Mokhtari v Piacentini & Son Pty Ltd (No 3) - Further Discovery Ordered

Original Word Document (91.9 KB) Federal Court of Australia

Mokhtari v Piacentini & Son Pty Ltd (No 3) [2026] FCA 464

| File number: | WAD 33 of 2024 |

| Judgment of: | COLVIN J |

| Date of judgment: | 8 April 2026 |

| Date of publication of reasons: | 21 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE - application for further discovery - some further discovery ordered - consideration of obligations of litigants - consideration of power of Court to waive or vary requirements of Rules |

| Legislation: | Fair Work Act 2009 (Cth) s 340, s 343, s 345

Federal Court of Australia Act 1976 (Cth) s 37N, s 37M, s 37P

Work Health and Safety Act 2011 (Cth) |

| Cases cited: | Mokhtari v Piacentini & Son Pty Ltd [2025] FCA 26

Mokhtari v Piacentini & Son Pty Ltd (No 2) [2025] FCA 1290 |

| Division: | Fair Work Division |

| Registry: | Western Australia |

| National Practice Area: | Employment and Industrial Relations |

| Number of paragraphs: | 42 |

| Date of hearing: | 8 April 2026 |

| Counsel for the Applicant: | The applicant appeared in person |

| Counsel for the Respondent: | Mr N Ellery |

| Solicitor for the Respondent: | Jackson McDonald |
ORDERS

| WAD 33 of 2024 |

| BETWEEN: | MIRMEHDI MOKHTARI

Applicant | |
| AND: | PIACENTINI & SON PTY LTD (ABN 18 008 797 715)

Respondent | |

| order made by: | COLVIN J |
| DATE OF ORDER: | 8 april 2026 |
THE COURT ORDERS THAT:

1. On or before 30 April 2026, the respondent provide discovery in accordance with paragraph 3 of the orders made 22 October 2025 of the following further categories of documents.

(a) Witness statements from the individuals referenced in Document #014 in Respondent's disclosed list ('Surveyor Incident Executive Summary'), including:

(i) Shaun Keogh;

(ii) Ron Nouri; and

(iii) Robert Cooper.

(b) The original email to which Derek Mitchell responded in Document #013 'Derek Statement' dated 22 January 2023 at 11.10 am from Respondent's disclosed list.

(c) For the period 1 November 2023 to 30 June 2024:

(i) Employment contracts, job descriptions, terms and conditions of employment, any revisions thereto, and performance reviews for:

A. Ron Nouri; and

B. Manhar Sahai.

(ii) Contracts, scope of work documents, and any variations for:

A. TPEA Pty Ltd; and

B. Project Planning and Scheduling Solution.

(d) The versions of the Document Control, Data and Records management procedure (IMS-006-PRO-077) that were current at any time between April and November 2023.

(e) Weekly flight manifests to Argyle for every Monday from August 2023 to November 2024.

(f) Monthly Employee Headcount Reports from January 2023 to November 2024.

1. The costs of and incidental to the applicant's interlocutory application dated 26 November 2025 are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1 Mr Mirmehdi Mokhtari was previously employed as a civil engineer by Piacentini & Son Pty Ltd. In November 2023, his employment was terminated. The letter notifying him of his termination explained that his employment was ending because of redundancy. It referred to his position being no longer required '[a]s a result of project requirements ramping down'. Mr Mokhtari says that the redundancy was not genuine and his employment was terminated for prohibited reasons and amounted to adverse action contrary to s 340 of the Fair Work Act 2009 (Cth) (FW Act). He also makes claims of coercion (contrary to s 343(1)(a)) and a claim that Piacentini & Son made false and misleading representations to him about his workplace rights (contrary to s 345).

2 Mr Mokhtari makes six claims of contravention of the Fair Work Act. Broadly speaking, they are as follows:

(1) On 5 April 2023 there was an incident at work which arose because of non-compliance by Piacentini & Sons with their obligation to provide him with a safe work environment and when he raised a complaint and then objected as to the way the complaint was investigated he was threatened with a poor performance review, stood down and subsequently terminated.

(2) The action of threatening a poor performance review amounted to coercion contrary to the Act.

(3) Mr Mokhtari was discriminated against because his complaint was treated in a different manner to a similar complaint raised by a surveyor in the same workplace.

(4) Mr Mokhtari exercised his right to take sick leave because of mental injury suffered by him as a result of the incident and his actions in taking leave were part of the reason why his employment was terminated.

(5) Mr Mokhtari was discriminated against compared to the treatment of other engineers on the project and by reason that he was the only employee across all work departments chosen for redundancy and also because he was given a stand down notice before he was made redundant.

(6) Piacentini & Sons made misleading statements to Mr Mokhtari about his entitlements to payment for overtime.

3 Aspects of Mr Mokhtari's claim are also cast as breaches of the Work Health and Safety Act 2011 (Cth) (WHS Act). The precise nature of that claim is unclear because Mr Mokhtari relies only upon the object provision in the legislation. He also makes a claim in common law negligence for alleged breach of a duty of care

4 By his re-amended originating application, Mr Mokhtari claims over $15 million in compensation and $563,400 in penalties in respect of his claims under the Fair Work Act. He also seeks the imposition of financial penalties of $3,000,000 in respect of alleged offences contrary to the WHS Act and for orders for an external audit of the operations of all sites of Piacentini & Son 'by relevant authorities, including Fair Work and Worksafe WA'. He also makes a claim concerning the potential risk of foreclosure on his home.

5 Mr Mokhtari has produced detailed materials in pursuit of expansive discovery from Piacentini & Son. Also, from an early stage of the proceedings, he has harboured concerns that records held by Piacentini & Son that are relevant to his case will not be maintained or may be altered in some way: Mokhtari v Piacentini & Son Pty Ltd [2025] FCA 26.

6 Orders were made for a conference to be convened before a registrar to consider the nature and extent of any disclosure to be provided by the parties. There were conferences before the registrar on 12 March, 8 April and 20 May 2025. In the course of that process, Piacentini & Son provided voluntary disclosure. The applicant persisted in his claim for very extensive discovery. I then made orders for the provision of discovery by Piacentini & Son according to categories settled by the Court: Mokhtari v Piacentini & Son Pty Ltd (No 2) [2025] FCA 1290. Those orders were in more confined terms than had been sought by Mr Mokhtari. The orders were made on the basis that once discovery had been given by reference to those categories there could be an application for further discovery informed by inspection. The orders required discovery to be given by 7 November 2025 and for any application for further discovery to be brought by 28 November 2025. The orders also provided that leave would be required for any party to rely on a document that had not been produced by way of discovery in accordance with those orders.

7 Piacentini & Son then provided an affidavit of discovery dated 7 November 2025.

8 On 26 November 2025, Mr Mokhtari brought an application for detailed further discovery by reference to eight categories. He also sought orders requiring Piacentini & Son to file an affidavit verifying that a proper and diligent search has been conducted for the documents and where a document cannot be located, specific identification as to when it was last in the possession of Piacentini & Son.

9 On 18 December 2025, Piacentini & Son provided a further affidavit of discovery. The further documents were mainly timesheets for Mr Mokhtari and various weekly schedules. Although Mr Mokhtari sought to give great significance to the provision of the further discovery, he did not identify any prejudice to the conduct of the proceedings arising from the provision of the further documents at the time they were provided. Rather, his complaint seemed to be that the provision of the further document was a breach of the orders that had been made and imposed a burden by requiring him to go through and consider the further documents. For Piacentini & Son, the documents were said to have been produced as part of continuing discovery obligations. It was said that it was after the affidavit of 7 November 2025 had been affirmed that the documents had been identified as falling within the categories that had been ordered.

10 During the hearing of Mr Mokhtari's application for further discovery, I made orders for further discovery of some of the categories of documents sought. The orders made required the discovery to be given in the manner provided for by the earlier discovery order. I gave my reasons for doing so at the time. However, as to those categories that I declined, I indicated that I would provide my reasons for refusing to order discovery in the terms sought. These are my reasons.

Proposed 'striking out' of further discovery by the affidavit of 18 December 2025

11 Before turning to the categories that I declined to order, I will briefly address an additional aspect of the submissions advanced by Mr Mokhtari.

12 Mr Mokhtari submitted that the provision of the further affidavit of discovery by Piacentini & Son was 'flagrant non-compliance' with the orders that had been made in October 2025. He made the following further written submission:

The Court's order was designed to ensure efficient and expeditious conduct of these proceedings. Permitting the late filing would necessitate further interlocutory applications by the Applicant to seek additional categories of documents in response to the late-disclosed material, creating an ongoing cycle that undermines the Court's case management objectives. Furthermore, striking out prevents the need for the Applicant to seek an IT forensic examination to determine when the disclosed documents actually existed, why they were not produced by the deadline, and why a reasonable search was not conducted. Consequently, this Interlocutory Application does not include documents that would otherwise be required for the final hearing arising from the 18 December 2025 affidavit. Accordingly, the Applicant seeks an order that the Affidavit dated 18 December 2025 and all related documents be struck out as non-compliant and removed from the Court file pursuant to Rule 29.03.

13 As has been mentioned, Piacentini & Son provided the discovery on the basis that it involved a fulfilment of an ongoing discovery obligation. Mr Mokhtari appeared to reject that position on the basis that a due and proper discharge of the obligation at the time would have identified the documents and they would have been included in the discovery affidavit of 7 November 2025. In effect, he viewed the ongoing discovery obligation as relating only to additional documents brought into existence after the 7 November 2025. This view is not correct. The ongoing discovery obligation extends to include any documents that are identified as falling within the scope of disclosure obligations, irrespective of when they came into existence. It is not uncommon in the course of litigation for further documents to be located which must be produced. This may happen through oversight. It may happen because it did not occur to the person undertaking the task of making searches that particular documents might exist or that documents of a particular kind were within the categories required to be produced. It may happen because additional documents are identified as part of the further preparation of a party's case. In such instances, it is unlikely that any criticism could be made, especially where the document is produced as soon as the position is identified.

14 Even where some criticism may be made of the efforts that were undertaken at the time, there remains an ongoing obligation.

15 In the present case there was no explanation for the supplementary affidavit beyond the reference to the ongoing obligation. As I have explained, there is no suggestion that the documents were particularly critical or particularly obvious. There is certainly no foundation for any claim that there was any deliberateness in the failure to include the documents in the affidavit of 7 November 2025 or even that the nature of the documents produced indicated a failure to undertake reasonable steps to comply with the discovery order. The conduct in providing the further disclosure some weeks later is conduct that is consistent with due performance of the discovery obligation.

16 Disclosure is ordered to assist a party to obtain documents in the possession of the other party that may assist the case of the first party and also to ensure that there is a cards on the table approach to the litigation by requiring parties to disclose documents upon which they may rely. Assuming (without finding), that there was some default by Piacentini & Son in making disclosure, it would not make sense for the Court to sanction it by preventing it from making disclosure which would be the consequence of 'striking out' the affidavit of 18 December 2025.

17 Still further, in the present case, an order has already been made that requires a party who produces documents late to obtain leave before they can be relied upon. Piacentini & Son accept that they must do so if they seek to rely upon any of the documents in the supplementary discovery. I have indicated that I consider the appropriate time for any such application to be made to be after statements of evidence have been ordered to be provided, noting that no orders have been made as to the form in which the evidence of witnesses will be received.

18 For those reasons, I declined to make any order of the kind sought by Mr Mokhtari in relation to the supplementary discovery.

19 This is not the only example of Mr Mokhtari adopting what I consider to be a highly technical view of what is required to comply with orders that have been made and then persisting in requiring the Court to make a determination about the matter even though it has little or no practical bearing on the fairness of the process. With due respect to him, those instances have also been accompanied by an overstatement of the significance for the conduct of the litigation of what he considers to be a failure to comply. This posture does not assist. It expands the field of dispute both considerably and unnecessarily. It is productive of delay. The rules of procedure are a means to an end. They serve the purpose of ensuring that the proceedings are conducted in a manner that is fair to all parties. The Court seeks to supervise the procedural steps in a way that allows for a just resolution of the merits of the substantive claims. The Court is required to resolve cases quickly and fairly. All litigants have an obligation to assist the Court in doing so: see s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). Further, for the purpose of advancing those objectives, the Court has power to waive or vary any provision in the Rules in their application to a particular proceeding: see s 37P.

The rejected categories

20 I declined to order discovery in terms of categories 3, 4, part of category 5, category 6 and category 8 as sought by Mr Mokhtari. I will deal briefly with each in turn. Before doing so, I will address an important matter of legal context concerning s 361 of the Fair Work Act which assumed significance in the submissions advanced by Mr Mokhtari.

Section 361 and discovery

21 Section 361 of the Fair Work Act applies to the claims brought by Mr Mokhtari under that Act. It applies where certain provisions of the Act (including those on which Mr Mokhtari relies) will be contravened if actions of a kind specified in the provision are engaged in for a particular reason or with a particular intent. It provides for a statutory presumption to the effect that the reasons for taking of action is a proscribed reason unless the person engaging in the action proves otherwise. It is often referred to as a reverse onus provision.

22 The practical forensic consequence of that provision is that any defence of Mr Mokhtari's claims under the Fair Work Act that is based upon maintaining that the reason for a relevant action (or the intent with which a relevant action was taken) is not that which is alleged by Mr Mokhtari will require Piacentini & Son to adduce evidence as to that reason or intent. A number of the submissions made by Mr Mokhtari were based upon a concern that he needed the documents in order to be able to challenge and test any such evidence. As to those submissions, I approached his discovery application on the basis that he would have an opportunity to address whether there was a need for further discovery for that purpose once those statements have been provided. I did so in circumstances where detailed discovery had been ordered to be provided and, respectfully, it was difficult to see why further discovery should be ordered based upon Mr Mokhtari's concerns that there might be further documents of significance. Nevertheless, to allay those concerns, I made clear that he would have an opportunity to seek further discovery after the statements had been provided if there was a proper basis for requiring further discovery having regard to the specific contents of the statements.

Category 3: Applicant's belongings and room allocation

23 Category 3 sought documents relating to the cancellation of Mr Mohktari's accommodation arrangements and any records as to whether his consent was obtained for personal belongings to be removed from his locker. Mr Mohktari's claim contains no allegations about what happened concerning the cancellation of his accommodation. In his submissions he suggested that the events were relevant to his claim that there was retaliation when he complained about the incident on 5 April 2023. However, that part of his case concerns alleged threats of a poor performance review and the use of the stand down procedure. Mr Mokhtari also suggested that it was an interference with the period of his protected medical leave. A claim of that kind is also not explained in his statement of claim. In circumstances where Mr Mokhtari was employed on a fly-in-fly-out basis, it is not apparent how the allocation of his room to another worker during an extended period of medical leave would be an interference with his leave entitlements.

24 It appears that Mr Mokhtari has taken considerable offence in respect of the alleged interference with his personal clothing. He suggests that there was some form of criminal conduct involved. He seeks to pursue documents about those matters. Even if there was some form of claim to be advanced about the consequences of removal of his personal clothing from his locker the Court would have to consider whether it was appropriate to order any discovery at all in relation to such a claim having regard to the need to keep discovery in proportion to the nature of the claim.

25 For those reasons, I was not persuaded that the documents sought were relevant to the claims raised by Mr Mokhtari.

Category 4: DMIRS investigation

26 Mr Mohktari sought a very considerable list of categories of documents that were said to relate to communications with WorkSafe inspectors and the provision of documents to the Department of Mines, Industry Regulation and Safety (DMIRS) investigation for vehicle rollover incidents (including an incident in which he was involved). He also proposed that Piacentini & Son be required to answer various questions. He also foreshadowed an application for third party discovery as to these matters.

27 The written submissions in support of the application placed particular reliance upon two categories of discovery that had previously been ordered. They were (a) 'documents recording or relating to any steps taken by the respondent in response to, or consequent upon, an incident that is alleged by the applicant to have occurred on 5 April 2023 involving the applicant and Mr David Cartwright (Alleged Incident)'; and (b) 'documents recording details of any investigation or other record of any aspect of the Alleged Incident'.

28 To the extent that the disclosure sought concerned investigation of the rollover incidents, that is not a matter the subject of the claims advanced by Mr Mokhtari in his statement of claim and it is not a matter that could be viewed as being covered by the categories of documents previously ordered. As to the incident on 5 April 2023, there was no foundation for any claim that there had been an investigation of that incident by DMIRS. Therefore, there was no basis to suggest that there was any deficiency in the discovery of documents given by Piacentini & Son in relation to any investigation of the Alleged Incident.

29 At times it appeared that the nature of Mr Mokhtari's complaint was that there should have been a referral for such an investigation by DMIRS of the Alleged Incident. However, there is no claim of that kind in the statement of claim. Further, if there had been no such referral then it is difficult to see why there would be relevant documents in respect of an investigation that had not been conducted. In short, there was no basis for suggesting that there had not been proper discovery of documents that responded to the category concerning investigation of the 'Alleged Incident'.

30 The submissions advanced by Mr Mokhtari suggested some claim that there had been suppression by Piacentini & Son of past safety complaints. There is no such claim in the statement of claim. It is difficult to see how complaints of that kind might support the relief that is sought in the proceedings. To the extent that it was suggested that there should be discovery of the approach to the rollover events because they indicated some form of course of conduct of suppressing complaints, I was not persuaded that the documents were directly relevant to the issues raised by Mr Mohktari's claims, nor that there was any reason why the requirement for direct relevance should not apply. On the contrary, pursuit of the documents was likely to raise collateral issues that were likely to result in delay and require the investigation of matters that were unlikely to assist in the fair and expeditious resolution of the claims made by Mokhtari.

31 For those reasons, I declined to order discovery of the category sought.

Category 5: Policies and procedures

32 The part of category 5 that I did not order concerned all versions of the Performance Management policy, procedure and forms including those before 5 April 2023 (being the date of the incident). This category needs to be considered in the context of other categories that have been ordered. Piacentini & Son has been ordered to discover 'documents relating to any performance review of the applicant conducted after the Alleged Incident and the reasons for conducting the performance review'. There was no evidence to suggest inadequacy in the discovery that had been given as to that category. Also, to the extent that Mr Mokhtari claimed that he had been treated differently as to performance reviews, Category 2 sought by Mr Mokhtari on his application required Piacentini & Son to provide the performance reviews for the other two engineers in the workplace at the time. I ordered that category to be provided.

33 In those circumstances, the documents that were directly relevant to the case as advanced by Mr Mokhtari in relation to performance review have been required to be produced. There was no basis advanced to conclude that the policy documents sought were of sufficient relevance to require them to be produced.

34 For those reasons, I did not order the discovery of all the policies and procedures relating to Performance Management.

Category 6: Safety training records

35 Mr Mokhtari sought all documents demonstrating the measures, training or actions undertaken to ensure that none of the named individuals 'were trained and equipped to identify and control mental health hazards and psychosocial risks in the workplace'. This too was said to be required to be produced under the category of documents that previously had been ordered in relation to the steps taken in response to or consequent upon the Relevant Incident. In my view, the additional documents sought did not respond to that category as ordered because the category was concerned with the actions taken after the incident not the previous training of those involved. Further, there is no claim by Mr Mokhtari based upon alleged inadequacy in training. Rather, his claim is much more direct. He says that the incident occurred and he was harmed as a result. He says that he was harmed because the incident itself was a breach of the obligation to provide a safe workplace and because of the approach to investigation. He does not say that the harm to him arose because particular individuals were not adequately trained. A claim of that kind would need to explain why there could be a causal connection between the alleged lack of training and the incident. It would need to specify the training that should have occurred.

36 For those reasons, I was not persuaded that the documents were of sufficient relevance to require them to be discovered.

Category 8: Metadata requirements

37 Mr Mokhtari advanced a submission that the discovery provided included demonstrably 'false -dated documents'. However, his evidence in support of the application for further discovery provided only one example of a document and it contained a date that was obviously in error and from which it could not be concluded that it had been falsely dated. He also pointed to the evidence that had been provided by Piacentini and Son about what had occurred in relation to the loss and destruction of documents. That evidence explained what had occurred in relation to aspects of document management and why certain documents were no longer held by Piacentini & Son. That evidence was not a reason to require production of metadata in relation to those documents that had been produced.

38 Mr Mokhtari also relied upon the terms of the Court's Technology and the Court Practice Note (GPN-TECH). However, the provisions of that practice note that concern discovery relate to instances where the Court has determined that the proceeding would benefit from an electronic discovery process. A process of that kind requires an agreed protocol. The nature of the present proceedings would not justify the costs associated with such a procedure.

39 In the absence of evidence of a credible concern as to the authenticity of documents that have been produced, I was not persuaded that there should be an order requiring the additional cost to be incurred of producing metadata for the documents that have been discovered.

Costs

40 Mr Mokhtari, who is conducting the proceedings in person, sought an order for costs to be paid by Piacentini & Son on an indemnity basis. Orders of that kind must be supported by evidence of unreasonable conduct. There is also the need to bring to account the terms of s 570 of the Fair Work Act. In the circumstances I have described, I was not satisfied that there was any basis for an order for costs on an indemnity basis. Indeed, it is difficult to see what purpose would be served by such an order in circumstances where Mr Mokhtari acts on his own behalf.

41 Piacentini & Son also sought an order for costs.

42 As to whether there should be some other form of costs order, I reserved the question of costs so that any application could be made informed by the ultimate outcome of the proceedings and the overall manner in which they had been conducted.

| I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:

Dated: 21 April 2026