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[2026] NSWIRComm 1073
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-08-17
Commissioner A McRobert
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Abaid v NSW Health – NORTHERN SYDNEY LOCAL HEALTH DISTRICT [2026] NSWIRComm 1073
Hearing dates: 5 August 2026
In chambers
Date of orders: 17 August 2026
Decision date: 17 August 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner A McRobert
Decision: The proceedings are dismissed.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – victimisation – practice and procedure – permanent stay of proceedings – dismissal of proceedings after settlement
Legislation Cited: Industrial Relations Act 1996 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abaid v Health Secretary in respect of Northern Sydney Local Health District [2026] NSWIRComm 1029
Mallegowda v Hawkesbury City Council [2024] NSWIRComm 1048
Morcos v Bayside Council [2026] NSWIRComm 1007
New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039
Texts Cited: Nil
Category: Procedural rulings
Parties: Hamza Abaid (Applicant)
Health Secretary (Respondent)
Representation: Counsel: Mr Meagher, L (Respondent)
Solicitors:
Ms Kesby (Respondent)
File Number(s): 2025/00402608
Publication restriction: Nil
The substantive proceedings concern an application for relief from victimisation brought by the applicant against the respondent pursuant to s 213 of the Industrial Relations Act 1996 (NSW) (IR Act). The applicant alleges that the respondent engaged in conduct constituting victimisation within the meaning of the IR Act. The respondent denies those allegations.
By an application filed on 31 July 2026, the respondent seeks dismissal of the proceedings or, alternatively, a permanent stay. The respondent relies upon a Deed of Settlement entered into by the parties following a conciliation conference before the Commission on 15 July 2026 and contends that the proceedings were resolved in accordance with that agreement. The respondent further contends that it has complied with its obligations under the Deed of Settlement but that, notwithstanding multiple requests, the applicant has failed to file a Notice of Discontinuance as required by the Deed.
For the reasons that follow, I am satisfied that the proceedings should be dismissed.
On 20 October 2025, the applicant commenced proceedings under s 213 of the IR Act alleging victimisation by the respondent.
On 15 April 2026, I delivered an interlocutory decision in Abaid v Health Secretary in respect of Northern Sydney Local Health District [2026] NSWIRComm 1029. That decision concerned an application to amend the proceedings and for various forms of interlocutory relief.
The applicant subsequently sought leave to appeal from that interlocutory decision. The Full Bench subsequently refused the applicant leave to appeal from the interlocutory decision in Abaid v Health Secretary in respect of Northern Sydney Local Health District (No 2) [2026] NSWIRComm 12.
On 15 July 2026, the parties appeared before the Commission for a directions hearing. The applicant sought orders vacating the existing timetable on medical grounds. The respondent opposed that application. At the parties' request, the proceedings then continued by way of an extended conciliation conference. The conciliation resulted in the parties agreeing to resolve the proceedings on terms recorded in a Deed of Settlement executed by both parties on 15 July 2026.
Following execution of the Deed of Settlement, the respondent took steps which it contended were required by that agreement, including confirming the removal of references to misconduct findings and disciplinary action from the applicant's personnel file, providing a statement of service, and arranging payment of the settlement sum to the applicant.
On 23 July 2026, the matter was listed for report back at the request of the applicant following an enquiry he made regarding the rate of taxation to be withheld from the settlement payment. The applicant did not appear at the report back and attempts by the Commission to contact him by telephone were unsuccessful. Later that day, the Registry advised the parties by email that the existing listing on 5 August 2026 would remain in place unless a Notice of Discontinuance was filed. The applicant was further advised that a failure to attend that listing may result in the proceedings being dismissed.
The Commission did not receive any explanation for the applicant's non-attendance on 23 July 2026, nor any response or communication from the applicant until 5 August 2026, when an email was received from his wife on his behalf.
Also on 23 July 2026, the respondent forwarded to the applicant, for execution, draft Notices of Discontinuance in both the present proceedings and related proceedings, as required by clauses 7 and 8 of the Deed. The respondent made a further request on 27 July 2026 for the applicant to return the signed copies of those notices.
On 31 July 2026, the respondent filed the present application seeking dismissal of the proceedings or, alternatively, a permanent stay. The application relied upon a Deed of Settlement executed by the parties and the respondent's contention that it had complied with its obligations under that Deed. In support, the respondent filed a witness statement of Ms Felicity Edwards dated 31 July 2026.
The matter then came before the Commission for determination of the respondent's application. The respondent sought a permanent stay or dismissal of the proceedings pursuant to s 73 of the Civil Procedure Act 2005 (NSW), or alternatively dismissal pursuant to s 174 of the IR Act or r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
In brief oral submissions, the respondent contended that a permanent stay was the appropriate form of relief.
The respondent relied upon the decisions of Commissioner McDonald (as the Deputy President then was) in Mallegowda v Hawkesbury City Council [2024] NSWIRComm 1048 (“Mallegowda”) and Senior Commissioner Constant in Morcos v Bayside Council [2026] NSWIRComm 1007 (“Morcos”). In each case, the Commission concluded that a binding settlement agreement had been reached and that the continuation of the proceedings would constitute an abuse of process. In those circumstances, the Commission ordered a permanent stay of the proceedings rather than dismissing them.
Section 174 of the IR Act expressly confers a discretion on the Commission to dismiss proceedings where a matter has been settled by conciliation. It provides:
If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may:
(a) dismiss the application, or
(b) make an order on the agreed terms for settlement.
“the parties participated in a conciliation conference before the Commission on 15 July 2026;
the conciliation resulted in the parties agreeing to resolve the proceedings on terms recorded in a Deed of Settlement signed by both parties on that date;
following settlement, the respondent undertook the steps required under the Deed, including providing a statement of service, confirming the removal from the applicant’s personnel file of references to allegations, findings of misconduct and a disciplinary warning, and arranging payment of the settlement sum;
draft Notices of Discontinuance were subsequently provided to the applicant; and
as at the date of her statement, no Notice of Discontinuance had been filed by the applicant.”
"Although my husband previously reached an agreement with the respondent, he has been unable to finalize the discontinuation of the proceedings. Due to significant health issues, he is currently unable to engage with the other parties or manage this process, and he requests that the proceedings be paused until he is well enough to resume."
I regard that email as significant. The applicant did not dispute that a settlement had been reached between the parties. To the contrary, the email expressly acknowledged that he had "previously reached an agreement with the respondent". Nor did the email suggest that the applicant wished to withdraw from, challenge or otherwise avoid the agreement.
The explanation given for the absence of a Notice of Discontinuance was that the applicant's health had prevented him from "finaliz[ing] the discontinuation of the proceedings" and from engaging in the process required formally to bring the matter to an end.
The email is also consistent with Ms Edwards' evidence that the parties entered into a Deed of Settlement on 15 July 2026. It supports the conclusion that the fact of settlement was not in dispute and that the applicant's position was instead that, because of health issues, he was unable to complete the procedural steps necessary to discontinue the proceedings.
Whilst the email requested that the matter be paused, it did not identify any basis upon which the proceedings should continue in circumstances where the parties had executed a Deed of Settlement, and the respondent had performed its obligations under that agreement. Further, no medical evidence was provided in support of, or to explain the necessity for, that request.
I do not consider that s 73 of the CP Act is engaged in the present matter. That provision empowers the Commission to determine questions in dispute between the parties as to whether proceedings have been compromised or settled, and on what terms. No such question arises in the present case. The parties executed a Deed of Settlement on 15 July 2026. The respondent has performed its obligations under the Deed, including payment of the settlement sum. The applicant has not disputed that the proceedings were settled, challenged the validity or enforceability of the Deed, or sought to set it aside. Nor is there any dispute as to the terms upon which the proceedings were settled. Accordingly, there is no question in dispute between the parties requiring determination under s 73 of the CP Act.
Nor do I consider that r 12.7 of the UCPR has any application in the present circumstances. The respondent's application concerns proceedings that have been settled by conciliation and is appropriately determined under s 174 of the IR Act. It is therefore unnecessary to consider r 12.7 further.
I do not consider that Newcastle City Council assists the respondent. That decision concerned the making of orders giving effect to a settlement reached by the parties. The present matter concerns the separate question of whether proceedings should be dismissed following a settlement reached at conciliation. Section 174(a) of the IR Act expressly confers a discretion on the Commission to dismiss proceedings in those circumstances. Commissioner O'Sullivan's decision does not support a contrary conclusion.
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Removed the first name of the applicant from the title
Abaid
NSW Health – NORTHERN SYDNEY LOCAL HEALTH DISTRICT
By email sent at 2.04 pm on 4 August 2026, the Commission advised the applicant that the respondent's application seeking dismissal of, or alternatively a permanent stay of, the proceedings would be considered at the listing on 5 August 2026. The applicant was informed that, if he wished to discontinue the proceedings, he could notify the Commission by email, in which case the Commission may dispense with the requirement to file a Notice of Discontinuance and make appropriate orders to finalise the matter. Otherwise, he was advised that, having regard to the matters raised by the respondent, including the existence of the Deed of Settlement and the respondent's evidence that it had complied with its obligations under that Deed, the proceedings may be dismissed or permanently stayed at the listing. The applicant was further advised that, if he opposed the respondent's application, he should attend and be prepared to address why the proceedings should not be dismissed or permanently stayed, and that the proceedings may be dismissed or permanently stayed in his absence if he failed to attend.
At 9.02 am on 5 August 2026, the Registry received an email from the applicant's wife on his behalf. That email stated that the applicant had reached an agreement with the respondent but had been unable to finalise discontinuance of the proceedings due to illness. It further stated that the applicant was unable to participate in the proceedings due to health issues and requested that the matter be paused. No medical evidence was provided in support of that request.
At 9.38 am on 5 August 2026, the Commission advised the parties that the listing would proceed notwithstanding that request.
In Mallegowda and Morcos, the respondents relied upon both s 73 of the CP Act and s 174 of the IR Act but withdrew their reliance upon s 174 prior to the applications being determined.
In Mallegowda at [70], Commissioner McDonald ordered a permanent stay rather than dismissal because, although she concluded that a binding settlement had been reached, performance of the agreement remained conditional upon the execution of a deed which the applicant refused to sign. As a consequence, no deed was executed and no performance occurred pursuant to the settlement. Dismissal was therefore not considered to be contemplated by the settlement.
The present matter is materially different. The parties executed a Deed of Settlement on 15 July 2026. The respondent thereafter paid the settlement sum and otherwise performed its obligations under the Deed. The Deed required the applicant to file a Notice of Discontinuance within three days of receipt of that payment.
To the extent that the applicant raised concerns regarding the taxation treatment of the settlement payment, as was also the case in Mallegowda*,* those concerns do not alter that position. The applicant did not contend that the Deed was invalid or unenforceable, nor did he seek to set it aside. Rather, the correspondence expressly acknowledged that an agreement had been reached between the parties. Further, any concern regarding the taxation treatment of the settlement payment did not give rise to an issue concerning the existence, validity, enforceability, construction or performance of the settlement requiring determination by the Commission.
In those circumstances, I do not consider that Mallegowda or Morcos support the grant of a permanent stay. The only outstanding matter concerns the applicant's failure to file a Notice of Discontinuance. There is no issue concerning the existence, validity, enforceability, construction or performance of the settlement that requires determination by the Commission.
Section 174 of the IR Act is directly applicable. The proceedings were settled during conciliation conducted by the Commission. In these circumstances, s 174(a) confers a discretion upon the Commission to dismiss the application.
Having regard to the respondent's application, the evidence of Ms Edwards, the Deed of Settlement executed on 15 July 2026 and the acknowledgment on the applicant’s behalf that an agreement had been reached between the parties, I am satisfied that no useful purpose would be served by permitting the proceedings to continue. I have also formed the view that the continuation of the proceedings would amount to an abuse of process.
However, for the reasons already given, I do not consider that a permanent stay is the appropriate order. Rather, I am satisfied that the proceedings have been resolved by settlement at conciliation. In these circumstances, and in the exercise of the discretion conferred by s 174(a) of the IR Act, dismissal of the application is the appropriate course.
The proceedings are dismissed.