Wheeler-Wilson v Freeman Glen Pty Ltd (Trustee)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wheeler-Wilson v Freeman Glen Pty Ltd (Trustee) [2024] FedCFamC2G 142

File number: MLG2674 of 2022
Judgment of: HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment: 22 February 2024
Catchwords: INDUSTRIAL LAW – fair work breach of general protections claim – application for reinstatement of proceedings – notice of discontinuance knowingly and voluntarily filed by applicant’s solicitors – discontinued for mental health reasons – consideration of inherent power to exercise discretionary power in the interests of justice – application dismissed
Legislation:

Fair Work Act 2009 (Cth) s 570(1) or (2)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 4.02 and 13.01

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050

Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316

ASE17 v Minister for Immigration & Anor [2018] FCCA 2458

Laramie v Caul [2018] FCCA 1371

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

MZZIO v Minister for Immigration & Anor [2014] FCCA 618

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Division: Division 2 General Federal Law
Number of paragraphs: 60
Date of last submissions: 25 January 2024
Date of hearing: 25 January 2024
Place: Melbourne (by videoconference)
The Applicant: Appearing in person
Solicitor for the Respondent: Jem Lawyers

ORDERS

MLG 2671 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CARLY WHEELER-WILSON

Applicant
AND:

FREEMAN GLEN PTY LTD AS TRUSTEE FOR THE PHILLIP ESTATE UNIT TRUST TRADING AS O'BRIEN REAL ESTATE JUDITH WRIGHT

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C.E. KIRTON KC

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the Applicant on 1 June 2023 is dismissed.

2.The Response – General Federal Law filed by the Respondent on 27 June 2023 is otherwise dismissed with no order as to costs.

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

HER HONOUR JUDGE C.E. KIRTON KC:

INTRODUCTION

  1. This matter comes before the Court as a result of an Application in a Proceeding filed by the Applicant on 1 June 2023 (Reinstatement Application) seeking to reinstate the Application – Fair Work Division filed on 9 December 2022 (Substantive Application) which was discontinued by a Notice of Discontinuance filed on 1 February 2023 (Notice of Discontinuance).

  2. This matter was heard on 25 January 2024 by videoconference (Hearing

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Details
Case
[2024] FedCFamC2G 142
Decision Date

CaseChat Overview and Summary

The case before the court involves a claim by Wheeler-Wilson against Freeman Glen Pty Ltd (Trustee), concerning an alleged breach of general protections under the Fair Work Act 2009. Wheeler-Wilson, an Accommodation Manager for the Respondent, filed a claim alleging wrongful dismissal and related issues, which was subsequently discontinued. Wheeler-Wilson applied to reinstate the proceedings, citing mental health reasons for the initial discontinuance. The court was required to decide whether to exercise its inherent power to reinstate the proceedings despite the voluntary filing of a notice of discontinuance by Wheeler-Wilson’s solicitors.

The court considered the circumstances surrounding the filing of the notice of discontinuance and whether any exceptional factors warranted setting it aside. The court found that Wheeler-Wilson, who was legally represented, knowingly and voluntarily filed the notice of discontinuance. The court examined whether there was any abuse of process, fraud, duress, or a void agreement, but found none. Furthermore, the court assessed whether setting aside the notice would result in injustice or significant prejudice to the parties, but concluded that the Applicant did not provide sufficient evidence to support this. The court also noted the Applicant's current mental state and her ability to make informed decisions, finding no indication that she lacked the capacity to understand the implications of discontinuing the proceedings at the time.

Based on the analysis, the court dismissed the application for reinstatement. The reasoning was that the Applicant had voluntarily filed the notice of discontinuance, understood its consequences, and there was no evidence of coercion or misunderstanding. The court found no exceptional circumstances that would justify setting aside the notice of discontinuance and allowing the reinstatement of the proceedings. The court’s decision was grounded in the inherent power to ensure justice is served, but in this case, it found no basis to exercise that power in favour of the Applicant.

As a result, the court denied leave for Wheeler-Wilson to reinstate the matter and pursue the substantive application. The decision stands that the Notice of Discontinuance will not be set aside, and the proceedings remain discontinued.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have determined that the Notice of Discontinuance should not be set aside and the Reinstatement Application should be dismissed. Leave is not granted for the Applicant to re-instate the matter and pursue the Substantive Application. BACKGROUND I note that the background information referred to herein largely reflects the Applicant’s account of events from the limited material available to the Court.[1] The Respondent has provided minimal background information to the Court but the information provided by the Respondent largely does not agree with the Applicant’s characterisation of events.[1] Form 2, Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, filed by the Applicant on 9 December 2022 (Form 2), [24], ‘Part G – Contravention(s) alleged’ (Part G Contravention(s) alleged). From 15 March 2022 to 30 September 2022 the Applicant was employed on an ongoing full-time basis by the Respondent as an “Accommodation Manager” managing holiday rental properties.[2] The Applicant’s contract provided for a six (6) month probationary period which could be extended at the discretion of the Respondent.[3] The Applicant’s employment could be terminated with one (1) week’s notice by either party or payment in lieu of such notice.[4][2] Part G Contravention(s) alleged, [1].[3] Affidavit of the Applicant, sworn or affirmed and filed 17 July 2023 (Applicant’s 17 July 2023 Affidavit), 32, [3].[4] Applicant’s 17 July 2023 Affidavit, 32, [3.2]. On 8 September 2022 the Applicant reported to her co-worker Ms Maddison Fox that another co-worker Ms Simone Fox was engaging in bullying behaviour towards her. The Applicant sent an email to Ms Maddison Fox about the bullying behaviour, to which she allegedly received a response telling her to ignore Ms Simone Fox. The Applicant then raised concerns about Ms Maddison Fox’s bullying behaviour with another co-worker. On 11 September 2022 the Applicant contacted the “Employer Assistance Provider EAP Assist” due to symptoms relating to her mental health, which the Applicant alleges were a result of bullying behaviours in the workplace. On 15 September 2022 the Applicant had been employed for six (6) months and attended a meeting with Ms Simone Fox and Ms Jodie Hassan, the Executive Director of the Respondent. At the meeting Ms Simone Fox and Ms Hassan sought to extend the Applicant’s probation by three (3) months. The Applicant alleges that she refused to sign an acceptance of her probation extension, which the Respondent disputes. On 21 September 2022 the Applicant attended upon her general practitioner for ongoing stress and depression, who provided her with a medical certificate stating she was unfit for work duties. On 25 September 2022 the Applicant submitted by email a complaint to two (2) senior employees of the Respondent, Ms Foote and Ms Duston, about the ongoing bullying by Ms Simone Fox (Complaint Email). On 26 September 2022 the Applicant was told that the Complaint Email should be sent to Ms Hassan who dealt with “worksafe” issues.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Notably, the Applicant’s employment was subject to a probation period which could be extended at the discretion of the Respondent and the Applicant’s hours of work could vary or include additional hours as reasonably necessary or required by the Respondent. I have little evidence to meaningfully assess the reasonable prospect of success and only have a differing account of events. There is insufficient evidence to assume the Applicant’s claim would be successful. I cannot be satisfied that the Substantive Application has reasonable prospects of success.CONCLUSION The Notice of Discontinuance was filed in this Court in accordance with r 13.01 of the GFL Rules. Unlike the decisions referred to at [2] of NACT of 2011, the Notice of Discontinuance was not filed in error. The Notice of Discontinuance does not cite a reason for the discontinuance of the Substantive Application. In Applicant A26 the Court described at [2] that the “discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings”. In NACT of 2011 Jacobson J found that “no satisfactory explanation has been given for why it ought to be reinstated” and was not satisfied that “the justice of the case” required him to exercise a discretion in favour of reinstating the matter. Similarly, the Applicant has failed to establish why it is in the interests of justice for me to exercise my discretion and reinstate this matter. While the events recounted in the Form 2 and the Respondent’s lack of evidence are concerning, having considered the authorities and circumstances of this matter I do not consider that there are grounds to reinstate the matter and set aside the Notice of Discontinuance. The Substantive Application, the Form 2 and the Notice of Discontinuance were filed by the Applicant’s Solicitors on the instruction of the Applicant, which the Applicant does not dispute. It can be inferred that the Applicant was provided with legal advice and understood the requirements and implications of both initiating proceedings and discontinuing proceedings. The Applicant’s evidence indicates that she chose to stop pursing the Substantive Application and intentionally discontinued the proceedings. I can infer that the Applicant appreciated the consequences of filing the Notice of Discontinuance at the time of filing. As stated by Ryan J in SZFOZ at [20] “it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance” to assert that the applicant’s own act should be set aside. It is clear from the Applicant’s evidence that the events relating to her termination of employment and the Substantive Application proceedings were very distressing and had a significant detrimental impact on the Applicant’s mental health and wellbeing. Having regard to the authorities and the circumstances, the medical evidence provided does not detract from her voluntary decision to discontinue proceedings. Judge Jarrett in Laramie & Caul commented that the applicant “says that, at the time, she was affected by certain stresses and the like and there is medical evidence to attest to that, but there is no suggestion that she was robbed of capacity to make proper decisions for herself in the litigation”. In ASE17 Judge Manousaridis found that “the medical report provided by the Applicant does not say that at the time the applicant decided to discontinue the proceeding his mental state was different” and considered that “the medical report does not suggest that the symptoms with which it states the applicant presented prevented the applicant from understanding, or otherwise impaired the applicant’s ability to understand, the nature and significance of his deciding to discontinue the proceeding, or to rationally weigh factors relevant to deciding whether to discontinue the proceeding”. The medical evidence indicates that the Applicant was affected in a manner similar to the applicants in Laramie & Caul and ASE17. The evidence does not support that the Applicant was incapable of making decisions and did not understand and consider the decision to discontinue the proceedings.

Ratio Decidendi

Legal Principle Established

I now turn to consider the factors, as discussed in the authorities above, relevant to determining the Reinstatement Application. CONSIDERATIONAbuse of process, fraud, duress or void agreement In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (SZFOZ) at [18] to [19] Ryan J explained that in rare circumstances the Court “may accede to a request by a party affected by the abuse [of process] to have the discontinuance set aside” where the Court’s “inherent power to prevent injustice” is justified. Ryan J referred to the “exceptional cases” of: Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050 (Applicant A26), where a notice of discontinuance was filed without the knowledge or consent of the applicant; and Castanho v Brown & Root (UK) Ltd [1981] AC 557 where an interim payment had been made prior to the filing of a notice of discontinuance. The Respondent submitted that the Notice of Discontinuance was a voluntary choice made by the Applicant who had legal representation at the time.[15] At the time of the filing of the Notice of Discontinuance the Applicant was represented by the Applicant’s Solicitors. In NACT of 2011 Jacobson J commented at [33] to [34] that based on the evidence that the applicant took advice from his solicitor, it could be inferred that the applicant proceeded with the filing of the notice of discontinuance on legal advice and understood the general effect of doing so. The Respondent, referring to Laramie & Caul at [13] to [14], submitted that the Applicant was at all times represented by the Applicant’s Solicitors and therefore it could be inferred that the Applicant was advised and understood the general effect of filing the Notice of Discontinuance. The Respondent further submitted that it could be inferred that Applicant’s Solicitors understood the Applicant’s claims and what she was seeking given the Substantive Application and Form 2 filed on behalf of the Applicant.[16][15] Response to an Application in a Proceeding, filed by the Respondent on 27 June 2023 (Response), ‘Grounds of opposition or further orders’, [1].[16] Transcript P8:L45-P9:L10. The Applicant does not dispute that the Notice of Discontinuance was voluntary and filed with her knowledge and consent. The Applicant does not contend that she did not understand the consequences of filing the Notice of Discontinuance. There is no evidence of fraud, duress or an abuse of process in relation to the filing of the Notice of Discontinuance. Further, there was no void or voidable agreement at the time the Notice of Discontinuance was filed. I do not consider that any of these factors weigh in favour of allowing the Reinstatement Application. Prejudice and injustice The Applicant did not explicitly address how injustice would occur if the Substantive Application was not allowed, nor did the Applicant address whether prejudice would occur if the Notice of Discontinuance was set aside. The Applicant deposed to the following in her affidavit material and submitted at the Hearing:(a)The Applicant “could not” continue with the Substantive Application after the parties had mediation as her “mental health wasn’t good” and she “couldn’t go ahead at that time”.[17] The Conciliation Conference “set it [the Applicant’s mental health] off” as an employee of the Respondent “attacked” her during the Conciliation Conference.[18](b)The Applicant was suffering from anxiety attacks, nightmares and depression.[19](c)The Applicant is continuing with her case now for her own closure and because she wants to be compensated for the loss of income, general damages and legal costs that occurred.[20](d)The Applicant has now attended 32 sessions with a therapist.[21] The Applicant stated that she does not require medication or attending upon her doctor or therapist as frequently and explained: “I’ve had a lot of therapy since then and I’m feeling better now, to continue” and “I feel strong enough to [continue], now”.[22] (e)The Applicant noted that “I still feel triggered sometimes in my job from what happened there [at the Respondent]”.[23] [17] Applicant’s Affidavit sworn or filed 20 June 2023 and filed 22 June 2023 (Applicant’s 22 June 2023 Affidavit), [1]; Transcript P3:L19-20 and P3:L44-46.[18] Transcript P10:L17-20.[19] Applicant’s 22 June 2023 Affidavit, [3].[20] Applicant’s 22 June 2023 Affidavit, [4]; Transcript P3:L21-22 and P3:L44-46.[21] Applicant’s 22 June 2023 Affidavit, [3].[22] Transcript P3:L46-P4:L2 and P4:L42-46.[23] Transcript P4:L47-P5:L1.