Janson v Department of Communities & Justice

The plaintiff has six children, currently ranging in age from 4 to 17. Each child has been removed from the custody of the plaintiff by the Department of Communities and Justice (the DCJ). Nevertheless, these proceedings primarily relate to five of the children, the eldest being excluded. Five of the children were removed from the plaintiff’s care in August 2020. The youngest child was taken into care by the DCJ in November 2021, on the day of her birth.

All of the children are under the parental responsibility of the Minister for Family and Communities. This responsibility continues until the children turn 18.

Three of the children reside with their maternal grandfather and step-grandmother. One child resides with her paternal grandparents. The other two children live with relatives of their maternal step-grandmother.

In very general terms, the children were removed because of concerns held by the DCJ that they were being mentally and physical abused, not being immunized, and not being educated. It is outside the scope of these reasons for me to comment on the DCJ’s justification for taking the children.

On 11 August 2025, the plaintiff filed a statement of claim seeking a range of relief. This document does not seem to have been served on the defendants, but was included in documents served on 20 August 2025. Then on 25 August 2025, the plaintiff filed further proceedings, styled as an application for judicial review and damages, against the DCJ, the Office of the Children’s Guardian and the New South Wales Ombudsman.

On 26 November 2025, the defendants filed a notice of motion seeking orders dismissing or striking out the plaintiff’s statement of claim.

On 15 December 2025, the plaintiff filed a notice of motion seeking leave to file an amended statement of claim and to join the NSW Ombudsman to the proceedings pursuant to s 35A of the Ombudsman Act 1974 (NSW). Although the Ombudsman is listed as a party to the original pleading, the plaintiff has obviously recognised the need to obtain leave to sue the Ombudsman as required by s 35A(2).

The plaintiff has filed the following affidavits:

The defendants have filed these affidavits:

Mr Cantrill is a solicitor employed by the NSW Crown Solicitor’s Office.

Section 35A of the Ombudsman Act states:

Section 35(3) makes it clear that leave requires the establishment of bad faith on the part of the Ombudsman. The allegations of bad faith expressed in the amended statement of claim are:

The plaintiff specifically addresses leave under s 35A from [395] of the proposed pleading. She lists:

The plaintiff then, from, [409] makes allegations of continuing failures by the Ombudsman.

By way of evidence of the many acts of bad faith by the Ombudsman, the plaintiff relies on Annexure SDE-3 of her affidavit together with “all affidavits, exhibits and prior correspondence lodged with the NSW Ombudsman’s Office between 2023 and 2025, including formal complaints, review requests and ministerial referrals.” The plaintiff also reserves the right to “amend or supplement particulars as further evidence or discovery occurs.”

In her affidavit of 15 December 2025, the plaintiff gives some detail of her claim against the Ombudsman. The plaintiff first of all points out the many failings of the DCJ which she says were “consistent with maladministration within the meaning of s 12(1)(a) of the Ombudsman Act 1974 (NSW).” Section 12 opened the gateway for a complaint to the Ombudsman.

The plaintiff continues in her affidavit to state that by late 2022 the Ombudsman had been given written notice that her children “had disclosed sexual harm”, a child had gone missing, the children were engaging in self-harm and had untreated medical issues, there was an identity issue with one of her daughters and she was being “threatened with cancelled contact” unless she paid certain monies.

The plaintiff alleges that the Ombudsman failed to act upon her complaints, all of which arose from the conduct of employees of the DCJ. In addition, the plaintiff says that the Ombudsman should have made a report outlining the DCJ’s improper conduct in accordance with s 26(1) of the Ombudsman Act. The plaintiff says that “despite the Ombudsman’s knowledge of these facts, the failures not only persisted but intensified between April 2023 and May 2025.”

The plaintiff points out that on 9 March 2023 the Ombudsman stated that it would not be investigating her complaints and suggested that she “continue to work with DCJ to resolve [my] concerns.” This decision to not investigate, says the plaintiff, was made in bad faith as well as for an improper purpose. The decision was in bad faith because of the reasons set out above, and which are included in the proposed amended statement of claim.

In her affidavit, the plaintiff says that on 10 March 2023, she lodged an objection to the Ombudsman’s refusal to investigate and asked for an internal review. On 24 March 2023, the Ombudsman confirmed the decision not to investigate stating that “DCJ is aware of your concerns.”

The plaintiff then points out that in early 2023 the Department of Premier and Cabinet told her that her correspondence had been referred to the Ombudsman. The Ombudsman would have been aware of this correspondence and referral prior to 9 March 2023. Therefore, there had been a “blindness or reckless indifference to a statutory duty.”

The plaintiff must establish “that there is a substantial ground for the contention” of bad faith. A finding of bad faith will be approached against a high standard, as described by Hodgson JA in Crewdson v Industrial Relations Commission of NSW (2007) 164 IR 468; [2007] NSWCA 178, at [36]:

Consistently with Crewdson, the preliminary enquiry of the existence of a substantial ground will also require an approach going beyond possible error or suspicion.

In Golden v V’landys [2015] NSWSC 1709, at [122], Adamson J (as her Honour then was), said this about bad faith in the context of decisions made by the Chief Executive of NSW Racing concerning disciplinary action against a horse trainer:

Turning specifically to s 35A, Bathurst CJ in Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 said this from [121]:

Also, in Kaldas, Basten JA said at [319]:

Ultimately, as I understood the plaintiff, the core of her complaint was the prolonged inactivity by the Ombudsman and persistent refusals ‘to get involved’ in the plaintiff’s complaints about the DCJ.

The plaintiff’s submission, at least in my words, was that the inactivity and refusals could not be explained by other than the existence of bad faith. This was the only available inference.

The Ombudsman, to counter the existence of any such inference, took me through aspects of the dealings between the plaintiff and the Ombudsman, at the same time as reminding me that the Ombudsman, pursuant to s 13 of the Ombudsman Act, always had a discretion as to whether or not to investigate a complaint.

The first document I was referred to by the Ombudsman was the initial response, by email on 9 March 2023, to the plaintiff’s complaint which had been received on 1 November 2022.

The email refers to the details of the complaint and then states:

The final paragraphs of the email are:

On 24 March 2023, following a request for a review of the decision communicated to the plaintiff on 9 March 2023, the Ombudsman emailed the plaintiff:

The plaintiff made a complaint to the Independent Commissioner Against Corruption (ICAC) which also refused to carry out an investigation. The plaintiff asked for a reconsideration of this decision which led to an email from the plaintiff to ICAC on 18 March 2025. I was referred to this email because in her complaints about the Ombudsman the plaintiff does not refer to any allegation of bad faith, but only that the Ombudsman’s refusal to investigate “indicates a lack of intervention, necessitating ICAC’s review.”

Although I understand the point made about the email to ICAC, I do not think it necessarily excludes an allegation of bad faith.

On 3 March 2025, the Ombudsman sent an email to the plaintiff apparently responding to a complaint made on 31 January 2025, again about the DCJ. The email tells the plaintiff that “we will work through your complaint and the facts you have given us and contact you again soon.”

‘Contacting you again soon’ materialised through an email on 25 March 2025 in which the Ombudsman states:

Next, on 28 October 2025, a letter from the Ombudsman was emailed to the plaintiff. It states, in part:

The plaintiff requested a review of the Ombudsman’s decision. On 5 December 2025, the Ombudsman emailed the plaintiff telling her that she would be contacted after a review by a manager. The review was then placed ‘on hold’ because the plaintiff indicated that she would be suing the Ombudsman.

The defendants submitted that while there may have been some long periods of time between correspondence there was no evidence coming even close to demonstrating bad faith.

In addition, it was open to the Ombudsman to not investigate where an alternative remedy was available. Section 13(4) of the Ombudsman Act, as relevant, states:

The defendants submitted that on an overall analysis the Ombudsman replied to the plaintiff’s complaints appropriately, took into account (as the Ombudsman was entitled to do) that there were unresolved and ongoing complaints before the DCJ and it was a proper exercise of the Ombudsman’s discretion to not investigate.

The plaintiff is obviously consumed by the perceived inaction of any supervisory body to scrutinise and criticise the actions of the DCJ. Her attempts to obtain the supervision have been widespread, extending to the highest levels of State and Federal Government, and she remains without the assistance she desires. Her efforts on behalf of her children may be admirable, but the lack of success does not automatically translate into bad faith from those, like the Ombudsman, from whom she has sought, but not received, assistance.

It is very clear from the terms of s 35A and from Kaldas that the Ombudsman’s immunity is to be tightly controlled and protected.

Looking at the nature of the contact between the plaintiff and the Ombudsman, even accepting that there may have been some periods of unnecessary delay on the part of the Ombudsman, and having regard to the requirements of bad faith and the strength of the immunity emphasised by Bathurst CJ and Basten JA in Kaldas, I am not able to identify, or be satisfied, of a “substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.”

It must follow that leave will not be granted to proceed against the Ombudsman.

The plaintiff accepted that her pleadings, including the proposed amended statement of claim might need further amendment. She was also satisfied with my suggestion that I give her time to file a summons in accordance with Unform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.3. The defendants however did not agree, stating that no further leave should be given to the plaintiff and that, in my discretion, I should not give the plaintiff leave to file a summons but should rather simply dismiss the proceedings.

Because of the defendants’ approach, which they were perfectly entitled to adopt, I will give reasons for refusing to allow the filing of the proposed amended statement of claim and refusing to order a dismissal of the proceedings.

The amended statement of claim covers 131 pages. The initial paragraphs are helpful. They identify the parties and the court’s apparent jurisdiction. But then, at [16] the plaintiff states:

So what then is the plaintiff after? There is a clue in [38]:

Then, at [1016] the plaintiff again pleads:

There seem to be a number of decisions about which the plaintiff complains, but precisely what they are is difficult to discern.

UCPR Pt 59, which applies to the plaintiff, requires judicial review proceedings to be commenced by summons. The plaintiff is self-represented so perhaps the use of a statement of claim could be overlooked. However, the balance of the rule cannot be overlooked. In particular, r 59.4 describes the required contents of the summons:

Some of the ingredients required by UCPR r 59.4 may be found somewhere within the proposed pleading, but they do not make themselves visible with the clarity required by the rule. It is almost impossible to detect the individual decisions to be reviewed, let alone the decision-maker and the specific grounds relevant to each decision.

A further problem arises from UCPR r 59.10:

If the individual decisions are not identified, it is impossible to calculate the 3 months within which the proceedings are to be commenced. It may be, as perhaps contemplated by [16] of the pleading (quoted above), that it is not sought to set aside each decision, thus triggering r 59.10(5), but it is impossible to know if this is the plaintiff’s intention, let alone to which decisions this would apply.

I accept some leeway and assistance should be given to self-represented litigants. If the content of the amended statement of claim is any guide, the plaintiff has already had some assistance. The plaintiff frankly said Artificial Intelligence (AI) had been used to “make indexes and things like that” and to help her “structure sentences”.

I recommend the plaintiff not use AI, if it was used to draft the amended statement of claim. It may be relevant, for example, to quote authorities in support of various propositions but the pleadings are not the right place or time, especially where they are accompanied by a vague statement of principle (see for example [1129] to [1161] of the proposed pleading).

Grand statements of principle are not helpful and do not allow a defendant to answer allegations made against it. Paragraphs [1017]-[1018] state:

The proposed pleading, at [684], states:

The sentiment is admirable, but the pleadings simply do not achieve the stated purpose. UCPR r 6.12 may be relevant. I am at a loss as to the relevance of r 14.2(1). Rule 14.7 says a pleading is to contain facts not evidence. This pleading is awash with evidence and submissions. Rule 15.5 concerns “Allegations of negligence and breach of statutory duty in common law claims in tort.” The rule may have some connection to the allegation of misfeasance in public office but not, as I understand the primary allegations, to the request for judicial review.

I think it is clear from the above that leave should not be given to file the amended statement of claim. The current statement of claim should also be struck out. The plaintiff however should be entitled to have ‘another go’.

This should by way of the filing of a summons in accordance with UCPR Pt 59. I will also give her leave to include her misfeasance and damages claims (other than against the Ombudsman) in the summons.

As noted above, the defendants’ primary position was the proceedings should be dismissed without leave to re-plead. The defendants did agree that if I was against them on dismissal, then the statement of claim should be struck out. The defendants said I had a discretion which should not be exercised in the plaintiff’s favour because she had alternate remedies for her aspirations. The defendants submitted:

I would agree with the defendants if the sole complaint made by the plaintiff related to contact with her children. However, the complaints are far more wide ranging, encompassing a plethora of allegations about the conduct of the many decision-makers.

It may well be that my orders permit the commencement of a case that may not be quick and cheap, but the defendants, after receiving the summons, will have the option to approach the court to limit or otherwise restrict the scope of the summons.

The plaintiff should also be aware, as properly suggested by the defendants, of her capacity to take advantage of r 59.9 to ask the relevant defendant for the details of decisions as prescribed by this rule. This should help her to overcome the strictures she said she faced in providing details of the decisions.

I make the following orders: