NOTICE OF FILING

This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
22/01/2018 11:11:00 AM AEDT and has been accepted for filing under the Court’s Rules. Details of
filing follow and important additional information about these are set out below.

Details of Filing

Document Lodged: Statement of Claim - Form 17 - Rule 8.06(1)(a)

File Number: NSD71/2018
File Title: LEE ROSSETTI v AUS GOLD MINING GROUP PTY LIMITED & ANOR
Registry: NEW SOUTH WALES REGISTRY - FEDERAL COURT OF
AUSTRALIA

Dated: 25/01/2018 4:58:00 PM AEDT Registrar

Important Information

As required by the Court’s Rules, this Notice has been inserted as the first page of the document which
has been accepted for electronic filing. It is now taken to be part of that document for the purposes of
the proceeding in the Court and contains important information for all parties to that proceeding. It
must be included in the document served on each of those parties.

The date and time of lodgment also shown above are the date and time that the document was received
by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if
that is a business day for the Registry which accepts it and the document was received by 4.30 pm local
time at that Registry) or otherwise the next working day for that Registry.
Form 17
Rule 8.05(1 )(a)
Statement of claim
No. of 20
Federal Court of Australia
District Registry: New South Wales
Division: Fair Work Division

Lee Rossetti
Applicant

Aus Gold Mining Group Pty Limited

First Respondent
Sha Zou
Second Respondent

1. At all material times the applicant was a person within the meaning of the Schedule 2 of
the Competition and Consumer Act 2010 (Cth) (The Australian Consumer Law) (the AC
Law).

2. From 7 January 2015 the first respondent:

a. was a company duly incorporated and able to sue and be sued in its corporate
name;

b. operated a mining business situated in Broken Hill in the State of New South
Wales;

c. was an "national system employer" within the meaning of section 14 of the Fair
Work Act 2009 (Cth) (the FW Act);

d. was a person as that expression is used in the AC Law.

3. At all material times the second respondent:

a. was the director of the first respondent;

b. was the director of Aus Metals Mining Group Pty Ltd (Aus Metals), a company
duty incorporated on 31 March 2014 and deregistered on 27 July 2016;

Filed on behalf of (name & role of party) Lee Rossetti, ap2Ei::.~nt . . .·- · - - - · - - - - - - -- - -
Prepared by (name of person/lawyer) Robin Y,9._L!.r_:l.9-2... !:.~\i\IY~r .
Law firm (if applicable) ljQlr.!l<::!QYYebb Lawyers __ _.... ...-··-·------- _
Tel 9390 8000 ____
.............._. Fax 9390 8390
-=-=-=--=-=-==--------~
Email ~9bin . young@hol.r.!19.DY.!:'.~bb.com.au .......... -------- -- - - --
Address for service Holman Webb Lawyers, Level 17 Angel Place, 123 Pitt St Sydney NSW
(include state and postcode) ?.9.99.. . _.___ _ __ ____ ___ __
·-............ . . .. . . .- ................. - --
[Form approved 01/08/2011]
 2

c. was responsible for the overall direction, management and supervision of the first
respondent, including decisions regarding employees;

d. was responsible for ensuring that the first respondent complied with its legal
obligations under the FW Act;

e. made decisions on behalf of the first respondent's business, or was ultimately

responsible for the first respondent's decisions in relation to :

i. the recruitment or engagement of employees of the first respondent;

ii. the terms and conditions upon which persons would be engaged by the
first respondent;

iii. payments made to the persons engaged to perform work.

f. was a person within the meaning of the AC Law;

4. In or around early November 2014 the second respondent made a telephone call to the
applicant during which a conversation took place to the following effect:

Second respondent: "Lee, we must get a mine going."

Applicant: "Sally, iron ore is no good the price trend continues to fall,
nickel is no good and copper continues to head south, no
good. The only thing that is good is gold ... "

Second respondent: "Good, we will do gold then" (the first representation).

5. In or around early November 2014 the second respondent said words to the following
effect to the applicant:

"You will be the General Manager. I want your role to include looking at potential
iron ore and base metal project acquisitions, as well as the precious metals" (the
second representation).

6. In or around early November 2014 a conversation took place between the applicant and
the second respondent to the following effect:

Applicant: "The industry average salary for General Managers is

around $250, 000, plus benefits such as a company car
and suitable accommodation."

Second respondent: "I'm happy with that, send an agreement to me in writing"

(the third representation).

7. On or around 5 November 2014, in accordance with the second respondent's request,

the applicant sent the second respondent a letter of appointment for his employment in
the position of General Manager.
 3

8. In or around early December 2014 the applicant commenced working for Aus Metals
and/or the second respondent.

9. The applicant undertook full time work for Aus Metals including reviewing potential iron
ore, precious and base metal projects in South Australia, NSW and Queensland and
provided the second respondent technical reports and recommendations concerning the
projects.

1O. In mid-December 14 the second respondent said the applicant words to the following
effect:

"Lee, I am going to form a new company for the project. The company will be
called Aus Gold and I will be the director. You will be employed by that company
as the General Manager for the life of the project, which will be at least five
years." (the fourth representation).

11. From 1 January 2015 an office space was leased at the Trades Hall Building in Broken
Hill for the purposes of being the first respondent's office.

12. The first respondent was registered on 7 January 2015.

13. On or around 6 February 2015 the second respondent said words to the applicant to the
following effect:

"Lee, your agreement is now with Aus Gold, not Aus Metals. The terms will be
the same. Please send me a revised agreement changing the name to Aus
Gold. "

14. In or around February 2015 the applicant sent the second respondent a revised
agreement naming the first respondent as the employer {the letter of appointment).

15. The conversations between the applicant and the second respondent set out above and
the letter of appointment constituted the verbal and written terms of a contract between
the applicant and the first respondent, under which the applicant agreed to serve the first
respondent and the first respondent agreed to employ the applicant in the position of
General Manager.

16. The verbal terms of the contract were set out in paragraphs 5, 6, 10 and 13 above.

17. The written terms of the contract were set out in the letter of appointment and included:

a. the applicant was to be appointed in the position of General Manager;

b. the employment was covered by the FW Act and the National Employment
Standards;

c. the applicant would be paid an annual salary of $250,000;

 4

d. the applicant's salary would be paid on a monthly basis;

e. the minimum term of the contract would be for five years, commencing from 1
January 2015;

f. after expiration of the term of the contract either the applicant or the first
respondent may terminate the contract on the provision of notice;

g. the applicant would be entitled to annual leave of four weeks per annum which
was the equivalent of 152 hours;

h. the first respondent would make contributions into a superannuation for the
benefit of the applicant.

Particulars

i. The written terms of the contract were set out in a letter of appointment
sent to the second respondent in or around April 2015, in particular
clauses 1, 5, 6, 10, 11, 15.2 and the Schedule.

18. On 19 April 2017 the first respondent terminated the contract.

19. The applicant was paid $218,000 in total for work performed by him from December
2014 to 20 April 2017.

20. The first respondent.did not make any contributions with the respect to the first
applicant's superannuation fund or any other superannuation fund.

Breach of contract

21. The first respondent breached the written and/or verbal terms of the contract by:

a. failing to pay the applicant in accordance with the terms of the contract;

b. terminating the contract prior to the expiration of the five-year term;

c. failing to make contributions to a superannuation fund for the benefit of the

applicant.

22. By virtue of the first respondent's breaches of the contract, the applicant has suffered
loss and damage.

Particulars of loss and damage

i. Loss of salary for the period 1 January 2015 to 20 April 2017.

1. The term of the letter of appointment was from 1 January 2015 to

20 April 2017, a period of 27.6493 months;

2. In that period the applicant was entitled to salary payments

totalling $576,026.99 (monthly salary of $20,833.33 x 27.6493);
 5

3. The first respondent paid the applicant $218,000 in total for work
performed by him;

4. The applicant claims unpaid salary for the period 1 January 2015
to 20 April 2017 totalling $358,026.99, less applicable tax.

ii. Loss of the balance of the term of the fixed term contract.

1. The contract was terminated on 20 April 2017;

2. At the time the contract was terminated the balance of the term of
the contract was 32.3507 months;

3. The applicant claims loss of balance of the term of the fixed term
contract totalling $673,972.80, less applicable tax (monthly salary
of $20,833.33 x 32.3507 months).

4. Loss of contributions to superannuation for the term of the

contract.

iii . Under the terms of the contract the first respondent had an obligation to
make contributions to a superannuation fund for the benefit of the
applicant;

1. The first respondent did not make any contributions to a

superannuation fund for the benefit of the applicant;

2. At all material times the superannuation guarantee rate was 9.5%.

3. The applicant claims loss of the benefit of contributions to a

superannuation fund for the term of the contract totalling
$118.750.00.

iv. Loss of payment of notice on termination of the contract after expiry of the
fixed term.

1. Under the terms of the contract the first respondent had an

obligation after expiry of the fixed term to give notice to the
applicant, or to make a payment to him in lieu of notice;

2. The respondent claims a payment of reasonable notice on

termination of the contract in the amount of three months of his
salary, $62,499.99, less applicable tax;

3. In the alternative, the applicant claims notice in accordance with

section 117 of the FW Act, totalling $24,038.46, less applicable
tax (five weeks salary).
 6

Breach of contract - second respondent

23. In the alternative to the above, the conversations between the applicant and the second
respondent set out above and the letter of appointment constituted the verbal and written
terms of a contract between the applicant and the second respondent, under which the
applicant agreed to serve the second respondent and the second respondent agreed to
employ the applicant in the position of General Manager.

24. The applicant repeats paragraph 16 to 20 above.

25. The second respondent breached the written and/or verbal terms of the contract by:

a. failing to pay the applicant in accordance with the terms of the contract;

b. terminating the contract prior to the expiration of the five-year term;

c. failing to make contributions to a superannuation fund for the benefit of the

applicant.

26. By virtue of the second respondent's breaches of the contract, the applicant has suffered
loss and damage.

Particulars of loss and damage

i. Repeat particulars at paragraph 22 above.

Breach of section 323(1) of the FW Act

27. Pursuant to section 323(1) of the FW Act, the first respondent was obliged to pay the
applicant amounts payable to him in relation to the performance of work in full and at
least monthly.

Particulars

i. Section 323( 1) of the FW Act.

28. The first respondent was obliged to pay the applicant his annual salary in full and at least
monthly.

29. The first respondent paid the applicant $218,000 in total for work performed by him.

30. The first respondent contravened section 323(1) of the FW Act by failing to pay the
applicant in full and at least monthly.

31. The first respondent contravened section 323(1) of the FW Act on each occasion it failed
to pay the applicant in full and at least monthly (27 separate occasions from 1 January
2015 to 20 April 2017).

32. By virtue of the first respondent's contraventions the applicant has suffered loss and
damage.
 7

Particulars of loss and damage

i. Repeat particular 22(i) above.

33. At all material times the second respondent knew that the applicant was not being paid
in full or at least monthly.

Particulars

i. The second respondent agreed that the applicant was to be paid

$250,000 per annum;

ii. The second respondent was in possession of the letter of appointment

which specified that the applicant was to be paid on a monthly basis
during the term of the employment (clause 5.1 of the letter of
appointment);

iii. The second respondent had full financial control over the first respondent;

iv. The second respondent was responsible for payment of wages to

employees of the first respondent, including the applicant.

34. By reasons of the matters alleged in paragraphs 2 and 32 above, the second respondent
was involved in the first respondent's contraventions of section 323(1) of the FW Act.

35. Pursuant to section 550(1) of the FW Act, the second respondent is taken to have
contravened section 323( 1) of the FW Act.

36. The applicant seeks:

a. An order that the first respondent pay unpaid salary totalling $358,026.99, less
applicable tax;

b. A declaration that the first respondent contravened section 323(1) of FW Act;

c. A declaration that the second respondent is taken to have contravened section

323( 1) of FW Act by virtue of section 550 of the FW Act;

d. An order imposing civil penalties on the both the first and second respondents for
contraventions of the FW Act, in an amount to be determined by the court.

Breach of section 90(2) of the FW Act

37. Under the contract the applicant had an entitlement to four weeks annual leave per
annum, which was the equivalent of 152 hours.

Particulars

i. Clause 5.2.1 of the Letter of Appointment.

 8

ii. The applicant was also entitled to four weeks paid annual leave for each
year of service with the first respondent and entitled to accrue annual
leave progressively pursuant to section 87(2) of the FW Act.

38. Pursuant to subsection 90(2) of the FW Act, on the end of his employment, the first
respondent was required to pay the applicant the amount that would have been payable
to him had he taken his accrued but untaken annual leave.

Particulars

i. Section 90(2) of the FW Act.

39. The applicant's employment ended on 20 April 2017.

40. The first respondent failed to pay the applicant on the end of his employment the amount
that would have been payable to him had he taken his accrued but untaken annual
leave.

41. By reason of the first respondent's failure, the applicant has suffered loss and damage.

Particulars of loss and damage

i. Over the period 1 January 2015 to 20 April 2017, the applicant had
accrued approximately 350.39 hours of annual leave;

ii. The applicant's hourly rate was $126 .52 gross per hour;

iii. The applicant claims a payment for his accrued but untaken annual leave
totalling approximately $44,330.72, less applicable tax (350.39 hours x
$126.52).

42. By reason of the matters alleged in paragraphs above, the first respondent contravened
section 44 of the FW Act by failing to pay the applicant's accrued but untaken annual
leave on the ending of the employment of as required by subsection 90(2) of the FW Act.

43. The applicant seeks:

a. a declaration that the first respondent contravened section 44 of FW Act;

b. an order imposing a civil penalty on the first respondent for contravening section
44 of the FW Act, in an amount to be determined by the court.

Breach of the AC Law

44. At all material times the applicant was a person seeking employment within the meaning
of section 31 of AC Law.

45. The second respondent made the representations to the applicant set out in paragraphs
4, 5, 6, and 10 above (together, the representations).
 9

46. In making the representations the respondents were engaged in trade or commerce
within the meaning of the AC Law.

47. In making the representations the second respondent was acting as agent of the first
respondent.

48. The representations were to the effect that:

a. the applicant would be the General Manager of the mining project;

b. the applicant would be entitled to a salary of $250,000 gross per annum;

c. the applicant would be employed for the life of the project, which was to be a
minimum of five years.

49. In reliance upon representations the applicant:

a. accepted the offer of employment as General Manager;

b. commenced working as the General Manager from December 2014;

c. worked for the first respondent up until termination of the contract on 20 April
2017.

50. The representations made by the second respondent were representations made in
relation to employment that was offered by the first or second respondent to the
applicant.

51 . The representations were made in relation to future matters.

52. By virtue of section 4(2) of the AC Law, insofar as the representations were made as to
future matters, the respondents are taken not to have reasonable grounds for making
the representations.

53. By making the representations, the respondents engaged in conduct that was
misleading and/or liable to mislead the applicant contrary to section 31 of AC Law as to
the terms and conditions of the applicant's employment in that contrary to the
representations the respondents did not pay the applicant a salary of $250,000 gross per
annum and terminated the applicant within a period of five years.

54. By reason of the matters pleaded above the applicant has suffered loss and damage
and claims an order against the first respondent and/or second respondent pursuant to
section 236 of the AC Law for loss and damage.

Particulars of loss and damage

i. Loss of salary for the period 1 January 2015 to 20 April 2017.

 10

1. The applicant was employed from 1 January 2015 to 20 April

2017, a period of 27.6493 months;

2. In that period the applicant was entitled to salary payments

totalling $576,026.99 (monthly salary of $20,833.33 x 27.6493);

3. The first respondent paid the applicant $218,000 in total for work
performed by him;

4. The applicant claims unpaid salary for the period 1 January 2015
to 20 April 2017 totalling $358,026.99, less applicable tax.

ii. Loss of the balance of a five-year fixed term contract.

1. The contract was terminated on 20 April 2017;

2. At the time the contract was terminated the balance of the term of
the contract was 32.3507 months;

3. The applicant claims loss of balance of the term of the fixed term
contract totalling $673,972.80, less applicable tax (monthly salary
of $20,833.33 x 32.3507 months).

iii. Loss of contributions to superannuation for the term of the contract.

1. Under the terms of the contract the first respondent had an

obligation to make contributions to a superannuation fund for the
benefit of the applicant;

2. The first respondent did not make any contributions to a

superannuation fund for the benefit of the applicant;

3. At all material times the superannuation guarantee rate was 9.5%.

4. The applicant claims loss of the benefit of contributions to a

superannuation fund for the term of the contract totalling
$118,750.00.
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Date: 19 January 2018

Robin Young
Lawyer for the Applicant
Signed by his Partner
Jacqueline Snell

This pleading was prepared by Robin Young, lawyer

Certificate of lawyer

I Robin Young certify to the Court that, in relation to the statement of claim filed on behalf of the
Applicant, the factual and legal material available to me at present provides a proper basis for
each allegation in the pleading.

Date: 19 January 2018

k __
Robin Young
Lawyer for the Applicant
Signed by his Partner
Jacqueline Snell