Dorsch v HEAD Oceania Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Dorsch v HEAD Oceania Pty Ltd [2025] FCA 854  

Appeal from: Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832
File number: NSD 1099 of 2024
Judgment of: SNADEN J
Date of judgment: 25 July 2025
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal a costs order made by a single judge of the Federal Court – whether leave to appeal should be granted – whether substantial injustice occasioned if leave to appeal refused – whether primary judgment attended by sufficient doubt –whether arguable case exercise of discretion by primary judge affected by error – appeal grounds including mistake of fact, failure to take into account relevant considerations and application of wrong principles – no sufficiently arguable grounds of appeal – application for leave to appeal dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 62, 90, 340, 361, 570, 793

Federal Court of Australia Act 1976 (Cth) ss 24, 37M

Cases cited:

Coulton v Holcombe (1986) 162 CLR 1

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Dimitrovski v Boland [2023] FCAFC 86

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832

Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133

EBT17 v Minister for Home Affairs [2019] FCA 200

Elzain v Deputy Commissioner of Taxation [2024] HCASJ 45

Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) (2023) 299 FCR 224

House v The King (1936) 55 CLR 499

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 61
Date of hearing: 25 June 2025
Counsel for the Applicant: Mr A Britt
Solicitor for the Applicant: Harmers Workplace Lawyers
Counsel for the Respondent: Mr S Meehan SC with Mr D Lloyd
Solicitor for the Respondent: Hall & Wilcox

ORDERS

NSD 1099 of 2024
BETWEEN:

MATTHIAS DORSCH

Applicant
AND:

HEAD OCEANIA PTY LTD

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

25 JULY 2025

THE COURT ORDERS THAT:

1.The application for leave to appeal dated 12 August 2024 be dismissed.

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


REASONS FOR JUDGMENT

SNADEN J:

  1. By judgment dated 31 July 2024, this court resolved to make costs orders against the applicant, Mr Dorsch:  Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832 (hereafter, the “Primary Judgment”; Raper J).  That judgment followed from a more substantive one by which a suite of claims that Mr Dorsch had sought to prosecute against his former employer, the respondent (hereafter, “HOPL”), were (with one exception) dismissed:  Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 (hereafter, the “Liability Judgment”; Raper J).

  2. By an application lodged on 12 August 2024, Mr Dorsch seeks…

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Details
Case
[2025] FCA 854
Decision Date

CaseChat Overview and Summary

Mr Dorsch, a former employee of HEAD Oceania Pty Ltd (formerly Mares Oceania Pty Ltd), sought leave to appeal against the costs order made by the Federal Court in Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832. The costs order followed the dismissal of his claims against his former employer, except for one, in Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162. Dorsch's application for leave to appeal was put on hold pending the outcome of an appeal from the liability judgment, which was dismissed by the Full Court in Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133. Dorsch's application was then heard on 25 June 2025, and was supported by two affidavits, including one from his treating practitioner, Dr Suzanne Miau. HEAD Oceania Pty Ltd objected to the receipt of the affidavits but the objection was unsuccessful. Dorsch sought leave to appeal on several grounds, including a mistake of fact, failure to take into account relevant considerations, and the application of wrong principles. However, the court found that there were no sufficiently arguable grounds of appeal and dismissed the application for leave to appeal.

The court examined whether leave to appeal should be granted, whether a substantial injustice would occur if leave to appeal was refused, whether the primary judgment was attended by sufficient doubt, and whether the exercise of discretion by the primary judge was affected by error. The court found that Dorsch had failed to establish any sufficiently arguable grounds of appeal and that there was no substantial injustice that would occur if leave to appeal was refused. The court also found that the primary judgment was not attended by sufficient doubt and that the exercise of discretion by the primary judge was not affected by error. Dorsch's claims against HEAD Oceania Pty Ltd related to his termination of employment and the failure to pay him the value of his accrued but untaken annual leave in a timely manner, as required by the Fair Work Act 2009 (Cth) and his contract of employment. Dorsch's claims were dismissed, except for one relating to the failure to pay the value of his accrued but untaken annual leave. The court ordered that the application for leave to appeal be dismissed.

Orders

Orders of the court

1. The application for leave to appeal dated 12 August 2024 be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By judgment dated 31 July 2024, this court resolved to make costs orders against the applicant, Mr Dorsch: Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832 (hereafter, the “Primary Judgment”; Raper J). That judgment followed from a more substantive one by which a suite of claims that Mr Dorsch had sought to prosecute against his former employer, the respondent (hereafter, “HOPL”), were (with one exception) dismissed: Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 (hereafter, the “Liability Judgment”; Raper J). By an application lodged on 12 August 2024, Mr Dorsch seeks leave to appeal from the Primary Judgment. That application lay dormant for a period as a separate appeal from the Liability Judgment played out. On 18 October 2024, that excursion was brought to an end when a full court of this court dismissed Mr Dorsch’s appeal from the Liability Judgment: Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 (Snaden, Hatcher and Shariff JJ). The present application was then resuscitated at the court’s initiative and, following some difficulty finding a time for it to be heard that was suitable to the parties, was the subject of a brief hearing that took place on 25 June 2025. Mr Dorsch’s application is supported by two affidavits, both affirmed by his solicitor, Ms Eliz Baradan. The second, dated 26 March 2025, exhibits (amongst other things) a report prepared by Dr Suzanne Miau, Mr Dorsch’s treating practitioner, which addresses the state of Mr Dorsch’s mental health. At the hearing of the application for leave to appeal, HOPL objected to the court’s receipt of that affidavit; but, for reasons given at the time, that objection did not succeed. For the reasons that follow, the application for leave to appeal should and will be dismissed. Mr Dorsch was once employed by HOPL (or Mares Oceania Pty Ltd, as it was known for a time) as its Sales and Marketing Manager. The terms of his employment, at relevant times, were contained in a contract dated 15 October 2018. Concurrently, Mr Dorsch was also employed by a related overseas entity known as MARES Asia Pacific. Mr Dorsch’s engagement by both entities was brought to an end on 10 December 2021. The circumstances giving rise to the termination of his employment are set out in the Liability Judgment and needn’t now be rehearsed. Instead, it suffices to note that, at the time of that termination, the annual salary payable to Mr Dorsch in consequence of his employment by HOPL was $82,000.00. By an originating application dated 12 April 2022, Mr Dorsch moved the court for relief in the form of (amongst others) damages for breach of contract, and for statutory compensation and penalties relating to conduct in which he alleged that HOPL had engaged against him in contravention of various provisions of the Fair Work Act 2009 (Cth) (the “FW Act”). One of the claims that Mr Dorsch sought to prosecute related to an admitted requirement that he be paid, upon the termination of his employment, the value of any accrued but untaken annual leave. HOPL conceded that it had not met that requirement, in that the relevant sum had not been paid until several months after his employment terminated. There was a dispute between the parties as to how much that sum was; but not as to HOPL’s failure to pay in the timely way that the FW Act (and Mr Dorsch’s contract of employment) was said to require.

Ratio Decidendi

Legal Principle Established

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