Applicant M v Secretary, NSW Department of Education [2025] NSWIRComm 1069

At a hearing before the Local Court, the Applicant entered into a plea deal with the police prosecutor resulting in a plea of guilt to three charges based on agreed facts, and the remaining four charges being withdrawn. The plea of guilt resulted in conviction and sentence (three community corrections orders to run concurrently). A final AVO in favour of the domestic partner and her children was also issued.

After following a show cause process described in Guidelines made under the SASS Act, the Applicant was dismissed under s 32C of the SASS Act. She filed an application under s 84 of the Industrial Relations Act 1996, alleging that her dismissal was harsh, unjust and unreasonable.

Conciliation was unsuccessful and the matter was programmed for hearing. After both the Applicant and Respondent had filed their evidence in chief and an outline of submissions, both parties filed a Notice of Motion seeking a preliminary hearing on the admissibility of certain evidence that was to be relied upon by their opponent.

The Applicant sought to exclude evidence of the Respondent on the basis that it was both unfair and unlawful for the Commission to receive it (and it was otherwise irrelevant). The Applicant argued on its proper construction and application the scheme of disciplinary action provided by the SASS Act and the Guidelines made under it, meant it was impermissible for the Respondent to seek to defend an unfair dismissal application on a basis different to that relied upon to dismiss. In this case, the Respondent relied upon the fact of conviction alone to dismiss. It did not allege, investigate and find the Applicant, by her conduct that led to conviction, had engaged in "misconduct" within the meaning of the SASS Act. It cannot be permitted to now, using the procedures available to it in the Commission, to conduct the investigation to establish the misconduct it ought to have alleged and investigated from the outset. To do so would be both unlawful and otherwise procedurally unfair.

In addition, the evidence the subject of objection was said to be irrelevant in that the evidence the Respondent now seeks to lead involved an incident that occurred off duty and away from the workplace. It does not have sufficient connection to work to make the out of hours conduct relevant.

The Respondent sought to exclude evidence of the Applicant that it said was an impermissible attempt to traverse the plea of guilt and conviction in the Local Court (the conviction by the Local Court being final and binding as to the Applicant's guilt). The Applicant argued a conviction is not conclusive proof a person has committed an offence (see MTH v State of New South Wales [2025] NSWCA 122) and there is no rule that a party convicted in criminal proceedings may not lead evidence that doubts they committed the offence of which they were convicted, in subsequent civil proceedings to which they are a party.

HELD: The Commission rejected the Applicant's contentions that it was unlawful or unfair for the Respondent to seek to lead the evidence the subject of objection, finding there was nothing unlawful in the course proposed, that the evidence of the Respondent is largely responsive to the case the Applicant now wishes to bring (including as to remedy), and the evidence was otherwise not inadmissible.

HELD: The Commission accepted the Applicant's submission that in an evidential sense a conviction is not conclusive proof that a person committed an offence, but also accepted the Respondent's contention that it is impermissible (and likely an abuse of process) for an applicant to invite findings as to their conduct in proceedings before the Commission that would be inconsistent with the essential facts underpinning a finding by the Local Court that a person was guilty of an offence resulting in a criminal conviction.

HELD: The Commission finds a submission that the Applicant was not guilty of the offences of which she stands convicted is an impermissible collateral attack on the convictions. However, the Commission found the evidence to which the Respondent objects does not deny the essential elements of the offences (or the facts agreed in the Local Court), in the prior criminal proceedings. It may be received as relevant contextual evidence for the purpose of assessing the nature and seriousness of the Applicant's conduct and it's connection with the workplace, both essential considerations in determining whether the dismissal was harsh, unjust or unreasonable.

The applications made in both Notices of Motion were dismissed.

1. The substantive proceedings in this matter concern an application under section 84 of the Industrial Relations Act 1996 (the IR Act) alleging the dismissal of the Applicant from her employment with the education service was harsh, unjust or unreasonable (the Application). The Respondent, the Secretary, is the nominal employer of persons employed by the NSW Department of Education (the Department) in the education service in New South Wales.
2. In this decision for convenience I have identified the parties by reference to their role in the substantive proceedings.
3. The Applicant is a deaf first nations woman. She was employed by the Department between around 17 April 2022 and 4 February 2025, primarily as a School Learning Support Officer (SLSO) for Deaf students. During that period of employment the Applicant came to be in a relationship with another person employed by the Respondent (that I will refer to as W1[1]), who worked at the same school. W1 had three young children from a previous relationship (that I will refer to as W2, W3 and W4). In the course of that relationship the Applicant came to live with W1 and her children.
4. On the evening of Sunday, 29 January 2023, whilst at home in the residence they shared, the Applicant and W1 had an argument. Police were called. In the result, the Applicant was charged with a number of criminal offences (relating to events on 22 and 29 January 2023).
5. On 3 October 2023, the Applicant plead guilty to some, but not all, of the charged offences. She was convicted of those offences and sentenced on the basis of agreed facts, resulting in (amongst other things) the imposition of three community corrections orders that would run concurrently.
6. The Respondent became aware of the convictions and sentence shortly after they were imposed (and had been aware of the charges shortly after they were laid). Following a procedure (described below) in which the Applicant was given an opportunity to show cause why she ought not be dismissed, by way of letter dated 4 February 2025 from Daryl Currie, Executive Director of the Respondent's Professional and Ethical Standards Directorate (PES), the Applicant was dismissed pursuant to the power to take disciplinary action given by s 32C of the Education (School Administrative and Support Staff) Act 1987 (the SASS Act).
7. Precisely what was relied upon by the Respondent in making the decision to dismiss is in issue, but on any view of it, at the least included the fact of the Applicant's conviction for those offences. A final AVO in favour of W1, W2, W3 and W4 was also imposed.
8. This decision deals with two interlocutory applications made by way of Notice of Motion. Those applications were made at a point in time where, pursuant to Directions made by the Commission to ready the matter for hearing, both the Applicant and Respondent had filed their evidence and submissions in chief (respectively, on 29 May 2025, and 24/25 June 2025), and the Applicant was due to file her evidence and submissions in reply (due shortly prior to a multiple day hearing of the substantive matter that had already been programmed).
9. The interlocutory applications may be described in this way:

(1) The first, made by the Applicant via a Notice of Motion dated 1 July 2025, made a "global objection to the respondent's evidence". She sought that the interlocutory application be determined separately and in advance of the hearing of the matter; and

(2) The second, made by the Respondent via a Notice of Motion dated 17 July 2025 objected to the Commission admitting into evidence specific parts of the evidence filed by the Applicant (paragraphs [17] - [19], [23] - [55], [78], [108] and pg 59-66 of Annexure HM-4, and Annexures HM-3 and HM016 where it was said "submissions are made that attempt to traverse the Applicant's guilty pleas"). The Respondent also requested the objection be determined separately and in advance of the hearing of the matter.

1. The grounds upon which the respective interlocutory applications were advanced will be dealt with below.
2. Part 6 of the Civil Procedure Act 2005 (which applies to the Commission[2]), sets out a number of statutory dictates that are to guide the Commission when exercising discretionary powers associated with case management and interlocutory matters. They begin with a recognition that the "overriding purpose of [the Civil Procedure Act] and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings"[3]. They charge the Commission with the obligation to "give effect to the overriding purpose when it exercises any power given to it by [the Civil Procedure Act] or by rules of court..."[4]. Specific emphasis is given to the elimination of delay "beyond that reasonably required" for the fair and just determination of the issues in dispute and the preparation of the case for trial[5], and ensuring costs remain proportionate to the importance and complexity of the matters in dispute[6]. I also note the requirement to act in accordance with the dictates of justice when making any Order or direction for the management of proceedings[7].
3. It appeared the resolution of the respective interlocutory applications could have had a material effect on the issues to be determined in the substantive proceedings and consequently, the evidence and submissions received/made, the scope of cross-examination required of various witnesses (including the Applicant, who will require the assistance of an Auslan interpreter), the length of the hearing, and from a practical perspective given the stage of the proceedings at which the issues arose, the evidence and submissions in reply to be prepared by the Applicant.
4. In those circumstances, whilst it is somewhat unusual in this jurisdiction to hear and determine issues around the admissibility of evidence as a preliminary matter, I was satisfied to accede to the request of the parties to determine the motions as a preliminary matter in advance of the substantive hearing would best facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. The following background facts are, as I apprehend it, largely uncontroversial and drawn from the various documents put before me on the respective Motions.
2. On 29 January 2023, whilst at home in the residence they shared, the Applicant and W1 had an argument. It devolved into a fight. Police were called. In the result, the Applicant was charged with seven criminal offences. For present purposes it is sufficient to note three of the offences charged:

(1) Section 59 of the Crimes Act 1900, Assault occasioning actual bodily harm:

"Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years".

(2) Section 37(1) of the Crimes Act 1900, Choking, suffocation and strangulation:

"(1) A person is guilty of an offence if the person -

(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

Maximum penalty - imprisonment for 10 years."

(3) Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, Stalking or intimidation with intent to cause fear or physical or mental harm:

"A person who stalks[8] or intimidates[9] another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty - Imprisonment for 5 years or 50 penalty units, or both."

1. An interim Apprehended Domestic Violence Order (an ADVO) was taken out again the Applicant in favour of W1, W2, W3 and W4.
2. On 2 February 2023, Mr Currie wrote to the Applicant advising (amongst other things):

(1) the PES had been advised of the charges and the ADVO that, amongst other things, prevented her from entering the primary school at which she then worked;

(2) given the nature of the charges, PES would manage the matter, and do so "in accordance with the Guidelines for the Management of Conduct and Performance" (noting a hyperlink to the guidelines was provided); and

(3) advising the Applicant "No decision about the truth or accuracy of the allegations has been reached", that she "will be provided an opportunity to make a submission once the court matter is finalised and before any decisions are made in relation to this matter", but to manage risk in the interim she would be deployed to alternative duties at another work location.

1. The Applicant was later permitted to return to work in a school, but that can be put to one side for the moment.
2. On 3 October 2023, those charges were listed for a defended hearing before the Local Court. After negotiations between the Applicant's then legal representatives and the prosecutor for the NSW Police Force, the matter proceeded on a plea of guilty to conviction and sentence on agreed facts. The police prosecutor who appeared at the hearing on 3 October 2023 has filed a statement in these proceedings on behalf of the Respondent. He described what occurred on 3 October 2023 in this way:

"a resolution was reached [with the Applicant's then legal representative] where there would be pleas of guilty to sequences 2, 3 and 7 and that there were no amendment to the police statement of facts annexed hereto as Annexure A. On that basis, sequences 1, 4, 5 and 6 were withdrawn"[10].

1. He personally tendered Annexure A as agreed facts[11]. I will refer to the Full Facts in the CAN tendered as Annexure A in the Local Court proceedings from hereon as the Agreed Facts.
2. The offences to which the Applicant plead guilty are articulated in charge sequences 2, 3 and 7 in the Court Attendance Notice H92419432 (the CAN) (Tabs 7.14 - 7.16 of the Investigators Report supplied to the Applicant later in time, as described below):

(1) Assault occasioning actual bodily harm pursuant to section 59(1) of the Crimes Act 1900 (NSW) ('Crimes Act), particularised as:

"Between 7.00pm and 10.00pm on 29/01/2023 at WYOMING. [Applicant M] did assault [W1] thereby occasioning actual bodily harm to her"

(2) Intentionally choke etc person with recklessness pursuant to section 37(1) of the Crimes Act, particularised as:

"Between 7.00pm and 10.00pm on 29/01/2023 at WYOMING. [Applicant M] did intentionally choke [W1]."

(3) Stalk/intimidate intend fear physical etc harm (domestic) pursuant to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), particularised as

"Between 4.00am and 6.00pm on 22/01/2023 at WYOMING. [Applicant M] did intimidate [W1] with the intention of causing the said [W1] to fear physical or mental harm"

1. As would be apparent, W1 was the victim in each case. As is almost invariably the case, the "Full Facts" in the CAN contain a description of what occurred on 22 and 29 January 2023 extending beyond the particularised charges (notably, all seven of the charges initially laid).
2. Having entered the plea of guilty to those three charges, the Applicant was sentenced to three community corrections orders to run concurrently from 3 October 2023. Final Domestic Violence Orders were also made in favour of W1, W2, W3 and W4.
3. Conviction of these offences empowered the Respondent, subject to affording the Applicant an opportunity to make a submission[12], to take disciplinary and/or remedial action[13] under s 32C of the SASS Act.
4. On 29 January 2024 the Respondent, having become aware of the convictions, wrote to the Applicant saying, amongst other things (emphasis added):

"As you were previously advised the department's Professional and Ethical Standards (PES) is investigating allegations about your conduct.

You appeared before Gosford Local Court on 3 October 2023, at which time you pleaded guilty to:

- Assault Occasioning Actual Bodily Harm, section 59(1) Crimes Act 1900 (NSW)

- Stalk/intimidate intend fear physical etc harm (domestic), section 13(1) Crimes (domestic and Personal Violence) Act 2007

- Intentionally choke etc person with recklessness, section 37(1) Crimes Act 1900 (NSW)

The information indicates you were convicted of the above offences and sentenced to the following:

- Assault Occasioning Actual Bodily Harm: Community Correction Order for a period of 12 months to commence on 3 October 2023 and expiring on 2 October 2024

- Stalk/intimidate intend fear physical etc harm (domestic): Community Correction Order for a period of 15 months to commence on 3 October 2023 and expiring on 2 January 2025

- Intentionally choke etc person with recklessness: Community Correction Order for a period of 12 months to commence on 3 October 2023 and expiring on 2 October 2024

1. The letter referred to s 32C of the SASS Act and noted it "allows the department to impose disciplinary action on any employee who is convicted of an offence that" met certain criteria. It continued: "The offence for which you were convicted is such an offence" (emphasis added). Clearly, the letter should have referred the offences (plural) of which the Applicant was convicted, but that can be put to one side.
2. The letter continued to note the Respondent regards "criminal offences by an employee as a serious matter", that the matter would be referred to a decision maker to determine what, if any action should be taken, and invited a submission (emphasis added):

"Before a decision is made as to what action the department will take in relation to this matter, you have the opportunity to provide a response regarding your conviction. If you choose to provide a response, your response might address the circumstances leading to the charges and provide any other information you wish to be considered."

1. Under the heading "Next Steps" the letter observed "The department may make further enquiries after considering the information you provide along with the evidence already gathered. A report about these matters will then be drafted for a decision maker to consider".
2. The letter did not say, as does subsequent correspondence from Mr Currie, that "The actions that gave rise to these guilty pleas amounts to misconduct"[14]. On the Applicant's submission, the absence of such an allegation in the 29 January 2024 letter is of some significance. It is said the reference in this letter to "investigation" is wrong. There was no investigation. It is said this letter makes reference only to the mere fact of convictions and as such makes no allegation of misconduct which, on the Applicant's submission, was a mandatory step if the Respondent wanted to rely upon anything more than the bare fact of conviction. In particular, it is said if the Respondent wanted to allege the conduct that underlay those convictions amounted to misconduct, they needed to put that allegation squarely and they did not. I will return to this later.
3. The Applicant responded to that letter by way of a two-page submission dated 15 February 2024. That response is Annexure HM12 to the Applicant's statement in chief (albeit its attachments are not included). It is also in the Respondent's filed evidence at DoE1 Tab 7.2 pg 70-71 (including a range of attachments at 7.2.1 to 7.2.13, pg 72 to 91, that included the Agreed Facts[15]).
4. The response begins by observing it is written in response to the 29 January 2024 show cause letter "which has been raised against me in regards to convictions I have recently acquired". The Applicant introduces herself to Mr Currie, describing herself as having shown "unwavering commitment to my roles" across the schools at which she had worked, identifying herself as a deaf first nations woman who is "_passionate about educating and advocating for these two minority group_s", and observing "Despite the devastating circumstances that led to this conviction, I remained committed to my role as a Deaf interpreter, role-model, translator, and communication aid".
5. She describes a desire to "share with you my experience, in short, in the hope that you may take into consideration a broader picture than the court's ruling against me". She says (my emphasis):

"Sadly, I found myself in an incredibly toxic relationship with a hearing woman who was consistently physically, emotionally, financially and psychologically abusive toward me. The night of the event in mention, I was cornered and under extreme pressure. Though I am not proud of the events that transpired, my behaviour at this time was not congruent with the gentle kindness I typically exhibit".

1. She does not describe the "events that transpired". I again note that this submission attached a copy of he Agreed Facts.
2. The submission continues to describe the difficulties she faced as a deaf woman navigating the legal system, from the time of arrest, her initial court appearance without an Auslan interpreter (noting thereafter she describes arranging "my own competent interpreters to attend proceedings and assist me ...funded by my own NDIS"), and to having paid for her own "communication support and lawyer to assist me in translating and understanding the proceedings" until Legal Aid was granted (which she says occurred "at the last minute"). The submission turns to communication issues around the community corrections appointments that followed the conviction and sentence. The submission then turns to describe therapy she has undertaken, observing (emphasis in original):

"In the wake of the devastating events and severe mental, emotional and physical abuse I incurred during my relationship that led to this conviction, I have sought consistent therapy at my own cost to reflect on the events that transpired and address the challenges I faced as a result. I have attended self development courses and continuously seek to be the best version of myself. I do not believe my statement was taken into proper account during court proceedings due to communication challenges and the fact that the complainant had made the initial call to police. I have attached a copy of this statement in the hope that you may gain a deeper understanding of the complexity of the situation."

1. The "statement" referred to in the italicised portion of this extract, said to have been attached to the Applicant's submission of 15 February 2024, is not contained in the Respondent's bundle (DoE1 Tab 7.2, referred to by Mr Currie at [65]) or in the copy of the submission attached to the Applicant's statement filed in the substantive proceedings (HM12, referred to a paragraph [102]). It is not at all clear to me whether it was in fact provided to the decision maker at this time. The only description of what occurred that appears to have been supplied with the submission and annexures in the letter of 15 February 2024, was the Agreed Facts.
2. For present purposes, whilst the submission clearly raises the fact the relationship between the Applicant and W1 was "incredibly toxic" and the abuse she says she suffered at the hands of W1 in that relationship, the Applicant's 15 February 2024 submission:

(1) Appears to proceed from an acceptance of the conviction and agreed facts (which were one of the attachments to the Applicant's response), that she accepted "her behaviour at this time" which was not otherwise described in the response_,_ going on to provide an explanation. Whilst referring to having felt "cornered and under extreme pressure" on the "night of the event in mention", she says "Though I am not proud of the events that transpired, my behaviour at this time was not congruent with the gentle kindness I typically exhibit".

(2) Does not protest her innocence of the charges to which she plead guilty and of which she was convicted.

(3) Does not expressly say the Agreed Facts she admitted to in the Local Court were wrong.

1. The Applicant says the absence of any protestation of her innocence or challenge to the Agreed Facts in the Local Court at this time, was the product of confusion in the content of what was alleged in the letter of 29 January 2024.
2. In July/August 2024 the Respondent raised a new and different allegation of misconduct relating to unauthorised secondary employment. After the Applicant provided a response it was, to use the Applicant's description, "later dropped". It is clear it did not form part of the reasons for the Applicant's dismissal. It need not be discussed further.
3. On 15 October 2024, Mr Currie wrote to the Applicant advising the investigation into "your conduct" was complete, and that he had considered "the investigation report and related material". Under the heading "Findings", the following was recorded (emphasis added):

"My findings are:

- [the Applicant] pleaded guilty to:

o Assault occasioning actual bodily harm (DV) T1

- Pursuant to section 59(1) of the Crimes Act 1900 (NSW).

o Intentionally choke etc person with recklessness (DV) T1 pursuant to section 37(1) of the Crimes Act 1900 (NSW).

o Stalk/intimidate intend fear physical etc harm (DV) T2 pursuant to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

- The actions that gave rise to these guilty pleas amount to misconduct.

- Allegation 1 is sustained.

- Allegation 1 amounts to misconduct.

- Allegation 1 does not amount to reportable conduct.

- To assist you to understand the decisions I have enclosed a copy of my written findings dated 10 September 2024, together with a full copy of the investigation material I considered.

I am providing you with this information to assist you to understand my findings and prepare your response..."

1. Allegation 1 related to the secondary employment policy breach. As earlier noted, that allegation whilst substantiated here, was later "dropped". The letter went on to foreshadow the most severe disciplinary action being contemplated was dismissal, and placing the Applicant on the list of persons not to be employed by the Department. It continued to invite a submission "in relation to the proposed action", noting:

"You have 14 days from the receipt of this letter to make the submission and to provide any additional information which you consider should be taken into account before I make a final decision. Your union or legal representative may make your submission on your behalf.

Your submission may address such matters as my documented findings, the Investigation Report, or any extenuating and mitigating circumstances".

1. The letter concluded by identifying the matters that Mr Currie would consider prior to making a final decision, including "The Investigation Report", "Any submission you make", and "The Additional Information Report". The Additional Information Report appears to have been an email chain initiated by someone identifying themselves as W1s sister. The letter concluded by observing the Applicant had the opportunity to have an interview with Mr Currie before a final decision was made (together with a support person). An alternate duties arrangement continued.
2. The "Findings" of Mr Currie dated 10 September 2024 provided to the Applicant as part of this show cause process recorded the offences of which the Applicant had been convicted, noting in respect of each of the charges that the Applicant had "entered a plea of guilty, was convicted and sentenced". It stated (my emphasis):

"[The Applicant] pleaded guilty to charges that included behaviour which is not in keeping with the expectations that the Department of Education has of its employees or those held by the wider community.

While [The Applicant] engaged in conduct in the vicinity of children it did not directly involve them and therefore is not reportable to OCG.

By engaging in this behaviour [The Applicant] has engaged in misconduct".

1. The Investigation Report appears to begin with a document headed "DETAILS OF A PERON SUBJECT OF A SERIOUS OFFENCE". That document, in the nature of a summary, begins with a heading "Background" that sets out how PES became aware the Applicant had been charged and briefly traces the procedural history to that point, including the letter of 2 February 2024 placing the Applicant on alternate duties, the "show cause letter" of 29 January 2024 and the Applicant's written response, a further letter of allegation dated 23 July 2024 and finally her response dated 1 August 2024. As noted above, the allegations in the July 2024 show cause letter were later dropped, but the further show cause process would inevitably account for at least some of the delay in dealing with the disciplinary action arising from the Applicant's convictions.
2. The Investigation Report then describes, under the heading "Details of the offences", the charges to which the Applicant plead guilty and the outcome (the report describing the Community Corrections Orders that were imposed arising from the convictions), refers to those charges that were withdrawn, and then records "The facts for this matter are at TAB 6". I will return to Tab 6 shortly.
3. What follows over the next two or so pages is a bullet point summary of the information recorded in the Agreed Facts. As the report itself noted, the actual document was at Tab 6 of the material supplied to the Applicant.
4. As the Applicant's counsel correctly observed[16], there is nothing in the Investigation Report that indicates any investigation (as that term might ordinarily be understood) was undertaken beyond obtaining information from the NSWPF: there is no indication witnesses were interviewed, or anyone independently of the NSWPF made a factual enquiry to obtain evidence of what the Applicant did or did not do on the relevant occasions.
5. On 8 November 2024, the Applicant provided a written response to the 15 October 2024 letter. That response is Annexure HM3 to the Applicant's statement in the proceedings, to which the Respondent's Motion is in part directed. The Applicant raised the fact she was the victim of violent assaults by W1, some of which had been raised in reports to the school by colleagues who had observed bruising[17], and then said this:

"Secondly, regarding the criminal offences outlined in the investigation findings, I would like to state that I fully understand the gravity of the charges I faced and the responsibility that comes with my guilty pleas. However, it is important to understand these actions occurred within the context of an extremely complex and challenging personal relationship, one in which I also experienced abuse and harm. Also, within a wider context regarding equitable access within the justice and legal systems in Australia."

1. The submission continues to express "profound remorse for any pain or disruption" that W1 and her children may have suffered "due to the difficulties in our relationship"[18], then states (emphasis added):

"In sharing my side of the story, I am not attempting to shift blame; rather, I believe it is important to understand the case within a broader context, an opportunity that was not provided to me by police or the court. To support this, I have attached my personal statement and account, written prior to my hearing, which outlines my perspective and has not yet been considered in your investigation. I have also included a letter from my counsellor to support claims that [W1] displayed extremely abusive and coercive behaviours toward me prior to the incident that led to my arrest. I hope this offers a more balanced understanding of the situation.

The research on Battered Person Syndrome highlights how prolonged exposure to abusive situations can affect a person's behaviour and responses. While I accept responsibility for my actions, I hope that the circumstances surrounding this case can also be considered, as this was an isolated event on my behalf. I am committed to positive change and growth, and I am actively engaging in counselling to address these experiences and prevent anything similar from happening in the future.

1. The submissions continued to describe the difficulties the Applicant faced as a deaf person when dealing with police and reporting domestic violence[19], observing she believed some of those difficulties may have influenced how her case was assessed, stating the Applicant had "hope the Department can consider this context in its evaluation"[20]. The Applicant observed[21]:

"With support from Deaf advocacy groups and the Aboriginal Legal Service, I am working with a lawyer to gather evidence of police mistreatment, which I believe began a cascade of failings by the judicial system, resulting in an extremely negative and impactful outcome for my life."

1. The Applicant refers to the obligation on police to provide interpreters during arrest, questioning and formal statement taking to ensure a person has an understanding of their rights and the legal process, and that as an accused in a domestic violence case she should have been, but was not, afforded the opportunity of making a statement[22]. She referred to communication difficulties with staff of the Respondent following the issuing of the AVO (I assume the interim AVO), including feeling "repeatedly pressured to discuss the incident, despite my discomfort as the case had not yet been heard in Court", but not being able to put her side of the story due to difficulties in communication with the Auslan interpreter who was assisting at that time[23].
2. This part of the submission concludes with the following observation[24]:

"Considering these factors, I respectfully request that the Department consider the broader context of the outcomes of this criminal case. My experiences, both personal and procedural, have highlighted the need for accessible communication, cultural sensitivity, and fair treatment. I am hopeful that by acknowledging these factors, the Department can make a decision that upholds both justice and the principles of inclusivity for all individuals, regardless of their communication needs."

1. The submission describes counselling and self-development training the Applicant had undertaken (improving her self-awareness, coping strategies and to develop qualities that present her as a low risk of reoffending), to her compliance with the community service orders, to her commitment to child safety and her recent positive experience whilst working at another school during the disciplinary process, and to the adverse impact her dismissal would have not only on her but the school community[25].
2. The submission concludes with these observations (emphasis added)[26]:

"I believe any prior investigation has been based solely on incomplete and one-sided information, specifically a police report that does not fully capture the complexity of my situation. Procedural fairness requires that all relevant information, perspectives, and mitigating circumstances be carefully considered before any decision is made. In my case, there were elements of mutual abuse that were not fully explored or understood. Relying only on one version of events has led to an unfair outcome that does not reflect the full context. Because I am Deaf, there are unique communication challenges and cultural factors that directly influenced how my actions and character were perceived. Without a balanced and thorough investigation that considers these aspects, the decision-making process risks being biased and discriminatory. I respectfully request that my case be reviewed with these factors in mind to ensure a fair and just outcome.

In conclusion, I ask that you also consider these circumstances, my commitment to improvement, and my dedication to the Department's values in your decision. While I accept the findings of misconduct, I believe that a less severe disciplinary action than dismissal would allow me to continue contributing to the school community and demonstrate my commitment to positive change. I am determined to meet the Department's standards and to use this experience to become a stronger, more responsible presence within Kincumber High school. Thank you for considering my response and these extenuating factors in your final decision.

1. There are a number of written statements provided with that submission, including one from Michelle Maquire, a Deaf Cultural and Linguistics educator (who provided further information regarding difficulties experienced by the deaf community in dealing with police and the legal system, including the Applicant), one from a Vanessa Sweeney, a counsellor who specialises in working with deaf people who use Auslan (who provides similar descriptions of difficulties those in the deaf community have dealing with police, including the Applicant), and a document described as "[The Applicant] Statement".
2. The Applicant's response to the 15 October 2024 show cause does not submit she did not engage in the offences of which she was convicted, and did not assert she had been denied procedural fairness in the finding that "The actions that gave rise to these guilty pleas amount to misconduct". The document described as "[The Applicant] Statement" sets out an account of incidents in which it is clear the Applicant asserts she was the subject of abusive behaviour by W1, including on 23 December 2022, 14, 16, 18, 22, 28, and 29 January 2023. The description of events on 22 and 29 January 2023 are not entirely consistent with the Agreed Facts. But nowhere in the submission or "[The Applicant] Statement" is there any part of the Agreed Facts identified as now being in dispute - she did not specifically identify any part of the Agreed Facts with which she disagrees. The document "[The Applicant] Statement" was apparently prepared with the assistance of qualified interpreters on 30 January, and 1 - 7 February 2023[27].
3. On 12 November 2024, the Applicant attended an interview with Mr Currie. The Applicant had an Auslan interpreter attend the interview. A transcript of the interview is contained in DoE1[28]. I have reviewed it, but it need not be further described for present purposes. To the extent the "domestic violence situation" was referred to, the Applicant (through the interpreter) said it "happened in the school holidays away from the school, which I'd just like to highlight as well"[29]. The matters otherwise raised do not substantively bare upon this interlocutory application.
4. On 4 February 2025, the Applicant received a letter from Mr Currie (dated 29 January 2025), advising the Applicant was dismissed from her employment. The letter also set out that the Applicant's name would be permanently placed on the list of persons not to be employed by the Department (NTBE List).
5. The letter referred to Mr Currie's earlier correspondence, confirmed that he had read and considered the Applicant's submissions, and the information supplied in the interview he had with the Applicant on 12 November 2024. It records Mr Currie revised his earlier findings such that he now found "Allegation 1 is not sustained" (or dropped as the Applicant described it), but otherwise confirmed his earlier findings recorded in the letter of 15 October 2024:

"I confirm my findings as follows:

- [the Applicant] pleaded guilty to:

o Assault occasioning actual bodily harm (DV) T1 Pursuant to section 59(1) of the Crimes Act 1900 (NSW).

o Intentionally choke etc person with recklessness (DV) TI pursuant to section 37(1) of the Crimes Act 1900 (NSW).

o Stalk/intimidate intend fear physical etc harm (DV) T2 pursuant to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

- The actions that gave rise to these guilty pleas amount to misconduct."

1. Insofar as the letter provided an explanation for the Applicant's dismissal, it provided as follows (emphasis added):

"Whilst I acknowledge the complexities that you, as a deaf person, experience in relating to government agencies your discussion about the issues that you faced when dealing with the NSW Police Department does not detract from the seriousness of the criminal conduct to which you pleaded guilty. It also does not explain the fact that your assertion that you were subjected to coercive control was not mentioned in the criminal proceedings even though this may have been a mitigating factor.

Your understanding of the inappropriateness of your actions was captured at your interview with me when you made the concession that "I ran around shutting doors because I didn't want the children to see any of it". While you contend that your actions were not directed at children you have always been aware of the impact that your violence would have on children who were exposed to it.

The criminal charges to which you pleaded guilty are antithetical to the values of the NSW Department of Education and the ethical and behavioural standards that it expects of its employees."

1. Having considered "all the information", Mr Currie decided to dismiss the Applicant from her employment effective from the date of receipt of the letter[30], and advised the Applicant her name would be added to the NTBE List.
2. These proceedings were commenced within time on 24 February 2025.
3. It is in those circumstances I come to consider the parties respective Motions.

1. As noted at the outset, the Applicant's Motion raised a "global objection" to the Respondent's evidence. The written submissions refined that proposition to raise an objection to "fresh evidence", by which I understood the Applicant to mean "all of the evidence which has been obtained for the first time for the purposes of the proceeding"[31].
2. The affidavit of the Applicant's instructing solicitor described the following material having been served on her by the Respondent[32]:

On 24 June 2025 I was served the following material filed by the Respondent (Department) in this matter:

(a) affidavit of Seargent Christopher Harding - 19 pages;

(b) affidavit of Sarah Baldwin - 73 pages;

(c) affidavit of Nicole Elizabeth Lansdown - 12 pages;

(d) affidavit of Jodee Lee Skehan - 28 pages;

(e) affidavit of Daryl Peter Currie - 39 pages;

(f) affidavit of Brent Justin Walker - 13 pages;

(g) affidavit of Benedict Michael Kearney - 14 pages;

(h) statement of W2 - 5 pages;

(i) Exhibit DoE 1 - 184 pages;

(j) Exhibit DoE 2 - 123 pages; and

(k) DoE Tender Bundle - 178 pages.

On 25 June 2025, I was served:

(a) affidavit of W1 - 63 pages;

(b) Exhibit DoE 3 - 145 pages; and

(c) Respondent's Outline of Submissions - 10 pages.

1. According to the Applicant's solicitor, the Department's material runs to 906 pages, with the affidavits and statements totalling 266 pages and the separate exhibits and tender bundles 640 pages.
2. The Applicant did not identify with precision what amongst this voluminous case it said amounted to "fresh evidence". She did, however, say "the bulk of the material, including all of the witness evidence of the relevant events is fresh"[33]. In that connection, of the 9 witness statements filed in the Respondent's case, 7 are witnesses to the misconduct the Respondent now seeks to prove and were obtained during the course of these proceedings. I understand the Applicant to contend, at the least, that those 7 statements going to the substantive misconduct amount to 'fresh evidence' and ought not be received.
3. The Respondent's Motion was focussed on particular parts of the Applicant's statement in chief filed 29 May 2025. It is unnecessary to set out those passages, but broadly described:

(1) Paragraphs [17] - [19], and HM3 and HM4, describe incidents of physical violence the Applicant maintains were visited upon her by W1 over the course of their relationship. The dates include 26 October 2022, 11 November 2022, 23 December 2022, 14, 16, 18, 22, 28 and 29 January 2023, the detail of which is outlined in HM3. HM3 was the document the Applicant provided to the Respondent on 8 November 2024 in response to Mr Currie's letter of 15 October 2024, referred to above. In addition, in the statement filed in the proceedings reference is made to incidents on 26 October, 11 and 17 November 2022. HM4 appears to depict photographs of the Applicant baring injuries to various parts of her body, taken on the digital camera of a mobile phone on a number of dates including 17 November 2022, 20 November 2022, 30 January (year not identified), 1 February (year not identified) and 6 February (year not identified). The provenance of the photographs is not described.

(2) Paragraphs [23] - [55] describe in some detail what the Applicant says occurred on 29 January 2023. It is broadly reflective of the account in HM3. The Applicant was convicted of two offences alleged to have occurred on 29 January 2023. The Agreed Facts tendered to the Local Court relating to those charged offences describe an incident that occurred in their home that evening. The Applicant's account in her statement and HM3 extends to a time on that day before the altercation described by the Agreed Facts, but also provides an account of what transpired leading up to and during that incident. There are aspects of that account that appear inconsistent with the altercation recounted in the Agreed Facts, but not all. Both accounts record what may be referred to as a fight between the Applicant and W1, involving pushing/wrestling, hair pulling, biting, punching, the Applicant self-harming using a knife, and the Applicant physically restraining W1 on a bed, including by placing a hand over her mouth. Broadly described, the accounts differ as to detail, but also as to who is painted as the primary aggressor.

Those paragraphs do not, however, contain an express claim by the Applicant that she was not guilty of the offences of which she was convicted. It also does not specifically refer to any part of the Agreed Facts saying they were inaccurate, albeit as I have observed the Agreed Facts are not entirely consistent with the account given in her statement (and in HM3).

(3) Paragraph [78] simply says "Redfern Legal Centre's First Nations lawyer is currently assisting me to assess the possibility of traversing my guilty pleas".

(4) Paragraph [107] refers to (and purports to summarise) and attaches the document the Applicant provided to the Respondent on 8 November 2024, HM3 referred to above, in response to Mr Currie's letter of 15 October 2024.

(5) Paragraph [108] refers to the Applicant having attended an interview with Mr Currie (and others) on 12 November 2024, notes that she "organised my own Auslan interpreter, Michelle Maguire" (who was also the Applicant's support person at that interview), purports to summarise what she said during that interview and attaches a transcript of the interview (HM016).

1. In paragraphs not the subject of objection, the Applicant describes the "Criminal Proceedings", including (at [71] - [75]):

The entire criminal process was very traumatic for me. I was not provided interpreters throughout the process, and usually did not understand what was going on. I have included what I remember to the best of my ability, however there may be dates and details I do not recall.

Legal Aid NSW represented me throughout my criminal proceedings.

I don't remember the date of my first court appearance, but I remember there was no Auslan interpreter there.

I initially wanted to plead not guilty. However, after receiving advice from a Legal Aid NSW lawyer, I decided to accept a plea bargain, and plead guilty to three of the charges to avoid the risk of being sent to prison.

I attended Gosford Local Court on 3 October 2023. I entered a plea of guilty and was subsequently convicted of three criminal offences and sentenced to two Community Corrections Orders. There was no Auslan interpreter at court. A copy of the Orders is attached ...

1. The Applicant does not say she was wrongly convicted. She does not refer to the Agreed Facts and resile from any factual matter, although I repeat I appreciate her evidence is not entirely consistent with the Agreed Facts.

1. The statutory context of the dismissal featured heavily in the Applicant's argument in support of her Motion. Particular emphasis was placed on the terms and structure of Part 6 of the SASS Act, and the procedural guidelines issued under s 30 of that Act. It is necessary to detail those provisions in order to properly deal with the Applicant's argument.
2. As an SLSO, the Applicant was employed under the SASS Act. Part 6 of the SASS Act is entitled Management of Conduct and Performance. The Objects of Part 6 include the maintenance of appropriate standards of conduct and "work-related performance" for permanent employees, to protect and enhance the integrity and reputation of the school administrative and support staff of the Department, and to ensure that the public interest is protected[34].
3. Division 2 of Part 6 (s 32) concerns how allegations of "misconduct" will be dealt with, Division 3 (ss 32A - 32B) is concerned with performance management, and Division 4 (ss 32C - 32G) deals with "Miscellaneous Provisions", including suspension whilst certain types of decisions are made[35], when decisions under Part 6 may be implemented,[36] and clarification around the power to appoint a person to a position in connection with disciplinary action[37].
4. "Misconduct" is defined in s 29, and relevantly provides (emphasis added):

29 Meaning of "misconduct"

(1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following -

(a) a contravention of any provision of this Act or the regulations,

(b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action,

(c) taking action that constitutes a detrimental action offence,

(d) taking detrimental action against another person in circumstances where -

(i) the person taking the detrimental action suspects, believes or is aware, when taking the action, that any person has made, may have made, may make or proposes to make an internal disclosure, and

(ii) the suspicion, belief or awareness, whether correct or incorrect, is a contributing factor to the taking of the detrimental action.

(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened -

(a) while the permanent employee concerned was not on duty, or

(b) before the permanent employee was appointed to his or her position.

1. Section 32, the only provision within Division 2, states (emphasis added):

32 Dealing with an allegation of misconduct

(1) If an allegation is made to the Secretary that a permanent employee may have engaged in any misconduct, the Secretary may decide to do either or both of the following -

(a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines,

(b) take remedial action with respect to the permanent employee.

(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Secretary may, if the Secretary is of the opinion that the permanent employee has engaged in any misconduct, decide to take disciplinary action with respect to the permanent employee.

(3) Before any disciplinary action is taken with respect to a permanent employee under this section, the permanent employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.

(4) Even though the Secretary decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Secretary may, at any stage of the process -

(a) decide to take remedial action with respect to the permanent employee concerned as well as dealing with the allegation as a disciplinary matter, or

(b) decide to take remedial action with respect to the employee instead of dealing with the allegation as a disciplinary matter, or

(c) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter.

(5) A decision under this section by the Secretary to take remedial action with respect to a permanent employee does not, if it appears to the Secretary that the employee may have engaged in any misconduct while the remedial action is being taken, prevent the Secretary from dealing with the alleged misconduct as a disciplinary matter under this section.

1. The procedural guidelines with which the Respondent must comply when dealing with any allegation of misconduct, are dealt with in s 30 (emphasis added):

30 Issuing of procedural guidelines

(1) The Secretary may, from time to time, issue guidelines for the purposes of:

(a) dealing with allegations of misconduct against permanent employees as a disciplinary matter, and

(b) the taking of disciplinary action with respect to permanent employees under this Part, including disciplinary action in relation to unsatisfactory performance, and

(c) any other matter referred to in this Part.

(2) The procedural guidelines must be consistent with the rules of procedural fairness.

(3) Without limiting subsection (2), the procedural guidelines are to ensure that:

(a) a permanent employee to whom an allegation of misconduct relates:

(i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the permanent employee, and

(ii) is given an opportunity to respond to the allegation, and

(b) a permanent employee against whom the Secretary is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action.

(4) The Secretary may from time to time amend, revoke or replace the procedural guidelines.

(5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Secretary thinks appropriate.

(6) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the regulations prevail.

(7) The procedural guidelines may apply, adopt or incorporate the procedural guidelines issued under Part 4A of the Teaching Service Act 1980 with such modifications as are necessary.

1. The procedural guidelines applicable at the time will be discussed below. For present purposes it is sufficient to note s 30 contemplates guidelines going beyond dealing allegations of misconduct as a disciplinary matter, may otherwise deal with taking disciplinary action under Part 6, and must afford procedural fairness.
2. Unlike some of its statutory analogues[38], but consistent with the Teaching Service Act 1980 (NSW)[39], conviction of an offence punishable by imprisonment for 12 months or more, whilst not free of consequence (as described below), is not expressly a form of "misconduct" under the SASS Act. Of course, committing a criminal offence resulting in conviction may otherwise be captured by the unhelpfully circular definition of misconduct in s 29(1)(b), including when read with s 29(2)(a).
3. Section 32C, part of the Miscellaneous provisions in Division 4, provides what the Applicant described in oral argument as a "short cut" method for imposing disciplinary action arising from an employee's "conviction" for an offence (emphasis added):

32C Disciplinary action may be taken if permanent employee is convicted of serious offence

(1) If a permanent employee is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the Secretary may decide to do either or both of the following -

(a) take disciplinary action with respect to the employee,

(b) take remedial action with respect to the employee.

(2) Before any disciplinary action is taken with respect to a permanent employee under this section, the employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.

(3) A reference in subsection (1) to the conviction of a permanent employee for an offence punishable by imprisonment for 12 months or more includes a reference to the employee having been found guilty by a court of such an offence but where no conviction is recorded.

1. The label of 'short cut' is apt, given the absence of any equivalent to s 32(1), dealing with an allegation of misconduct.
2. The procedural guidelines were replaced during the period of time between the Applicant having been charged (January 2023) and dismissed (February 2025)[40]. The first was made effective 26 May 2020 and the latter 29 August 2024. For present purposes, it is sufficient to have regard to the first form of the Guidelines as it was those guidelines that were in place at the time the of the initial findings and show cause process.

- Consistent with s 30(1), the Guidelines identify, amongst other things, that taking disciplinary action is relevant[41]:

- when the decision maker is of the opinion that the employee has engaged in misconduct, and it is appropriate

- in dealing with unsatisfactory performance, where the performance is still unsatisfactory after a performance improvement program has been completed

- where an employee has been found guilty of a serious offence, where it is appropriate.

1. That distinction between dealing with an allegation of misconduct (or poor performance) on the one hand, and dealing with an employee found guilty of a relevant offence on the other, is continued throughout the Guidelines. They contain separate procedures for dealing with allegations of misconduct[42], unsatisfactory performance[43], and procedures for dealing what the Guidelines refer to as serious criminal offences[44].
2. Broadly summarised, in relation to dealing with misconduct, the Guidelines:

(1) Define "misconduct";

(2) Described risk management strategies to be followed during an investigation, including in appropriate circumstances, placing the employee an alternative location (doing the same or alternative duties) or suspending an employee (with or without pay) in some circumstances[45].

(3) Articulate timelines. Uncomplicated matters should be dealt with within 3 months from receipt of the initial allegation, acknowledging some may take longer, and that officers should be advised as soon as practicable[46].

(4) Describe a 3 stage "Investigation and disciplinary process", as follows:

Stage 1: Determination of an appropriate course of action when dealing with an allegation of misconduct

Stage 2: Investigation, if it is determined that an investigative response is required

Stage 3: Determination about appropriate outcome. This could involve dismissal of the allegation/s, no further action, remedial action, disciplinary action or a combination of remedial and disciplinary action.

1. The important aspect of the Guidelines for the Applicant's argument is the precision with which they contemplate the allegation (and the investigation of that/those allegation/s), invitation to respond, and decision. In that connection:

(1) Stage 1 relevantly contemplates the determination of the appropriate course upon receipt of "an" allegation:

(a) the decision maker may decide "to deal with the allegation of misconduct as a disciplinary matter in accordance with these guidelines"[47] (emphasis added); and

(b) the employee is to be advised of the decision to treat the allegation as a disciplinary matter and the intention to investigate. Where "the entire allegation" cannot be put, the written advice to the employee at the outset will (emphasis added)[48]:

- "provide as much detail as possible about the nature of the allegations to the extent that it does not interfere with the investigation of another agency, places another person at significant risk or significantly impair the investigation.

- invite the employee to make a written submission, nominate relevant witnesses or provide supporting documentation relevant to the alleged conduct."

(2) Stage 2, the investigation stage, "enables issues to be fully explored before any final decision is made in relation to the allegation"[49]. An important part of Stage 2 is that the "Allegations must be put to the employee with the opportunity to respond". In that connection, the Guidelines provide (emphasis added)[50]:

"In addition to the advice provided in line with 7.4.1.3 (Advising the employee), the employee will be provided with complete allegations for response. Where appropriate to the circumstances for the efficient management of the investigation an employee may be provided with the complete allegations simultaneously with the investigation advice.

The employee will be provided with allegations containing sufficient detail to allow them to fairly and accurately respond. The employee should also be advised that the allegation if proven, may result in disciplinary action".

Stage 2 concludes with the preparation of an investigation report that, amongst other things (emphasis added)[51]:

- details the allegation/s involving the employee

- provides the investigator's view on the relevant facts as to whether, on the balance of the probabilities the employee has engaged in the alleged misconduct, referring to material upon which the view is based

- sets out the investigator's recommendation, if appropriate, discusses the relative seriousness of the conduct and whether the matter should be treated as a disciplinary matter, including any comment on systemic or operational matters that need to be addressed

(3) Stage 3 deals with the Determination of the appropriate outcome by the decision maker (cl 7.4.3), including where a decision maker is satisfied that misconduct is proven, whether to take no further action, remedial action, disciplinary action (or potentially both remedial and disciplinary action)[52]. Amongst other things, when deciding how to proceed the decision maker is required to take into account (emphasis added)[53]:

- the nature and seriousness of the proven misconduct, including the effect and circumstances of the incident

- the degree of relevance of the conduct matter to the employee's position and duties

- whether the conduct or substantially similar conduct has previously been the subject of remedial or disciplinary action

- mitigating or extenuating circumstances:

* any personal circumstances of the employee and whether these may have contributed to any misconduct for example health issues, particular stressors on the employee

* the effect of the proposed action on the employee.

1. Stage 3 contemplates an employee being advised of the proposed disciplinary outcome and invited to put a submission, which must then be taken into account in making a final decision. Of importance for present purposes is the fact the employee must be provided written advice of a finding of misconduct and the proposed disciplinary action. The written notification must include, amongst other things (emphasis added)[54]:

- the details of the misconduct that the decision maker is of the opinion the employee has engaged in

- the full investigation report with all supporting attachments, subject to any legislative or confidentiality requirements which includes public interest disclosure considerations.

- an outline of the disciplinary action that the decision maker proposes to impose, including the severest disciplinary action that is being considered for the particular matter.

1. Stage 3 concludes with the taking of disciplinary action, in which case the employee "will be advised in writing of the final decision as to disciplinary action and if applicable, the date from which the decision becomes effective."[55]
2. The procedure for dealing with "a serious criminal offence" is materially different, and found in Part 9 of the Guidelines. That part applies where an employee is charged with an offence punishable by imprisonment for 12 months or more (referred to as a "serious criminal offence"), or found guilty of such an offence. Broadly described, the Guidelines in this connection provide:

(1) Procedural fairness must be ensured prior to taking any disciplinary action, including that "the employee has been provided with the opportunity to make submissions about any proposed disciplinary action"[56].

(2) The timing of any internal investigations "depends on the police investigation". If charges are issued "it is usually appropriate to await the outcome of the court proceedings"[57], but the Department is to "seek information on the progress of a matter and act promptly upon conclusion of the criminal proceedings"[58].

(3) Where the employee is charged but found not guilty (or charges are not proceeded with), consideration is to be given to whether there is sufficient reason to deal with the matter as an allegation of misconduct (the Guidelines expressly acknowledging the different burdens of proof in the proceedings). In that case, the matter is to be dealt with as an allegation of misconduct, noting "Every effort should be made to ensure that any further investigation is completed expeditiously as usually considerable time may have elapsed pending the outcome of the criminal proceedings"[59].

(4) Where an employee is found guilty of a serious offence (with or without conviction) "the relevant material and facts can be forwarded directly to a decision maker", who may take disciplinary, remedial or no action[60]. Leaving aside situations where an employee becomes an unauthorised person, the Guidelines provide:

"A decision maker must exercise discretion in selecting the appropriate action and not adopt a policy that a particular serious offence will always attract the same action, unless the offence renders the employee barred to engage in child-related work. It should not be assumed that all other convictions will result in either disciplinary action or remedial action.

...

In all matters other than those involving an unauthorised person, the decision maker should, if available, be provided with:

- the certificate of conviction

- the agreed facts or Court findings where available

- a transcript of the Judge's/Magistrate's sentencing remarks, where available."

1. Clause 9.5.1 deals with "What issues should be considered in deciding the appropriate action", and states (emphasis added):

"In determining the appropriate action, the decision maker will have regard to the objects of the legislation.

Issues to be considered include:

- the facts of the case if known

- whether the employee poses an ongoing risk to children

- the impact of the conduct on the objectives of the Acts (see section 4.1)

- the nature and seriousness of the proven conduct, including the effect and circumstances of the incident

- the degree of relevance of the conduct matter to the employee's position and duties

- the employment history and general conduct history of the employee

- whether the conduct or substantially similar conduct has previously been the subject of remedial or disciplinary action

- whether orders of the Court prevent the employee attending for work

- mitigating or extenuating circumstances

- any personal circumstances of the employee and whether these may have contributed to any misconduct for example health issues, particular stressors on the employee

- the effect of the proposed action on the employee."

1. Clause 9.5.2 outlines the "Decision process", starting with correspondence proposing disciplinary action (cl 9.5.2.1). Clause 9.5.2.1 is of significance in light of the Applicant's contentions:

"Disciplinary action proposed

If the decision maker decides disciplinary action is appropriate, the employee must be notified in writing of that opinion and of the disciplinary action being considered, including the most severe disciplinary action. Before any disciplinary action is taken, the employee has an opportunity to make a submission in relation to the disciplinary action being considered.

If the decision is to take disciplinary action, the written notification must state:

- the details of the serious offence

- the materials to be taken into account, for example certificate of conviction (if available), transcripts from criminal proceedings, other criminal convictions

- an outline of the disciplinary action that the decision maker proposes to impose, including the severest disciplinary action that is being considered for the particular matter

- details of any previous employment matters, such as past remedial action or discipline matters or previous satisfactory work history that may be taken into account

- advice that the employee may request within 7 days an interview with the final decision maker and/or provide a written submission within 14 days

- that these further submissions and/or additional information will be considered before a final decision is made to implement the disciplinary action being considered."

1. The Guidelines other deal with inviting submissions and/or an interview and taking the employee's submissions into account (cl 9.5.2.2).
2. In making Decisions, the Guidelines remind the decision maker they must consider all the material before them, including any interview and/or submission from the employee, to make a prompt decision, and that decisions with reasons must be reduced to writing identifying a date of operation (cl 9.5.2.3).

1. The Applicant relied upon an outline of written submissions filed 24 July 2025, which were supplemented with oral submissions, an outline of reply submissions filed 6 August 2025 (filed with leave post hearing, directed to some authorities of this Commission relied upon by the Respondent at the hearing), and an affidavit of the Applicant's solicitor dated 1 July 2025.
2. The Respondent relied upon an outline of written submissions dated 23 July 2025, an outline of written submissions dated 26 July 2025 (directed to the Applicant's motion, handed up at the hearing), which were supplemented with oral submissions, and an affidavit of the Respondent's instructing solicitor filed 17 July 2025. The affidavit referred to the Affidavit of Sergeant Christopher Harding, the police prosecutor who appeared in the Local Court on 3 October 2023, that has been filed in the substantive proceedings. I understand it is relied upon on this motion.
3. Both parties also referred to bundles of documents filed in the substantive proceedings on behalf of the Respondent. In particular:

(1) DoE 1, being a bundle of documents associated with the process leading to the Applicant's dismissal, including the correspondence to and from the Applicant from the initial notification of alternative duties on 2 February 2023, through to her dismissal (much of which is traced above); and

(2) DoE 2 that contains copies of the relevant Procedural Guidelines.

1. The Applicant's submissions in support of her Motion were, in summary:

(1) It was alleged to be not only procedurally unfair, but "unlawful"[61] for the Respondent to lead the fresh evidence:

(a) Part 6 of the SASS Act provides distinct mechanisms for dealing with allegations of misconduct on the one hand, and for dealing with those convicted of a relevant offence on the other. Allegations of misconduct, if they are to be deal with "as a disciplinary matter", must be dealt with "in accordance with the procedural guidelines"[62]. An important aspect of those Guidelines, consistent with s 30(3) of the SASS Act, is the requirement that "the alleged misconduct" be specifically identified from the outset. It must be investigated and findings made. Section 32C provides a short-cut method for taking disciplinary action where an employee is convicted of a relevant offence, avoiding the need for investigation, but it is taken on a limited basis - "the fact of convictions alone".

(b) The Respondent from the outset relied on conviction alone - it did not allege the conduct underlying the convictions was misconduct. The 29 January 2024 letter referred to s 32C and the fact of conviction. It did not allege that she had engaged in misconduct. The fact the 15 October 2024 Show Cause letter refers to "the actions that gave rise to [the] guilty pleas" does not alter the situation. The Respondent cannot change paths midway through the process. The Respondent chose to proceed under s 32C of the SASS Act and never invited her to respond to an allegation that she had engaged in the conduct that underlay the convictions. The Respondent did not allege, investigate or make findings about the underlying conduct. By the time the Applicant receives the 15 October 2024 letter, findings of misconduct were made. She was not heard on that alleged misconduct prior to that finding.

(c) Having regard to the regulatory scheme established under the SASS Act, and unlike the position at common law, the Department is not free to justify its dismissal on any ground it chooses. The Department could only lawfully dismiss an employee for the particular misconduct which it alleged against the employee, and which it dealt with in accordance with the Guidelines. Dismissal on any other ground would be unlawful. The Department should not be permitted to attempt to justify a dismissal on a fresh basis which it could not have lawfully adopted. An attempt to tender evidence for that purpose should be rejected. To allow the Respondent to adopt such an approach would undermine the detailed statutory scheme designed to ensure procedural fairness to an employee[63].

(2) To the extent the Department seeks to justify its dismissal by reference to the Applicant's conduct in her private time, that is not conduct related to her employment (and the Departmental decision maker did not treat the conduct as work-related). That conduct cannot therefore bear on the fairness of the Applicant's dismissal. Evidence of the conduct is therefore irrelevant. Alternatively, if the evidence is relevant at the margins, its probative value is outweighed by the risk it will result in undue waste of time. In that connection, the Respondent's fresh evidence is voluminous. If received it will lead to a substantially extended hearing, and potentially retraumatise the Applicant. The fresh evidence should not be received[64].

(3) The Applicant cannot have a fair trial if the fresh evidence is admitted.

(a) The Respondent's determination of the Applicant's discipline was deplorably slow, and was to that extent inconsistent with the Guidelines and the SASS Act. To the extent the Applicant was (contrary to her primary contention) dismissed because she engaged in the conduct which constituted the relevant offences, the Department failed to put that allegation and failed to investigate it, again contravening the Guidelines and the SASS Act. The failure to investigate means no account was obtained from relevant witnesses (and certainly not at a time proximate to the events), and no exculpatory material was sought or obtained (such as colleagues the Applicant may have identified who could have given relevant evidence). There was not even a full account taken from W1 at a time proximate to the events.

(b) The failure to investigate coupled with the significant delay in decision making, means the Applicant's capacity to answer the evidential case sought to be made against her is significantly and irredeemably prejudiced. The passage of time since the relevant events, and her long disconnection from the workplace and potentially supportive witnesses, has eroded her capacity to meet that (fresh) evidential case. She cannot obtain a fair hearing if the Department's fresh evidence is admitted. The Commission must act according to equity and good conscience, and may inform itself only in a manner which is just: IR Act, s163(1). Admitting the Department's fresh evidence is inconsistent with those statutory mandates. To the extent the Respondent may suffer prejudice, it is the product of its own failure to comply with the SASS Act and Guidelines. They should wear the consequences for those contraventions, not the Applicant.

1. The contentions advanced by the Respondent in resisting the Applicant's Motion can be broadly summarised as follows:

(1) There is nothing in the SASS Act or the Guidelines made under it, that would limit the Respondent's capacity to defend an application to the Commission alleging a dismissal was unfair: there is no general prohibition on the Respondent seeking to lead what the Applicant describes as 'fresh' evidence. Such a rule would prohibit the Respondent from leading evidence about matters relevant to reinstatement, and would otherwise prevent the Respondent from leading evidence in a case responsive to that of an Applicant.

(2) In that latter connection, the Respondent took me to paragraph [5] of the submissions filed on behalf of the Applicant in the substantive proceedings, which say (my emphasis):

"On 3 October 2023 [the Applicant] pleaded guilty to three of the charges, being assault occasioning actual bodily harm, chocking and stalking and intimidation. She did not commit those offences. She pleaded guilty on the advice of her lawyer and because she was afraid of going to gaol, in circumstances where the Court process had been hostile and confusing to her as a deaf person".

(3) That was the first time the Respondent was aware the Applicant expressly denied she had committed the offences to which she pleaded guilty and of which she was convicted. The Respondent otherwise took me through the responses the Applicant made during the internal decision making processes prior to dismissal and compared it to parts of the evidence now sought to be led in these proceedings, to show that in addition to the submission she was not guilty of the offences, there are a range of new and additional factual matters that the Respondent sees for the first time in these proceedings. The Respondent has at all times relied upon nothing more than the conduct that the Court found proved in rendering the conviction (and of course the conviction itself). The Respondent is not seeking to change its case, the Applicant is. The Respondent's evidence is substantially in response to the case the Applicant now seeks to make (referring to MFI1 to make good that point), and otherwise goes to the practicability of reinstatement if remedy arises for consideration.

(4) The contention that by reference to "conviction" in s 32C the Respondent was only permitted to have regard to the conviction per se, and not to the facts underpinning it, cannot be accepted. Section 32C operates on a conviction for an offence, being an offence of a particular kind. Conviction is a formal recording that the Court has found a person has committed an offence, making s 32C(1) consistent with s 32C(3). The section, by reference to conviction (or the finding an offence proven), picks up the elements of the offence. From the outset, the Respondent has relied on the conviction of the three offences to which the Applicant pleaded guilty and the conduct that underpinned those convictions, no more. That does not, however, mean it cannot challenge matters of fact advanced by the Applicant that go to other matters (such as the contextual evidence going to the nature of her relationship with W1), including matters of credit.

(5) The contention the conviction had nothing to do with work is wrong. Misconduct is defined so as to capture conduct outside of work: SASS Act s 29(2)(a). Whilst outside of work and in the context of a domestic relationship, the conduct was nonetheless of one member of staff on another, both of whom worked in the same school. It had a sufficient connection with the workplace. In any event, s 32C is not confined to offences that have a connection with work.

(6) Part 9 of the Guidelines applied to dismissals reliant upon s 32C of the SASS Act, not Part 7, which sets out the procedure for dealing with allegations of misconduct. Section 32C makes no reference to the Guidelines. If there be some non-compliance with the Guidelines (which is not conceded), that would be a relevant consideration on the question of whether a dismissal was harsh, unjust or unreasonable, but it says nothing as to the admissibility of evidence. The Guidelines are not intended to be a "straightjacket" on the Respondent[65]. The same is true of delay: delay does not go to admissibility, it goes to weight.

1. The Respondent's central contention on admissibility was grounded in the idea that the Applicant, by the relevant passages of evidence sought to be excluded, sought "to traverse her earlier guilty pleas, criminal convictions and/or the agreed statement of facts tendered in the Local Court"[66]. Whether for practical/pragmatic reasons, or because of a genuine belief she was guilty, the fact remains the Applicant entered a plea of guilty to three charges in proceedings before the Local Court, and the entry of those pleas and subsequent conviction nonetheless stand as an admission of all the elements of the offence[67]. The conviction cannot be "overturned" in these proceedings[68]. It was said the Commission "has no jurisdiction to traverse the Local Court's finding of guilt"[69]
2. There is a fundamental principle (embodied in the maxim res judicata pro veritate accipitur) that determinations of a Court which have not been set aside or quashed are to be accepted as incontrovertibly correct. This principle was expressed in Rogers v The Queen[70] in these terms: "The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct ... That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice". It was expressly applied by this Commission in Danwer v Corrective Services NSW [2013] NSWIRComm 1009 at [54][71]. There are other decisions of this Commission that adopt the same approach: see McFarlane v Corrective Services NSW [2018] NSWIRComm 1073 at [76] - [79]; Bethel v Director General, Department of Premier and Cabinet, Department of Attorney General and Justice (Corrective Servies NSW) [2013] NSWIRComm 1006 at [84] - [87]; Adamowski v Department of Education and Communities [2015] NSWIRComm 33 at [93][72].
3. By the evidence to which objection is taken, the Applicant is inviting the Commission to accept a factual premise which is inconsistent with the material facts presented on plea, and to resile from her guilty pleas in the Local Court. The pleas of guilt were no doubt of benefit to her in the Local Court. The Commission should not permit the Applicant to resile from them because it has now become a burden for her in these proceedings. To the extent that the Applicant's evidence seeks to do so, such material is irrelevant and should not be admitted into evidence by the Commission.
4. In resisting the Respondent's Motion, the Applicant submissions were essentially:

(1) At least in the context of the Evidence Act, the fact of a conviction is admissible as proof of the facts constituting the offence, has probative value (often significant probative value), but is not conclusive: MTH v State of New South Wales [2025] NSWCA 122.

(2) There is no rule of that prevents a person who has pleaded guilty to, or otherwise been convicted of an offence, from disputing in different proceedings, that they engaged in the conduct constituting the offence. The case of MTH v State of New South Wales is itself an example of that.

(3) The Evidence Act has modified the position (adopting recommendations of the Australian Law Reform Commission), but at common law the fact of conviction was not evidence of anything. Anyone relying upon conduct that informed a conviction had to prove that conduct without being able to say, prima facie, the conviction stands as evidence of the elements of the offence.

(4) The Respondent's contention that the Applicant is seeking to 'traverse her plea', or the conclusiveness of the conviction, takes an erroneous starting point. Traversing a plea is a step taken to set aside a conviction. The fact of conviction is not in doubt in these proceedings. Submissions about the finality of decisions are "besides the point"[73]. What is at issue is the facts of what occurred at the relevant time and in that connection the fact of conviction is not conclusive proof of anything albeit it may be heavily probative. There is no rule that would render the evidence of the Applicant inadmissible.

(5) To the extent any decision of this Commission finds there is a rule that prevents an applicant from leading evidence and inviting findings of fact inconsistent with the facts that informed the essential ingredients of an offence for which a person has been convicted (or found guilty but no conviction entered), or agreed facts and/or remarks on sentence, they are inconsistent with MTH v State of New South Wales, wrong and ought not be followed.

1. The Commission when not in Court Session, is empowered to determine its own procedure, is to act as quickly as practicable[74], is not bound to act in a formal manner or by the rules of evidence, may inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms[75].
2. The common law, at least from 1943, held the position that evidence of a conviction was not admissible as evidence of the essential elements of the offence of which the person was convicted (sometimes referred to as the rule in Hollington v Hewthorn[76]). That rule was never of universal application[77]. For example, it had been held to have no application when the very fact of conviction was material[78] (as opposed to the facts upon which the conviction was based). It had been held to have no application before Tribunals that are not bound by the rules of evidence[79].
3. In any event, that common law rule was the subject of significant criticism[80] (for example, Lord Diplock in giving judgment for the House of Lords in Hunter v Chief Constable of the West Midlands Police & Ors said of the judgment in Hollington v Hewthorn, that it was "generally considered to have been wrongly decided"[81], and Lord Denning MR in McIlkenny v Chief Constable described it as "Beyond doubt ... wrongly decided"[82]), and has been largely overtaken by statute long ago. In the United Kingdom, by the enactment of the Civil Evidence Act 1968 (sections 11 and 13). In present day New South Wales, Chapter 3, Part 3.5, sections 91 - 93 (and s 178[83]) of the Evidence Act 1995 (NSW):

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

**Note - **

Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

92 Exceptions

(1) Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:

(a) the death, or date of death, of a person, or

(b) the due execution of a testamentary document.

(2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or

(b) that has been quashed or set aside, or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

93 Savings

This Part does not affect the operation of:

(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or

(b) a judgment in rem, or

(c) the law relating to res judicata or issue estoppel.

1. Section 178 of the Evidence Act facilitates proof of, amongst other things, the conviction, acquittal, sentence or order, of a person, including the particular offence or matter in respect of which the conviction, acquittal , sentence or order was had, passed or made, if stated in a certificate issued by a judge, magistrate, registrar or other proper office of the applicable court.
2. In addition, s 167 of the Evidence Act enables a "reasonable request" for the purpose of determining a question that relates to, amongst other things (s 167(b)), "evidence of a conviction of a person for an offence". A "request", amongst other things, means (s 166(g)): "in relation to evidence that a person has been convicted of an offence, being evidence to which section 92 (2) applies - to call as a witness a person who gave evidence in the proceeding in which the person was so convicted".
3. It is now well settled that sections 91 and 92(2) of the Evidence Act render evidence of a person's conviction admissible in civil proceedings in which that person is a party, to prove:

(1) the fact of conviction and the essential elements of the offence with which they were convicted;

(2) but not the detailed facts found by a sentencing judge[84].

1. As the Court of Appeal recently observed in MTH v State of New South Wales[85], following a review of a number of authorities (at [29] - [30], [45], emphasis in original):

"These decisions establish that a certificate of conviction is admissible to prove the fact of conviction and the fact of the commission of the offence, being the fact of each element of the offence, its date and the identity of the offender and, if there be one, the victim. ...

These decisions also establish that other documents containing facts relating to the convictions, including those referred to in the sentencing remarks, are not admissible to prove the facts stated in them. ...

...In any event, the Evidence Act allows a certificate of conviction to be admitted as proof of the elements of the offence bud does not provide it is conclusive evidence".

1. Though not bound by the rules of evidence, the Commission has long recognised it may be appropriate to exercise its discretion to receive evidence in a manner consistent with the application of the rules of evidence. I consider it appropriate to adopt that approach in this matter. As the two relevant Australian Law Reform Commission Reports[86] adopted in crafting Part 3.5 of Chapter 3 of the Evidence Act make plain, ss 91 - 93 were crafted to avoid the rather absurd proposition presented by the rule in Hollington v Hewthorn that in a civil case involving a person convicted of a crime proved beyond reasonable doubt (even on admission), evidence of the conviction was not even admissible as evidence of the elements so proved, despite a lesser standard of proof being applicable. The ALRC recommendations made clear these provisions were not intended to render the conviction conclusive evidence of the essential elements of the offence, or was even presumed to be correct[87]. In that connection, I note in particular [778], my emphasis:

"The main objections to the use of a presumption are that a presumption does not avoid the problem of considering the weight of a conviction and that it unnecessarily adds to the difficulty of showing that the conviction is wrong or unhelpful to the civil issues. A conviction has substantial evidentiary weight itself in any event and needs no presumption that it was justified. It is enough that the convicted person will have an evidentiary onus in the civil proceedings, if he disputes the facts sought to be proved by the conviction. ... The proposal is designed to assist plaintiffs to fill gaps in evidence but should not encourage them to become complacent about discharging the overall onus of 'he who asserts must prove'. The weight to be accorded to a conviction can vary greatly and should be left to the civil court in each case."

1. The Courts have interpreted ss 91 - 92 in precisely that way, as the extracted passage from MTH v State of New South Wales makes clear[88]. On that approach, whilst there is strictly no presumption that the convictions were properly entered, the practical effect of s 92(2) is to impose an evidential burden on the Applicant to lead evidence of the facts as she would have them[89]. That of course would not disturb the fact of conviction[90].
2. In my view, that approach will best enable me to be informed in a manner that is just, directed to the substantial merits of the case, and in accord with equity and good conscience. Whilst I refer to the relevant rules of evidence, I do so conscious that I am not bound by those rules.
3. Perhaps of more practical importance for a case such as the present, it should be observed that the rule Hollington v Hewthorn had no application to evidence of a plea of guilt (as distinct from the conviction). In Hollington v Hewthorn itself, Goddard LJ (as his Honour then was), said[91]:

"It may frequently happen that where bigamy or any other crime has to be proved in a civil proceeding the prisoner on his trial had pleaded guilty. Proof by a witness present at the trial of the confession is admissible because an admission can always be given in evidence against the party who made it. In the present case, had the defendant before the magistrates pleaded guilty or made some admission in giving evidence that would have supported the plaintiff's case, this could have been proved, but not the result of the trial."

1. The plea of guilt, leaving aside the recording of a conviction, is admissible as evidence of the offence to which the plea is entered[92]. In the current proceedings, that is likely to give rise to real credit questions in the substantive proceedings. Such considerations, however, are not directed to the admissibility of evidence.
2. How does the idea that conviction is at best only prima facie evidence of the essential elements of an offence and not conclusive, sit with the maxims interest reipublicae ut sit finis litium (it is in society's interest that there be an end to litigation) and res judicata pro veritate accipitur (what is adjudicated is taken as the truth), described as principles of fundamental importance to the structure and operation of our legal system[93], informing res judicata and cause of action estoppel in civil proceedings, and autrefois convict and autrefois aquit in criminal proceedings? Put differently, how does the doctrine of merger apply upon the entry of conviction, if conviction is only prima facie evidence of the offence: after all "Just as judgment of a court of record in a civil action changes the cause of action to a matter record, conviction in a court of record in respect of a criminal offence brings about "the substitution of a new liability""[94]
3. That question did not arise in MTH v State of New South Wales (as noted by the Court at [45]), because no evidence was led by the estate of the deceased alleged tortfeasor. Section 93 does not address the issue: the law of res judicata and issue estoppel arise from findings made or judgments rendered in civil proceedings, and only operate inter-parties. They are not applicable to criminal proceedings[95]. They have no application here. Whilst it has been said that a conviction has some of the qualities of a judgment in rem binding on everyone, as I understand the position, a conviction remains as a matter of law a judgment as between the Crown and the accused[96].
4. Courts have had to grapple with this proposition from time to time[97]. In the general courts it was accepted long ago that there is an "inherent power which any court of justice must possess to prevent a misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it , or would otherwise bring the administration of justice into disrepute among right-thinking people".[98]
5. There may be exceptions (for example, where fresh evidence of the relevant kind is to be relied upon[99]), but one classic illustration of proceedings that may be an abuse of process is where raising an issue of fact invites a collateral attack on a conviction: such proceedings would bring the administration of justice into disrepute among right thinking people"[100]. That is because[101]:

"That is because 'where the later civil action must, in order to succeed, establish that a subsisting criminal conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute'

1. The question of whether subsequent civil proceedings in this context may be an abuse of process was dealt with by the plurality of Gleeson CJ, Gummow, Hayne and Hedon JJ said in D'Orta-Kenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 (with whom McHugh J agreed at [162], [165] - [166]), at [77] - [80]:

"As Deane and Gaudron JJ pointed out in Rodgers [(1984) [1994] HCA 42; 181 CLR 251 at 273-274], principles of finality find reflection not only in doctrines of preclusion intended to protect the position of an individual (the doctrines of res judicata, issue estoppel an so-called "Anshun estoppel") but also in the public need "for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct" [(1994) [1994] HCA 42; 181 CLR 251 at 273. See also Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 625-626 [53]- [55] per Gummow J]. It is this public need which must underpin the proposition that a conviction cannot be challenged in subsequent proceedings. But if that is right (and it is) neither should an acquittal be open to challenge. Then the question comes down to whether some useful distinction can be drawn between civil and criminal cases. For the reasons given in Labrador Liquor, none can.

Nor is it right to see the administration of the civil law as giving rise to judgments worthy of less respect than those reached on the trial of indictable or other offences. No doubt account must be taken of the different standards of proof. Account must also be taken of the fact that there are cases in which issues tried in civil litigation include issues that have been, or could be, the subject of criminal prosecution. The civil action for assault, the personal representative's proceedings to determine whether the beneficiary named in a will is barred from taking because the beneficiary feloniously killed the deceased, are but two obvious examples of such suits. But in none of those actions was the person who would seek to challenge the outcome reached in some earlier (criminal) proceeding a party to that earlier proceeding.

In cases where a client sues an advocate, the client will always have been a party to the proceeding the result in which is challenged. If effect is to be given to the principle that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to the parties to the proceeding in which the decision is given. The final outcome of the proceeding, whether "civil" or "criminal" or a hybrid proceeding, must be incontrovertible by the parties to it.

If that is right, it follows that no remedy is to be provided if its provision depends upon demonstrating that a different final result should have been reached in the earlier litigation. ...

1. The Applicant's contention that reliance upon Rogers v The Queen and notions of finality of decisions being "besides the point"[102], cannot be accepted. The decisions of this Commission relied upon by the Respondent in this connection were not wrong to have applied that fundamental principle.
2. The Respondent did not deploy the language of 'abuse of process' in its submissions, but that is the point to which the authorities it relied upon are directed. An abuse of process "is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings"[103]
3. The Applicant's submission in the substantive proceedings that "She did not commit those offences"[104] cannot succeed without demonstrating that a different final result should have been reached in the earlier litigation - in other words, that the Applicant's criminal conviction of those offences is wrong. That is reinforced by paragraph [7] of those submissions in which it is said: "[Applicant M]'s convictions appear to involve a serious injustice, and she is seeking advice ... about traversing her pleas". If the submission the Applicant did not commit those offences were accepted, it would plainly generate conflicting decisions on the same issue.
4. In my view, absent fresh evidence, it is difficult to see how it is not an abuse of process for an applicant in unfair dismissal proceedings in which dismissal was grounded in s 32C of the SASS Act (or its equivalent) to invite a factual conclusion in their favour in those proceedings that is directly inconsistent with the essential elements of the offence of which that person stands convicted. That is particularly so where, as here, the subsisting conviction resulted from a plea of guilty on agreed facts in proceedings where the then accused, now applicant, was legally represented.
5. Evidence led solely to support a submission that is unavailable would, in my view, be irrelevant to any fact in issue and as such inadmissible. That is not, however, this case for the reasons explained below.
6. With those general observations, it is convenient to deal with the Respondent's Motion first.

1. The Respondent's objection to paragraphs [107] and [108] (and the associated annexures HM3 and HM16) of the Applicant's statement are each rejected and can be shortly dealt with.
2. As for the content of paragraphs [107] and HM3, and [108] and HM16, none of that (from a procedural stand point) is in issue. As noted above, HM3 is a document that was supplied to the Respondent in response to Mr Currie's letter of 15 October 2024. Paragraph [107] describes that fact (to the extent is summarises the submission, it takes the matter nowhere but need not be struck out on that basis). The fact the Respondent received HM3 in response to Mr Currie's 15 October 2024 letter is not in issue, and a full copy of HM3, is already within the Respondent's filed evidence (as part of a recount of what led to the dismissal and the matters considered by the decision maker) and will likely be received in evidence by the Commission[105]. The same is true for [108] and HM16. The fact the Applicant attended an interview on 12 November 2024 is not in issue. It is described in the Respondent's filed evidence, including a full transcript of that interview[106].
3. On one view, if 91(2) of the Evidence Act were applied strictly, the annexure HM3 may not be admissible for any purpose, but (noting I am not strictly bound by those rules, even though I have indicated I would generally follow them here) I am not prepared to proceed on that basis. In my view, it is necessary and just that I receive an account of what the Applicant had said in the statutory process that preceded her dismissal.
4. As for paragraph [78], unless and until the convictions are set aside, the fact the Applicant is seeking advice on traversing her plea is irrelevant to any issue before me and so the objection is upheld. Paragraph [78] is struck out.
5. The objection to paragraphs [17] - [19] and the content of HM3 and HM4 insofar as they do not relate to the conduct that led to the conviction is also rejected. Much of what is set out in those paragraphs and the associated annexures has nothing to do with the offences for which the Applicant was convicted (and so the primary contention of the Respondent reliant on the principle from Rogers v The Queen falls away), and is not irrelevant: it appears relevant to contextualise the relationship between the Applicant and W1 (a matter capable of being deployed by the Applicant in support of a finding that dismissal was harsh, unjust and unreasonable). The objection in that connection is over-ruled.
6. Paragraphs [23] - [55] of the Applicant's statement, and those parts of HM3 that describe what happened during the incidents that gave rise to the convictions for offences committed on 22 and 29 January 2023, require greater consideration.
7. It is no doubt true that the entry of a plea of guilty constitutes an admission of all the elements of an offence (and conviction now stands as at least some evidence of the essential ingredients of the relevant offence). For the reasons expressed above, in my view, inviting a finding that the Applicant did not engage in that conduct would be a collateral attack on the conviction. Stated at that level of generality, the principle may be easily applied where there is but a single charge/conviction or where the record of the criminal proceedings makes clear what acts were said to ground the offence[107]. But that is not this case. At that level of generality, the principle is of little utility in resolving the current application for reasons that I will explain.
8. Summary offences in New South Wales initiated by a police officer are commenced via a written CAN that must[108]:

(a) describe the offence,

(b) briefly state the particulars of the alleged offence,

(c) contain the name of the prosecutor,

(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person; and

(f) Any additional matters prescribed by rules of court.

1. Rule 3.11 of the Local Court Rules 2009 provides the additional matters that must be included in a CAN:

(a) the time and date of the alleged offence or, if the exact time and date are not known or the alleged offence occurred over a period of time, the period of time during which the offence is alleged to have occurred,

(b) the place where the offence is alleged to have occurred.

1. The "particulars" required by s 175(3)(b) are "a statement of the way in which, in the circumstances of the particular case, the prosecutor alleges that the general standard of conduct imposed by the provision of the law that creates the offence has been breached"[109].
2. The particulars of the three offences to which the Applicant entered a plea are extracted at paragraph [20] above. Those are the essential ingredients of the offences with which she was convicted.
3. On 3 October 2024, the Applicant entered a plea of guilty to 3 of 7 charges. In doing so she obtained what can reasonably be described as a significant advantage: she was no longer at risk of the remaining four charges (which included a serious change under s 114(1)(a) of the Crimes Act for being armed with a weapon or instrument with intent to commit an indictable offence, a further change of assault occasioning actual bodily harm, and two counts of common assault), and obtained the benefit of a discount on sentence on account of her plea.
4. The Agreed Facts were, as explained above, the "Full Facts" contained in the CAN in its original form. Those Full Facts extend well beyond the essential particulars, and were crafted to attend to all 7 of the charges initially laid. There were initially four charges involving an assault (two common assault, two assaults alleged to have occasioned actual bodily harm). Neither the particulars of the alleged offences as initially laid, nor the Full Facts (which became the Agreed Facts) enable a precise identification of what conduct, that is to say what act/s of the Applicant, are said to amount to an 'assault' for the purpose of Sequence 2 in the CAN to which the Applicant entered a plea.
5. The Applicant's account of what transpired on 29 January 2023 in her statement and in HM3, go well beyond the incident described in the Agreed Facts that inform the three convictions. To the extent the Respondent's objection is directed to those parts of the Applicant's evidence, it must necessarily fail - there can be no rational suggestion of a collateral attack on the convictions arising from any of that evidence and it is not otherwise irrelevant.
6. The Applicant's account of the incident on the evening of 29 January 2023 contained in evidence, when compared to the Agreed Facts is clearly designed to paint her as the victim of aggression rather than the aggressor. That is not necessarily inconsistent with her conviction of the offences charged in Sequence 2, 3 and 7 of the CAN. Focussing on Sequence 2, the point, however, is in the absence of a denial of any of the conduct in the Agreed Facts, the evidence in those paragraphs to which objection is taken and the relevant parts of HM3 are not necessarily a collateral attack on the conviction. Shorn of the impermissible submission that the Applicant was not guilty of the offences, they can be received for the purpose of describing the context in which the offending conduct occurred, and therefore the nature and seriousness of the conduct, which is relevant to the Applicant's argument that dismissal is harsh (and potentially as to remedy).
7. On both accounts (the statement in these proceedings and HM3 on the one hand, and the particularised offences of which the Applicant was convicted and Agreed Facts on the other), a physical fight occurs between the Applicant and W1 in their bedroom the evening of 29 January 2023. In her material in these proceedings, the Applicant does not deny pushing W1, pressing her forearm into W1's forehead (although says this was unintentional at the time), or having pulled W1's hair, or biting her, albeit the acts she describes are not necessarily the same as the Agreed Facts and she presents her conduct in that connection as defensive to violent acts of W1.
8. The Applicant does not at any stage describe having punched W1. The Agreed Facts, in addition to casting the actions of the Applicant as aggressor, says (emphasis added):

"The accused has punched the victim left hand side of the forehead causing immediate pain, swelling and bruising. The victim could not detail exactly what order the assault took place but informed police that the accused has bitten the victim on the forearm three times, bitten the right side of the victim's forehead, bitten her left thumb which has caused it to bleed and bitten the right big toe and bent it back".

1. Whilst the Applicant's account does not describe this conduct (other than the biting of a toe) in the impugned evidence, she does not deny it either. There is nothing in the Applicant's evidence (neither the Statement nor HM3), that expressly denies any aspect of the Agreed Facts.
2. In the absence of being able to identify with precision which acts within the Agreed Facts are said to reflect the offence in Sequence 2 of which the Applicant stands convicted, the account in her evidence and HM3 is not, in my view, an obvious collateral attack on the conviction. It is capable of being received and understood as an explanation of what transpired on that day, rather than in support of the impermissible collateral attack as framed in paragraph [5] of the Applicant's substantive submissions. For that reason, I am not satisfied to permit that evidence to be led would be to permit the Applicant to mount a collateral attack on the conviction, or otherwise have a tendency to bring the administration of justice into disrepute. The Respondent's objection to receiving that evidence is overruled.
3. The position with respect to Sequences 3 and 7 is a little different, but the result appears the same.
4. There is only one paragraph of the Agreed Facts that is capable of informing Sequence 3 of the CAN (ie the choking offence on 29 January 2023). The Applicant deals with this at [49] - [52] of her statement, and at HM3 pg 24 - 25 (DoE1 pg 39-40). The Applicant does not deny at the relevant time she was in a physical altercation with W1 on their bed, that W1 appeared to be yelling (she could obviously enough not hear, but describes having observed mouth movement patterns consistent with yelling), and that she tried to stop her yelling by placing her hand over her mouth. Neither account suggests W1 became unconscious.
5. The Agreed Facts say "The accused has then placed her hand over the mouth of the victim to prevent her from talking and then placed her fingers down her throat which the victim said that they were right down her throat, so deep the victim was choking on the accused fingers. The victim informed police that she was restricted from breathing and talking". The Applicant's account in her statement and HM3 does not refer to fingers down W1s throat or choking or restricted breathing, but she does not deny that either. The Applicant otherwise describes W1 having repeatedly bitten her hand and biting her finger whilst "trying to stop her from yelling at me by putting my hand over her mouth...", which necessarily must mean the hand and/or fingers were in W1's mouth at least at some point.
6. The Applicant's account of what transpired on 29 January 2023 is obviously not generally consistent with the Agreed Facts. That may give rise to questions of credit that will need to be determined in the substantive proceedings. But insofar as the facts informing the conviction on Sequence 3 are concerned, the account in her evidence and HM3 is not, in my view, shorn of the impermissible submission that the Applicant did not commit the offences of which she stands convicted, an obvious collateral attack on the conviction. It is capable of being received and understood as an explanation of what transpired on that day in mitigation. For that reason, I am not satisfied to permit that evidence to be led would be to permit the Applicant to mount a collateral attack on the conviction, or otherwise have a tendency to bring the administration of justice into disrepute.
7. The factual particulars of Sequence 7, the 'stalk/intimidate' offence, can be identified as the offence particularised on 22 January 2023. It is the only offence of which the Applicant stands convicted on that day. The Agreed Facts only have one paragraph that deals with that event. The Applicant does not deal with that event directly in the paragraphs of her statement to which objection is taken. She did, however, refer to it in HM3 supplied to the Respondent in response to the Show Cause letter of 15 October 2023 (which is, as noted above, already in the Respondent's filed case in DoE 1[110]).
8. The Applicant's account in HM3 expands upon the facts asserted in the relevant paragraph of the Agreed Facts, but she does not deny that she closed the bathroom door whilst her and W1 were inside the bathroom, or that W1 wanted and took steps to apparently try and leave the bathroom, or that she smashed a mug, or that she made a laceration on W1's arm with the broken mug. The Applicant in HM3 otherwise says she "cannot fully recall what happened that day", but does say the cut to W1's arm was an accident. The Agreed Facts does not allege it was deliberate, but even it they did, the cut to W1's arm is not an essential ingredient of an offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 and no charge of assault or ABOAH related to 22 January 2023.
9. The Applicant's account of what transpired on 22 January 2023 would appear to be an attempt to present what happened that day in a way designed to undermine the essential mental element of a stalk/intimidate offence (ie acts done "with the intention of causing the other person to fear physical or mental harm"), but the Applicant does not expressly say she did not intend, by her actions, to cause W1 to fear physical or mental harm. The Applicant stands convicted of the offence on the basis of a plea of guilt. The account in HM3 is capable of being understood as an explanation of what happened on that day, and (again, shorn of the submission that the Applicant did not commit the offences) is not a collateral attack on the conviction. For that reason, I am not satisfied to permit that evidence to be led would be to permit the Applicant to mount a collateral attack on the conviction, or otherwise have a tendency to bring the administration of justice into disrepute.
10. The passages of the Applicant's evidence to which objection has been taken do not necessarily give rise to any direct inconsistency with the essential ingredients of the charges to which she entered a plea of guilt and on which she was convicted. The evidence to which objection is taken (other than s [78]) is not otherwise irrelevant. As such, the Respondent's objection is overruled.

1. I accept that Part 6 of the SASS Act and the associated Guidelines provide two distinct mechanisms for the imposition of disciplinary action, dealing with allegations of misconduct on the one hand and those convicted of what the Guidelines refer to as a series offence on the other, but I do not accept the Respondent is acting unlawfully (or unfairly) in these proceedings by relying upon what the Applicant describes as "fresh evidence". There are a number of reasons for that.
2. First, I do not accept s 32C of the SASS Act in permitting disciplinary action to be taken where a permanent employee is "convicted ... of an offence that is punishable by imprisonment for 12 months or more", which is taken to include a circumstance in which 'the employee [is] found guilty by a court of such an offence but where no conviction is recorded", prevents the decision maker having regard to both the fact of conviction and the conduct that constitutes the relevant offence.
3. The word "conviction" when used in a statute can have a variety of meanings[111], but in this context is obviously referring to the traditional meaning of conviction in which the recording of a conviction is a step separate and distinct to both the entering of a plea (where the plea is one of guilt) and the passing of sentence[112]. That is the words ordinary grammatical meaning in this context ( "a finding that an accused is guilty of the crime charged"[113]), and is consistent with the surrounding context of subsection 32C(3). Conviction of an offence, when used in this sense, records the Courts satisfaction that the accused committed the relevant act/s with the requisite intent, beyond a reasonable doubt. When the SASS Act permits a decision maker to "take" "either or both" disciplinary action and/or remedial action with respect to "an offence that is publishable by imprisonment for 12 months or more" of which the employee has been "convicted" or of which the employee has "been found guilty by a court ...but where no conviction is recorded", it permits the decision maker to have regard to "the offence" found proven.
4. Part 9 of the Guidelines do not, in my view, extend beyond what is permissible under s 32C, and is not, at least in terms, inconsistent with the rules of procedural fairness (as required by s 30(2) of the SASS Act):

(1) Clause 9.1 and 9.2 deal with a situation in which an employee has been "charged" or "convicted" of a relevant offence, and in both cases require the Secretary (through EPAC) to be "immediately" advised.

(2) The Guidelines contemplate investigation (cl 9.4), but "The timing of conducting an internal investigation depends on the police investigation". Such an investigation should not continue if an external authority asks it be halted, and that if the employee is charged (whether any internal investigation is complete or not) "it is usually appropriate to await the outcome of the court proceedings" (albeit assessed on a case-by-case basis). One might think it grossly unfair to the then accused if the position were otherwise. The Respondent is to act "promptly" following the conclusion of the criminal proceedings. If not found guilty (or the matter doesn't proceed to hearing), consideration is to be given (conscious of the different burden of proof) as to whether there is a sufficient reason to deal with the matter "as an allegation of misconduct", in which case Part 7 of the Guidelines is to be followed and procedures completed 'expeditiously" given the usual considerable time lag (cl 9.5.3).

(3) The three pieces of information that the decision maker "should, if available, be provided with" (cl 9.5) are entirely appropriate to enable an internal decision maker to be informed of the nature and seriousness of "the offence": the certificate of conviction, the agreed facts or Court findings where available, and a transcript of the Judge's/Magistrate's sentencing remarks, where available.

(4) The matters to which the decision maker is directed to have regard in cl 9.5.1 appear to me entirely appropriate for deciding whether to take any action (remedial or disciplinary), and if disciplinary action is the preliminary view, what it ought be. The Guidelines (cl 9.5.2.2) otherwise require the employee to be invited to make a submission about "the disciplinary action that the Secretary is considering taking": which is what s 32C(2) requires.

(5) In making a decision the Guidelines counsel prompt and expeditious decision making, taking into account "all the material before them", including the employee's submission (and interview if one was done), counsels the decision maker that they are not bound to "a single course of action", highlights how to deal with any limitations in decision making authority, and confirms decisions (and implementation dates) are to be provided in writing.

1. The Applicant's submissions on the Respondent's motion correctly argue a recorded conviction is not conclusive proof, but even where the strict rules of evidence apply a conviction can now be received as evidence of the essential elements of the relevant offence. The very reason the common law rule in Hollington v Hewthorn was not followed in Western Australia[114] or New Zealand[115], and was abolished in England and now New South Wales by statute, was because of the logical absurdity that flowed from the fact a civil tribunal of fact could not take the fact of conviction of an offence beyond reasonable doubt as evidence of the essential elements of the relevant offence, where the civil tribunal of fact need only be satisfied of the same facts on the balance of probabilities. Of course, the rule in Hollington v Hewthorn never applied to a decision maker such as Mr Currie in this case, who is not bound by the rules of evidence in any event. The Court's decision is to be accepted as incontrovertibly correct.
2. There is nothing unfair or inconsistent with s 32C, in my view, in the Respondent's internal decision maker having regard to the Local Court materials described in the Guidelines in forming the preliminary view that it is appropriate to take disciplinary action, remedial action, or both (or none) following a conviction, or in the guidance provided in cl 9.5.1 as to relevant considerations.
3. In an appropriate case, depending on the submission of the employee (required by s 32C(2) and cl 9.5 of the Guidelines), I accept it may not be procedurally fair for the Respondent to move to a final disciplinary decision without making factual investigations (for example, if the decision maker intends to rely upon something in the show cause materials that the employee squarely puts in issue in their response). But as a starting point, the rationale behind s 32C of the SASS Act is to provide an alternate path (a 'short cut' as the Applicant described it) to disciplinary action that avoids all the steps required by s 32 and Part 7 of the Guidelines where a Court has already adjudged guilt (by proof or admission) beyond a reasonable doubt. In other words, the whole point of the scheme in s 32C of the SASS Act is to permit the Respondent to treat the allegation proved before the criminal court (regardless of the sentence imposed) as something beyond a mere allegation of misconduct in a disciplinary context.
4. In this case, I consider it reasonably plain throughout that the Respondent was reliant upon the fact of the convictions and the conduct that informed those convictions, in considering whether and if so what disciplinary action to take in light of the convictions. It was not only was it permissible for the decision maker to have regard to the CAN that set out the essential ingredients of the offences of which the Applicant was convicted, given the Applicant entered a plea of guilt and admitted a series of facts, it was entirely appropriate (and consistent with cl 9.5 of the Guidelines), to have regard to both the CAN and the Agreed Facts when deciding whether and if so what action ought be taken upon conviction for those very offences. If not, the decision maker may have had an entirely erroneous understanding of the nature and seriousness of the offence of which the person stands convicted. Absent such information, they could not properly assess what, if any, disciplinary or remedial action should follow. A tangible illustration (dealing with an allegation of common assault) can be seen in the reasoning of Commissioner Sloan in dealing with the position of officer McCaig in Kemp and McCaig v Industrial Relations Secretary in respect of the Department of Communities and Justice [2022] NSWIRComm 1105 at [73] - [82].
5. As to general notions of unfairness, I make two observations:

(1) I do not accept the Respondent denied the Applicant the opportunity to be heard on whether she had in fact engaged in misconduct, by failing to state in the letter of 29 January 2024 that conviction for assault occasioning actual bodily harm on a work colleague (and the other offences of which she stands convicted directed to a work colleague), albeit whilst off duty and in the context of a domestic relationship, was misconduct for the purpose of the SASS Act:

(a) The letter doesn't put the allegation of misconduct in terms, but that is because its genesis was s 32C of the SASS Act. The absence of specific allegation of misconduct and investigation is what s 32C and the Guidelines permit. The scheme in s 32C of the SASS Act permits the Respondent to treat the allegation proved before the criminal court as something more than a mere allegation.

(b) In a practical sense, the Applicant was invited to say what she liked in response to the 29 January 2024 letter. The letter opens by advising the Respondent was "investigating allegations about your conduct". It describes the conviction of the relevant offences and sentence in that context. It refers to s 32C of the SASS Act, which is directed to the fact of conviction of an offence (described as a serious offence in the Guidelines), and invites a response by saying (amongst other things):

"The department regards criminal offences by an employee as a serious matter and as such, this matter will be referred to a decision maker to determine what, if any further action should be taken.

Before a decision is made as to what action the department will take in relation to this matter, you have the opportunity to provide a response regarding your conviction. If you choose to provide a response, your response might address the circumstances leading to the charges and provide any other information you wish to be considered".

The letter expressly invited submissions regarding "the circumstances leading to the charges" and "any other information you wish to be considered". If the Applicant had wanted to say she entered her plea out of convenience and practical duress, or had not in fact engaged in the conduct the subject of the charges and conviction, or resiled from any of the facts agreed on conviction and sentence, she plainly could have said so. Moreover, she could have done so in response to the 15 October 2024 show cause letter. She did neither.

(2) The Applicant's criticisms directed to the absence of investigation by the Respondent at a time proximate to the conduct that informed the convictions, and the consequence of the delay on the memory of relevant persons (including the Applicant), do not provide a proper basis to deny the Respondent the opportunity to lead evidence that addresses the case the Applicant herself now wishes to mount. As for the suggested adverse impact on the Applicant's ability to recall relevant events and respond to the case the Respondent now wishes to bring, I accept the Respondent's 'fresh evidence' is largely responsive to her case. I specifically reject the submission that it is not open to the Commission to receive the 'fresh evidence', because to do so would be inconsistent with the statutory mandate to inform itself according to equity, good conscience and the substantial merits of the case, and in a manner that is just.

1. Insofar as the Applicant resisted the Respondent's characterisation of the Applicant's convictions (and underlying conduct) as relevantly work related such as to justify dismissal, I accept an argument may be made, reliant upon authorities such as Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118[116], that it was harsh, unjust and unreasonable to dismiss the Applicant in reliance upon those convictions and that conduct, but that does not go to admissibility. It is also not something to be determined in this preliminary hearing.
2. It is not in issue the conduct happened off duty. The fact of the matter is, the Respondent relied upon the Applicant's conduct and conviction for conduct outside of hours to dismiss and seeks to defend the proceedings on that basis. The Applicant can (and as I understand it does) rely upon the general context of the relationship between herself and W1 to contextualise the conduct leading to conviction, in support of a submission that dismissal is harsh. In order to determine the nature and seriousness of the conduct (to assess the proportionality of the step of dismissal), the Commission must have regard to all the relevant circumstances. The evidence the subject of challenge is relevant for that purpose. I am satisfied that the Respondent's evidence, to the extent it is 'fresh evidence' can reasonably be characterised as responsive to the case advanced by the Applicant and is relevant for that purpose, or is otherwise relevant to potential remedy.

(1) The application for orders in the Notice of Motion filed by the Applicant on 1 July 2025 in these proceedings is dismissed.

(2) Other than as to the objection to paragraph [78] of the Applicant's statement, the application for orders in the Notice of Motion filed by the Respondent in these proceedings on 17 July 2025 is dismissed.

(3) The matter will be listed for further Directions at 9.30am on Friday, 29 August 2025 via AVL.

[1] Non-Disclosure Orders under s 164A of the IR Act were made on 28 July 2025, prohibiting the disclosure of certain matters and requiring the Applicant and certain witnesses to be identified by pseudonyms.

[2] See s 4 and Schedule 1 of the Civil Procedure Act; Rule 1.5 and 1.6 and Schedule 1 of the Uniform Civil Procedure Rules 2005

[3] Section 56, Civil Procedure Act

[4] Section 57, Civil Procedure Act

[5] Section 59, Civil Procedure Act

[6] Section 60, Civil Procedure Act

[7] Section 58, Civil Procedure Act

[8] Stalking is a defined term (see s 8 of the Crimes (Domestic and Personal Violence) Act 2007

[9] Intimidation is a defined term (see s 7 of the Crimes (Domestic and Personal Violence) Act 2007

[14] See for example the letter of dismissal dated 29 January 2025: DoE 1 Tab 1 pg 1; the letter dated 15 October 2024 advising of the findings of misconduct: DoE 1 Tab 4 pg 43

[38] Cf s 69 of the Government Sector Employment Act 2013 (NSW)

[39] Teaching Service Act 19880, ss 93C and 93K

[40] The two versions were contained in a bundle of documents filed by the Respondent identified as DoE2

[42] In Part 7, DoE 2 pg 64 - 77

[43] In Part 8, DoE 2 pg 78 - 84

[44] In Part 9, DoE 2 pg 85 - 88

[65] Referring to Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 at [80] - [81], [84]

[67] R v Thalari [2009] NSWCCA 170 at [35] and Regina v. Meissner (1995) 184 CLR 132 at 157 per Dawson J.

[70] [1994] HCA 42; (1994) 181 CLR 251 at 273 per Deane and Gaudron JJ

[71] I note the decision of Commissioner Newall in Danwer was quashed on appeal, but the Full Bench did not doubt the relevant passage: Corrective Services NSW v Danwer [2013] NSWIRComm 61

[72] The Respondent also relied Kemp and McCaig v Industrial Relations Secretary in respect of the Department of Communities and Justice [2022] NSWIRComm 1105, but with respect it is not an illustration of the point - the applicants in those matters did not invite factual findings inconsistent with the essential elements of the offence of which they were convicted (again upon a plea of guilty to a charge of common assault): See [48] - [49].

[76] Referring to Hollington v Hewthorn & Co [1943] 1 KB 587. That same approach to the admissibility and use of evidence of a conviction had been applied earlier by Starke J in Wing On & Co Ltd v Collector of Customs for NSW [1938] HCA 71; (1938) 60 CLR 97 at 100

[77] See for example the exceptions identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718

[78] For example see Re 396 Bay Street, Port Melbourne [1969] VicRp 35; [1969] VR 293

[79] Australian Securities Investment Commission v Macks (No.2) per Doyle J at [160] - [163]; In re a Solicitor [1993] QB 69 at 76-79

[80] See more generally the discussion in Spencer Bower and Handley: Res Judicata, Chapter 11 at [11.02] - [11.04]. It was not followed in Western Australia before any statutory intervention in that State: see Mickelberg v Director of the Perth Mint [1985] WASC 175; [1986] WAR 365, that Court preferring to follow the Court of Appeal of New Zealand in Jorgensen v News Media (Aukland) Ltd [1969] NZLR 961.

[81] [1981] UKHL 13; [1982] AC 529 at 543; more generally see Australian Law Reform Commission

[82] [1980] 2 All ER 227 at 237

[83] Which I note has been held to be a facilitative means of proof, rather than addressing itself to questions of admissibility: Cunneen v R [2024] NSWCCA 38 at [205]; Osborne v Butler [2024] VSCA 6; (2024) 73 VR 386 at [22]

[84] MTH v State of New South Wales [2025] NSWCA 122 at [11] - [30]; Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [9] - [10]; Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9]; Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 affirmed on appeal: Gonzales v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 211 at [16]

[85] [2025] NSWCA 122

[86] ALRC Report 26 Evidence (Interim) at [771] - [780]; ALRC Report 38, Evidence at [170] - [171]

[87] ALRC Report 26 at [777] - [778]

[89] Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, 206 [66] (Campbell J), endorsed on appeal in Gonzales v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 211, 215 [16] (Mason P, Beazley JA agreeing at 222 [54], Foster AJA agreeing at 222 [55]).; Osborne v Butler [2024] VSCA 6; (2024) 73 VR 386 at [31] - [34]

[90] A point made by the Victorian Court of Appeal in Osborne v Butler [2024] VSCA 6; (2024) 73 VR 386 at [39], following a useful discussion at [24] - [37]

[91] [1943] 1 KB 587 at 599 - 600; Rakay v MacFarlane [1961] NSWR 1121 at 1127- 1128, and more recently see the discussion in Re HIH Insurance Ltd (in Liq) [2015] NSWSC 790 at [33] - [60], referred to with approval in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. [2021] FCAFC 77 at [108] - [109]

[92] Rakay v MacFarlane [1961] NSWR 1121 at 1127

[93] Island Maritime v Filiposwki [2006] HCA 30; (2006) 226 CLR 328 at [42] per Gummow and Hayne JJ

[94] Island Maritime v Filiposwki [2006] HCA 30; (2006) 226 CLR 328 at [42] per Gummow and Hayne JJ, citing R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 519

[95] Filipowski at [51]; Rogers v The Queen; R v Carroll (2002) 213 CLR 635 at [90] discussing Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; 68 ALJR 688; 74 A Crim R 462; R v Humphreys [1977] AC 1; [1976] 2 WLR 857; [1976] 2 All ER 497; R v Davis [1982] 1 NZLR 584.

[96] Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615 at [702]

[97] See for example Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 543 - 545;

[98] Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536 per Lord Diplock

[99] See for example Walpole & Anor v Partridge & Wilson [1994] QB 106, and in particular the discussion at 115 onwards; Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365 at 372

[100] see for example Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529; Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365 at 371 line 42 to pg 372 line 45; Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 at [186] - [192], per Quinlan CJ, explaining the juridical basis for the decision of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107 at [102] - [105]

[101] per Quinlan CJ [2024] WASC 16 at [191] Arthur JS Hall & Co v Simons [2002] 1 AC 615, 685 (Lord Browne-Wilkinson), Smargiassi [2021] at [65] (Beech & Vaughan JJA, Morrison AJA)

[103] Rogers v The Queen at 255 per Mason CJ

[107] For example Bethel where there was a single head butt on one occasion, Adamowski, McFarlane and Danwar where there was a single incident and clear facts giving rise to the convictions.

[108] Criminal Procedure Act 1986 (NSW), s 173 and s 175(3) and (4). As to summary procedure more generally see Chapter 4 of the Criminal Procedure Act 1986.

[109] Knaggs v DPP [2007] NSWCA 83; (2007) 170 A Crim R 366 at [46]

[110] DoE1 Tab 3 pg 28m, relevantly at 31 - 34

[111] See generally the discussion in Keys v West (2006) 160 A Crim R 553 at [27] - [30]

[112] Cobiac v Liddy (1969) 119 CLR 257 especially at 271 - 273 per Windeyer J, Maxwell v The Queen (1996) 184 CLR 501 at Dawson and McHugh JJ at 507 - 511 and 529-530 per Gaudron and Gummow JJ; CEO of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (2003) 216 CLR 161 at [138]; Jacobsen v SunCorp Insurance and Finance (No.2) (1991) 1 Qd R 385 at 389 per McPherson SPJ with whom Derrington and Moynihan JJ agreed in this respect, Derrington J providing differing reasons on another point)

[115] Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961

[116] Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961