Khoreich v Wiz Cloud Australia Pty Ltd

FedCFamC2G|2025-08-08

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.

[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.

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[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] HCA 32; (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.

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.

Circuit and Family Court of Australia Act 2021

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

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):

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] FCAFC 157; (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.

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