Wilson v Victorian Aboriginal Child and Community Agency

1. This is an application to set aside orders of this Court dated 25 July 2025 discontinuing these proceedings. It is supported by an affidavit of Ms Lyndsey Wilson dated 11 August 2025, which I have read, along with the attachments.
2. I will briefly set out the background to this proceeding. The background is more completely set out in my reasons of 3 June 2025 found at Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559 (Wilson EOT), and I do not repeat them here, save to note that:

(1) the applicant worked for the first respondent, the Victorian Aboriginal Child and Community Agency (VACCA), for less than six months and her employment came to an end prior to the end of her probationary period;

(2) the applicant filed an originating application under the Fair Work Act 2009 (Cth) (the FW Act) alleging dismissal in contravention of the general protections provisions in part 3-1 of the FW Act. She was late in doing so and required leave of the court to file out of time. I considered her request for leave to file out of time in Wilson EOT, and despite forming the view the case articulated by the applicant was not strong, I granted leave, having regard to the early stage of the proceeding and the fact that she had good reason for filing out of time;

(3) at a subsequent case management hearing on 25 July 2025, Ms Wilson said she wanted to withdraw her claim, and I made orders giving effect to that request. The exchanges that occurred in the course of that hearing are summarised in detail below. The orders had the effect that the matter was discontinued;

(4) the present application was filed on 28 July 2025, and Ms Wilson relies on her affidavit dated 11 August 2025, which I have read; and

(5) the respondents oppose the application and rely on the affidavit of Mr Rory Emmett Jolley dated 27 August 2025, which I have read.

1. I have the power to set aside the orders of 25 July 2025 pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). That power can be exercised to prevent an abuse of process or to protect the integrity of the Court's process. In Chen v Monash University [2016] FCAFC 66; 244 FCR 424 (Chen) at [40]-[47], Barker, Davies and Markovic JJ considered the operation of the power implied by s 23 in the context of an appeal being discontinued. While that case concerned the appellate jurisdiction and slightly different rules, I consider the matters elucidated by their Honours at [46] to be relevant to the present application:

While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant's instance, we consider it will only arise where the appellant 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.

1. Those principles from Chen were applied in the case of Pushpinder v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 903 (Button J) (Pushpinder). That was in the context of consideration of a first instance discontinuance by a judge of the Federal Circuit and Family Court of Australia (Division 2). It is therefore clear that the power that I have is to be considered by reference to a range of factors connected with abuse of process, but the voluntariness of the discontinuance is an enlivening factor (see the summary of principles in Pushpinder at [10]).

1. Ms Wilson' seeks to "reopen these Proceedings on grounds of medical incapacity at time of request to withdraw Proceedings". She argues she had not been sleeping well and had painful injuries. She says in addition there is no prejudice to the parties if she is now permitted to reinstate the proceedings. I have carefully considered her arguments.
2. At the case management hearing of 25 July 2025, Ms Wilson, unprompted, raised her desire to discontinue the proceeding. I offered to provide her with a flexible timetable to progress the matter, and she responded by saying that she sought to "vacate these proceedings".
3. Because Ms Wilson raised issues suggesting she was finding the process stressful and was feeling intimidated, I offered to refer her to pro bono legal assistance and to adjourn the matter while she obtained the benefit of legal advice. The following exchange occurred:

HER HONOUR: So, returning to you, Ms Wilson, do I understand that you would like to discontinue?

MS WILSON: Yes, your Honour.

HER HONOUR: All right. Now, you've said to me things that make me - that suggests your desire to discontinue comes from a place of feeling intimidated. You've said....

MS WILSON: Yes.

HER HONOUR: Right. So, in those circumstances, I can, but I don't have to - you're the applicant here, and I'm not here to take away your agency in this situation. Okay. I'm not here to stand over you or to make you do anything you don't want to do. But what I can do is I can refer you for pro bono assistance for the limited purpose of advising you about the proposed withdrawal in the circumstances you've identified, I want to make - basically as a way of making sure that you're not withdrawing - I don't want. Sorry, let me withdraw that. It's important, I think, that if you are withdrawing, that you're doing that on a free and informed basis. And a lawyer might help you to be able to think through those matters.

Now, you might say to me, "Look, I want to draw a line under this, and I don't want to continue this, and I want it out of my life and it's causing me stress and distress to continue." And that's fine. Like I said, I'm not here to force these proceedings to continue to be in your life. You're free to make an order discontinuing them now, and that will be an end of them as of today. But I can make an order - before that happens, I can make an order that you be referred.

Now, I can't guarantee that there will be pro bono legal assistance. I don't control that. The court doesn't give free legal advice. What we do is we make a referral, and this would be a limited referral. It wouldn't be someone to act for you in the whole thing. It would just be to advise you about your proposed withdrawal and the circumstances about it, given what you've said to me. So my question for you is - and if you want some time to think about it, you can have some time to think about it. Would you like me to make that referral or would you just like to end it now and make a withdrawal?

1. Ms Wilson declined the proposal of a referral to pro bono legal advice and an adjournment while she obtained that advice. I then asked how long she had been thinking about her decision to withdraw, and when she made the decision. Ms Wilson said:

MS WILSON: Your Honour, I have been thinking about it as this matter was looming and when I found out new counsel had been engaged and with my interactions between myself and Mr Jolley. And I am absolutely not slighting Mr Jolley at all, but it just seems that we are never going to reach any kind of a settlement, and the threats are just not worth the effort. It really just isn't.

1. Ms Wilson had informed the Court earlier that new counsel had been engaged by the respondents on 9 July 2025. It was apparent from Ms Wilson's response that she had been thinking about withdrawing the proceeding for some time prior to the hearing on 25 July 2025. It was evidently not a rushed decision made in the spur of the moment or on the day itself.
2. Because there were repeated references to threats by Ms Wilson, I interrogated the issue further and did not consider any of the matters raised by Ms Wilson capable of interfering with her decision-making or to place her in a position of duress. Ms Wilson said she had raised the prospect of discontinuance with the solicitor for the respondents on 22 July 2025, again reinforcing that she had been considering whether to discontinue the proceeding for some time. It is therefore apparent Ms Wilson had every opportunity to consider her decision, including an opportunity to seek a referral for legal advice about it. She nonetheless reiterated her request that I discontinue the proceeding. I proposed to dispense with the rules requiring her to file the relevant form and to order that the proceeding be discontinued, and she agreed.
3. On 28 July 2025, the present application was filed, and the applicant submitted:

I was not in full understanding, had felt rather overwhelmed and have not been sleeping properly for a number of weeks with a broken finger and painful damaged ligament in my hand. I was further unable to access my own paperwork to hand during the course of the Hearing due to this injury. I was not thinking clearly when requesting to vacate these proceedings entirely. I had been presented with proposed Orders as presented to the Court and with unsuccessful opportunity to discuss some 2 days before the Hearing.

1. In her written submissions, Ms Wilson said (emphasis original):

Following this Hearing and Orders made on 25 July 2025 I submit I had immediate regrets regarding this decision to withdraw such a serious matter which this Court has allocated such a gracious amount of time and consideration. I did reach out to the Court and filed Interlocutory Application on 28 July 2025 requesting to Reopen the matter based on reasons as explained above.

1. Ms Wilson argued there would be little or no prejudice to the respondents in the event the application is granted, and the matter is returned to the position it was in before the discontinuation. Ms Wilson filed a medical certificate which states no more than "she has been dealing with significant medical issues lately, which could have affected her thinking and decision making".
2. The medical certificate is not specific as to time or place, and does not assist me in the present analysis. I accept, for present purposes, that all of the matters which Ms Wilson has asserted in terms of her injuries were true, and so there is no need for her to file further evidence demonstrating that she had had X-rays or ultrasounds in relation to her injuries.
3. I had the opportunity to observe Ms Wilson, albeit on video link, in the course of the hearing of 25 July, and I formed the view she was acting voluntarily and with full capacity. She was given ample opportunity to adjourn or to pause to obtain a referral for pro bono legal advice. She responded appropriately to questions and provided coherent answers to them. She appeared to be analysing the pros and cons of proceeding and decided not to continue.
4. The argument that no prejudice arises is wrong. A number of parties, including individuals, have been vexed by this proceeding for months. They were told the matter had been discontinued. To then be told that it has been re-enlivened and the entire onerous process was to start again, is itself vexing. It is part of the reason that this Court places significance on the finality of litigation, and as the Court in Chen made clear at [47]:

In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal "in the interests of justice", which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.

1. I respectfully agree with and adopt their Honours' reasons in the context of the present application. I am not satisfied on the material before me that the decision by Ms Wilson was not voluntary or that she lacked capacity when making it. On the contrary, her reasons for doing so were interrogated carefully and her desire to discontinue persisted in an unwavering way. Ms Wilson did not, at the hearing of 25 July, raise any of the issues upon which she now relies in terms of her injuries, lack of sleep, or lack of access to paperwork. An adjournment was offered to her and refused in the context of obtaining a referral for pro bono legal advice.
2. At the hearing, the Court was at pains to ensure Ms Wilson was exercising her own agency and decision-making, and equally, not to take away her agency as an adult. I am satisfied that she was doing so. The final exchange is worth extracting:

HER HONOUR: ...So, I've offered the opportunity to talk to a lawyer about this, and you don't want that. You would like to discontinue the proceeding.

MS WILSON: Correct.

HER HONOUR: And you've had the time to think about that, and you're not - yes, and you've made - I guess I just want to be clear that you're making - this application is your choice to make it. This - - -

MS WILSON: It is, your Honour.

1. Having considered the importance of finality of litigation, the circumstances in which Ms Wilson voluntarily sought to have the matter discontinued, and - to the extent it is relevant - the interests of justice (noting that such considerations are generally not considered helpful: Chen at [47]), I have decided to refuse leave. While the merits of the underlying claim are not a consideration for the exercise of power under s 23, I note my earlier observation that the merits of this case do not appear to be strong, as set out in Wilson EOT at [34].
2. These reasons are delivered ex tempore and will be revised in accordance with Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]- [31] (Steward J; Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).
3. The application will be dismissed. There will be no orders to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.