Kumari v Industrial Relations Secretary on behalf of the NSW Treasury [2025] NSWIRComm 23

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Elphick v Elphick [2016] NSWSC 1674

Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230

Kabir v Department of Family & Community Services (2016) 257 IR 124; [2016] NSWIRComm 1009

Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 13

Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 1015

Kumari v State of New South Wales, NSW Treasury (No 2) [2025] NSWIRComm 1024

Kumari v State of New South Wales, NSW Treasury (No 3) [2025] NSWIRComm 1032

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

Kumari v Industrial Relations Secretary on behalf of NSW Treasury (No 2) [2025] NSWIRComm 1072

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69

Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055

Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079

Proietti v Proietti [2022] NSWCA 234

Rahman v Bimson [2010] NSWSC 338

Tan v City of Parramatta Council [2025] NSWIRComm 1022

Ters v Health Secretary in respect of the South Western Sydney Local Health District (No 2) [2023] NSWIRComm 1023

Ward v Secretary, Department of Education [2022] NSWIRComm 1086

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

Industrial Relations Secretary on behalf of the NSW Treasury (Respondent)

[2025] NSWIRComm 1032

1. Before the Commission is a notice of motion filed by the Industrial Relations Secretary on behalf of the NSW Treasury (respondent) seeking an order that the application for leave to appeal and appeal filed by Bindu Kumari on 23 June 2025 (appeal) be dismissed pursuant to r 13.6(2) of the Uniform Civil Procedure Rules 2005 (UCPR) (motion). By this motion, the respondent contends that the appeal should be dismissed because Ms Kumari (appellant) has failed to attend the Commission when the matter has been listed for directions on two previous occasions, and she failed to appear at the second directions hearing after having received notice that the appeal may be dismissed if she did not attend that hearing.
2. In the appeal, among other irregular orders which we will address in more detail below, the appellant seeks to set aside a decision of Commissioner McDonald in Kumari v State of New South Wales, NSW Treasury (No 3) [2025] NSWIRComm 1032 (the Commissioner's decision). Commissioner McDonald dismissed the proceedings commenced by the appellant for relief from victimisation because it did not disclose a reasonable cause of action.
3. The motion is supported by two affidavits of Mr Thomas Poberezny-Lynch, solicitor for the respondent. As we explain later in this decision, despite being given ample opportunity to respond to the motion, the appellant has not filed any evidence or submissions in response to the motion in accordance with the Commission's directions, save for a series of informal email correspondence to the Registry which we will address below.
4. For the reasons that follow we have decided to dismiss the appeal pursuant to UCPR r 13.6(2).

1. The appellant filed an application for relief from victimisation on 10 March 2025. The matter was first listed for conciliation before Commissioner McDonald on 20 March 2025. During that conciliation, the Commissioner suggested that the respondent provide a detailed response to correspondence sent by the appellant's solicitor on 3 and 8 March 2025. The respondent subsequently provided a reply dated 27 March 2025.
2. On 3 April 2025, the appellant filed a notice of motion seeking an order that the respondent comply "in full" with what was described as a "direction" made by the Commission on 20 March 2025. The motion was heard on 4 April 2025 and stood over to 15 April 2025. On that date, Commissioner McDonald dismissed the motion, finding that no direction had been made and that the respondent had already provided a substantive response to the appellant's correspondence. Commissioner McDonald further found that the appellant's affidavit in support of the motion contained "virtually no evidence of facts" and failed to demonstrate any material disadvantage to the appellant: Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 1015 at [8] (interlocutory decision).
3. On 13 May 2025, the appellant filed an application for leave to appeal and appeal from the interlocutory decision. The application was filed seven days out of time. The appellant sought an extension of time on the basis of a delay in accessing the hearing transcript and "psychological injury". Taylor J, President, refused the application for extension of time, finding that the reasons advanced did not justify the delay and that the appeal lacked reasonable prospects of success: Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 13 at [48]- [49].
4. On 20 May 2025, the matter was again listed before Commissioner McDonald for the hearing of the respondent's notice of motion seeking summary dismissal of the appellant's substantive application. Shortly before the hearing, the appellant filed a further notice of motion seeking, among other relief, that Commissioner McDonald recuse herself from further involvement in the proceedings due to apprehended bias. The Commissioner determined that the recusal application should be heard first and, after considering the material filed, dismissed the application. The Commissioner found that the appellant had not established a reasonable apprehension of bias and that the concerns raised related primarily to dissatisfaction with her prior procedural rulings: Kumari v State of New South Wales, NSW Treasury (No 2) [2025] NSWIRComm 1024.
5. On 10 June 2025, Commissioner McDonald determined both the respondent's motion for summary dismissal and the balance of the appellant's motion filed on 20 May 2025. The Commissioner found that the application for relief from victimisation disclosed no reasonable cause of action and was untenable. The Commissioner further found that the appellant had failed to identify any protected attribute under s 210(1) of the Industrial Relations Act 1996 (NSW) (IR Act) that could form the basis of a claim for victimisation. By the Commissioner's decision at [106]-[108], the appellant's application for relief from victimisation was dismissed pursuant to r 13.4 of the UCPR. The appellant seeks leave to appeal from the whole of this decision.
6. We turn now to address the substance of the appeal and the course of the appeal proceedings.

1. The appellant filed the appeal on 23 June 2025, together with an affidavit affirmed by her on 21 June 2025, which is the subject of an application for leave to rely on fresh evidence. A copy of the appeal was served upon the respondent on 27 June 2025.
2. While it is unnecessary to set out the application in full here, we observe that it is unconventional in form and difficult to follow in substance.
3. The appeal seeks a stay of the Commissioner's decision pending the determination of the appeal, notwithstanding that the Commissioner's decision was to dismiss the proceedings below.
4. The appeal asserts generic errors of law and fact, focusing on broad complaints about the denial of procedural fairness, and seeks extraordinary forms of relief involving serious allegations about the conduct of Commissioner McDonald and of Taylor J notwithstanding that his Honour was not the decision maker in the decision which is the subject of the appeal. It includes allegations of "breaches of human rights", "abuse of statutory power or public office", "misuse of position or authority" and "inappropriate targeting of legal representative". There is no attempt to particularise these allegations, or to establish any rational connection between these allegations and the appeal grounds.
5. In addition to setting aside the Commissioner's decision, the appellant seeks, among other forms of relief, the suspension from office of Commissioner McDonald and the referral of the "conduct, behaviour, capacity, and professional performance" of both Taylor J and the Commissioner to an unspecified "independent oversight authority" for investigation. The emphasis placed by the appellant on this aspect of her appeal assumes particular significance for the exercise of our discretion to dismiss the proceedings for the reasons we explain below.
6. The appellant requires leave for the Full Bench to receive the affidavit filed with the appeal: IR Act, s 191(2). That application remains unresolved. For present purposes we merely observe that this affidavit does not extend beyond the expression of general, unparticularised complaints about the Commissioner's decision, and a request that the appeal be determined "on the papers".
7. We will return to the particular claim for relief against Taylor J and Commissioner McDonald in the context of outlining material aspects of the course of the appeal proceedings, to which we now turn.

1. The appeal as filed on 23 June 2025 identified the appellant's representative as being a solicitor by the name of Mr Harsh Kumar Thakur.
2. On 27 June 2025, the respondent's representative emailed Mr Thakur asking if the appeal had been allocated a listing date. Mr Thakur did not respond to the email.
3. On 30 June 2025, a notice of listing advising that the matter had been listed for directions on 7 July 2025 before Chin J was emailed to the appellant's solicitor, Mr Thakur. The Commission's notice of listing stated as follows:

"If there is no attendance by you or your agent, counsel or solicitor on the date specified in this notice or as notified to you subsequently, the proceeding may be heard and orders may be made in your absence."

1. We note here that the appeal as filed nominated the respondent as "State of New South Wales, NSW Treasury". On 30 June 2025, notwithstanding this misdescription of the relevant statutory employer, the Industrial Relations Secretary in respect of the NSW Treasury entered an appearance as the respondent.
2. On 30 June 2025, Ms Gemma McGreal, solicitor for the respondent sent an email to Mr Thakur serving a sealed copy of the respondent's notice of representation and proposing timetable orders for the filing of submissions and the determination of the appeal. Mr Thakur did not respond to Ms McGreal's email.
3. On 3 July 2025, Ms McGreal sent an email to Mr Thakur referring to the directions hearing for the appeal on 7 July 2025 and proposing additional procedural orders for the filing of submissions and determination of the application. Mr Thakur replied to Ms McGreal's email on 4 July 2025 taking issue with the proper description of the respondent claiming, despite the reference to the correct matter number, that "it is unclear from your correspondence which specific matter you are referring to".
4. Also on 4 July 2025, Mr Thakur sent an email to the Registry stating as follows:

"Dear Registry

We hope this email finds you well.

We represent the Appellant, Ms Bindu Kumari, in this matter. We refer to the Application for Leave to Appeal and Appeal, together with the supporting affidavit, filed on 23 June 2025. We note that the Registry has listed this matter for Directions on 7 July 2025 at 10:00 AM before his Honour Justice D Chin (Vice President).

We respectfully seek clarification from the Commission on the following:

1. The Application for Leave to Appeal and Appeal (specifically at paragraphs 6, 9, and 10), supported by the accompanying affidavit (including all annexures) filed on 23 June 2025, expressly point 10 requests that the Application for Leave to Appeal and Appeal be determined on the papers. Notwithstanding this request, the Registry has issued a Notice of Listing requiring personal attendance, without reasons being provided for declining or refusing to proceed on the papers.

Accordingly, the Appellant respectfully seeks the legal basis upon which the matter has been listed for in-person attendance.

2. The Application seeks Leave to Appeal and Appeal to the Full Bench of the Commission. However, the Notice of Listing identifies only his Honour Justice D Chin, Vice President, and does not indicate the composition of the Full Bench. The Appellant respectfully seeks:

• confirmation of the names and designations of the three members constituting the Full Bench for these proceedings; or

• alternatively, if the Full Bench has not been constituted, the legal basis upon which the matter is presently listed before a single presiding officer.

3. We have not received a copy of the affidavit filed on 23 June 2025 bearing the case number. We respectfully request that a copy of the affidavit filed on that date, duly endorsed with the case number, be provided.

4. The Notice of Listing refers to the "Industrial Court of NSW." Having regard to the jurisdictional issues raised at paragraph 9 of the Application, the Appellant respectfully seeks clarification as to the legal authority under which these proceedings have been listed before the Industrial Court of NSW. In particular, the Appellant requests identification of the specific statutory or regulatory provision relied upon for doing so.

5. The Appellant respectfully seeks confirmation as to whether his Honour Justice D Chin, Vice President, has initiated or proposes to initiate an investigation into Commissioner J. McDonald and the President of the Commission, Justice Ingmar Taylor, as set out at paragraph 6 of the Application for Leave to Appeal and Appeal filed on 23 June 2025. If such an investigation has been commenced, the Appellant requests that the reference number be provided. In the event that no investigation has been initiated, the Appellant respectfully seeks the legal basis or justification for that position.

6. The Appellant seeks confirmation as to whether a referral has been made to an independent oversight authority for investigation in relation to the matters raised at paragraph 6 of the said Application. If such a referral has been made, we request a copy of the relevant correspondence. In the event that no referral has been made, we respectfully seek the legal basis or justification for that position.

We request that the hearings be determined on the basis of the information, documents, evidence, concerns, and serious issues set out in the affidavit and the Application for Leave to Appeal and Appeal (including all attachments) filed on 23 June 2025, pending the initiation and completion of the independent oversight investigation as outlined at point 6 of the Application for Leave to Appeal and Appeal.

Please let me know if further information or documentation is required."

1. We highlight three salient features of this correspondence. First, the appellant was clearly on notice of the listing of this matter for directions on 7 July 2025 before Chin J.
2. Secondly, the appellant appeared to proceed upon the notion that she has a right to the relief she seeks against Taylor J and Commissioner McDonald in advance of any hearing or determination of her appeal by the Full Bench. She asked whether Chin J had initiated or proposed to initiate an investigation into the conduct of Taylor J and the Commissioner and for "the legal basis or justification for" any failure by the Commission - at this stage of the proceedings − to do so. Consistent with her expectation that this investigation should have already commenced, the appellant further requested that her appeal be determined "pending the initiation and completion of the independent oversight investigation" (emphasis added). In other words, the appellant's position was that the hearing and determination of her appeal should await the completion of this investigation; or at least that the hearing of the appeal should proceed during the conduct of the investigation. In any case, the appellant made any further progress of the appeal conditional on the initiation of an investigation into the conduct of Taylor J and Commissioner McDonald that she is seeking in the appeal.
3. Thirdly, the appellant also adopted the position that, either concurrently with or after the completion of the requested "investigation" into Taylor J and the Commissioner, the balance of her appeal should be determined on the basis of the material she has filed on 23 June 2025. This material includes the appellant's affidavit referred to at [11] and [16] on which she is not entitled to rely without the grant of leave pursuant to s 191(2) of the IR Act.
4. On 7 July 2025, the appeal came before Chin J for an initial directions hearing. There was no appearance for the appellant. The appeal was listed for further directions on 28 July 2025.
5. Soon after the directions hearing on 7 July 2025, the Associate to Chin J sent an email to Mr Thakur, Ms McGreal and Mr Poberezny-Lynch in the following terms:

"Please note that, in the course of the directions hearing, Justice Chin noted the correspondence received by the Registry from the Applicant's representative on 4 July 2025 which, among other matters, acknowledged the listing of this matter at 10.00 am today. Justice Chin also observed that the Full Bench intends to program and determine this matter in the usual manner, namely by the conduct of in-person hearings before the Commission.

In view of the Applicant's non-attendance this morning, Justice Chin stood the matter over to 10.00 am on Monday 28 July 2025 for the purpose of giving the Applicant a further opportunity to appear before the Commission and to prosecute her application. In doing so, Justice Chin indicated that, in the event that there is no appearance for the Applicant on that occasion, consideration may be given to the dismissal of the proceedings for want of due despatch."

1. On 18 July 2025, Mr Thakur emailed the Registry. The email reiterated the matters contained in the appellant's correspondence of 4 July 2025 set out in full at [24]. In addition, the appellant asserted that, because the Commission did not respond to her 4 July email, this created "material procedural uncertainty" and her failure to appear at the hearing on 7 July 2025 "cannot properly be characterised as no appearance in the conventional sense". The appellant further alleged that the lack of response to her emails "created an unsafe and procedurally uncertain environment for both the Appellant and her legal representative"; and otherwise repeated her request for the appeal to be determined on the material she had already filed pending the investigation into the conduct of the judicial officers sought in her appeal.
2. On 18 July 2025, the Acting Senior Deputy lndustrial Registrar sent an email to Mr Thakur stating that the Commission will not correspond about issues in the manner sought by the appellant's representative and reiterated the content of the notice of 7 July 2025 referred to at [29]. The Acting Senior Deputy Industrial Registrar confirmed that the adjourned hearing on 28 July 2025 is the time for any concerns or applications to be ventilated.
3. On 22 July 2025, Mr Thakur sent another email to the Registry repeating the concerns raised in the appellant's earlier correspondence and continuing to press for the appeal to be determined on the basis of her filed material pending the completion of the investigation into Taylor J and the Commissioner. Mr Thakur also made it clear that the appellant had no intention of participating in the adjourned hearing on 28 July by any means, stating as follows:

"Further, we refer to the Commission's statement: 'In the event that there is no appearance for the Applicant on that occasion, consideration may be given to the dismissal of the proceedings for want of due despatch.' In this regard, we respectfully request that, should any such dismissal be contemplated or occur, the resulting decision expressly record that the reason for the Appellant's non-appearance is directly attributable to the creation of an unsafe and procedurally uncertain environment for both the Appellant and her legal representative, and to the Commission's continuing failure to respond to our email dated 18 July 2025 - including all related communications referenced therein."

1. On Sunday 27 July 2025 at 4:48pm, Mr Thakur again wrote to the Registry essentially repeating his earlier correspondence, including the request for the Commission to record the reason for the appellant's foreshadowed non-appearance on 28 July 2025 referred to in the preceding paragraph.
2. There was no appearance for the appellant at the adjourned directions hearing before Chin J on 28 July 2025. Instead of dismissing the proceedings at that time, Chin J made the following orders:

1. The Respondent is to file and serve any motion to dismiss the proceedings by 4:00 PM on 29 July 2025.

2. The Applicant is to file and serve any evidence and written submissions on which she intends to rely in response to the motion referred to in order 1 by 4:00 PM on 1 August 2025.

3. The Respondent is to file and serve any evidence and/or written submissions in reply by 4:00 PM on 8 August 2025.

4. The hearing of the motion is listed before the Full Bench at 10:00 AM on 28 August 2025.

5. The parties have leave to write to the Registry and Justice Chin's chambers indicating that they are content for the motion to be determined on the papers, whereupon the hearing listed on 28 August 2025 will be vacated."

1. On 28 July 2025, the Associate to Chin J emailed the parties' representatives setting out the orders above.
2. The respondent filed and served the motion on 29 July 2025.
3. On 1 August 2025, the Mr Thakur sent another email to the Registry repeating the appellant's complaints about the lack of response to her earlier correspondence, and containing a number of other complaints including about the direction for the respondent to file the motion and the offer to the parties for the motion to be determined on the papers. In addition, the appellant acknowledged receipt of the motion on 29 July 2025 while alleging that the service was not compliant with Chin J's orders because the version filed was unsealed.
4. On 11 August 2025 the Associate to Chin J wrote to the parties in the following terms:

"Dear Parties,

Since the directions were made by Justice Chin on 28 July 2025 the respondent has filed and served the motion referred to in Order 1 and the evidence and submissions referred to in Order 3. The respondent has also taken up the leave referred to in Order 5 indicating by email dated 7 August 2025 that the respondent consents to the motion being determined on the papers.

However, the applicant has not filed or served any written submissions or evidence to date whether in compliance with Order 2 made on 28 July 2025 or otherwise. Instead, the applicant through her representative has continued to seek to ventilate substantive issues in correspondence with the Registry. In particular, the applicant once again sent an email to the Registry, copied to the respondent's representatives and Justice Chin's chambers on 1 August 2025 which, among other matters, sought the vacation of the hearing listed on 28 August 2025 and for the Commission to proceed to determine her application for leave to appeal and appeal on the papers.

Justice Chin also notes that, since all of the respondent's material has been filed, there has been no indication from the applicant as to whether she consents to the motion being determined on the papers.

The applicant's representative has continued to seek to ventilate substantive issues in correspondence with the Registry despite having been informed by the Registry on 18 July 2025 that the Commission will not be corresponding about issues concerning these proceedings with the parties in that manner, and that the appropriate time for any concerns or applications to be ventilated by the parties is when the matter is listed for directions before the Commission. Since then, Justice Chin's orders on 28 July 2025 have also provided the applicant with an opportunity to respond to the respondent's motion by utilising the Commission's formal processes and procedures, namely, by filing and serving written submissions and evidence.

Justice Chin reiterates that the Commission will not engage with or have regard to informal email communications between the parties and the Registry raising substantive issues relating to these proceedings. Any such issues are to be ventilated in open proceedings before the Commission or otherwise in accordance with its directions.

In light of these matters, on delegation from the Full Bench Justice Chin has determined to provide the applicant with a further and final opportunity to respond to the motion to dismiss the proceedings.

Accordingly, his Honour makes the following additional orders in chambers:

ORDERS:

1. By 4.00pm on 18 August 2025 the Applicant is to file and serve any evidence and written submissions on which she intends to rely in response to the motion filed and served by the respondent on 29 July 2025, and in response to the respondent's written submissions filed and served on 7 August 2025.

2. The written submissions and evidence referred to in Order 1 must be filed in accordance with the requirements for filing documents set out in Practice Note 32.

3. The written submissions referred to in Order 1 must contain a statement as to whether the Applicant consents to the respondent's motion (referred to in Order 1) being determined by the Full Bench on the papers and to the vacation of the hearing listed on 28 August 2025.

4. Any further informal email correspondence sent to the Registry by or on behalf of the Applicant will not be received by the Registry as being in satisfaction of any of the requirements in Orders 1 to 3."

1. On 12 August 2025, Mr Thakur wrote to the Registry advising he was no longer acting for the appellant and requesting clarification as to the process for formalising his withdrawal.
2. On 13 August 2025, the Registry wrote to the appellant at the email address provided by Mr Thakur, informing her of the orders made on 28 July 2025 and 11 August 2025; and advising that if she requires legal assistance, she should contact the relevant union or alternatively, another organisation which may be able to provide her with legal advice or assistance identified in a list of such organisations that was provided to her with the email.
3. On 14 August 2025, following advice from the Registry, Mr Thakur filed a notice of ceasing to act in the proceedings.
4. On 17 August 2025, the appellant sent an email to the Registry which, in terms of content and style, is similar to the correspondence previously sent by Mr Thakur. The appellant attached to this email a copy of the motion as filed on 29 July 2025. The appellant again raised concerns about the validity of the motion based on service of an unsealed document (whilst acknowledging that a sealed copy was served on 1 August 2025), the basis for the Commission's orders made on 11 August 2025, and the lack of any "substantive response" to the previous correspondence sent by Mr Thakur in which, among other matters, the appellant insisted on the progress of the appeal being conditional on the conduct or completion of the investigation into Taylor J and Commissioner McDonald. The appellant also asserted that order 2 made by Chin J on 11 August 2025 could be disregarded ("[b]ased on the issues outlined above, the applicability of filing pursuant to Practice Note 32 does not appear to be relevant in this case"). She also attached a document from a medical practitioner which recommended that she continue "her court proceedings on paper only" noting that "[f]ace-to-face interviews significantly exacerbate her mental health".
5. In this email, the appellant also requested that Chin J recuse himself from the matter by reason of apprehended bias. The grounds on which this request was made were not identified or explained. The request was made simply "in light of [the] concerns" that the appellant had expressed about the procedure adopted during the course of the appeal proceedings, including the Commission's refusal to respond substantively to each of her prior email communications which we have outlined above, and a reference to unspecified "discrepancies in the statements made by His Honour [Chin J]".
6. On 19 August 2025, the Acting Senior Deputy Industrial Registrar emailed the appellant in the following terms:

"Dear Ms Kumari,

On 18 July 2025 the Registry informed your former representative, Mr Thakur, that the Commission will not be corresponding about issues concerning these proceedings with the parties by informal email correspondence, and that the appropriate time for any concerns or applications to be ventilated by the parties is when the matter is listed for directions before the Commission. In further correspondence with your former representative on 11 August 2025 Justice Chin reiterated that the Commission will not engage with or have regard to informal email communications between the parties and the Registry raising substantive issues relating to these proceedings and that any such issues are to be ventilated in open proceedings before the Commission or otherwise in accordance with its directions.

In addition, on 13 August 2025 the Registry informed you of the orders made by Justice Chin on 11 August 2025, including the order that "[a]ny further informal email correspondence sent to the Registry by or on behalf of the Applicant will not be received by the Registry as being in satisfaction of any of the requirements in Orders 1 to 3". Those orders provided you with a further opportunity to file and serve any evidence and written submissions on which you intend to rely in response to the motion filed and served by the respondent on 29 July 2025 (a copy of which you attached to your email of 17 August 2025 together with the supporting affidavit), and a further opportunity to state whether you consent to the respondent's motion being determined by the Full Bench on the papers and to the vacation of the hearing listed on 28 August 2025.

Since you have not indicated your consent to the respondent's motion being determined by the Full Bench on the papers and to the vacation of the hearing listed on 28 August 2025 in accordance with Justice Chin's orders made on 11 August 2025, his Honour has confirmed that the hearing of the respondent's motion will proceed before the Full Bench as listed on 28 August 2025. As with all of the listings of this matter before the Commission, you have an opportunity to attend the Commission or arrange for a representative to attend on your behalf. Your proceedings may be dismissed if there is no attendance by you or on your behalf at the hearing.

If you have any application to make in these proceedings you will need to do so by utilising the Commission's proper processes and forms, including by filing a notice of motion supported by affidavit evidence."

1. On the morning of the hearing of the motion on 28 August 2025, at 1:59 am, Ms Kumari sent a further email to the Registry which, again, was of a piece with Mr Thakur's previous correspondence. Among other matters, in this email the appellant reiterated the concerns raised in her previous correspondence (which includes her stance on the conduct or completion of the investigation into Taylor J and Commissioner McDonald) and insisted they "must be resolved before any hearing can properly proceed". She asserted that she was unable to attend any "face-to-face" hearing "including AVL", and disputed the need for her to make any recusal application by way of a motion supported by affidavit evidence. In this email the appellant continued to press for the recusal of Chin J and claimed that she has "provided evidence giving rise to a reasonable apprehension of bias". The appellant did not identify or explain the nature of any such evidence.
2. The motion was heard before the Full Bench on 28 August 2025. There was no appearance for the appellant. The Full Bench reserved its decision on that date, and the parties were notified on 2 September 2025 that the decision of the Full Bench would be delivered at 2.00pm the following day. We note that prior to the delivery of the decision of the Full Bench, the appellant sent another email to the Registry on 3 September 2025 reiterating her previous objections, including concerns about procedural fairness, and her request for Chin J to recuse himself from the appeal. The appellant also objected to the delivery of this decision while the recusal request remains unresolved, arguing that to otherwise proceed would deny her natural justice and the decision would be legally invalid.

1. During the course of the appeal proceedings, it is relevant to note that on 8 August 2025, the appellant lodged an unfair dismissal application in this Commission following the termination of her employment on 18 July 2025.
2. The unfair dismissal matter was listed for conciliation before Commissioner McDonald on 20 August 2025. The appellant failed to appear at the conciliation. The Commission considered and dismissed further applications by the appellant seeking the recusal of Commissioner McDonald and for the conciliation to be conducted "on the papers". In Kumari v Industrial Relations Secretary on behalf of NSW Treasury [2025] NSWIRComm 1068 at [15], Commissioner McDonald held that conciliation is a dynamic process requiring participation and that the appellant's medical condition did not exempt her from attending, either personally or via a representative. Commissioner McDonald set the matter down for conciliation on 27 August 2025 and made an order that "[t]he 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 proceeding pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (CP Act) and UCPR r 12.7, for want of due dispatch [sic]."
3. The unfair dismissal matter was listed for conciliation on 27 August 2025. The appellant failed to appear. On the morning of the conciliation, the Commission received an email from the appellant re-agitating previously determined applications without providing any new material or changed circumstances. The Commissioner found that the appellant had not constructively engaged with the process or made arrangements to participate in the conciliation, and that her insistence on having the matter determined "on the papers" was incompatible with the statutory requirement under s 86 of the IR Act for the Commission to first endeavour to settle the claim by conciliation. In light of the appellant's non-compliance with her order of 20 August 2025, and failure to prosecute the matter with due despatch, the proceedings were dismissed pursuant to s 61(3)(a) of the CP Act and r 12.7 of the UCPR: Kumari v Industrial Relations Secretary on behalf of NSW Treasury (No 2) [2025] NSWIRComm 1072.

1. Part 13 of the UCPR applies to all civil proceedings in this Commission: r 1.5(1) and Sch 1. The motion relies upon r 13.6(2) of the UCPR, which is in the following terms:

13.6 Non-appearance by plaintiff

(1) If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2) If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3) This rule does not restrict any other power of the court to dismiss proceedings.

1. The power to dismiss proceedings pursuant to r 13.6(2) is discretionary.
2. The Commission is empowered to determine its own procedure and may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument: IR Act, s 162(1) and (2). The Commission is also not bound to act in a formal manner, may inform itself on any matter in any way that it considers to be just, and is required "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form": IR Act, s 163(1)(a)-(c).
3. Notwithstanding the broad powers of the Commission with respect to its procedures, the Commission's discretion to dismiss the proceedings under r 13.6(2) - like the power to dismiss proceedings for want of despatch under r 12.7 of the UCPR or for failure to comply with a direction under s 61(3)(a) of the CP Act[1] − is to be exercised with mandatory regard to the overriding purpose "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and the objectives of case management set out in ss 56 and 57 of the CP Act: see Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38]- [41].
4. We are thus mindful of the need to act in accordance with the dictates of justice, including the matters stipulated in s 58(2) of the CP Act such as: the degree to which the respective parties have fulfilled their duties under s 56(3) of the CP Act; the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

1. We are satisfied that the motion is properly before the Full Bench. The motion was filed and served in accordance with the directions made by Chin J on 29 July 2025. The motion and supporting affidavit were served on the appellant on 29 July 2025, albeit without the sealed coversheet from the NSW Online Registry. The unchallenged evidence in Mr Poberezny-Lynch's affidavit affirmed on 5 August 2025 (although dated 7 August 2025) is that the motion was filed using the Commission's Online Registry at about 2.15pm on 29 July 2025; and that it was emailed to the appellant's representative at that time, Mr Thakur, at about 3.00pm on the same day. We further observe that the motion was attached to the email sent by the appellant on 17 August 2025, which is referred to at [42].
2. We are also satisfied that the discretion to dismiss the proceedings is enlivened under r 13.6(2). The appellant had due notice of the first directions hearing on 7 July 2025. The appellant was clearly aware of the listing, with Mr Thakur having referred to it in his email referred to at [24].
3. There was no attendance by or on behalf of the appellant at the first directions hearing on 7 July 2025; at which time Chin J adjourned the directions hearing to another date, namely, 28 July 2025.
4. Although no formal direction was made for the service of a notice to the appellant advising that the proceedings may be dismissed if there is no appearance at the adjourned hearing, we consider that such a direction is not mandated by sub-rule (1) (the Court "may" so direct): Cf. Elphick v Elphick [2016] NSWSC 1674 at [9]- [10] (in which the relevant notice was given by the Court after the making of an order for the matter be re-listed for referral to a Duty Judge). The requisite notice was served on the appellant by way of the email from the Associate to Chin J on 7 July 2015 referred to at [29].
5. The power to dismiss the appeal pursuant to r 13.6(2) is engaged where the appellant has been given the notice in accordance with sub-rule (1), namely, a notice that: (i) is given to the appellant not less than 5 days before the date of the adjourned hearing, and (ii) advises the appellant that the proceedings may be dismissed if there is no attendance by or on behalf of the appellant at the adjourned hearing. Both of those requirements were fulfilled by the Associate's email on 7 July 2025.
6. In the result, there was no attendance by or on behalf of the appellant at the adjourned directions hearing on 28 July 2025.

1. We are mindful of the consequences for the appellant in dismissing this appeal. We are conscious that there is the potential for the appellant to lose any opportunity to successfully challenge the Commissioner's decision.
2. However, given the manner in which the appellant has conducted the appeal so far, we consider the potential for any injustice to be suffered by her as a consequence of a dismissal of the appeal to be low and in any event outweighed by other considerations. This is because the appellant's conduct in these proceedings amply demonstrates an intransigent unwillingness to properly or genuinely prosecute the appeal in accordance with the Commission's procedures and directions, or indeed in any sensible, orderly or procedurally fair (to both parties) manner. Given this approach, it is difficult to envisage any real prospect of the appellant successfully prosecuting her appeal to finality.
3. The appellant is required to participate in the practice and procedure of the Commission consistent with her obligations under s 56(3) of the CP Act_._ This obligation does not diminish to the extent that she has recently become self-represented.[2] The following eight aspects of the appellant's conduct and claim leave us with little confidence in her approach to seeking relief in this appeal.
4. First, from the outset the appellant's refusal to participate in the first directions hearing on 7 July 2025 (whether in person or otherwise), or indeed to proceed any further in the proceedings, was based on a misconception that she was entitled to the "relief" of subjecting Taylor J and Commissioner McDonald to a conduct "investigation" as a precondition to the Full Bench proceeding with or determining the appeal. She demanded that this "relief" be granted prior to or at least concurrently with any procedural or substantive hearing of the appeal; and purported to impose an onus on the Commission to explain "the legal basis or justification" for not acceding to this demand. The appellant has maintained this position consistently throughout the proceedings: see at [26], [30], [32], [33], [37], [42] and [45]. There is plainly no prospect of the appeal advancing on this basis.
5. Secondly, the material filed by the appellant fails to identify any arguable basis for the relief that she seeks against Taylor J and Commissioner McDonald as a precondition to the further progress or determination of the appeal. In addition, the relief sought against Taylor J is plainly misconceived because, as we have earlier observed, his Honour was not the relevant decision maker for the purposes of the appeal. This aspect of the appeal is likely to be vexatious for the purposes of s 162(2)(h) of the IR Act in that the application is "so obviously untenable or manifestly groundless as to be utterly hopeless".[3] The appellant's stance on this aspect of the appeal, which we have identified in the preceding paragraph, makes any further progress in the appeal proceedings clearly untenable.
6. Thirdly, the appellant insisted from the outset that the appeal be determined "on the papers" which included her affidavit for which the requisite leave remains to be determined. This is consistent with the appellant's general approach of refusing to comply with the Commission's practice and procedure and, instead proceeding according to a misconceived sense of entitlement to dictate the procedure to be adopted by the Commission.
7. Fourthly, the failure of the appellant and her representative to appear at any of the hearings (even via an agent), the assertion of spurious grounds for not doing so, and the absence of any request to appear by AVL at any stage demonstrates the appellant has no intention of participating in the Commission's procedures.
8. Fifthly, the appellant's refusal to comply with the directions made by Chin J on 28 July and 11 August 2025 demonstrates the lack of intention to genuinely engage with the Commission's practice and procedure. This is exemplified in the appellant's email on 17 August 2025 in which she arrogated to herself the freedom to simply ignore a direction to comply with the Commission's Practice Note 32 in the manner described at [42].
9. Sixthly, the appellant's lack of intention to genuinely participate in the Commission's procedures is also demonstrated by her conduct in continuing to respond to the motion by informal emails to the Registry despite:

(a) repeated statements from the Commission that it will not engage with or have regard to informal email communications between the parties and the Registry raising substantive issues relating to these proceedings as referred to at [31], [38] and [44]; and

(b) order 4 made by Chin J on 11 August 2025 that "[a]ny further informal email correspondence sent to the Registry by or on behalf of the Applicant will not be received by the Registry as being in satisfaction of any of the requirements" in the orders which provided her with a further reasonable opportunity to respond to the motion in accordance with the Commission's procedures.

1. Seventhly, the appellant's lack of intention to genuinely participate in the Commission's procedures is further demonstrated by her persistence in requesting the recusal of Chin J without any adequate explanation of the grounds for such an request and in defiance of the Acting Senior Deputy Industrial Registrar's 19 August 2025 stipulation that any application should be made in the usual manner by filing a notice of motion supported by affidavit evidence.
2. Eighthly, the appellant's conduct in these proceedings is consistent with her conduct in the related unfair dismissal proceedings: Kumari v Industrial Relations Secretary on behalf of NSW Treasury (No 2) [2025] NSWIRComm 1072.
3. The appellant has unreasonably refused to take up the ample opportunities that have been made available to her to prosecute the appeal. Her refusal to attend (either in person or by her representative, and either in person or by AVL) the adjourned directions hearing on 28 July 2025 was part of a pattern of refusal to participate in the processes of the Commission, contrary to her obligations under s 56(3) of the CP Act. Her insistence on making the progress of the appeal conditional on the granting of relief that is obviously untenable is fundamentally inconsistent with the speedy determination of the real issues between the parties. We have no confidence that, if the matter is not dismissed, the appellant would take a different approach in progressing the appeal.
4. Accordingly, we are satisfied that it is in the interests of justice to dismiss the appeal.

1. Notwithstanding the absence of any proper application before us, it is appropriate for us to refer briefly to the appellant's request that Chin J recuse himself from the matter on the basis of apprehended bias.
2. No attempt has been made to identify what it is said might lead Chin J to decide the motion (or the appeal) other than on its legal and factual merits; or to articulate any logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]. As we have noted at [43], the request was made simply "in light of [the] concerns" that the appellant had expressed about the procedure adopted during the course of the appeal proceedings, including the Commission's refusal to respond substantively to each of her prior email communications which we have outlined above, and a reference to unspecified "discrepancies in the statements made by His Honour".
3. To the extent that the appellant relies on the refusal of Chin J to engage with and accede to the demands made in her and her former representative's informal correspondence, we note that "the test for apprehended bias is ... not an individual litigant's expectations or predictions as to the outcome of a case", and "[t]he mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party": Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [11].
4. Accordingly, based on the substance of the appellant's request, had the appellant complied with the Commission's practice and made her request in the proper form by filing a motion with supporting evidence of the matters she has raised in her correspondence, we would not have granted the application in any event.

1. We have decided to address the issue raised in the correspondence of the appellant to the Registry relating to the proper name of the respondent in these proceedings. The appellant commenced these proceedings against "the State of New South Wales, NSW Treasury". In the Commissioner's decision, the issue of the proper name of the respondent was addressed as follows (at [25]):

"While it is customary and appropriate for the Industrial Relations Secretary to be named as the employer against whom relief is sought by a public service employee for victimisation, in the present matter that has not been done and no application to formally amend the name of the Respondent has been made. I do not consider that that causes any difficulty in this particular case as I consider, the "State of New South Wales, NSW Treasury" and "Industrial Relations Secretary on behalf of the NSW Treasury" to be synonymous in this instance, given ss 20 and 50 of the GSE Act."

1. In this matter, the respondent has not sought to amend its name in the proceeding and has relied upon the Commissioner's analysis above. Whilst we concur with the reasoning of Commissioner McDonald that the issue is of no substantive consequence, we have decided that the appropriate course is to make an order amending the name of the respondent to "the Industrial Relations Secretary on behalf of the NSW Treasury". This is consistent with s 50 of the Government Sector Employment Act 2013 (NSW) and the naming conventions adopted by the Commission in such proceedings.

(1) The name of the respondent in these proceedings is amended to read the "Industrial Relations Secretary on behalf of the NSW Treasury".

(2) Proceedings dismissed pursuant to UCPR r 13.6(2).

[1] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [102]- [103]; Rahman v Bimson [2010] NSWSC 338 at [24]; Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; (2006) NSWLR 473 at [108], [110]; Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 at [12]; Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079 at [67]- [74]; and Kabir and Department of Family and Community Services (2016) 257 IR 124; [2016] NSWIRComm 1009 at [13].

[2] Proietti v Proietti [2022] NSWCA 234 at [80], citing Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [71]. See also Kabir v Department of Family & Community Services (2016) 257 IR 124; [2016] NSWIRComm 1009 at [15]; Ward v Secretary, Department of Education [2022] NSWIRComm 1086 at [20]; Tan v City of Parramatta Council [2025] NSWIRComm 1022 at [16].

[3] Attorney-General (NSW) v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481 at 491 referred to in Ters v Health Secretary in respect of the South Western Sydney Local Health District (No 2) [2023] NSWIRComm 1023 at [23].