McGinn v Department of Family and Community Services [2017] NSWSC 1124

Supreme Court New South Wales

Medium Neutral Citation: McGinn v Department of Family and Community Services [2017] NSWSC 1124 Hearing dates: 27, 28 July 2017 Date of orders: 28 July 2017 Decision date: 07 September 2017 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The Notice of Motion is dismissed.

(2) The plaintiff applicant pays the respondent's costs of the Notice of Motion. Catchwords: CIVIL PROCEDURE – interlocutory injunction – interlocutory injunction against former employer – application for interlocutory injunction until appeal hearing – where appeal lodged in different jurisdiction – where no proceedings brought in this Court – where proposed proceedings do not give rise to reinstatement Legislation Cited: Supreme Court Act 1970 (NSW) s 66 Uniform Civil Procedure Rules r 25.2 Industrial Relations Act 1996 (NSW) ss 84, 88, 89 Cases Cited: Uber BV v Howarth [2017] NSWSC 54 Category: Principal judgment Parties: Sophia McGinn (Plaintiff) Department of Family and Community Services (Defendant) Representation: Counsel: Plaintiff, litigant in person Ms Vanja Bulut (Defendant)

Solicitors: Plaintiff, litigant in person Sparke Helmore (Defendant) File Number(s): 2017/229235 Publication restriction: Nil

Judgment 1. On 27 July 2017 the plaintiff appeared before me unrepresented. Her notice of motion had been referred to me as Duty Judge. The plaintiff asserted that despite no proceedings having yet been commenced in the Supreme Court, she was entitled to seek urgent relief pursuant to r 25.2 of the Uniform Civil Procedure Rules. She asserted that the urgency was that there was a risk that the defendant would "delete her position" and that she required an injunction to prevent that occurring. 2. The orders sought were as follows: 1. An injunction order [sic] that the respondent not to delete the applicant's former position, quality manager in the system per s 66 of the Supreme Court Act. 2. An order that the respondent to pay the applicant's costs of this notice of motion. 1. At the time the plaintiff first attended, she had not served the application or her affidavit in support upon the defendant or the defendant's solicitor. 2. The background to the application is that the plaintiff had commenced proceedings for unfair dismissal in the Industrial Relations Commission in February 2017. There was a failed Conciliation followed by a hearing in June 2017. The plaintiff was unsuccessful. Part of the subject matter appeared to stem from the plaintiff's perception that the defendant was preventing any prospect of her reinstatement due to a planned restructure. The plaintiff has filed an application for leave to appeal from the Industrial Relations Commission decision on 11 July 2017 setting out various grounds of appeal. 3. The plaintiff stated in her affidavit sworn 26 July 2017 in support of her Notice of Motion that she had sought a "stay order" in the Notice of Appeal. The application for leave to appeal filed on 12 July 2017 does include a request for a stay. The grounds are stated to be because "the Commission has a duty of care to order the respondent to recreate the position to reinstate the applicant instead of allowing that structure being implemented when it is common ground that the applicant's substantive position is of important nature". 4. The plaintiff says that she was told by Chief Commissioner Kite of the Industrial Relations Commission on 18 July 2017 that only the Supreme Court has a power to grant the injunction she seeks. The plaintiff requested an undertaking from the respondent FACS on 19 July to "preserve her position in the system" until her appeal is determined. She stated that the respondent refused to give such an undertaking. 5. Given that the Notice of Motion and Affidavit had not been served, I adjourned the motion to the following day with orders requiring service by email on the solicitor who had recently been corresponding with the plaintiff regarding matters relevant to the IRC proceedings. I suggested that the plaintiff consider approaching the Registry for assistance regarding the pro-bono scheme and/or to seek private legal advice and assistance. 6. On 28 July the plaintiff again appeared without legal representation. Ms Bulut of Counsel appeared for the defendant. Ms Bulut was prepared to proceed and provided an outline of submissions. I invited the plaintiff to either proceed with the application without the benefit of legal representation or to elect to adjourn the proceedings so that she could obtain legal assistance and/or representation. The plaintiff declined the offer of an adjournment and stated that she was prepared to meet the defendant's arguments herself and did not wish to adjourn to obtain legal advice.