de Beer v HealthShare NSW [2025] NSWIC 25

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Day v Lumley Life Ltd (1999) 90 IR 70

Dey v Victorian Railways (1949) 78 CLR 62; [1949] HCA 1

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

King v State Bank of New South Wales [2000] NSWIRComm 229

State of NSW v Banas [2004] NSWIRComm 255

Sydney Water Corporation Ltd v Industrial Relations Commission of NSW (2004) 61 NSWLR 661; [2004] NSWCA 436

Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), I prohibit the disclosure of the content of the applicants' medical records as required for the conduct of these proceedings. I also prohibit the disclosure of the applicant's residential address.

1. This decision determines a Motion filed by HealthShare NSW (HealthShare) seeking to have struck out for want of proper pleading a claim filed by Ms Romana de Beer under s 106 of the Industrial Relations Act 1996 (NSW) (IR Act) that the contract by which she was appointed as the Operations Manager at Royal North Shore Hospital was unfair. If the claim is not struck out in its entirety, HealthShare seeks orders that those parts of the claim be struck out which seek to have the contract declared void in whole or in part, and which seek compensation for future losses and that the balance of Ms de Beer's claim be stayed until properly pleaded. Finally, HealthShare seeks its costs of the Motion.

1. Ms de Beer commenced employment with HealthShare in 2014. She resigned from her employment on 24 May 2024. During the approximately 10 years that she was employed by HealthShare, she performed various roles, including Booking Hub Manager, Patient Transport Service, Operations Manager, Royal North Shore Hospital and Project Manager, Capital Assets and Service Planning. It is the contract in respect of her position as Operations Manager, Royal North Shore Hospital, into which she entered on 12 March 2021, which she contends is unfair.
2. On 10 April 2025, Ms de Beer filed an application pursuant to s 106 of the IR Act (First Application). On 23 April 2025, the Court attempted to conciliate the First Application, but the matter was unable to be resolved.
3. On 13 May 2025, HealthShare NSW filed a Notice of Motion and supporting affidavit seeking an order that the application be struck out. On 20 May 2025, Ms de Beer filed an affidavit in response to the Motion.
4. At a directions hearing on 26 May 2025, Ms de Beer stated that she wished to "amend and clarify" her application. The Court ordered that Ms de Beer file and serve an amended application and any further evidence to be relied upon regarding HealthShare's Motion by 4pm on 10 June 2025. On 10 June 2025, Ms de Beer filed an amended application, affidavit and an appendix to those documents (Second Application).
5. On 23 June 2025, HealthShare sent a letter to Ms de Beer requesting further and better particulars of the Second Application. On 8 July 2025 Ms de Beer told the Court that the Second Application was "an extension of the initial application, with more specific particulars that align to s 106" but needed to be read with the First Application. The Court ordered Ms de Beer to file a further amended application which set out the entirety of her claim. Ms de Beer did so, together with a further affidavit on 15 July 2025 (Third Application).
6. On 31 July 2025, HealthShare sent a letter to Ms de Beer requesting further and better particulars of the Third Application, to which Ms de Beer responded on 8 August 2025. HealthShare sent a further request on 15 August 2025 to which Ms de Beer responded on 18 August 2025.
7. At the directions hearing on 19 August 2025, Ms de Beer stated that the particulars sought arose from a misinterpretation of her application and that, in an attempt to address that issue, she sought leave to file a second further amended application (Final Application). The Court confirmed that the entirety of Ms de Beer's claim was contained in that document.

1. The Final Application was filed in Court on 19 August 2025. In it, Ms de Beer seeks the following orders:

"Order 1: An order declaring wholly, or partly void, or varying the contract signed 13 March 2021, at the time it was entered, or some other time, in the finding it is unfair as defined by the Act for one or more of the following reasons:

(a) Absence of a clause providing a structured pathway for resolution of disputes related to contractual matters

(b) Absence of a clause preventing unilateral movement from contracted role

(c) Vagueness of the existing 'Duties' clause allowing unilateral movement from contracted role

(d) Absence of reciprocal obligations for employer compliance under the existing 'Compliance with NSW Policy Directives' clause

Order 2: An order for the payment of money from the respondent to the applicant in accordance with Section 106(5) as the Court considers just in the circumstances of the case.

Order 3: An order that each party bear its own costs.

Order 4: An order to restrict and/or prohibit information provided as part of these proceedings, inclusive of information that may lead to identification, and/or release/publication of sensitive and confidential information, as per Section 164A.

Order 5: Any other order that the Court considers just and appropriate in the circumstances of this matter."

1. The Final Application does not provide details of those parts of Ms de Beer's contract which she contends should be declared void if it is not declared void as a whole, the point in time she says the contract ought to be declared void in part or whole, the precise terms of the variations sought to her contract, what compensation she seeks nor how the compensation she seeks arises from declaring void in part or in whole the contract or as a result of claimed amendments.

1. An applicant is required to plead a case with sufficient particularity for the opposing party to understand and address the issues raised (including by making a decision not to resist the claim, if warranted) and the matters which the Court must determine to be clearly defined: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664; Banque Commerciale SA (en liquidation) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 at 286-7. Such important principles, which underpin procedural fairness, apply equally to a matter such as this which is commenced by Summons.

1. Noting the power of the Court under s 162(2)(h) of the IR Act to strike out at any stage proceedings that it considers frivolous or vexatious, together with the power of summary dismissal in r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), HealthShare contended that the Final Application should be struck out because it fails to specify those parts of the 12 March 2021 contract that should be declared void, if not declared void as a whole, or alternatively, the terms of the variation sought to the contract. HealthShare further relied on the absence in the claim of any basis for the order seeking the payment of money together with any particularity as to quantum, instead stating only that Ms de Beer seeks compensation for past and future economic loss.
2. HealthShare pointed to the terms of s 106(5) of the IR Act, which confines any order for the payment of money to the consequence of the changes made to any employment contract. HealthShare contended that the claims for damages set out in the Final Application and Ms de Beer's claims for future economic loss extend well beyond the limitation set out in Brown v Rezitis (1970) 127 CLR 157; [1970] HCA 56 per Barwick CJ at 165 and 170 (Brown).
3. HealthShare submitted that the proceedings should be struck out as frivolous or vexatious, disclosing no reasonable cause of action or an abuse of process of the Court. HealthShare accepted that the power to summarily dismiss a matter is one that should be sparingly employed. However, relying on General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 per Barwick CJ at 128-130 (General Steel), HealthShare submitted that this was an appropriate case for such an order, in that Ms de Beer's claim was "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument" or "discloses a case which the Court is satisfied cannot succeed". HealthShare submitted that to allow the claim to proceed would involve "useless expense".

1. Ms de Beer's response to the Motion was to submit that it was for the Court to determine the extent of any unfairness to her, for the reasons set out in her claim, and it was only once the extent of that unfairness had been ascertained that it could be determined whether the contract should be declared void in whole or in part, or whether it should instead be varied. Ms de Beer contended that by stipulating a proposed variation to the contract, she would be "favouring this as the remedy", and doing so was said to "undermine the Court's powers in making that declaration in the circumstances of my case".
2. In particular, Ms de Beer submitted that:

"Procedural requirements for applications under Section 106 do not state that a choice to void or vary must be definitively selected, and if not done, renders an application procedurally defective.

Furthermore, it does not state that for matters to be heard by the Court, the applicant is required to draft contractual terms as part of filing their application.

... I seek the Commission's finding of an unfair contract and the declaration to void or vary, as appropriate in the circumstances to cure the unfairness in line with the provisions and process of the Act."

1. Ms de Beer pointed to the ways in which her claim was said to meet the requirements of s 106 of the IR Act and r 7D.3 of the Industrial Relations Commission Rules 2022 (NSW).
2. In oral submissions, Ms de Beer stated that she had followed the rules available to her and with the benefit of her research as to how an application should be set out. In respect of her claim for the payment of money, she stated that the events which occurred as a consequence of the alleged unfairness of her contract "ruptured" her longstanding professional reputation, her job security, her long-term career objectives, her future earning potential and her ability to remain in the same environment or return to something similar. Ms de Beer also stated that HealthShare's request for calculations for pre-termination economic loss did not explain what that term meant, why it was required or how it formed part of the order sought.

1. The claim as pleaded is deficient. In order for the respondent to answer the claim and for the Court to determine it, Ms de Beer needs to provide details of those parts of her contract which she contends should be declared void if it is not declared void as a whole, the point in time she says the contract ought to be declared void in part or whole, the precise terms of the variations sought to her contract, what compensation she seeks and how the compensation she seeks arises from declaring the contract void in part or in whole or as a result of claimed amendments.
2. It is not sufficient to plead general unfairness and ask the Court to craft an appropriate remedy. The Court cannot proceed to deal with Ms de Beer's claim in its present form.
3. Unlike many types of applications that the Commission (when not in Court Session) has jurisdiction to deal with, such as unfair dismissal applications, a section 106 claim is not commenced by a simple form. Pleading such a claim is legally complex, which is why it is rare that such cases are brought by self-represented litigants.

1. The First Application filed by Ms de Beer sought a declaration that the operation of her employment contract was unfair and compensation for continuing loss of earnings, career progression, reputational damage and non-economic harm (in particular, psychological injury). In the Final Application, Ms de Beer has articulated the ways in which she contends that her contract was unfair and the manner in which it operated which is said to demonstrate that unfairness. Prior to the hearing of this matter, Ms de Beer did not understand the requirement to provide specifics of the clauses of her contract of employment that she sought to have declared void (if not the whole of it) or the variations that she sought to that contract. Similarly, Ms de Beer did not understand the need to set out the nature of the compensation sought and the manner of its calculation.
2. HealthShare sought to obtain that information from Ms de Beer in a request for particulars dated 1 September 2025. It did so having previously sought and failed to obtain that information in requests made for particulars of previous iterations of Ms de Beer's application, referred to above. The instant request for particulars extended to 38 questions. Many of those requests for particulars, (questions 11-38) sought additional detail of the factual matters which Ms de Beer asserted demonstrated the unfairness of her contract. Questions 1-10 directly addressed the orders sought in paragraphs 4 and 5 of Ms de Beer's claim. Those requests were as follows:

"1. In respect to paragraph 4(a) please set out how it is asserted in the context of your contract that this contract is unfair by the absence of a clause contemplated by this subparagraph?

2. Please provide us with a copy of the proposed clause you seek the Commission to vary your Contract to include in light of your claim in 4(a)?

3. In respect to paragraph 4(b) please set out how it is asserted in the context of your contract that this contract is unfair by the absence of a clause contemplated by this subparagraph?

4. Please provide us with a copy of the proposed clause you seek the Commission to vary your Contract to include in light of your claim in 4(b)?

5. In respect of paragraph 4(c) please set out how it is asserted in the context of your contract that this contract is unfair by the absence of a clause contemplated by this subparagraph?

6. Please provide us with a copy of the proposed clause you seek the Commission to vary your Contract to include in light of your claim in 4(c)?

7. In respect of paragraph 4(d) please set out how it is asserted in the context of your contract that this contract is unfair by the absence of a clause contemplated by this subparagraph?

8. Please provide us with a copy of the proposed clause you seek the Commission to vary your Contract to include in light of your claim in 4(d)?

9. In respect to paragraph 5,

(a) what compensation is sought;

(b) Please specify how such compensation is calculated; and

(c) Please specify how such compensation is warranted to the order sought at paragraph 4?

10. If compensation is sought for periods that post date the termination of the contract please specify how the Commission can make such orders given your claim in paragraph 4?"

1. Ms de Beer's 30 September 2025 response to those ten questions extended over more than three pages of her 16-page response. By way of example, Ms de Beer's response to question two above was as follows:

"I note this question asks me to provide a 'proposed clause' to vary my contract. Respectfully, this request does not seek particulars in relation to paragraph 4(a). My application does not seek to propose new contract clauses but to show that the absence of protections resulted in my contract being unfair. Variation of my contract is not the only remedy available and it is for the Commission in exercising its powers, to declare my contract void, varied, and set aside partly or wholly, where it is found to be an unfair contract.

My contract is unfair due to the absence of a clause providing a pathway for resolution of disputes of contractual matters (see paragraphs 11, 14, 15 & 16). This absence enabled my employer to unilaterally move me from my contracted role at their discretion and foundationally altering the terms of my employment and changed my work location. In addition, this absence did not provide me with safeguards (see paragraphs 12, 13 and 15). This then resulted in a cumulative sequence of events that flowed from the unfairness of my contract."

1. Ms de Beer's response to question three above was as follows:

"In paragraph 4(b) my contract is unfair because it allowed unilateral movement from my contracted role. In September 2022, I was moved at the discretion of my employer to an undefined and unfunded role/capacity (see paragraph 14,20) in the CASP department, which had fundamentally different functions and changed my work location. This occurred without consultation, documentation or explicit agreement (see paragraph 21) and additionally changed my work location. I was retained in this capacity for almost 2 years until April 2024 role (see paragraph 22) when I was directed to return to my contracted role (see paragraph 39). This absence resulted in a cumulative sequence of events that flowed from the unfairness of my contract."

1. In relation to her claim for the payment of money, Ms de Beer stated that she was seeking payment of past lost earnings, being the salary that she was receiving under her contract at the time that the employment relationship ended, and payment of past loss of entitlements, including superannuation and leave entitlements, by applying the applicable superannuation rate and the leave that would have accrued on those earnings. Ms de Beer further stated that she sought the payment of future loss of earnings in the form of the income that she could have expected to earn and the career progression that she could reasonably have expected if the contract had not been unfair. Similarly, she sought payment of future loss of entitlements including superannuation and leave entitlements, applying the applicable superannuation rate and leave accruals to those projected earnings.
2. Ms de Beer asserted that those payments were warranted because her contract was unfair, and that unfairness created a cumulative sequence of events and adverse conditions which, if the contract had not been unfair, would have been prevented. Ms de Beer stated that those cumulative events made it impossible for her to reasonably continue in her employment, in which she had intended to engage until retirement. Ms de Beer sought for the Court to make orders for the payment of money that it considered appropriate to restore her to the position that she would have been in if the contract had not been unfair.
3. Ms de Beer's response to the question seeking the basis for compensation for periods which post-dated the termination of her contract was:

"Respectfully, this request does not seek particulars in relation to paragraph 4. I am not in a position to speak on behalf of the Commission or pre-empt how it will exercise its powers."

1. Ms de Beer then reiterated that she sought an order under s 106(5) of the IR Act and that it was the unfairness of her contract which led to the sequence of events from April 2022 to April 2024, which was the basis of her order for payment.
2. Ms de Beer's written submissions on the Motion refer to her having received "letters seeking particulars 'in order to strike out'" her claim and her good faith in nonetheless responding, making clear that she interpreted the request for particulars as an attempt by HealthShare to bolster its position. That, together with the misunderstanding to which I have already referred, goes a large way to explaining her responses which resisted providing to HealthShare the information sought.

1. The unfairness asserted by Ms de Beer regarding her employment contract arises from the absence of clauses dealing with certain subject matter, together with "the vagueness of the existing 'Duties' clause". She has not, however, identified the precise content of such clauses, nor (if this is her claim) how the Duties clause ought to be varied and from when.
2. It may be difficult for Ms de Beer to establish that the absence of a clause preventing her unilateral movement from her contracted role is unfair in light of s 46 of the Government Sector Employment Act 2013 (NSW), which provides:

46 Assignment to roles in work classifications

(1) In this section -

assign to a role includes assign to a different role.

(2) The head of a Public Service agency may from time to time assign Public Service non-executive employees of the agency to roles in the agency in the classification of work in which the employees are employed.

(3) Public Service non-executive employees may be assigned to roles to enable the flexible deployment of staff resources within the agency and to develop the capabilities of staff.

(4) A Public Service non-executive employee is not to be assigned to a different role unless the employee has been consulted. The remuneration payable to the employee is not to be reduced because of the assignment to the different role without the consent of the employee.

1. Although s 106(2) of the IR Act allows the Court to examine how a contract has worked out in practice through the conduct of the parties, it is still necessary for the Court to find unfairness in the contract itself: Sydney Water Corporation Ltd v Industrial Relations Commission of NSW (2004) 61 NSWLR 661; [2004] NSWCA 436 per Mason P at [25]. That is why an applicant must specify in the application how the contract is unfair and how that unfairness ought to be rectified.
2. While the application is fundamentally deficient in the manner identified, I am not prepared to strike the matter out.
3. The operation of s 106 has historically been very broad. For example, it has been held to apply in relation to the making by an employer of representations to an employee about how he or she will be treated in the course of the employment to which the employer fails to give effect: Day v Lumley Life Ltd (1999) 90 IR 70 per Hungerford J.
4. Further, s 106 has been held as being able to sustain a claim dealing with suffering on the part of the applicant, including hurt, stress and humiliation connected with the actions of a party to a contract: King v State Bank of New South Wales [2000] NSWIRComm 229. Indeed, the Court has awarded compensation for psychological injury as a result of treatment at work which the respondent had contended was "a workers' compensation claim dressed up as a contracts case under s 106 of the [IR] Act": Banas v State of New South Wales [2003] NSWIRComm 317 per Haylen J at [318]. In affirming that aspect of the decision on appeal, the Full Court of the Industrial Court held as follows in State of NSW v Banas [2004] NSWIRComm 255 at [85]:

"On the evidence, we consider it was open to Haylen J to conclude that the contract became unfair because of the conduct of the appellant; the respondent suffered a loss of income for a considerable period of time and stress and suffering because of an illness brought about by the appellant's conduct. This unfairness led his Honour to declare the respondent's contract partly void and in connection with that partial avoidance of the contract his Honour made two money orders under s 106(5) of the Act. There was no error in his Honour's reasoning, his finding as to the facts and his application of the law to the facts."

1. The form of relief sought by the applicant in that matter as a consequence of the alleged unfair contract, which was much wider than the limitations set in Brown, was as follows:

"(a) the equivalent of the applicant's salary for the period from 4 November 1998 to 1 November 1999;

(b) in the alternative to (a) an amount of money the Commission considers just in all the circumstances of the case;

(c) an amount of $40,000 to compensate for the depressive illness suffered by the applicant;

(d) in the alternative to (c), an amount of money the Commission considers just and reasonable to compensate for the depressive illness suffered by him;

(e) ...

(f) an order that the respondent pay to the applicant compensation for the economic loss incurred by him as a result of his diminished earning capacity, calculated as equivalent of five years worth of loss of earnings due to this current employment attracting less remuneration;

(g) in the alternative to (d) ... an order for an amount of money the Commission considers appropriate."

1. The Court at first instance was not prepared, in all of the circumstances of that case, to make orders for payment in compensation of economic loss. The award in fact made to the applicant included a payment for stress and suffering arising in the course of the applicant's employment. The appeal was dismissed.
2. As HealthShare has acknowledged, courts are very reluctant to summarily dismiss matters. In General Steel, after noting the various forms in which the test has been expressed (including those at [14] above), Barwick CJ, citing Dey v Victorian Railways (1949) 78 CLR 62; [1949] HCA 1 at 91, held at 129 that "[a] case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court ..."
3. Ms de Beer points to specific events which occurred and which she contends were able to occur because of the unfair manner in which her contract operated due to its form. Given that, I cannot discount that Ms de Beer may be able to plead a case which discloses a reasonable cause of action. I cannot find that it is "manifestly groundless". For similar reasons, I cannot find that Ms de Beer's claim is frivolous or vexatious or an abuse of process of the Court.
4. However, Ms de Beer's claim is unable to proceed in the form presently pleaded for the reasons set out above. It ought to be stayed until that position is rectified.
5. A consolidated list of the matters which Ms de Beer will need to plead are contained at Schedule A to this decision.
6. Because HealthShare has been successful in part on the Motion, and in circumstances where Ms de Beer has already filed four applications, I award HealthShare the costs of this Motion including the costs incurred in respect of its request for particulars dated 1 September 2025. Such costs are not payable until the conclusion of the substantive proceedings.
7. An order made pursuant to s 164A of the IR Act on 19 August 2025 prohibits the disclosure of the applicants' medical records and her residential address. No further order is required.

(1) Ms de Beer's application is stayed until Ms de Beer files an amended claim which addresses the matters in Schedule A to this decision.

(2) Ms de Beer is to pay HealthShare NSW's costs of the Motion, including the costs incurred in respect of its request for particulars dated 1 September 2025.

(3) The costs awarded in Order 2 are not payable until the conclusion of the substantive proceedings.

1. If the claim seeks that the contract as a whole is declared void - the point from which it is declared void.
2. If the claim seeks that only parts of the contract are declared void - the parts that are declared void and the point(s) from which they are declared void.
3. If the claim seeks that the contract is to be varied, how is it to be varied, setting out the text of the proposed changes and the point from which the contract is to be varied.
4. If one or more of the above are sought, which is the primary claim and which orders are sought in the alternative to the primary claim.
5. In relation to the claim for the payment of money in connection with the contract:

(1) what compensation is sought; and

(2) how such compensation is calculated by reference to the terms of the contract as declared void or varied, including the basis for any payment of compensation sought in relation to periods which post-date the termination of the contract.