Kumari v Industrial Relations Secretary on behalf of NSW Treasury [2025] NSWIRComm 1072 | Case summary

The reasons I made those orders were given in an ex tempore decision which was published on 21 August 2025, Kumari and Industrial Relations Secretary on behalf of NSW Treasury [2025] NSWIRComm 1068. A link to that decision was provided to the Applicant by email.
The Commission has received an email from the Applicant this morning which was sent at 4.48am, 27 August 2025, only hours before the rescheduled conciliation listed at 11.30am this morning, that challenges my decision given on 20 August 2025 and seeks to reagitate the same applications as those that were made in the Applicant's email of 19 August 2025.
If the Applicant considers I erred in my decision of 20 August 2025, she may seek leave to appeal it. To the extent the Applicant, by her email dated 27 August 2025, seeks to reagitate the same applications as were made in her email of 19 August 2025, noting that again they had been made informally, without a notice of motion or supporting affidavit, there is nothing contained in her email which indicates that circumstances have changed since she made the same applications by email dated 19 August 2025, or that new material bearing on the matters I determined on 20 August 2025 has come to light and, accordingly, and consistent with the guidance provided in Bajramovic and Calubaquib [2015] NSWCA 139; 71 MVR 15, I do not propose to entertain them.
The Applicant has failed to appear this morning. Her email received this morning clearly indicates that she is aware of the orders I made on 20 August 2025, including that she was directed to appear this morning for the scheduled conciliation of the matter, personally or by a solicitor or agent, failing which the proceedings would be dismissed.
As was made clear in my decision, 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 and to excuse the Applicant from personal attendance if a solicitor or agent were to appear on her behalf. The Applicant has not availed herself of those options. Nor has she sought an adjournment of the matter until such time as she is well enough to attend. Rather, she insists that the Commission "determine the matter on the papers". As I explained in my decision on 20 August 2025, a conciliation cannot be conducted on the papers.
Pursuant to s 86 of the Industrial Relations Act 1996 (NSW), the Commission must endeavour, by all means it considers proper and necessary, to settle the Applicant's claim by conciliation. The directions I made on 20 August 2025 for the Applicant to attend today personally, including via AVL or by a representative, was a direction given pursuant to s 61(1) of the Civil Procedure Act 2005 (NSW), for the speedy determination of the real issues between the parties to the proceedings. A determination of those issues cannot occur without the Commission first endeavouring to settle the claim by conciliation. My direction was directed to that end. The Applicant's refusal to make arrangements to attend the conciliation, personally or by a representative, or even to engage with the Commission constructively as how she might participate in the proceedings without risk to her health, beyond insisting that the matter be determined on the papers, is inimical to the speedy determination of the real issues between the parties.
The Commission's discretion to dismiss the proceedings under s 61(3)(a) is to be exercised with mandatory regard to the overriding purpose and the objectives of case management, Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38] to [41]. The requirement is to give weight to those matters as fundamental elements in the decision-making process. In having regard to ss 56 and 57 of the Civil Procedure Act, I have, of course, considered that the Applicant may potentially lose the ability to seek relief for unfair dismissal. However, a proceeding that is dismissed pursuant to r 12.7 or s 61(3)(a), (subject to the terms on which the dismissal is made), does not, by virtue of s 91(1) of the Civil Procedure Act, ordinarily prevent an Applicant from bringing fresh proceedings on the same cause of action.
Of course, by reason of s 85(1) of the Industrial Relations Act 1996, the Applicant would be out of time to bring a fresh claim for relief for unfair dismissal. However, the Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so.
I am mindful of the significant, perhaps unsurmountable hurdle a dismissal of these proceedings creates to the Applicant seeking relief for unfair dismissal. However, as Commissioner Newell remarked in Kabir and Department of Family and Community Services [2016] NSWIRComm 1009, at [13], comments which I endorsed in Poore and Commissioner of Police NSW Police Force [2022] NSWIRComm 1079, the Commission 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 despatch and, I would add, to participate in the processes of the Commission consistent with their obligations under s 56(3) of the Civil Procedure Act. The failure to do so affects not only the other party, but the Commission itself and all the other litigants who seek relief from the Commission.
As I said in my decision of 20 August 2025, 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. The Applicant has not provided any material to the Commission to indicate that she is unable to engage a representative to appear on her behalf, instead insisting that she has the "right to conduct [her] own case". While that is true, her insistence that the conciliation and, indeed, the entire proceeding be "determined on the papers" and her failure to appear today, by agent or otherwise, is not consistent with the Applicant's obligations under s 56 of the Civil Procedure Act to participate in the processes of the Commission and to comply with directions and orders of the Commission.
In the circumstances, and as foreshadowed, I dismiss the proceedings pursuant to s 61(3)(a) of the Civil Procedure Act 2025 and UCPR r 12.7 for want of due despatch.

Kumari v Industrial Relations Secretary on behalf of NSW Treasury

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