Boncales v Secretary, Department of Education [2026] NSWIRComm 2 | Case summary

This decision concerns three notices of motion.
The first is a motion purportedly filed on behalf of the Appellant on 15 October 2025 (Appellant's First Motion) which seeks various non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW) (IR Act). Most of the relief sought in the Motion was dismissed on 30 October 2025, however an application for an order that the Appellant's name be replaced with a pseudonym remains outstanding.
By its motion dated 12 December 2025 (Respondent's Motion), the Respondent seeks orders dismissing these appeal proceedings for want of due despatch and for non-compliance with orders.
On 3 February 2026, a notice of motion was filed, purportedly on behalf of the Appellant (Appellant's Second Motion), seeking a stay of these proceedings pending the determination of other proceedings, said to be related, before the NSW Court of Appeal (Court of Appeal proceedings) and Supreme Court of NSW (Supreme Court proceedings).
For the reasons set out in this decision, we have decided to dismiss the Appellant's Motions and to dismiss these proceedings pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of due despatch.

The Appellant was employed by the Respondent as a teacher until 8 May 2025, when her employment was terminated on grounds which are not necessary to recount for present purposes, following a Show Cause process.
Before the finalisation of the Show Cause process, the Appellant commenced unfair dismissal proceedings under Ch 2, Part 6 of the IR Act to restrain the Respondent from taking further action toward her dismissal. Commissioner O'Sullivan heard that application and dismissed it on 17 April 2025.[1]
On 2 May 2025, after the Show Cause process had concluded, the Appellant was directed by the Respondent to resign within five days, failing which her employment would be terminated.
The Appellant commenced an appeal against the decision of Commissioner O'Sullivan and filed a notice of motion seeking an order restraining the Respondent from proceeding with its threat of dismissal. The President heard the Appellant's motion on 6 May 2026, the same day it was filed. His Honour declined to grant the stay sought.[2] The Appellant discontinued the appeal on 3 June 2026.
On 7 May 2025 the Appellant also commenced Supreme Court proceedings, which are described below, in respect of the proposed termination of her employment.
Having not complied with the direction to resign, the Appellant's employment was terminated on 8 May 2025.
On 26 May 2025, the Appellant filed another application for relief in respect of unfair dismissal. That application was allocated to Commissioner Howell and listed for a seven-day hearing commencing on 25 August 2025.
On the first day of the hearing, the Appellant discontinued the proceedings by filing a notice of discontinuance in accordance with r 12.1(1)(a) of the UCPR.
The next day, the Appellant filed a motion to have the unfair dismissal proceedings reinstated and to have the notice of discontinuance set aside. The Appellant's motion was heard by Commissioner Howell, who dismissed it on 15 September 2025.[3]
An application for leave to appeal and appeal was filed, purportedly on behalf of the Appellant, on 24 September 2025. The application seeks orders setting aside the decision of Commissioner Howell and the notice of discontinuance filed on 25 August 2025.
It is in those appeal proceedings that the Respondent's Motion and the Appellant's First and Second Motions have been filed.
There is a real question as to whether the Appellant's Motions were in fact filed with the authority of the Appellant. The Appellant has not personally taken an active role in the conduct of these proceedings. She has not attended any of the directions hearings, nor filed any affidavit or submissions in her own name. The Appellant's husband, Mr Sharma, has sought leave to appear for her as a lay advocate whenever the matter has been listed. He is the deponent of all affidavits except one, and the person who has written all the submissions filed on behalf of the Appellant. The originating process for the substantive appeal and the Appellant's Motions bear an electronic signature of the Appellant and all documents filed on her behalf in these proceedings (including the Appellant's Motions) have been filed by Mr Sharma, whose name appears as the 'contact name' on each document.
Mr Sharma is not a legal practitioner. He did not assert that pursuant to s 166(1) of the IR Act he was acting for the Appellant as her agent. As noted below when we turn to the Respondent's Motion, despite orders being made requiring the Appellant to file evidence to confirm that Mr Sharma had authority to act on her behalf, this was not done. Notwithstanding the concerns we have just expressed we have decided to determine the Appellant's Motions on the assumption that they were appropriately authorised.
When the parties were last before the President his Honour made directions for the determination of the Motions, including the filing of evidence and submissions in respect of the Respondent's Motion and the Appellant's Second Motion. The Appellant's First Motion included numerous paragraphs in the style of submissions, supported by an affidavit of Mr Sharma. The Respondent has indicated that it neither consents to, nor opposes the Appellant's First Motion, such that further material was not required in respect of that Motion. The parties have consented to all the Motions being determined on the papers. Although the evidence is not wholly in admissible form, we have had regard to it in the absence of any objections from the parties in their written submissions.
If the Appellant's Second Motion were to be granted, and the appeal proceedings stayed, that would affect the degree of prejudice to the Respondent which arises from the Appellant's failure to prosecute the proceedings with due despatch and non-compliance with the directions of the Commission. For that reason, we will address the Appellant's Motions first before turning to the Respondent's Motion.

The balance of the Appellant's First Motion seeks an order, pursuant to s 164A of the IR Act, by which the name of the Appellant would be replaced with a pseudonym. The application proceeds on the ground that the Appellant would be placed at risk of psychological harm if her name were disclosed and that the publication of her name would cause distress or psychological harm to her children.
In balancing the fundamental public interest in open justice with the interest of the Appellant in seeking to keep her identity confidential,[4] we are not satisfied that it is necessary to make a non-publication order.[5] The evidence does not establish that unacceptable consequences to the Appellant or her children would follow if such an order were not made.[6] As we discuss below, the most recent medical evidence indicates only that the Appellant may be adversely affected by the "continued reference" to, including the publication of, "workplace-related traumatic material", which we understand to be a reference to the events leading to her dismissal. There is no need to make reference to such events or detail the Appellant's health conditions in this decision.
Further, by reason of the fact that we have determined to summarily dismiss these proceedings, there will be no future decisions that might make reference to the "workplace-related traumatic material" or to the circumstances giving rise to the Appellant's dismissal.
We also note that in circumstances where:

(1) non-disclosure orders were not made in the primary proceeding or in the earlier proceeding before Commissioner O'Sullivan,

(2) any decisions at first instance to refuse an application for non-disclosure orders were not appealed, and

(3) the subsequent application for non-disclosure orders in respect of those proceedings has been dismissed,

there would be little utility in making the non-disclosure order sought in the balance of the Appellant's First Motion.

In support of the proposed order the Appellant referred to the fact that the Supreme Court had made an interlocutory order in the related proceedings before it under the Court Suppression and Non-Publication Act 2010 (NSW) "that the names of parties and any other material identifying the plaintiff or her family shall not be published in any public judgment in these proceedings and that leave of a Judge of the Court will be required to inspect the Court file".[7]
That the Supreme Court was persuaded on the evidence put before it that an order under s 8 of the Court Suppression and Non-Publication Act should be made, does not relieve us of the obligation to determine, independently and under a different Act and on the evidence before us, whether it is in the interests of justice for a non-disclosure order of the kind sought by the Appellant to be made. The Supreme Court's decision reveals that it had before it a medical report from the general practitioner of the plaintiff dated 3 June 2025, that was dated three days before the Supreme Court made its order, which "shows that there is arguably a significant risk of psychological harm to the plaintiff in the event of a disclosure of these legal proceedings publicly".[8]
Mr Sharma affirmed an affidavit in support of the Appellant's First Motion. While most of the medical reports and certificates annexed to Mr Sharma's affidavit predate the filing of the affidavit on 15 October 2025, a report prepared by the Appellant's general practitioner dated 22 September 2025 (that is, around 23 days prior to the filing of the Appellant's First Motion) records that the Appellant reported litigation-related stress and that "ongoing legal proceedings and reference to traumatic workplace incidents are aggravating symptoms". Under the heading "Plan and Recommendation" the doctor certifies that the Appellant was unfit for work and court attendance for a period of four weeks and that: "[c]ontinued reference to workplace-related traumatic material, including online publication, poses a risk of re-traumatisation and deterioration of mental health, with increased suicidal ideation."
This report does not state that the Appellant will suffer significant psychological harm if she is identified as a litigant in an online publication. Rather it is public exposure of the apparently traumatic material that is said to be the subject of the litigation, including by its publication online, which would have a deleterious effect on her health.
We have also taken note of the medical report dated 3 June 2025 relied upon by the Supreme Court when it made orders under the Court Suppression and Non-Publication Act. That report indicated that it was the public disclosure of legal proceedings that associated her with certain attributes which would aggravate her health condition. It is unnecessary for us in this decision to discuss such attributes, which are relevant only to the underlying circumstances giving rise to the Appellant's dismissal.
The Appellant also placed reliance on Applicant M v Secretary, NSW Department of Education ("Applicant M")[9] in which Commissioner Howell, according to the Appellant, had granted non-disclosure orders "on the basis of inferred psychological harm to third parties, despite there being no medical evidence, no contested proof, and no demonstrated clinical risk".
In that case Commissioner Howell stated that he was "prepared to infer that the publication of the identity of students in connection with [the] proceedings would likely to be an additional stressor, and may have the potential to cause harm".[10] He noted that the same could be said of the position of the applicant, but that on the evidence it "was not a consideration that attracts significant weight".[11] He concluded that the "factor weighing most heavily in favour of Non-Disclosure Orders covering the Applicant ... is the very real risk that the identification of the Applicant in a discussion of the evidence in this particular case ..., will lead to the identification of [the applicant's partner and their children], thereby rendering the orders in their favour of no utility".[12]
Protecting the identity of children involved in legal proceedings is a recognised ground for making non-disclosure orders, to ensure that they do not experience "psychological stress, embarrassment, humiliation or other social stigmatism".[13] The orders made in Applicant M were made solely to protect children who were involved in the proceedings and the victim of the applicant's crimes. They were not made to protect the applicant. It may be observed that the Appellant does not seek orders to protect the identity of her children.
There was no evidence filed concerning the potential harm the publication of the Appellant's name in connection with these proceedings would have on the Appellant's children.
We have had some misgivings in arriving at the decision not to anonymise the Appellant's name in circumstances where it is clear that the Appellant has suffered from ill-health, which may have been exacerbated by her ongoing litigation, and where it is unclear whether the Appellant has authorised the commencement or maintenance of these proceedings. However, the bar for making a non-disclosure order is high and the Commission must be satisfied that it is necessary in the interests of justice.[14] Mere embarrassment or distress caused to a person will not be sufficient to justify the making of a non-publication order.[15] As Boland J, President said in Buttling v NSW Department of Education and Communities (No 2):[16]

"Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings 'publicly and in open view'." (Citation omitted.)

This is all the more so where the person seeking the protection of the orders is the moving party. As the Full Bench said in Secretary of the Department of Education v X:[17]

"... when a party applies to the Commission for relief, including from an adverse decision or action of an administrator, that party must expect that the previously private matter will, unless the interests of justice otherwise necessitate, be made public".

While evidence of harm to a person's health, even if that person is the party who commenced the proceedings, may justify a non-disclosure order on the basis that there is "a potential prejudice to the administration of justice and to the public interest in people being able to exercise their legal rights" if they would be otherwise be deterred from bringing proceedings,[18] we do not have evidence of this in the present case. An assertion to that effect in submissions is insufficient.
The Appellant's First Motion is dismissed. We reserve the question of costs in respect of the Appellant's First Motion.

The Appellant's Second Motion seeks an order staying the substantive proceedings, pending the determination of:

(1) proceedings commenced by the Appellant in the Court of Appeal; and

(2) a notice of motion filed on 7 November 2025 in the Supreme Court proceedings.

The Appellant's Second Motion also seeks that all "procedural steps, directions, listing, and obligations" in these proceedings "be frozen until 14 days after judgment is delivered in the Court of Appeal proceedings, or further order".
The Appellant's Second Motion cites rr 36.16-36.18 and 7.24-7.25 of the UCPR, and r 43 of the Industrial Relations Commission Rules 2022 (NSW) (IRC Rules), as the bases for the Commission's power to grant the relief sought. None of those provisions are relevant to the relief sought by the Appellant. There is no r 43 in the IRC Rules.
However, the Commission may, pursuant to s 67 of the Civil Procedure Act 2005 (NSW), order a stay to avoid concurrent proceedings in different jurisdictions concerning the same parties and issues.[19]
The Appellant's Second Motion rests on three propositions:

(1) the Appellant has commenced proceedings in the Court of Appeal and filed a motion in proceedings before the Supreme Court;

(2) those proceedings will be dispositive of the appeal against the decision of Commissioner Howell;[20] and (or possibly in the alternative)

(3) absent a stay, the proceedings before the Commission will render the proceedings in the Court of Appeal and Supreme Court nugatory, cause irreversible prejudice to the Appellant or amount to duplication of proceedings and risk inconsistent outcomes.

Mr Sharma affirmed two affidavits in support of the Appellant's Second Motion.
The affidavit affirmed on 2 February 2026 (First Sharma Affidavit) addresses matters that are wholly irrelevant to the Appellant's Motion, including extensive personal details about Mr Sharma. Beyond annexing a motion filed in the Supreme Court proceedings (which we address below) and a record of the Appellant's admission to a health facility on 30 September 2025, where the Appellant was said to have been assessed as ill and involuntarily detained until at least 6 November 2025, it contains nothing of relevance.
In his affidavit affirmed on 16 February 2026 (Second Sharma Affidavit), Mr Sharma primarily describes the circumstances of the Appellant's dismissal by the Respondent. These are matters that may be relevant to the determination of whether the Appellant was unfairly dismissed, but they have no relevance to the Appellant's Second Motion.
The Second Sharma Affidavit further deposes that the Appellant "remains medically incapacitated" as at 16 February 2026. This is a matter of relevance to the Respondent's Motion.
In relation to the Supreme Court proceedings, the First Sharma Affidavit annexes a notice of motion dated 20 October 2025 bearing the stamp of the Supreme Court. Annexed to the Second Sharma Affidavit is the first page only of a summons commencing proceedings in the Supreme Court dated 7 May 2025. The balance of Mr Sharma's evidence does not allow us to understand anything further about the nature and status of the Supreme Court proceedings.
Having regard to the affidavit of the Respondent's solicitor, Ms Felicity Edwards, affirmed on 23 February 2026, and published decisions, the following appears to be the history of those proceedings:

(1) On 7 May 2025, a summons was filed in the Supreme Court on behalf of the Appellant, seeking relief in the form of certiorari, prohibition, declarations, an order for reinstatement and interlocutory injunctive relief against the Respondent. While the summons described the decision of the Commission to refuse to prevent the dismissal of the Appellant as tainted by jurisdictional error, it did not seek any relief against the Commission, which was not named as a defendant.

(2) On 9 May 2025 Slattery J dismissed the Appellant's application to have Commissioner O'Sullivan's decision stayed and made a costs order against Mr Sharma personally.[21]

(3) On 6 June 2025 Slattery J dismissed the Appellant's application to have his decision of 9 May 2025 set aside and made a costs order against Mr Sharma personally.[22]

(4) On 8 August 2025 McGrath J heard and declined Mr Sharma's application for leave to appear on behalf of the Appellant in the substantive proceedings.[23]

(5) On 18 August 2025 McGrath J declined an application by Mr Sharma to adjourn the hearing date for a notice of motion which had been filed by the respondent seeking to have the proceedings summarily dismissed or that the summons be struck out in its entirety.[24]

(6) On 18 August 2025, McGrath J subsequently dismissed the Appellant's substantive proceedings on the basis that they were an abuse of process and disclosed no reasonable cause of action, because the Commission had plenary jurisdiction to grant the remedies sought and the remedies sought in the Supreme Court were unavailable in circumstances where the Appellant had been dismissed since the proceedings were filed.[25]

(7) On 5 September 2025 Mr Sharma served on the Respondent a notice of intention to appeal (which we will address further below).

(8) On 6 November 2025, Mr Sharma was granted leave by Slattery J to file in court a notice of motion dated 20 October 2025. That motion sought, among other things, to set aside costs orders made against Mr Sharma and also to "reinstate" the summons filed on 7 May 2025. The orders made by the Court that day included the following:

"8. NOTE the plaintiff should show cause at 4pm tomorrow as to why the Court should not stay these proceedings until existing costs orders as assessed are paid into Court.

9. NOTE Mr Sharma has been given leave to file the motion on behalf of the plaintiff but leave for him to continue to act on behalf of the plaintiff may not be extended."

(9) On 7 November 2025, a directions hearing took place in which Mr Sharma was directed by the Court to file and serve written submissions on the issue of costs. Mr Sharma filed submissions that day. The orders made that day included the following order: "[c]osts decision will be reserved after receipt of submissions".

Ms Edwards affirms that she has not received any further notifications or been served with any further materials in those proceedings and is not aware that the matter has been determined. So far as we are aware the primary Supreme Court proceedings, with the exception of a dispute about the costs orders, remain concluded.
We turn next to the purported proceedings in the Court of Appeal.
In this regard, we are once again assisted by the affidavit of the Respondent's solicitor. Ms Edwards deposes in her affidavit that as at 23 February 2026, neither she nor the Respondent has been served with any originating process in respect of the notice of intention to appeal.
Proceedings in the Court of Appeal cannot be said to exist unless an originating process has been filed. Rule 51.9(3) of the UCPR provides that the filing and service of a notice of intention to appeal does not operate to commence proceedings:

51.9 Effect of service of notice of intention to appeal

...

(3) The filing and service of a notice of intention to appeal does not operate to commence proceedings in the Court.

It follows that on the material before us, and contrary to the assertion made in the Appellant's Second Motion, the Appellant has not commenced proceedings in the Court of Appeal.
This was something known to Mr Sharma prior to filing the Appellant's Second Motion. Ms Edwards' affidavit annexes email correspondence between Mr Sharma and the Court of Appeal Registry from September 2025 in which Mr Sharma was informed that he would need to file an originating process document to properly commence an appeal.
As the Appellant has not commenced proceedings in the Court of Appeal, the Appellant's Second Motion must fail to the extent that it relies on those purported proceedings as the basis for relief.
Nor can the present proceedings otherwise bear upon existing Supreme Court proceedings. Neither the Appellant nor Mr Sharma has appealed the summary dismissal of the Supreme Court proceedings. Although a motion was filed seeking to "reinstate" the Supreme Court proceedings that have been dismissed, it is clearly not the appropriate vehicle for doing so. It appears the only matter which may remain in issue in the Supreme Court proceedings relates to costs orders, and that is not a matter that concerns the exercise of this Commission's functions.
Even if there were extant proceedings in the Supreme Court or the Court of Appeal, on the material before the Commission we would have dismissed the Motion given the absence of any evidence to satisfy us that such proceedings could impact on the present proceedings, or vice versa. The material filed by Mr Sharma does not explain how the Commission hearing an appeal filed on behalf of the Appellant from a decision that effectively prevents the Appellant from maintaining unfair dismissal proceedings could render proceedings before the Supreme Court or the Court of Appeal nugatory, occasion prejudice to the Appellant or give rise to duplicative proceedings or inconsistent outcomes.
The Appellant's Second Motion is dismissed. We reserve the question of costs in respect of the Appellant's Second Motion.

The Respondent's Motion seeks an order summarily dismissing the substantive proceedings for want of due despatch pursuant to r 12.7 of the UCPR or, alternatively, for failure to comply with the directions made by the Commission on 30 October 2025, in accordance with s 63(3)(a) of the Civil Procedure Act. The Respondent also seeks costs against the Appellant or any person granted leave to appear as the Appellant's lay advocate, next friend or tutor in these proceedings.
A proper consideration of the Respondent's Motion requires setting out the procedural history of the substantive appeal before the Commission.

The first mention took place on 9 October 2025. Mr Sharma sought to appear for the Appellant, who was not present at the listing. The President expressed concerns about Mr Sharma's authority to represent the Appellant and in light of a submission that his wife was unwell stood the matter over for approximately six weeks so that Mr Sharma could file evidence of his instructions to appear for the Appellant or arrange for the appointment of a tutor or, alternatively, to allow time for the Appellant to recover. The President told Mr Sharma that if he wished to appear for his wife at the next listing, the President would need greater clarity about the basis upon which Mr Sharma says he has that right.
On 15 October 2025, Mr Sharma filed the Appellant's First Motion, with an accompanying affidavit, to anonymise references to the Appellant in the decisions published by Commissioners O'Sullivan and Howell, as well as in the present proceedings.
The matter came on for directions on 30 October 2025. At that listing, the President dismissed the orders sought with respect to the anonymisation of references in the decisions published by Commissioners O'Sullivan and Howell, but made no final decision on anonymising references in the present proceedings. The President listed the matter for further directions on 25 November 2025 and made the following orders:

"1. Mr Sharma is to file and serve evidence prior to his next appearance that he has instructions to appear for the applicant if he is to continue appearing as a lay advocate for the applicant.

2. If the application for order 2(d) continues to be pressed, the applicant is to file evidence, namely an affidavit from the applicant or medical professional, which is relevant to the question of whether a pseudonym should be used.

3. By 4:00pm on 21 November 2025, the Applicant is to write to the President's Chambers and Respondent identifying whether the Applicant on the next occasion will seek directions to be made for the conduct of the appeal and if so what directions ought to be made, or alternatively to file a notice of discontinuance by that date."

At the listing on 30 October 2025, the President made the following remark to Mr Sharma:

"... if on the next occasion, 25 November, there is no tutor appointed, no evidence that the applicant wishes the appeal to proceed, and no evidence that Mr Sharma has instructions to be able to assist the Commission to set directions for the appeal, then my current intention is to then have the matter discontinued on the basis of want of prosecution."

When the matter next came before the President for directions on 25 November 2025, neither Mr Sharma nor the Appellant had complied with orders 1 and 3, respectively, of 30 October 2025.
The President made the following orders:

"1. The respondent is to file and serve an application to have the proceedings discontinued by 4pm on 12 December 2025.

2. The applicant is to file and serve any evidence in response by 4pm on 22 January 2026.

3. If Mr Sharma seeks leave to appear on behalf of the applicant at his next appearance at 10am on 9 February 2026, he is to file and serve evidence that he has instructions to appear on behalf of the applicant by 4pm on 22 January 2026.

4. The respondent is to file and serve any evidence in reply by 4pm on 5 February 2026.

5. If the applicant seeks a change to the timetable, he must write to the President's Chambers prior to 22 January 2026 and identify whether that request is made with the Respondent's consent."

While the President used the word 'discontinued' it is clear from the context that he intended to refer to the proceedings being dismissed.
At the listing on 25 November 2025, the following exchange took place between the President and Mr Sharma:

"I want to know whether the applicant, assuming you had instructions, actually wants that appeal to be heard and determined or not. That's why I made the order on the last occasion for the applicant - not you, but for the applicant - instructing whomever she wishes to instruct if she can't be here in person to do one of two things: either have the matter set down for hearing or discontinue it. Nearly a month later, we haven't progressed at all from where we were on the last occasion, as far as I can tell. I said this on the last occasion. I was quite clear about this. I'm not prepared to allow this matter to just drift.

SHARMA: I understand.

HIS HONOUR: I indicated on the last occasion that if we didn't have one or the other, then I would be moving to simply discontinue the appeal. Despite that, no communication was made on Friday indicating whether the applicant wishes the appeal to proceed or wishes to discontinue. I simply have nothing. I'm still in that position. I'm not convinced that you have instructions yet to put anything to me, which is why my current position is to effectively give the applicant a period of time to show cause as to why the proceedings shouldn't be dismissed.

SHARMA: I think that's an excellent suggestion, your Honour. If you could give even a week, your Honour. Just one week."

On 12 December 2025, the Respondent's Motion was filed and served.
Neither Mr Sharma nor the Appellant complied with order 3 of 25 November 2025. Nor did Mr Sharma or the Appellant file any evidence in respect of the Respondent's Motion as required by order 2, however we have had regard to evidence that was filed by Mr Sharma in respect of the Appellant's Second Motion in considering the Respondent's Motion.
As noted earlier in these reasons, we have ongoing concerns about the commencement and continuation of these proceedings by Mr Sharma in circumstances where he has not produced evidence that the Appellant wishes the proceedings to be brought, or is even aware of their existence. This is despite Mr Sharma having been directed by this Commission on 30 October and 25 November 2025 to produce such evidence, with the express warning that the proceedings could be dismissed if he failed to do so.
In the Supreme Court proceedings, Mr Sharma was granted leave to appear on behalf of the Appellant for in respect of two interlocutory applications.[26] However, in subsequent proceedings McGrath J heard and declined Mr Sharma's application to appear.[27]
In the absence of evidence, we are left with proceedings purportedly brought on behalf of the Appellant, but without any evidence that this is so, and without any indication from the Appellant that she wishes the proceedings to be listed for determination.

The legal principles that apply to the determination of an application under r 12.7 of the UCPR were set out in Beavan v Industrial Relations Secretary (No 1).[28] In summary:

(1) the power exercised by the Commission under r 12.7 is a discretionary power;

(2) the exercise of that power is a balancing exercise in the course of which a variety of factors may be considered with the ultimate question being whether, having balanced the prejudice to each party, justice demands that the application be dismissed;

(3) the discretion must be exercised having regard to the requirements of ss 56 and 60 of the Civil Procedure Act, including having regard to the "overriding purpose" referred to in s 56 "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", particularly where the essence of the application before the Commission is delay;

(4) section 57 of the Civil Procedure Act deals with the objects of case management and, by s 58, the Commission is directed to act in accordance with the dictates of justice; and

(5) sections 56 to 58 of the Civil Procedure Act must be complied with and that requirement "will involve the weighing of competing considerations".

The fact that the Appellant is not represented by a legal practitioner does not excuse her from the operation of the Civil Procedure Act and the obligation to comply with the orders and directions made by this Commission.[29]
In Kabir v Department of Family and Community Services,[30] a decision involving an application for summary dismissal under r 12.7 of the UCPR, Commissioner Newall held:

"This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due dispatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission if the tools provided by the UCPR, which must be read in the light of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due dispatch are not penalised by parties who do not."

The Appellant has failed to provide any cogent or compelling reason for her failure to prosecute the proceedings with due despatch. It may be that the Appellant has been unwell at various points since the commencement of these proceedings. However, it is apparent that she has commenced and carried on proceedings in the Supreme Court, and purportedly instructed Mr Sharma in the present proceedings, during that same period.
In his written submissions, Mr Sharma contends that the Appellant was detained in a health facility between 30 September and 25 November 2025.
With the application for leave to appeal and appeal were filed affidavits that contain evidence as to the Appellant's medical condition. The Appellant did not seek to rely on them to determine the Motions. We note in any event that they only address the Appellant's health to a limited extent up to 22 September 2025.
The Second Sharma Affidavit was filed pursuant to leave granted by the President on 13 February 2026 to file evidence concerning the Appellant's health condition, following a request by Mr Sharma. The only 'evidence' referable to the Appellant's health is the following single sentence: "[t]he applicant remains medically incapacitated".
That does not provide satisfactory evidence to establish that the Appellant has been unable since 25 November 2025 to provide instructions and have the matter set down for hearing. No medical evidence has been filed to support an assertion that she is incapable of giving instructions.
We accept that the Appellant will suffer prejudice if she is not permitted to progress her appeal. Dismissal would prevent her from pressing the substance of her appeal. We have taken that matter into account in exercising our discretion under r 12.7 of the UCPR.
The prejudice to the Appellant must be considered, however, in light of the multiple opportunities she has had to progress the appeal.
Further, that prejudice must be further weighed against the prejudice to the Respondent, which has no doubt invested considerable resources and costs in these proceedings.
As to the prospects of the substantive case,[31] the Respondent submits that the appeal is misconceived. On the limited material before us at this early stage of the proceedings, we cannot make such a finding, but we do consider that it has poor prospects of success. The appeal seeks to overturn a decision to refuse to set aside a discontinuance that the Appellant sought in circumstances where there is no allegation that the decision to discontinue was caused by duress and in circumstances where Commissioner Howell considered and rejected the proposition that it was done by mistake. To the extent the grounds of appeal can be understood they appear to largely focus on an assertion that the Appellant's unfair dismissal case which she discontinued had merit and that the Commissioner failed to have sufficient regard to the prejudice to the Appellant by not permitting the discontinuance to be set aside. While not a stated ground of appeal, the affidavits that will be sought to be relied upon as fresh evidence, if permitted, suggest there will be reliance on the Appellant's health. It is not apparent however that such evidence is material or that the evidence was not available to be put before Commissioner Howell (or was not in fact put before him).
Ultimately the Appellant has repeatedly and over an extended period of time failed to take the basic steps to have the appeal set down for hearing, namely: to establish that Mr Sharma has instructions to appear for her; and to consent to directions being made and dates set to hear the appeal. Such conduct is inconsistent with the overriding objective to deal with matters in a manner that is just, quick and cheap.
Against that background the prejudice to the Respondent in allowing the proceedings to remain on foot outweighs the prejudice to the Appellant if they are dismissed. This reflects the burden the proceedings impose on the Respondent and the poor prospects of the substantive case succeeding.
The discretion to dismiss proceedings for want of due despatch must be exercised cautiously, and only in case where it is manifestly warranted.[32] Having undertaken the necessary balancing exercise, we are satisfied that this is such a case.
Having determined to grant the relief sought in the Respondent's Motion pursuant to r 12.7 of the UCPR, it is unnecessary to determine whether the proceedings should also be summarily dismissed for failure to comply with the Commission's directions. We note, however, that we would have done so given the repeated failure of the Appellant to file evidence as ordered to establish that she is aware of these proceedings and that she has given Mr Sharma instructions to take the various steps he has sought to take in her name.
The Respondent's Motion is granted. We reserve the question of costs in respect of the Respondent's Motion.

(1) The Appellant's Motions filed on 15 October 2025 and 3 February 2026 are dismissed.

(2) The proceedings are dismissed pursuant to r 12.7 of the UCPR.

(3) The parties are to make any application in respect of costs within 14 days.

[1] Boncales v Secretary, Department of Education [2025] NSWIRComm 1017.

[2] Boncales v Secretary, Department of Education (No 2) [2025] NSWIRComm 11.

[3] Boncales v Secretary, Department of Education (No 4) [2025] NSWIRComm 1079.

[4] Dr A v Health District (2014) 244 IR 208; [2014] NSWIRComm 28 at [58].

[6] Secretary of the Department of Education v X [2023] NSWIRComm 1061 at [47].

[7] MB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744 at [4] and [11].

[8] MB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744 at [3].

[10] Applicant M v Secretary, NSW Department of Education [2025] NSWIRComm 1058 at [28].

[11] Applicant M v Secretary, NSW Department of Education [2025] NSWIRComm 1058 at [28].

[12] Applicant M v Secretary, NSW Department of Education [2025] NSWIRComm 1058 at [30].

[13] Secretary of the Department of Education v X [2023] NSWIRComm 1061 at [72]. See also Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 at [4]; A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 at [13]- [18].

[14] Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 at [8]; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [21] (Spigelman CJ, with whom Handley JA and Campbell AJA agreed).

[15] Day v Smidmore (No 2) (2005) 149 IR 80; [2005] NSWIRComm 406 at [30]; Dr A v Health District (2014) 244 IR 208; [2014] NSWIRComm 28 at [47].

[18] X v Sydney Children's Hospitals Speciality Network [2011] NSWSC 1272 at [8].

[19] Wigmans v AMP Ltd (2021) 270 CLR 623; [2021] HCA 7 at [72] (Gageler, Gordon and Edelman JJ).

[20] Boncales v Secretary, Department of Education (No 4) [2025] NSWIRComm 1079.

[21] MB v Secretary, NSW Department of Education [2025] NSWSC 743.

[22] MB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744.

[23] LB v Secretary, NSW Department of Education [2025] NSWSC 892.

[24] LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939.

[25] LB v Secretary, NSW Department of Education (No 3) [2025] NSWSC 940 at [45]- [47].

[26] MB v Secretary, NSW Department of Education [2025] NSWSC 743; MB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744.

[27] LB v Secretary, NSW Department of Education [2025] NSWSC 892.

[29] Ward v Secretary, Department of Education [2022] NSWIRComm 1086 at [20], citing Kabir v Department of Family and Community Services (2016) 257 IR 124; [2016] NSWIRComm 1009 at [15].

[31] Beavan v Industrial Relations Secretary (No 1) (2016) 92 NSWLR 473; [2016] NSWIC 1 at [80] and [141], citing Hoser v Hartcher [1999] NSWSC 527 at [29]; Kabir v Department of Family and Community Services (2016) 257 IR 124; [2016] NSWIRComm 1009 at [23].

[32] Beavan v Industrial Relations Secretary (No 1) (2016) 92 NSWLR 473; [2016] NSWIC 1 at [80], citing Hoser v Hartcher [1999] NSWSC 527 at [21].

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Boncales v Secretary, Department of Education

At a glance

Court

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Before

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Judgment (93 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (6)