MB v Secretary, NSW Department of Education (No. 2)

[2025] NSWSC 744

Supreme Court

New South Wales

Medium Neutral Citation:

MB v Secretary, NSW Department of Education (No. 2) [2025] NSWSC 744

Hearing dates:

6 June 2025

Date of orders:

6 June 2025

Decision date:

06 June 2025

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Application dismissed.

Catchwords:

CIVIL PROCEDURE — Interlocutory applications — second motion brought in the Equity duty list to restrain the continuation of proceedings in the Industrial Relations Commission – previous motion raising the same subject matter which was determined adversely to the applicant – whether the second motion is founded on a material change of circumstances since the first motion was heard or upon the discovery of new material which could not reasonably have been put before the Court on the hearing of the first motion.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010

Cases Cited:

Amalgamated Television Services v Marsden [1999] NSWCA 313

Ballard v Brookfield Australia Investments [2013] NSWCA 82

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 414

Levy v Bablis [2012] NSWCA 77

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
A Britt (Defendant)

Solicitors:
Sparke Helmore (Defendant)

Next Friend:
PS (Plaintiff)

File Number(s):

2025/174938

Publication restriction:

Yes – Pseudonym Order

EX TEMPORE JUDGMENT (REVISED)

1. These proceedings were before me on 7 and 8 May 2025 in the Equity Duty List, when the Court dismissed the application brought by PS on behalf of the plaintiff, MB: MB v Secretary, NSW Department of Education [2025] NSWSC 743. The Court made an order for costs against PS. The Court gave PS leave to appear as next friend for the plaintiff on that occasion. MB was not present and it appeared at least to be arguable she was unwell because of the imminent termination of her employment, and but PS’s leave to appear was not unlimited. These reasons assume a reading of the Court’s first decision.

2. PS has on behalf of MB filed another Motion on 22 May 2025 which was returnable before the Chief Judge in Equity, sitting as Duty Judge. This new motion seeks, in substance, that my decision of 9 May 2025 be set aside, as Order 1 states, "based on fresh evidence that was not available to or considered by the Court at the time of the original determination". The respondent, the Department, opposed the relief sought. The matter was returned to a judge familiar with the first application.

3. PS initially moved orally at this hearing for suppression orders, because of the medical condition of the plaintiff, under the Court Suppression and Non-Publication Orders Act 2010, s 8(1)(c), or under the Court’s inherent jurisdiction. This application was unopposed. PS tendered a medical report from the general practitioner of the plaintiff. That report of 3 June shows that there is arguably a significant risk of psychological harm to the plaintiff in the event of a disclosure of these legal proceedings publicly.

4. On this preliminary matter, the Court will therefore make the suppression order but only in the form of a pseudonym order, subject to further order. Any publication of the judgments in these proceedings will not refer to the name of the plaintiff, the family of the plaintiff or contain material which would otherwise identify the MB or PS.

5. As to the principal relief sought on the motion, the law is well established and is concisely stated in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 414, cited by the Court of Appeal in Amalgamated Television Services v Marsden [1999] NSWCA 313; Levy v Bablis [2012] NSWCA 77 and Ballard v Brookfield Australia Investments [2013] NSWCA 82. The principle is that where an interlocutory order of a substantive nature has been made after a contested hearing, an application to set aside, vary or discharge that order must be founded on either a material change of circumstances since the original application was heard, or upon the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. The Brimaud v Honeysett principle operates as a filter to prevent the Court being vexed with multiple interlocutory applications by parties disgruntled with the result of earlier interlocutory applications.

6. The Court asked PS to identify the new material that was relied upon. The new material consists of five references from persons who have been associated with MB in her professional field. Some of these references are dated before the Court’s decision. Only one of them is dated after the Court’s first decision. But although this later reference postdates the first decision, it speaks to a relationship that the plaintiff had with that referee going back some twenty years. PS has provided no explanation as to why it was not available at the time of the first application.

7. Of the four other references, three predate the previous application, by some months. The other is from a person who must have been an acquaintance of the plaintiff by no later than the beginning of this year. There is no explanation as to why those items were not placed before the Court on the first application in May. This on its own would be a basis to dismiss this application, in that the plaintiff has not passed the hurdle of satisfying the Court that there is new material warranting the setting aside of the orders.

8. But since the Court's previous decision the plaintiff has commenced new proceedings in the Industrial Relations Commission of NSW (IRC) under Industrial Relations Act 1996, s 84 seeking relief in respect of her dismissal. That is now returnable before the IRC on 16 June. The IRC has plenary jurisdiction to deal with most of the matters that are the subject of the dismissal, including the subsidiary issues raised today.

9. PS says he is concerned about the indirect reputational consequences of the dismissal of the plaintiff and therefore brings the matter to this Court. But the IRC can make either orders, or recommendations to third parties in relation to that matter. PS says he is concerned about the mental health of his wife, the plaintiff, from these legal proceedings. The limitation of these proceedings to one tribunal, the IRC, and their expeditious conduct before the IRC rather than being distracted by multiple applications such as the present one, seems to be a reasonable way to promote her overall wellbeing.

10. PS finally sought to argue the final relief in these proceedings, which appears to be for orders in the nature of a writ of certiorari under Supreme Court Act 1920, s 69. This is not a final hearing. Whatever this Court does now is not a resolution of that claim for relief. That is a matter for the parties to deal with at a future time. The matter has a listing before the Registrar and the Court will dismiss this application. Again, I will order PS to pay personally the costs of the Department.

11. For these reasons, the Court makes the following orders:

1. GRANTS leave to PS to appear as next friend for the plaintiff.

2. ORDERS under s 8 of the Court Suppression and Non-Publication Act 2010 that the names of parties and any other material identifying the plaintiff or her family shall not be published in any public judgment in these proceedings and that leave of a Judge of the Court will be required to inspect the Court file.

3. DISMISSES the plaintiff’s Notice of Motion dated 22 May 2025.

4. ORDERS that PS pay the defendant’s costs of this application.

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Decision last updated: 15 July 2025