Australia, July 25 -- New South Wales Land and Environment Court issued text of the following judgement on June 25:

1. Mr Doherty was a classroom teacher employed by the Department of Education from April 2001. He was medically retired from his employment on 23 May 2023.

2. Mr Doherty filed an application for relief in the Commission in respect of his dismissal on 25 August 2023. Commissioner O'Sullivan exercised the Commission's discretion to extend time within which to accept the application in Doherty v Secretary of the Department of Education [2024] NSWIRComm 1019.

3. Commissioner O'Sullivan dismissed Mr Doherty's application in a decision published on 13 January 2025 in Doherty v Secretary of the Department of Education (No 2) [2025] NSWIRComm 1001 (Decision).

4. Mr Doherty seeks leave to appeal the Decision. The parties have agreed to the question of leave being determined separately and without conducting a hearing into the merits of the appeal. The question of leave to appeal was argued before the Full Bench today and is the only issue for determination.

5. For the reasons that follow, we have decided to refuse the application for leave to appeal.

Procedural background

6. On 3 February 2025, Mr Doherty lodged an application for appeal but it was irregular in form and substance, in that it contained no application for leave to appeal.

7. On 20 February 2025, Chin J made an order that Mr Doherty file an Application for Leave to Appeal and Appeal in the appropriate form by 13 March 2025. Mr Doherty filed a document in accordance with that direction (Application).

8. The Application suggested Mr Doherty would be seeking to rely upon fresh evidence in the appeal, although there is no notice of motion before the Commission seeking leave for him to do so.

9. Mr Doherty was expressly advised of the requirement to seek the Commission's leave to rely on fresh evidence and was given ample opportunity to do so.

10. On 20 March 2025, the matter was listed before Commissioner Webster for directions on delegation from the Full Bench. Mr Doherty appeared in-person and represented himself. He remains self-represented. On this occasion, Mr Doherty was provided with a copy of the decision in Visscher v SafeWork NSW [2024] NSWIRComm 1038 (Visscher) and taken to paragraphs [29]-[30] for the purposes of assisting him with understanding the basis upon which he may make an application to adduce fresh evidence in the appeal. The matter was stood down to allow Mr Doherty to consider the relevant paragraphs in Visscher, as well as the contents of Practice Note No. 1A - Usual Appeal Directions. Directions were made setting the matter down for hearing on 20 May 2025 and the parties were informed that at the hearing, the Full Bench would determine any notice of motion seeking leave to adduce fresh evidence, the application for Leave to Appeal, and the Appeal.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197ae75c7f7f5dc25b67fce5)

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