Experiencing technical difficulties: applicants refused permission to appear remotely in hearing
The Federal Circuit and Family Court of Australia (FCFCA), in the decision of Marzo v Cittadini [2025] FedCFamC2G 1591 (Marzo v Cittadini), has dismissed an application brought by applicants residing overseas to participate in an upcoming trial remotely. The decision noted a presumption against giving evidence by video link, which a court will not readily displace, indicating a marked shift away from the pandemic-era norm of remote hearings.
Facts
The events forming the basis of the dispute in Marzo v Cittadini occurred in late 2018 and early 2019, when two Italian citizens, Mr Marzo and Mr Falconieri (Applicants), were employed[HW1] [HW2] at a Victorian restaurant while on working holiday visas.
Broadly, the Applicants allege their employer, Rosanna Cittadini (Respondent), breached various provisions of the Restaurant Industry Award 2010 (Award), Fair Work Act 2009 (Cth) (FW Act) and Superannuation Guarantee (Administration) Act 1992 (Cth) by failing to:
- pay the Applicants in accordance with the Award;
- make the Award and NES accessible to the Applicants;
- keep accurate records and provide payslips to the Applicants; and
- make superannuation contributions to the Applicants.
As well as seeking civil penalties, Mr Marzo claimed $27,338.23 by way of damages for unpaid wages and superannuation contributions, while Mr Falconieri claimed $10,853.27.
Mr Marzo currently resides in Switzerland, while Mr Falconieri resides in Italy. On 22 September 2025, two weeks before the trial was set to commence, the Applicants’ solicitor requested that the Applicants be able to participate in the upcoming trial via Microsoft Teams.
Submissions
Applicants’ submissions
By oral submissions and written reply, the Applicants’ solicitor submitted that the Applicants would be subjected to severe hardship if required to travel to Australia for the trial, noting their limited means, the significant costs of travel to and accommodation in Australia, the relatively small quantum of their claims, and their current employment in Europe (which it was submitted would be put at risk if they were required to travel to Australia). It was also noted that the Applicants had been able to participate in mediations remotely without objection or issue.
Respondent’s submissions
Counsel for the Respondent submitted that in-person attendance by the Applicants was critical, given that much of their evidence would be contested and that cross-examination would be extensive. Additionally, Counsel submitted that it would be unfairly prejudicial to the Respondent if she was subjected to in-court cross-examination while the Applicants were not. It was also submitted that the application had been made too late (noting the trial date had been fixed since June 2025), and that conducting a hearing remotely would be impractical (citing the Applicants’ difficulties with English and the time differences between Australia and Europe).
Reasoning
Justice Forbes denied the Applicants permission to participate in the trial remotely, citing the following reasons (among others):
- Late application: Justice Forbes was critical of the ‘very late’ application, suggesting that had it been made ‘months ago when the trial was listed…the respondent may have had a different attitude, as too may have the court.’
- Role of the parties: Justice Forbes emphasised that the Applicants are the principal witnesses in their respective applications, and that there is a presumption that a person who invokes the jurisdiction of the Court physically appears to prosecute their case.
- Critical witnesses: It was also noted that the Applicants’ evidence would be critical to the outcome of the proceeding, and that this evidence would be contentious. Justice Forbes anticipated that cross-examination would be a lengthy process and that the Court would need to make significant findings based on the Applicants’ evidence.
- Atmosphere of Court room: Further to the above, Justice Forbes stated that ‘solemnity of the traditional hearing…cannot be compared to the more remote and less intimate world of a video link’ and is ‘not as conducive to detecting the subtle shifts in manner, tone and non-verbal signals which all feed into the assessment of witness credit.’ For these reasons, it would be prejudicial to the Respondent if the Applicants were not also ‘required to give evidence under the full glare of the judge and cross-examining counsel’.
- Impracticalities of remote hearing: Justice Forbes was also of the view that the conduct of the hearing would be undermined if it were to take place remotely, given:
- the language difficulties of the Applicants;
- the lack of evidence regarding the physical locations from which the Applicants would give evidence, including the facilities available to them; and
- foreshadowed issues regarding navigating court books and other relevant documents, which could give rise to a ‘logistical calamity which is best avoided’.
- Discretion of the Court: Justice Forbes noted that several of the cases cited by the Applicants occurred during the COVID-19 pandemic where the courts had to favour electronic trials as a necessary, but sub-optimal, means of keeping the administration of justice moving forward. These cases only reaffirmed that the Court has a discretion and that it will be exercised as required to satisfy the interests of justice.
- Lack of evidence: Finally, the Applicants failed to produce persuasive evidence about their inability or unwillingness to travel to Australia, including in respect of their finances, work commitments, and the cost of travel.
Takeaways
The decision marks a notable shift away from the pandemic-era norm of remote hearings. Despite courts’ extensive experience with video technology during COVID-19, where remote trials were embraced under the overarching purpose of efficiency and access to justice, this case underscores that such arrangements are no longer presumed appropriate. The Court’s refusal to allow the Applicants to participate remotely reflects a broader judicial sentiment that, while remote hearings served a necessary function during the COVID-19 pandemic, they remain a sub-optimal substitute for in-person proceedings.
The case further serves as a reminder that litigants should not assume they can prosecute claims entirely from home, even in a post-pandemic world where flexible work arrangements are common. Rather, the suitability of remote participation will continue to be assessed on a case-by-case basis.
If it is anticipated that a party will need to appear remotely, care should be taken to:
- apply to the Court as early as possible;
- produce evidence supporting the reasons for the need to appear remotely (eg financial hardship and/or inability to attend the hearing in-person);
- make submissions regarding the fairness of the proceeding and lack of prejudice to other parties; and
- produce evidence regarding the location from which evidence will be given, the facilities available to the party giving evidence, and the party’s proficiency with technology.
Despite a general return to in-person proceedings across many Australian courts, the Fair Work Commission may continue to conduct hearings via Teams, even when all parties are physically located in the same area. This will be determined on a case-by-case basis, depending on factors including the complexity of the hearing and the nature of the evidence put forward by the parties.
If you need support navigating litigation, or any other employment matters, please contact our Employment and Workplace Relations team.
This article was written with the assistance of Patrick Hogan and Charlotte White, Law Graduates.
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