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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

Judgment

INTRODUCTION

1. These proceedings were commenced by the plaintiff, LB, by summons filed 7 May 2025 in which LB sought relief in the form of certiorari, prohibition, declaration, an order for reinstatement and interlocutory injunctive relief against the defendant, the New South Wales Department of Education, relating to a directive issued on 19 December 2024 by the Department to LB. The Department formerly employed LB as a Classroom Teacher until her dismissal on 8 May 2025.

2. On 3 July 2025, the Department filed a notice of motion in these proceedings seeking that the proceedings be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rule 2005 (NSW) (UCPR) or that the summons be struck out in its entirety pursuant to r 14.28 of the UCPR.

3. On 8 August 2025, I heard and dismissed an application by PS, the husband of LB, seeking leave to appear for LB in the proceedings and ordered PS to pay the Department’s costs in relation to that application, delivering my reasons ex tempore: LB v Secretary, NSW Department of Education [2025] NSWSC 892 (Leave to Appear Judgment).

4. On 15 August 2025, prior to determining the notice of motion, in the absence of LB, I refused the application by LB to adjourn the hearing of the notice of motion: LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939. LB did not appear at the hearing of the notice of motion, including after she was called outside the court.

5. On 15 August 2025, I summarily dismissed the proceedings pursuant to r 13.4 of the UCPR, ordered LB to pay the costs of the notice of motion and indicated that I would provide reasons for doing so in due course. These are my reasons for making those orders.

RELEVANT FACTS

6. On 30 January 2006, LB commenced permanent employment with the Department as a Classroom Teacher pursuant to the Teaching Service Act 198**0 (NSW) (TS Act).

7. In early 2024, concerns arose in relation to LB’s performance as a Classroom Teacher at the school where she was working (School).

8. On 18 September 2024, the Principal of the School implemented a Teacher Improvement Program (TIP) to provide formal support for LB to improve her performance.

9. On 19 December 2024, the Professional and Ethical Standards Directorate (PES) of the Department provided a letter to LB regarding the outcome of the TIP. That letter stated, amongst other things:

10. a written report from the Principal of the School had been provided following the implementation of the TIP (Report);

11. the Report recommended that LB’s efficiency had been determined as not meeting the level of performance required for the position held and referred the matter to the PES for review;

12. pending the outcome of the review process, LB was directed to report to a different school to perform alternative duties until further notice;

13. LB’s teaching position would be declared vacant (Vacancy Declaration); and

14. LB had 14 calendar days from 31 January 2025 to respond and make a submission in response to the Report.

15. On 20 January 2025, the PES of the Department sent a letter to LB which stated, among other things, that the Department had determined that LB’s substantive position would not be declared vacant while the PES was conducting its review into her performance but that she was still required to attend alternative duties at the other school.

16. On 13 February 2025, the PES of the Department sent a letter to LB which, among other things, informed LB that the Department was considering taking disciplinary action against LB in the form of dismissal and placing her name on a confidential list of people not to be employed in any capacity in New South Wales Government schools. In the letter, LB was informed that she had 14 calendar days in which to make a submission and provide any additional information she wished to have taken into account before a final decision was made.

17. On 28 February 2025, LB filed in the Industrial Relations Commission of New South Wales:

18. an unfair dismissal application pursuant to s 84(1) of the Industrial Relations Act 1996 (NSW) (IR Act), seeking relief in connection with the threat of dismissal (First Unfair Dismissal Application); and

19. an interlocutory application seeking an order which, amongst other things, prevented the Department from dismissing LB (First Interlocutory Application).

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

21. On 1 May 2025, LB filed an application for leave to appeal and to appeal the decision of Commissioner O’Sullivan (Appeal Proceedings).

22. On 2 May 2025, the PES of the Department wrote to LB informing her, amongst other things, that LB was directed to resign her employment by 4:00pm on 8 May 2025 or she would be dismissed.

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

24. On 6 May 2025, the Second Interlocutory Application was heard urgently and dismissed by President Taylor of the Commission.

25. On 7 May 2025, as stated above, LB filed the summons to commence these proceedings.

26. On 8 May 2025, the PES of the Department wrote to LB and advised that, as she had not submitted her resignation, she was dismissed from the NSW Teaching Service as at that date.

27. On 26 May 2025, LB filed in the Commission an unfair dismissal application pursuant to s 84(1) of the IR Act seeking relief in connection with her dismissal on 8 May 2025 (Second Unfair Dismissal Application).

28. The Second Unfair Dismissal Application is listed for hearing before the Commission on 25, 26, 27, 28, 29 August 2025, and 3 and 5 September 2025.

29. On 3 June 2025, LB filed a notice of discontinuance in relation to the Appeal Proceedings.

30. On 11 June 2025, Sparke Helmore (the solicitors acting for the Department) sent a letter to LB, which:

31. stated that the Department’s position was that the summons was liable to be summarily dismissed;

32. invited LB to consent to an order that the proceedings be summarily dismissed with no order as to costs; and

33. stated that if LB did not consent to that order, the Department would seek the summary dismissal of the proceedings pursuant to r 13.4 of the UCPR and seek it costs on an indemnity basis.

34. On 16 June 2025, PS sent a letter to Sparke Helmore which, amongst other things, stated that LB did not consent to the summary dismissal of the proceedings.

35. On 16 June 2025, the Commission made timetabling orders for the hearing of the Second Unfair Dismissal Application to occur between 25 August 2025 and 5 September 2025.

36. On 8 August 2025, as mentioned above, I heard and dismissed an application made by PS for leave to appear for LB in these proceedings providing my reasons in the Leave to Appear Judgment. At the conclusion of the delivery of the Leave to Appear Judgment, I stood over the hearing of the notice of motion to 15 August 2025 before me.

LEGAL PRINCIPLES

Summary dismissal – frivolous and vexatious proceedings

27. The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, rr 13.4(1) and (2) of the UCPR provide:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

28. For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, in which it was held by Barwick CJ at 128–9 that:

… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. …The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

29. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way at [57] (citation omitted):

… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

30. This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].

31. In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

The question is ... whether the claims in question are so obviously untenable or groundless that there is “a high degree of certainty” that they will fail if allowed to go to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.

32. This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].

33. The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

… A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.

Circumstances in which the court may strike out pleadings

34. The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

35. In relation to the power to strike out a pleading, the court must give consideration to the importance of pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. But the court does not treat them as rigid boundaries beyond which the parties may never stray.

36. In Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517 stated:

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no [party] ought to be put to loss without having a proper opportunity of meeting the case against [them], pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.

37. These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–7, who stated (citations omitted):

It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings.

38. In Banque Commerciale, Brennan J at 288 quoted with apparent approval the remarks of Jessel MR in Thorp v Holdsworth (1876) 3 Ch D 637, concerning the object of pleadings as stated at 639:

When the pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings …

39. Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings, which is the overriding purpose of the rules of court in their application to civil proceedings: s 56(1) of the Civil Procedure Act 2005 (NSW).

40. These matters were emphasised by Adamson J in Dickens v New South Wales (No 3) [2018] NSWSC 485, at [36] and [38]–[39]:

[36] The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff’s claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be “embarrassing” in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]:

‘Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.

…

[38] Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken. Although there are occasions where a defendant, for forensic reasons, might not take objection to a deficient pleading and prefer to conduct the proceedings on that basis, a defendant who approaches the Court to enforce its rules regarding a pleading is entitled to have the Court require compliance: Northam v Favelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 7 March 1995).

[39] The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW), the overriding purpose of which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings.

41. The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, as drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, by Johnson J at [32]–[35]:

[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5–6).

[33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417–418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109 at 112–114.

[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186.

[35] It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87–88 and 97–98; Gunns Limited v Marr at [57]–[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55].

42. The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: rr 13.4(2) and 14.28(2) of the UCPR.

43. In dealing with an application such as the present by an unrepresented litigant, I must recognise that there is a disadvantage in relation to which I must exercise special care to ensure that there is no viable cause of action in the summons which would survive if put in proper form because if it can be done I should avoid the summary termination of the proceedings: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (with whom Hope and Samuels JJA agreed) at 536–7. However, in doing so, I must have regard not only to the litigant in person but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: Herbert v American Express Australia Limited [2018] FCA 1790, Flick J at [60], citing Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989).

SUBMISSIONS

44. The Department’s submissions can be summarised as follows:

45. These proceedings involve a claim for relief in connection with LB’s prior employment with the Department at the heart of which is the Department’s decision to dismiss LB and the process that led to that decision, being the TIP. These are the same issues which are at the heart of the First Unfair Dismissal Application and the Second Unfair Dismissal Application before the Commission.

46. Section 84(1) of the IR Act confers exclusive jurisdiction on the Commission to determine any claim by an employee that their dismissal was harsh, unreasonable, or unjust and s 89 of the IR Act confers exclusive jurisdiction of the Commission to make orders for LB’s reinstatement or re-employment.

47. These proceedings are an abuse of process because the issues that LB seeks to agitate here are issues that she is either already agitating in the Commission or in respect of which the Commission is conferred exclusive jurisdiction to deal with. This is supported by MB v Secretary, NSW Department of Education [2025] NSWSC 743, Slattery J at [12].

48. The summons suffers from the following issues:

(a) Prayer 1 seeks an order quashing the Vacancy Declaration. This is frivolous, vexatious and abuse of process because:

(i) This was formally withdrawn by the Department on 20 January 2025, so there is nothing to quash. (ii) LB has been dismissed from her employment with the Department so any declaration of her position being vacant is no longer an issue. (iii) The writ of certiorari is not available against a decision of the Department.

(b) Prayer 2 seeks an order in the nature of prohibition restraining the Department from acting upon or enforcing the Vacancy Declaration. This suffers from the same flaws identified in respect of Prayer 1, at (a)(i) and (ii) above. (c) Prayer 3 seeks a declaration that the decision of the Department to make the Vacancy Declaration was made in breach of procedural fairness and was ultra vires the powers of the Department. This also suffers from the same flaws identified in respect of Prayer 1, at (a)(i) and (ii) above. (d) Prayer 4 seeks an interlocutory order that LB be reinstated, which has been refused by the decisions of Slattery J on 9 May 2025 and 6 June 2025. To the extent LB seeks this relief as final relief, that claim is an abuse of process when she has proceedings on foot in the Commission to seek the same relief and this court has no power to reinstate her. (e) Prayer 5 seeks interlocutory relief in the form of an order restraining the Department from taking any further steps in relation to LB’s dismissal or acting on any decisions arising from, or connected to, the Vacancy Declaration. LB has been dismissed from her employment with the Department. This relief is unavailable and the claim is frivolous, vexatious and an abuse of process. (f) Prayer 6 seeks the costs of, and incidental to, these proceedings. As there is no basis for any relief sought in the summons, there is no basis for an award of costs.

5. The matters which are under the heading “Pleadings and Particulars” do not separately disclose any reasonable cause of action supporting the claim for relief. Those matters concern LB’s former employment, the process that led to her dismissal and the decision to dismiss her. These are matters most appropriately agitated within the Commission’s exclusive jurisdiction.

CONSIDERATION

45. I consider this to be an appropriate case for the summary dismissal of the proceedings on the basis that they are an abuse of process and there is no reasonable cause of action which is disclosed in them.

46. LB has sought relief in the Commission with respect to her dismissal. The Commission has plenary jurisdiction in relation to most of the matters that are the subject of LB’s dismissal. With the imminent hearing before the Commission, it is expeditious and appropriate for them to be heard without the distraction of parallel proceedings in this court: MB v Secretary, NSW Dept of Education (No 2) [2025] NSWSC 744, Slattery J at [8]–[9]. It is an abuse of process for LB to maintain proceedings in this court when she is seeking to ventilate precisely the same matters she has raised in her proceedings in the Commission and in respect of which the Commission has jurisdiction.

47. Further, all of the relief sought in prayers 1, 2, 3 and 5 of the summons is redundant because the Vacancy Declaration was withdrawn by the Department on 20 January 2025 and LB was dismissed on 8 May 2025.

48. The relief sought in prayer 4 is now otiose because it has been sought and refused by this court.

49. I consider that this is a case in which the claims which are made are manifestly groundless and obviously untenable. It is appropriate that the Department no longer be troubled by these proceedings in this court and instead that the underlying issues in dispute should be dealt with in the Commission.

50. None of these matters raised in the summons are ones which could be put in proper form by some other form of pleading. It is not simply a question that the summons should be struck out and a proper pleading filed. Instead, the appropriate order is for the proceedings to be summarily dismissed.

ORDERS

51. For the reasons stated above, I made the following orders:

52. The proceedings are summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

53. The plaintiff is to pay the defendant’s costs of the proceedings.

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