Boncales v Secretary, Department of Education

2. The Bench of the Commission grant leave for the filing and reliance upon further affidavit material that was not reasonably available to the Applicant at the time earlier directions were made.

3. Pursuant to s 61 of the Civil Procedure Act 2005 (NSW), the Appellant be permitted to file and rely upon additional evidence necessary for determination of the real issues in dispute.

4. Pursuant to ss 56 and 58 of the Civil Procedure Act 2005 (NSW), directions be made permitting the reception of that evidence in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

5. To the extent necessary, any earlier procedural limitation arising from previous directions concerning the filing of evidence be varied under UCPR r 36.16.

6. The Commission grant such further or other orders as the Commission considers appropriate."

1. The grounds outlined in the motion may be summarised as follows:

(1) the evidence is relevant to issues presently before the Commission and without it the factual substratum of the proceedings would be incomplete,

(2) the evidence was either unavailable when earlier directions were made, or its probative significance only became apparent as the proceedings unfolded,

(3) the admission of the evidence is consistent with the overriding purpose of case management outlined in s 56(1) of the Civil Procedure Act 2005 (NSW), and

(4) admission of the evidence causes no forensic prejudice to the Respondent that cannot be remedied by appropriate case management orders.

1. The motion is supported by an affidavit affirmed by Mr Sharma on 7 April 2026. That affidavit sets out the evidence the Appellant seeks to rely upon, which consists of the following documents:

(1) a record of medications prescribed to the Appellant as at 17 February 2026,

(2) a report from a medical practitioner dated 25 March 2026 which indicates that Mr Sharma experiences symptoms of trauma-related psychological distress,

(3) a photocopy of a visitor pass issued to Mr Sharma when he attended a Work Health and Safety Scheme Hearing at the Parliament of NSW on 30 March 2026, and

(4) photographs of the Appellant engaging in daily tasks, which are relied upon to demonstrate that Mr Sharma assists with those tasks.

1. Section 190A(1)(d) enables the President of this Commission to determine any interlocutory application in an appeal proceeding before the Full Bench. I determine this application in accordance with that section.

1. In EB v CT (No 2), a matter concerning an application for leave to adduce further evidence made shortly before a decision was to be handed down, Applegarth J noted the following matters as being potentially relevant to an application to re-open and for leave to adduce further evidence:[2]

"The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality in litigation.

In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. As to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.

In Reid v Brett the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered, were said to be as follows:

(a) the further evidence is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably affect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier; and

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants." (Citations omitted.)

1. In determining whether to exercise the discretion to grant leave to adduce further evidence regard must also be had to the overriding purpose of case management in civil proceedings,[3] which is to facilitate the just, quick and cheap resolution of the real issues in dispute.

1. Having considered the notice of motion and Mr Sharma's affidavit, I have determined that the relief sought by the Appellant should be refused.
2. Mr Sharma's affidavit does not, on its face, disclose material of relevance to the determination of the Motions. The evidence concerning Mr Sharma's health, the visitor pass and the photographs of the Appellant bear no apparent connection to the issues in dispute. Apart from a bare assertion of relevance, neither the notice of motion nor Mr Sharma's affidavit articulates how or why these materials are said to be probative.
3. As for the material concerning the Appellant's health, Mr Sharma sought leave to adduce similar evidence shortly after the Appellant's evidence was filed. That informal application was at the time refused on the basis that the Appellant had previously been granted leave to file further evidence, that such evidence could have been filed earlier, and that granting the leave sought would occasion delay and prejudice to the Respondent. Those considerations apply with equal, if not greater, force in the present application, which has been made at the latest possible juncture, being the day prior to the delivery of the decision on the Motions. Even if this were not so, the evidence relating to the Appellant's health condition, which is nothing more than a list of medications she has been prescribed, is not evidence that is so material that the interests of justice require its admission or that would affect the outcome of the substantive case.[4]
4. Whilst it may be accepted that the most recent prescription records now relied upon were not available at the time the Appellant's evidence was filed, their underlying subject matter could have been addressed in that earlier evidence. There is, in any event, nothing that the Commission can relevantly find from the mere fact that particular drugs have been prescribed that would relevantly bear on the capacity of the Appellant to provide instructions or comply with the Commission's orders or otherwise affect the matters that fall for determination.
5. I note that as part of his application to seek leave to appear Mr Sharma, having been requested by me to do so, identified that if he were granted leave he would submit that the Appellant would seek an opportunity to file further evidence arising from events that have occurred in the last 24 hours which go to her health. He made submissions from the bar table as to her health. It remains the position, however, that there is no filed evidence before this Commission that demonstrates that the Appellant is unable to provide instructions to a person to conduct these proceedings.
6. The purpose of timetabling is to secure the efficient and fair conduct of proceedings consistent with the overriding purpose of case management in civil proceedings.[5] The present application, made at the eleventh hour prior to the determination of the Motions, is inconsistent with those aims and to the principle of finality in litigation. If granted, it would necessitate affording the Respondent further time to respond, resulting in delay and additional costs which are borne by the public purse. Contrary to the claim advanced in the motion, such an outcome would not be consistent with the overriding purpose of case management to facilitate the just, quick and cheap resolution of proceedings.
7. It would also result in prejudice to the Respondent, which would be required to address the new material, and that prejudice is not outweighed by any corresponding benefit to the Appellant.

(1) The Appellant's motion filed on 7 April 2026 to adduce further evidence is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

[1] Boncales v Secretary, Department of Education (No 6) [2026] NSWIRComm 2.

[2] [2008] QSC 306 at [2]- [5].

[3] Civil Procedure Act 2005 (NSW) s 56.

[4] Reid v Brett [2005] VSC 18 at [41].

[5] Civil Procedure Act 2005 (NSW) s 56.