Khoreich v Wiz Cloud Australia Pty Ltd (No 2)
[2025] FedCFamC2G 1266
•8 August 2025
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 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 FW Act) (file no. SYG 1007 of 2024).
On 3 June 2024, the applicant commenced a separate application under the FW Act (file no. SYG 1124 of 2024).
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 (“ASOC”) upon which he intended to rely and any Affidavit evidence in support of the applicant’s case. The applicant complied with those directions, and on 27 October 2024, the applicant filed an ASOC, and on 29 October 2024, an Affidavit of Mr Khoreich, sworn on 29 October 2024, in each of the two proceedings.
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 struck out or repleaded.
On 11 April 2025, the Court delivered judgement striking out all of the applicant’s claims: Khoreich v Wiz Cloud Australia Pty Ltd [2025] FedCFamC2G 503 (the Interlocutory judgment), however the Court granted the applicant, who was self-represented at the time, leave to file a further amended Statement of Claim (“FASOC”).
This FASOC was filed with the Court on 6 June 2025 annexed as Attachment D to an Application in a Proceeding. However, it raised claims under the General Protection provisions of the FW Act, claims under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law), and as asserted by the respondent, sought to replead claims that were struck out in the Interlocutory judgement.
The applicant concedes that the General Protection claim had been filed outside the 14-day time limit for the filing of such claims in the Court. The Court notes that the General Protection claim had been filed 426 days outside the 14-day time limit.
The respondent takes issue with the raising of the General Protection claim out of time, as well as the repleading of matters that were struck out in the Interlocutory judgement. The respondent accepts that the claims under the Australian Consumer Law should remain in place and be referred to mediation.
SHOULD LEAVE BE GRANTED FOR THE GENERAL PROTECTION CLAIM TO BE FILED OUT OF TIME?
The Law on Extension of Time
The relevant factors the Court should consider in an application for leave to extend time in a General Protection application are based on the decision of the Industrial Court in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) at 299 – 300. These factors, and other relevant considerations, were described recently in Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559, in which Bennet J said at [18] – [20] (citations omitted):
[18] The grant under s370(a)(ii) is discretionary. The Applicant bears the burden of satisfying me that grounds exist for exercising the discretion in her favour. It is relevant that the Parliament has elected to fix a short limitation period.
[19] The principles applicable to the application of time are well-known and have been identified by the parties. They were summarised by Marshall J in Brodie-Hans as follows:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facia position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by the delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
[20]. In addition, it is appropriate for me to have regard to the statutory limitation period and its rationale while noting that the specific provision has been made to enable me to ameliorate the harshness of such a limitation where the individual case requires it.
Additionally, to the above, the Court would add that the longer the delay, the more compelling the reasons for the delay must be for an extension of time to be granted.
Relevant Chronology
The following chronology has been taken from the respondent’s submissions lodged with the Court on 20 June 2025. The Court has reviewed the chronology, agrees with it, and amended it as necessary.
The respondent notes that the applicant was legally assisted with his Fair Work Commission General Protection claim. The matter did not resolve by conciliation at the Commission. The Commission issued a certificate pursuant to s 368(3)(a) of the FW Act, which specified that the applicant had 14-days in which to commence “a general protection application… for civil remedy order” in this Court.
It is to be noted that the applicant’s claims in the Commission could be described as highly ambitious, bordering on courageous. The applicant sought compensation for economic loss until his anticipated retirement, noneconomic loss of $500,000.00, superannuation, interest, pecuniary penalties and costs.
Following the conclusion of the proceedings in the Fair Work Commission, the applicant dispensed with his legal representation. As an unrepresented litigant, on 27 March 2024, the applicant sought to file an application in the Small Claims Division of this Court. That claim form indicated the applicant was seeking payments for unpaid wages, allowances, leave, redundancy pay and superannuation totalling $104,975.78. This was above the small claim’s jurisdiction of this Court, which is limited to $100,000.00.
The respondent notes that whilst the Small Claims application appears to contain parts of the applicant’s General Protection application, including a reference to his dismissal being based on the exercise of workplace rights, no compensation or other orders were sought in relation to his dismissal, nor did the form contain any alleged contravention of s 340 of the FW Act or any other General Protections provisions.
The Registry of this Court refused to accept the application, and it was marked as “pending”. The applicant was advised of this at 9:29 AM on 27 March 2024.
On 2 April 2024, the applicant was sent a detailed letter by National Judicial Registrar Edwards of this Court. That letter noted that the compensation sought exceeded the $100,000.00 maximum jurisdiction of the Small Claims Division, and advised that a Small Claims procedure was not available for General Protection claims under Part 3-1 of the Act.
On 5 April 2024, the applicant tried to lodge new documents with the Court. The applicant filed an Application – Fair Work Division, the certificate from the Fair Work Commission, and another Form 5 Small Claim Application (April Form 5) . The April Form 5 was not relevantly different to the one that had been rejected, save that it adjusted the claim for compensation to an amount of $95,499.42, being an amount within the Court’s Small Claims jurisdiction. The applicant retained the “cut and paste” content from his General Protections application, but removed any reference to his exercise of rights under workers compensation legislation as a reason for dismissal. The respondent submits that, regardless, no General Protections claim was advanced.
On 9 April 2024, Registrar Edwards again wrote to the applicant rejecting the documents for filing for similar reasons as set out above.
On 23 May 24, the applicant tried for a third time to commence proceedings in the Court by filing a Small Claims Application (May Application), and on that occasion he succeeded. The amount sought was amended to $97,762.42. The May Application also retained reference to the applicant’s dismissal, but limited material in his General Protection application related to the applicant’s assertion that the respondent dismissed the applicant because he made complaints about his entitlements. Consistent with the applicant’s two failed lodgements, the Small Claims application did not refer to s 340 of the FW Act, nor did it seek any relief pertaining to his dismissal.
On 3 June 2024, the applicant commenced a separate proceeding by filing a Form 2 Application - Fair Work Division (June Form 2). In the June Form 2, the applicant sought orders to be permitted to “exercise” the vesting of equity in the respondent’s share scheme. There was no reference to the applicant’s dismissal or the General Protections provisions whatsoever.
On 21 June 24, the respondent filed its response to both the Small Claims application and the Fair Work application. The respondent indicated that the applicant was purporting to make a General Protections claim, however this claim was out of time. The applicant did nothing to suggest he wished to pursue such a claim, nor did he seek an extension of time.
On 27 October 2024, the applicant, in compliance with Court directions, filed the ASOC. Again, the ASOC did not raise any allegation of a breach of the General Protections provisions, rather made passing reference to the allegation that the respondent had contravened s 352 of the FW Act.
The granting of an Extension of Time:
Applicant Submissions
As to the reasons for the delay, the applicant deposes that he filed a General Protection application with the Court within time, however the Registry subsequently rejected that application. The applicant tried again soon after, however it was rejected once more. The rejections appear to have been caused by the fact that the applicant had used the wrong forms, and sought to utilise a Small Claims process which does not permit General Protection claims. There was also confusion arising from the mixing of both General Protection allegations and other claims.
In this regard, the applicant lodged his first application with the Court on 27 March 2024. The documents filed include the certificate and a copy of the Fair Work Commission’s General Protection complaints.
The applicant’s second application was lodged on 5 April 2024. The third Application was lodged with the Court on 3 June 2024, which was accepted by the Registry for filing.
At the time of filing, the applicant was self-represented. The applicant deposes to a lack of understanding and appreciation of the relevant Court process, or an understanding of what was being conveyed to him by the Court when it rejected his initial documentation. The applicant acknowledges that the evidence he submitted was not in an admissible form.
The applicant submits he made significant efforts to contest the termination throughout the period since his employment ended. The applicant deposes that he is not aware of any prejudice to the respondent that will arise from the grant of leave.
As to the merits, the applicant identifies several protected characteristics. First, the applicant made two separate complaints, and that he was sick and suffering from a disability. The applicant identifies explicit adverse action, being the termination of his employment, and alleges a causal connection between the two. One other matter arises, that being when the original Statement of Claim was struck out, the Court granted leave for the applicant to file an ASOC. The ASOC was filed some six days after the time required. No defence had ever been filed. Further, all the non-General Protection allegations remained within time.
The granting of an Extension of Time:
Respondent Submissions
The respondent submits that, as of the present time, there was no claim against the respondent. The ASOC was struck out as a result of the Interlocutory judgment. The leave granted to the applicant to file the FASOC expired without any new claim being filed. The applicant has conceded that they require a fresh grant of leave to rely upon the FASOC. If leave is not granted, the proceedings must be dismissed.
On behalf of the respondent, it was submitted that the applicant needed to provide a compelling and satisfactory explanation for the delay. The applicant was put on notice, on 27 March 2024, which was still within the 14-day timeframe, that he needed to amend the documents filed with the Court. The applicant did not do so.
The advice of Registrar Edwards, on 2 April 2024, spelt out exactly what the applicant needed to do if he wished to bring a General Protection claim to the Court. The applicant waited until 5 April 2024 to file further documents, but chose not to follow the advice given. It is submitted that this must have been either that the applicant deliberately elected not to pursue a General Protections claim, or he otherwise chose to ignore the Registrar’s advice. Neither explanation assists the applicant: Macdonald v Multiple Sclerosis Society of Qld [2022] FedCFamC2G 727.
Despite receiving advice on two occasions on how to file the correct forms, the applicant did not file his Small Claims application until 23 May 2024, which he had already been informed that it could not be used to prosecute a General Protections claim. It was not until 3 June 2024 that the applicant filed the Fair Work Application, which contained no reference to a General Protections claim at all.
The reference to a General Protections claim did not arise until the ASOC was filed, some 20 weeks later, and even then, it raised an allegation of a contravention of s 352 to the FW Act, which the applicant did not previously raise, nor is it relied upon now in the FASOC.
Even if one takes the Interlocutory judgment as the start date for the 14-day time period, the applicant did not do anything to raise a General Protections claim within the 14-days that followed, nor by 9 May 2025, when the Court initially directed new pleadings to be filed. Further, the applicant did not comply with the extended period for the FASOC to be filed. It is submitted that the applicant has not acted at any stage with expediency, rather, the exact opposite is true.
It is submitted that the applicant had ample time and opportunity in the 426 days between 28 March 2024 and 29 May 2025 to raise and pursue a General Protections claim, however he failed to do so.
It is submitted that it is entirely irrelevant that the applicant was self-represented. That was a choice of the applicant’s own making and arose in circumstances where the Court repeatedly counselled the applicant to obtain legal advice.
As to the action taken by the applicant to contest his termination, other than the filing of a General Protections Claim application, it is submitted that this factor weighs against the applicant.
When he applied to the Court, the applicant’s claims were, to the extent they were known and understood, premised on contentions about unpaid entitlements. There were no allegations pertaining to the reasons for the applicant’s dismissal. At best, as the Court identified in the Interlocutory judgement at [49] – [50], the ASOC contained false allegations that the applicant’s dismissal was “unlawful” because it did not comply with “proper procedures and procedural fairness”. It otherwise obliquely raised a complaint about s 352 of the FW Act. Neither of these contentions takes issue with the reasons for the applicant’s dismissal, as he now seeks to agitate.
Regarding prejudice to the respondent, the 14-day timeframe for commencing proceedings in this Court was enacted for a reason. Respondents to these types of claims must meet a reverse onus of proof, upon which the applicant expressly seeks to apply. Allowing claims to be brought long after the adverse action occurred places an unfair burden on the respondent, as the memories of witnesses may have faded over time, and the respondent’s ability to satisfy the reverse onus is significantly reduced.
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.
The Court accepts the submission of the respondent that there is significant prejudice based on the length of time that has now elapsed between the applicant’s termination and the filing of the statement of claim alleging a General Protections contravention. The Court considers this factor to be neutral in respect of whether an extension of time should be granted.
The next matter relates to the strength of the applicant’s case. As noted by the respondent, the applicant relies upon three complaints made to various company officers alleging that the exercise of a workplace right led to his termination, and therefore was a breach of the General Protection provisions.
At the time of the applicant’s dismissal on 25 January 2024, he had not been at work since August 2023. The termination letter recited three alleged instances of serious misconduct said to give rise to grounds for summary dismissal. These included a failure to respond to lawful directions, a breach of the obligation of good faith and fidelity and a misuse of the employer’s confidential information.
No information has been put forward by the applicant that suggests there was any basis for the contention that the purported exercise of workplace rights was a matter that actuated the respondent to impose either a performance improvement program or terminate the applicant’s employment. The Court accepts the respondent’s submission that the applicant is simply making bare assertions without any evidentiary basis and relying upon the respondent to disprove the allegations.
Further, even if the respondent is wrong about the fact that the applicant engaged in serious and wilful misconduct, it does not follow that the applicant was dismissed for a prohibited reason in contravention of the FW Act: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [76]. The Court considers this matter to mitigate against leave being granted for an extension of time.
The final matter involves a consideration of fairness as between the applicant and other persons in a similar position. The Court was taken to a number of judgments, including Xiu v ALDI Foods Pty Ltd [2025] FedCFamC2G 911 per Given J, where leave was refused due to a delay of 6 months, and Kelly v Coastal Hire and Sales Pty Ltd [2025] FedCFamC2G 454, where leave was refused for an application filed 31 days out of time. In the Court’s view, bearing in mind these cases, it would be inequitable to grant the extension sought in all the circumstances. This mitigates against an extension of time being granted.
The Court has also had regard to the rationale of the specific provision enabling leave to be granted in circumstances where it is appropriate to ameliorate the harshness of the limitation period, where the individual circumstances of the case require it. The Court is not satisfied, given the history of this matter, that there are circumstances that would justify granting an extension of time beyond the 14-day period.
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.
No additional evidence has been provided that would sway the Court that the interpretation placed on the bonus scheme is different from what the Court found in the Interlocutory judgement. In these circumstances, with the claim having been struck out, the Court is satisfied it would be an abuse of process for this claim to proceed in the FASOC
The respondent also objects to the applicant seeking to re-enliven a claim for a commission payment of $11,200.00. This was addressed in the Interlocutory judgment as follows:
[36] 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 $11,200.00.
[37] 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.
To the extent that the applicant is now seeking to rely on a different argument to say that he had a contractual entitlement to this commission payment, the basis for that asserted contractual entitlement is not pleaded. Further, cl 8.5 of the applicant’s employment contract expressly stated that:
[t]he employees entitlement (if any) to participate in the company’s commission/bonus plan is set out in appendix 1.
The respondent notes that Appendix 1 of the applicant’s employment contract contains no reference to any contractual entitlement to participate in a commission plan. The Court is not satisfied that there is any additional evidence or material relied upon by the applicant to support this claim. The Court is satisfied that it would be an abuse of process for this claim to proceed in the FASOC.
Finally, the applicant contends there was a breach of contract by the respondent, who summarily dismissed the applicant, as he had not engaged in serious and wilful misconduct. It was submitted that the Court does not have jurisdiction to consider the merits of the dismissal decision: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [93] – [96], [118]. This part of the claim was struck out when the Court concluded that “no notice period was required” and thus “this aspect of the claim cannot succeed”. Again, there is no new material before the Court that would support this aspect of the applicant’s claims. The Court is satisfied that it would be an abuse of process to allow this part of the applicant’s claim to proceed.
What is left that can proceed?
The Court notes that Part D of the FASOC also rises and falls with the breach of contract claims, which has not been permitted to proceed. Therefore, the alleged contraventions of ss 117 and 323 of the FW Act should also not be permitted to proceed.
The Court notes that Part H of the FASOC, relating to loss and damage is bereft of sufficient particulars as to the loss and damage suffered by the applicant. However, the Court notes that the respondent accepts it ought to survive, but it may require further and better particulars as to the amount of loss and damage suffered. This can be attended to during any pre-trial preparation.
In terms of Part J, being the remedies, the Court accepts that a declaration that seeks to rely on a contravention of s 50 of the FW Act cannot proceed where there is no allegation that the respondent has contravened that provision.
In these circumstances, the Court accepts that the applicant can and should be able to pursue his Australian Consumer Law claim, including any claim for damages associated with that asserted contravention. Leave to pursue the remainder of the FASOC should be refused.
The Court notes that the respondent should now file a defence as to the matters that remain within the FASOC, together with any cross-claim that it may wish to pursue.
The issue of whether the matter should be referred for a further mediation between the parties will be considered by the Court if both the applicant and the respondent consent to such a course being adopted. Otherwise, the Court will make appropriate timetabling orders for the matter to be prepared for trial.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 8 August 2025
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