MB v Secretary, NSW Department of Education

[2025] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation:

MB v Secretary, NSW Department of Education [2025] NSWSC 743

Hearing dates:

7, 8 May 2025

Date of orders:

9 May 2025

Decision date:

09 May 2025

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Dismissal of plaintiff’s application for interim relief.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – Injunction sought in the Supreme Court –Applicant seeks by her next friend, her husband, an injunction against her dismissal from a teaching position – where dismissal is effected prior to hearing – where concurrent proceedings in the Industrial Relations Commission – discretionary considerations.

COSTS – Party/Party – Orders against non-parties –Personal costs orders against next friend.

Legislation Cited:

Industrial Relations Act 1996

Cases Cited:

Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust (No 2) [2024] NSWSC 1210

FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340

Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28

Texts Cited:

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2014)

Category:

Procedural rulings

Parties:

MB (Plaintiff)
Secretary, NSW Department of Education (Defendant)

Representation:

Solicitors:
Sparke Helmore (Defendant)

Next friend:
PS (Plaintiff)

File Number(s):

2025/174938

Publication restriction:

Yes – Pseudonym Order

Ex TEMPORE JUDGMENT (REVISED)

1. The plaintiff, MB, was, until yesterday, a long-term employee of the Department of Education (“the Department”). She was the subject of a notice on 19 December 2024, which removed her from her position as a Teacher at a Public School. She was directed to report to another school under the jurisdiction of the Department to perform alternative duties until further notice. On 2 May 2025, the Department wrote to MB informing her that her employment would end on 8 May 2025. She commenced proceedings in the Industrial Relations Commission (“the IRC”) under s 89(7) of the Industrial Relations Act 1996 and was unsuccessful in seeking to stay the Department from acting upon the threatened dismissal.

2. The plaintiff now applies to stay the IRC’s decision in the Equity Duty list. The plaintiff’s husband, PS, was given leave today to appear for the plaintiff. Mr Gottlieb of Sparke Helmore appeared on behalf of the defendant, Department. As the result of a subsequent application, the Court has decided that it is appropriate to use pseudonyms in the publication of these reasons: MB v Secretary, NSW Department of Education (No. 2) [2025] 744.

3. The Court indicated to PS that he would need to establish clearly that this Court has jurisdiction to grant the relief sought.

4. The IRC matter was heard before Commissioner O'Sullivan on 17 April 2025. The Commissioner found on that application that it was doubtful there was a prima facie case to attract jurisdiction under the Industrial Relations Act 1996.

5. Commissioner O'Sullivan extensively considered submissions by PS, who was also given leave to appear, on behalf of the plaintiff. PS had submitted to Commissioner O'Sullivan – as he has to this Court – that the balance of convenience favoured the granting of relief to restrain the Department from acting on the threatened dismissal, because of the potential irreparable damage which may be caused by prematurely ending the plaintiff’s career, and the consequential effects that may have on her health. He also considered the balance of convenience to the Department on the basis that it would not be able to re-advertise the position if a restraint was put in place.

6. Upon the dismissal of her application by Commissioner O'Sullivan, the plaintiff appealed to the President of the IRC, Justice Taylor. On 6 May 2025, the President dismissed the application after considering further evidence from PS given on behalf of his wife, the plaintiff. At paragraphs [26] – [28] of that judgment, the learned President Taylor said:

“[26] Implicit in what I have dealt with is something which I should make explicit, namely that any submission that the harm in question is irreparable needs to deal with the fact that upon the applicant's dismissal, she will have the capacity to bring an application under s 83 of the Act seeking relief for unfair dismissal. If ultimately the merits of her case which are relied upon by [PS] in respect of the first issue are indeed sufficient to allow her to succeed in that application, she will then be able to seek relief which would indicate the potential of reinstatement and full back pay.

[27] In those circumstances, much of the submissions that were put to me as to the harm being irreparable has to be understood to be submissions which rise and fall on the suggestion that, notwithstanding that the applicant contends she has a strong case and will ultimately win and be able to obtain compensation and/or reinstatement and backpay, for that temporary period between now and then there is a necessity for her to continue to be paid an income.

[28] For the reasons I have identified, the evidence before me is not sufficient to allow me to form a view that there is in fact such necessity.”

7. The learned President considered several other submissions based on the balance of convenience and dismissed the application for a stay. PS again applied on behalf of his wife in the Equity Duty List appearing first before the Chief Judge in Equity on 24 April and then before me on 7 May and 8 May.

8. The Court granted leave to PS to appear on behalf of his wife. But Mr Gottlieb, on behalf of the Secretary, made it clear at the beginning of today's application that should PS have leave to appear today and be unsuccessful in his application, that the Department would apply for costs against PS personally.

9. The Court has heard the application today and PS has modified the relief sought by reference to some short minutes of order provided to the Court. Those short minutes provided as follows:

“1. A declaration that the directive issued to the plaintiff on 19 December 2024, to vacate her substantive teaching position and directing that she would never return to [redacted] Public School, was made ultra vires and is of no legal effect.

2. Until further order of the Court, the defendant is restrained from:

(a) Acting upon or giving effect to the directive issued on 19 December 2024;

(b) Giving further effect to the dismissal of the plaintiff made at 4:00pm on 9 May 2025;

(c) Filling, advertising, or otherwise dealing with the plaintiff’s substantive teaching position;

(d) Taking any steps to prevent the plaintiff’s return to her substantive teaching role, including implementing any directive or communication to prohibit her return to [redacted] Public School.

3. The plaintiff shall remain on the payroll and be maintained in her current employment status, without prejudice to the rights of the parties.

4. The defendant is further ordered to reinstate the plaintiff to her substantive position as permanent teacher in the New South Wales Department of Education, with effect from 9 May 2024, pending the final determination of these proceedings. This order is sought consistently with the reasoning adopted in Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074, where interlocutory reinstatement was granted post-dismissal to prevent irreparable harm and preserve the applicant’s legal and professional position.

5. The plaintiff, by her next friend PS, gives the usual undertaking as to damages.

6. Liberty to apply on 24 hours’ notice.

7. Costs reserved.”

10. PS also tendered an affidavit of the plaintiff and some material showing how well she was apparently regarded in her employment environment through references made over a number of years between 2017 and the present time.

11. PS has also sought to summarise the evidence, based on his wife’s affidavit, submitting that to the extent she had been criticised for her conduct, it was in the context of a situation where there were violent incidents at the Public School where she worked. PS says this had placed the plaintiff in a difficult position and substantially impaired her capacity to perform her work and that she had very good grounds to refute the contentions in the Department’s letter of 19 December 2024 about her performance.

12. Be that as it may, what PS is asking the Court to do is generally inconsistent with well-established equitable principles, and in the alternative, does not reflect the balance of convenience which is sometimes described as the balance of justice. PS declined to put any submissions on issues of this Court’s present jurisdiction, given the existing proceedings in the IRC. But these proceedings may well qualify as an abuse of process. The best way to deal with the various issues is simply to look at the relief claimed in the short minutes of order, which I will treat as an Amended Summons.

13. As to the first proposed order, the plaintiff seeks a declaration that the directive issued to the plaintiff on 19 December 2024 to vacate her substantive teaching position and that she not return to her Public School was ultra vires and of no legal effect. This is the Equity Duty List where the Court does not grant final relief. This is a claim for final relief and the Court cannot give it at this stage. It cannot give it in this forum, nor is the Court inclined to seek to expedite such a hearing when it appears that the plaintiff has as yet unexercised rights under s 83 of the Industrial Relations Act 1996 to seek relief for unfair dismissal.

14. With regard to Order 2, for the Court to issue such a restraint to maintain the plaintiff in her employment would be contrary to well-established authority. Equity is reluctant to grant injunctions to keep people in close employment relationships and relationships which rely upon one person having confidence in the other, when that confidence is broken down: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2014) at [21.220].

15. Confidence has clearly broken down in the contract of personal service between the Department and MB. The Court will not grant the relief sought by the plaintiff. Leaving aside questions of jurisdiction, the discretionary reasons against granting any relief are strengthened by the fact that MB has already applied to the IRC and appealed to the President of the IRC for substantially the same relief. Both of these prior applications have been refused after what appears to this Court to be a full consideration of a relevant issues including the balance of convenience.

16. It follows that ancillary Order 3, for the plaintiff to remain on the payroll should not be made. And Order 4 in the short minutes, that the defendant is ordered to reinstate the plaintiff, fails for the same reason.

17. For these reasons, the Court declines the relief sought with costs.

18. PS has wholly propounded this application himself. The Court’s power in relation to costs extends to making an order against a non-party where the party to the litigation is a man of straw and the non-party has played an active role in the conduct of the litigation and has an interest in the subject of the litigation: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-193; [1992] HCA 28 at [34] (Mason CJ and Deane J); FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 at [210] (Basten JA); Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust (No 2) [2024] NSWSC 1210 at [21] (Rees J). He is therefore liable to suffer a personal costs order against him in the circumstances.

Orders and Outcomes

19. For the above reasons the Court:

1. NOTES That the plaintiff tenders a bundle of documents relating to the employment of the plaintiff and her next friend which is marked as Exhibit “A” on the plaintiff’s application.

2. NOTES That the plaintiff tenders a document entitled “Guidelines for the Management of Conduct and Performance” which is marked as Exhibit “B” on the plaintiff’s application.

3. ORDERS that the plaintiff’s application for interim relief is dismissed.

4. ORDERS that PS of [residential address] to pay the costs of the defendant of today’s application.

5. ADJOURNS the proceedings for directions before the Registrar in Equity on 19 June 2025.

**********

Decision last updated: 15 July 2025