Ashton v State of New South Wales

1. [1]

   Gemma Ashton was employed by the member of Parliament for East Hills, Kylie Wilkinson, in May 2023. On 22 November 2024, Ms Ashton was advised that her services were dispensed with, apparently pursuant to s 20(3) of the Members of Parliament Staff Act 2013 (NSW) (“the Act”).

2. [2]

   Ms Ashton initially challenged the decision via the Industrial Relations Commission (“the IRC”), commencing proceedings in the IRC on 12 December 2024. A jurisdictional issue decided against her by the NSW Court of Appeal on 1 September 2025 meant that her attempt at redress through the IRC failed.

3. [3]

   On 8 October 2025, these proceedings were commenced. As Ms Ashton seeks judicial review of a decision made in November 2024, she is out of time. Subrule 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) requires proceedings involving judicial review to be commenced within three months. Subrule (2) permits an extension of time. Subrule (3) specifies some of the factors which are to be taken into account in exercising the power to extend time.

4. [4]

   The sole issue before me is whether I should extend time under the rule. The first defendant, the State of New South Wales (“the State”) did not wish to be heard on this question, but Ms Wilkinson, through her counsel Mr Jones SC, opposed the application for extension.

5. [5]

   I have determined that the extension sought should be given for the following reasons.

Factual background

1. [6]

   These facts are taken from the affidavits of Mr Trainor, the solicitor retained to act for Ms Ashton via the Public Service Association Legal Services Branch, and the affidavit of Jacob White, solicitor, acting for Ms Wilkinson.

2. [7]

   Ms Ashton was employed in May 2023 as an electorate officer under the Act.

3. [8]

   There were some background issues that were the subject of a note made by Ms Ashton of a discussion with a Ms D’Arienzo, senior electorate officer at Ms Wilkinson’s office, on 8 October 2024.

4. [9]

   On 22 November 2024 at 4:50pm, Ms Ashton was told by Ms Wilkinson at a meeting in her office words to the effect that she was “let go”, “finishing up today”, with 2 weeks pay in lieu of notice. When asked why she was being “sacked”, Ms Ashton was told by Ms Wilkinson “You just aren’t the right fit” and “there has been a lot of things I have seen go on”.

5. [10]

   Despite further requests that Ms Wilkinson clarify and provide further details, Ms Wilkinson refused to clarify. Ms Wilkinson told Ms Ashton words to the effect that she had been “advised by HR” that she did not have to provide a reason, and that “HR will provide you with the reasons”.

6. [11]

   An email sent to Ms Ashton via her personal email address at 5:10pm that same day from Ms Gors, described as “Director People, Property and Security, Corporate Services Division, Department of Parliamentary Services”, and ccing Ms Wilkinson, stated as follows:

7. [12]

   On 29 November 2024, Ms Ashton was referred to Legal Services via the Assistant General Secretary.

8. [13]

   On a date in December 2024, probably as early as 3 December 2024, Ms Wilkinson offered a temporary position to “Person A” in the role of electorate officer, Ms Ashton’s position.

9. [14]

   On 12 December 2024, Ms Ashton commenced proceedings in the IRC contending the decision was victimisation in contravention of s 210 of the Industrial Relations Act 1996 (NSW). The time limit to commence proceedings in that jurisdiction is 21 days.

10. [15]

    The relief sought in the application was reinstatement, continuity of service and backpay of lost wages. Mr Trainor deposed to the decision of the IRC Full Bench of Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No 2) (2019) 290 IR 180; [2019] NSWIRComm 1056 (“Davie”) and his view that this decision supported the proposition that the IRC had jurisdiction for Ms Ashton’s claim.

11. [16]

    On 13 December 2024, Ms Ashton emailed the Parliament of NSW Independent Complaints Office to lodge a formal complaint about the handling of her dismissal.

12. [17]

    On 7 February 2025, the respondent to the IRC application, the State, filed a notice of motion seeking an order to refer a question to the Full Bench asking whether the IRC has jurisdiction with respect to the proceedings under ss 210 and 213 of the Industrial Relations Act given ss 20 and 26 of the Act.

13. [18]

    On 24 March 2025, the question was referred via the President of the IRC, and on 29 May 2025, the Full Bench decided that it had jurisdiction: Ashton v State of New South Wales (2025) 339 IR 389; [2025] NSWIRComm 1028.

14. [19]

    On 12 June 2025, the State filed a summons seeking judicial review of the Full Bench’s decision.

15. [20]

    On 6 July 2025, Ms Wilkinson engaged “Person A” on a full time basis in Ms Ashton’s role. Person A was continuing in that role as at December 2025.

16. [21]

    On 1 September 2025, the Court of Appeal determined that the IRC did not have jurisdiction and dismissed the proceedings brought by Ms Ashton: State of New South Wales v Ashton [2025] NSWCA 199.

17. [22]

    On 8 October 2025, Ms Ashton filed the summons in this Court seeking relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing the decision made by Ms Wilkinson. In the summons, Ms Ashton seeks alternative forms of relief that the decision be quashed, a declaration that the decision was made in breach of a condition of the exercise of the relevant power, a declaration that the employment has not ended by virtue of s 20(1) of the Act and, if appropriate, “back pay”, damages and costs.

Principles – the discretion to extend time – is an extension of time necessary to do justice between the parties?

1. [23]

   The UCPR r 59.10 provides:

2. [24]

   Other relevant factors include length of the delay, reasons for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (“Tomko”) at [55] per Basten JA.

3. [25]

   A court may, and usually does, decline prerogative relief where an applicant has not exhausted all available appeal or review rights: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91] (“Rodger”) per Beazley JA, McColl and Macfarlan JJA agreeing.

4. [26]

   A court should be reluctant to refuse an extension of time for commencement of judicial review proceedings where the delay is explained by the party having properly pursued other avenues of redress: Rodger at [92]; IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; 89 MVR 87 (“Chahoud”) at [54] per Bell P.

5. [27]

   In the context of hearing an application for an extension of time of some 17 months to allow an appeal to the High Court to proceed, McHugh J observed in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 75 ALJR 470 (“Marks”) at [15], citing what his Honour had previously said in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 (“Gallo”) at 459:

Submissions

1. [28]

   Mr Anwar, counsel for Ms Ashton, argued that the commencement and pursuit of proceedings in the IRC provides a comprehensive explanation for the delay. The IRC proceedings were commenced 20 days after the decision. Within a short period of the unfavourable outcome in the Court of Appeal, the proceedings were commenced in this Court. Ms Ashton has an obvious and considerable interest in challenging the decision, both in terms of her reputational harm and damages or “backpay”.

2. [29]

   Mr Anwar submitted that in contrast, the extension would visit little or no prejudice upon the two defendants, given that they have been on notice about Ms Ashton’s challenge to the decision since December 2024.

3. [30]

   Mr Anwar argued that the application for judicial review meets the threshold of a “fairly arguable case”, particularly given that the observations of the High Court in Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44; [2005] HCA 50 (“Jarratt”) support an argument that Ms Wilkinson was required to comply with the rules of procedural fairness. The facts as disclosed in Mr Trainor’s outline of what occurred, based on the instructions provided by Ms Ashton, suggest no procedural fairness was provided.

4. [31]

   In response, Mr Jones submitted that the explanation proffered was not adequate. First, the evidence tendered on the notice of motion did not specifically state that the IRC was chosen rather than judicial review proceedings because of a concern about a need to first exhaust appeal rights. Second, it is not correct to conclude that the situation facing Ms Ashton was akin to that dealt with in Rodger and Chahoud where the right of appeal being examined was one in the court or tribunal whose orders were subject to judicial review.

5. [32]

   Mr Jones also submitted that once the State took the position it did regarding jurisdiction in February 2025, Ms Ashton should have known that neither defendant would take a point in judicial review proceedings and Ms Ashton should have pursued judicial review at that time.

6. [33]

   It was also submitted by Mr Jones that pursuing IRC proceedings of the kind she did for “victimisation”, was a forensic choice rather than providing an explanation for delay, and that Ms Ashton chose that course with legal advice. She was represented by counsel and is not entitled to an indulgence such as would be given to an unrepresented litigant who made such a choice.

7. [34]

   Mr Jones submitted that there is prejudice to Ms Wilkinson in that she is entitled to the benefit of the decision made to dispense with Ms Ashton. There is also actual prejudice in that Ms Wilkinson appointed another person to the role on a full time basis on 7 July 2025 and so she has the maximum number of staff that she is allowed to employ.

8. [35]

   In response to the assertions of damage to Ms Ashton’s reputation caused by the dismissal, Mr Jones argued that there is no admissible evidence before the Court regarding any such damage. He also noted that Ms Ashton has had some alternative employment in a similar role.

9. [36]

   Mr Jones also argued that the test for the merits of the case sought to be pursued is that Ms Ashton must demonstrate an “exceptional case”. In his written submissions, under the heading “Merits”, Mr Jones submitted the following:

10. [37]

    In reply, Mr Anwar noted that the prejudice asserted in employing a replacement on a permanent basis was of Ms Wilkinson’s own making given the timing of that decision, 6 July 2025. This was after the Full Bench had determined that the IRC had jurisdiction to deal with Ms Ashton’s proceedings. Based on this position and the judgment in Davie, there was no reason for Ms Ashton to doubt her proceedings could be heard to finality in the IRC. She ultimately failed on an issue that was raised for the first time by the Court of Appeal during the hearing of the State’s application for judicial review in August 2025.

11. [38]

    Mr Anwar also submitted that to the extent Ms Ashton was able to obtain part time employment, that is a mitigation of damages point, not a disqualifying factor. The relief set out in the summons is in the alternative.

12. [39]

    Mr Anwar also raised an argument that has wider implications, citing the “strong common law presumption that a statutory power which is capable of having an adverse effect on legally recognised rights or interests of individuals is impliedly conditioned on the observance of procedural fairness”: Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; (2025) 100 ALJR 30 at [17]. He submitted that the terms of s 20 of the Act, to the extent they should be read to be counter to that strong common law presumption, appears to be an approach rejected by the High Court in Jarratt, on the basis that such notions are “difficult to reconcile with modern conceptions of government employment and accountability”: Jarratt at [7] per Gleeson CJ. See also Jarratt at [56]-[75] and [85]-[88] per McHugh, Gummow and Hayne JJ.

Decision

1. [40]

   I accept Mr Anwar’s submissions, and reject those made by Mr Jones.

2. [41]

   Ms Ashton clearly has a particular interest in the proceedings, namely her employment, her reputation and her loss of earnings.

3. [42]

   Any prejudice to Ms Wilkinson is of her own making in hiring a replacement on a permanent basis in the face of ongoing IRC proceedings against the State that sought, among other things, Ms Ashton’s reinstatement.

4. [43]

   Ms Ashton commenced the IRC proceedings promptly. The judicial review proceedings in this Court were commenced within a reasonable time given the complexities of what had gone on before in the IRC and then the Court of Appeal.

5. [44]

   There is a public interest in resolution of the question of whether in the current employment context, procedural fairness requirements at common law can or should be read into s 20 of the Act, and the extent to which prerogative power to dismiss “at pleasure” operates as a complete answer.

6. [45]

   There was no evidence made available to the Court that dealt with Ms Wilkinson’s account, (or the State’s), that suggests that procedural fairness of any kind was afforded.

7. [46]

   Ms Ashton has a fairly arguable case. That is the relevant test.

8. [47]

   Mr Jones apparently made his “exceptional case” submission based on his interpretation of observations made by McHugh J whilst dealing with the delay and circumstances his Honour was presented with in Marks and Gallo.

9. [48]

   In Marks at [16], McHugh J said this:

10. [49]

    In Marks at [13] where his Honour referred to a case needing to be “exceptional”, he was not referring to the merits. He was again referencing what he had said in Gallo. In Gallo the only explanation for the 16 month delay was an applicant refraining from appealing while she researched the issues involved. This explanation was obviously not satisfactory.

11. [50]

    In exchange with the Court, Mr Jones suggested that his submission about an “exceptional case” being required, “puts it too highly”. [1]

12. [51]

    The submission was frankly wrong. It is abundantly clear that the question of merit is confined to whether the applicant has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65], citing Tomko at [55], cited with approval in Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [19]. Nothing said by McHugh J in Gallo or Marks changed that position.

13. [52]

    Granting the extension of time is necessary to do justice between the parties. Ms Ashton sought redress for her dismissal in a legitimate and appropriate forum. The State was Ms Ashton’s employer. The State took a legal point which led to delay in proceedings in the IRC. The Full Bench of the IRC though it had jurisdiction. The Court of Appeal said it did not.

14. [53]

    The consequences for Ms Ashton if leave is refused is that she has lost a legitimate right to pursue redress for loss of employment, loss of earnings and implicitly, if not overtly, reputational damage.

15. [54]

    In the scheme of events the extension sought is not long and the delay well explained.

16. [55]

    The extension up to and including 8 October 2025 will be granted.

Costs

1. [56]

   The parties agreed that the proper order between the parties who took an active part in the notice of motion should be costs in the cause.

2. [57]

   The State took no active part in the notice of motion and so I make no costs order in respect of the State.

Orders:

1. [58]

   I make the following orders:

   1. (1)

      Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2), the time for commencing proceedings for judicial review of the decision of Ms Kylie Wilkinson (Member of Parliament for East Hills) is extended to 8 October 2025.

   2. (2)

      Costs of the notice of motion as between the plaintiff and the second defendant are costs in the cause.