Morcos v Bayside Council [2026] NSWIRComm 1007

(i) make a determination pursuant to section 73(1)(a) of the Civil Procedure Act 2005 (NSW) (CP Act) that a settlement was reached between the parties, resolving the victimisation claim, and

(ii) an order pursuant to section 73(1)(b) of the CP Act, to dismiss or stay the proceedings based on the determination at Order (3)(i).

(4) [make] any other order considered by the Commission to be appropriate."

1. For the reasons set out below, I have determined, pursuant to s 73(1)(a) of the Civil Procedure Act 2005 (NSW) (CP Act), that a settlement was reached resolving the Victimisation Application. Pursuant to s 73(1)(b) and s 67 of the CP Act_,_ I consider it appropriate that I order that the Victimisation Application be permanently stayed.

The legislative provisions and applicable legal principles

1. The Motion relies alternately on two sources of power for the Commission to stay an application in matters where the parties have settled.
2. Section 174 of the IR Act provides:

174 Powers when application settled by conciliation

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.

1. Section 73 of the CP Act which applies to proceedings before the Commission (CP Act_,_ s 4 and Sch 1) provides:

73 Power of court to determine questions about compromises and settlements

(1) In any proceedings, the court -

(a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and

(b) may make such orders as it considers appropriate to give effect to any such determination.

(2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.

1. Section 174 of the IR Act gives the Commission power to do certain things if the relevant application "is settled by conciliation". Section 73 of the CP Act, however, has no such condition. Neither party was able to assist me with authorities dealing with the meaning of "is settled by conciliation" as used in s 174 and, at the hearing of the Motion, the Council withdrew its application in respect of s 174 of the IR Act, and limited the Motion to s 73 of the CP Act.
2. Consequently, the Commission must determine whether Ms Morcos and the Council had reached a concluded bargain such that the Commission should make orders pursuant to s 73 of the CP Act. That involves ascertaining, objectively, whether the parties intended to form a legally binding agreement by their communications.
3. As Commissioner McDonald stated in Mallegowda v Hawkesbury City Council [2024] NSWIRComm 1048 ("Mallegowda"):

"37 The initial focus of the inquiry will be the terms of the communications said to constitute the agreement, however regard may be had to the parties' communications and other conduct before and after the formation of an allegedly binding agreement in order to determine, objectively, whether they intended to form such an agreement: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 547 - 548, (Gleeson CJ, with whom Hope and Mahoney JJA agreed); Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 at [14,562] (Kirby P); Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 at [15] (Bathurst CJ)."

1. In Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360, Dixon CJ, McTiernan and Kitto JJ identified three categories of case which may exist where parties, which have been in negotiation, reach agreement upon terms of a contractual nature and agree that the matter of their negotiation will be dealt with by a formal contract.
2. In Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313 ("Pavlovic"), Her Honour Justice Beazley stated at [69]

"However, as his Honour's [McLelland J] review of the case law demonstrated, the Masters v Cameron classifications are no longer, if ever they were, applied as strict categories into which such cases must fall: see Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 at 105. Rather, as McHugh JA stated in GR Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634-635:

'... the decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances: Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629 at 638; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 332-334, 337.' "

1. Reflecting the effect of the extract above from Pavlovic, the Full Bench in Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100 ("Ters") made the following observations about Masters v Cameron and the three categories of case referred to in that case, and the later identified fourth category of case described by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 ("Baulkham Hills Private Hospital"):

"Masters v Cameron

25 Before turning to the application to extend time, it is convenient to summarise relevant principles underpinning the decision that is the subject of the application for leave to appeal and appeal.

26 During negotiations, parties may reach an agreement on the terms of a contract and, in addition, agree to record that agreement in a written contract. Whether that agreement is binding, prior to the finalisation of a written contract, turns on the intention of the parties, which is to be objectively ascertained from the terms of the agreement and the surrounding circumstances. [11]

27 In Masters v Cameron, the High Court identified three situations in which parties might make an agreement that the matter of their negotiation will be dealt with in a formal contract. The Supreme Court of NSW, in Baulkham Hills Private Hospital v GR Securities, [12] noted the existence of a "fourth class", citing the High Court's decision in _Sinclair, Scott & Co Ltd v Naught_on, [13] . Those situations, which are not exhaustive or prescriptive, [14] can be summarised as:

(1) the parties have finalised all the terms of the agreement and agree to be immediately bound by them, and also to record those terms in a formal document later; [15]

(2) the parties have finalised all the terms of the agreement but intend to make the performance conditional upon the execution of a formal document; [16]

(3) the parties do not intend to make a concluded bargain until the execution of the formal contract; and [17]

(4) the parties have agreed to be bound immediately and exclusively by initial terms, but they expect the terms of the formal contract to substitute the initial agreement's terms. [18]

28 The first two situations described above and the fourth result in agreements that are binding. The third does not.

29 Of course, all four categories assume that the parties have in fact reached an agreement of some kind. A negotiation where some terms are agreed, but there are key terms which the parties have identified as still needing to be discussed and agreed, will not usually constitute a binding agreement. That does not mean that there cannot be a binding agreement merely because the parties contemplate that their agreement will be formalised in a deed or written agreement that may contain additional terms: such an agreement can be binding in the manner contemplated by the first two categories of Masters v Cameron, and that position does not change because any later written document prepared by one party to formalise the agreement contains additional or even different proposed terms. Whether parties have reached a concluded, legally binding agreement, is ultimately to be ascertained by an objective assessment of their communications."

1. In Mallegowda at [41], Commissioner McDonald referred to these principles having been applied in Liszt v Health Secretary in respect of Sydney Local Health District (2020) 295 IR 285; [2020] NSWIRComm 1030; Liszt v Health Secretary in respect of Sydney Local Health District (No 2) [2020] NSWIRComm 1078; and Falconer v Fire and Rescue NSW [2020] NSWIRComm 1053 ("Falconer").
2. Commissioner McDonald made the following observations of Falconer and the two decisions in respect of Mr Liszt:

"42 In [Falconer] representatives of the parties had a telephone conversation during which "it was agreed that the matter would resolve". The Union representative for the claimant then send an email to the representative of the Employer in the following terms:

"Dear John

Unfair Dismissal of Ben Falconer

Thank you for talking with me today about this matter. I confirm that we have reached the following agreement in principle to settle the Unfair Dismissal of Benjamin Falconer:

- $10,000 gross along with other terms

- Termination changed to Resignation and this reflected in the In-Orders. Just to confirm if his termination has been published, a retraction and the publication of this resignation.

- A statement of service (including a transcript of his training).

This agreement is also subject to a satisfactory deed of release.

Regards,

Anastasia"

43 Thereafter further negotiations took place regarding the provisions of the deed of release, in particular in relation to the non-disparagement clause and to ensure that workers compensation claims were excluded from the . The claimant ultimately refused to sign the deed.

44 Commissioner Webster stated at [21]:

"The question before the Commission is whether a binding agreement was made between the parties on 24 January 2020 and, if so, whether there is any reason why the Commission should not give effect to it. The question turns ultimately upon the Commission's determination of the parties' objectively ascertained common intention."

45 Commissioner Webster found (at 24] that a binding agreement had been reached which fell into category two as recognised in Masters v Cameron. Commissioner Webster considered (at [26]) that the statement that the in-principle agreement was "also subject to a satisfactory deed of release" was "not a sufficient basis to find that the parties did not intend to be bound to the agreement they had struck. The conclusion that the parties did intent (sic) to be bound by the agreement is supported by the language used in the email that, "I confirm we have reached the following agreement in principle"."

46 Commissioner Webster ordered a permanent stay of the proceeding.

47 A similar outcome occurred in Liszt. Commissioner Sloan found at first instance (Liszt v Health Secretary in respect of Sydney Local Health District [2020] NSWIRComm 1030; 295 IR 285) that a binding settlement had been reached, but that no steps to implement the settlement would be taken until such time as the Respondent received a signed copy of the deed. He considered that the agreement fell within the second category identified in Masters v Cameron and that the appropriate order was for the proceedings to be permanently stayed. Leave to appeal from his decision was refused: Liszt v Health Secretary in respect of Sydney Local Health District (No 2) [2020] NSWIRComm 1078."

1. At the time that the Victimisation Application was filed, Ms Morcos was represented by Ms Ellie Wolfenden of Terri Bell & Co Pty Limited trading as TLB Law & Co.
2. On 18 September 2025, Ms Morcos filed a Notice of Removal of Solicitor notifying that she had "terminated the authority of Terri Bell of TLB Law & Co to act on [her] behalf in these proceedings".
3. On 19 September 2025, TLB Law & Co filed a Notice of Ceasing to Act.
4. I am, and have been at all relevant times, conscious of Ms Morcos's status as an unrepresented litigant since 18 September 2025. I am guided by the observations of the Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]- [313] including that:

(1) courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented;

(2) the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties; and

(3) it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.

1. On 19 September 2025, the Council indicated it intended to seek orders pursuant to s 174 of the IR Act and/or s 73 of the CP Act. I made orders for the filing of a notice of motion and evidence and for the filing of submissions in support and against the motion once filed. I indicated to the parties that once the material was filed, I would set down the Motion for hearing.
2. The Motion was filed on 2 October 2024. After the Motion, and evidence and submissions in support of the Motion were filed by the Council, and material in response was filed by Ms Morcos, the matter was before me for a mention by telephone on 24 October 2025 (October Mention).
3. Prior to the October Mention, Ms Morcos engaged a translator, and at the October Mention, Ms Morcos used the services of this translator.
4. During the October Mention, Ms Morcos responded in English to a question from me about whether the Motion could be heard "on the papers" or if a hearing was required, before my question was translated to English. Ms Morcos response was: "I don't need any hearing for the motion".[1] The Council was also content for the Motion to be heard "on the papers". However, on reviewing the filed material and, in light of Ms Morcos's status as an unrepresented litigant using a translator, I determined that it was necessary in the interests of fairness in these circumstances, for there to be a hearing. Such a hearing would allow me to ask the parties to address certain matters and to give the parties an opportunity to make any oral submissions which arose in light of my questions, if they so wished. This hearing took place on 30 January 2026.

1. In support of the Motion, the Council relied on:

(1) an affidavit of Mahrous Nassif sworn on 2 October 2025 ("Nassif Affidavit"); and

(2) written submissions dated 2 October 2025 and 24 October 2025.

(1) a document headed "Notice of Motion" filed on 15 October 2025; and

(2) an affidavit sworn by her on 12 October 2025 ("Morcos Affidavit").

1. The substantive four paragraphs of the document headed "Notice of Motion", are responsive to the Motion filed by the Council on 2 October 2025 and this document does not purport to move the Commission for any orders other than those sought in the Victimisation Application. Both documents relied on by Ms Morcos contain a mix of evidence and submissions. Consistent with my obligations to an unrepresented litigant, and pursuant to s 163 of the IR Act, which provides that the Commission is not required to comply with technicalities and is not bound by the rules of evidence, I accepted both documents into evidence on the basis that I would treat the material I considered to be submissions and not evidence, as submissions.
2. The parties provided lists of authorities prior to the hearing. At the hearing it became apparent that Ms Morcos's list of authorities contains a number of what have come to be known as "hallucinated" cases. Ms Morcos was not, in my view, completely forthright when asked about the use of artificial intelligence in the preparation of her list of authorities. While she was not under oath and this lack of candour was ultimately not greatly significant in the determination of this matter, it was unhelpful to the Commission.

1. The Nassif Affidavit asserts the following chronology:

(1) Conciliation took place in person before me on 17 July 2025 and 7 August 2025: Nassif Affidavit at [16] and [24].

(2) The Council authorised Mr Nassif to go up to 21 weeks' pay to settle the proceedings during the conciliation hearing on 7 August 2025 and this was communicated to Ms Morcos: Nassif Affidavit at [31] and [32].

(3) A "without prejudice" offer to settle the proceedings was made by Ms Morcos's legal representative on Thursday 14 August 2025: Nassif Affidavit at [38].

(4) Conciliation took place via an audio visual link on 19 August 2025, and the focus of the proceedings on that day was about how the proposed settlement (which was an agreed amount being 21 weeks' pay) would be paid. At this time, Ms Morcos sought an adjournment to seek additional legal and financial advice in relation to the settlement: Nassif Affidavit at [42].

(5) On Wednesday 20 August 2025, the Council outlined its response to the deed of settlement provided by Ms Morcos's representative on 14 August 2025: Nassif Affidavit at [44].

(6) Further amendments to the deed were provided to the Council by Ms Morcos's representative on Wednesday 3 September 2025: Nassif Affidavit at [45] and [46].

(7) At 3:42pm on Friday 5 September 2025, Mr Nassif, on behalf of the Council, confirmed in writing the acceptance of the settlement terms that had been articulated in the correspondence of 3 September 2025: Nassif Affidavit at [48] and [49]. The email which is RN012 included the following:

"I am instructed by Bayside Council to advise you that without admission of liability the Respondent accepts the without prejudice offer contained in the email correspondence of 3 September 2025 and in the accompanying draft Deed. In terms of the next steps, I propose the following:

1. Attached is a copy of the deed with all of the Applicant's further amendments accepted. I understand that you will incorporate into the deed a further amendment to account for the execution of the document by way of electronic signatures.

2. The Respondent Council seek to have the matter brought back on before the Senior Commissioner for the specific purpose of having a recommendation put on record to the effect that:

a) Following extensive negotiations and conciliation proceedings that were overseen by the Commission, the parties have agreed to settle the proceedings by way of a settlement amount and agreed terms;

b) The agreed settlement amount is made up of two components one of which is a payment of the Applicant's legal costs;

c) The payment of an Applicant's legal costs is not an uncommon feature of such settlements and in this case it constitutes an appropriate approach to the settlement of this matter;

d) As such the Commission commends the parties at arriving at a settlement and recommends the proposed resolution of the proceedings.

3. The Respondent Council would welcome the opportunity to have the matter brought on before the Senior Commissioner prior to the scheduled report back on 18 September 2025. However, if this presents difficulties because your client is not able to be at any earlier proceedings then the Respondent will be happy to have the matter concluded (consistent with the terms outlined in your email on 3 September 2025 and consistent with the proposed way forward outlined in this email) at the proceedings scheduled for 18 September 2025."

(8) At 3:21pm on Monday 8 September 2025 Ms Wolfenden sent an email to Mr Nassif stating that she was awaiting instructions from her client. Although this is not explicitly set out in the text of Ms Wolfenden's email, Mr Nassif deposes that the instructions were in relation to having the matter brought on before the Commission prior to 18 September 2025. Ms Wolfenden also attached a proposed statement of service which she claimed satisfied clause 4 of the deed. The email which is RN013 stated the following:

"Dear Ross,

I am awaiting instructions from my client regarding the below. As discussed, however please find attached a statement of service our client is requesting be issued to her under the deed. The contents do not appear controversial, and we would request confirmation that your client agrees to provide the same to our client on letterhead to satisfy clause 4 of the deed.

Once I have instructions from my client regarding the below, and an update from you regarding the attached, I propose to make an amendment to the deed to reflect the attached (if agreed) and also clarify that the deed takes effect from exchange."

(9) It was not until 10:04pm on Thursday 18 September 2025 that the Council learnt that Ms Morcos was of the view that an agreement had not been reached between the parties: Nassif Affidavit at [62] and [63].

1. The Council contends that a binding agreement was reached when Mr Nassif sent the email to Ms Wolfenden on Friday 5 September 2025 at 3:42pm and the agreement falls into either category one or two of Masters v Cameron. The Council submits that the following reasons support it's contention:

(1) on 5 September 2025, by email which is Annexure RN012 to the Nassif Affidavit, the Council accepted Ms Morcos's offer of settlement contained in the email from Ms Wolfenden to Mr Nassif sent on 3 September 2025 which is RN011. The Council accepted all of the amendments to the deed proposed by Ms Morcos's representative. This deed formally reflected the terms of the agreement with respect to the agreed settlement amount, the provision of a statement of service, the filing of a notice of discontinuance, the obligations with respect to confidentiality and non-disparagement and the obligation placed on the Council in relation to the security of Ms Morcos's personal information;

(2) by way of an email sent on 8 September 2025 which is RN013, Ms Wolfenden provided Mr Nassif with a statement of service that was said to be consistent with the terms of the deed. This action by Ms Wolfenden was consistent with the proposition that there was an agreement in place. Ms Wolfenden also proposed making an amendment to the deed to reflect that the deed would take effect from exchange. The proposal by Ms Wolfenden further points to the understanding that there was an agreement in place; and

(3) it was not until late on 18 September 2025 that Mr Nassif was informed that Ms Morcos did not wish to sign or accept the deed: Nassif Affidavit at Annexure RN018. This was almost two weeks after Ms Morcos's representative had been advised that the Council had accepted the without prejudice offer to settle the victimisation claim.

1. The Council submits that, at the very least, between 3:42pm on Friday 5 September 2025 and 10:04pm on Thursday 18 September 2025 the common intention of the parties was that the matter had been settled on agreed terms.

1. At paragraph 2 of her affidavit, Ms Morcos states that on 13 August 2025 she instructed Ms Wolfenden to send the Council's representative:

"...a proposed deed [which] contain[ed] 3 sections of payment, in which it was the only preliminary accepted by me (annexure LM001)."

1. I understand this evidence to mean that Ms Morcos regarded the proposed deed as only "preliminarily" accepted by her at that time.
2. At paragraphs 4 and 5 of her affidavit, and in her oral submissions, Ms Morcos says that she understood the Council's email of 5 September 2025 accepting her 3 September 2025 offer to settle the Victimisation Application to be conditional on me making general comments on the transcript about respondents' contributions to applicants' legal costs in this jurisdiction.
3. Ms Morcos says this understanding is supported by the email from Ms Wolfenden dated 15 September 2025, referred to at paragraph 8 of her affidavit:

"8. On 15th September 2025 10:37 am I received an email from Ms Wolfenden advising that in case of the commissioner doesn't provide observation regard that "c- The payment of an applicant legal cost is not an uncommon feature of such settlements and in this case it constitutes an appropriate to the settlement of this matter" there will not be a settlement unless the council chose to move forward, which wasn't a convenient answer to me (annexure LM006)."

1. Annexure LM006 contains the email from Ms Wolfenden referred to in paragraph 8. In that email, Ms Wolfenden explains:

(1) that the deed sent to the Council on 2 September included provisions for the Council to pay Ms Morcos's costs directly and to provide a statement of service;

(2) that she confirmed to Ms Morcos on 5 September that the Council had agreed to the changes proposed;

(3) that Ms Morcos later sought to propose wording for the statement of service that made it read more like a reference;

(4) that the Council required me to make observations on the record that "it is not unusual for settlements to involve payment of legal costs"'

(5) that I had already made such observations "off the record," and that it was intended these observations be made on the record at the upcoming directions hearing, and

(6) that if I did not make the observations, "there will not be a settlement (unless the Council elects to move forward notwithstanding this)."

1. Ms Wolfenden also explains in detail the distinction between a statement of service, being a factual document, and a reference containing evaluative statements, and that the Council was considering the proposed wording because it resembled the latter.
2. At paragraph 9 of her affidavit, Ms Morcos refers to a further email from Ms Wolfenden dated 16 September 2025 at 4:11 pm, annexed as LM007. In that email, Ms Wolfenden states that:

(1) the attached proposed statement of service complies with cl 4 of the deed, which required the Council to confirm the period of employment and role at termination,

(2) Ms Morcos's agreement to the contents of that document was not a term negotiated in the deed nor raised before the amended deed was sent to the Council, and

(3) because a reference had not been a condition of settlement, "it is therefore more difficult to try and push for a reference now."

1. At paragraph 20 of her affidavit, Ms Morcos states:

"20. I did not authorise my solicitor to accept or sign the final version of the deed. My instruction was limited to further negotiation on clauses 2 and 3, which concern legal cost payment and statement of service. The Council's attempt to finalise without resolving these matters undermines procedural fairness."

1. Despite the advice provided to her by Ms Wolfenden in the email of 16 September 2025, Ms Morcos contends that the inability to reach agreement on the wording of the statement of service demonstrates that no binding agreement had been formed.

1. As Commissioner Webster held in Falconer at [21], the "question [of whether there is a binding agreement] turns ultimately upon the Commission's determination of the parties' objectively ascertained common interaction".
2. The evidence shows that on 14 August 2025 and again on 3 September 2025, offers to settle were made on behalf of Ms Morcos. The latter offer was accepted by Mr Nassif on behalf of the Council on 5 September 2025 at 3:42 pm. At that point the parties had agreed the terms of settlement, and although they intended performance to occur through the execution of a formal deed, a binding agreement had already been formed. Ms Morcos contends that she did not authorise her solicitor "...to accept or sign the final version of the deed". However, there was no acceptance of any new or different "final version": the Council accepted the version that Ms Morcos had offered on 3 September 2025.
3. Ms Morcos submits that the reference to "next steps" in Mr Nassif's email of 5 September 2025 made the Council's acceptance "conditional" and therefore not binding. I do not accept this submission. Nothing in the email states that acceptance was contingent on the "next steps". Rather, the email conveys unconditional acceptance, followed by proposed steps for implementing the agreement. This is confirmed by the opening paragraph of the email, stating: "I am instructed by Bayside Council to advise you that, without admission of liability, the Respondent accepts the without prejudice offer contained in the email correspondence of 3 September 2025 and in the accompanying draft deed".
4. The existence of a binding agreement as at 5 September 2025 is consistent with the email from Ms Wolfenden to Ms Morcos dated 6 September 2025, confirming that "the changes have been agreed to". It is reinforced by Ms Wolfenden's email of 8 September 2025 in which she stated, "I confirm you do wish to proceed to settle the matter," and explained that the Council required a statement from me and that formal exchange of signed deeds would occur by email shortly after I made the requested comments.
5. The email from Ms Wolfenden to Ms Morcos on 15 September 2025 at 10:37 am (Annexure LM006) is also consistent with a binding agreement having already been formed. It records that:

(1) on 2 September 2025, Ms Morcos instructed Ms Wolfenden to provide the deed to the Council, which included provisions for payment of her legal costs and for a statement of service;

(2)  on 5 September 2025, Ms Wolfenden informed Ms Morcos that the Council had agreed to the changes she had proposed;

(3) on 8 September 2025:

(a) Ms Morcos indicated she wished to suggest wording for the statement of service, prompting Ms Wolfenden to note:

"The effect of your proposed wording was to make it more of a reference than a statement of service. Previous to this your instructions were that you did not want a reference from Council ... We nevertheless send the proposed wording to Ross."

(b) Ms Wolfenden advised that payment of legal costs was not in dispute and that the "on record" observations sought from me were a formality discussed during conciliation;

(4) a draft statement of service was provided by the Council for Ms Morcos's review. Ms Wolfenden explained that it "accorded" with clause 4 of the deed and that a requirement for Ms Morcos to agree to its contents "was not negotiated as part of the deed, and not raised before you instructed me to send the amended deed to the Council, which was accepted by the Council. It is therefore more difficult to try and push for a reference now when it was not previously a condition of settlement...".

(5) as to the apportionment of the settlement payment, Ms Wolfenden explained:

"...Council is not trying to re-negotiate the payment clause of the deed, they are seeking confirmation from the Commissioner that the settlement payment being partly paid directly in respect of costs is 'above board' from a governance and compliance perspective."

1. Pursuant to s 73(1)(a) of the CP Act I determine that the email sent by Ms Wolfenden on behalf of Ms Morcos on 3 September 2025 at 6:39 PM and Mr Nassif's email sent on 5 September 2025 at 3:42 PM constituted a binding agreement on the terms set out in Ms Wolfenden's email and the attached deed of release. Performance of the agreement was subject to execution of the deed of release in the form accepted by Mr Nassif on behalf of the Council. Accordingly, the agreement falls within the second category of Masters v Cameron. Alternatively, as Commissioner McDonald found in Mallegowda, because the draft deed provides that it is to embody the entire agreement and supersede all prior undertakings, the agreement could fall within the fourth category described by McLelland J in Baulkham Hills Private Hospital and referred to by the Full Bench in Ters.
2. Consistent with Commissioner McDonald's approach in Mallegowda, where performance of a concluded agreement was subject to execution of a deed of release, the appropriate relief under s 73(1)(b) of the CP Act, read with s 67, is a permanent stay rather than dismissal. A binding settlement has been reached; its performance is in Ms Morcos's control; and it would be an abuse of process to allow her to continue the Victimisation Application. In granting a permanent stay, as in Mallegowda, I have had regard to the principles concerning permanent stays based on abuse of process, as explained in Stokes v Toyne [2023] NSWCA 59 at [10] (Ward P); [137]; [149]; [176] (Simpson AJA).

1. I order that proceedings 2025/263404 be permanently stayed.

13 February 2026 - Paragraph [14] - corrected quote.