Khoreich v Wiz Cloud Australia Pty Ltd - [2025] FedCFamC2G 503

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 2024

Judgment 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 misconduct

Legislation:
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 2024

FEDERAL 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC2G 503
Decision Date: 11 April 2025

CaseChat Overview and Summary

The case of Khoreich v Wiz Cloud Australia Pty Ltd involved the plaintiff, Khoreich, who brought a claim against Wiz Cloud Australia Pty Ltd, alleging breach of sections 352 and 536 of the Fair Work Act 2009, as well as retaliatory dismissal and corporate misconduct. Khoreich, who was self-represented, filed a statement of claim which the respondent sought to have struck out on the grounds of being insufficient and vexatious. The court had to decide whether the statement of claim disclosed a reasonable cause of action and if it was in a form that could be responded to by the respondent.

The court examined the statement of claim to determine if it revealed a cause of action and if it was in a form that could be responded to by the respondent. The court found that the statement of claim did not sufficiently disclose a cause of action, as it was vague and contained material in an inadmissible form. The court noted that the plaintiff, being self-represented, was given the benefit of the doubt, but was still required to ensure that the statement of claim was capable of being answered and supported by admissible evidence.

In light of the findings, the court struck out the statement of claim in its entirety but allowed the plaintiff four weeks to lodge a fresh statement of claim. The court encouraged the plaintiff to seek legal advice to assist in preparing a statement of claim that could be properly answered and prosecuted in the proceedings. The court recognised the need to balance the plaintiff's right to access to justice with the respondent's right to have a cause of action that could be effectively defended.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 1007 of 2024 SYG 1124 of 2024
Judgment 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 misconduct
Legislation:	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)

SYG 1007 of 2024 SYG 1124 of 2024
FEDERAL 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