Kumari v Industrial Relations Secretary on behalf of NSW Treasury [2025] NSWIRComm 1068

Re Refugee Review Tribunal; ex parte H [2001] HCA 28, 75 ALJR 982

Industrial Relations Secretary on behalf of NSW Treasury (Respondent)

1. This unfair dismissal matter is listed this morning at 11.30am for conciliation. The Applicant's name has been called outside three times and there is no appearance for the Applicant.
2. Yesterday afternoon the Commission received email correspondence from the Applicant requesting that I recuse myself from the matter; that the conciliation be conducted "on the papers" on the basis that the Applicant is suffering from extreme stress, and attendance at the conciliation will exacerbate her poor mental health; and that the Respondent be directed to amend its Notice of Appearance "to remove identified defects" or alternatively, that it be struck out if not properly regularised.
3. The Commission responded to that email at 8.24am this morning in the following terms:

"Dear Ms Kumari,

A conciliation cannot take place on the papers. If you are personally unable to attend, you should arrange a solicitor or agent to attend on your behalf. Please advise if you wish an AVL link to be sent to you to enable you or a representative on your behalf to attend the conciliation.

Regards."

1. Practice note 17A permits applications to be made by email to the Industrial Registrar subject to paragraph [11] of the Practice Note which provides that where a procedural application needs to be supported by evidence and requires a formal determination, the Commission may make directions for the filing of a Notice of Motion with a supporting Affidavit.
2. I have considered the applications made by the applicant in her email of 19 August 2025, the submissions made and the material provided in support of them, and I have determined to dismiss each of them for the following reasons.
3. The Applicant submits that I should recuse myself because I am "the subject of a pending appeal in case number 2025/00239585" and that "in these circumstances, a fair-minded lay observer may reasonably apprehend a conflict of interest". Case number 2025/00239585 concerns a decision I made to summarily dismiss the Applicant's claim she had been victimised pursuant to s 210 of the Industrial Relations Act 1996 (NSW).
4. I reject the applicant's submission.
5. These proceedings are currently at the stage of conciliation. That is a process by which a Commissioner helps the parties to reach a mutually acceptable agreement to resolve the dispute between them. It does not involve the Commission making any determinations, although pursuant to s 134 of the Industrial Relations Act 1996 the Commission may make recommendations or give directions to the parties.
6. In a case involving an administrative tribunal proceeding being held in private, the High Court has suggested, in Re Refugee Review Tribunal; ex parte H [2001] HCA 28, 75 ALJR 982 at [28] that it might be preferable to formulate the test for apprehended bias "by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias," rather than as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
7. In any event, the principles relating to apprehended bias in respect of both judges and administrative decision-makers is substantially similar, although there is a different emphasis. I am prepared to accept for present purposes, but make no finding in this regard, that the principle of apprehended bias applies to my presiding over the conciliation of this matter, despite the fact that I will be making no determinations in the conciliation. However, I do not consider that the principle is engaged by reason of the appeal from my decision in case number 2025/00239585.
8. Gageler J suggested in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] that there are three steps in determining whether there is an appearance of disqualifying bias in an administrative context:

"(a) identification of the matter which underpins the apprehension that a decision-maker might decide a case other than on its legal and factual merits,

(b) articulation of the logical connection between that matter and a feared deviation from the course of deciding the case on its merits, and

(c) consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way."

1. It is said in this case that an apprehension of bias arises because an appeal in case number 2025/00239585 has been lodged, thereby giving rise to an apprehension of a conflict of interest. It has not been said to arise because of my decision in that matter. It seems implicit from the submission that I would decide the present matter other than on its legal or factual merits or improperly influence the conciliation because I would act in some kind of retaliatory fashion against the Applicant as I have a personal interest in my decision in case number 2025/00239585.
2. I have no personal interest whatsoever in the outcome of the appeal in case number 2025/00239585 but, more importantly, I do not consider that a hypothetical fair-minded lay person who is properly informed of the nature of these unfair dismissal proceedings might reasonably apprehend that I might not bring an impartial mind to the resolution of the claim or the conduct of the conciliation because the Applicant has appealed my decision against her in another matter. Such hypothetical but informed observer would appreciate that it is an ordinary and everyday incident of being a judicial officer that decisions made by them are appealed from and, from time to time, overturned. There is no personal consequence to a judicial officer who is overturned. It may be if the matter is remitted to them that they will have to consider the matter afresh, however, a hypothetical observer would understand that they have no personal interest in the outcome of the proceedings, one way or the other, and thus no conflict of interest could arise. Were it otherwise, a litigant might be able to influence the composition of the Bench by merely appealing an interlocutory decision made by the presiding judicial officer. To borrow a phrase used by the High Court in Ebner, such a situation would be "intolerable".
3. I decline to recuse myself by reason of apprehended bias. As I noted in Kumari v State of New South Wales, NSW Treasury No 2 (2025) NSWIRComm 1024, the Applicant has a statutory right pursuant to s 173 of the Industrial Relations Act 1996 to request that a different member of the Commission exercise arbitration powers. If, after the conciliation, the Applicant wishes to avail herself of that right, she may do so.
4. In respect of the application that the conciliation be conducted "on the papers", such application must be rejected as it is entirely unworkable. Conciliation is a process designed to obtain a mutual agreement to resolve the proceedings. It is a fluid and dynamic process involving contemporaneous communications between the parties, facilitated by the Commission. It cannot be conducted "on the papers". The parties are, of course, free to exchange without-prejudice written communications with offers of settlement, but that is a process that does not involve the Commission.
5. When a party commences proceedings, they have an obligation pursuant to s 56(3) of the Civil Procedure Act 2005 (NSW) to participate in the processes of the Commission. Pursuant to ss 86 and 87 of the Industrial Relations Act, the Commission must first endeavour to settle an applicant's claim for unfair dismissal by conciliation before proceeding to determine the claim. While the Commission will endeavour to accommodate parties with special needs to ensure that they have access to justice, parties are still obliged to make their own arrangements to ensure they meet their obligations.
6. The Applicant has provided to the Commission a WorkCover NSW Certificate of Capacity and a "letter of support" from Dr Timothy Bligh dated 15 August 2025 in support of her application that the conciliation be conducted on the papers. In those circumstances, the Commission has offered to provide the Applicant with a link to attend the conciliation via AVL to avoid the need for a personal attendance. The Commission has also made it clear to the Applicant that she may appear by way of a solicitor or agent without the need for her to personally attend, although that is not the normal preference of the Commission. The Applicant's medical condition does not absolve her from the need to participate in person, or by a representative, in a conciliation of the claim before proceeding, if necessary, to arbitration.
7. As already noted, the Applicant has failed to appear this morning. In the circumstances, I propose to stand the proceeding over for conciliation on 27 August 2025 at 11.30am. If there is no appearance by the Applicant on that occasion, I will dismiss the proceedings pursuant to s 61(3)(a) of the Civil Procedure Act 2005 and UCPR r 12.7 for want of due dispatch.
8. Lastly, there is no irregularity in the Notice of Appearance filed by the Respondent. The Notice of Appearance names the Respondent as the "Industrial Relations Secretary on behalf of NSW Treasury" in circumstances where the Unfair Dismissal Application names the Respondent as "NSW Treasury".
9. Pursuant to s 50 of the Government Sector Employment Act 2013 (NSW), the Industrial Relations Secretary is, for the purposes of any proceedings relating to public service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of public service employees. Pursuant to s 49(1), the Industrial Relations Secretary means the secretary of the Premier's Department.
10. The Applicant submitted in her email:

"...s 50 only deems the Industrial Relations Secretary to be the employer for the purposes of proceedings before the Commission. It does not authorise the secretary to appear "on behalf of NSW Treasury".

The Notice of Appearance dated 13 August 2025 was filed in the name of the "Industrial Relations Secretary on behalf of NSW Treasury". This wording creates a hybrid or dual role not supported by legislation. The correct position is that the Industrial Relations Secretary alone is the statutory employer for these proceedings.

Accordingly, the Notice should be amended to reflect only the Secretary's statutory role under s 50. Acceptance of the Notice in its current form risks procedural irregularity and confusion about the proper respondent."

1. Due to the fact that the Industrial Relations Secretary is the deemed employer for employees in many areas of the public service, it is the custom in this jurisdiction for the particular department or agency in which the employee is or was employed, to be identified. This practice assists parties and the Commission alike. The words "on behalf of NSW Treasury" adds nothing of substance.
2. The Respondent is properly named as the Industrial Relations Secretary on behalf of NSW Treasury and I propose to order that the Respondent's name in this proceeding be amended accordingly.
3. The Applicant also submitted in her email that the Notice of Appearance had been improperly signed. She submitted:

"The Notice of Appearance dated 13 August 2025 bears the signature of Ms Grace Lovell-Davis in the space designated for Karen Smith, Crown Solicitor. As the document expressly records Ms Smith as solicitor on the record, it appears that only she was entitled to sign in that space. In the absence of any qualification indicating signature "for and on behalf of", the execution may give the impression that Ms Lovell-Davis signed as Ms Smith, creating a material irregularity. With respect, unless the Notice is properly regularised, it remains defective and may be liable to be set aside."

1. This submission ignores that under the signature and the words "Karen Smith, Crown Solicitor for NSW, solicitor for the respondent", adjacent to the word "Capacity" appears the words: "Signed in my capacity as a solicitor employed in the office of the said Karen Smith". It is plain that Ms Lovell-Davis had ostensible authority as solicitor in the employ of Ms Smith to sign the Notice of Appearance.
2. In any event, the Notice complies with r 4.2 of the Industrial Relations Commission Rules 2022 which requires a Notice of Appearance to include:

(a) the name, address, telephone number and email address of the person entering the appearance,

(b) if the person entering the appearance appears by a representative - the name, address, telephone number and email address of the representative,

(c) if the person entering the appearance appears by a solicitor and the solicitor has another solicitor as agent in the proceedings - the name, address, telephone number and email address of the agent, and

(d) an address for service.

1. There is no irregularity, much less a material one, in the Notice of Appearance.

(1) The Applicant's application for me to disqualify myself is dismissed.

(2) The Applicant's application for the conciliation to be conducted on the papers is dismissed.

(3) The matter is set down for conciliation on 27 August 2025 at 11.30am.

(4) The Applicant, her solicitor or agent, is directed to attend a conciliation on 27 August 2025 at 11.30am and if there is no appearance by the Applicant on that occasion, I will dismiss the proceedings pursuant to s 61(3)(a) of the Civil Procedure Act 2005 and UCPR r 12.7, for want of due despatch.

(5) The name of the Respondent in these proceedings shall be amended to read the "Industrial Relations Secretary on behalf of the NSW Treasury".