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[2026] NSWIRComm 1074
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-10-08
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: Australian Salaried Medical Officers Federation (NSW) v ST. VINCENT'S HOSPITAL SYDNEY LIMITED [2026] NSWIRComm 1074
Hearing dates: On the papers
Date of orders: 8 October 2026
Decision date: 08 October 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner A McRobert
Decision: 1 The Notifier is granted leave to reopen its evidentiary case to tender:
(a) the statement of Mr Damien Lee dated 21 August 2026; and
(b) the letter from the Health Services Association of NSW dated 25 November 2020, being Annexure AMS-01 to the statement of Mr Lee.
2 By 4pm on 13 October 2026, the Respondent is to notify the Commission and the Notifier whether it seeks leave to adduce evidence in response to the Further Evidence and, if so, identify the evidence sought to be adduced and the basis upon which leave is sought. The Respondent is also to identify the subject matter of any further submissions it contends are necessary arising from the Further Evidence.
3 The matter is listed for directions by Webex at 9:30am on 14 October 2026 to determine any application under Order (2) and to make any further directions necessary to enable the proceeding to be determined.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — application to reopen evidentiary case — further evidence relevant to jurisdictional objection — procedural fairness — interests of justice — leave granted
Legislation Cited: Industrial Relations Act 1996 (NSW)
Fair Work Act 2009 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587
Gaskin v Ollerenshaw [2010] NSWSC 788
The Secretary of the Department of Education, acting in their capacity as such v SafeWork NSW [2025] NSWIRComm 1029
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Category: Procedural rulings
Parties: Australian Salaried Medical Officers Federation (NSW) (Notifier)
St Vincent’s Hospital Sydney Limited (Respondent)
Representation: Counsel:
Mr Anwar, F (Notifier)
Mr Willink, P (Respondent)
Representatives:
A Redfern McCullough Robertson Lawyers (Respondent)
File Number(s): 2026/00039655
Publication restriction: Nil
(a) a statement of Mr Damien Lee dated 21 August 2026 (Mr Lee’s Statement); and (b) a letter from the Health Services Association of NSW (HSA) dated 25 November 2020, annexed to Mr Lee’s Statement as Annexure AMS-01 (HSA Letter) (together**,** the Further Evidence).
The Notifier filed a dispute with the Commission under s 130 of the Industrial Relations Act 1996 (NSW) (IR Act) on 29 January 2026. The matter was the subject of a number of conciliation conferences but did not resolve and was subsequently programmed for hearing. The substantive proceeding was heard before me on 5 August 2026.
In the course of the Respondent's oral closing submissions, it raised a jurisdictional objection to the Commission determining the dispute. That objection concerned the interaction between the IR Act, the Fair Work Act 2009 (Cth) and the NSW (Non-Declared) Affiliated Health Organisations' Staff Specialist Agreement 2021 (Enterprise Agreement). That particular jurisdictional objection had not been raised in the Respondent's written submissions filed before the hearing. As the objection raised a threshold question as to the Commission's jurisdiction to determine the dispute, I did not reserve my decision in the substantive proceeding at the conclusion of the hearing. The parties were instead afforded an opportunity to address the objection in further written submissions.
On 10 August 2026, the Respondent filed written submissions addressing that jurisdictional objection. On 21 August 2026, ASMOF filed supplementary submissions in reply. At [138]–[148], those submissions foreshadowed an application by ASMOF for leave to reopen its evidentiary case. By email accompanying the submissions, ASMOF made that application and, at the same time, filed the Further Evidence and a statement of Ms Elise Esquenazi dated 21 August 2026 explaining why the HSA Letter had not formed part of ASMOF’s evidence at the hearing. ASMOF proffered the Further Evidence as extrinsic material relevant to the construction of the Enterprise Agreement and, in turn, to the determination of the Respondent’s jurisdictional objection.
Following correspondence from the Commission on 25 August 2026, ASMOF filed the present Notice of Motion, formally seeking leave to reopen its evidentiary case to tender the Further Evidence. In support of the application, ASMOF also relied upon an affidavit of Ms Esquenazi in substantially the same terms as her statement filed on 21 August 2026.
Directions were subsequently made for written submissions in relation to the application. The Respondent filed submissions opposing the application on 10 September 2026, and ASMOF filed submissions in reply on 18 September 2026.
The question for determination is whether ASMOF should be permitted, after the conclusion of the evidentiary hearing, to reopen its case to tender the Further Evidence.
The Respondent opposed the application to reopen the evidence. It submitted that the Enterprise Agreement is clear and unambiguous and that the Commission should therefore not have regard to extrinsic material in construing the relevant clause. It further relied on the HSA Letter being marked “without prejudice” and submitted that, in any event, it has little probative value and does not establish the common understanding asserted by the Notifier.
I have had regard to the following matters.
Firstly, the application is confined in scope. ASMOF does not seek a general reopening of its evidentiary case. It seeks only to tender the Further Evidence. That confined character is reflected in the terms of the Notice of Motion.
Secondly, the timing and procedural circumstances in which the application arose are significant. The jurisdictional objection which prompted the further written submissions was raised by the Respondent in its closing submissions at the hearing on 5 August 2026, notwithstanding that it had filed a written outline of submissions prior to the hearing in which that objection was not raised. The parties were thereafter afforded an opportunity to address the objection further in writing.
ASMOF first foreshadowed an application to reopen when filing its supplementary submissions on 21 August 2026. Although it had not at that point filed the Notice of Motion referred to in its submissions, the substance of the application was clearly identified. The formal Notice of Motion followed on 25 August 2026. In those circumstances, this is not a case in which a party has waited until after judgment, or until some substantially later stage, before seeking to introduce further evidence.
Thirdly, ASMOF has provided an explanation, through the evidence of Ms Esquenazi, as to why the HSA Letter was not included in its evidence at the hearing. Whether that explanation establishes that the evidence could not, with reasonable diligence, have been located or adduced earlier is not determinative. Any failure to adduce available evidence at the proper time is a matter which weighs in the exercise of the discretion but is not necessarily decisive.
The circumstances may be contrasted with those considered in The Secretary of the Department of Education, acting in their capacity as such v SafeWork NSW [2025] NSWIRComm 1029 (SafeWork). In that matter, the Commission found that SafeWork ought reasonably to have foreseen the need to adduce the further evidence before the hearing and had not provided an acceptable explanation for its omission. SafeWork had closed its evidentiary case, but the proceeding remained part-heard, with final submissions yet to be delivered. Reopening the evidentiary case would have involved evidence in reply, cross-examination and at least a further day of hearing, with consequential delay and costs. Those considerations weighed against reopening notwithstanding the importance and probative value of the proposed evidence.
The circumstances of the present application are materially different. The jurisdictional objection which occasioned the further written submissions was not raised by the Respondent in its written submissions before the hearing, but in its oral closing submissions. The objection raised a threshold question as to the Commission's jurisdiction to determine the dispute. In those circumstances, the need for ASMOF to address the jurisdictional objection in the manner in which it ultimately sought to do so could not reasonably have been foreseen from the case advanced by the Respondent prior to the hearing.
I make the following orders:
The Notifier is granted leave to reopen its evidentiary case to tender:
(a) the statement of Mr Damien Lee dated 21 August 2026; and (b) the letter from the Health Services Association of NSW dated 25 November 2020, being Annexure AMS-01 to the statement of Mr Lee.
**********
Australian Salaried Medical Officers Federation (NSW)
ST. VINCENT'S HOSPITAL SYDNEY LIMITED
In reply, the Notifier submitted that the threshold for establishing ambiguity is low and is satisfied by the competing arguable constructions of the dispute resolution term. It submitted that the HSA Letter is admissible notwithstanding its “without prejudice” marking and is relevant as evidence of the parties’ common understanding during bargaining. The Notifier further submitted that the subsequent employee vote does not preclude reliance on that shared understanding as an aid to construction, and that the letter supports its construction of the Enterprise Agreement.
An application to reopen evidence is discretionary. The discretion is to be exercised judicially having regard to the interests of justice and the circumstances of the particular proceeding.
Relevant considerations include the explanation for the evidence not having been adduced before ASMOF closed its case, the apparent relevance and significance of the Further Evidence, the stage reached in the proceeding, any prejudice to the Respondent arising from the reopening and whether that prejudice can adequately be addressed by appropriate procedural directions.
In Gaskin v Ollerenshaw [2010] NSWSC 788 at [19]-[22], Garling J observed that relevant considerations include whether there was a deliberate decision not to call the evidence during the hearing, the prejudice or embarrassment which reopening may occasion to the opposing party and the overall interests of justice. His Honour also referred to the considerations identified *in Australian Securities and Investments Commission v Rich [*2006] NSWSC 826 at [18], including whether the occasion for calling the further evidence ought reasonably to have been foreseen, the relevance and probative value of the evidence, the explanation for not adducing it earlier, prejudice in terms of delay and consequential costs and the public interest in the timely conclusion of litigation.
Those considerations are not to be applied mechanically. The ultimate question is whether, in all the circumstances, the interests of justice favour permitting ASMOF to reopen its case: Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75 at [168] (Rares, Murphy and Davies JJ); Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 (Mahoney, Clarke and Meagher JJA).
It is neither necessary nor appropriate in this interlocutory application to determine the ultimate significance of the Further Evidence or the weight, if any, to be attributed to it. Granting leave does not involve acceptance of the significance which ASMOF seeks to attribute to the HSA Letter, nor does it determine whether, and for what purpose, the HSA Letter may properly be considered as extrinsic material in construing the Enterprise Agreement, or what inference, if any, may properly be drawn from it. Those matters remain for determination in the substantive decision.
The Respondent also contends that the HSA Letter is a without prejudice communication and relies upon s 131 of the Evidence Act 1995 (NSW) (Evidence Act) in opposing reliance upon it. Subsection 163(1)(b) of the IR Act provides that the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers just. The Commission is also to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: IR Act s 163(1)(c).
It is not necessary on the present application to determine whether, having regard to those principles, the HSA Letter may properly be relied upon by the Commission. Granting leave to reopen does not determine that question or the Respondent's contention that the letter is a without prejudice communication. Those matters remain for determination in the substantive proceeding.
The Respondent relies upon a number of authorities in support of its submissions as to why the Commission should not have regard to the Further Evidence. Those authorities principally concern whether, and for what purpose, the Further Evidence may properly be relied upon in determining the substantive proceeding, rather than the question presently before the Commission of whether leave should be granted to reopen ASMOF's evidentiary case. It is therefore unnecessary to determine those matters, or to consider those authorities in detail, for the purposes of the present application.
I am not satisfied that permitting the limited reopening sought would occasion prejudice to the Respondent that cannot adequately be addressed. The Respondent has been aware of the Further Evidence since the application was made and has had an opportunity to oppose the application and identify the basis of its opposition.
In its submissions, the Respondent stated that, if the Commission were minded to grant the Notice of Motion, it may seek leave to adduce evidence in reply to Mr Lee's Statement and make further submissions. Any such application may be made following these reasons. Any procedural prejudice arising from the reopening can be addressed by appropriate directions, if required.
The position concerning delay is also materially different from that in SafeWork. In that matter, reopening would necessarily have involved responsive evidence, cross-examination and at least a further day of hearing. Here, the Respondent has indicated only that it may seek leave to adduce evidence in reply if leave is granted. To the extent that some additional time may be required, that consideration must also be viewed in the procedural context in which this application arose, including that the jurisdictional objection was first raised by the Respondent in its closing submissions.
I also take into account that, although the evidentiary hearing had otherwise concluded, the substantive proceeding had not been reserved because the parties were afforded an opportunity to make further submissions concerning the jurisdictional objection. The Commission remains able to permit the limited reopening sought and ensure that each party has a proper opportunity to address the Further Evidence before the jurisdictional and substantive issues are determined.
There is a distinction between prejudice arising because further evidence may assist the case of the party seeking to rely upon it and procedural prejudice arising because the opposing party is deprived of a fair opportunity to meet that evidence. The former does not, without more, warrant refusing leave. I am satisfied that any procedural prejudice to the Respondent can be adequately addressed.
I have also had regard to the need for finality in litigation and the importance of parties presenting their evidence at the hearing rather than supplementing their cases after the event. Those considerations weigh against reopening.
However, they must be considered in the particular procedural context of this case. The application was made shortly after the hearing, in the course of the further submissions directed to the jurisdictional objection raised in the Respondent's closing submissions. It concerns identified and confined material. The proceeding remains undetermined and the Respondent has had notice of the application and an opportunity to address it.
Balancing those considerations, I am satisfied that the interests of justice favour granting leave. In reaching that conclusion, I place particular weight on the confined nature of the Further Evidence, the procedural circumstances in which the application arose, its potential relevance to issues remaining for determination, the stage reached in the proceeding and the capacity to address any procedural prejudice to the Respondent. The preferable course is therefore to permit ASMOF to reopen its evidentiary case, with the questions concerning whether and to what extent the Further Evidence may properly be relied upon, and the weight, if any, to be given to it, to be determined together with the parties' competing submissions on those matters.
I emphasise that this conclusion determines only whether ASMOF may reopen its evidentiary case to tender the Further Evidence. It does not determine whether the HSA Letter is a without prejudice communication or whether, having regard to s 163 of the IR Act, the Further Evidence may properly be relied upon or given weight by the Commission. Nor does it determine the significance of the HSA Letter, any factual issue said to arise from it or any of the substantive jurisdictional issues presently reserved for determination.