LB v Secretary, NSW Department of Education (No 3)

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.

On 8 August 2025, I heard and dismissed an application by PS, the husband of LB, 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).

On 15 August 2025, prior to determining the notice of motion, in the absence of LB, I refused the application by LB to adjourn the hearing of the notice of motion: LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939. LB did not appear at the hearing of the notice of motion, including after she was called outside the court.

On 15 August 2025, I summarily dismissed the proceedings pursuant to r 13.4 of the UCPR, ordered LB to pay the costs of the notice of motion and indicated that I would provide reasons for doing so in due course. These are my reasons for making those orders.

On 30 January 2006, LB commenced permanent employment with the Department as a Classroom Teacher pursuant to the Teaching Service Act 1980 (NSW) (TS Act).

In early 2024, concerns arose in relation to LB’s performance as a Classroom Teacher at the school where she was working (School).

On 18 September 2024, the Principal of the School implemented a Teacher Improvement Program (TIP) to provide formal support for LB to improve her performance.

On 19 December 2024, the Professional and Ethical Standards Directorate (PES) of the Department provided a letter to LB regarding the outcome of the TIP. That letter stated, amongst other things:

On 20 January 2025, the PES of the Department sent a letter to LB which stated, among other things, that the Department had determined that LB’s substantive position would not be declared vacant while the PES was conducting its review into her performance but that she was still required to attend alternative duties at the other school.

On 13 February 2025, the PES of the Department sent a letter to LB which, among other things, informed LB that the Department was considering taking disciplinary action against LB in the form of dismissal and placing her name on a confidential list of people not to be employed in any capacity in New South Wales Government schools. In the letter, LB was informed that she had 14 calendar days in which to make a submission and provide any additional information she wished to have taken into account before a final decision was made.

On 28 February 2025, LB filed in the Industrial Relations Commission of New South Wales:

On 17 April 2025, Commissioner O’Sullivan of the Commission dismissed the First Interlocutory Application, finding that the balance of convenience favoured the Department.

On 1 May 2025, LB filed an application for leave to appeal and to appeal the decision of Commissioner O’Sullivan (Appeal Proceedings).

On 2 May 2025, the PES of the Department wrote to LB informing her, amongst other things, that LB was directed to resign her employment by 4:00pm on 8 May 2025 or she would be dismissed.

On 5 May 2025, LB filed in the Commission a notice of motion making a further interlocutory application seeking orders to stay the dismissal of the First Interlocutory Application and restrain the Department from taking any further steps towards the dismissal of LB (Second Interlocutory Application).

On 6 May 2025, the Second Interlocutory Application was heard urgently and dismissed by President Taylor of the Commission.

On 7 May 2025, as stated above, LB filed the summons to commence these proceedings.

On 8 May 2025, the PES of the Department wrote to LB and advised that, as she had not submitted her resignation, she was dismissed from the NSW Teaching Service as at that date.

On 26 May 2025, LB filed in the Commission an unfair dismissal application pursuant to s 84(1) of the IR Act seeking relief in connection with her dismissal on 8 May 2025 (Second Unfair Dismissal Application).

The Second Unfair Dismissal Application is listed for hearing before the Commission on 25, 26, 27, 28, 29 August 2025, and 3 and 5 September 2025.

On 3 June 2025, LB filed a notice of discontinuance in relation to the Appeal Proceedings.

On 11 June 2025, Sparke Helmore (the solicitors acting for the Department) sent a letter to LB, which:

On 16 June 2025, PS sent a letter to Sparke Helmore which, amongst other things, stated that LB did not consent to the summary dismissal of the proceedings.

On 16 June 2025, the Commission made timetabling orders for the hearing of the Second Unfair Dismissal Application to occur between 25 August 2025 and 5 September 2025.

On 8 August 2025, as mentioned above, I heard and dismissed an application made by PS for leave to appear for LB in these proceedings providing my reasons in the Leave to Appear Judgment. At the conclusion of the delivery of the Leave to Appear Judgment, I stood over the hearing of the notice of motion to 15 August 2025 before me.

The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, rr 13.4(1) and (2) of the UCPR provide:

For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, in which it was held by Barwick CJ at 128–9 that:

In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way at [57] (citation omitted):

This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].

In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].

The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

In relation to the power to strike out a pleading, the court must give consideration to the importance of pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. But the court does not treat them as rigid boundaries beyond which the parties may never stray.

In Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517 stated:

These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–7, who stated (citations omitted):

In Banque Commerciale, Brennan J at 288 quoted with apparent approval the remarks of Jessel MR in Thorp v Holdsworth (1876) 3 Ch D 637, concerning the object of pleadings as stated at 639:

Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings, which is the overriding purpose of the rules of court in their application to civil proceedings: s 56(1) of the Civil Procedure Act 2005 (NSW).

These matters were emphasised by Adamson J in Dickens v New South Wales (No 3) [2018] NSWSC 485, at [36] and [38]–[39]:

The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, as drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, by Johnson J at [32]–[35]:

The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: rr 13.4(2) and 14.28(2) of the UCPR.

In dealing with an application such as the present by an unrepresented litigant, I must recognise that there is a disadvantage in relation to which I must exercise special care to ensure that there is no viable cause of action in the summons which would survive if put in proper form because if it can be done I should avoid the summary termination of the proceedings: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (with whom Hope and Samuels JJA agreed) at 536–7. However, in doing so, I must have regard not only to the litigant in person but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: Herbert v American Express Australia Limited [2018] FCA 1790, Flick J at [60], citing Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989).

The Department’s submissions can be summarised as follows:

I consider this to be an appropriate case for the summary dismissal of the proceedings on the basis that they are an abuse of process and there is no reasonable cause of action which is disclosed in them.

LB has sought relief in the Commission with respect to her dismissal. The Commission has plenary jurisdiction in relation to most of the matters that are the subject of LB’s dismissal. With the imminent hearing before the Commission, it is expeditious and appropriate for them to be heard without the distraction of parallel proceedings in this court: MB v Secretary, NSW Dept of Education (No 2) [2025] NSWSC 744, Slattery J at [8]–[9]. It is an abuse of process for LB to maintain proceedings in this court when she is seeking to ventilate precisely the same matters she has raised in her proceedings in the Commission and in respect of which the Commission has jurisdiction.

Further, all of the relief sought in prayers 1, 2, 3 and 5 of the summons is redundant because the Vacancy Declaration was withdrawn by the Department on 20 January 2025 and LB was dismissed on 8 May 2025.

The relief sought in prayer 4 is now otiose because it has been sought and refused by this court.

I consider that this is a case in which the claims which are made are manifestly groundless and obviously untenable. It is appropriate that the Department no longer be troubled by these proceedings in this court and instead that the underlying issues in dispute should be dealt with in the Commission.

None of these matters raised in the summons are ones which could be put in proper form by some other form of pleading. It is not simply a question that the summons should be struck out and a proper pleading filed. Instead, the appropriate order is for the proceedings to be summarily dismissed.

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