Australia, June 5 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. The application that comes before me urgently this afternoon is an application for a stay made as part of an application for leave to appeal and appeal.

2. The decision which is the subject of the application for leave to appeal and appeal is the decision of Commissioner O'Sullivan ("Commissioner") in Boncales v Secretary, Department of Education [2025] NSWIRComm 1017 which was given ex tempore on 17 April 2025.

3. The application that came before him was an application seeking an order pursuant to s 89(7) of the Industrial Relations Act 1996 (NSW) to restrain the respondent from dismissing the applicant. The Commissioner considered the arguments that were put before him and determined on the balance of convenience not to grant the relief. As a consequence, an application for leave to appeal and appeal was filed which sought a stay. I will describe the nature of the orders sought in a moment.

4. On 2 May 2025, the Department of Education wrote to the applicant informing her that her employment would come to an end at 4.00 pm on 8 May 2025.

5. This morning, 6 May 2025, the applicant filed a motion seeking orders reflecting the stay sought by the application for leave to appeal and appeal. The specific orders that the applicant seeks are as follows:

"1) An order staying the decision of Commissioner O'Sullivan delivered orally on 17 April 2025, pending the final determination of the appeal to the Full Bench of the Industrial Relations Commission; and

2) An order restraining the respondent from taking any further steps towards the dismissal of the applicant, including acting on the penalty notice dated 2 May 2025, until the appeal is determined."

6. As to the first order, namely an order that I stay the decision of the Commissioner, I accept the submission of the respondent that there is no utility to the making of such an order. To stay the decision of the Commissioner is to stay a decision to refuse an application. Staying that order will not in and of itself provide any relief, and for that reason I do not further consider that proposed order.

7. The second proposed order seeks an injunction preventing the dismissal of the applicant. In other words, it seeks relief of the nature that was sought and rejected by the Commissioner.

8. There is a real question as to whether the Industrial Relations Act provides me with the power to grant that relief. Section 190 of the Act provides me with the power to stay the decision that is the subject of appeal. Section 190A provides me with the further power to deal with "any interlocutory application in the appeal". For my part, it is not immediately clear to me that the latter power grants me a power to, in effect, grant the underlying relief that was sought below.

9. I accept that there is an argument that arises from the fact that if I do not grant order two, the effect will be to render the appeal otiose and that there is a line of authority to support the proposition that a court has an 'inherent', or perhaps better expressed as an 'implied' power to preserve the status quo to allow a matter to be heard. The difficulty of course is that I am not sitting as the Court, I am sitting as a tribunal whose powers are expressed and limited to those set out in the Industrial Relations Act, and such other legislation that confers jurisdiction upon us.

10. The absence of any express words providing me with a power to grant a positive injunction in the context of a stay application leads me to question whether I have that power notwithstanding the line of authority that I mentioned earlier.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196ad2e4fd4d06fe0357e8e8)

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