me to understand the applicant's submissions in the context of what I have considered overnight and what she has brought to court that, as I have observed, all predate her request in January 2025 to apply for an extension of the timetable to file affidavits and her remarks to the court on 14 February 2025.
6. I appreciate that I am being asked to deal with this matter under Division 13.2, and that it is not a summary judgment application under s 143 of the FCFCOA Act made on the basis that there is no reasonable prospect of successfully prosecuting the proceeding, however that does not mean that I cannot take into account the nature of the applicant's claim.
7. It is difficult for me to discern the claim based on the information that has been provided to the court. The period of employment is largely uncontroversial. The application seeks an injunction, compensation and pecuniary penalty orders, the latter two to be paid to the applicant. She seeks compensation assessed in the amount of 20 weeks' pay in the sum of $30,769.20.
8. The details of the claim refer to a series of events that occurred from the commencement to termination of employment in regard to workplace issues. In the application, the applicant refers to inappropriate use of language, unequal treatment and non-compliance with contractual requirements amongst other things. The details of the alleged contraventions begin with the applicant being told on 6 October 2023 of a racial vilification complaint that was made against her, which it seems to me some of the evidence filed overnight by the applicant may relate in a peripheral sense to, but it is difficult for me to discern precisely how that is relevant to her claim made in general protections.
9. The applicant claims that she was not given any detail of the complaint, nor the opportunity to respond to it, and she also says that the state manager was unprofessional, disrespectful and derogatory to her in that process. The applicant says that she arrived at work on 13 October 2023, and her employment was terminated. She says, however, that she was still under contract in the week following, and that she wrote a number of emails seeking information going to her concerns.
10. For its part, in the grounds of opposition to further orders, the respondent says that there were concerns made about the applicant's behaviour when she was conducting training, including that she was taking an antagonistic approach toward the students and things were not going well. The applicant was working in a program for young people. It was deemed that the students could be challenging to deal with, and that displays of antagonism toward them by a trainer could create a bad outcome.
11. On 6 October 2023, one of the trainees made a complaint about the applicant. It was verbal. It was suggested racial vilification might be open on it. But it was investigated by the respondent. It was found to have no substance, and the respondent says in the response that it told the applicant that there did not appear to be any matters of concern in relation to those allegations, so in that respect it seems, at least on the issues that are apparent on the pleadings as they are, that the racial vilification aspect was resolved. It is not clear to me from the application how that continues to be a matter that invokes the jurisdiction of the court under the general protection provisions in the circumstances.
12. On 12 October 2023, the general manager of the training division authorised the state manager to take steps to immediately terminate the applicant's employment, and that was done the following day. Following that, there was a series of emails sent by the applicant that took issue with the handling of the racial vilification complaint and the management of the respondent's business more broadly. Those matters are developed in some way in the applicant's affidavit filed on 15 May 2024. It goes into dissatisfaction with the way the racial vilification complaint was handled. It also goes into detail of the applicant's attempts to obtain legal advice and representation in both the Fair Work Commission and in this court, and together with the additional material submitted overnight, goes to a range of personal issues that the applicant claims to be affected by after her employment with the respondent ended. But in my assessment, I cannot see how those matters are relevant to the application that has been filed by the applicant, though I have taken those matters into account where I have been able to.
13. The respondent asserts that the applicant has not provided any material that can realistically found an alleged breach of the general protection provisions of the FW Act.
14. I have considered whether the applicant is a party in default for the purpose of rule 13.04(1). In my view, the applicant is in default for the purpose of that rule. She has failed to comply with orders of the court in the proceeding, in particular, the orders of 28 June 2024 to file and serve affidavit evidence and an outline of written submissions 28 days before the final hearing. She has also failed to comply with the orders extending the time for her to file evidence that were made on 6 December 2024 and in the somewhat reluctant circumstances that I have referred to, extended further on 14 February 2025.
15. In my view, the applicant has failed to prosecute the proceeding with due diligence in circumstances that are largely unexplained. Having found that the applicant is in default, rule 13.05(1) provides the court with the discretion to make a range of orders rule 13.05(6) goes on to enlarge upon that. I have, relevantly, the power to make an order of the kind in subsection (1) or any other order or give any directions and specify any consequences for non-compliance with the order that think are just.
16. The applicant has sought an order that would effectively require a hearing to be relisted at another date and for her to submit evidence within some further extended timeframe. I have considered that matter, and I have also considered whether the proceedings should be dismissed.
17. In my assessment, it is apparent that the applicant came to court yesterday with no real intention of a hearing on the merits taking place. The hearing date was fixed after the parties had been referred to mediation and procedural orders made 11 months ago. It is of some concern that the applicant has failed to take any meaningful step to prosecute the proceedings, including within the context of Judge Lucev's orders in the middle of February this year, but continues to maintain and make submissions that are consistent with having the hearing brought to closure, moving on with life, and wrapping the matter up as soon as possible, including, as she said in writing, progress meaning moving forward, not backward.
18. The proceedings entirely have been on foot since late 2023. That is approximately 18 months. The applicant's position that suggests the court should make investigations or that the court could or should ask what evidence it would like the applicant to submit is a misguided one. I am mindful that the applicant is self‑represented. I am mindful she may experience limitations that are generally associated with self‑represented litigants presenting their own cases. The applicant has also led evidence of disadvantages that she is under since her employment with the respondent ended. However, the state of the litigation was abundantly clear in February 2025. Not only was it clear that Judge Lucev granted leave in unique circumstances, it was also clear that the applicant proactively sought that opportunity where there has been no steps to comply with the orders that the applicant asked for again or to prepare the matter for trial. The failure has impeded the respondent's ability to understand the applicant's case, and to prepare and file evidence in reply.
19. Because the applicant has also not filed and served an outline of written submissions before the hearing or at all, that has also impeded the respondent's ability to understand and file and serve a responsive outline of submissions before the hearing or at all. I find that the matter has never been the subject of any particularly active participation by the applicant.
20. The overarching purpose of the civil practice and procedure provisions also include objectives for the just determination of all proceedings before the court, the efficient use of the judicial and administrative resources of the court, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out in a way that best promotes the overarching purpose.
21. I acknowledge that the court's discretion under rule 13.05(1)(a) of the Rules to dismiss an application is one that is not to be exercised lightly. However, I find that the applicant, despite her protests and submissions to the contrary, and her submissions that seek to blame and shift responsibility onto others, including the respondent's staff, the respondent's lawyers, and the court and its staff, are not persuasive.
22. I find that the applicant has not taken the proceedings seriously and has not acted in accordance with sections 190 and 191 of the FCFCOA Act. The reality is that the applicant's failures have meant that a hearing could not realistically take place over these two days, and despite the hearing dates being allocated since late June last year, and despite the positive submissions made by the applicant that she wished to take steps to prosecute the case and preserve the hearing dates, her failures and her conduct have meant that these judicial and administrative resources of the court - and, to a degree, of the respondent - have been effectively wasted.
23. To the extent that the applicant's submissions suggested an adjournment, she initially yesterday suggested that could be some days. That is not possible in the context of the court's overall workload. If I did not determine the matter in the way that the respondent seeks, and the hearing was effectively adjourned and relisted to some other future date, I do not assess the prospects of the applicant progressing litigation in a meaningful way or in a timely way as reasonable, including the application that she submit an affidavit, not of trial evidence, but of witnesses who would be subpoenaed.
24. The applicant took issue with the respondent's categorisation of her conduct as biting the hand that feeds her, but I interpret that submission to mean that the applicant has been given chances and opportunities and has failed to make good those chances and opportunities. If the respondent was required to continue to participate in proceedings that the applicant is not meaningfully prosecuting, in my view, it places an unacceptable burden on the respondent. This is particularly so as the applicant's conduct has exposed the respondents to ongoing communication from the applicant, which was also the subject of some discussion by Judge Lucev, and, in my view, it would also be unacceptable from a case management perspective, including within the limited resources of the court.
25. I acknowledge that the costs and resources to be incurred by the respondent were minimised to some extent by orders being made albeit as late as 28 May, earlier in the year, permitting the respondent and its lawyers to appear by AVL where there was no evidence led in the case it was asked to meet. That occurred very close to the hearing date, and the court has lost the opportunity for two days of hearing time to be reallocated elsewhere. There was significant uncertainty as to what would take place at the hearing until very close to it and really upon it.
26. Having regard to these matters, I accept that it is appropriate to dismiss the application pursuant to rule 13.05(1)(a) of the GFL Rules when read together with the provisions of the FCFCOA Act that I have referred to. In my view, this is the only course that would be consistent with the overarching purpose in the legislation. I do not accept that the applicant's submission or application for further time to file further affidavits is consistent with the overarching purpose.
27. The respondent initially, in its response, sought an order for costs. The application that was made more recently does not seek an order for costs having regard to what Mr Diamond described as a recognition of the applicant's circumstances.
28. In these circumstances I will dismiss the application and make no order as to costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris.