Wheeler-Wilson v Freeman Glen Pty Ltd (Trustee)
[2024] FedCFamC2G 142
•22 February 2024
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
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).
This matter was heard on 25 January 2024 by videoconference (Hearing). The Applicant appeared in person and the Solicitor for the Respondent appeared for the Respondent. At the conclusion of the Hearing judgment was reserved.
ISSUE FOR DETERMINATION
The issue to be determined is whether the Court should exercise its discretionary power to set aside the Notice of Discontinuance and re-instate this matter.
SYNOPSIS
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.
On 28 September 2022 the Applicant completed a formal WorkSafe Bullying complaint (WorkSafe Complaint).
On 29 September 2022 the Applicant attended a meeting with Ms Foote and Ms Hassan. The Applicant discussed the WorkSafe Complaint with them. The Applicant claims that Ms Hassan was “defensive” and spoke in an angry manner. After the meeting the Applicant attended upon her general practitioner who provided her with a medical certificate stating she was unfit for work duties and prescribed her medication. That evening the Applicant received a phone call from a co-worker informing her that Ms Hassan was making enquiries with other employees of the Respondent concerning the Applicant’s bullying allegations.
On 30 September 2022 the Applicant attended work and alleges that: she was locked out of her work account; Ms Hassan said “you are out, I’m getting rid of you effectively immediately”; and the Applicant handed her work phone to Ms Hassan at Ms Hassan’s request.
On 3 October 2022 Bronte Foote, Manager of ‘Operations – HR and Client Experience’ on behalf of the Respondent, sent to the Applicant a letter advising the Applicant of the cessation of her employment as follows (Letter of Termination):[5]
[5] Form 2, 38.
[…]
To Carly,
CEASING EMPLOYMENT
As you are aware your employment with our company ceased on Friday the 30th of September 2022.
Whilst we are required to give you on weeks notice it is not necessary for you to attend work over this time however you will be paid accordingly for the notice period.
We request that you return all uniforms you have in your possession and other items you have received during your time at OBrien Real Estate .
All applicable salary and entitlements will be applied up to and including your final day and payment will be made to you in the next standard pay run cycle provided all the above items have been returned in good order.
If your account details or address details will be different to your existing records then these need to be updated ASAP by contacting Accounts. If these are not provided, it may delay the exit process. Please ensure Employment Hero is updated with your personal contact details (phone and email.)
You will still be able to log into the Employment Hero Passport to view payslips and update your details using your personal email address.
Thank you for your efforts to date and we wish you well for the future.
[…]
(As written)
On 21 November 2022 the Fair Work Commission conducted a conciliation conference with the Applicant and representatives of the Respondent to deal with the dispute.[6]
[6]Form 2, Attachment 3, ‘Certificate Under Section 368’, 39.
PROCEDURAL HISTORY
On 9 December 2022 the Applicant, represented by Slater and Gordon (Applicant’s Solicitors), filed with the Court the Substantive Application along with a Form 2, Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (Form 2).
The Form 2 made the following adverse action claims under the Fair Work Act 2009 (Cth) (Fair Work Act):[7]
[7] Part G – Contravention(s) alleged’, [18]-[20].
18.The Respondent took adverse action against the Applicant in breach of Sections 340 and 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (the Act) when it dismissed the Applicant because:
a.The Applicant made complaints of bullying, including the 25 September Complaint;
19.The Respondent took adverse action against the Applicant in breach of Sections 340(1) and 341(1)(a)(b) and (c) of the FW Act when it dismissed the Applicant because:
a.The Applicant made a complaint to WorkSafe under Victorian workplace compensation legislation.
20.The Respondent took adverse action against the Applicant in breach of Section 351 of the FW Act when it dismissed the Applicant because:
a.The Applicant had been in a de facto relationship with another of the respondent’s employees and the de facto relationship had ended.
The Form 2 sought compensation for economic and non-economic loss and a pecuniary penalty.[8] The Applicant claims compensation in the amount of $48,000 plus superannuation in respect of lost wages and general damages in the amount of $40,000 for pain, suffering, humiliation and damage to her professional reputation.[9]
[8] Form 2, ‘Part H – Remedy sought’, [26].
[9] Form 2, ‘Attachment to Form 2’, 40.
On 4 January 2023 the Applicant’s Solicitors served Jem Lawyers (Respondent’s Solicitors) with the Substantive Application and the Form 2 by email.[10] The email from the Applicant’s Solicitors informed the Respondent’s Solicitors that a Court hearing date was listed for 28 February 2023.
[10] Affidavit of Jennie Tran, affirmed and filed on 27 June 2023 (27 June 2023 Tran Affidavit), [4].
On 1 February 2023 the Applicant’s Solicitors, on behalf of the Applicant, filed the Notice of Discontinuance and served it on the Respondent’s Solicitors by email.[11]
[11] 27 June 2023 Tran Affidavit, [6].
On 1 June 2023 the Applicant, now self represented, filed the Reinstatement Application seeking to “reopen matter C2022/7086 that was filed and served to the federal circuit court on 4/1/2023”.[12]
[12] Application in a Proceeding, filed 1 June 2023, ‘Part D The orders you are seeking’, [6].
On 21 June 2023 the Respondent’s Solicitors sent a letter to the Applicant stating the following:[13]
[13] 27 June 2023 Tran Affidavit, 60-61.
[…]
Relevantly:
(a)Your Substantive Application was prepared by your former lawyers, Slater & Gordon.
(b)Without explanation, on 1 February 2023, Slater & Gordon served on my office a notice of discontinuance on your instructions (a further copy enclosed to this letter).
(c)In effect, by filing and serving a notice of discontinuance, you abandoned your case.
(d)It is unclear the basis in which you now seek to have the notice of discontinuance set aside. In order for my client to properly consider the position, please set out the reasons why noting that my instructions are to oppose your application to have it set aside and to also seek costs.
[…]
On 4 July 2023 the matter came before a Registrar of this Court for a Directions Hearing and Orders were made listing the matter for hearing and for the filing of material.
On 2 November 2023 the Applicant sent an email to my associates requesting that she appear at the Hearing by videoconference. Her request was granted.
The Hearing proceeded by videoconference with the Applicant appearing in person and the Solicitor for the Respondent appearing for the Respondent.
At the Hearing the Applicant confirmed that the only order she was seeking was the reopening of this matter.[14] The Applicant relied on the following documents:
(a)The Substantive Application and Statement of Claim;
(b)The Form 2;
(c)The Reinstatement Application;
(d)The Applicant’s 22 June 2023 Affidavit;
(e)The Applicant’s 17 July 2023 Affidavit; and
(f)The Applicant’s 8 January 2023 Affidavit.
[14] Transcript P2:L11-33.
The Respondent opposed the Reinstatement Application, citing the principles in Laramie & Caul [2018] FCCA 1371 which will be discussed below, and sought costs of the proceeding pursuant to s 570 of the Fair Work Act. The Respondent relied on the following documents:
(a)The Response;
(b)The 27 June 2023 Tran Affidavit;
(c)The 1 August 2023 Tran Affidavit;
(d)The Respondent’s Submissions; and
(e)The list of authorities emailed to my Associates’ Chambers on 24 January 2024.
LEGAL PRINCIPLES
Rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides for the filing of notice of discontinuances in this Court for parties to discontinue an application or response. There is no specific rule in the GFL Rules that provides for the re-instatement of matters after a notice of discontinuance has been filed. There are no relevant provisions that empower the Court to set aside a notice of discontinuance or reinstate proceedings which have been discontinued pursuant to the GFL Rules.
It has been held that the Court has the discretionary power to set aside a notice of discontinuance in exceptional and appropriate circumstances. In Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316 (NACT of 2001) Jacobson J considered the Court’s power to set aside notice of discontinuances and made the following observations at [3] to [4]:
[3]In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gaudron J referred, at [7] of her judgment, to the remarks of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530. His Honour there observed that it would not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. Gaudron J referred at [9] to the distinction between orders operating by way of a final determination of the matters in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings.
[4]There was nothing in the notice of discontinuance which left it open to the applicant to commence further proceedings and indeed the provisions of O 52 r 19(1A) indicate that no such proceedings could be commenced. Although a real question arises as to whether in light of the principles to which I have referred, I do have power to reinstate the appeal, I am prepared to proceed upon the basis that the court, in an appropriate case, has inherent power to set aside a notice of discontinuance if it is necessary to prevent injustice.
(Emphasis added)
In Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (Moussa) Perram J referred to a number of authorities and discussed the principles related to the re-instatement of matters in circumstances where a notice of discontinuance has been filed. I note that whilst Perram J discusses the re-instatement of matters in relation to the Federal Circuit Court Rules 2001 (Cth) the principles outlined by His Honour continue to hold authority and apply to this matter. In Moussa at [13] Perram J stated that the following principles can be distilled:
(a)A notice of discontinuance can be set aside where it is shown that its filing constituted an abuse of process.
(b)A notice of discontinuance may be set aside where its filing was procured by fraud or duress.
(c)There is jurisdiction to set a notice of discontinuance aside to avoid substantial injustice.
(d)None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.
The principles articulated by Perram J in Moussa have been subsequently applied in this Court. In ASE17 v Minister for Immigration & Anor [2018] FCCA 2458 (ASE17) Judge Manousaridis determined that the application for re-instatement after a notice of discontinuance was bound to fail as “there was no doubt applicant voluntarily decided to discontinue proceedings having knowledge of the nature and significance of doing so” and the “material does not suggest filing of the notice of discontinuance constituted an abuse of process or that the decision was procured by fraud or distress, and nothing to suggest substantial injustice would be avoided if notice of discontinuance was set aside”.
Referring to MZZIO v Minister for Immigration & Anor [2014] FCCA 618 at [14], the primary judge in Laramie v Caul [2018] FCCA 1371 (Laramie & Caul) Judge Jarrett provided the following questions to assist the resolution of applications for re-instatement:
(a)Was the filing of the notice of discontinuance procured by fraud or duress?
(b)Was it filed pursuant to a void, or voidable, agreement?
(c)Did the filing of the notice of discontinuance otherwise involve an abusive process?
(d)Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
(e)If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?
In Laramie & Caul Judge Jarrett said at [13] and [14]:
13.There is nothing here to demonstrate that the filing of the notice of discontinuance was procured by fraud or an abuse of process. The evidence demonstrates that it was a voluntary act by the applicant in these proceedings. She 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.
14.Is it necessary to set aside the notice of discontinuance to ensure that the Court’s processes do not cause an injustice? In my view, it is not. The Court’s processes are quite plain. The act of filing of the notice of discontinuance was a choice made by the applicant and to set it aside now might well amount to an injustice to the respondent. There is nothing to suggest that it was filed pursuant to an agreement that was void or voidable. There was no fraud or other reason to think that there was an agreement between these parties about the filing of the notice of discontinuance that might otherwise be assailable at law.
I now turn to consider the factors, as discussed in the authorities above, relevant to determining the Reinstatement Application.
CONSIDERATION
Abuse 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.
The Applicant relied on letters from her doctor and therapist as evidence of her previous and current mental health and wellbeing. The medical evidence and oral submissions of the Applicant do not suggest that the Applicant was incapable of decision making at the time the Notice of Discontinuance was filed. The medical certificates from when the Applicant was employed by the Respondent stated she was unfit due to work and described that the Applicant was experiencing anxiety and depression, and work related stress “affecting her in some different way including her thought processing, judgment and making decisions”.[24] The recent reports explain that the Applicant has undergone generalist counselling for “grief and loss support, managing anxiety symptoms, managing relationship conflict, increased independence, increased self-esteem and increased social supports”.[25] The Applicant’s general practitioner states that the Applicant “is in a better and stable state in term of making discission (sic)”. [26] The Applicant has been in paid employment undertaking property management for “Alex Scott & Staff Real Estate” from around March 2023 and she said she was “very happy” in that employment.[27]
[24] Affidavit of the Applicant, sworn or affirmed 29 December 2023 and filed 8 January 2024 (Applicant’s 8 January 2024 Affidavit), 5.
[25]Applicant’s 22 June 2023 Affidavit, 8.
[26] Applicant’s 8 January 2024 Affidavit, 5.
[27] Transcript P4:L4-33.
The Respondent contended that the evidence and the Reinstatement Application do not substantiate a valid basis to reinstate the proceeding and would amount to an injustice to the Respondent if it was allowed.[28] The Respondent submitted that there is no evidence or suggestion that the Applicant was incapable of or robbed of her capacity to make proper decisions whilst being guided by the Applicant’s Solicitors at the time that the Notice of Discontinuance was filed.[29] The Respondent relied upon Laramie & Caul at [14] which is discussed above.
[28] Response, ‘Grounds of opposition or further orders’, [1].
[29] Transcript P9:L23-P10:L5; Respondent’s Outline of Submissions, filed 30 October 2023, [7].
The Notice of Discontinuance was filed 56 days after the Substantive Application was filed. The Respondent had not filed material responding to the Substantive Application and Form 2 at the time the Notice of Discontinuance was filed.
The events referred to in the Substantive Application occurred between 15 March 2022 and 3 October 2022, with the Letter of Termination sent on 3 October 2022 one (1) year and four (4) months ago. If the Substantive Application were allowed, the passage of time between the relevant events in question and any filing of material or trial is likely to be around two (2) years. Any witnesses and affidavit material would have to speak to events that occurred a notable amount of time in the past. The status of relevant witnesses is unknown. Four (4) months passed between the filing of the Notice of Discontinuance and the filing of the Reinstatement Application. The Respondent was entitled to proceed on the basis that the Substantive Application had been dismissed for good and the proceeding had been finalised.
The Applicant has produced little to no evidence that dismissing the Reinstatement Application would result in injustice to her. Any injustice to the Applicant would only arise if the Substantive Application had significant merit and the Applicant was not granted leave to reopen and pursue a matter containing reasonable prospects of success. I accept that allowing the Reinstatement Application may result in some injustice and prejudice to the Respondent given the passage of time.
Reasonable prospect of success
Reasonable prospect of success concerns the merits of the Substantive Application and whether it is more likely than not that the Applicant will be successful in pursuing the orders she seeks. In NACT of 2011 at [38] to [41] Jacobson J considered it relevant that even if the matter was reinstated there was no error of law evident on the facts and the applicant’s case would not be successful.
The Court has before it the Substantive Application and Form 2 filed by the Applicant. Rule 4.02 of the GFL Rules requires that “an application must precisely and briefly state the orders sought and the basis on which the orders are sought”. The Form 2 alleged the following:
(a)The Applicant was repeatedly bullied by her manager Ms Simone Fox, which included:[30]
[30] Part G – Contravention(s) alleged’, [2] and [5].
(i)Denigrating comments about the Applicant’s wage;
(ii)Overloading the Applicant with work and failing to provide the Applicant with additional support as requested by the Applicant;
(iii)Speaking to the Applicant in a belittling manner in the workplace;
(iv)Making unreasonable requests for the Applicant to work out of hours knowing the Applicant cared for two (2) young children;
(v)Refusing to make alternative arrangements regarding work hours; and
(vi)Making comments in a nasty way alluding to the Applicant’s probation period and potential termination.
(b)The Applicant was in a de facto relationship with another employee for a significant period of time until mid-June 2022.[31]
(c)The Applicant suffered symptoms relating to her mental health because of the bullying behaviours of Ms Simone Fox and sought treatment as a result.
(d)The Applicant began attending upon a general practitioner.
[31] Part G – Contravention(s) alleged, [3].
The Form 2 made substantial allegations and attached: the WorkSafe Complaint; the Applicant’s contract of employment; a letter dated 29 June 2022 confirming the Applicant’s employment; the Letter of Termination; and the Fair Work Commission Certificate Under Section 368, dated 21 November 2023. The Applicant’s affidavit material largely provides evidence in relation to the Applicant’s mental health, medical treatment and medical certificates.
The Applicant’s 17 July 2023 Affidavit recounts the events and allegations described in the Form 2 and attaches: the Complaint Email chain; an email from the Respondent announcing the Applicant’s departure to other employees; and positive Google reviews about the Applicant. There is little evidence relating to the allegations within the Form 2 and whether the adverse action was taken for the prohibited reasons alleged. I note that the Applicant intends to continue acting on her own behalf. I further note that, based on the Form 2, the Applicant would have to establish that adverse action was taken, which is evident as she was terminated, and that she exercised one or more workplace rights. The onus would then be on the Respondent to prove that the adverse action was not taken for reasons including the exercise of the Applicant’s workplace right.
As recorded above, the Respondent did not file material addressing the Form 2 and providing the reasons for the Applicant’s dismissal prior to filing of the Notice of Discontinuance. In relation to this proceeding, the Respondent was not required to provide evidence relating to the Substantive Application, save as to information that would assist the Court in determining whether the Substantive Application should be reinstated. The Respondent’s material that is relied upon narrowly addresses the criteria that the Respondent submitted is relevant to applications for reinstatement after a notice of discontinuance has been filed.
The Respondent has provided the ‘F8A Response’ filed by the Respondent with the Fair Work Commission on 10 November 2022 (FWC Response).[32] The FWC Response opposes the Applicant being reinstated in her role at the Respondent and the Applicant receiving compensation on the basis that the employment relationship had broken down and that the Respondent did not breach general protection provisions in the Fair Work Act.[33] The Respondent provided the following information relating to the reasons for the Applicant’s dismissal:
(a)The Applicant reported to Ms Hanssen, who commenced in August 2022, and was subject to a six (6) month probation period.
(b)The Applicant was dismissed during her probationary period because she failed to undertake her role with competence and raised issues with tasks that were part of her job description but she did not want to do.
(c)Ms Hanssen had received feedback that the Applicant’s performance was not satisfactory. Towards the end of the Applicant’s probation, the Applicant and Ms Hanssen had discussed the extension of the Applicant’s probation, which the Applicant agreed to.
(d)Bullying allegations were first raised with Ms Hanssen on 23 September 2023. Ms Hanssen began investigating and offered that the Applicant sit somewhere else at work. Ms Hanssen also requested further information from the Applicant which was not provided.
(e)Ms Hanssen discussed the bullying allegations with the Applicant and believed the Applicant was not being treated differently and many of the complaints related to undertaking aspects of the role the Applicant was supposed to undertake, such as rotating on reception desk, weekend shifts and the out of hours call roster.
(f)The Respondent asked for proposals on how the Applicant could manage her duties working from home and it was explained to the Applicant that it could be difficult with in person meetings.
(g)Ms Hanssen expressed to the Applicant that the matters complained of where not a result of bullying and that the tasks she was being asked to do were required of all members within the team.
[32] Affidavit of Jennie Tran, affirmed and filed 1 August 2023 (1 August 2023 Tran Affidavit), [5] and 5-17.
[33] 1 August 2023 Tran Affidavit 14.
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.
The Applicant’s readiness to now proceed with the matter does not justify or warrant the setting aside of a validly and intentionally filed Notice of Discontinuance in circumstances where the evidence does not indicate: reasonable prospects of success; that the Applicant would suffer injustice if the matter is not reopened; or that the Respondent would not suffer prejudice if the matter were reopened.
CONCLUSION
Having considered the authorities and evidence before the Court, I am satisfied that this matter does not warrant the Court’s discretionary power to set aside a notice of discontinuance in the interests of justice. The Reinstatement Application must be dismissed.
The Respondent sought that the Applicant pay the Respondent’s costs.[34] The Respondent did not make oral or written submissions relevant to s 570(1) or (2) of the Fair Work Act or as to the amount of costs. I will make no orders as to costs.
[34] Response, ‘Further orders sought by the respondent/s’ 3.
Orders will be made accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Her Honour Judge C.E. Kirton KC. Associate:
Dated: 22 February 2024
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