Federal Court of Australia

Dorsch v HEAD Oceania Pty Ltd [2025] FCA 854

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 12 August 2024 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By judgment dated 31 July 2024, this court resolved to make costs orders against the applicant, Mr Dorsch: Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832 (hereafter, the “Primary Judgment”; Raper J). That judgment followed from a more substantive one by which a suite of claims that Mr Dorsch had sought to prosecute against his former employer, the respondent (hereafter, “HOPL”), were (with one exception) dismissed: Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 (hereafter, the “Liability Judgment”; Raper J).

2    By an application lodged on 12 August 2024, Mr Dorsch seeks leave to appeal from the Primary Judgment. That application lay dormant for a period as a separate appeal from the Liability Judgment played out. On 18 October 2024, that excursion was brought to an end when a full court of this court dismissed Mr Dorsch’s appeal from the Liability Judgment: Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 (Snaden, Hatcher and Shariff JJ). The present application was then resuscitated at the court’s initiative and, following some difficulty finding a time for it to be heard that was suitable to the parties, was the subject of a brief hearing that took place on 25 June 2025.

3    Mr Dorsch’s application is supported by two affidavits, both affirmed by his solicitor, Ms Eliz Baradan. The second, dated 26 March 2025, exhibits (amongst other things) a report prepared by Dr Suzanne Miau, Mr Dorsch’s treating practitioner, which addresses the state of Mr Dorsch’s mental health. At the hearing of the application for leave to appeal, HOPL objected to the court’s receipt of that affidavit; but, for reasons given at the time, that objection did not succeed.

4    For the reasons that follow, the application for leave to appeal should and will be dismissed.

5    Mr Dorsch was once employed by HOPL (or Mares Oceania Pty Ltd, as it was known for a time) as its Sales and Marketing Manager. The terms of his employment, at relevant times, were contained in a contract dated 15 October 2018. Concurrently, Mr Dorsch was also employed by a related overseas entity known as MARES Asia Pacific.

6    Mr Dorsch’s engagement by both entities was brought to an end on 10 December 2021. The circumstances giving rise to the termination of his employment are set out in the Liability Judgment and needn’t now be rehearsed. Instead, it suffices to note that, at the time of that termination, the annual salary payable to Mr Dorsch in consequence of his employment by HOPL was $82,000.00.

7    By an originating application dated 12 April 2022, Mr Dorsch moved the court for relief in the form of (amongst others) damages for breach of contract, and for statutory compensation and penalties relating to conduct in which he alleged that HOPL had engaged against him in contravention of various provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).

8    One of the claims that Mr Dorsch sought to prosecute related to an admitted requirement that he be paid, upon the termination of his employment, the value of any accrued but untaken annual leave. HOPL conceded that it had not met that requirement, in that the relevant sum had not been paid until several months after his employment terminated. There was a dispute between the parties as to how much that sum was; but not as to HOPL’s failure to pay in the timely way that the FW Act (and Mr Dorsch’s contract of employment) was said to require.

9    Mr Dorsch also pressed for relief in respect of what he alleged was conduct in which HOPL engaged in contravention of s 62 of the FW Act (which imposes prohibitions upon employers relating to the hours that employees may be required to work). He also pressed for relief in contract on the basis that (among other things) his employment had been wrongly terminated without notice or payment in lieu of notice.

10    Otherwise, Mr Dorsch’s claims proceeded upon assertions that he had been subjected to “adverse action” in contravention of s 340(1) of the FW Act. Ultimately, nine discrete instances of “adverse action” were alleged; and each was said to have been engaged in because, or for reasons that included that, Mr Dorsch possessed or had exercised one or more of what the FW Act recognises as “workplace right[s]”. Perhaps the most significant of the instances of adverse action to which Mr Dorsch claimed that he had been subjected inhered in the termination of his employment; but there were also other instances alleged of what the primary judge described compendiously as “non-dismissal adverse action”.

11    Ultimately, her Honour found that none of the instances of adverse action that HOPL was alleged to have taken against Mr Dorsch had been taken in contravention of the FW Act. Insofar as concerned the termination of Mr Dorsch’s employment, her Honour accepted that HOPL had not effected it because—or for reasons that included that—Mr Dorsch had exercised a workplace right or workplace rights. Other of the instances that had been alleged were found not to have been adverse action engaged in against Mr Dorsch by HOPL, or otherwise to have been engaged in for reasons not proscribed by the FW Act.

12    Her Honour also accepted that Mr Dorsch’s employment had been properly brought to an end without notice, holding that HOPL was entitled summarily to terminate it on the basis of certain aspects of Mr Dorsch’s conduct toward other HOPL staff. Mr Dorsch’s claim under s 62 was also rejected; there on the basis that his working hours had not been articulated with sufficient precision, that his work patterns had not been properly established by the evidence, and that there was no sufficient evidential basis upon which to find that HOPL had “required” anything that contravened the provision.

13    The learned primary judge proceeded to uphold Mr Dorsch’s annual leave claim in part. Her Honour accepted that HOPL had paid Mr Dorsch the amount that it owed him in that regard (namely, $8,022.82); but found that it had not done so in the timely way that the FW Act (and, by extension, Mr Dorsch’s contract of employment) required. Mr Dorsch was awarded compensation in the sum of $10,000.00 in respect of that failure. Additionally and following a subsequent hearing, HOPL was ordered to pay a civil penalty of $17,000.00, which was paid to Mr Dorsch.

14    On 16 May 2024, HOPL made an application of its own for orders that Mr Dorsch pay its costs on and from 14 June 2023. That date is significant, in that it pertains to an offer of compromise that HOPL made to Mr Dorsch—and that Mr Dorsch rejected—not long before the trial of the substantive matter. I shall return to the particulars of that offer momentarily; but, for now, it suffices to note that HOPL’s application proceeded on the basis that Mr Dorsch had acted unreasonably by failing to accept the offer that it had advanced; and that it had thereafter incurred costs as a consequence of that unreasonable conduct, which the court should, by order, permit it to recover.

15    HOPL’s characterisation of Mr Dorsch’s rejection of its offer as “unreasonable” reflects the limitations that are imposed by s 570 of the FW Act. It is convenient to replicate that section in full:

570 Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note:     The Commonwealth might be ordered to pay costs under section 569.

A State or Territory might be ordered to pay costs under section 569A.

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)     the court is satisfied of both of the following:

(i)     the party unreasonably refused to participate in a matter before the FWC;

(ii)     the matter arose from the same facts as the proceedings.

16    Before the learned primary judge, HOPL contended that the circumstances sufficed to enliven an exception to what is otherwise the limitation that s 570(1) of the FW Act imposes upon the awarding of costs in matters arising under the FW Act. That contention succeeded and the primary judge proceeded to make the costs orders that are the subject of this application. HOPL’s costs have since been assessed in the sum of $252,775.25.

17    At this juncture, it is prudent to outline the terms of HOPL’s offer. It was contained within correspondence that was sent to Mr Dorsch’s solicitors on 7 June 2023, to which was attached an agreement in draft terms (hereafter, the “Deed”). In short, HOPL proposed by that correspondence and Deed to settle the litigation—and, indeed, any and all claims that Mr Dorsch had against HOPL or other related entities—on the basis that HOPL would pay Mr Dorsch the sum of $80,000.00. The offer was open for acceptance until midday on 13 June 2023.

18    HOPL’s offer was made in the week preceding the scheduled commencement of the trial. At that stage, the parties had the benefit of written opening submissions and affidavits from the witnesses who were slated to give evidence at the trial. The relative strengths and weaknesses of the parties’ respective cases—or, at the very least, their potential strengths and weaknesses—stood exposed by the material that had been exchanged, as did the sums of money that were in play.

19    Those realities informed the primary judge’s decision to award HOPL its costs on and from 14 June 2023. Her Honour noted that the amount that HOPL had offered to pay to Mr Dorsch was approximately equal to his annual salary at the time that his employment ended. Further, HOPL’s evidence made clear that several employees would give evidence consistent with its central case concept: namely, that Mr Dorsch’s behaviour toward other staff was below a standard to which he ought reasonably be held; and was such as to justify the summary termination of his employment. The decision makers from whom HOPL proposed to call evidence largely disclaimed knowledge of his possession or exercise of workplace rights (putting in doubt his contention that they were animated to act because of them); and made clear, in any event, that their reasons for subjecting him to adverse actions were legitimate reasons that the FW Act did not proscribe. Plainly, of course, none of that evidence had been tested at that juncture; nonetheless, it stood as a body of evidence that, if accepted, would pose considerable difficulties for Mr Dorsch’s pursuit of his claims.

20    The primary judge noted that the correspondence that was sent to Mr Dorsch’s solicitors on 7 June 2023 explained why it was that his case was vulnerable to defeat, and contained an appropriate warning that he might face costs consequences in the event that the offer was rejected. Further, her Honour noted that, some 10 months after his employment with HOPL came to an end, Mr Dorsch secured alternative employment, pursuant to which he was paid more than what HOPL had paid him. That, it was said, stood as a circumstance that might limit what he could hope to recover even assuming that he could successfully prosecute the causes of action upon which he relied.

21    The primary judge also noted Mr Dorsch’s response dated 14 June 2023, by which he rejected HOPL’s offer of 7 June 2023. It was apparent from that response that Mr Dorsch did not require additional time to consider what had been offered or to cogitate over whether or not he should accept it. Instead, he instructed his solicitors to make a counteroffer, which they did by sending back to HOPL’s solicitors a copy of the draft agreement that had been marked up with his alternative terms. Those amendments included the introduction of mutual releases as between Mr Dorsch and the group of companies of which HOPL formed part (the “HEAD Group”). Most significantly, Mr Dorsch proposed that HOPL should pay him the sum of $475,000.00: nearly six times the amount that HOPL had offered.

22    After setting out the guiding principles that emerge from the authorities and the competing positions advanced by the parties, her Honour was drawn to explain why she considered that Mr Dorsch’s rejection of HOPL’s 7 June 2023 offer was unreasonable. Her Honour observed (Primary Judgment, [38]-[45]):

…Mr Dorsch, was in a different position, to a party at the commencement of or early in proceedings, where little is known about the evidentiary and legal case against it. Furthermore, whilst the existence of the reverse onus is a factor to be taken into account, when considering adverse action claims, I do not consider, in the circumstances of this case, given what Mr Dorsch knew at the time of the offers, as to what was an insurmountable challenge for him, from a credit perspective, and also in the face of the strong evidence against him, that the success of any challenge concerning his dismissal would be remote. Furthermore, to the extent that Mr Dorsch challenged Mr [Gerald] Skrobanek’s [(a director of many entities in the HEAD Group and, so the primary judge found at [369] of the Liability Judgment, the decision maker in respect of the decision to terminate Mr Dorsch’s employment)] authority, I do not think, within the broad range of considerations contained in these reasons, that Mr Dorsch can avoid a finding of unreasonableness.

…Mr Dorsch’s own evidence revealed that he was not a reliable historian, even at the time he made the first allegations regarding his annual leave balances. As noted in the liability judgment, (at [Liability Judgment][283]), Mr Dorsch’s own evidence (from the email exchanges as between himself and Mr [Stefan] Michl [(the Vice President of another entity in the HEAD Group, and the moving force of much of the conduct said to have been non-dismissal adverse action that HOPL was alleged to have taken against Mr Dorsch)] between April and June 2018) revealed that he grossly inflated his claim, initially stating he was entitled to 87 days’ leave, then suggesting 53 days’ leave but based on assumption not contemporaneous recording and then ultimately suggested a lower amount. As at the time of the offers, the filed evidence of Mr Skrobanek also revealed that Mr Dorsch had significant autonomy as to his work hours and his leave. Accordingly, Mr Dorsch must have appreciated at the time that the offers were made that there was significant risk that these [annual leave] claims would fail, even if there was a dispute regarding whether the alleged conduct was taken by Mr Michl as agent or employee for [HOPL]. This is because Mr Dorsch was aware of the fact that he was not relying on contemporaneous evidence supportive of his claims of leave and he had made inflated claims in the past about leave and there were serious challenges to his credit from all of [HOPL]’ witnesses. Therefore, regardless of legal argument, there were significant problems with the factual premises underpinning his claims. In any event, the quantum of this claim was low and comprised a fraction of what [HOPL] had offered. Furthermore, the claims regarding the alleged scrutiny and the low offers, at best, would not yield, any significant award of damage or penalty.

As to the statutory and contractual claims regarding the alleged long hours he worked, again Mr Dorsch was on notice, at the time of the offers, that he had put on no contemporary evidence to substantiate his baldly asserted claim that [HOPL] had “imposed” a workload in excess of 38 hours per week, and where he “regularly worked around 70 or 80 hours per week”: [Liability Judgment] [332]. Mr Dorsch would have known that at the point the offers were made he had put on no evidence of who within [HOPL], had “imposed” the unidentified workload nor had he put on any contemporaneous evidence over the asserted four year period proving the same… Furthermore, prior to the offers, as part of the discovery process, [HOPL]had provided Mr Dorsch with copies of the calendar invitations in 2020 for scheduled meetings Mr Dorsch had attended, which revealed, a pattern well below that asserted by Mr Dorsch or Ms [Jeanny] Terry [(Mr Dorsch’s former partner)]: [Liability Judgment] [351]. Furthermore, at the time of the offers, [HOPL] had the filed evidence of numerous employees that he often stared work later and left work early: [Liability Judgment] [354]. As a consequence, Mr Dorsch had to have been on notice that any chance of him proving the requisite underlying factual substratum necessary to succeed in either these statutory or contractual claims was remote…

…I do not accept that Mr Dorsch is able to avoid a finding of unreasonableness by asserting factual and legal complexity as a way to avoid the reality of the circumstances: Mr Dorsch advanced a number of claims without a proper evidentiary foundation and where he was aware, at the time that the offers were made, of the significant broad-ranging factual challenges to his evidence from a number of the respondents’ witnesses…

The offer of $80,000 was a substantial one. It comprised almost the equivalent of one year’s annual income with [HOPL], in circumstances where he had mitigated his loss and obtained employment on a substantially higher basis, ten months after his termination.

A person in Mr Dorsch’s position would have had to have considered that his primary adverse action claim (for which general damages and future losses would flow) being that of dismissal was a difficult claim in the light of the evidence, not only of Mr Skrobanek, but of all the other witnesses. Whilst, such damages may arise in the case of the other forms of adverse action, it was clear, based on the lack of differentiation in the expert evidence, that the primary trigger for those damages, arose from the termination itself. Mr Dorsch must have known that the offer was substantial and would have represented an amount equivalent to him succeeding on more than one of his claims.

One aspect which could possibly tell against the award, was the reach of the compromise, to a non-party, Mr Dorsch’s other former concurrent employer, [MARES Asia Pacific]. However, this case was peculiar. The parties had always accepted he was concurrently employed by both entities. Mr Dorsch had made a conscious choice to sue only [HOPL], despite being on notice from, at least the point of [HOPL]’s defence, that [HOPL] would claim that the alleged non-dismissal adverse action was action taken by [MARES Asia Pacific] not [HOPL]…

I do not accept that the breadth of [the Deed] or the time in which Mr Dorsch was called on to answer it warrants against finding that the non-acceptance of the first offer was unreasonable.

23    As the relevant rules require, Mr Dorsch’s application for leave to appeal from the Primary Judgment is accompanied by a draft notice of appeal, which sets out the bases upon which he proposes to challenge it. It is convenient to replicate those grounds in full (save insofar as concerns what was ground 4, which is no longer pressed) (errors original):

Grounds of appeal

1.     The Primary Judge erred by awarding costs against [Mr Dorsch] where at the time the offer expired [Mr Dorsch] had an arguable evidentiary and legal basis for his claim at the time the offer expired.

2.     The Court erred by failing to exercise the discretion to award costs with caution.

3.     The Court in awarding costs to [HOPL] acted on wrong principles by:

(a)     finding it was for [Mr Dorsch] to demonstrate that his conduct in rejecting the offer was not unreasonable rather than for [HOPL] to demonstrate [Mr Dorsch’s] conduct was unreasonable; and

(b)     failing to adopt a standard of unreasonableness which is higher than mere imprudence, or acting unguided by good sense or sound judgement.

…

5.     The Court erred by making a mistake of facts that by the time off the offers that [Mr Dorsch] had mitigated his loss.

6.     The Court erred by failing to take into account some material consideration, they being:

(a)     the reverse onus of proof in respect to the adverse action claims which involved the evidence from Mr Skrobanek and Mr Michel who had not completed the giving of evidence;

(b)     [Mr Dorsch’s] argument that Mr Skrobanek could not be the agent of [HOPL] and/or caught by s 793 of the Act which if correct then [HOPL] could not have satisfied this onus in circumstances where this issue had not been previously determined;

(c)     [Mr Dorsch’s] adverse action claims other than those highlighted at [the Primary Judgment] at [39]-[40];

(d)     Mr Skrobanek’s evidence as to the reason for [Mr Dorsch’s] termination and then his offer of other employment for the [HOPL] undermined his reason for the termination he relied upon;

(e)     the inconsistency between [HOPL’s] response to the Notice to Admit facts and Mr Skrobanek’s filed evidence;

(f)     The breadth of the Deed; and

(g)     [Mr Dorsch’s] mental health at the time.

24    At this juncture, something should be said about the nature of the present application for leave to appeal. It is common ground that the Primary Judgment is interlocutory in nature and that no appeal from it lies without the court’s leave: Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), s 24(1A); see also Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) (2023) 299 FCR 224, 226–7 [6]-[14] (Colvin, Stewart and Feutrill JJ). The discretion to grant such leave falls to be exercised consistently with the injunction to which s 37M(3) of the FCA Act gives voice: namely, in a way that best promotes the just resolution of disputes according to law and in a way that is as quick, inexpensive and efficient as possible.

25    That excursion requires that the court consider whether the Primary Judgment is attended by sufficient doubt to warrant its reconsideration on appeal and whether, on the assumption that it was reached in error, substantial injustice would result in the event that leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9 (Sheppard, Burchett and Heerey JJ); Dimitrovski v Boland [2023] FCAFC 86, [29] (Markovic, Downes and Kennett JJ).

26    Those enquiries may, in some cases, be related, in the sense that the weight of the prejudice that might result from an application’s failure may properly inform how strong an arguable ground should be in order to sound in its success: Elzain v Deputy Commissioner of Taxation [2024] HCASJ 45, [13] (Edelman J).

27    Presently, HOPL concedes—and it is plainly the case—that substantial injustice would result were I now to foreclose upon the correction of the Primary Judgment on appeal (assuming that it is incorrect, that is). Principally, then, the present application turns upon whether or not Mr Dorsch can demonstrate that the Primary Judgment is attended by doubt sufficient to warrant its reconsideration. In assessing whether he can, the court is to consider the proposed appeal grounds at a “reasonably impressionistic level” and assess whether each such ground is “sufficiently arguable” or has “reasonable prospects of success”: EBT17 v Minister for Home Affairs [2019] FCA 200, [4] (Burley J); cited in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194, [15] (Griffiths, Thomas and Stewart JJ); see also, by analogy, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, [20]-[23], [38] (Tracey, Perry and Charlesworth JJ). For the purposes of making that assessment, I have taken account of the evidence that has been led about the state of Mr Dorsch’s mental health.

28    The Primary Judgment—turning, as it did, upon her Honour’s satisfaction that it was unreasonable of Mr Dorsch to reject HOPL’s 7 June 2023 offer—involved the exercise of an evaluative discretion. It is common ground that, in order that he might succeed on an appeal from a judgment of that nature, Mr Dorsch would need to demonstrate error of a kind described in House v The King (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

29    I am not persuaded that Mr Dorsch can demonstrate that there is a sufficient prospect that he might do so. In explaining why that is so, it is convenient to address each of the grounds upon which Mr Dorsch charges (or seeks to charge) the primary judge with error.

30    The first proposed ground—that, at the time that he rejected HOPL’s offer, Mr Dorsch had an arguable evidential and legal basis for the claims that he pressed—can swiftly be addressed. Nowhere in the Primary Judgment did her Honour conclude otherwise. At issue before the court was not whether the claims that Mr Dorsch hoped to press were claims upon which he might succeed; but, rather, whether his prospects of success were such that his rejection of HOPL’s offer was unreasonable.

31    It is, then, beside the point that, at the time that the offer was rejected, HOPL’s reasons for subjecting Mr Dorsch to adverse action had not been tested. So much may plainly be accepted. But her Honour’s analysis is equally plain: it was not because he lacked any prospect of success on his adverse action claims that Mr Dorsch’s rejection of the offer was unreasonable; it was unreasonable because:

(1)    on the (necessarily untested) evidence as it stood at the time, there was a significant prospect that Mr Dorsch would struggle to establish what he needed to establish (or, to put it another way, that HOPL would establish what it posited by way of defence); and

(2)    even if he cleared that hurdle, there was a significant risk that any compensation that he would be awarded as a consequence might not match or exceed what HOPL had offered.

32    With respect, her Honour’s analysis was orthodox. Even assuming that a different conclusion were open on the circumstances as they presented before her (which, to be clear, I would be slow to accept if that were a question that arose), that is most unlikely to reflect discretionary error of the kind that Mr Dorsch would need to agitate on appeal. I do not consider that proposed ground one exposes doubt sufficient to warrant a grant of leave.

33    Proposed ground two is, I say intending no disrespect, somewhat ambitious. Mr Dorsch posits that, having recorded the need for caution in applying s 570(2) of the FW Act, the primary judge nonetheless charged recklessly ahead toward the result upon which ultimately she settled. Even had she done so, it is unclear precisely how that might be said to reflect discretionary error of the kind that Mr Dorsch would need to establish on appeal. As HOPL submitted, “[a] case for leave to appeal cannot be made out based on a global and abstract submission that the Primary Judge was not sufficiently cautious”.

34    Again with respect, her Honour’s analysis is, in equal part, cogent and orthodox. Even assuming that some arguable want of caution might sound as a reason to grant leave, none is discernible. Proposed ground two does not expose the requisite level of doubt about the correctness of the Primary Judgment.

35    Proposed ground three may also swiftly be addressed. The contention inherent in its first part—namely, that her Honour impermissibly proceeded on the basis that it was for Mr Dorsch to establish that his rejection of HOPL’s offer was reasonable—is almost certainly wrong. To my eye, her Honour did not proceed on that basis. I consider that Mr Dorsch has no reasonable prospect of establishing that she did.

36    In saying so, I acknowledge the submission that was advanced: namely, that the rejection of an offer to settle will not be “automatically unreasonable” simply because a party mistakenly but genuinely considers “…that deficiencies and evidential problems indicated by the opposing party [are] more apparent than real…” Respectfully, that is so; but her Honour did not conclude that Mr Dorsch’s decision to reject what he had been offered was “automatically unreasonable”. On the contrary (and for the reasons that she articulated in detail and that I have replicated above), her Honour was drawn to the conclusion that she drew not by some process of automation but by (I say again and with respect) an unremarkably orthodox application of accepted principle.

37    Similar observations apply with respect to the second half of proposed appeal ground three (namely, that her Honour erred by equating unreasonableness with imprudence). The contention unfairly distorts her Honour’s analysis, which involved no such elision. Indeed, her Honour was—quite properly, if I might say so with respect—astute not to draw any equivalence between a decision that history has since rejected (on the one hand) and conduct that is relevantly unreasonable (on the other).

38    Mr Dorsch sought to make something of the fact that the offer that HOPL made on 7 June 2023 was one that, had he agreed to it, would have extinguished rights that he was at liberty to press as against other parties (namely, other members of the HEAD Group). I confess some difficulty in understanding how that contention might sound as a reason to consider that proposed ground three might arguably succeed; but, regardless, the point should be addressed. It is the case (or, at the least, is certainly arguable) that the offer that HOPL made was one that, if accepted, would have bound Mr Dorsch not only in relation to his claims against HOPL but also as against other entities. The primary judge was alive to that reality. Indeed, it was referred to; albeit not as a consideration that bore sufficiently upon her Honour’s ultimate conclusion.

39    Again, her Honour’s analysis cannot be impugned in the way that Mr Dorsch seeks to impugn it. Why it is that, despite the facts as everybody appears to have appreciated them, Mr Dorsch made the forensic decision not to join MARES Asia Pacific to his suit has not been explained; but nor is it material. The reach of the proposed settlement is a matter that her Honour considered en route to concluding that its rejection was unreasonable. The most that might be said of that consideration is that there was another way to look at matters; but that falls obviously short of the House v The King-type error that Mr Dorsch would need to establish in order to succeed on the proposed ground.

40    I do not consider that there is anything in the Primary Judgment that exposes what might now be considered arguable error in the form that proposed appeal ground three contemplates. That being so, there is nothing about that proposed ground that should warrant a grant of leave to appeal.

41    Proposed appeal ground five posits that her Honour wrongly mistook a factual proposition, namely that the loss that Mr Dorsch sought to recover was mitigated by reason of his having secured alternative employment. By his written submissions in support of his application for leave to appeal, Mr Dorsch contended as follows (references omitted):

In respect to proposed Ground 5, the Court, at [42] of the [Primary Judgment], made a mistake as to the facts in relation to mitigation of loss. [Mr Dorsch] had not mitigated his loss. [Mr Dorsch] was unemployed, and received no income, between 9 December 2021 [sic] and 22 October 2022. [Mr Dorsch] had suffered this loss which had not at this stage been mitigated by future employment. At this time [Mr Dorsch] had mitigated only a portion of his loss because, while the salary for the new position was greater than that paid by the [HOPL] as at the time of [HOPL’s 7 June offer], it was less than the total package paid by the [HOPL] and [Mares Asia Pacific]. The actual remuneration paid to [Mr Dorsch] for his work by [HOPL] was a real issue to be determined at the proceedings and at that time of [HOPL’s 7 June offer] Mark Wilson who had replaced [Mr Dorsch] had not been cross examined and his salary with [HOPL] was unknown.

42    Respectfully, the fact that Mr Dorsch’s “total package paid by [HOPL] and [MARES Asia Pacific]” was more than what HOPL offered is irrelevant. At the risk of repetition, MARES Asia Pacific was not a party to the proceeding. There was no suggestion—certainly not any realistic suggestion—that the losses that Mr Dorsch might recover from HOPL should be calculated by reference to amounts that were payable by another entity. But even if there were, the primary judge’s observations about mitigation were, with respect, inarguably right. Her Honour cannot sensibly be understood to have proceeded on any basis other than that Mr Dorsch’s new job was a circumstance that bore upon the amount that he might sensibly have hoped to recover in the action that was before her. That was so regardless of whether account was taken of the remuneration that MARES Asia Pacific paid to him.

43    With respect, Mr Dorsch has not demonstrated a reasonable prospect that, if leave to appeal were granted, he might succeed in establishing that the Primary Judgment was the product of error in the form identified by proposed ground five.

44    Proposed appeal ground six is multi-dimensional. It posits that her Honour erred by reaching her conclusion (namely, that HOPL had incurred costs as a consequence of Mr Dorsch’s unreasonable refusal to accept its offer of 7 June 2023) without taking account of the seven circumstances that it proceeds to enumerate. It is necessary to consider that proposition as it pertains to each such circumstance.

45    It is not the case that, when she made her assessment as to the reasonableness of Mr Dorsch’s rejection of the offer that he received on 7 June 2023, the learned primary judge overlooked the significance of the “reverse onus” (that is to say, the statutory presumption that is established by s 361(1) of the FW Act in respect of the reasons for which an employer is alleged to have conducted itself in contravention of, amongst others, s 340(1)). On the contrary, that was an elemental consideration to which her Honour was plainly alive.

46    Again, her Honour’s analysis appears, to me (and with respect), to be as plain as it is unimpeachable. Her Honour did not conclude that Mr Dorsch’s rejection of the offer was unreasonable because he would be unable positively to establish that HOPL had acted for reasons that the FW Act proscribes; she concluded that it was unreasonable because, having regard to the state of the evidence as it then was, it appeared that HOPL would succeed in rebutting the presumption that s 361(1) of the FW Act cast against it. That was an orthodox way of approaching what her Honour was charged with approaching.

47    I turn, then, to Mr Dorsch’s contention about the application of s 793 of the FW Act to Mr Skrobanek’s conduct. At the trial, Mr Dorsch sought to contend that HOPL could not rebut the statutory presumption because it could not establish that the decision to dismiss him from his employment was one that Mr Skrobanek—who was an employee of a related entity—had authority to effect. There are a couple of observations to make about that. Mr Dorsch’s contention that the decision to terminate his employment was not one that Mr Skrobanek implemented was misconceived. The only evidence before the court about who it was that made that decision was that it was Mr Skrobanek. The only basis upon which Mr Dorsch himself had come to accept that his employment had in fact been terminated was that Mr Skrobanek had decided to terminate it.

48    The notion that, that reality notwithstanding, there remained some prospect that Mr Dorsch would convince the court that the reasons for which adverse action had been taken against him resided in the mind or minds of a person or people other than Mr Skrobanek was, to say the least, an unlikely one. That was the conclusion to which her Honour was drawn and it was unquestionably a circumstance that was apt to bear upon her assessment of the reasonableness of Mr Dorsch’s rejection of the 7 June 2023 offer. Her Honour did not fail to consider the challenge that Mr Dorsch sought to mount against Mr Skrobanek’s authority to effect any instance of adverse action. On the contrary, she simply did not accept that it stood, “…within the broad range of considerations contained in [her] reasons” as a circumstance by which Mr Dorsch could “…avoid a finding of unreasonableness”. That, again, was an orthodox analysis that an appeal court would be unlikely to impugn as a product of discretionary error.

49    Mr Dorsch next submits that the primary judge proceeded to make her determination without considering Mr Dorsch’s prospects, at the time that he rejected HOPL’s offer, of succeeding on several of the adverse action claims that he had hoped to press. Instead, he says, her Honour’s focus was limited to the claims that he made about annual leave, his subjection to “unfair scrutiny and false allegations” and his “receipt of what he perceived to be low salary increases”. There were, he says, other claims that were pressed: including as to his store of annual leave, a requirement that he said was imposed upon him to take annual leave, a threat that he said was made to terminate his employment if he continued to agitate for greater salary increases and his subjection to “adverse action by omission”.

50    Again, it is not apparent to me that the primary judge overlooked any of those species of claim. Her Honour’s analysis acknowledged that Mr Dorsch had made (as she described them) “…multifarious claims of alleged non-dismissal adverse action”. All of them (save in minor respects that needn’t be rehearsed now) were said to have been visited upon him by Mr Michl. As her Honour noted, the state of the evidence as at early June 2023 was such that it must have been apparent to Mr Dorsch that “there was significant risk that [Mr Dorsch’s] claims would fail, even if there was a dispute regarding whether the alleged conduct was taken by Mr Michl as agent or employee for [HOPL]”. Further, her Honour noted that what Mr Dorsch might realistically expect to receive in the event that his claims succeeded “…was low and comprised a fraction of what [HOPL] had offered”.

51    Again (and with respect), her Honour’s analysis appears, to me, to be unremarkable. Inherent in Mr Dorsch’s claim for leave to appeal is the idea that she ought to have come to a different view about the strength of his claims, and/or the likelihood that he might recover in respect of them amounts that made his rejection of HOPL’s offer reasonable. None of that would ordinarily suffice to reflect discretionary error in her Honour’s approach.

52    Next, Mr Dorsch submits that the primary judge impermissibly determined HOPL’s application for costs without considering Mr Skrobanek’s vulnerability to an attack on his credit. It is said that the reasons that Mr Skrobanek gave for his decision to terminate Mr Dorsch’s employment did not easily reconcile with his having explored with Mr Dorsch the possibility of moving him into a different position within the HEAD Group.

53    It may, of course, be accepted that, as at 7 June 2023, Mr Skrobanek was vulnerable to an attack on his credit. All of the witnesses were, at least potentially. Her Honour did not proceed on the footing that what Mr Skrobanek had set out in his affidavit would inevitably be accepted. She merely accepted that Mr Dorsch faced a real risk that it would be. Like many applicants in matters advanced under pt 3-1 of the FW Act, Mr Dorsch did not attempt to (and, one presumes, could not) establish positively that the adverse action of which he complained had been visited upon him for reasons that the statute proscribed. Instead, he relied heavily (and in a manner both familiar and orthodox) upon the statutory presumption established by s 361(1) of the FW Act. Thus his success rested upon his convincing the court not to accept the only direct evidence that was to be given about why conduct had been engaged in against him.

54    The primary judge’s conclusion that it was unreasonable of Mr Dorsch to reject the 7 June 2023 offer rested upon her assessment of the risk that must have been apparent at that time that Mr Dorsch might not succeed in that endeavour. It is not to the point that that risk inhered (or partly inhered) in the prospect that Mr Skrobanek’s credit might be impugned (as plainly it might have been) in a particular way or particular ways. Her Honour was not obliged specifically to advert to those possibilities when recording her finding of greater generality. It was, I think, sufficient that she note generally, as she did, that the hurdle that Mr Dorsch would need to clear in order to succeed “from a credit perspective” was “an insurmountable challenge for him”. Founded, as it is, in the suggestion of discretionary error, I do not think that there is a prospect that an appeal court would entertain the criticism that Mr Dorsch makes of that conclusion.

55    That observation suffices also to address Mr Dorsch’s suggestion that Mr Skrobanek’s credit was vulnerable on account of an inconsistency as between the evidence that he gave and HOPL’s response to a notice to admit that Mr Dorsch served upon it prior to the trial. Whether (or the extent to which) there was such an inconsistency is debatable; but even assuming that there was, I do not consider that her Honour’s failure specifically to advert to it is likely to excite any interest on appeal.

56    Mr Dorsch also points to what is said to have been her Honour’s failure to consider the “breadth of the Deed”. I have already addressed the point in the context of proposed appeal ground three (above, [38]-[40]). In circumstances where her Honour expressly adverted to the breadth of the offer that was made on 7 June 2023, it is difficult to see how Mr Dorsch might establish on appeal the failure that he now seeks leave to allege. In my view, there is no realistic prospect that he might.

57    Finally, Mr Dorsch charges (or proposes to charge) her Honour with having failed to take account of the state of his mental health at the point that he rejected HOPL’s 7 June 2023 offer. That was not a submission that was advanced before the primary judge as to why she ought not to grant HOPL the benefit of a costs order. As a matter of principle, the court is unlikely to entertain the proposed ground: Coulton v Holcombe (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ). That alone is sufficient reason not to grant leave to appeal in respect of it.

58    In any event, I do not consider that there is much prospect that the court, on appeal, might be minded to set her Honour’s conclusion aside on the basis that her discretion ought to have been informed by the state of Mr Dorsch’s mental health at the time that he rejected the 7 June 2023 offer. It is not clear to me why that should stand as a circumstance that is apt to inform whether that rejection was reasonable or unreasonable. It was not explained why it might be that an otherwise unreasonable rejection of an offer to comprise might, in the circumstances that present here, be transformed by mental health concerns into a rejection that was reasonable. Mr Dorsch was, at the time, ably represented. He did not claim to require greater opportunity to consider what had been offered. Indeed, he made a counteroffer. It seems, to me, most unlikely that the court on appeal would entertain the idea that, for want of the consideration identified, her Honour’s conclusion might be impugned as a product of discretionary error.

59    Insofar as Mr Dorsch asserts (if he does) that the state of his mental health might have been a circumstance apt to generate additional compensation for him in the event that his application succeeded—and that the quantum of his loss thus extended potentially well beyond what HOPL had offered him—such a submission is self-evidently speculative. Moreover, it underlines why the court would be reluctant to entertain the contention on appeal in the absence of its having been agitated before the primary judge. It seems to be accepted that, at the time that he rejected HOPL’s offer, Mr Dorsch laboured under a relevant psychological condition. Nonetheless, had it been clear that the state of Mr Dorsch’s mental health was advanced as a consideration that should guide her Honour’s determination on the question of costs, HOPL might well have made some evidential effort to counter it. I consider it unlikely that the point would command interest on appeal.

60    It follows that I do not consider that Mr Dorsch’s prospects of successfully prosecuting any part of proposed appeal ground six rise to a standard that warrants the grant of leave for which he moves.

61    Leave to appeal should and will be refused.

Associate:

Dated:    25 July 2025