Boncales v Secretary, Department of Education

1. The Respondent handed up an outline of written submissions and made brief oral submissions. The respondent's submissions may be summarised in this way:

(1) Parts 12, 18 and 36 of the UCPR apply to proceedings before the Commission and govern notices of discontinuance, motions filed in the Commission, and the Commission's ability to set aside and vary judgments and orders.[6] None support a power to set aside a NOD:

(a) The legislature intended that whilst a NOD under UCPR 12.1 did not extinguish underlying rights (UCPR 12.3), any attempt to pursue those rights would be by way of fresh proceedings rather than by setting aside a NOD. Unlike other parts of the UCPR, there is no provision in Part 12 or elsewhere to permit application to set aside an NOD. The Applicant is seeking to circumvent UCPR 12.3 and the out of time issues that would arise on any such fresh proceedings, and for this reason the Motion should be dismissed.

(b) It is implicit in UCPR 18.1 that a motion may only be made in extant proceedings. These proceedings were ended on 25 August 2025. There are no active proceedings in which the Motion can be filed and heard. The motion is invalid. This is the approach taken by Courts in similar circumstances regarding the setting aside of consent orders dismissing a matter: see Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 per Handley JA where it was observed: "...it is ...established that the jurisdiction to set aside a consent order on such a ground should be involved by a new action brought for that purpose and not by a motion in the original proceedings...". There is a distinction between the "dismissal" and "discontinuance" of proceedings, but the absence of an equivalent provision in the UCPR to what is found in Division 4 of Part 36 of the UCPR (relating to dismissed proceedings) reinforces that the proper approach in circumstances such as these is reflected in UCPR 12.3 by way of fresh proceedings[7]. The motion is invalid and should be dismissed.

(c) UCPR Part 36, being the power relied upon by the Applicant in the Motion, does not apply to proceedings discontinued by consent under UCPR 12.1(1)(a): there is no decision, judgment or order of the Commission when a matter is discontinued under that Rule. The Applicant's reliance on Part 36 of the UCPR is misplaced. The motion should be dismissed.

(2) If, contrary to the Respondent's primary argument the Commission finds there is the capacity to consider the Motion in the former unfair dismissal proceedings, it should be refused. By parallel of reasoning with the approach taken when setting aside dismissed proceedings under UCPR Part 36, any such discretion should be exercised "sparingly and with caution" having regard to the importance of the finality of litigation - any such discretion "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them"[8]. The circumstances in which such a discretion may be considered were discussed in Laramie v Caul [2018] FCCA 1371, MZZIO v Minister for Immigration and Anor [2014] FCCA 618, albeit both need be considered in light of the subsequent Full Court decision in Chen v Monash University [2016] FCAFC 66 at [46] - [47]. None of those circumstances apply here. The Commission would accept what was said by the Court in Dalal & Dalal (No.2) [2019] FCCA 3332 at [61] - [62], and in particular "Just as parties cannot simply have final consent orders set aside because they regret agreeing to them, parties should not be able to simply withdraw a notice of discontinuance because they changed their minds".

(3) It has been held a NOD filed due to mistake or duress may be set aside[9], but there is no relevant mistake or duress here:

(a) There is no claim of duress. To the extent there may have been concern arising from the potential Mr Sharma may not have been given leave to appear, that was addressed by the Commission prior to the NOD being filed, and was expressly disavowed by Mr Sharma as a reason for the NOD.

(b) The medical records at Ex 2 to 8 are entirely unsatisfactory. They are inconsistent in the description of diagnosis. They are inconsistent as to whether the Applicant was taking medication. They say nothing about the impact of the Applicant's condition on her ability to make rational and informed decisions at any time. They certainly do not permit a finding that as at 25 August 2025, the Applicant's capacity to make decisions was so corrupted by any medical condition (and the evidence about what medical condition she may have is entirely unsatisfactory in any event), that her decision to discontinue the proceedings was not a genuine informed decision. The evidence does not explain how her medical condition changed overnight such that she could then make a rational decision the following day. The evidence, including the chronology of events, is more consistent with the Applicant simply having changed her mind about discontinuing the proceedings. What happened between the discontinuance of the proceedings mid-morning 25 August and the time the motion was filed the next day, that led the Applicant to the realisation that she could not secure casual teaching with the Respondent absent having her case heard is entirely unexplained. It is entirely within her knowledge. At the Directions hearing on 29 August 2025 she was directed to provide that explanation in her affidavit. She hasn't. The Commission would not accept the Applicant's claimed misunderstanding of her ability to pursue future employment with the Respondent, absent cross-examination.

(c) To the extent the Applicant suggests she was operating under some misunderstanding, there is no evidence of any relevant mistake. There is no evidence that on 25 August 2025 the Applicant did not understand the effect of the NOD, or did not understand what she was signing when she signed the NOD. Her suggested misunderstanding in Ex 1 at [2] - [4], was not a misunderstanding about what the document was (ie the NOD), or the effect of the NOD on the continuation of the proceedings. Her misunderstanding appears to be whether her dismissal and the circumstances surrounding her dismissal meant she could no longer work for the Respondent in any teaching capacity. That is not a relevant mistake. That reflects no more than the Applicant having changed her mind, after she realised that the Respondent would not employ her to teach. The Respondent's position as to her future teaching had been very clear in both the Penalty Letter and the Dismissal Letter. How it was misunderstood was not explained. In any event, that is not a mistake about the effect of a NOD on the continuation of her proceedings. Absent the evidence being tested, the Commission would not accept the Applicant had any such misunderstanding.

(4) The chronology of events, the absence of any proper explanation from the Applicant about how and why the proceedings were discontinued, and what happened overnight that caused her to change her mind, supports a finding that the NOD and the Motion to have it set aside, are a tactic - they are both steps in a scheme to avoid the Applicant having to get in the witness box on 25 August 2025, and to force an adjournment that they knew would be opposed if it was made, and as such an abuse of process. It should be dismissed.

(5) The Motion is frivolous or vexatious, and/or has been instituted without reasonable cause. If the Motion is dismissed, the Respondent seeks an opportunity to be heard on costs.

1. In the course of argument I raised with the parties whether section 170 of the IR Act could be applied to a situation in which proceedings were discontinued in reliance upon UCPR 12.1(1)(a), but the "consent" was vitiated by some circumstance such that it was not a genuine informed consent. The Applicant appeared to embrace that proposition. The Respondent's reply, as I understood it, was firstly no because there are no such proceedings in which the motion to bring that contention could be brought (the proceedings having been discontinued), and no because in any event the evidence does not permit a conclusion that the Applicant's decision to discontinue was vitiated in some relevant way.

1. Part 7 of the Civil Procedure Act 2005 (the CPA) (judgments and orders), and Party 36 of the Uniform Civil Procedure Rules (UCPR), apply to the Commission[10]. The central provision of the scheme for judgments and orders in the CPA is s 90, which mandates the Commission "at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires". UCPR rule 36.1 provides (amongst other things) such judgment or order may be made "At any stage of proceedings". UCPR rule 36.1A (and, if settlement arose from conciliation in the Commission, s174 of the IR Act) facilitates the making of any judgment or order by consent in terms of an agreement between the parties in relation to the proceedings, which would include an order that proceedings be dismissed (see for example, s 174(a) of the IR Act).
2. That central obligation in s 90, more specifically the Court's assessment of what "the nature of the case requires", is informed by s 56 which provides "The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issue in the proceedings", and "The Court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or any such rule"[11].
3. Where, in the exercise of the power in s 90 (no doubt usually informed by other provisions of the IR Act, CPA or relevant rules), the Commission dismisses any proceedings generally, or in relation to any cause of action, or in relation to the whole or any part of a claim for relief in any proceedings, such a dismissal "does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from brining fresh proceedings or claiming the same relief in fresh proceedings"[12] unless the order dismissing the whole or any part of proceedings follows "a determination on the merits in any proceedings", in which case "the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court"[13].
4. Leaving aside dismissal of proceedings (or any claim in proceedings) on the merits (including where satisfied proceedings or any claim are frivolous or vexatious[14], or on the evidence cannot succeed[15]), dismissal of proceedings is contemplated by a number of the rules in the UCPR[16]. The usual rule in such cases is an order for costs against the plaintiff (UCPR r 42.20). There are a number of circumstances in which the UCPR expressly contemplate a notice of motion being filed in a matter that has been dismissed, seeking to set aside or vary the order dismissing the proceedings (see for example, UCPR 36.16).
5. Part 18 of the UCPR deals with Motions, UCPR 18.1 providing (emphasis added): "An interlocutory or other application is to be made by motion unless these rules otherwise provide". Rules 18.2 and 18.3 deal with the requirement to give notice of a motion, and the content of any such motion. The UCPR expressly contemplate service on a person who is not an "active party"[17]. An "active party" is defined in the Dictionary to the UCPR as:

active party, in relation to any proceedings, means a party who has an address for service in the proceedings, other than -

(a) a party against whom judgment has been entered in the proceedings, or

(b) a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued, being, in either case, a party against whom no further claim in the proceedings subsists.

1. UCPR Part 12 entitled "Discontinuance, withdrawal, dismissal and setting aside of originating process", applies to this Commission. It deals with discontinuance of proceedings in Division 1, relevantly:

"12.1 Discontinuance of proceedings

(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant -

(a) with the consent of each other active party in the proceedings, or

(b) with the leave of the court.

(2) A notice of discontinuance -

(a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and

(b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.

(3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent.

(4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect.

(5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.

...

12.3 Effect of discontinuance

(1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.

(2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.

1. UCPR 12.3 reiterates the position of a discontinuance at common law: Owners of the Cargo of Kronprinz v Owners of the Kronprinz (The Ardandhu) (1887) 12 App Cas 256[18].
2. UCPR r 12.4 and r 42.19, operate in conjunction with one another. Rule 42.19 provides if proceedings are discontinued under Rule 12.1, unless some other arrangement forms part of the terms of a discontinuance or the Court otherwise orders, the usual rule is "the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued". Rule 12.4 deals with a situation where fresh proceedings for the same or substantially the same cause of action are commenced (as contemplated by rule 12.3) but the defendant's costs remain outstanding. Unsurprisingly, in that circumstance rule 12.4 provides "the Court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit" (as it may in similar circumstances were proceedings were initially dismissed other than on the merits: UCPR 12.10).
3. Part 42 of the UCPR dealing with costs does not apply to proceedings before the Commission when not in Court Session[19].
4. There are a number of provisions of the IR Act that are of potential relevance, including sections 162, 163 and 170. Section 162 substantively provides "The Commission may, subject to this Act, determine its own procedure". Section 163 relevantly provides the Commission:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(1) the power to "make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice", "at any stage of the proceedings" and on such terms thought fit in s 170(1) and (2) of the IR Act (emphasis added); and

(2) the power to " wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings" in subsection 170(4) operates in connection with s 170(3) (emphasis added): "If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings".

1. Section 170(4) could potentially permit a Notice of Discontinuance, being a step taken in the proceedings, be set aside if it could be shown the regulations or a rule of the Commission were not complied with, but that is not this case.
2. That somewhat lengthy discussion around the obligation to give such judgment as the nature of the case requires, the effect of dismissal of proceedings otherwise than on the merits, and the means by which proceedings that stand dismissed otherwise than on the merits may be returned to the list, is contextually important to one argument advanced by the Respondent on the application of Part 18 of the UCPR, which I will return to shortly.

1. There are two questions arising on this motion:

(1) Does the Commission have a discretionary power to set aside a NOD regularly prepared and filed with the Commission in accordance with UCPR 12.1(1)(a); and if so

(2) Ought the discretion to set aside the NOD of 25 August 2025 be exercised in the Applicant's favour on this occasion.

1. As would be apparent from the recitation of Background, this case does not involve discontinuance as part of a settlement of the proceedings. On the first day of the hearing the Applicant, through her representative (her husband), sought the consent of the Respondent to discontinue the proceedings with no order as to costs. Part 42 of the UCPR does not apply to the Commission. The usual course of events in the Commission in proceedings under Part 6 of Chapter 2 of the IR Act, is the parties bare their own costs: see s 181 of the IR Act. The Respondent, unsurprisingly, gave consent. Other than confirming the usual rule as to cost, that consent was not given on condition of any kind (such as a promise to not bring fresh proceedings). There was no consideration passing between the parties that could be said to evidence a simple contract in settlement of the proceedings.
2. The Applicant relied on UCPR 36.16(2)(a) to set aside the NOD. UCPR 36 deals with a decision or order of the Commission, and 36.16(2)(a) deals specifically with the power to set aside a "default judgment", which is defined to mean a "judgment given under Part 16". Part 16 of the UCPR does not apply to the Commission: there was no decision of this Commission given under Part 16 of the UCPR, or at all. As the Respondent correctly submitted, a NOD reliant on UCPR 12.1(a), does not involve any deliberative decision or Order of the Commission[20]. An NOD reliant upon UCPR 12.1(1)(a) may not be set aside under UCPR 36.15 of 36.16.
3. The Respondent is also correct in its submission that the UCPR does not otherwise expressly provide a power to 'set aside' a NOD upon the filing of a notice of motion, equivalent to that found in relation to UCPR 36.15 or 36.16. That does not, however, mean that there is no power otherwise found within the CPA, UCPR or the IR Act to enable an NOD to be set aside in an appropriate case.
4. The Respondent relied upon Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 for the broad proposition that a motion under Part 18 of the UCPR was not available to set aside a NOD, the central contention being that resort to fresh proceedings is the appropriate course (consistent with UCPR 12.3) because there are no proceedings otherwise in existence. With respect, Spies is not authority for that broad proposition. Spies is authority for the more narrow proposition (discussed by Handley JA at some length at 699 - 700) for which it (amongst other authorities) was cited by the High Court in Clone Pty Ltd v Players Pty Ltd (In Liquidation)(Receivers & Managers Appointed) & Ors [2018] HCA 12 at [32] (footnotes removed, emphasis added):

"Even where the separate procedure of a motion for a new trial might be concurrently available, if fraud is alleged then a fresh action will generally be the appropriate application relying upon the power to set aside a perfected judgment of any court for fraud. Independent proceedings, even where the application is to set aside an appellate court's decision, can permit "the whole issue [to] be properly defined, fought out, and determined".

1. The particular passage of the judgment of Handley JA at RSUB[17] looks to an additional proposition, but makes clear, by reference to the extract of the judgment of the High Court in Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-244, it was directed to the setting aside of a consent order made in consequence of a compromise, where the application to set aside the compromise is on grounds "sufficient to render a simply contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like". So much is clear from the extracted passage at RSUB[17], in which Handley JA's comment about fresh proceedings being directed to "the jurisdiction to set aside a consent order on such a ground should be invoked by a new action...". That is not this case. There is no compromise that is sought to be set aside. There is no suggestion of fraud, or any of factual proposition of the kind that ought be specifically pleaded if relied upon to set aside a simple contract.
2. This is not a case in which the Applicant is seeking to undo a settlement agreement[21]. What is sought in this motion is more akin to setting aside a judgment or order dismissing proceedings under Division 4 of Part 36 of the UCPR, which may be done by way of motion in the previously extant proceedings (an example of an "interlocutory or other application" that may be made by way of motion under UCPR 18.1).
3. Parts 3-10 of the Civil Procedure Act 2005 (NSW) (the CPA, see CPA s 4, Schedule 1) and much of the UCPR (including Parts 2 and 12) apply to proceedings before the Commission when not in Court Session (UCPR rules 1.5 - 1.8). The overriding purpose of the CPA and the UCPR is to facilitate the just quick and cheap resolution of the real issues in proceedings (CPA, s 56(1)). In exercising any power given by the CPA or the UCPR, the Commission must seek to give effect to that overriding purpose (CPA s 56(2)). UCPR 2.1, which applies to proceedings in the Commission, provides (emphasis added):

"The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings".

1. That rule provides a "very broad""[22] albeit "not unlimited"[23] power and reflects the statutory command in s 56 of the Civil Procedure Act 2005 (NSW) that the overriding purpose of the Act, and of the rules of Court, is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings"[24].
2. To that may be added (if indeed more was needed), the specific powers found in ss 162 and 163 of the IR Act. Section 162 of the IR Act provides "The Commission may, subject to this Act[25], determine its own procedure". Section 163 of the IR Act provides the Commission, when not sitting in Court Session:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

1. The equivalent of s 163 of the IR Act in other legislation has been found inadequate of itself to ground a power to set aside a NOD[26]. I agree. Section 163 is "not a source of power, rather it is a matter which must be taken into account in the exercise of the Commission's discretion in performing functions or exercising powers found elsewhere in the Act" [27], (or the CPA or UCPR). As for s 170 of the IR Act, there is no non-compliance with the IR Act, regulations or an applicable rule involved in these proceedings (cf s 170(4)), so subsections 170(3) and (4) can be put to one side.
2. It has long been recognised that discontinuance of proceedings did not deprive the Court of jurisdiction to deal with certain matters raised on motion in those proceedings thereafter (reflecting the position when proceedings are dismissed otherwise than on the merits). For example, as to costs[28]. In KBRV Resort Operations Pty Ltd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516, Sheller JA, with whom Ipp AJA and Grove AJA agreed, said:

"...the fact that [a NOD], was effective to terminate the whole action does not mean that thereafter there were no proceedings between the parties...The discontinuance could be rescinded as in the Owners of the Cargo of the "Kroprinz" not in separate proceedings but in the proceedings in which the notice was filed. The proceedings did not cease to exist but remained. Further steps could be taken by the parties in the proceedings such as rescission of the notice of discontinuance or removal into the Supreme court. Whether such order should be made was of course another question"[29].

1. In Re Criminal Property Confiscation Act 2000 (WA); Ex parte DPP (WA) [2002] WASC 117; (2002) 130 A Crim R 581 it was said at [26] (emphasis added):

"Certainly, again speaking as a general proposition, a court has a discretion whether or not to give leave to allow the withdrawal of a notice of discontinuance and such leave ordinarily would only be given when it would be more likely to allow justice to be done and that the administration of law and justice may well be served by a power to reinstate proceedings: see Fowler v Renmark and FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 288 per Gaudron J"

1. The reference in the extract is to Fowler v Renmark & Anor (1988) 51 SASR 506 at 507 - 508. There, a rule (rule 3.04 of the South Australian Supreme Court rules) empowered the Court "to act at any time to give effect to the purpose of these rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so: ... (b) give leave to any party to amend, alter or withdraw any step in a proceeding..."[30], was found sufficient to enable the withdrawal of an NOD. In that context Cox J of the South Australian Supreme Court said (at pg 507-508):

"There is no doubt that the effect of a discontinuance is to bring an action to an end. In a line of cases, beginning with Whistler v Hancock [1878] UKLawRpKQB 3; (1878) 3 QBD 83, most of them relating to self-executing orders, it was held that once an action had been dismissed, even for non-compliance with a procedural direction, and so was at an end, the court had no inherent power to revive it. The unfortunate consequences of such a rule soon being apparent, considerable judicial ingenuity was spent thereafter in devising ways of avoiding in certain cases its strict application - see, for example, Carter v Stubbs (1880) QBD 116 - but the soundness of the underlying reasoning was not generally doubted. It was applied by the High Court in Goodwin v Southern Tablelands Finance Co Pty Ltd (noted (1968) 42 ALJR 309) and Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 and Gamser v Nominal Defendant (1977) 136 CLR 145. Two things are to be noted, however, about the rule in_, Whistler v Hancock_ (supra). Its authority in this country has been severely qualified, if not practically destroyed, by the recent decision of the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 62 ALJR 216. (Whistler v Hancock had already been overruled in England. See Samuels v Linzi Dresses Ltd [1981] QB 115.) Secondly, Whistler v Hancock and the cases that followed it were concerned with the inherent jurisdiction, whereas the plaintiff here relies upon a rule of court. Cf the FAI case (supra).

In my opinion, par (b) of r 3.04 should not be interpreted in a way that would deny the Court's power to allow a notice of discontinuance to be withdrawn. No doubt there is a sense in which, the action being at an end, the different steps that were taken while it was extant are thereby, in effect, obliterated, so that no order can now be made effectually with respect to them. However, it is also correct to say that, if the notice of discontinuance was a step in the proceeding at the time it was filed and delivered, nothing done thereafter can deprive it of that historic character. It is of the nature of par (b) of r 3.04 that it will always operate retrospectively, in the sense of acting upon something that has happened in the past, and there is no obvious justification for excluding from its operation a step that was taken in an action that is no longer on foot. Of course, when it comes to the exercise of a discretion to permit the step to be withdrawn the Court will give much weight to the general principle that there must be an end to litigation, but that is another matter. So far as the power is concerned, it is large enough, in my judgment, to permit the withdrawal of a notice of discontinuance, even though that means that the Court will be making an order that has the effect of reviving a dead action. A liberal construction of r 3.04 - if that is what it is - is more likely to allow justice to be done, and is certainly consonant with the general purpose of the Supreme Court Rules as explained in Rule 2."

1. As Cox J observed in Fowler, the termination of a proceeding via a NOD is but a formal step taken in that proceeding[31]. Because it is a step in the process of litigation, it can be an abuse of process and set aside[32]. I would agree with the observations of the Full Court of the Federal Court in Chen that relief against a discontinuance in favour of an applicant to prevent an abuse of process "will only arise where the ...[party] ... who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit"[33]. The need for the absence of complicity in the party filing the notice of discontinuance reflects the general notion that abuse of process in connection with the use of a power or process for an alien purpose, is directed to the predominant purpose of the moving party[34]. I will return to notions of abuse of process below.
2. I am satisfied UCPR 2.1 affords power to order the NOD filed in Court on 25 August 2025 be "set aside", if to do so was convenient for the just, quick and cheap disposal of the proceedings. I am not, however, minded to exercise my discretion in favour of the Applicant in this case. To do so would not, in my view, on the evidence, facilitate the achievement of the overriding purpose of the CPA and UCPR, nor would it be consistent with my obligation to "act according to equity, good conscience and the substantial merits of the case ...". My reasons for that may be shortly stated:

(1) Contrary to the view she seems to hold (as reflected in her affidavit), the Applicant:

(a) Has no "statutory right to reinstatement" to preserve (cf affidavit at [9]);

(b) No longer has "a fundamental right to be heard in these proceedings" (cf affidavit at [1]). The Commission did not summarily terminate her proceedings[35]. She certainly had such a right prior to her discontinuing the matter, but having done so, the only means by which those proceedings may continue is by some dispensation by the Commission (either by this motion, or failing that, but an extension of time to file any fresh proceedings should they be brought). She of course has the right to be heard on this motion, and has been, but a right to be heard is not a right to succeed.

(c) There is no "denial of natural justice" visited upon the Applicant (cf affidavit at [1]) by either the Commission or the Respondent, by the Applicant being held to her choice to first seek the Respondent's consent to discontinue the proceedings, and for the proceedings to come to an end by her election to discontinue when that consent was forthcoming. There was no inducement or promise made by the Respondent about the future performance of work for the education service. The correspondence that preceded her dismissal was emphatic and there is nothing in the evidence before me that explained how it could be the subject of any misunderstanding, or how any misunderstanding was realised. The Commission expressly warned the Applicant that there was no other route to reinstatement other than these proceedings immediately prior to the NOD being filed.

(2) Where fresh proceedings may be commenced (because the underlying merits of a cause of action or claim have not been determined), the significant weight ordinarily afforded the finality of litigation may be seen as having significant, but somewhat diminished, weight. As Gaudron J observed in FAI General Insurance Co Ltd v Southern Cross Exploration NL[36], by reference to the reasoning of Barwick CJ in Bailey v Marinoff[37], "a distinction should...be made between orders operating by way of final determination of the matter in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings"[38]. In that case, her Honour remarked (at 288):

"Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may well be served by a power to reinstate proceedings."

The Applicant may, whatever my view on this application, initiate fresh proceedings alleging her dismissal was harsh, unjust or unreasonable[39]. Where discontinuance of proceedings brings the proceedings to an end, the later commencement of fresh proceedings may work no unfairness to the defendant[40]. For that reason, the weight to be afforded notions of finality of litigation, albeit ever present as a consideration, are somewhat reduced in this context. The obvious issue standing in the way is the time limitation imposed by s 85 of the IR Act, albeit an extension of time may be possible (see s 85(3)). The Applicant did not raise this matter, but I recognise the very fact that a limitation period impairs the ability of a party to pursue "fresh proceedings", in an appropriate case, may be a matter that "strongly favours" the grant of leave to withdraw an NOD[41]. Given the obligation to exercise discretion in dealing with procedural matters in a manner best suited to facilitate the just, quick and cheap disposition of the proceedings, if the Applicant had satisfactorily explained how the matter came to be discontinued, and otherwise demonstrated a sufficiently arguable case, I would consider it appropriate to set aside the NOD (particularly where, as here, the preparations for hearing were essentially complete). But that is not this case.

(3) Despite my attempts to guide the Applicant to ensure she provided an explanation for how and why the proceedings came to be discontinued in the affidavit I directed she provide, she failed to do so. This factor warrants further consideration below. It is sufficient for present purposes to record that in the absence of any proper explanation for how the Applicant's position came to change, the most likely rational and logical inference is that she simply changed her mind. If she had a reason that reflected more favourably on the Applicant's change of position, she could (and should) have said so. It is exclusively a matter within her knowledge.

(4) Fourth, I do not accept the Respondent would suffer no relevant prejudice, although it should be immediately said such prejudice would not be sufficient of itself to reject the application if it otherwise appeared meritorious. The discontinuance happened on the first day of a 7-day hearing. The Respondent had briefed counsel to appear and may well have made arrangements for various witnesses to be available. Costs thrown away are likely to have been significant. Dates for any future hearing of that magnitude are unlikely to be available for some time. The Respondent will no doubt incur further costs associated with the preparation and conduct of that further hearing. UCPR Part 42 does not apply to the Commission, and in my preliminary view, s 181(2)(c) of the IR Act would not appear to enable costs orders to be made to ameliorate that prejudice. I accept that on the evidence there is no reason to think witnesses would likely become unavailable or that any delay would be such as to materially prejudice recollections. Nonetheless, the Respondent would suffer some prejudice in the form of irrecoverable costs if the matter were restored and permitted to run. The efficient use of the public resources of the Commission to deal with this and other matters competing for time before the Commission, is also a significant consideration.

(5) Fifth, one question that must always arise in an application seeking to restore a matter to the list whether dismissed (other than on the merits), or discontinued, must be whether any useful purpose would be served by setting aside the discontinuance or dismissal. That invites a consideration of the Applicant's prospects of success - or more accurately, whether there is a real (as opposed to theoretical) likelihood that it would be unjust to hold the Applicant to her decision to discontinue the proceedings (and thereby deny the Applicant the opportunity to have the matter finally determined on its merits). For this purpose, the Applicant need not demonstrate a likelihood of success. The Applicant addressed these matters in paragraphs numbered [9] - [23] of the Grounds in the Motion (and paragraphs [10] and [11] of Ex 1). Because the Applicant was not legally represented, I also reviewed her submissions (in chief and reply), and her statements of evidence (in chief and reply). Taking the matters outlined in the Grounds of the motion (which relate to the adequacy and fairness of the assessment of performance during the TIP, and the fairness of the conclusion the Applicant failed the TIP despite some performance improvement over its term), and the other matters raised in the submissions at their highest, conscious that the protection of children is to be the paramount consideration[42], I am not satisfied that there is any real likelihood that it would be unjust to refuse this application.

1. As noted above, the content of the Applicant's affidavit (Ex 1, extracted above) and the extent of any explanation for the discontinuance, warrants some greater consideration. Paragraphs[2] - [4] and [6] contain the only matters potentially explaining why the matter was discontinued:

(1) Paragraphs [2] - [4] essentially describe the Applicant having operated under a mistaken view that if she discontinued these proceedings she may have been able to continue casual employment with the Respondent (it is not clear what "distinction" she is referring to, but that seems to be the substance of what she is saying). The reference to her "state of mind" in paragraph [4], appears to refer to paragraph [6], in which she says she was "overcome with anxiety and not in a proper state of mind to make an informed decision about discontinuing my case".

(2) Mr Sharma invited me to accept, based on the evidence showing the Applicant had a mental health condition (see Exhibits 2 - 8), and her evidence in the affidavit at [6], that on 25 August 2025 she was overwhelmed by anxiety and did not understand that by discontinuing the proceedings she would not be able to perform casual work for the Respondent.

1. I accept the Applicant was very anxious on 25 August 2025. Whilst the Applicant does not say this in the affidavit in terms, I infer the anxiety on 25 August 2025 arose (if not entirely, then in no small part) from the fact she was to give evidence and be cross-examined that day. That appears to me consistent with three facts:

(1) In the course of argument on 25 August 2025 (in particular in reply to submissions that the NOD and Motion were a tactic and abuse of process), Mr Sharma had indicated part of the reason for the NOD was the Applicant was not fit to give evidence on 25 August 2025, and that his wife's desire to not get in the witness box was not some tactic, but because of a genuine medical condition[43];

(2) The Applicant was in the Commission premises, but not in the court-room, when the matter was discontinued on 25 August 2025;

(3) The Applicant's reluctance to, as the Respondent said, take the few short steps to the witness box at the hearing of this motion on 3 September 2025, to answer questions in cross-examination arising from her affidavit filed in support of this motion, was again because of the Applicant's claimed unfitness to give evidence. It was that unfitness to give evidence at the hearing of this motion because of that mental health condition that was relied upon by Mr Shama to support a grant of leave to rely upon the Applicant's affidavit on the motion absent cross-examination. That same medical evidence was relied upon to establish the Applicant unable to give instructions to discontinue the matter on 25 August 2025.

1. I can readily accept that the prospect of being cross-examined by experienced counsel, such as Mr Britt who appeared for the Respondent, on matters relevant to her performance, including during the course of a teacher improvement program, would be anxiety provoking, especially for someone suffering from a mood disorder and/or anxiety condition.
2. I do not, however, accept that the evidence (including any reasonable inferences that are available) enables me to find, on the balance of probabilities, that on 25 August 2025 the Applicant's capacity was so corrupted by her mental health condition as to render her incapable of making rational and informed decisions. The Applicant was fit to give instructions that enabled her to file a reply affidavit on 21 August 2025 (in which she said, amongst other things at [3] "I still see myself as a teacher and NESA have granted me exemption for Leave of Absence and I plan to return to casual teaching with the Department."). The Applicant was fit to give instructions that enabled her to file submissions in reply on 21 August 2025, in which the Applicant argued her treatment was "markedly harsher" than that visited upon the applicant in Buchanan[44] because unlike the Applicant in those proceedings, she had been "denied casual work"[45] (a proposition she was no doubt able to understand in light of what was clearly said in the Penalty Letter and the Dismissal Letter about the NTBE List extracted above). On the account she would have the Commission accept she was, without explanation, fit to understand she could not work casually for the Respondent again on 26 August 2025, but not on 25 August 2025 and despite the fact she was plainly aware on 21 August 2025. Absent the opportunity to test her evidence in cross-examination, I do not accept that on 25 August 2025, the Applicant did not understand that absent an order of this Commission, the Applicant would not be able to return to work for the Respondent as a teacher in any capacity.
3. Even if she were operating under that misapprehension on 25 August 2025, I do not accept that she was operating under a relevant mistake. That is, I do not consider the evidence enables a finding the Applicant's ability to make a reasoned and rational decision was so corrupted by her mental health condition that she did not understand that filing a notice of discontinuance would bring these proceedings to an end:

(1) First, the medical evidence just does not say that. It is one thing to establish the Applicant has a medical condition. It is entirely another to say that that medical condition, on a particular day, led to her being incapable of rational thought or decision making. The evidence does not permit that conclusion.

(2) Second, taken at its highest, the Applicant's evidence is she was (without any suggestion of representation or promise from the Respondent) operating on a mistaken view that if she discontinued these proceedings she may have been able to continue casual employment with the Respondent. Even if that is accepted, as the Respondent argued, that is not a relevant 'mistake' for the purpose of this motion. A relevant mistake would be a mistake about the effect of an NOD on these proceedings. It is not suggested the Applicant did not understand the document she signed on 25 August 2025 was a NOD, or that she did not understand that by signing it she was indicating her desire that these proceedings be brought to an end, or that by bringing these proceedings to an end she would lose the chance to have a decision of this Commission considering whether her dismissal was harsh, unjust or unreasonable. There is no suggestion she did not instruct Mr Sharma to file the NOD (she signed) in Court, or that when he did that, she did not appreciate it would bring the proceedings to an end. Indeed, the very fact she was so anxious would support the conclusion that bringing these proceedings to a close without her having to mount the witness box is precisely what she wanted to have happen. That she subsequently changed her mind does not mean she did not understand or was mistaken or was in some way misled as to what was happening on 25 August 2025.

(3) Third, the affidavit does not explain three important matters:

(a) It does not explain what the Applicant in fact understood about her ability to continue work as a teacher with the Respondent, given the terms of the Show Cause, Penalty and Dismissal letters as at 25 August 2025 (or what led her to that view, particularly in light of what was said in the reply affidavit and reply submissions filed by her on 21 August 2025).

(b) On 25 August 2025, Mr Sharma explained that his wife had lawyers acting for her in other proceedings, and the discontinuance in part was based on the advice she had received from those lawyers. That led me to raise with Mr Sharma a concern that his wife may have been operating on a misunderstanding as to the potential to secure reinstatement with the Respondent from the Personal Injury Commission. Mr Sharma's answers (extracted above) indicated it was understood that reinstatement was not available elsewhere. The proceedings were then adjourned, at which time Mr Sharma could and should have raised that matter with his wife, if he had any concerns arising from that exchange. In Mattner v Director of Public Prosecutions (Cth) [2011] SASC 89; (2011) 252 FLR 239 at [59], Kelly J of the Supreme Court of South Australia (referring to R v Brain [1999] SASC 358; (1999) 74 SASR 92 at [76]- [77]) said:

"It would only be in very unusual circumstances that a person who had filed a notice of discontinuance in the exercise of a deliberate choice based on legal advice by senior counsel, would ever be permitted to withdraw that notice."

The Applicant obviously did not have advice of senior counsel. However, I was advised at the time of the discontinuance that the Applicant chose to discontinue the proceedings after having legal advice about the relief she may be able to receive in other proceedings before the Personal Injury Commission. Having heard that explanation on 25 August 2025, I specifically sought to address any potential misunderstanding as to the Applicant's ability to secure reinstatement in other proceedings elsewhere, with her representative. On the evidence, the Applicant chose to discontinue these proceedings in part based on legal advice and otherwise in the face of my observation she could not secure reinstatement through proceedings elsewhere. The Applicant's affidavit is entirely silent on that exchange with Mr Sharma, despite me having provided her the transcript of the proceedings on 25 August 2025 (at the Directions hearing held on 29 August 2025), and asking her to take that transcript into account in whatever explanation she provided in her affidavit. Moreover, the affidavit does not explain what information she was supplied (or what otherwise changed her position) between the time the matter was discontinued on 25 August 2025, and the time the Notice of Motion was filed on 26 August 2025. Exhibit 1 does not say, for example, she got further advice or clarification from her personal injury lawyers. It does not say, for example, her husband raised with her the exchange I had with him about reinstatement for the first time after the NOD was filed (ie it does not claim representative error). It does not say, for example, she went back and re-read the Show Cause letter and/or Penalty letter and/or Dismissal letter. It says nothing of what transpired over night to cause her to have the NOD set aside.

1. The Respondent is correct in its submission that the Applicant has simply not explained what happened between the time of the NOD and the time the motion was filed, to cause such a dramatic and sudden change of position. In the absence of any proper explanation of why there was such a sudden and dramatic change of position from the Applicant, the most probable explanation (particularly given I have not accepted that the Applicant did not misunderstand the effect of discontinuing these proceedings on her future employment with the Respondent), is she simply changed her mind. As Judge Harland observed in Dalal & Dalal (No.2) [2019] FCCA 3332 at [62]:

"Just as parties cannot simply have final consent orders set aside because they regret agreeing to them, parties should not be able to simply withdraw a notice of discontinuance because they changed their minds."

1. Judge Jenkins of the Federal Circuit and Family Court of Australia, in Newell v Chesterman [2023] FedCFamC2F 1074 at [12] - [17] pulled together a list of considerations that have been considered[46] appropriate when exercising a discretion to set aside a NOD. It is a useful (albeit not exhaustive), list of considerations in determining whether it is convenient for the just, quick and cheap disposal of proceedings to make an order setting aside a NOD:

· Did the applicant knowingly and voluntarily file the Notice of Discontinuance?

· Was a valid explanation given as to why the Notice of Discontinuance was filed?

· Was the filing of the Notice of Discontinuance procured by fraud or duress?

· Was it filed pursuant to a void or voidable agreement?

· Did the filing of the notice otherwise involve an abuse of process?

· Is the setting aside of the notice necessary to ensure that the Court's process does not cause an injustice?

· If the Notice of Discontinuance was set aside, does the applicant have no reasonable prospect of success?

· Is there any prejudice occasioned to either party by the grant of an order setting aside the notice or, conversely, by the refusal to grant such an order?

· Whether in all of the circumstances it is just to set aside the notice and whether on discretionary grounds an order should be made setting aside the Notice of Discontinuance.

1. The NOD in this case was not the product of a void or voidable agreement, or fraud, or duress. On my finding, I am satisfied the NOD was the product of a deliberate decision to terminate the proceedings that took into account (at the least) both the advice the Applicant received as to the availability of compensation through the Personal Injury Commission and her anxiety about giving evidence. There would be prejudice occasioned the Respondent if the application were granted, but of itself this would not be sufficient to warrant its refusal. In consideration of the Applicant's prospects of success, I am not satisfied that there is any real likelihood that it would be unjust to refuse this application. The matter is finely balanced, but I do not consider granting the Applicant's motion would facilitate the just quick and cheap resolution of the proceedings.

1. Given the above, it is strictly unnecessary to deal with this argument. It can, however, be dealt with briefly so it is convenient to do so. The Respondent additionally argued I should dismiss the Applicant's motion as an abuse of process. It was said to be a tactic or device to delay a hearing on the merits. The submission was to this effect: on 25 August 2025 it would appear the Applicant was not fit to give evidence, but rather than make an application for an adjournment on the morning of the hearing (to deal with the anxiety the Applicant describes she was experiencing, or for some other unexplained reason), which the Applicant knew would be strongly opposed and face very real difficulties, the Applicant adopted the disingenuous and improper course of discontinuing the proceedings, but intending to have them reinstated. By discontinuing the proceedings, the hearing would inevitably be vacated. The very next morning, without any proper explanation, the Applicant sought to have the proceedings reinstated. There was, as the Respondent put it, no other rational or reasonable explanation for the unexplained course of action by the Applicant, other than she wanted to avoid the hearing, she knew she was unlikely to get an adjournment, and the NOD and this motion were a tactic to avoid the imminent hearing.
2. There is force in the Respondent's submission that in all the circumstances, including the absence of any explanation for the change in position overnight, that an inference is available that this application is part of a tactic to secure an adjournment by an inappropriate means and as such, an abuse of process. In the course of argument in dealing with the suggestion this application was an abuse of process, Mr Sharma acknowledged that the Applicant appreciated that if an adjournment application had been made, that it would be "strongly" opposed[47]. I should add, the Applicant would have been acutely aware of the difficulty in securing an adjournment on the basis of the Applicant's vaguely described medical incapacity, because a similar application (reliant on what appears to be largely the same material, although I recognise some of the material before me post-dates this decision) was dismissed by the Supreme Court only a matter of days before on 15 August 2025[48].
3. However the Respondent's argument on abuse of process, Iike any abuse of process said to arise from the deployment of legitimate process for an illegitimate end, requires a finding of predominant purpose: in this case, that both the NOD and this application were conceived of as a scheme to secure an adjournment. It is equally plausible that the Applicant, represented by her husband (who was "really concerned" with the Applicant's anxiety[49]) discontinued the proceedings because of her desire to avoid the witness box (aware she could pursue compensation for incapacity in the PIC), but later changed her mind. How and why she changed her mind was not adequately explained, but the fact she simply changed her mind appears to be more consistent with the Applicant's evidence, and frankly, more likely in all the circumstances, than a Machiavellian scheme to avoid the Applicant mounting the witness box at a hearing, particularly when that would be the inevitable product of said scheme albeit at a later point in time.

1. For the foregoing reasons, the Commission makes the following Orders:

(1) The Applicant's Notice of Motion seeking to set aside the Notice of Discontinuance dated 25 August 2025, is dismissed.

(2) Any application for costs in connection with the Applicant's Notice of Motion is to be made within 14 days of the publication of this decision.

[1] LB v Secretary, Department of Education (No.3) [2025] NSWSC 940

[2] LB v Secretary, Department of Education (No.2) [2025] NSWSC 939

[3] See LB v Secretary, NSW Department of Education [2025] NSWSC 892, published 8 August 2025

[4] See Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) at [66] - [70], in particular at [69]: "Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406 ; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914."; see also Chalik v Chalik [2025] NSWCA 136 at [69] - [72]

[8] Referring to Majak v Rose (No.5) [2017] NSWCA 238 at [12] - [13]

[9] Referring to Olofsson v Oloffson [2019] FCCA 3467

[10] See Section 4, Schedule 1 that provides the CPA applies to all civil proceedings before the Commission when not in Court Session, subject to UCPR rules 1.5 and 1.6, noting Schedule 1 Columns 3 and 4 do not exclude either Part 7 of the CPA or Part 36 of the UCPR. Similarly, the Industrial Relations Commission Rules 2022 rules 1.5 and 1.6, and Schedule 1, do not exclude either CPA Part 7 of UCPR Part 36.

[11] CPA s 56(1) and (2)

[14] For example, s 162(2)(h) of the IR Act

[16] See for example, UCPR 6.31(2), 11.6, 12.7 - 12.9, 13.6, 15.6, 20.29, 22.5, 23.9, 29.7, 29.8, 31.36, 42.21, 50.8, 51.8, Schedule 10 rule 3; Schedule 11 Part 2, rules 19,20, 31

[17] Generally, service is only required on an "active party" (UCPR 10.1(1)), but Part 10 contemplates service on someone who is not an active party: see UCPR 10.5, 10.16. UCPR 18.3(1)(c) contemplate a motion being made by a person who is not an active party. UCPR 18.5(b) contemplates service on a person against whom orders are sought that is not currently an active party.

[18] Noted by the Full Court of the Tasmanian Supreme Court in Professional Health Partners Pty Ltd v Spiers & Others (2010) 20 Tas R 126 at [17]

[20] See by way of parallel Buksh v Ramsay Health Care t/a Peninsula Private Hospital [2020] FWCFB 4352 at [19] ; Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [6]

[21] Cf AB v TabCorp [2015] FWCFB 523 referred to at RSUB[25]

[22] Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 at [34]

[23] See for example Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372 at [90] - [92]

[24] Smith v NRMA Insurance Limited [2016] NSWCA 250 at [35]

[25] There is nothing in the IR Act that would deny a power to set aside a NOD in appropriate circumstances

[26] See Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [11] - [14] and Tomlinson v Leveda Inc (1996) 65 IR 178.

[27] Narayan at [13], referring to s 578(b) of the Fair Work Act 2009 (Cth).

[28] See for example Anthony v Maxam Australia Pty Ltd [2012] TASFC 5 at [6]

[29] KBRV Resort Operations Pty Ltd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 at [40] per Sheller JA, with whom Ipp AJA and Grove AJA agreed, referring to Owners of the Cargo of the "Kronprinz", v Owners of the "Kronprinz" (The "Ardandhu") [1887] UKLawRpAC 7; (1887) 12 App Cas 256. KBRV Resort Operations Pty Ltd v Chilcott has been applied on a number of occasions, including by this Backman J of this Commission in DPP v PSAPOA of NSW ob Tupua and Shearman [2007] NSWIRComm 121 at [15] - [16]

[31] Fowler v Renmark (1988) 51 SASR 506 at 507; Castanho v Brown & Root [1981] AC 557

[32] See for example Castanho v Brown & Root [1981] AC 557 at 571; Packer v Meagher [1984] 3 NSWLR 486 at 491A to C, Chen v Monash University [2016] FCAFC 66; (2010) 244 FCR 424 at [40] - [41]

[33] Chen v Monash University [2016] FCAFC 66; (2010) 244 FCR 424 at [46]

[34] Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.

[35] Cf the discussion of the "fundamental right" to bring and continue proceedings in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256;

[36] [1988] HCA 13; (1988) 165 CLR 268

[37] [1971] HCA 49; (1971) 125 CLR 529 at 530

[38] See more recently recognition of a similar concept in the context of setting aside a judgment rendered in the absence of a party: Petrou v Vassiliadis [2025] NSWCA 174 at [10]

[40] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 at [52]

[41] See for example KBRV Resort Operations Pty Ltd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 at [41] per Sheller J, with whom Ipp J and Grove J agreed, where it would appear an error was made in deciding to discontinue proceedings in the District Cout because of a jurisdictional limit to pursue proceedings in the Supreme Court (due to an initial error in the jurisdictional limits of the District Court), rather than seeking to transfer the case whilst it was still on foot: "To read the section as preventing a party which has erroneously begun proceedings in the District Court, believing there to be jurisdiction when there was not, from removing them into the Supreme Court where there was jurisdiction would indeed be a triumph of form and technicality over substance and merit". In Fowler v Renmark (1988) 51 SASR 506 at 509, Cox J considered the prejudice to a Respondent in permitting a discontinuance to be withdrawn arising from "its loss of a defence under the Limitation of Actions Act 1936" if left to commence fresh proceedings was "not enough" and in that case "would be quite unjust".

[43] See for example the exchange with Mr Sharma at TS 3/9/2025 pg 58 lines 39 - 44

[44] NSW Department of Education v Buchanan [2019] NSWIRComm 1022

[45] Applicant Reply Submissions at [48(I) - (iii)] - [49]

[46] In a number of cases including Laramie & Caul [2018] FCCA 1371, Olofsson & Olofsson [2019] FCCA 3467, Dalal & Dalal (No 2) [2019] FCCA 3332, Cao & Trong [2019] FamCA 336, Maddison v Qualtime Association Inc [2010] FMCA 25, and MZZIO v Minister for Immigration & Anor [2014] FCCA 618.

[47] TS 3/9/2025 pg 61 line 20 - 23, 44-45, pg 63 line 16 - 19

[48] LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939