LB v Secretary, NSW Department of Education (No 2)

Case •

[2025] NSWSC 939

•

18 August 2025

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: LB v Secretary, NSW Department of Education (No 2) [2025] NSWSC 939
Hearing dates: 15 August 2025
Date of orders: 15 August 2025
Decision date: 18 August 2025
Jurisdiction:Equity - Applications List
Before: McGrath J
Decision:

Plaintiff’s application to adjourn refused

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment — informal application to adjourn proceedings — vague medical grounds — previous delay — HELD —application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 66

Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 13.4, 14.28, 29.7

Cases Cited:

Bobolas v Waverley Council [2016] NSWCA 139

Cohen v Sacks [2021] NSWSC 88

Forster v Harvey [2006] NSWSC 1112

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

LB v Secretary, NSW Department of Education [2025] NSWSC 892

Magjarraj v Asteron Life Ltd [2009] NSWSC 1433

Majak v Rose (No 6) [2017] NSWCA 262

Re Idylic Solutions Pty Ltd [2012] NSWSC 581

Uy v Ng [2021] NSWSC 429

Valuestream Investment Management Ltd as Trustee for the Tip Tofs Trust v Drenside Pty Ltd as Trustee for the Nosivad Investment Trust [2022] NSWSC 1099

Von Reisner v Chepurin [2012] NSWCA 418

Category:Procedural rulings
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. The Department wished to proceed with the hearing of the notice of motion on 15 August 2025. LB failed to appear at that hearing, including after she was called outside court. In advance of the hearing, PS, the husband of LB, communicated via email with both the Department and the court stating that LB sought an adjournment of the hearing of the notice of motion on the basis that she is medically unfit to appear.

  4. On 15 August 2025, I determined to refuse the adjournment application, ordered LB to pay the costs of the adjournment application and indicated that I would provide my reasons for doing so in due course. These are my reasons for refusing the adjournment.

RELEVANT FACTS

  1. LB is self-represented in these proceedings, in circumstances explained in more detail below.

  2. The legal representatives of the Department are Sparke Helmore (acting through solicitors at that firm: Felicity Edwards, Ben Gottlieb and Elijah Royal) and counsel, Anthony Britt.

  3. On 18 July 2025, the notice of motion came before me sitting as the Applications List Judge. At that time, PS sought leave to appear before me on behalf of his wife on the grounds of “medical incapacity”. This was opposed by the Department who took the position that LB, who was present in the court, should appear in her own matter. I directed that the notice of motion be stood over to 1 August 2025 in the Applications List and noted that LB intended to make the requisite application to have a tutor appointed to manage her legal affairs.

  4. On 1 August 2025, the notice of motion came before me again sitting as the Applications List Judge. At that hearing, PS indicated that he wished to apply for leave to appear on behalf of LB in the proceedings. LB was also present on this occasion. I made timetabling orders for evidence and submissions to be filed and served by LB and the Department in relation to the application for PS to appear in the proceedings on behalf of LB and directed that PS’s application for leave to appear for LB in the proceedings be heard on 8 August 2025 before me with an estimate of up to one hour. I also stood over the notice of motion to 8 August 2025 for directions.

  5. On 8 August 2025, I heard and dismissed an application by PS 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). LB was present in court throughout the hearing and the delivery of the Leave to Appear Judgment.

  6. In the Leave to Appear Judgment, I set out the relevant facts as follows at [3]–[17]:

[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: MB 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: MB 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.

  1. At the conclusion of the delivery of the Leave to Appear Judgment, I directed that the notice of motion be stood over for hearing before me on 15 August 2025. I then indicated to PS (with LB still present in court) that I would proceed with hearing the notice of motion on 15 August 2025, and that LB had the choice of whether she appeared for herself or through a legal representative. I also expressly emphasised to PS that “engaging with constant emails to my associate is not the way in which proceedings are conducted in this court” (T37).

  2. On 11 August 2025 at 5:01am, PS sent an email to my Associate regarding the Leave to Appear Judgment.

  3. On 12 August 2025 at 7:45am, PS sent an email to the Court of Appeal Registrar, copied to Ms Edwards and my Associate amongst others, stating that LB would seek to expedite the appeal of the Leave to Appear Judgment and “Justice Slattery’s judgment”. In the email, PS also made a complaint about the publication of his name in the Leave to Appear Judgment.

  4. On 12 August 2025 at 9:56am, the Court of Appeal Registrar sent an email to PS, copied to Ms Edwards, which stated:

Once you have filed your originating process, which may contain an expedition request in the orders sought, please notify me via return email.

Please note that, if you are filing a Summons Seeking Leave to Appeal, the White Folder must also be filed at the same time. The requirement for a White Folder will not be dispensed with.

  1. On 12 August 2025 at 10:14am, my Associate sent an email to PS, copied to Ms Edwards and the Court of Appeal Registrar, informing him that the Leave to Appear Judgment had been amended to replace his name with a pseudonym and attaching a copy of the amended Leave to Appear Judgment.

  2. On 12 August 2025 at 10:19am, my Associate sent an email to Mr Gottlieb, Mr Royal, Ms Edwards and PS, informing them that the Leave to Appear Judgment had been amended to replace the name of PS with a pseudonym and attaching a copy of the amended Leave to Appear Judgment.

  3. On 13 August 2025 at 4:37am, PS sent an email to the Commission in relation to the proceedings before the Commission (IRC proceedings) seeking certain orders in relation to the further conduct of the IRC proceedings, to which was attached a notice of motion and two affidavits.

  4. On 13 August 2025 at 9:45am, the Commission listed the IRC proceedings for directions at 9:30am on 15 August 2025 before Commissioner Howell.

  5. On 13 August 2025 at 9:49am, PS sent an email to my Associate, attaching a letter dated 11 August 2025 from Dr Chi Keung Paw (Dr Paw’s Letter), a medical certificate dated 28 May 2025 from Dr Paw (May 2025 Medical Certificate) and a medical certificate dated 11 August 2025 from Dr Paw (August 2025 Medical Certificate). In the email, PS requested that the listing before me on 15 August 2025 be vacated on the basis of LB being unfit for court appearances from 11 August 2025 to 8 September 2025 as certified in Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate. In the email, PS also asserted (leaving all grammatical errors in place):

In my affidavit to the Court 20 May, 2025, I have been in the process of enrolling in advanced degrees at Sydney University in Psychological Medicine, and such have knowledge in mental health. I have also read numerous Forensic Psychiatric reports.

I believe my affidavit on the 4 August, 2025 makes reference to my role in instructing solicitors in Tort and medico- legal matters. I I have studied BA Arts / Science U Sydney, BA Applied Science ( Exercise Physiology, sub Majors Biochemistry and Pharmacology ) Post Education Q in STEM Education.

  1. Dr Paw’s Letter was addressed to “Judicial Officer” and stated as follows:

I have read Dr Matin Allen Consultant Psychiatric report and agree that [LB] is unfit for work for next 6-8 months. In light of Dr Allen findings and in my assessment I do not consider [LB] to be fit for Court and will assess again in 4 weeks. I note that [PS] has been a consistent and active source of support to his wife for the past six months. From my observations, he demonstrates a strong understanding of her health and approaches her care with empathy, diligence, and a clear commitment to her wellbeing.

  1. Dr Paw’s Letter referred to a psychiatric report of Dr Matin Allen (Allen Report) but did not attach the Allen Report.

  2. The May 2025 Medical Certificate relevantly stated:

[LB] has a medical condition “depression secondary to work-related” issues and will be unfit for work/studies from

28/05/2025 to 28/06/2025 inclusive.

This certificate and the patient was examined on Wednesday, 28th May 2025.

  1. The August 2025 Medical Certificate relevantly stated:

[LB] has a medical condition “depression secondary to work-related” issues and will be unfit for work/studies from

11/08/2025 to 08/09/2025 inclusive.

This certificate and the patient was examined on 11/08/2025.

  1. On 13 August 2025 at 1:31pm, PS sent an email to my Associate, copied to the legal representatives of the Department, which relevantly stated (leaving all grammatical errors in place):

…

Furthermore to my email, which the other party can read, LB will again visit her GP tomorrow to seek referral, urgent psychiatric supervision in the administration NDMA medication, as prescribed SNRI can be provided by the GP but not NDMA medication.

As noted by the medical evidence before the Court, she seeing a Psychologist CBT and on SNRI Cymbalta and the dosage increased this week.

  1. On 13 August 2025 at 1:36pm, PS sent an email to my Associate, copied to the legal representatives for the Department, which stated:

Due to end to end encryption, I will need to add email trails as PDFs.

Copy attached for all parties.

  1. This email did nothing other than forward the previous emails which had been sent to my Associate, together with their attachments.

  2. There was no formal application to adjourn the proceedings, and nothing was filed by LB in relation to the adjournment sought.

  3. On 13 August 2025 at around 2:21pm, PS appeared before Hmelnitsky J as Duty Judge to make an oral application to appear for LB as next friend and seek a four-week adjournment of the proceedings to adduce fresh medical evidence. Hmelnitsky J dismissed those applications.

  4. On 14 August 2025 at 8:13am, PS sent an email to the Court of Appeal Registrar, which was copied to my Associate and the legal representatives for the Department amongst others, which referred to the various requirements and procedures of the court for an application for leave to appeal and expedition which PS said he would ensure he would comply with. PS concluded that email by stating (leaving all grammatical errors in place):

Medical evidence has been provided to Justice McGraths Chambers and I anticipate based on previous judgements not granting leave, that his Honour will not vacate the listing on the 15.8.25 and make judgement with LB having no legal representation or representation. I have set out my concerns and the grounds for expedition, and I will comply with all procedural requirements of the Court. In the past 24 hours, I have independently studied Practice Note SC Eq 8 and familiarised myself with the relevant rules to ensure full compliance. 

  1. On 14 August 2025 at 8:35am, PS sent an email to my Associate, copied to the legal representatives of the Department, which stated (leaving all grammatical errors in place):

This matter is listed for hearing in the  IRC 15.8.25, which deals with the substantive issues of the dismissal, furthermore Pseudonym orders are being sought  in the IRC. 

The applicant seeks to have tomorrow’s listing vacated on the second basis before His Honour. The respondent has been copied into this request but has not returned my calls, and I am therefore unable to confirm whether the parties consent.  The respondent expediated appeals in the Court, with knowledge of matters before the ICR. 

The matters before the Court  related to appeals of the interlocutory matters and the relief sought is distinct.  

  1. Attached to this email was the notice dated 13 August 2025 from the Commission stating that the IRC proceedings were listed for directions via AVL at 9:30am on 15 August 2025 before Commissioner Howell.

  2. On 14 August 2025 at 9:25am, my Associate sent an email to PS and the legal representatives of the Department, which stated (emphasis in original):

The matter of LB v Secretary, NSW Department of Education (2025/00174938) is listed on Friday 15 August 2025 in the Applications List. The matter will be dealt with at that time unless short minutes of order made by consent of all parties vacating the listing on Friday are provided to chambers before 1pm today.

  1. On 14 August 2025 at 9:52am, Mr Gottlieb sent an email to PS (addressed to LB), which stated (emphasis in original):

We refer to the various emails we have received from [PS] since the time that Justice McGrath’s judgment was delivered on 8 August 2025.

[PS] does not have leave to represent you and so we do not intend to correspond with him about your various court and tribunal applications.

In relation to [PS’s] emails:

1.   We note that we do not appear to have the “Dr Matin Allen Consultant Psychiatrist report” referred to in the attached medical documents that were provided by way of [PS’s] email to the chambers of Justice McGrath at 1:31 pm yesterday.

2.   The listing before Justice McGrath tomorrow has not been vacated and so we intend to appear and press for the Department’s Notice of Motion seeking summary dismissal of the proceedings to be heard and determined.

3.   The proceedings in the Industrial Relations Commission of NSW have been listed for Directions at 9:30 am tomorrow and this listing conflicts with the listing before Justice McGrath. As such, we intend to write to the Registry of the Industrial Relations Commission of NSW to seek that the listing be adjourned to a time convenient to Commissioner Howell in the week commencing Monday, 18 August 2025. Please advise before noon today whether you consent to such an adjournment so that we can indicate your position at the time of writing to the Registry.

4.   At least one of [PS’s] emails refers to having sought to contact us by telephone. If you are seeking the Department’s consent to, or views on, any position, please address that to us in writing (rather than by way of telephone calls).

  1. On 14 August 2025 at 10:01am, PS sent an email to Mr Gottlieb in response to Mr Gottlieb’s email at 9:52am, which stated:

Your email constitutes a form of abuse given my wife’s current medical condition.

I have spoken with Mr Royal, who is awaiting instructions as to whether your client will agree to vacate tomorrow’s court listing. You are already in possession of medical certificates confirming that she is unfit to attend court.

  1. On 14 August 2025 at 10:09am, PS sent an email to Mr Gottlieb, Mr Royal and Ms Edwards, in further response to Mr Gottlieb’s email of 9:52am, which stated:

We do not consent of the variation sought by the respondent’s client to the listing before Commissioner Howell, as such variation would be highly prejudicial and contrary to the best interests of [LB].

…

  1. On 14 August 2025 at 10:16am, the Court of Appeal Registrar sent an email to PS, copied to the legal representatives of the Department, which referred to and repeated the email of 12 August 2025 at 9:56am from the Court of Appeal Registrar to PS, and which also stated:

Additionally, you may not file a Notice of Motion until after you have filed an originating process, for example, a Summons Seeking Leave to Appeal.

  1. On 14 August 2025 at 10:22am, PS sent an email to Mr Gottlieb, copied to Mr Royal and Ms Edwards, which stated that (all grammatical errors left in place):

We do not consent of the variation sought by the respondent’s client to change the listing date before Commissioner Howell, as such variation would be highly prejudicial and contrary to the best interests of [LB]. That conflict has been brought by the non compliant Expedition/ Applications list we submit.

…

We submit the application before the Justice McGrath, is non compliant with the Practice Note SC Eq 8 – Urgent Matters in the Equity Division

Attached is correspondence Court of Appeal Registrar.

  1. On 14 August 2025 at 11:16am, Mr Gottlieb sent an email to the Commission Registry, copied to PS, Ms Edwards and Mr Royal, seeking an adjournment of the directions hearing before Commissioner Howell at 9:30am on 15 August 2025 to another time convenient to Commissioner Howell in the week commencing 18 August 2025. The stated basis for the adjournment sought was that the parties were required to appear before me at the same time on 15 August 2025. In that email, Mr Gottlieb also stated that he wrote to LB seeking her consent to the adjournment sought but PS had responded by indicating that the adjournment was opposed.

  2. On 14 August 2025 at 11:20am, PS sent an email to the Commission Registry, copied to the legal representatives for the Department, which stated (all grammatical errors left in place):

We seek to file video MP4 , as an exhibit before Commissioner Howell tomorrow 9.30am 15.8.25

The respondent has been provided links of the video since the initial interlocutory application months ago.

We seek to file email correspondence Court of Appeal registrar , as the respondent made an application to expatiate matters before the Supreme Court, which now conflicts to matters before Commissioner Howell.

and we

do not consent to changing the date of the listing from the 15.8.2025. The matters before the Commission come close to the substantive hearing.

The matters before the Court are appeals of interlocutory decisions in nature , different relief sought and on foot with notice provided to the

other side on intention of Court of Appeal application.

Attached is the SC Practise Note.

We have copied the respondent in.

  1. On 14 August 2025 at 11:24am, Mr Gottlieb sent an email to PS (addressed to LB), copied to Ms Edwards and Mr Royal, stating that the Department did not consent to the vacation of the listing before me on 15 August 2025.

  2. On 14 August 2025 at 11:25am, PS sent an email to Mr Gottlieb, copied to the Commission Registry, Ms Edwards and Mr Royal, which stated (all grammatical errors left in place):

We say the respondents objections are baseless

and notes the importance of the listing on the 15.08.2025

and the role of the Commission in handling Industrial

disputes.

  1. On 14 August 2025 at 11:27am, PS sent an email to my Associate, copied to the legal representatives for the Department, which stated:

The plaintiff has sought the other party’s consent; however, they have not responded to repeated telephone calls and appear to be taking inconsistent positions.

We will continue to seek their consent.

  1. On 14 August 2025 at 12:55pm, the Commission Registry sent an email to PS and Mr Gottlieb, copied to Ms Edwards and Mr Royal, stating that Commissioner Howell had made directions in chambers vacating the directions hearing scheduled before him at 9:30am on 15 August 2025, relisting the matter for directions at 9:15am on 19 August 2025 via AVL, and giving the parties liberty to apply for further directions on 24 hours’ notice.

  2. On 14 August 2025 at 1:34pm, PS sent an email to the Commission Registry, copied to Mr Gottlieb, Mr Royal and Ms Edwards, which stated:

Please inform Commissioner Howell, that [LB] will not appear in the NSW Supreme Court on 15.8.25 on the basis of medical advice says unfit for Court.

The hearing tomorrow was by AVL and less stressful than proceeding in the Supreme Court. The plaintiff seeks further clarification from the Commission.

  1. On 14 August 2025 at 2:46pm, PS sent an email to my Associate, copied to the Commission Registry and the legal representatives for the Department, which stated:

This has been delayed as Mr Britt at the very least has instructed his solicitor not to communicate to me over the phone and by email.

This conduct has been ongoing for months. He is both client and counsel.

Attached is short minutes of Order without consent.

  1. The short minutes which were attached to this email sought the following orders:

1.   The listing of this matter on 15 August 2025 be vacated on the basis of medical advice that the applicant is unfit to attend Court.

2.   The vacation of the listing is made notwithstanding the absence of consent from the respondent.

3.   The matter be relisted as the Court sees fit.

  1. The short minutes were signed by PS, not by LB.

  2. On 14 August 2025 at 2:53pm, my Associate sent an email to PS, copied to the Commission Registry and the legal representatives for the Department, stating that as short minutes order made by consent of all parties had not been provided to my chambers before 1:00pm that day, the proceedings remained listed before me on Friday, 15 August 2025 in the Applications List.

  3. On 14 August 2025 at 3:17pm, PS sent an email to Mr Gottlieb, copied to Mr Royal and Ms Edwards, which stated:

Liberty to apply 24 hours,

we seek to have the Listing 25.8.25 -30.9.25 and the 3.5.2025 & 5.9.2025, changed to the week beginning of 9.9.2025.

Please confirm if your client Mr Britt / Secretary agrees ?

  1. On 14 August 2025 at 3:25pm, Mr Gottlieb sent an email to PS (addressed to LB), copied to Mr Royal and Ms Edwards, requesting LB to outline the reasons for the proposed adjournment and stating that they would then subsequently communicate the Department’s instructions on the proposed adjournment.

  2. On 14 August 2025 at 3:31pm, PS sent an email to Mr Gottlieb which stated:

My name is [PS].

She is unfit as per medical advice.

[PS]

  1. On 14 August 2025 at 4:18pm, Mr Gottlieb sent an email to PS (addressed to LB), copied to Mr Royal and Ms Edwards, requesting that LB provide a copy of the Allen Report.

  2. On 14 August 2025 at 4:51pm, PS sent an email to Mr Gottlieb, Mr Royal and Ms Edwards which stated:

I refer to correspondence dated 14 August , 2025.

I can confirm that Dr Paw, states;

“ [PS] has been a consistent and active source of support to his wife for the past six months. From my observations, he demonstrates a strong understanding of her health and approaches her care with empathy, diligence, and a clear commitment to her wellbeing”

I hope this clarifies your inquiry. I also wish to note my positive working relationship with the school’s staff, demonstrated through my voluntary assistance and advocacy for Public Education.

LEGAL PRINCIPLES

  1. The power of the court to adjourn proceedings rests in s 66(1) of the Civil Procedure Act 2005 (NSW) (CPA), which states:

66   Adjournment of proceedings

(cf Act No 11 1970, section 75)

(1)   Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2)   …

  1. In exercising that discretionary power under s 66(1) of the CPA, I am required to have reference to ss 56, 57 and 58 of the CPA.

  2. I must seek to give effect to the overriding purpose of the CPA when I exercise any power given to me by the CPA or by the UCPR, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 56(1) and 56(2) of the CPA.

  3. For the purpose of furthering the overriding purpose in s 56(1) of the CPA, I must manage the proceedings having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA. I am to construe and apply the CPA and the UCPR as best to ensure the attainment of the objects in s 57(1) of the CPA: s 57(2) of the CPA.

  4. In deciding whether to make any order for the management of proceedings (including any order for the amendment of a document, any order granting an adjournment or stay of proceedings and any other order of a procedural nature), and the terms on which any such order is to be made, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA. For the purpose of determining what are the “dictates of justice” in this particular case, pursuant to s 58(2) of the CPA, I must have regard to the provisions of ss 56 and 57 of the CPA and may have regard to the matters listed in s 58(2)(b) of the CPA to the extent to which I consider them to be relevant. Those matters include:

  1. the degree of difficulty or complexity to which the issues in the proceedings give rise;

  2. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;

  3. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

  4. the degree to which the respective parties have fulfilled their duties under s 56(3) of the CPA;

  5. 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 the UCPR, the practice of the court or any direction of a procedural nature given in the proceedings;

  6. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and

  7. such other matters I consider relevant in the circumstances of this case.

  1. A decision to grant an adjournment is discretionary and any adjournment must be to a specified day: s 66(1) of the CPA.

  2. The considerations which are relevant to the exercise of the discretion to adjourn were described in Cohen v Sacks [2021] NSWSC 88 by Schmidt AJ at [20] in the following terms:

It is apparent that this Court is also given a discretion under s 66 to grant the adjournment sought which will be exercised, if that is what justice requires in the circumstances, considerations of costs, delay and other specified matters also having been given necessary consideration. But any adjournment must be to a day and cannot be indefinite: s 66(1).

  1. In Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174, Ward JA at [13] stated that the discretion must be exercised by reference to the overriding purpose in s 56(1) of the CPA and in accordance with the dictates of justice, including any prejudice to the applicant or the respondent by either allowing or refusing the application:

The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this court.

  1. A further matter relevant to an application to adjourn is the public interest in the efficient dispatch of the business of the court which affects other litigants who are forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262, Payne JA at [18].

  2. The power of the court in r 29.7 of the UCPR to proceed with a trial generally if a party is absent and the trial is called on was stated in Forster v Harvey [2006] NSWSC 1112 by Young CJ in Eq at [7]–[8] in the following terms (emphasis added):

[7] Mr Carolan of counsel who appears for the plaintiffs has asked the Court to invoke Pt 29 r 7 of the Uniform Civil Procedure Rules 2005 permitting the court to proceed with the trial generally if a party is absent when the trial is called on. This is a power which is exercised sparingly because, generally speaking, if a person is genuinely ill or unable to take part in proceedings then the Court should adjourn the matter with the appropriate order for costs.

[8]   However, there are two situations where the court takes another course. The first is the situation where a party is so ill that it is unlikely even if the case is adjourned that he or she will be in any better position on the next occasion. The second is where there have previously been delays due to alleged illness of a party, the court makes it quite clear that if there is to be an application for an adjournment that must be by motion supported by affidavit yet the relevant party does not attend either with or without a medical certificate. One of the reasons for making that order is that unfortunately medical certificates appear to be very easily obtained. A party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned to ensure that the other party is as sick as she says she is. It is quite useless in that situation for the person who is not going to attend to write a letter to the court enclosing a common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination.

  1. This approach has been followed in multiple decisions of this court: Von Reisner v Chepurin [2012] NSWCA 418, Ward JA at [4]; Re Idylic Solutions Pty Ltd [2012] NSWSC 581, Ward J at [102]; Valuestream Investment Management Ltd as Trustee for the Tip Tofs Trust v Drenside Pty Ltd as Trustee for the Nosivad Investment Trust  [2022] NSWSC 1099, Henry J at [20]; Uy v Ng [2021] NSWSC 429, Rees J at [20]; Bobolas v Waverley Council [2016] NSWCA 139, McColl JA at [220] (with whom Simpson JA and Sackville AJA agreed), quoting Bobolas v Waverley Council [2014] NSWCA 78, Ward JA at [68]–[69].

SUBMISSIONS

  1. The Department submitted that I should refuse the adjournment because LB has failed to lead satisfactory evidence in favour of the adjournment.

  2. The Department says that Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate fail to address the critical question of whether, and if so why, the stated medical conditions would render LB unable at this time to prosecute her case and participate effectively in a court hearing.

  3. The Department argues that those documents do not establish sufficient medical grounds for the adjournment.

  4. The Department also refers to the decision in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 where Barrett J at [20]–[23] described the medical evidence in that case in the following terms (emphasis added):

[20]   The document signed by Dr Dulic provides no evidence that the plaintiff is incapacitated or unfit to attend. It says that the plaintiff is receiving medical treatment for a “medical condition”. What else he might need medical treatment for is left to the reader’s imagination, as is the precise “medical condition” from which he is supposed to be suffering. People with “medical conditions” attend court every day.

[21]   The plaintiff says in his own letter that he has “an infection”. That, too, says nothing about his capacity or incapacity to attend — or perhaps more accurately shows that he has not suffered a heart attack or a fractured skull or some other sudden event that has laid him low. An infection, of its nature, does not generally incapacitate before 8 pm a person who appeared quite healthy when sitting in court up to 4 pm.

[22]   All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person’s health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.

[23]   Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members.

  1. The Department submitted that Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate are as lacking as the medical evidence described in Magjarraj.

  2. The Department also says that the diagnosis of “depression secondary to work related issues” is not a recognised condition in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), where secondary depression refers to depressive symptoms that arise as a consequence of a primary condition such as a medical illness, a substance use disorder, or another mental health condition. It says that “work related issues” is not a medical condition.

  3. The Department also points to the fact that despite the diagnosis of Dr Paw, LB has been able to file a notice of motion in the IRC proceedings on 13 August 2025, presumably give instructions to commence an appeal from the Leave to Appeal Judgment and indicate she could attend a listing in the Commission that had been scheduled to occur on 15 August 2025 (before that listing was vacated).

  4. The Department says that short of the emails received from PS asserting that LB could not attend the hearing on 15 August 2025 before me and providing Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate, there is no other material before me from LB in support of the adjournment application.

CONSIDERATION

  1. I consider that this is a case in which it is appropriate for me to refuse the adjournment of the hearing of the notice of motion sought by LB.

  2. Despite the ruling I made in the Leave to Appear Judgment, it appears that PS is still carrying on proceedings in this court for LB in breach of r 7.1 of the UCPR. PS has been in frequent communication with my Associate in relation to these proceedings and has appeared before Hmelnitsky J as Duty Judge making an oral application to appear for LB and to bring a new notice of motion. It seems that LB had no difficulty providing instructions to PS to make that application.

  3. In my view, the medical evidence which has been put forward to support the adjournment in the form of Dr Paw’s Letter, the May 2025 Medical Certificate and the August 2025 Medical Certificate does not provide a sufficient basis to support the adjournment. Dr Paw’s Letter refers to the Allen Report as the basis on which it is said that LB is not “fit for Court” but the Allen Report has not been provided to the legal representatives of the Department (despite their requests) and nor has it been provided to the court. Instead, as in Magjarraj, I am left with the bald assertion that LB is unfit for court but without any disclosed basis on which that opinion is stated. As a basal matter of evidence, it was incumbent on LB to disclose the Allen Report if she wished to rely on the statements made in Dr Paw’s Letter as the basis for the adjournment.

  1. Dr Paw’s Letter does not even disclose the medical condition from which it is alleged that LB suffers. Instead I am required to turn to the August 2025 Medical Certificate (the currency of the May 2025 Medical Certificate having expired on 28 June 2025) to see that the alleged medical condition of LB is “depression secondary to work related issues”. I am not provided with any basis on which it is suggested that by reason of that medical condition LB is unable to provide instructions to an appropriately qualified solicitor to appear for her in these proceedings. Yet LB has been providing instructions to PS (despite being in breach of r 7.1 of the UCPR) to communicate with the court in relation to these proceedings, a proposed appeal of the Leave to Appear Judgment and to communicate with the Commission in relation to the IRC proceedings. It also appears that LB intended to participate in a directions hearing via AVL before the Commission on 15 August 2025 before that hearing was vacated and rescheduled to 19 August 2025.

  2. I have had particular regard to the fact that these proceedings were commenced on 7 May 2025, the notice of motion was filed on 3 July 2025, the notice of motion first came before me on 18 July 2025 and then several weeks were taken up with the application by PS to appear for LB in the proceedings on the footing of a foreshadowed application to appoint a tutor to LB which never eventuated. Once I dismissed the application by PS to appear for LB there was no reason why the notice of motion could not be dealt with effectively and efficiently having regard to the overriding purpose to facilitate the just quick and cheap resolution of the real issues in the proceedings. It was appropriate that I make efficient use of the available judicial and administrative resources of the court and I deal with the notice of motion in a timely manner. On 8 August 2025, I informed PS, in the presence of LB, that I would hear the notice of motion on 15 August 2025.

  3. I am conscious that by my ruling I would then proceed to hear the notice of motion for the summary dismissal of the proceedings without any evidence or submissions from LB, which might appear to involve a form of injustice to LB. But that was her choice. Instead of appointing an appropriately qualified and experienced legal practitioner to carry on the proceedings on her behalf by leading evidence and making submissions, LB persists in providing instructions to her husband, PS, to conduct the proceedings on her behalf.

  4. LB is running parallel proceedings in this court and the Commission. In those circumstances it was appropriate for me to determine whether I should make the orders sought in the notice of motion which seek to end the proceedings in this court by their summary dismissal. Based on the material that was placed before me, there was no reason why I should not determine the issues that are raised by the notice of motion.

ORDERS

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

  1. The plaintiff’s application for an adjournment of the hearing of the defendant’s notice of motion filed 3 July 2025 is dismissed.

  2. The plaintiff is to pay the costs of the defendant in relation to the application for an adjournment.

**********

Amendments

18 August 2025 - Amendment to date of orders

Decision last updated: 18 August 2025

Most Recent Citation
Cases Citing This Decision

1

LB v Secretary, NSW Department of Education (No 3) [2025] NSWSC 940
Cases Cited

14

Statutory Material Cited

2

Bobolas v Waverley Council [2016] NSWCA 139
Cohen v Sacks [2021] NSWSC 88
Forster v Harvey [2006] NSWSC 1112