//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 340
Supreme Court of NSW
2026-04-10
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Janson v Department of Communities & Justice [2026] NSWSC 340
Hearing dates: 8 April 2026
Date of orders: 10 April 2026
Decision date: 10 April 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. Leave to join the Ombudsman pursuant to s 35A of the Ombudsman Act 1974 (NSW) is refused.
2. The pleadings filed by the plaintiff on 11 August 2025 and on 25 August 2025 are struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
3. Leave to file an amended statement of claim is refused.
4. The plaintiff has leave to file a summons in accordance with Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) within 35 days of these orders.
5. The plaintiff is directed to endeavour, as far as she is able, to provide all of the particulars required by r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW).
6. The plaintiff has leave to include in the summons a claim, other than against the Ombudsman, alleging public misfeasance and consequential damages.
7. The plaintiff is to pay the Ombudsman’s costs in respect of the application for leave to commence proceedings against the Ombudsman.
8. Costs of the notices of motion filed by the defendants on 26 November 2025, and by the plaintiff on 15 December 2025, other than the costs encompassed within Order (7) above, are reserved.
Catchwords: ADMINISTRATIVE LAW — leave sought to bring proceedings against the NSW Ombudsman pursuant to s 35A of the Ombudsman Act 1974 (NSW) — whether there is substantial ground for the contention that the Ombudsman or its officer acted in bad faith
CIVIL PROCEDURE — application by self-represented plaintiff to file an amended statement of claim — application by defendants to dismiss or strike out the statement of claim — where judicial review proceedings have been incorrectly commenced by statement of claim — where it is impossible to identify the individual decisions in respect of which relief is sought including the grounds of relief and the specific relief sought — whether leave should be given to plaintiff to file a summons
Legislation Cited: Ombudsman Act 1974 (NSW), ss 12, 13, 26(1), 35A
Unform Civil Procedure Rules 2005 (NSW), Pt 59, rr 6.12, 14.2(1), 14.2(8), 14.7, 15.5, 59.3, 59.4, 59.9, 59.10,
Cases Cited: Crewdson v Industrial Relations Commission of NSW (2007) 164 IR 468; [2007] NSWCA 178
Golden v V’landys [2015] NSWSC 1709
Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275
Category: Procedural rulings
Parties: Samantha Janson (Plaintiff)
Department of Communities & Justice (First Defendant)
Office of the Children’s Guardian (Second Defendant)
NSW Ombudsman (Proposed Third Defendant)
Representation: Counsel:
I Harvey (First & Proposed Third Defendants)
S Janson (Self-Represented)
Solicitors:
New South Wales Crown Solicitor (First, Second & Proposed Third Defendants)
File Number(s): 2025/319459
Publication restriction: No
The plaintiff has six children, currently ranging in age from 4 to 17. Each child has been removed from the custody of the plaintiff by the Department of Communities and Justice (the DCJ). Nevertheless, these proceedings primarily relate to five of the children, the eldest being excluded. Five of the children were removed from the plaintiff’s care in August 2020. The youngest child was taken into care by the DCJ in November 2021, on the day of her birth.
All of the children are under the parental responsibility of the Minister for Family and Communities. This responsibility continues until the children turn 18.
Three of the children reside with their maternal grandfather and step-grandmother. One child resides with her paternal grandparents. The other two children live with relatives of their maternal step-grandmother.
In very general terms, the children were removed because of concerns held by the DCJ that they were being mentally and physical abused, not being immunized, and not being educated. It is outside the scope of these reasons for me to comment on the DCJ’s justification for taking the children.
On 11 August 2025, the plaintiff filed a statement of claim seeking a range of relief. This document does not seem to have been served on the defendants, but was included in documents served on 20 August 2025. Then on 25 August 2025, the plaintiff filed further proceedings, styled as an application for judicial review and damages, against the DCJ, the Office of the Children’s Guardian and the New South Wales Ombudsman.
On 26 November 2025, the defendants filed a notice of motion seeking orders dismissing or striking out the plaintiff’s statement of claim.
On 15 December 2025, the plaintiff filed a notice of motion seeking leave to file an amended statement of claim and to join the NSW Ombudsman to the proceedings pursuant to s 35A of the Ombudsman Act 1974 (NSW). Although the Ombudsman is listed as a party to the original pleading, the plaintiff has obviously recognised the need to obtain leave to sue the Ombudsman as required by s 35A(2).
The plaintiff has filed the following affidavits:
Affidavit of Samantha Janson filed 1 December 2025 re procedural fairness.
Affidavit of Samantha Janson filed 15 December 2025 re joinder of NSW Ombudsman.
Affidavit of Samantha Janson filed 9 February 2026 re strike out NOM.
Affidavit of Samantha Janson filed 5 March 2026 re DCJ.
Affidavit of Samantha Janson filed 5 March 2026 re Office of the Children’s Guardian.
Affidavit of Samantha Janson filed 5 March 2026 re NSW Ombudsman.
The defendants have filed these affidavits:
Affidavit of Bruce Cantrill filed 26 November 2025 re Strike Out.
Affidavit of Bruce Cantrill filed 9 February 2026 re NSW Ombudsman.
Affidavit of Bruce Cantrill filed 9 February 2026 re Office of the Children’s Guardian.
Affidavit of Bruce Cantrill filed 23 February 2026 re DCJ.
Mr Cantrill is a solicitor employed by the NSW Crown Solicitor’s Office.
(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.
(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.
(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
(4) An Australian legal practitioner assisting the Ombudsman or representing a person at an inquiry held by the Ombudsman has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.
Section 35(3) makes it clear that leave requires the establishment of bad faith on the part of the Ombudsman. The allegations of bad faith expressed in the amended statement of claim are:
Not investigating complaints and supporting exhibits ([126] and [141]).
Knowingly relying on false or misleading statements from the DCJ ([126]).
Constructively refusing to exercise jurisdiction in circumstances where statutory functions ought reasonably to have been performed ([126]).
Misfeasance in public office, by knowingly or recklessly misusing statutory power for an improper or collateral purpose ([149]).
Failing to investigate or correct exclusionary practices once oversight bodies and senior managers were on notice, amounting to systemic neglect and abdication of duty ([165]).
Ignoring, delaying, or mishandling reports of abuse, fabrication, falsification of records, and maladministration in child protection proceedings ([183]).
The plaintiff specifically addresses leave under s 35A from [395] of the proposed pleading. She lists:
Failure to investigate, review or refer complaints ([398]).
Declining to act on matters of serious public interest ([399]).
Responding to complaints in generic form ([400]).
Fettering or abdicating discretion by repeatedly referring matter back to the DCJ ([402]).
Writing inconsistent, opaque and in some instances misleading correspondence ([404]).
Failing to provide written reasons or engage with probative evidence ([405]).
Shielding departmental misconduct rather than operating as an independent oversight body ([406]).
Acting with legal unreasonableness of the Wednesbury kind ([407]).
The plaintiff then, from, [409] makes allegations of continuing failures by the Ombudsman.
By way of evidence of the many acts of bad faith by the Ombudsman, the plaintiff relies on Annexure SDE-3 of her affidavit together with “all affidavits, exhibits and prior correspondence lodged with the NSW Ombudsman’s Office between 2023 and 2025, including formal complaints, review requests and ministerial referrals.” The plaintiff also reserves the right to “amend or supplement particulars as further evidence or discovery occurs.”
In her affidavit of 15 December 2025, the plaintiff gives some detail of her claim against the Ombudsman. The plaintiff first of all points out the many failings of the DCJ which she says were “consistent with maladministration within the meaning of s 12(1)(a) of the Ombudsman Act 1974 (NSW).” Section 12 opened the gateway for a complaint to the Ombudsman.
The plaintiff continues in her affidavit to state that by late 2022 the Ombudsman had been given written notice that her children “had disclosed sexual harm”, a child had gone missing, the children were engaging in self-harm and had untreated medical issues, there was an identity issue with one of her daughters and she was being “threatened with cancelled contact” unless she paid certain monies.
The plaintiff alleges that the Ombudsman failed to act upon her complaints, all of which arose from the conduct of employees of the DCJ. In addition, the plaintiff says that the Ombudsman should have made a report outlining the DCJ’s improper conduct in accordance with s 26(1) of the Ombudsman Act. The plaintiff says that “despite the Ombudsman’s knowledge of these facts, the failures not only persisted but intensified between April 2023 and May 2025.”
The plaintiff points out that on 9 March 2023 the Ombudsman stated that it would not be investigating her complaints and suggested that she “continue to work with DCJ to resolve [my] concerns.” This decision to not investigate, says the plaintiff, was made in bad faith as well as for an improper purpose. The decision was in bad faith because of the reasons set out above, and which are included in the proposed amended statement of claim.
In her affidavit, the plaintiff says that on 10 March 2023, she lodged an objection to the Ombudsman’s refusal to investigate and asked for an internal review. On 24 March 2023, the Ombudsman confirmed the decision not to investigate stating that “DCJ is aware of your concerns.”
The plaintiff then points out that in early 2023 the Department of Premier and Cabinet told her that her correspondence had been referred to the Ombudsman. The Ombudsman would have been aware of this correspondence and referral prior to 9 March 2023. Therefore, there had been a “blindness or reckless indifference to a statutory duty.”
The plaintiff must establish “that there is a substantial ground for the contention” of bad faith. A finding of bad faith will be approached against a high standard, as described by Hodgson JA in Crewdson v Industrial Relations Commission of N**SW (2007) 164 IR 468; [2007] NSWCA 178, at [36]:
“Third, the claimant is alleging actual dishonesty and bad faith against four judges. In considering whether such a grave allegation is made out, the correct approach is that stated by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Consistently with Crewdson, the preliminary enquiry of the existence of a substantial ground will also require an approach going beyond possible error or suspicion.
In Golden v V’landys [2015] NSWSC 1709, at [122], Adamson J (as her Honour then was), said this about bad faith in the context of decisions made by the Chief Executive of NSW Racing concerning disciplinary action against a horse trainer:
“The seriousness of an allegation of bad faith is not in question. In SCAS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 397 at [19] the Court (Heerey, Moore and Kiefel JJ) said:
‘An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108]. It is no less serious if it is said to arise from conduct of the type discussed by von Doussa J in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs. While members of the legal profession representing disappointed applicants for protection visas may often act for reasons of high principle, and on many occasions pro bono, that is no warrant for making the serious allegation if it is not justified on the material. But because of the nature of the allegation of bad faith, serious questions of professional ethics arise. It should be clearly understood that an allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so.’”
“121 Section 35A(1) provides that the Ombudsman shall not be liable whether on the ground of want of jurisdiction or on any other ground. Liable in the section means, in my opinion, liable to suit. That construction is supported by the fact that the relevant phrase used is liable “to any civil or criminal proceedings”. The word “to” used in contradistinction to the word “in”, in my opinion, makes it clear the expression is referring to liable to be sued, rather than, for example, liable in damages or liable for some other remedy.
122 That construction is supported by s 35A(2) which provides that a pre-condition of bringing proceedings under s 35A(1) is the leave of the court.
123 Further, the words “on the ground of want of jurisdiction or on any other ground” are of extremely wide import. The words “want of jurisdiction”, in my opinion, demonstrate an intention by the legislature to exclude public law remedies as well as personal remedies.
…
127 Further, a legislative intention to exclude judicial review is consistent with the functions that the Ombudsman is required to perform under the Act. They are principally the investigation of complaints but not their adjudication and the making of recommendations to the Minister or the public authority in question: see Ombudsman Act s 26. As was indicated in the Second Reading Speech (see [33] above) the function of the Ombudsman is to persuade not adjudicate. In these circumstances, it is entirely explicable that the legislature intended to exclude judicial review.
128 Such a legislative intent is also consistent with the fact that the Ombudsman is subject to detailed scrutiny by the Joint Committee in respect of his or her activities (see [31] above). It is consistent with an intention that his or her activities be overseen by Parliament rather than the Courts.”
“There remains a question as to whether there is a third category of proceedings, other than those envisaged by s 35A(2) and by s 35B. In its terms, the “immunity” conferred by s 35A(1) is subject to a limitation and an exception. The limitation is to be found in the requirement that the impugned conduct must have been done (or omitted to be done) “for the purpose of executing this or any other Act”. The exception is for acts or omissions “in bad faith.” No doubt the limitation and the exception should be understood as operating coherently; thus, conduct undertaken in bad faith is not conduct undertaken for the purposes of executing the Act, but for an improper or extraneous purpose. Read literally, the limitation may be wider and extend to acts which are done in good faith, but not for the purpose of executing an Act.” (Underlining added)
Ultimately, as I understood the plaintiff, the core of her complaint was the prolonged inactivity by the Ombudsman and persistent refusals ‘to get involved’ in the plaintiff’s complaints about the DCJ.
The plaintiff’s submission, at least in my words, was that the inactivity and refusals could not be explained by other than the existence of bad faith. This was the only available inference.
The Ombudsman, to counter the existence of any such inference, took me through aspects of the dealings between the plaintiff and the Ombudsman, at the same time as reminding me that the Ombudsman, pursuant to s 13 of the Ombudsman Act, always had a discretion as to whether or not to investigate a complaint.
The first document I was referred to by the Ombudsman was the initial response, by email on 9 March 2023, to the plaintiff’s complaint which had been received on 1 November 2022.
The email refers to the details of the complaint and then states:
“While we made inquiries about your complaint, we did not conduct an official ‘investigation’ under the Ombudsman Act. This means that no findings (whether adverse or favourable) have been made about the DCJ’s conduct.
The Ombudsman can only conduct an official investigation if it appears that DCJ’s conduct was unlawful or objectively unreasonable. (within the meaning of the Ombudsman Act).”
“I acknowledge your dissatisfaction in dealing with DCJ, however, given they have the case management of your children in statutory care, you will need to continue to liaise with the caseworkers to progress the care plans and the actions outlined in SOPP. As discussed on the phone recently, you may wish to reach out to an advocacy service in your local area for support and assurance in dealing with DCJ.
Furthermore, we usually ask complainants to complain to the agency (DCJ in your situation) first to allow them a chance to respond to the complaint. We will only consider getting involved after that has happened.
Ms Janson, I understand that you may not be satisfied with the outcome of your complaint to our office however I hope that this email clarifies our position.” (SOPP stands for Summary of Proposed Plan)
“I am writing to you in response to your request for review of your complaint made about Bankstown CSC that was handled by Ms Hana Husakovic, Investigation Officer.
My role is to determine if your request meets our policy threshold for a review of the original decision.
…
I have determined your request does not meet the threshold for a review as it does not provide any new or compelling information that was not available to Ms Husakovic when she initially considered the matters you raised.
…
I am sorry but I do not agree with your view that the staff of Bankstown CSC are criminals.
…
I appreciate that you disagree with Bankstown CSC’s views regarding the placement of your children. Ultimately, this is a decision for the Children’s Court, and you would need to seek legal advice regarding orders made by the Children’s Court.
Please be aware that under our policy my decision is final. Accordingly, I advise we will not consider any further requests from you to review our decision not to investigate your complaint about Bankstown CSC ...” (CSC stands for Community Services Centre)
The plaintiff made a complaint to the Independent Commissioner Against Corruption (ICAC) which also refused to carry out an investigation. The plaintiff asked for a reconsideration of this decision which led to an email from the plaintiff to ICAC on 18 March 2025. I was referred to this email because in her complaints about the Ombudsman the plaintiff does not refer to any allegation of bad faith, but only that the Ombudsman’s refusal to investigate “indicates a lack of intervention, necessitating ICAC’s review.”
Although I understand the point made about the email to ICAC, I do not think it necessarily excludes an allegation of bad faith.
On 3 March 2025, the Ombudsman sent an email to the plaintiff apparently responding to a complaint made on 31 January 2025, again about the DCJ. The email tells the plaintiff that “we will work through your complaint and the facts you have given us and contact you again soon.”
‘Contacting you again soon’ materialised through an email on 25 March 2025 in which the Ombudsman states:
“The latest correspondence you supplied dated 9 March 2025 shows that DCJ is still considering the matter. As per the email sent to you on 5 March 2025 by Mr Haverfield, your matter is sitting with the Deputy Secretary for their review prior to providing you with a response. Once this is approved, DCJ will send the response to you.
We will not become involved in a matter that an agency is actively investigating, even if that investigation is not proceeding as you would like. We can only act if there is information to suggest that DCJ’s conduct was unlawful or objectively unreasonable.
This means that the complaint will remain open with the NSW Ombudsman, but we will not act on it unless DCJ has provided an outcome, and you remain dissatisfied with the outcome.”
“As you have previously been advised, our office will generally not respond to complaints that an agency has not already had an opportunity to respond to. I note that shortly after sending your email, Ms Caroline Wilson, Manager Client Services, told you that DCJ was looking into the matter and provided a response on 17 October 2025.
You replied to DCJ’s email on 17 and 24 October 2025, and it appears that DCJ has yet to respond. I would suggest allowing DCJ reasonable opportunity to reply to your follow-up correspondence.
If you remain dissatisfied with their response, you are welcome to submit a new complaint to our office in the future, please include a copy of any responses you have received from DCJ, so that we can assess whether those responses have been reasonable …”
The plaintiff requested a review of the Ombudsman’s decision. On 5 December 2025, the Ombudsman emailed the plaintiff telling her that she would be contacted after a review by a manager. The review was then placed ‘on hold’ because the plaintiff indicated that she would be suing the Ombudsman.
The defendants submitted that while there may have been some long periods of time between correspondence there was no evidence coming even close to demonstrating bad faith.
In addition, it was open to the Ombudsman to not investigate where an alternative remedy was available. Section 13(4) of the Ombudsman Act, as relevant, states:
(4) Where any person has complained to the Ombudsman under section 12 about the conduct of a public authority, the Ombudsman, in deciding whether to make that conduct the subject of an investigation under this Act or whether to discontinue an investigation commenced by him or her under this Act—
(a) may have regard to such matters as he or she thinks fit, and
(b) without limiting paragraph (a), may have regard to whether, in his or her opinion—
…
(v) in relation to the conduct complained of there is or was available to the complainant an alternative and satisfactory means of redress.
The defendants submitted that on an overall analysis the Ombudsman replied to the plaintiff’s complaints appropriately, took into account (as the Ombudsman was entitled to do) that there were unresolved and ongoing complaints before the DCJ and it was a proper exercise of the Ombudsman’s discretion to not investigate.
The plaintiff is obviously consumed by the perceived inaction of any supervisory body to scrutinise and criticise the actions of the DCJ. Her attempts to obtain the supervision have been widespread, extending to the highest levels of State and Federal Government, and she remains without the assistance she desires. Her efforts on behalf of her children may be admirable, but the lack of success does not automatically translate into bad faith from those, like the Ombudsman, from whom she has sought, but not received, assistance.
It is very clear from the terms of s 35A and from Kaldas that the Ombudsman’s immunity is to be tightly controlled and protected.
Looking at the nature of the contact between the plaintiff and the Ombudsman, even accepting that there may have been some periods of unnecessary delay on the part of the Ombudsman, and having regard to the requirements of bad faith and the strength of the immunity emphasised by Bathurst CJ and Basten JA in Kaldas, I am not able to identify, or be satisfied, of a “substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.”
It must follow that leave will not be granted to proceed against the Ombudsman.
The plaintiff accepted that her pleadings, including the proposed amended statement of claim might need further amendment. She was also satisfied with my suggestion that I give her time to file a summons in accordance with Unform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.3. The defendants however did not agree, stating that no further leave should be given to the plaintiff and that, in my discretion, I should not give the plaintiff leave to file a summons but should rather simply dismiss the proceedings.
Because of the defendants’ approach, which they were perfectly entitled to adopt, I will give reasons for refusing to allow the filing of the proposed amended statement of claim and refusing to order a dismissal of the proceedings.
The amended statement of claim covers 131 pages. The initial paragraphs are helpful. They identify the parties and the court’s apparent jurisdiction. But then, at [16] the plaintiff states:
“For avoidance of doubt, the Plaintiff does not seek parenting orders, changes to placements, or merits review of child-welfare decisions. The relief sought is confined to this Court’s supervisory jurisdiction over the legality of administrative actions and omissions, including jurisdictional error, legal unreasonableness, improper purpose, bad faith, constructive failure to exercise statutory powers and related civil wrongs.”
“38. The Plaintiff does not seek to challenge or appeal any Children’s Court orders. The Plaintiff challenges post-order administrative conduct which is amenable to judicial review. Without limiting her case, that conduct includes:-
39 (i) contact-management decisions imposing arbitrary two-hour limits and retaliatory communication bans (Exhibits R–Z series; SDE-3 D.8, G.6);
40 (ii) failure or suppression of medical and genetic results (8q24.21 findings) (Exhibits E–F; SDE-3 E.11);
41 (iii) falsification of identity and cultural records, including false sibling names and mislabelling of heritage (Exhibits L series; SDE-3 L.9–L.9E);
42 (iv) coercive and invasive interviews, including unlawful observation while undressed, contrary to the Privacy and Personal Information Protection Act 1998 (NSW) and the common-law duty of confidence (Exhibits K–K3; SDE-3 E.2, G.3);
43 (v) failure to act on abuse disclosures and mishandling of incident reports (Exhibits Q–R; SDE-3 E series); and
44 (vi) obstruction of communication and review processes (Exhibits A, G, H; SDE-3 F series).”
“The Plaintiff pleads that none of the relief sought disturbs or appeals any existing Children’s Court order. All requested relief concerns post-order administration, which is said to be unlawful, unreasonable, procedurally unfair and continuing. (see [3.4].)”
There seem to be a number of decisions about which the plaintiff complains, but precisely what they are is difficult to discern.
UCPR Pt 59, which applies to the plaintiff, requires judicial review proceedings to be commenced by summons. The plaintiff is self-represented so perhaps the use of a statement of claim could be overlooked. However, the balance of the rule cannot be overlooked. In particular, r 59.4 describes the required contents of the summons:
The summons must state—
(a) the orders sought, and
(b) if there is a decision in respect of which relief is sought—
(i) the identity of the decision-maker, and
(ii) the terms of the decision to be reviewed, and
(iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and
(c) with specificity, the grounds on which the relief is sought.
Some of the ingredients required by UCPR r 59.4 may be found somewhere within the proposed pleading, but they do not make themselves visible with the clarity required by the rule. It is almost impossible to detect the individual decisions to be reviewed, let alone the decision-maker and the specific grounds relevant to each decision.
A further problem arises from UCPR r 59.10:
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
If the individual decisions are not identified, it is impossible to calculate the 3 months within which the proceedings are to be commenced. It may be, as perhaps contemplated by [16] of the pleading (quoted above), that it is not sought to set aside each decision, thus triggering r 59.10(5), but it is impossible to know if this is the plaintiff’s intention, let alone to which decisions this would apply.
I accept some leeway and assistance should be given to self-represented litigants. If the content of the amended statement of claim is any guide, the plaintiff has already had some assistance. The plaintiff frankly said Artificial Intelligence (AI) had been used to “make indexes and things like that” and to help her “structure sentences”.
I recommend the plaintiff not use AI, if it was used to draft the amended statement of claim. It may be relevant, for example, to quote authorities in support of various propositions but the pleadings are not the right place or time, especially where they are accompanied by a vague statement of principle (see for example [1129] to [1161] of the proposed pleading).
Grand statements of principle are not helpful and do not allow a defendant to answer allegations made against it. Paragraphs [1017]-[1018] state:
“1017 [11.26] The Plaintiff pleads that the Supreme Courts supervisory and equitable jurisdiction exists precisely for matters such as this: to correct jurisdictional error, ultra vires conduct and breach of statutory duty; to compel fair and transparent administration; and to prevent ongoing use of executive instruments (including communication restrictions) as instruments of harm. The Plaintiff therefore asks the Court to declare the impugned conduct unlawful, order its correction and disclosure award just damages, and retain supervision with liberty to apply until compliance is demonstrably achieved. (See [6.11]-[6.13]; [10.14]-[10.16]; Exhibits D-D2.)
1018 [11.27] In short: public power must answer to law; records must answer to truth; and where children are concerned, nothing less is acceptable. (CRC Arts 3, 8, 9, 12, 19; CYPCPA ss 9, 10, 83, 86; Parts 6 and 10.)”
“This Amended Statement of Claim is pleaded in accordance with UCPR rr 6.12, 14.2(1), 14.7 and 15.5, and contains, so far as reasonably possible given the volume and continuing nature of the underlying conduct, a summary of the material facts and particulars sufficient to enable each Defendant to know the case to be met.”
The sentiment is admirable, but the pleadings simply do not achieve the stated purpose. UCPR r 6.12 may be relevant. I am at a loss as to the relevance of r 14.2(1). Rule 14.7 says a pleading is to contain facts not evidence. This pleading is awash with evidence and submissions. Rule 15.5 concerns “Allegations of negligence and breach of statutory duty in common law claims in tort.” The rule may have some connection to the allegation of misfeasance in public office but not, as I understand the primary allegations, to the request for judicial review.
I think it is clear from the above that leave should not be given to file the amended statement of claim. The current statement of claim should also be struck out. The plaintiff however should be entitled to have ‘another go’.
This should by way of the filing of a summons in accordance with UCPR Pt 59. I will also give her leave to include her misfeasance and damages claims (other than against the Ombudsman) in the summons.
As noted above, the defendants’ primary position was the proceedings should be dismissed without leave to re-plead. The defendants did agree that if I was against them on dismissal, then the statement of claim should be struck out. The defendants said I had a discretion which should not be exercised in the plaintiff’s favour because she had alternate remedies for her aspirations. The defendants submitted:
“64. Moreover, as the plaintiff was advised by the defendant’s solicitor by letter dated 15 December 2025, parental responsibility reposed in the Minister in relation to her children means all the duties, powers, responsibilities and authority, which, by law, parents have in relation to their children, as defined in s 3 of the CYPCPA. The Minister (and appropriate delegates) hold parental responsibility to make all decisions concerning contact with the children subject to that responsibility and which may become an aspect of orders of the Children’s Court, pursuant to s 79(2)(b) of the CYPCPA. The Minister and his delegates are able to make decisions about contact, including changing those arrangements, where it is in the best interests of the child to do so. In respect of any duty of care alleged to be owed to the natural parent of such a child, the principles of Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 are squarely enlivened and are likely to deny the existence of any such duty of care.
65. Given that the more appropriate forum available for the plaintiff to access to ventilate issues relating to contact arrangements with her children is the Children’s Court, (through the filing of an application pursuant to s 90 of the CYPCPA or an application for a contact order pursuant to s 86 of the CYCPA) the utility of allowing the plaintiff to seek to pursue judicial review by way of the path provided by UCPR Part 59 is not apparent.”
I would agree with the defendants if the sole complaint made by the plaintiff related to contact with her children. However, the complaints are far more wide ranging, encompassing a plethora of allegations about the conduct of the many decision-makers.
It may well be that my orders permit the commencement of a case that may not be quick and cheap, but the defendants, after receiving the summons, will have the option to approach the court to limit or otherwise restrict the scope of the summons.
The plaintiff should also be aware, as properly suggested by the defendants, of her capacity to take advantage of r 59.9 to ask the relevant defendant for the details of decisions as prescribed by this rule. This should help her to overcome the strictures she said she faced in providing details of the decisions.
I make the following orders:
Leave to join the Ombudsman pursuant to s 35A of the Ombudsman Act 1974 (NSW) is refused.
The pleadings filed by the plaintiff on 11 August 2025 and on 25 August 2025 are struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
Leave to file an amended statement of claim is refused.
The plaintiff has leave to file a summons in accordance with Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) within 35 days of these orders.
The plaintiff is directed to endeavour, as far as she is able, to provide all of the particulars required by r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiff has leave to include in the summons a claim, other than against the Ombudsman, alleging public misfeasance and consequential damages.
The plaintiff is to pay the Ombudsman’s costs in respect of the application for leave to commence proceedings against the Ombudsman.
Costs of the notices of motion filed by the defendants on 26 November 2025, and by the plaintiff on 15 December 2025, other than the costs encompassed within Order (7) above, are reserved.
**********
Janson
Department of Communities & Justice [2026] NSWSC 340
(2007) 164 IR 468
(2017) 107 NSWLR 341
(1938) 60 CLR 336
(2001) 207 CLR 562