LB v Secretary, NSW Department of Education (No 2)

These proceedings were commenced by the plaintiff, LB, by summons filed 7 May 2025 in which LB sought relief in the form of certiorari, prohibition, declaration, an order for reinstatement and interlocutory injunctive relief against the defendant, the New South Wales Department of Education, relating to a directive issued on 19 December 2024 by the Department to LB. The Department formerly employed LB as a Classroom Teacher until her dismissal on 8 May 2025.

On 3 July 2025, the Department filed a notice of motion in these proceedings seeking that the proceedings be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rule 2005 (NSW) (UCPR) or that the summons be struck out in its entirety pursuant to r 14.28 of the UCPR.

The Department wished to proceed with the hearing of the notice of motion on 15 August 2025. LB failed to appear at that hearing, including after she was called outside court. In advance of the hearing, PS, the husband of LB, communicated via email with both the Department and the court stating that LB sought an adjournment of the hearing of the notice of motion on the basis that she is medically unfit to appear.

On 15 August 2025, I determined to refuse the adjournment application, ordered LB to pay the costs of the adjournment application and indicated that I would provide my reasons for doing so in due course. These are my reasons for refusing the adjournment.

LB is self-represented in these proceedings, in circumstances explained in more detail below.

The legal representatives of the Department are Sparke Helmore (acting through solicitors at that firm: Felicity Edwards, Ben Gottlieb and Elijah Royal) and counsel, Anthony Britt.

On 18 July 2025, the notice of motion came before me sitting as the Applications List Judge. At that time, PS sought leave to appear before me on behalf of his wife on the grounds of “medical incapacity”. This was opposed by the Department who took the position that LB, who was present in the court, should appear in her own matter. I directed that the notice of motion be stood over to 1 August 2025 in the Applications List and noted that LB intended to make the requisite application to have a tutor appointed to manage her legal affairs.

On 1 August 2025, the notice of motion came before me again sitting as the Applications List Judge. At that hearing, PS indicated that he wished to apply for leave to appear on behalf of LB in the proceedings. LB was also present on this occasion. I made timetabling orders for evidence and submissions to be filed and served by LB and the Department in relation to the application for PS to appear in the proceedings on behalf of LB and directed that PS’s application for leave to appear for LB in the proceedings be heard on 8 August 2025 before me with an estimate of up to one hour. I also stood over the notice of motion to 8 August 2025 for directions.

On 8 August 2025, I heard and dismissed an application by PS seeking leave to appear for LB in the proceedings and ordered PS to pay the Department’s costs in relation to that application, delivering my reasons ex tempore: LB v Secretary, NSW Department of Education [2025] NSWSC 892 (Leave to Appear Judgment). LB was present in court throughout the hearing and the delivery of the Leave to Appear Judgment.

In the Leave to Appear Judgment, I set out the relevant facts as follows at [3]–[17]:

At the conclusion of the delivery of the Leave to Appear Judgment, I directed that the notice of motion be stood over for hearing before me on 15 August 2025. I then indicated to PS (with LB still present in court) that I would proceed with hearing the notice of motion on 15 August 2025, and that LB had the choice of whether she appeared for herself or through a legal representative. I also expressly emphasised to PS that “engaging with constant emails to my associate is not the way in which proceedings are conducted in this court” (T37).

On 11 August 2025 at 5:01am, PS sent an email to my Associate regarding the Leave to Appear Judgment.

On 12 August 2025 at 7:45am, PS sent an email to the Court of Appeal Registrar, copied to Ms Edwards and my Associate amongst others, stating that LB would seek to expedite the appeal of the Leave to Appear Judgment and “Justice Slattery’s judgment”. In the email, PS also made a complaint about the publication of his name in the Leave to Appear Judgment.

On 12 August 2025 at 9:56am, the Court of Appeal Registrar sent an email to PS, copied to Ms Edwards, which stated:

On 12 August 2025 at 10:14am, my Associate sent an email to PS, copied to Ms Edwards and the Court of Appeal Registrar, informing him that the Leave to Appear Judgment had been amended to replace his name with a pseudonym and attaching a copy of the amended Leave to Appear Judgment.

On 12 August 2025 at 10:19am, my Associate sent an email to Mr Gottlieb, Mr Royal, Ms Edwards and PS, informing them that the Leave to Appear Judgment had been amended to replace the name of PS with a pseudonym and attaching a copy of the amended Leave to Appear Judgment.

On 13 August 2025 at 4:37am, PS sent an email to the Commission in relation to the proceedings before the Commission (IRC proceedings) seeking certain orders in relation to the further conduct of the IRC proceedings, to which was attached a notice of motion and two affidavits.

On 13 August 2025 at 9:45am, the Commission listed the IRC proceedings for directions at 9:30am on 15 August 2025 before Commissioner Howell.

On 13 August 2025 at 9:49am, PS sent an email to my Associate, attaching a letter dated 11 August 2025 from Dr Chi Keung Paw (Dr Paw’s Letter), a medical certificate dated 28 May 2025 from Dr Paw (May 2025 Medical Certificate) and a medical certificate dated 11 August 2025 from Dr Paw (August 2025 Medical Certificate). In the email, PS requested that the listing before me on 15 August 2025 be vacated on the basis of LB being unfit for court appearances from 11 August 2025 to 8 September 2025 as certified in Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate. In the email, PS also asserted (leaving all grammatical errors in place):

Dr Paw’s Letter was addressed to “Judicial Officer” and stated as follows:

Dr Paw’s Letter referred to a psychiatric report of Dr Matin Allen (Allen Report) but did not attach the Allen Report.

The May 2025 Medical Certificate relevantly stated:

The August 2025 Medical Certificate relevantly stated:

On 13 August 2025 at 1:31pm, PS sent an email to my Associate, copied to the legal representatives of the Department, which relevantly stated (leaving all grammatical errors in place):

On 13 August 2025 at 1:36pm, PS sent an email to my Associate, copied to the legal representatives for the Department, which stated:

This email did nothing other than forward the previous emails which had been sent to my Associate, together with their attachments.

There was no formal application to adjourn the proceedings, and nothing was filed by LB in relation to the adjournment sought.

On 13 August 2025 at around 2:21pm, PS appeared before Hmelnitsky J as Duty Judge to make an oral application to appear for LB as next friend and seek a four-week adjournment of the proceedings to adduce fresh medical evidence. Hmelnitsky J dismissed those applications.

On 14 August 2025 at 8:13am, PS sent an email to the Court of Appeal Registrar, which was copied to my Associate and the legal representatives for the Department amongst others, which referred to the various requirements and procedures of the court for an application for leave to appeal and expedition which PS said he would ensure he would comply with. PS concluded that email by stating (leaving all grammatical errors in place):

On 14 August 2025 at 8:35am, PS sent an email to my Associate, copied to the legal representatives of the Department, which stated (leaving all grammatical errors in place):

Attached to this email was the notice dated 13 August 2025 from the Commission stating that the IRC proceedings were listed for directions via AVL at 9:30am on 15 August 2025 before Commissioner Howell.

On 14 August 2025 at 9:25am, my Associate sent an email to PS and the legal representatives of the Department, which stated (emphasis in original):

On 14 August 2025 at 9:52am, Mr Gottlieb sent an email to PS (addressed to LB), which stated (emphasis in original):

On 14 August 2025 at 10:01am, PS sent an email to Mr Gottlieb in response to Mr Gottlieb’s email at 9:52am, which stated:

On 14 August 2025 at 10:09am, PS sent an email to Mr Gottlieb, Mr Royal and Ms Edwards, in further response to Mr Gottlieb’s email of 9:52am, which stated:

On 14 August 2025 at 10:16am, the Court of Appeal Registrar sent an email to PS, copied to the legal representatives of the Department, which referred to and repeated the email of 12 August 2025 at 9:56am from the Court of Appeal Registrar to PS, and which also stated:

On 14 August 2025 at 10:22am, PS sent an email to Mr Gottlieb, copied to Mr Royal and Ms Edwards, which stated that (all grammatical errors left in place):

On 14 August 2025 at 11:16am, Mr Gottlieb sent an email to the Commission Registry, copied to PS, Ms Edwards and Mr Royal, seeking an adjournment of the directions hearing before Commissioner Howell at 9:30am on 15 August 2025 to another time convenient to Commissioner Howell in the week commencing 18 August 2025. The stated basis for the adjournment sought was that the parties were required to appear before me at the same time on 15 August 2025. In that email, Mr Gottlieb also stated that he wrote to LB seeking her consent to the adjournment sought but PS had responded by indicating that the adjournment was opposed.

On 14 August 2025 at 11:20am, PS sent an email to the Commission Registry, copied to the legal representatives for the Department, which stated (all grammatical errors left in place):

On 14 August 2025 at 11:24am, Mr Gottlieb sent an email to PS (addressed to LB), copied to Ms Edwards and Mr Royal, stating that the Department did not consent to the vacation of the listing before me on 15 August 2025.

On 14 August 2025 at 11:25am, PS sent an email to Mr Gottlieb, copied to the Commission Registry, Ms Edwards and Mr Royal, which stated (all grammatical errors left in place):

On 14 August 2025 at 11:27am, PS sent an email to my Associate, copied to the legal representatives for the Department, which stated:

On 14 August 2025 at 12:55pm, the Commission Registry sent an email to PS and Mr Gottlieb, copied to Ms Edwards and Mr Royal, stating that Commissioner Howell had made directions in chambers vacating the directions hearing scheduled before him at 9:30am on 15 August 2025, relisting the matter for directions at 9:15am on 19 August 2025 via AVL, and giving the parties liberty to apply for further directions on 24 hours’ notice.

On 14 August 2025 at 1:34pm, PS sent an email to the Commission Registry, copied to Mr Gottlieb, Mr Royal and Ms Edwards, which stated:

On 14 August 2025 at 2:46pm, PS sent an email to my Associate, copied to the Commission Registry and the legal representatives for the Department, which stated:

The short minutes which were attached to this email sought the following orders:

The short minutes were signed by PS, not by LB.

On 14 August 2025 at 2:53pm, my Associate sent an email to PS, copied to the Commission Registry and the legal representatives for the Department, stating that as short minutes order made by consent of all parties had not been provided to my chambers before 1:00pm that day, the proceedings remained listed before me on Friday, 15 August 2025 in the Applications List.

On 14 August 2025 at 3:17pm, PS sent an email to Mr Gottlieb, copied to Mr Royal and Ms Edwards, which stated:

On 14 August 2025 at 3:25pm, Mr Gottlieb sent an email to PS (addressed to LB), copied to Mr Royal and Ms Edwards, requesting LB to outline the reasons for the proposed adjournment and stating that they would then subsequently communicate the Department’s instructions on the proposed adjournment.

On 14 August 2025 at 3:31pm, PS sent an email to Mr Gottlieb which stated:

On 14 August 2025 at 4:18pm, Mr Gottlieb sent an email to PS (addressed to LB), copied to Mr Royal and Ms Edwards, requesting that LB provide a copy of the Allen Report.

On 14 August 2025 at 4:51pm, PS sent an email to Mr Gottlieb, Mr Royal and Ms Edwards which stated:

The power of the court to adjourn proceedings rests in s 66(1) of the Civil Procedure Act 2005 (NSW) (CPA), which states:

In exercising that discretionary power under s 66(1) of the CPA, I am required to have reference to ss 56, 57 and 58 of the CPA.

I must seek to give effect to the overriding purpose of the CPA when I exercise any power given to me by the CPA or by the UCPR, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 56(1) and 56(2) of the CPA.

For the purpose of furthering the overriding purpose in s 56(1) of the CPA, I must manage the proceedings having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA. I am to construe and apply the CPA and the UCPR as best to ensure the attainment of the objects in s 57(1) of the CPA: s 57(2) of the CPA.

In deciding whether to make any order for the management of proceedings (including any order for the amendment of a document, any order granting an adjournment or stay of proceedings and any other order of a procedural nature), and the terms on which any such order is to be made, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA. For the purpose of determining what are the “dictates of justice” in this particular case, pursuant to s 58(2) of the CPA, I must have regard to the provisions of ss 56 and 57 of the CPA and may have regard to the matters listed in s 58(2)(b) of the CPA to the extent to which I consider them to be relevant. Those matters include:

A decision to grant an adjournment is discretionary and any adjournment must be to a specified day: s 66(1) of the CPA.

The considerations which are relevant to the exercise of the discretion to adjourn were described in Cohen v Sacks [2021] NSWSC 88 by Schmidt AJ at [20] in the following terms:

In Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174, Ward JA at [13] stated that the discretion must be exercised by reference to the overriding purpose in s 56(1) of the CPA and in accordance with the dictates of justice, including any prejudice to the applicant or the respondent by either allowing or refusing the application:

A further matter relevant to an application to adjourn is the public interest in the efficient dispatch of the business of the court which affects other litigants who are forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262, Payne JA at [18].

The power of the court in r 29.7 of the UCPR to proceed with a trial generally if a party is absent and the trial is called on was stated in Forster v Harvey [2006] NSWSC 1112 by Young CJ in Eq at [7]–[8] in the following terms (emphasis added):

This approach has been followed in multiple decisions of this court: Von Reisner v Chepurin [2012] NSWCA 418, Ward JA at [4]; Re Idylic Solutions Pty Ltd [2012] NSWSC 581, Ward J at [102]; Valuestream Investment Management Ltd as Trustee for the Tip Tofs Trust v Drenside Pty Ltd as Trustee for the Nosivad Investment Trust [2022] NSWSC 1099, Henry J at [20]; Uy v Ng [2021] NSWSC 429, Rees J at [20]; Bobolas v Waverley Council [2016] NSWCA 139, McColl JA at [220] (with whom Simpson JA and Sackville AJA agreed), quoting Bobolas v Waverley Council [2014] NSWCA 78, Ward JA at [68]–[69].

The Department submitted that I should refuse the adjournment because LB has failed to lead satisfactory evidence in favour of the adjournment.

The Department says that Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate fail to address the critical question of whether, and if so why, the stated medical conditions would render LB unable at this time to prosecute her case and participate effectively in a court hearing.

The Department argues that those documents do not establish sufficient medical grounds for the adjournment.

The Department also refers to the decision in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 where Barrett J at [20]–[23] described the medical evidence in that case in the following terms (emphasis added):

The Department submitted that Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate are as lacking as the medical evidence described in Magjarraj.

The Department also says that the diagnosis of “depression secondary to work related issues” is not a recognised condition in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), where secondary depression refers to depressive symptoms that arise as a consequence of a primary condition such as a medical illness, a substance use disorder, or another mental health condition. It says that “work related issues” is not a medical condition.

The Department also points to the fact that despite the diagnosis of Dr Paw, LB has been able to file a notice of motion in the IRC proceedings on 13 August 2025, presumably give instructions to commence an appeal from the Leave to Appeal Judgment and indicate she could attend a listing in the Commission that had been scheduled to occur on 15 August 2025 (before that listing was vacated).

The Department says that short of the emails received from PS asserting that LB could not attend the hearing on 15 August 2025 before me and providing Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate, there is no other material before me from LB in support of the adjournment application.

I consider that this is a case in which it is appropriate for me to refuse the adjournment of the hearing of the notice of motion sought by LB.

Despite the ruling I made in the Leave to Appear Judgment, it appears that PS is still carrying on proceedings in this court for LB in breach of r 7.1 of the UCPR. PS has been in frequent communication with my Associate in relation to these proceedings and has appeared before Hmelnitsky J as Duty Judge making an oral application to appear for LB and to bring a new notice of motion. It seems that LB had no difficulty providing instructions to PS to make that application.

In my view, the medical evidence which has been put forward to support the adjournment in the form of Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate does not provide a sufficient basis to support the adjournment. Dr Paw’s Letter refers to the Allen Report as the basis on which it is said that LB is not “fit for Court” but the Allen Report has not been provided to the legal representatives of the Department (despite their requests) and nor has it been provided to the court. Instead, as in Magjarraj, I am left with the bald assertion that LB is unfit for court but without any disclosed basis on which that opinion is stated. As a basal matter of evidence, it was incumbent on LB to disclose the Allen Report if she wished to rely on the statements made in Dr Paw’s Letter as the basis for the adjournment.

Dr Paw’s Letter does not even disclose the medical condition from which it is alleged that LB suffers. Instead I am required to turn to the August 2025 Medical Certificate (the currency of the May 2025 Medical Certificate having expired on 28 June 2025) to see that the alleged medical condition of LB is “depression secondary to work related issues”. I am not provided with any basis on which it is suggested that by reason of that medical condition LB is unable to provide instructions to an appropriately qualified solicitor to appear for her in these proceedings. Yet LB has been providing instructions to PS (despite being in breach of r 7.1 of the UCPR) to communicate with the court in relation to these proceedings, a proposed appeal of the Leave to Appear Judgment and to communicate with the Commission in relation to the IRC proceedings. It also appears that LB intended to participate in a directions hearing via AVL before the Commission on 15 August 2025 before that hearing was vacated and rescheduled to 19 August 2025.

I have had particular regard to the fact that these proceedings were commenced on 7 May 2025, the notice of motion was filed on 3 July 2025, the notice of motion first came before me on 18 July 2025 and then several weeks were taken up with the application by PS to appear for LB in the proceedings on the footing of a foreshadowed application to appoint a tutor to LB which never eventuated. Once I dismissed the application by PS to appear for LB there was no reason why the notice of motion could not be dealt with effectively and efficiently having regard to the overriding purpose to facilitate the just quick and cheap resolution of the real issues in the proceedings. It was appropriate that I make efficient use of the available judicial and administrative resources of the court and I deal with the notice of motion in a timely manner. On 8 August 2025, I informed PS, in the presence of LB, that I would hear the notice of motion on 15 August 2025.

I am conscious that by my ruling I would then proceed to hear the notice of motion for the summary dismissal of the proceedings without any evidence or submissions from LB, which might appear to involve a form of injustice to LB. But that was her choice. Instead of appointing an appropriately qualified and experienced legal practitioner to carry on the proceedings on her behalf by leading evidence and making submissions, LB persists in providing instructions to her husband, PS, to conduct the proceedings on her behalf.

LB is running parallel proceedings in this court and the Commission. In those circumstances it was appropriate for me to determine whether I should make the orders sought in the notice of motion which seek to end the proceedings in this court by their summary dismissal. Based on the material that was placed before me, there was no reason why I should not determine the issues that are raised by the notice of motion.

For the reasons stated above, I made the following orders: