Khoreich v Wiz Cloud Australia Pty Ltd
[2025] FedCFamC2G 503
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khoreich v Wiz Cloud Australia Pty Ltd [2025] FedCFamC2G 503
File number(s): SYG 1007 of 2024
SYG 1124 of 2024Judgment of: JUDGE D HUMPHREYS Date of judgment: 11 April 2025 Catchwords: PRACTICE AND PROCEDURE – statement of claim does not reveal cause of action –summary dismissal - vexatious proceedings – material in an inadmissible form –statement of claim struck out.
INDUSTRIAL LAW – alleged breach of s 352 of the Fair Work Act 2009 (Cth) – alleged breach of s 536 of the Fair Work Act 2009 (Cth) – alleged retaliatory dismissal and corporate misconductLegislation: Fair Work Act 2009 (Cth) s 352, 368(3)(a), 536(1), 548
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 7, 134, 143(2), 370, 536
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808
Rodgers v The Queen (1994) 181 CLR 251
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 13 March 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Counsel for the Respondent: Mr Watts Solicitor for the Respondent: Ms Shields (Norton Rose Fulbright) ORDERS
SYG 1007 of 2024
SYG 1124 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BASSAM KHOREICH
Applicant
AND: WIZ CLOUD AUSTRALIA PTY LIMITED
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The Statement of Claim filed by the applicant on 27 October 2024 is struck out.
2.The applicant is to file and serve an amended Statement of Claim by 9 May 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
On 23 May 2024, Mr Khoreich (the applicant) commenced proceedings in this Court by filing a small claims application under the Fair Work Act 2009 (Cth) (“the FWAct”). On 3 June 2024, the applicant commenced a separate application under the FW Act.
Following the filing of responses by Wiz Cloud Australia Pty Ltd (the respondent) on 28 June 2024, the Court made orders joining the two proceedings and referring the matters to mediation. Regrettably, the matters did not settle.
On 2 October 2024, the Court made orders requiring the applicant to file and serve any amended Statement of Claim upon which the applicant intended to rely and any Affidavit evidence in support of the applicant’s case. The applicant complied with those directions, and between 22 and 29 October 2024, the applicant filed an amended Statement of Claim (ASOC) and an Affidavit from himself in each of the two proceedings.
On behalf of the respondent, it is submitted that the documents filed in both proceedings appear identical.
On 14 November 2024, the respondent filed an application for orders pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) and/or rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), that both the small claims application and the FW Act application be either summarily dismissed or that each of the applications be either struck out or repleaded.
In the interim, on 14 February 2025 the Court considered and rejected an application in a case, made by the applicant, that the respondent be prevented from being legally represented.
THE LAW IN RELATION TO SUMMARY DISMISSAL
The following outline of the applicable law is taken from written submissions by the respondent. The principles of summary dismissal are well-settled. The Court has the power under s 143(2) of the Act and r 13.13 of the Rules to summarily dismiss proceedings that have no reasonable prospect of being successfully prosecuted. This does not require the proceedings to be hopeless or bound to fail. That said, it can be accepted the bar remains a high one, and the discretion to summarily dismiss proceedings should be exercised with caution: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46].
Where no reasonable cause of action is disclosed, or deficiencies in the claim cannot be cured, or the applicant cannot succeed, even taking his evidentiary case at its highest, summary dismissal may be ordered: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22].
The Court also has the power under r 13.13 of the Rules to dismiss claims that are frivolous, a vexatious abuse of process. A “vexatious proceeding” is defined in s 7 of the Act as one instituted with a view to, or prosecuted in a manner designed to, harass, annoy, cause delay, detriment or for wrongful purpose. A proceeding will be frivolous, where it is without substance, groundless or where a party is wasting the Court’s time: Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [37].
Further, a proceeding will be an abuse of process where, amongst other things, it is unjustifiably oppressive: Rodgers v The Queen (1994) 181 CLR 251. This includes where the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [28].
The Court agrees with this summary and adopts it as the applicable law in considering the application.
Both the applicant and the respondent have filed written submissions in relation to the application by the respondent, including submissions in reply. The Court has considered these submissions.
THE STATEMENT OF CLAIM
The relevant Statements of Claim are those that filed with the Court dated 27 October 2024. It is a lengthy document divided into nine separate parts, with various documents reproduced in the numbered parts of the document and numerous annexures. The document is part Statement of Claim and part documentary evidence relied upon, rather than a Statement of Claim accompanied by an Affidavit setting out the evidence relied upon.
It is appropriate to deal with each numbered part separately in relation to the application. They will be dealt with out of numerical sequence on the basis of convenience.
Part One
Part one simply seeks to set out the historical basis of the employment relationship between the applicant and the respondent, what the applicant seeks to recover and the terms of the applicant’s employment. It discloses no cause of action. Treated as an introduction only, the Court would not strike this part out.
Part Four
There is no Part four in the Statement of Claim.
Part Seven
Part seven is headed “Evidence of Corporate Misconduct and Unethical Practices”. It alleges that the respondent ‘has a history of engaging in unethical practices that support the applicant’s claim of retaliatory dismissal and corporate misconduct’.
The applicant then reproduces a news article related to a US proceeding between the respondent and another company, Orca Security. It is completely unrelated to the current proceedings. Next are screenshots of messages between unidentified persons. The final item is copies of two articles written by Davi Ottenheimer, which are not referenced as to their origin or where they were published, that make critical comments about the respondent company in the context of the litigation with Orca. The material is inadmissible in its current form, if admissible at all. The part contains no cause of action and is struck out.
Part Eight
Part eight is headed “Additional Evidence of Misleading and Unethical Behaviour of the Respondent from Many, Both Current and Former Employees, Testimonials”. What follows is a series of screenshots from unreferenced sources, including a Glass Door review. The material is not admissible in its current form, if admissible at all. The material pleads no cause of action. Part eight is struck out.
Part Nine
Part nine simply sets out the remedies sought, including the amounts of the alleged underpayments. It also seeks penalties to be determined by the Court for the failure to provide missing payslips for October and November 2023.
It seeks payment of legal fees, including some $6,000.00 paid to the firm of Turner Freeman. As the applicant is self-represented, this cannot occur given, as the Court understands it, these were paid for initial legal advice and work done prior to the filing of the initiating claims with the Court.
The Court notes this part of the claim seeks interest on any amounts ordered to be paid, mediation fees and Court filing fees, should the Court rule in the applicant’s favour.
Finally, the applicant seeks an order that shares the applicant claims to be entitled to under the Employee Share Offer plan be vested in him.
To the extent that this part of the claim seeks the payment of legal fees for work done prior to the lodgement of the initiating actions with the Court, it is struck out.
The Court now turns to the substantive parts of the Statement of Claim.
Part Two
Part two is a claim that the respondent owes the applicant $1,038.27 for car and home and other allowances due but not paid.
There are a number of sub-claims within this overall part of the claim which are not particularised except by reference to an attachment to the Statement of Claim (Exhibit Two). This attachment contains various emails between the applicant and the respondent regarding the applicant’s entitlements to annual leave, sick leave and a bonus payment payable in relation to the placement of “sensors” with clients.
It is common ground between the parties that the respondent introduced a sales program/performance incentive fund formula which included a bonus payment to each customer success manager of $100.00 for each sensor deployment in production up to the first 100 deployments or until October 2023.
The respondent asserts that the applicant in his evidence has set out no narrative explanation or evidence whatsoever that supports his entitlement to an amount over and above what the applicant was paid.
The Court accepts the respondent’s assertion that the evidence contained within the Statement of Claim does not establish that first, that the applicant was a customer service manager for the job referred to, and second, that this job was one of the first 100 deployments of sensors or that the deployment had flowed through to the respondent’s record collection system.
The respondent notes the applicant’s evidence contains a message dated 1 November 2023 indicating that the applicant completed three sensor deployments and was thus entitled $300.00 in total.
The Court is satisfied that the evidence relied upon by the applicant shows that employees are paid the sum of $100.00 per sensor deployment with a customer (regardless of how many sensors were placed with the client) and that this is consistent with the words used in the message communicating the bonus offer.
To the extent that the applicant calculates that the amount owing under the bonus offer is $69,777.35, the basis upon which the applicant has arrived at that number is opaque.
At its highest, this claim appears to rely upon the applicant’s interpretation of the words of the bonus offer.
In the absence of further particulars that would fully set out the applicant’s claim and how it should be accepted, that is the interpretation the applicant places on the bonus offer, noting that the applicant appears to have been treated in exactly the same way as other employees entitled to a bonus, this aspect of the claim is simply not capable of being properly responded to or understood by the respondent. At its highest, the claim in relation to the bonus is premised on the assertion of a breach of contract, which would need to be associated with an original claim bought within the Court pursuant to s 134 of the Act. The Court is satisfied that the email exchange relied upon by the applicant does not establish any contractual entitlement to any bonus payment. This part of the claim is struck out.
The second aspect of the claim relates to an assertion that the applicant should have been paid a commission payment for November 2023, which he quantifies at $11,200.00.
The respondent notes that the high-water mark of the applicant’s evidence is an email exchange between the applicant and a representative of the respondent. The email exchange does not establish any contractual entitlement to the commission payment. This part of the claim struck out.
The third part of the claim is a reference to “unpaid allowances (car and home)”. The Court accepts the respondent’s assertion that there is no obvious evidence directed towards these claims or how they are supported or calculated. The high-water mark is the inclusion of the applicant’s contract of employment, which contains a car allowance but no “home allowance”. There was no pleading or other evidence as to how the applicant contends the allowances have been calculated or any evidence to establish the underpayment of them.
This aspect of the claim is unable to be responded to by the respondent given it is a bare assertion with no underlying evidence or particulars. It is struck out.
The fourth aspect of part two is a claim for unpaid superannuation entitlements. The Court is satisfied, submitted by the respondent, the high-water mark of this claim is that “the respondent failed to make superannuation contributions on the unpaid Commission and allowances”. This appears to be an assertion that superannuation should be paid on those parts of the underpayment that he alleges. Further, the applicant’s calculation of an underpayment in the quantum of $11,864.23 is opaque. The payroll records, upon which the applicant relies, clearly indicate that superannuation payments have been made. If the applicant is not able to press claims in relation to those matters set out above, then the superannuation claim must of itself fail, given it is premised on the presumption that the claimed amount set out above are due and payable. This part of the claim is struck out.
The final aspect of the claim is that the applicant states he was entitled to one week’s payment in lieu of notice. As the applicant was terminated, allegedly for serious misconduct, no notice period was required. This aspect of the claim cannot succeed and is struck out.
Part Three
Part three is an assertion that the respondent has contravened s 536(1) of the FW Act in that it failed to provide him with a payslip for the months of October and November 2023.
Section 536(1) of the FW Act reads as follows:
An employer must give a payslip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
The respondent notes that in October and November 2023, the applicant did not perform any work but rather was on sick leave and/or workers compensation.
Documents contained within the Affidavit of Alexandra Shiels, Solicitor of Norton Rose Solicitors affirmed 14 November 2024, at pages 396 – 419, confirm the following:
(a)the applicant was diagnosed with an injury first on 17 August 2023;
(b)on 22 September 2023, the respondent was notified the applicant made a workers compensation claim and will receive payments from the respondent’s workers compensation insurer;
(c)on 18 October 23, the respondent was notified the applicant’s workers compensation payments would be retrospectively increased from 1 October 2023;
(d)during the months of October and November 2023, the applicant did not receive workers compensation payments due from the insurer for administrative reasons;
(e)the respondent, noting that the applicant had not received any workers compensation payments, paid the applicant a $5000.00 advance payment in each of October and November 2023. This was an ex-gratia payment, which was subsequently deducted as a repayment to the respondent when the applicant was actually paid his workers compensation payments.
The Court is satisfied it follows from the above that the respondent is not in contravention of s 536 of the FW Act, as the applicant did not perform any work in October and November 2023. The payments that were made were ex-gratia, and the respondent was under no obligation to provide the applicants with payslips in October and November 2023. The Court is satisfied the applicant has no reasonable prospect of success in relation to this aspect of the claim, and it should be struck out.
Part Five
Firstly, the respondent notes that this part of the Statement of Claim confirms in the first sentence that the applicant was placed on workers compensation leave as of 18 August 2023.
Further, the applicant asserts that he was receiving weekly workers compensation payments in lieu of full salary from that time. The applicant asserts that while he was still on workers compensation, the respondent breached s 352 of the FW Act by dismissing him on 25 January 2024.
The applicant asserts that the dismissal was unlawful as it did not adhere to the proper procedures and procedural fairness requirements or provide him with notice.
The respondent notes that s 352 of the FW Act is a general protection’s provision. Pursuant to s 370 of the Act, the applicant can only make an application to this Court claiming a breach of s 352 of the FW Act, if the Fair Work Commission has issued a certificate under s 368(3)(a) of the FW Act in relation to a dispute relating to the alleged contravention, and the application is filed with the Court within 14 days of the certificate being issued. This has not occurred.
Further, while the applicant did raise a dispute with the Fair Work Commission, it did not allege any breach under s 352 of the FW Act. The applicant did not file with this Court until two months after he obtained a s 368(3) (a) of the FW Act certificate dated 14 March 2024. He is well outside the mandated 14-day period and has not sought any extension of time within which to file.
The respondent alleges that while s 352 of the FW Act prohibits an employer dismissing an employee because they are temporarily absent from work due to injury or illness, in this case the applicant was summarily dismissed by the respondent for engaging in serious misconduct.
Contained at page 206-208 of the Affidavit of Ms Shiels is a copy of the termination letter sent to the applicant on 25 January 2025, which clearly indicates the dismissal was for serious misconduct, being first, a failure to respond to a lawful and reasonable direction, second, a breach of the applicant’s obligations of good faith and fidelity, and third misuse of the employer’s confidential information.
The Court is satisfied that, if the allegations are correct, then this provided the basis for a summary dismissal. As to what ‘proper procedures and procedural fairness’ requirements were breached, no particulars are provided in circumstances where s 352 of the FW Act does not prescribe any such procedures.
The Court notes that no notice requirements are required where the respondent terminates employment for serious misconduct.
Part 5 of the applicant’s Statement of Claim does not reveal any cause of action that is maintainable and is struck out.
Part Six
Part six is a claim that the applicant was the subject of a ‘retaliatory dismissal’ 5 days prior to the vesting of 2,500 shares that would have become due to the applicant under the respondent’s Employee Stock Option Plan (ESOP). The applicant simply indicates that his dismissal was retaliatory and was aimed at preventing him from exercising its vested options. No further material is provided to support this claim.
Looking at the additional material that forms part of part six, the applicant makes an assertion that he has a right of action under the law of tort, without expressly indicating the basis for that action. The assertion is so unclear as to be impossible for the respondent to meaningfully understand what is being alleged and the basis upon which the assertion is made.
The applicant’s states that he relies on s 548 of the FW Act as a provision permitting the Court to make orders enforcing contractual entitlements. Section 548 of the FW Act simply sets out the procedures to be followed in relation to small claims matters and does not empower the Court to make an order which is sought by the applicant.
Whilst it may be, if the applicant could successfully prove that he was unfairly dismissed, he is entitled to general compensation, this may include a factor related to the applicant’s entitlements under the ESOP. That however is not pleaded in part six.
This part of the claim is struck out in its entirety.
CONCLUSION
For the reasons set out above, the Court is satisfied that the Statement of Claim as presently formulated should be struck out in its entirety.
Noting that the applicant is self-represented, I need to consider whether or not he should be given an opportunity to replead his Statement of Claim in a manner that is capable of being responded to and is clearly supported by admissible evidence.
Following the conclusion of the hearing in relation to the strike out application, the applicant has filed an application in the case seeking to replead the Statement of Claim.
In my view, given the applicant is self-represented, it would be appropriate for him to be given one further opportunity to do so. The Court will allow the applicant four weeks to lodge a fresh Statement of Claim. The Court urges the applicant seek legal advice to assist him in lodging a Statement of Claim which can be properly answered and prosecuted by him in the proceedings.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate: A D
Dated: 11 April 2025
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