Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559

Federal Court of Australia|2025-06-03|Before: Bennett J

The Applicant submits that there is a sound basis for these allegations and that the material in the affidavits support the proposition that there is an arguable case that should be dealt with through the ordinary course at trial. In her reply submissions, the Applicant went into further detail asserting breaches of the general protections provisions of the kind set out at [12] above. In oral submissions, the Applicant asserted that the adverse action was taken because of or in response to the meeting of 10 July 2024. That meeting, in turn, was said to be connected with the approach taken to a complex case and the way it had been managed over the preceding day or so.
I have assumed facts in the Applicant's favour for the purposes of this application. I have also taken into account that the Applicant is self-represented and so lacks familiarity with some of the concepts relevant to the application.
The key issue is whether or not the Applicant has identified an arguable case for a breach of the general protections obligations in s 340 of the FW Act. There was also a suggestion of discrimination on the basis of physical disability under s 351, but the Applicant did not, at this stage, seek to draw any link between any such discrimination and the adverse action taken. The Respondents argue (with some force) that the Applicant has not identified a workplace right that led to the adverse action. Section 341 defines a workplace right in the following way:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

It is said by the Respondents that the way that the 10 July conversation is discussed does not disclose the exercise of a "workplace right" and thus any action taken based on the 10 July conversation is not adverse action "because of" the exercise of a workplace right. If the matter were to proceed, the presumption in s 361 of the FW Act would apply.
The remedy sought by the Applicant is limited to an (unspecified) form of acknowledgment of wrongdoing by the Respondents, and an injunction connected with asserted breaches of privacy which were said to have been identified after she had left employment with the First Respondent. Through the originating application, the Applicant sought "Compensation for incurred fees and for undue stress caused/or Reinstatement". The Applicant made clear orally that she does not press any claim for compensation or reinstatement although foreshadowed a potential claim for costs. She outlines a range of complaints about the operation of the workplace which she says resulted from the 10 July meeting.
In Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] (Gray, Cowdroy and Reeves JJ) it was noted that:

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

The Respondents raised the concern that the Applicant's material suggests an attempt to litigate an unfair dismissal claim as a general protections claim, or to otherwise ventilate a large range of grievances without linking them to the statutory framework available to her.
It may be that the case as it is presently articulated by the Applicant is not strong. There is force in the notion that it is difficult to identify a workplace right for the purposes of s 340 of the FW Act. However, I am conscious that it is early in the proceeding, and the material has not been fully articulated in a way that it would be at a final hearing. I am likewise conscious of the disadvantages faced by a self-represented litigant. There are some matters in the affidavit material which could ultimately be characterised as workplace rights - however at this preliminary stage it is not appropriate for me to highlight or refer to those matters. If the matter were to proceed, it would do so on the basis that there is a reverse onus. Moreover, there is evidence that has been put before me about alleged shortcomings in the work of the Applicant. These are all contested, and it is not appropriate for me to determine on an application of this kind.
In the context of the very good reasons for her failure to file the extension application, and the lack of prejudice occasioned by the delay, I consider it is in the interests of fairness to permit the matter to proceed. I reach this conclusion despite the reservations that I have expressed in relation to the merits of the matter.
In so concluding, I have given consideration to the burden that will be cast upon all parties if they are required to contest the broad range of factual matters that have been foreshadowed. Ultimately, these are matters that will need to be addressed through careful case management and do not operate to shift the analysis called for by the authorities.

Despite the helpful and articulate submissions on behalf of the Respondents, I have decided to permit the extension of time. I will make orders for the matter to proceed after hearing from the parties as to the proposed next steps.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

The grant of leave under s 370(a)(ii) is discretionary. The Applicant bears the burden of satisfying me that grounds exist for exercising the discretion in her favour (Clarke v Service to Youth Council Inc  [2013] FCA 1018 (Clarke) at [9] (White J)). It is relevant that the Parliament has elected to fix a short limitation period (Clarke at [9]; Chou v Digital61 Pty Ltd [2021] FCA 640 (Chou) at [8]-[9] (Abraham J)).
The principles applicable to an application of time are well known and have been identified by the parties. They were summarised by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 (Brodie-Hanns) as follows:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
In addition, it is appropriate for me to have regard to the statutory limitation period and its rationale while noting that specific provision has been made to enable me to ameliorate the harshness of such a limitation where the individual case requires it (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 (McHugh J, with whom Dawson J agreed)).

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