Mokhtari v Piacentini & Son Pty Ltd (No 3)

This case arose inside a larger employment dispute between a former civil engineer, Mr Mirmehdi Mokhtari, and his former employer, Piacentini & Son Pty Ltd. Mr Mokhtari's employment ended in November 2023. The termination letter said his role was redundant because project requirements were ramping down. He said that explanation was not genuine.

According to the Court's summary of the pleadings, Mr Mokhtari alleged prohibited adverse action, coercion and misleading representations under the Fair Work Act. He also framed parts of his case by reference to workplace safety legislation and common law negligence. The Court noted that he sought very substantial compensation and penalties. But this judgment did not decide whether any of those claims were made out.

The immediate issue was narrower and procedural. It concerned discovery, meaning what documents the employer had to produce to the employee for the purposes of the litigation. Earlier in the proceeding, the Court had already dealt with disputes about disclosure and had ordered discovery in categories that were more confined than the employee originally wanted. Those earlier orders also allowed for a later application for further discovery after inspection of what had been produced.

After Piacentini & Son filed an affidavit of discovery on 7 November 2025, Mr Mokhtari applied for more detailed discovery across eight categories. He also wanted stronger verification about the searches undertaken. Then, on 18 December 2025, the employer filed a further affidavit of discovery with additional documents, mainly timesheets and weekly schedules. Mr Mokhtari treated that later affidavit as serious non-compliance and sought to have it struck out. The Court therefore had to decide two things at once: which extra categories of documents should be ordered, and whether the supplementary discovery was improper.

The reasons give a useful summary of the employee's broader allegations. The judge said Mr Mokhtari made six Fair Work claims. In broad terms, he alleged that on 5 April 2023 there was a workplace incident caused by non-compliance with the employer's obligation to provide a safe work environment. He said that when he complained and objected to the way the complaint was investigated, he was threatened with a poor performance review, stood down and later terminated.

He also alleged that the threatened poor performance review amounted to coercion, that he was treated differently from a surveyor who had raised a similar complaint, that his use of sick leave for mental injury was part of the reason for termination, that he was discriminated against compared with other engineers and was the only employee across all work departments chosen for redundancy, and that the company made misleading statements about overtime entitlements.

The Court also recorded that aspects of the case were cast as breaches of the Work Health and Safety Act 2011 (Cth), although the judge said the precise nature of that claim was unclear because the employee relied only on an object provision. There was also a common law negligence claim. Those details matter because discovery is assessed by reference to the actual claims pleaded. If a document request does not line up with the pleaded case, the Court is less likely to order it.

For business readers, that is an important procedural point. Discovery is not a free-standing audit of everything a company has done. It is tied to the issues raised by the pleadings and the way the case is actually put. That is why the Court spent so much time asking whether each requested category was directly relevant to the claims on foot.

The central issue was not whether Piacentini & Son had contravened the Fair Work Act or any other law. The issue was procedural: should the Court order further discovery, and if so, how far should it go? The Court also had to decide whether the employer's supplementary affidavit of discovery should be treated as non-compliant and effectively removed from the case.

In dealing with that question, the judge emphasised ordinary but important principles. Discovery exists to help a party obtain documents in the possession of the other side that may assist the case, and to support a cards-on-the-table approach to litigation. But discovery is not unlimited. The Court must manage proceedings so they are resolved quickly and fairly. The reasons refer to the obligations of litigants under sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth), and to the Court's power under section 37P to waive or vary procedural requirements where appropriate.

The judge also addressed section 361 of the Fair Work Act. That provision creates a statutory presumption in certain Fair Work claims about the reason for taking action, unless the person who took the action proves otherwise. In practical terms, if an employer says it acted for a lawful reason, it may need to lead evidence proving that reason. Mr Mokhtari argued that he needed more documents so he could test any such evidence. The Court accepted the forensic significance of section 361, but did not treat it as a reason for open-ended discovery. Instead, the judge said there could be a later opportunity to seek more discovery after witness statements were served, if there was then a proper basis for it.

The Court ordered some further discovery. The formal orders required Piacentini & Son to provide, by 30 April 2026, discovery in accordance with the earlier October 2025 discovery framework for the following categories.

First, witness statements from the individuals referenced in Document #014 in the respondent's disclosed list, described as the 'Surveyor Incident Executive Summary', including statements from Shaun Keogh, Ron Nouri and Robert Cooper. Second, the original email to which Derek Mitchell responded in Document #013, described as 'Derek Statement' dated 22 January 2023 at 11.10 am. Third, for the period 1 November 2023 to 30 June 2024, employment contracts, job descriptions, terms and conditions of employment, any revisions, and performance reviews for Ron Nouri and Manhar Sahai, as well as contracts, scope of work documents and any variations for TPEA Pty Ltd and Project Planning and Scheduling Solution. Fourth, the versions of the Document Control, Data and Records management procedure, identified as IMS-006-PRO-077, that were current at any time between April and November 2023. Fifth, weekly flight manifests to Argyle for every Monday from August 2023 to November 2024. Sixth, monthly Employee Headcount Reports from January 2023 to November 2024.

At the same time, the Court refused several broader categories. The judge declined to order discovery concerning the employee's accommodation arrangements and belongings, broad DMIRS and WorkSafe-related material, all versions of performance management policies and forms, safety training records for named individuals, and metadata for discovered documents.

The reasons for refusal are commercially useful. The Court said the accommodation and belongings material was not shown to be relevant to the pleaded claims. The broad DMIRS and WorkSafe requests were not tied closely enough to the pleaded case and risked opening collateral issues. The request for all performance management policies was unnecessary because more directly relevant documents had already been ordered, including documents about the employee's own performance review after the alleged incident and performance reviews of other engineers. The safety training request did not match the way the claim was pleaded, because the employee was not alleging that the incident occurred because particular individuals lacked training. The metadata request failed because there was no credible evidence of authenticity problems and the case did not justify the cost of an electronic discovery process.

One of the most practical parts of the judgment concerns the employer's supplementary affidavit of discovery filed on 18 December 2025. Mr Mokhtari argued that this was 'flagrant non-compliance' with the earlier orders and said the later affidavit and related documents should be struck out. His position was effectively that if the employer had done a proper search by 7 November 2025, those documents should already have been found and disclosed.

The Court rejected that approach. The judge said Mr Mokhtari's view of ongoing discovery was not correct. The ongoing discovery obligation extends to any documents later identified as falling within the scope of the disclosure obligations, irrespective of when those documents came into existence. The Court said it is not uncommon in litigation for further documents to be located later. That can happen through oversight, because a searcher did not realise certain documents existed, because it was not appreciated that a type of document fell within the ordered categories, or because further preparation of the case reveals additional material.

The judge also said there was no basis here to infer deliberate non-disclosure or even a failure to take reasonable steps. The later production was consistent with due performance of the discovery obligation. Importantly, the Court added that even if there had been some default, it would make little sense to sanction that by preventing disclosure, because disclosure is meant to help the parties and the Court deal with the case fairly.

The Court also noted that an earlier order already required a party to obtain leave if it wanted to rely on a document produced late. Piacentini & Son accepted that it would need leave if it sought to rely on any of the supplementary documents. The judge considered that an appropriate safeguard and said any such application should be dealt with after witness statements were ordered.

For businesses, this is a plain reminder that discovery is not a one-off event. Once litigation is on foot, document searches may need to be revisited. If more responsive documents are found, they should be dealt with promptly and carefully. The safer course is to preserve records early, document search steps, and avoid assuming that filing an affidavit ends the obligation.

This decision is best read as a practical guide to how courts manage document disputes in employment litigation. First, if a business dismisses an employee for redundancy after complaints, leave, conflict or safety concerns, the documentary record becomes critical. The Court may not decide the merits at an early stage, but it will often require production of records that bear on the real reason for the decision and the surrounding treatment of the employee.

Second, the Court will usually prefer targeted categories over broad requests that turn the case into a general investigation of workplace culture, safety history or every policy ever used by the business. That does not mean those broader issues are never relevant. It means they must be connected to the pleaded claims in a direct and proportionate way.

Third, businesses should not assume that procedural technicalities will carry the day. The judge criticised an overly technical posture that expanded the field of dispute and caused delay. Courts expect parties to assist in the quick and fair resolution of proceedings. In practical terms, that means preserving documents, producing what is properly required, and focusing on the issues that matter to the hearing.

Fourth, version control matters. One of the categories ordered here was the versions of a document control, data and records management procedure current between April and November 2023. That is a useful reminder that policy and procedure versions can become important in litigation, especially where a party says a process was not followed or a stated reason was not genuine.

Finally, section 361 of the Fair Work Act remains significant. If an employer must prove its actual reasons for taking action, contemporaneous records can be far more persuasive than after-the-event explanations. Decision-makers, HR staff and operational managers should therefore ensure that redundancy rationales, performance processes, complaint handling and leave-related decisions are documented in a way that accurately reflects what happened at the time.