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

1. Later, I had the following exchange with the parties' representatives:

COMMISSIONER: So Mr Poberezny will reply in detail to your letter of 3 March.

THAKUR: Yes.

COMMISSIONER: And I will bring you back here on a date that I can find, although my next couple of weeks are rather busy, but I think that once you receive Mr Poberezny's letter, that may put some of the concerns that you've raised in these proceedings to bed and we'll see though where things are at after you've received that letter.

THAKUR: Commissioner, 3 March and 8 March.

COMMISSIONER: Sorry?

THAKUR: The 3rd of March and 8th of March.

COMMISSIONER: And 8 March? So there's two letters, is there? All right. So Mr Poberezny, do you have the 8 March letter as well?

...

POBEREZNY: Yes.

COMMISSIONER: All right. So Mr Poberezny will respond to those matters that you've raised by correspondence and then I think we'll take it from there.

POBEREZNY: Yes.

THAKUR: Sure.

1. The matter is listed for further conciliation on 4 April 2025 at 10am by AVL

2. I direct the applicant to file a notice of appearance nominating an appropriate address for service by 21 March 2025.

1. I did not specifically direct the respondent to reply to Mr Thakur's letters of 3 and 8 March 2025, because Mr Poberezny had indicated to me that he would sent a reply to Mr Thakur, and in those circumstances, I did not consider it necessary to make a direction. Further, I considered that the provision of a reply was merely something that could aid the parties to reach a settlement of the matter.
2. On 3 April 2025, the applicant filed a notice of motion seeking:

"An order, including a direction that the respondent comply in full with the Commission's direction dated 20 March 2025, including but not limited to a comprehensive and substantive response to the applicant's correspondence, dated 3 March and 8 March 2025.

1. An affidavit affirmed by the applicant on 3 April 2025 in Delhi was filed with the notice of motion. The affidavit was not in the proper form as it did not include the required statement regarding the use of artificial intelligence. More problematically, the affidavit contains virtually no evidence of facts, but rather two statements of opinion. First, that a reply to the applicant's solicitor's emails dated 3 and 8 March 2025 which was dated 27 March 2025, did not address the issues raised in the applicant's emails, and second, that the respondent's failure to comply with the direction, so called, of 20 March 2025, had materially disadvantaged the applicant in preparing for the conciliation listed for 4 April 2025. The affidavit did not explain how the applicant had been disadvantaged.
2. No documents were annexed to the affidavit, however, the notice of motion attached a copy of the respondent's solicitor's letter dated 27 March 2025 to Mr Thakur, which constituted a reply to Mr Thakur's emails to the respondent dated 3 and 8 March 2025.
3. The motion was returned at the same time that the matter was listed for further conciliation on 4 April 2025. On that day, I explained to Mr Thakur that I had not made a direction that the respondent reply to the applicant's correspondence dated 3 and 8 March 2025, but rather I suggested it would be useful as it could have the ability to resolve some of the applicant's concerns, and the respondent agreed to provide a response. The applicant's solicitor submitted to me on 4 April, and repeated again this morning, that the response was unsatisfactory.
4. The further conciliation on 4 April was unsuccessful in large part because it remained unclear exactly what the applicant claims and what relief she seeks. In those circumstances, the respondent's solicitor foreshadowed making a formal request for further and better particulars and if the applicant's solicitors do not provide adequate further or better particulars, then the respondent may file a notice of motion either seeking summary dismissal, or that the Commission strike out part or all of the application. In those circumstances, I made the following directions:

1. I direct the respondent to make any request of the applicant for further and better particulars of the applicant's claim by no later than 4 April 2025;

2. I direct the applicant to reply to any request by the respondent for further and better particulars of the applicant's claim by 11 April 2025;

3. Stand the applicant's notice of motion over to 15 April 2025, and;

4. I stand the matter over for directions on 15 April 2025 at 10am.

1. I have this morning confirmed with the applicant's solicitor that the notice of motion is pressed, despite my again pointing out that I did not give a direction to the respondent as claimed by the applicant. For that reason alone, I would not grant the relief sought in the motion.
2. I allowed the applicant to put submissions to me as to why I should make any order requiring the respondent to provide to the applicant more than it had already done by way of its letter of 27 March 2025. The applicant's solicitor was unable to point to any right that the applicant may have by virtue of statute or otherwise to further information, and it appears to me from what I have read and heard that the information that is sought is more in the nature of relief to the substantive claim that the applicant is making. It may also be more appropriately obtained, potentially, by way of the issue of a summons to produce.
3. As I had suggested, but not directed, the respondent duly provided a response to the applicant's solicitor dealing with matters that had been raised in the emails of 3 and 8 March 2025. The gravamen of the applicant's ongoing complaint seems to be that she disagrees with the content of the respondent's solicitor's response dated 27 March 2025.
4. In the premises, I dismiss the applicant's notice of motion.