Khoreich v Wiz Cloud Australia Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Khoreich v Wiz Cloud Australia Pty Ltd (No 2) [2025] FedCFamC2G 1266

File number: SYG 1124 of 2024
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 8 August 2025
Catchwords:  PRACTICE & PROCEDURE – Fair Work proceedings – extension of time – General Protections claim – Australian Consumer Law - whether leave should be granted for the General Protection claim to be filed out of time – whether leave should be granted for the applicant to rely upon causes of action the Court has previously dismissed – leave to rely on the General Protection claim refused – leave is granted for the applicant to pursue claims under the Australian Consumer Law.
Legislation:

Competition and Consumer Act 2010 (Cth) Schedule 2

Fair Work Act 2009 (Cth) ss 50, 117, 323, 340, 352, 368(3)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Part 3-1

Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68

Kelly v Coastal Hire and Sales Pty Ltd [2025] FedCFamC2G 454

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

Macdonald v Multiple Sclerosis Society of Qld [2022] FedCFamC2G 727

Sullivan v Allstaff Australia Sydney Pty Ltd [2024] FedCFamC2G 655

Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559

Xiu v ALDI Foods Pty Ltd [2025] FedCFamC2G 911
Division: Division 2 General Federal Law
Number of paragraphs: 73
Date of hearing: 3 July 2025
Place: Parramatta
Counsel for the Applicant: Mr Wydell of Counsel
Solicitor for the Applicant: Ms Thelmo, Segelov Taylor Lawyers
Counsel for the Respondent: Mr Watts
Solicitor for the Respondent: Ms Lim, Norton Rose Full Bright

ORDERS

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:

8 AUGUST 2025

THE COURT ORDERS THAT:

1.Leave is refused for the General Protection claim, contained in the Further Amended Statement of Claim (June FASOC) filed on 6 June 2025, to be filed out of time.

2.Leave is granted for the Applicant to pursue the claims under Schedule 2 of the Competition and Consumer Act 2010 (Cth) contained in the June FASOC, including any claim for damages associated with that asserted contravention.

3.Leave to pursue the remainder of the claims contained in the June FASOC is refused.

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…

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Details
Case
[2025] FedCFamC2G 1266
Decision Date

CaseChat Overview and Summary

The case of Khoreich v Wiz Cloud Australia Pty Ltd (No 2) involved a dispute between the applicant and the respondent over the applicant's termination from employment and the associated entitlements. The applicant sought to pursue a General Protections claim and a claim under the Australian Consumer Law. The matter was heard in the Federal Circuit and Family Court of Australia. The central legal issues revolved around whether the applicant should be granted leave to file a General Protections claim outside the statutory time limit, and if the applicant should be allowed to rely on causes of action previously dismissed by the court.

The court carefully considered the factors both for and against granting an extension of time for the General Protections claim. It found that the significant delay in filing the claim, coupled with the applicant's failure to comply with court directions, heavily weighed against granting leave. The court also considered the applicant's attempts to contest the termination, which appeared more focused on recovering entitlements rather than contesting the termination itself. However, the court did grant leave for the applicant to pursue claims under the Australian Consumer Law.

Ultimately, the court ruled that the applicant was not entitled to rely on the previously dismissed causes of action, as doing so would amount to re-litigating issues that had already been determined by the court. The court found that the applicant had not shown sufficient grounds to warrant an extension of time for filing the General Protections claim. The court dismissed the application for leave to file the General Protections claim out of time and granted leave for the applicant to pursue claims under the Australian Consumer Law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Taking into account all the relevant considerations above, the Court is satisfied that the factors against an extension of time being granted outweigh those in favour of an extension of time being granted. Accordingly, leave is not granted for the General Protection claim, contained in the FASOC, to be filed out of time.SHOULD THE APPLICANT BE ABLE TO RELY UPON CAUSES OF ACTION THE COURT HAS ALREADY DISMISSED IN THE INTERLOCUTORY JUDGMENT? The applicant submits that by granting leave to replead the claims that were struck out in the Interlocutory judgment, he should be able to address the deficiencies identified in the original pleadings. Thus, the principles of issue estoppel and res judicata do not apply. The applicant submitted that issue estoppel is derived from the doctrine of res judicata. For res judicata to apply, the Interlocutory judgment needed to make a conclusion on a certain issue or ultimate fact: Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 at [74]. The Interlocutory judgment was not final and conclusive, and therefore the applicant should be given another chance to replead his Statement of Claim and amend the scope being responded to, which is clearly supported by admissible evidence. The respondent notes that the applicant did not seek to appeal the Interlocutory judgment, which struck out his ASOC. Further, the Interlocutory judgment made a judicial determination involving an issue of law or fact, which disposes of that issue such that it cannot be relitigated by the same parties: Sullivan v Allstaff Australia Sydney Pty Ltd [2024] FedCFamC2G 655 at [15]. The applicant contends that he had a contractual entitlement to commission payment called a Sales Performance Incentive Fund (‘SPIF’). That contractual entitlement is said to arise from a post sent via an internal email messaging system to all employees. The applicant contends he is entitled to $100 per sensor he deployed and thus, was owed $64,900.00 by the respondent. In the Interlocutory judgement, the Court made the following factual findings at [32] – [33][32] 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.…[35] The Court is satisfied that the email exchange relied upon by the applicant does not establish any contractual entitlement to any bonus payment. As noted by the respondent, the FASOC endeavours to relitigate the exact same claim, in circumstances where the Court conclusively found the bonus payment was not $100 per sensor deployment, but $100 per customer. The Court notes that this amounted to, in the applicant’s case, $300, which in fact is conceded as having been paid. The Court also notes that there was evidence before the Court that the claim by the applicant of $100 per sensor was entirely at odds with the payments made to other employees under this particular scheme.

Ratio Decidendi

Legal Principle Established

Finally, the merits of the applicant’s case was considered by the respondent. It was submitted, objectively, that the applicant’s case is manifestly weak. The termination letter refers to the applicant having failed to respond to a lawful and reasonable direction, breaching his obligations of good faith and fidelity, and misusing the respondent’s confidential information. The applicant may dispute engaging in that misconduct, but in a General Protections claim, that is irrelevant. Whilst the respondent considers that the applicant had engaged in misconduct, even if that is incorrect from a factual perspective, it does not follow that the applicant was dismissed for a prohibited reason in contravention of the FW Act. Consideration The Court notes that prima facie, the prescribed time limit needed to be complied with. In the current proceedings, the time limit has been exceeded by some 426 days. This is an extraordinarily lengthy period of time and weighs heavily against leave being granted. The Court notes the explanations in favour of the applicant. Firstly, The Court accepts the respondent’s submission that the applicant's unrepresented status is not a matter the Court should place great weight on. The applicant was given clear advice by Registrar Edwards at the commencement of the proceedings as to what he needed to do in order to pursue a General Protections claim. Had the applicant complied with that advice and promptly filed a proper Statement of Claim alleging a contravention of the General Protection provisions, the Court may have been more sympathetic towards granting an extension of time. The Court accepts the submission of the respondent that, for whatever reason, the applicant chose not to file a proper Statement of Claim alleging a contravention of the General Protection provisions and instead made a conscious decision to pursue a claim under the Court’s Small Claims jurisdiction. Further, even when granted leave to file the ASOC, the applicant did not comply with the reasonably generous timeframe provided to him. As noted by the applicant in the written submissions supplied to the Court, since Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, the Court no longer applies a liberal approach to granting leave to amend, and there is an expectation that litigants will comply with Court directions, especially those regarding the filing and serving of documents within a specified period of time. However, against this, the Court notes that the litigation has not progressed beyond this point. The Court does not consider the explanations proffered to be adequate. This factor mitigates against leave being granted for an extension of time. The Court accepts that the applicant has sought, over a period of time, to contest the termination, however, this appears to have been aimed more towards the recovery of entitlements that he says were payable to him, including a share bonus plan, rather than seeking to actively contest the termination post the Fair Work Commission proceedings. The Court considers this matter to be neutral as to whether or not an extension of time should be granted.