Hamza Abaid v Health Secretary in respect of Northern Sydney Local Health District [2026] NSWIRComm 1029

1. On 17 March 2026, the Applicant filed an application seeking leave to amend his application for relief from victimisation. A proposed amended application was attached to that application.
2. The application to amend included 35 additional detriments. Of the proposed additional detriments, the Applicant submitted that two matters identified as (ae) and (af), are alleged to have occurred after the filing of the original application. At least 12 of the proposed detriments expressly identify conduct said to have occurred after 20 October 2025, namely (n), (p), (q), (u), (v), (w), (x), (y), (z), (ab), (ae) and (af).
3. The proposed application also introduced an expanded chronology. That chronology includes events occurring both before and after the filing of the original application and is relied upon by the Applicant in support of the proposed additional claims.
4. On the same date, the Applicant filed a corrigendum correcting minor clerical matters in the amended application.

1. The Respondent does not oppose, and leave is granted by consent in respect of, the following amendments:

(1) (n) and (p) - additional factual particulars concerning alleged post‑filing conduct;

(2) (o) -clarifying particulars associated with earlier pleaded detriment;

(3) (u) -inclusion of a further alleged act of detriment occurring after the original application;

(4) (ae) -pleading of post‑application conduct said to form part of an alleged course of conduct;

(5) (af)- reframing of relief sought consequent upon later‑occurring events; and

(6) (ag)- consequential or drafting amendments arising from the above.

1. The Applicant seeks interim orders that the Respondent:

(1) maintain his employment on the same terms and conditions pending final determination of the proceedings; and

(2) not permit his fixed‑term contract to lapse on 8 April 2026.

1. The interim employment orders sought are expressed in the following terms:

"(a) that the Respondent maintain the Applicant's employment as a Security Officer at Hornsby Ku‑ring‑gai Hospital on the same terms and conditions as his current contract, including classification, hours, roster, access to training, and system access, pending the Commission's final decision in these proceedings; and

(b) that the Respondent does not allow the Applicant's contract of employment to lapse, expire, or otherwise terminate on 8 April 2026, or at any time before the Commission delivers its decision."

1. In substance, the Applicant seeks an order requiring the Respondent to extend his fixed‑term contract, or otherwise prevent its expiry, until the Commission has determined the substantive victimisation application.
2. As noted above, the parties agreed to extend the Applicant's contract of employment to 15 April 2026. That agreement was procedural only and does not bear upon the determination of whether the statutory requirements for interlocutory relief are satisfied or the balance of convenience.

1. The Applicant also seeks orders requiring the Respondent to preserve specified categories of documents and electronic records, including Microsoft Teams recordings, and seeks associated orders for production and witness attendance. The Applicant sought preservation orders seeking that the Respondent not destroy any potential evidence in the following terms:

"(a) A preservation order directing the Respondent to immediately preserve all Microsoft Teams recordings and transcripts of Security Department meetings from August to December 2025, and to not delete, modify, or restrict access to any such recordings.

(b) A production order directing the Respondent to produce those recordings and transcripts, together with the Health Roster data, Overtime Tracker, Drinan review, full misconduct investigation file, and GVMI training records, on the earliest practicable date.

(c) Orders under sections 163 and 164 of the Industrial Relations Act 1996 compelling the attendance of the six witnesses identified in the Applicant's letter of 10 March 2026."

1. In determining the interlocutory applications, I have had regard to the written submissions and evidentiary material filed by the parties.
2. The Applicant relied on written submissions filed on 24 March 2026, reply submissions filed on 30 March 2026, and two sworn affidavits filed on 24 March 2026 and 30 March 2026 respectively.
3. The Respondent relied on written submissions filed on 27 March 2026, supported by witness statements of Mr Rizwan Rahiman dated 27 March 2026, Ms Elyse Galvin, solicitor, dated 27 March 2026, and a further statement of Mr Rahiman dated 31 March 2026.

1. In relation to the application to amend, the Applicant submits that the proposed amendments are necessary to permit the proper determination of the victimisation allegations as pleaded. He contends that a number of the proposed matters concern conduct said to have occurred after the filing of the original application or matters the relevance or significance of which could not reasonably have been appreciated at that time, and that leave should therefore be granted notwithstanding the timing of the application to amend.
2. The Applicant's submissions place particular emphasis on the relevance of post‑filing conduct. He contends that later events inform an understanding of the Respondent's reasons for earlier conduct and are capable of consideration in assessing whether the conduct relied upon was retaliatory. His submissions traverse a broad range of factual matters in support of that contention.
3. In support of interim relief, the Applicant submits, relying on his affidavit evidence and oral submissions, that unless the status quo is preserved the Respondent may, in practical effect, achieve the outcome alleged to constitute victimisation through the non‑renewal or expiry of his fixed‑term contract. He contends that cessation of his employment would result in the immediate loss of income and that, given his limited savings and the fact that his wife is not presently in paid employment, he would be at risk of losing his housing. He further submits that loss of employment would materially affect his capacity to continue both his visa application and these proceedings. On that basis, the Applicant contends that refusal of interim relief would occasion irreparable harm and undermine the utility of the substantive proceedings, and that the balance of convenience favours the continuation of his employment pending final determination.
4. In further support of his application for interim relief, the Applicant relies on evidence concerning his visa status. He states that he holds a Bridging Visa C associated with a protection visa application, that his capacity to meet visa‑related and living obligations depends upon maintaining an income, and that loss of employment would adversely affect his ability to support himself and to pursue available immigration pathways. He submits that harm of that nature would not be adequately remediable by monetary compensation.
5. With respect to preservation orders, the Applicant expresses concern that relevant documents and electronic records, including recordings, may be deleted or become unavailable in the absence of formal orders. He therefore seeks orders for the preservation of documents and records and contends that such orders are necessary to ensure the effective conduct of the proceedings.

1. The Respondent opposes the interlocutory relief sought by the Applicant.
2. In relation to the application to amend, the Respondent submits that leave should be granted only in limited respects. It does not oppose amendments that reflect allegations raised in the Applicant's submissions of 22 January 2026, fall within applicable time limits, or clarify existing pleaded allegations.
3. On that basis, the Respondent consents to proposed amendments (n), (o), (p), (u), (ae), (af) and (ag). The Respondent opposes the balance of the proposed amendments on the grounds that they are out of time, insufficiently particularised, or raise allegations that could reasonably have been pleaded earlier, giving rise to prejudice.
4. The Respondent submits that the scope of permissible amendment is confined by the principles identified in Grant v Commissioner of Police [2025] NSWIRComm 1000 ("Grant") and Kinninmont v Chief Commissioner of Police [2003] NSWIRComm 264 ("Kinninmont"), and that the inclusion of alleged ongoing conduct does not, of itself, justify amendment to include out‑of‑time allegations.
5. In relation to interim relief, the Respondent submits that the Applicant has not established a prima facie case or a balance of convenience warranting an order preserving his employment beyond the term of his fixed‑term contract. It contends that the Applicant was engaged on a temporary basis only, that the contract had already been extended, and that any harm alleged can be addressed, if necessary, through final relief. The Respondent further submits that an order restraining the expiry of the contract would amount to mandatory interlocutory relief with the practical effect of extending or renewing employment. It also submits, by reference to the Recruitment and Selection of Staff to the NSW Health Service Policy Directive (PD2023_024), that permanent employment could not be offered to the Applicant due to his visa status.

1. These applications are interlocutory in nature. At this stage, the Commission is not required to determine the ultimate merits of the proceedings, make findings on contested factual matters, or assess the credibility of witnesses.
2. In determining whether interlocutory relief should be granted, I have had regard to the general principles identified in Lane v Commonwealth Bank of Australia [1999] NSWIRComm 336 ("Lane"). As that decision makes clear, the grant of interlocutory relief remains discretionary and requires careful consideration of the balance of convenience and the nature of the relief sought. Lane does not support the granting of interlocutory relief which, in substance, anticipates final relief by continuing or extending an employment relationship in advance of final determination.

1. The Applicant seeks interlocutory relief requiring the continuation of his fixed-term employment pending final determination of the proceedings. In determining that application, it is necessary to consider whether the Applicant has established a prima facie case and whether the balance of convenience favours the making of the orders sought.

1. At the interlocutory stage, the question is whether the Applicant has raised a serious question to be tried. It is not necessary at this stage for the Applicant to establish a present entitlement to final relief.
2. The Applicant also relied on Gopinath v Health Secretary in respect of Northern Sydney Local Health District [2025] NSWIRComm 1113 ("Gopinath"). I accept that Gopinath confirms the breadth of the Commission's remedial powers under s 213 of the IR Act at final determination. However, the existence of those powers does not determine whether interlocutory relief should be granted. The availability or scope of any final relief remains a matter for determination at the conclusion of the proceedings and does not, of itself, justify interim relief altering the parties' contractual position.
3. The material before the Commission indicates that the proceedings arise from the non‑renewal, subsequent extension, and management of the Applicant's fixed‑term employment. The initial decision not to extend the contract beyond October 2025 was later reversed, and a further six‑month extension was granted.
4. The Applicant does not contend that he held an existing entitlement to ongoing employment. Rather, as I understand his case, the conduct relied upon as detriment, including the conduct of a misconduct investigation, is said to have been undertaken for prohibited reasons contrary to s 210 of the IR Act.
5. While the fixed‑term nature of the employment and the absence of any pleaded right to continuing employment are relevant considerations, they do not resolve the question of whether a prima facie case has been established. The interlocutory threshold is not a high one.
6. I have reservations as to whether the material presently relied upon by the Applicant rises to the level ordinarily required to establish such a case. Many of the assertions as to improper motive are expressed at a high level and are not supported at this stage by detailed evidence.
7. Nevertheless, the misconduct investigation itself is relied upon as a detriment, and the Applicant disputes the conduct alleged against him. The determination of those matters turns on contested facts and the assessment of decision‑maker evidence, none of which can be undertaken at an interlocutory stage. In that limited sense, and no more, I am satisfied that the Applicant has established a prima facie case.

1. The establishment of a prima facie case does not, of itself, determine whether interlocutory relief should be granted. The orders sought would go beyond the preservation of the status quo and would, in practical terms, require the extension or renewal of a fixed‑term employment relationship.
2. Interlocutory relief of that character is not appropriately described as preservative. An order extending the Applicant's employment would, in substance, confer the very outcome in dispute before the Commission has determined the contested issues. Courts have repeatedly emphasised that interlocutory orders should not anticipate or effectively determine the substantive outcome of proceedings or place an applicant in a better position than would be available at final determination: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Relief of this kind is granted only with considerable caution, particularly in an employment context: see Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533.
3. Turning to the balance of convenience, the Applicant relied on bank balance documentation for himself and his wife, payslips, and material evidencing rental payments and income. That material indicates limited savings but does not, of itself, establish that the consequences relied upon by the Applicant rise to the level of irreparable harm.
4. Any prejudice suffered by the Applicant arising from the expiry of the fixed‑term contract is, in principle, capable of being addressed by the remedies available at final determination should a contravention be established. By contrast, the relief sought would operate as mandatory interlocutory relief, altering contractual arrangements in advance of the substantive determination of the proceedings.
5. The Applicant also relies on evidence concerning his visa status and the consequences he apprehends may follow from the loss of employment. I accept that the Applicant's circumstances give rise to practical and financial concerns in the event that his employment comes to an end. However, the evidence does not establish that the Applicant's visa status is legally contingent upon employment with the Respondent, and it was accepted in cross‑examination that the Applicant has worked for multiple employers while holding a Bridging Visa C. The potential consequences identified by the Applicant arise from the loss of income rather than from any legal requirement linking that visa to employment with the Respondent.
6. I am not satisfied that refusal of interim relief would cause irreparable prejudice to the Applicant. I acknowledge the Applicant's claim that the loss of his employment would place him at risk of losing his housing and would affect his capacity to continue both his visa application and the proceedings before the Commission. I also acknowledge that, in the substantive proceedings, the Applicant contends that his employment should not have been limited to successive fixed‑term engagements and that he could have been employed on a permanent basis or for longer periods than six months at a time. However, for the purposes of this interlocutory application, the employment relationship between the parties was governed by a fixed‑term contract of six months, following an earlier six‑month term, with an end date of 8 April. While I do not minimise the impact of the cessation of employment on the Applicant, those consequences do not rise to the level of irreparable prejudice that would warrant the grant of interlocutory relief at this stage.
7. The Applicant placed reliance on Westaway v Health Secretary in respect of Northern Sydney Local Health District [2024] NSWIRComm 1021, emphasising that the Respondent is the same Local Health District and that at least one of the individuals involved also feature in the present proceedings. However, Westaway did not concern an application to extend or continue a fixed‑term contract that would otherwise expire by effluxion of time. The interlocutory relief sought in that case was restraining in nature and did not require the continuation of an employment relationship. By contrast, the present application seeks mandatory interlocutory relief that would alter the parties' contractual position in advance of final determination. For that reason, Westaway does not materially assist the Applicant.
8. In the circumstances of the case and having considered the evidence and submissions as a whole, I am not satisfied that the balance of convenience favours the Applicant to the extent necessary to justify the making of an interlocutory order. While the Applicant's personal and practical circumstances have been taken into account, they do not outweigh the fact that the relief sought is mandatory in nature and would place the Applicant in a position that may exceed the relief available at final determination. The application for interim relief is therefore refused.

1. I have considered the authorities relied upon in support of the application for leave to amend. To the extent those authorities bear upon the principles governing amendment under s 213 of the IR Act, they are addressed below.
2. For the purposes of determining the application to amend, I have had regard to the statutory time limit in s 213(3) of the IR Act which requires an application to be made within 21 days of the contravention concerned. As explained in Grant and Kinninmont, that time limit applies by reference to each alleged detriment and confines the circumstances in which out‑of‑time allegations may properly be introduced by amendment.
3. In Grant, applying the principles identified in Kinninmont, the Commission confirmed that alleged ongoing detrimental conduct is not, of itself, sufficient to justify amendment to include out‑of‑time allegations. Amendment is permitted only where the applicant became aware of the conduct after proceedings commenced and could not reasonably have pleaded it earlier. Those principles reflect the need to balance procedural fairness to the applicant with the respondent's entitlement to know the case it must meet.
4. There is, however, a confined category of amendment that may properly be permitted beyond those allowed by consent. That category is limited to amendments that plead discrete post‑filing acts relied upon as detriments, the existence or significance of which could not reasonably have been known at the time the original application was filed, and which are sufficiently connected to the matters there pleaded.
5. When applied to the present case, that category is confined to proposed amendments (v), (w), (x), (y) and (z), each of which pleads specific post‑filing communications, managerial actions or directions said to have occurred following the commencement of the proceedings.
6. The proposed amendments alleging broader systemic practices, cumulative effects, or evaluative assertions concerning procedural fairness or the overall conduct of the investigation do not satisfy those criteria.
7. Leave to amend is therefore granted in respect of proposed amendments (v), (w), (x), (y) and (z), in addition to those amendments allowed by consent. Leave to amend is otherwise refused.

1. The Applicant also sought preservation orders in relation to documents and electronic records, including recordings.
2. The material before the Commission indicates that relevant recordings have been retained, subject to further enquiries in respect of one recording, and that any issues concerning production can be addressed through the ordinary mechanisms of notice or summons to produce once the pleadings are settled.
3. In those circumstances, and given the limited submissions directed to this issue, preservation orders are not necessary or appropriate at this stage.

(1) Leave to amend the application is granted in respect of proposed amendments (v), (w), (x), (y) and (z), in addition to those amendments allowed by consent.

(3) The application for interim continuation or extension of the Applicant's employment is refused.

(4) The applications for preservation, production and witness‑attendance orders are refused.