LB v Secretary, NSW Department of Education

Legislation Cited: Civil Procedure Act 2005 (NSW), s 3(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.13, 7.14,13.4,14.28, 36.16

Cases Cited: [LB] v Secretary, Department of Education [2025] NSWIRComm 1017
[LB] v Secretary, Department of Education (No 2) [2025] NSWIRComm 11
Collier v Hicks (1831) 109 ER 1290
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
Hubbard Association of Scientologists International v Anderson [1972] VR 340
MB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744
MB v Secretary, NSW Department of Education [2025] NSWSC 743
McGrath v Dobie (1890) 16 VLR 646
Mihaka v Police [1981] 1 NZLR 54
O'Toole v Scott [1965] AC 939
Re G J Mannix Ltd [1984] 1 NZLR 309
Sinanovic v Bone [2025] NSWSC 144
Stokes v McCourt [2014] NSWSC 63
Teese v State Bank of New South Wales [2002] NSWCA 219

Category: Principal judgment

Parties: LB (Plaintiff)
Secretary, Department of Education (Defendant)

Representation: Counsel:
A Britt (Defendant)
Solicitors:
Sparke Helmore Lawyers (Defendant)

File Number(s): 2025/00174938

Publication restriction: Yes – Pseudonym Order

EX TEMPORE Judgment (REVISED)

INTRODUCTION AND FACTUAL MATTERS

1. Before me is an application by PS for leave to appear on behalf of his wife, LB, in proceedings that she has brought against the New South Wales Department of Education. PS is not a legal practitioner.

2. LB was formerly employed as a teacher by the Department. The dispute between LB and the Department arose on 19 December 2024, when LB was provided with a letter from the Department which essentially declared her teaching position to be vacant. It is alleged that there was an incident in a classroom on 18 December 2024 during which LB was assaulted by an aggressive male student.

3. On 28 February 2025, LB filed in the Industrial Relations Commission of New South Wales an unfair dismissal application and an application seeking an order, amongst other things, preventing the Department from dismissing her (First Interlocutory Application).

4. On 17 April 2025, Commissioner O’Sullivan of the Commission dismissed the First Interlocutory Application, finding that the balance of convenience favoured the Department.

5. On 1 May 2025, LB filed an application for leave to appeal the decision of Commissioner O’Sullivan.

6. On 2 May 2025, the Department wrote to LB informing her that her employment would end on 8 May 2025.

7. On 5 May 2025, LB filed a notice of motion making a further interlocutory application seeking orders to stay the dismissal of the First Interlocutory Application and restraining the Department from taking any further steps towards the dismissal of LB (Second Interlocutory Application).

8. On 6 May 2025, the Second Interlocutory Application was heard urgently and dismissed by President Taylor of the Commission. President Taylor permitted PS to appear on behalf of LB at that hearing. In reaching that decision, President Taylor stated that “the prospects of success of the appeal are not strong”.

9. On 7 May 2025, LB commenced these proceedings by filing the summons which seeks relief in the form of certiorari, prohibition, declaration, an order for reinstatement and interlocutory injunctive relief against the Department. The relief focused on the letter dated 19 December 2024 from the Department to LB.

10. The summons was filed in court pursuant to leave granted to LB by Slattery J sitting as the Duty Judge. In doing so, Slattery J also made an order and notation in the following terms:

GRANTS leave to [PS] to appear as the next friend on behalf of the proposed plaintiff [LB] to make the present application today but FURTHER NOTES the leave granted today does not extend indefinitely in these proceedings without further application by [PS] as to why he, rather than [LB] should propound the application.

11. On 8 May 2025, the proceedings came before Slattery J again, at which time they were adjourned to 2pm on 9 May 2025. PS appeared as the next friend of LB at that hearing.

12. On 9 May 2025, Slattery J heard and dismissed LB’s application for interlocutory relief and ordered PS to pay the costs of the Department: M**B v Secretary, NSW Department of Education [2025] NSWSC 743. PS appeared as next friend for LB at that hearing pursuant to leave granted by Slattery J.

13. On 15 May 2025, the proceedings came before Hammerschlag CJ in Eq, at which time no further orders were made.

14. On 22 May 2025, the proceedings came before Hammerschlag CJ in Eq, at which time LB filed a notice of motion seeking a review of the decision by Slattery J and that it be set aside pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that there was fresh evidence.

15. On 6 June 2025, Slattery J heard and dismissed LB’s application to restrain the continuation of proceedings in the Commission and ordered that PS pay the Department’s costs: M**B v Secretary, NSW Department of Education (No 2) [2025] NSWSC 744. PS appeared as the next friend of LB at that hearing pursuant to leave granted by Slattery J.

16. On 13 June 2025, the proceedings came before Williams J in relation to PS’s application for leave to be appointed as next friend to LB due to her alleged medical condition. Her Honour refused that application and, in doing so, informed PS that if LB was suffering a psychiatric injury which rendered her unable to represent herself, there was an appropriate procedure for the appointment of a tutor to LB.

17. On 3 July 2025, the Department filed a notice of motion seeking the summary dismissal of the proceedings pursuant to r 13.4 of the UCPR or, alternatively, that they be struck out pursuant to r 14.28 of the UCPR, together with the consequential costs orders. That application is yet to be heard.

18. PS has now made an oral application for leave to appear for LB and relies on three affidavits affirmed by him on 12 May 2025, 16 July 2025 and 4 August 2025, respectively.

LEGAL PRINCIPLES

19. The ability for one person to represent another in proceedings before this court is governed by r 7.1 of the UCPR, which relevantly provides:

7.1 By whom proceedings may be commenced and carried on (cf SCR Part 4, rules 4 and 4A, Part 66, rule 1; Act No 9 1973, section 43; Act No 11 1970, section 11)

(1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.

(1A) Despite subrule (1), but subject to subrule (5), the court may order that proceedings commenced by a natural person acting on behalf of another person pursuant to a power of attorney be carried on, on behalf of that other person, by a solicitor.

…

(6) A solicitor who is a person’s solicitor on the record must hold an unrestricted practising certificate.

20. It is common ground that the general rule against a party having a lay representative may yield in the appropriate case and that a non-lawyer may make an application for leave to represent another person in court proceedings.

21. Exceptional circumstances must be shown, supported by evidence, for a grant of leave to a person not being a legal practitioner to appear on behalf of a litigant and the considerations advanced will be relevant to the question of whether leave should be granted: Teese v State Bank of New South Wales [2002] NSWCA 219, Ipp AJA (with whom Giles JA agreed) at [12]; see also Hodgson JA (dissenting in the decision but in general agreement on this point, albeit in terms of the need for “appropriate evidence showing appropriate grounds”) at [19].

22. That position reflects this court’s inherent power to regulate its own proceedings, including the power to allow a person who is not otherwise entitled to conduct a case on behalf of another where it is in the interests of the administration of justice to do so: Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230, Stein JA (with whom Mason P and Sheller JA agreed) at [31], [33], [37]–[39] citing Hubbard Association of Scientologists International v Anderson [1972] VR 340, Smith Little and Gowens JJ at 343; McGrath v Dobie (1890) 16 VLR 646; and O*’*Toole v Scott [1965] AC 939, Reid LJ at 952.

23. It also reflects ancient common law as stated in decisions such as Collier v Hicks (1831) 109 ER 1290, Tenterden CJ at 1292:

Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the Court as settled by the discretion of the justices.

24. Crucially, in Teese, Ipp AJA (with whom Giles JA agreed) considered the general rule that, where a litigant is not self-represented, they ought to be represented by a solicitor or barrister who is duly admitted. His Honour, at [5]–[15], set out his consideration of the “very strong policy reasons that underlie” this rule and the exceptional circumstances which must be sufficiently demonstrated to displace it:

[5] The general rule in regard to the representation of parties involved in litigation that obtains in this country is that, where a litigant is not self-represented, he or she should be represented by a solicitor or barrister who is duly admitted, who holds a practising certificate or its equivalent, and is a member of the relevant professional body such as the Law Society or the Bar Association. There are very strong policy reasons that underlie this practice.

[6] An admitted solicitor or barrister who appears on behalf of a litigant is an officer of the Court and as such is subject to the discipline of the Court. If such a person holds a practising certificate and is a member of the Law Society or the Bar Association, he or she is subject to the requirements as to professional conduct imposed by statute and the disciplinary regimes of those professional bodies. The power that the Court is then able to exercise over such a person, directly and indirectly, is a foundation of the proper functioning of the administration of justice. If a person who is not subject to these disciplinary constraints is allowed to represent a litigant, this important procedural safeguard will be lost.

…

[8] In this State the requirement of a practising certificate has been regarded as of fundamental importance by the legislature and the Court. This Court would not allow a person, in the course of his or her practice as a barrister, to represent a party knowing that he or she did not hold a practising certificate.

…

[10] There is another important policy reason underlying the rule that, ordinarily, only a person, admitted as a barrister or solicitor and a member of the relevant professional institution, holding the relevant practising certificate, should be allowed to represent a party in legal proceedings. That is the need for such a person to be objective and to be removed from the emotions that generally arise in the heat of litigation. Practising barristers are trained to deal with and to control these emotions. Restraint of this kind is applied by barristers in the daily course of their professional lives. This quality of objectivity in the practice of the law is an essential part of the proper representation of clients by lawyers in the courts. Mr White does not fall into the category of persons who by training and experience have that quality.

[11] The present case is an appeal of some complexity. If some person is to represent Ms Teese in these particular proceedings, that person needs to be experienced and knowledgeable in the law and in the practice thereof. Again, Mr White does not fall into the category of such persons.

[12] Of course, in exceptional circumstances the Court will allow a person who is not an admitted solicitor or barrister, who is not a member of the relevant professional body, and who does not hold a relevant practising certificate, to represent a litigant. But good grounds must be shown to the Court before leave will be granted to such a person to represent a party.

[13] I asked Mr White why it was that leave should be granted to him to represent Ms Teese and why it was that Ms Teese had not retained a qualified and admitted lawyer to represent her. The only reason that he advanced was that Ms Teese had had some unhappy experiences with lawyers, had an aversion to lawyers, and did not wish to utilise the services of one.

[14] I do not regard that as a satisfactory explanation. There are thousands of admitted solicitors in this State and between 1500 and 2000 barristers who are members of the New South Wales Bar. It is not an appropriate answer, in my view, to say that there is no lawyer in this State who would be suitable and appropriate to represent Ms Teese.

[15] The usual ground for granting leave to a person, not properly qualified, to represent a litigant is impecuniosity, that is, where the litigant, for financial reasons, cannot afford to pay a properly qualified lawyer. No ground on this basis was advanced and no evidence to this effect exists. In these circumstances, it seems to me, Ms Teese wishes to retain Mr White merely to indulge her prejudice against lawyers generally.

25. Clearly, as explained by Ipp AJA, the conduct of proceedings by a solicitor or barrister who is duly admitted and is an officer of the court offers several important safeguards in the administration of justice. Namely, the fact that such practitioners are subject to stringent ethical obligations and duties to the court, as well as the various conduct requirements and disciplinary rules of their respective professional bodies. It follows that such persons fall under the control of the court and are required to advocate for their client subject to their paramount duty to the court and the administration of justice. It is expected therefore, that practitioners will conduct themselves diligently and objectively, ensuring that submissions are supported by evidence and that matters are not put before the court unless there is a proper basis for doing so.

26. The New Zealand Court of Appeal expressed similar sentiments in Re G J Mannix Ltd [1984] 1 NZLR 309, stressing the ever-increasing complexity of litigation, as well as the importance of responsibility in advocacy and of advocates being subject to the rules of their profession and relevant disciplinary codes (Cooke J at 311). In remarks that may be apposite to PS’s conduct of the application before me, Cooke J responded to the suggestion that the general rule achieves no purpose other than to protect the monopoly of lawyers by quoting Hardie Boys J in Mihaka v Police [1981] 1 NZLR 54, at 58, in the following terms:

The denial of recognition to other than suitably qualified persons should not be regarded as protection of any privilege or monopoly. It surely gives effect to the fact that an unqualified and inexperienced person may do more harm than good to the person he assists: if only because of his ignorance of the law which may support that person’s cause. In this age of complexity in the law and specialisation in its practice, this reason is perhaps more cogent than it has ever been.

27. That an application such as the present may be made has been judicially described in this court as an “elementary matter”: Sinanovic v Bone [2025] NSWSC 144, Faulkner J at [29].

28. For such an application to succeed, the need for “exceptional or special” circumstances to be demonstrated is equally beyond doubt. The court will only grant leave for an unqualified person to represent another if such exceptional or special circumstances have been demonstrated by evidence: Teese, Ipp AJA (with whom Giles JA agreed) at [12], Hodgson JA (dissenting) at [19]–[21]; Damjanovic, Stein JA (with whom Mason P and Sheller JA agreed) at [78].

29. In Damjanovic, Stein JA (with whom Mason P and Sheller JA agreed) identified a number of themes and principles from the authorities as being relevant to discretion to grant or refuse leave for an unqualified person to appear on behalf of an unrepresented litigant. Those themes and principles relevantly included:

30. the complexity of the case;

31. genuine difficulties of the unrepresented party including any obvious disability or language difficulty;

32. the unavailability of disciplinary measures and the lack of any duty to the court owed by lay advocates, as addressed above;

33. protection of the client and the opponent, including the risk posed the client by the unqualified, unaccredited and uninsured lay advocate; and

34. the interests of justice, including the public interest in the effective, efficient and expeditious disposal of litigation in the courts.

35. Stein JA also pertinently observed that higher courts in particular should be very wary in granting leave in this context: Damjanovic, at [82].

36. It has been submitted that LB is under some legal incapacity such that she in incapable of prosecuting these proceedings and/or managing her own affairs. I will return to this below.

37. Special provision is made in the UCPR for the representation of a person who is under a legal incapacity, which includes a person incapable of managing their own affairs. In this regard, r 7.14 of the UCPR relevantly provides:

7.14 Proceedings to be commenced or carried on by tutor (cf SCR Part 63, rules 2 and 3(2); DCR Part 45, rules 2 and 3; LCR Part 34, rules 3 and 4)

(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.

33. It is clear that a person under legal incapacity may not commence or carry on proceedings except by their tutor and, unless the court orders otherwise, that tutor may not commence or carry on proceedings except by way of a solicitor.

34. A “person under legal incapacity” has been relevantly defined by the s 3(1) of the Civil Procedure Act 2005 (NSW) (CPA) as follows:

person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes -

(a) a child under the age of 18 years, and

(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and

(c) a person under guardianship within the meaning of the Guardianship Act 1987, and

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and

(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.

35. For the purposes of the UCPR, a “person under legal incapacity” is further defined to expressly include a person who is incapable of managing his or her affairs: r 7.13 of the UCPR.

36. An important consequence of having a tutor appointed to represent a person under a legal incapacity is that the tutor is to be regarded as a party to the proceedings for the purpose of making costs orders such that the tutor may be liable for the costs of the proceedings just like any other party. The potential liability of a tutor in this respect “ensures that the costs implications of litigation may inform the decision to commence and carry on the proceedings and each forensic decision made in that process”: Stokes v McCourt (Costs) [2014] NSWSC 63, McDougall J at [7]; Sinanovic, Faulkner J at [10]–[11].

SUBMISSIONS

37. In support of his application for leave, in substance PS submitted that:

38. The medical evidence in respect of LB demonstrated that she could not appear for herself.

39. PS was previously granted leave to appear for LB before the Commission and in this court before Slattery J and Hammerschlag CJ in Eq.

40. The Department did not oppose the grant of leave for PS to appear until it changed its stance on 6 June 2025. The Department is engaging in approbate and reprobate by changing its position.

41. The interests of justice demand that PS be permitted to appear for LB.

42. In their opposition to PS’s application, the Department submitted that:

43. There is no evidence before me of LB’s financial position, being her alleged incapacity to engage a qualified solicitor to represent her.

44. There is no evidence before me of LB’s alleged medical incapacity to represent herself.

45. The previous leave granted to PS to appear for LB in the Commission and in this court was limited to the hearings on those days in relation to the applications made, which were being determined with considerable urgency.

46. The submissions made by PS, the content of his affidavits and his conduct of the application before me demonstrate that there is a real issue as to whether PS knows what he is doing in these proceedings.

47. The purpose of ensuring that a legally qualified solicitor acts for a client is to protect both the client and the opponent in the proceedings.

48. In any trial of these proceedings, there is a very real possibility that PS would be called as a witness.

CONSIDERATION

39. It is common ground between the parties that PS has been granted leave to appear (or has in fact appeared) for his wife, LB, on a number of other occasions in both this court and in the proceedings brought by LB against the Department in the Commission.

40. Despite what has occurred previously, the fact remains that a grant of leave is necessary for PS to represent LB in these proceedings and that such leave has previously been sought and granted in this and other courts or tribunals is of no moment in this application: Sinanovic, Faulker J at [18].

41. PS’s application will be decided on the relevant principles and the evidence that has been put before me.

42. PS is not a lawyer. There is no evidence that he has undertaken any formal legal training. While clearly self-confident in his ability to educate himself in the law informally, he is plainly not a solicitor within the meaning of r 7.1 of the UCPR. Based on the submissions made by PS and the contents of his affidavits, and having regard to the complexity of the issues in the proceedings, I have real concerns as to whether PS has the capacity to assist the court appropriately in acting for LB.

43. Equally, PS has not been appointed as LB’s tutor and there is no application that he, or any other person, be so appointed.

44. There is also no evidence before me, beyond assertion, of LB’s alleged legal incapacity.

45. In any case, leave may be refused even where the party to the proceedings is affected by illness and the person applying for leave is closely connected to that party and has in-depth knowledge of the case: see, for example, the circumstances in Sinanovic, set out by Faulkner J at [17], where the plaintiff was affected by Parkinson’s disease and the person seeking leave was the plaintiff’s former wife.

46. The medical evidence before me is in the form of a certificate of capacity/fitness dated 10 April 2025, which indicates that LB had no capacity for any work from 10 April 2024 (which appears to be an error) to 10 May 2025 on the basis of depressed mood and assault. There is also a medical certificate dated 3 June 2025 that certifies LB was experiencing a depressed mood state and was at significant risk of psychological harm. But none of that evidence rises high enough to suggest that LB could not (with or without the assistance of PS) instruct a solicitor to act for her in the proceedings.

47. PS accepted the submission made by the Department that there is a real possibility that he would be a witness at any trial of the proceedings. There is evidence which supports this submission in the form of paragraphs 18, 20 and 21 of PS’s affidavit of 16 July 2025. PS said that LB would ameliorate this concern by having a solicitor or barrister appear for LB at the trial. This amply demonstrates that there is no real impediment to LB appointing a legal representative to act for her in the proceedings other than that she chooses not to do so.

48. There has been suggestion, in both PS’s written and oral submissions, that LB cannot afford legal representation and that pro bono assistance has been extensively sought by him on her behalf, but that those efforts have proved fruitless. Those submissions might be characterised as those relating to impecuniosity, being the “usual ground” for granting leave to a person, not properly qualified, to represent a litigant, as identified by Ipp AJA in Teese, at [15]. However, there is no evidence before me on which those submissions could be made good.

49. There is simply no evidence before me as to LB’s financial position or incapacity to engage legal representation. At the hearing of this application, PS accepted that there was no such evidence before me and expressly disavowed any reliance in this application upon his wife’s financial position or capacity to engage a properly qualified legal practitioner to represent her in these proceedings.

50. Ultimately, nothing submitted by PS – and critically none of the evidence which he has put before me – demonstrates exceptional or special circumstances which warrant a grant of leave in this case.

51. I am particularly minded to rule as I have to protect LB as much as the Department. In my judgment, it is not in the interests of justice that PS appear for LB.

ORDERS

52. For that reason, I make the following orders:

53. The oral application by PS to be granted leave to appear for LB in the proceedings is dismissed.

54. PS is to pay the costs of the defendant in relation to the application.

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Amendments

12 August 2025

Pseudonym inserted