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Texts Cited: A Sapienza, Judicial Review of Non-Statutory Executive Action (2022, Federation Press)
C Horan, “Judicial Review of Non-Statutory Executive Powers” (2003) 31(3) Federal Law Review 551
J Griffiths, “Judicial and Administrative Review of Non-Statutory State Executive Power” (Keynote Address, Land and Environment Court Annual Conference 2022)

Category: Principal judgment

Parties: Itohan Odiase (Plaintiff)
Secretary, NSW Ministry of Health (Defendant)

Representation: Counsel:
O Sada (solicitor) (Plaintiff)
D Birch (Defendant)
Solicitors:
Elysium Law Firm (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2025/290782

Publication restriction: Nil

JUDGMENT

1. In the foreword to A Sapienza, Judicial Review of Non-Statutory Executive Action (2022, Federation Press), the Hon William Gummow AC wrote (footnotes omitted):

The Hon Kenneth Hayne has noted that ‘questions about the ambit of executive power are arising more frequently than once was the case’. For example, as Robertson J explained in Jabbour v Secretary, Department of Home Affairs, the proliferation of non-statutory ministerial ‘guidelines’ provides occasions for judicial review.

2. Those observations are apposite to this case. The plaintiff seeks judicial review of executive actions or inactions in the exercise of non-statutory powers. The actions relate to the administration of what is called the Service Check Register (SCR) – an internal database that NSW Health organisations use when recruiting prospective employees and when conducting misconduct processes for existing employees. The operation of the SCR is governed by a mandatory policy directive issued by the New South Wales Government in June 2021. The policy directive is titled “Service Check Register for NSW Health” and is identified by the number PD2021_017 (Policy Directive). The Policy Directive has no direct legislative foundation. I will elaborate on the relevant content of the Policy Directive and the operation of the SCR in due course.

Background facts summarised

3. On 26 March 2021, the plaintiff was told by a letter from the South Western Sydney Local Health District (SWSLHD) that there were serious concerns relating to the plaintiff’s clinical practice as a registered nurse at Liverpool Hospital. The concerns related to eight allegations about the plaintiff’s conduct in treating or omitting to treat various patients under her care in March 2021. The plaintiff was suspended from her rostered night shifts. She was placed on non-clinical duties. The plaintiff was told that a formal investigation would be conducted and that a recommendation had been made that her name be placed on the SCR. She was provided with a link to what was described in the letter as “the SCR policy”. Thus, the plaintiff was aware from at least this time that there was a possibility that her name would be entered on the SCR.

4. An interim SCR entry was made in respect of the plaintiff on 12 May 2021. It named the plaintiff and recorded that an “Investigation Finding” was “Pending”.

5. The interim SCR entry is not challenged in these proceedings but the defendant says that, in any event, the interim entry complied with the requirements in [3.1.1] of the Policy Directive because:

(a) there was a suspicion on reasonable grounds that the plaintiff had engaged in serious misconduct; and (b) the plaintiff had been suspended from her usual duties and her clinical privileges had been suspended.

6. An investigation by SWSLHD found in August 2021 that five of eight allegations against the plaintiff were substantiated. A show cause letter dated 19 October 2021 was sent to the plaintiff. She was told that serious consideration was being given to terminating her employment. She was invited to respond to several stated proposed adverse findings.

7. The plaintiff was told that if the proposed adverse findings were made and proposed actions taken, i.e. termination of her employment, her name would remain on the SCR in accordance with the Policy Directive. The letter included the following statement:

Please note that resigning from your employment will not result in your SCR record being removed.

8. On 16 December 2021, the then Chief Executive of the SWSLHD signed a letter which recorded her determination to terminate the plaintiff’s employment on the basis that the Chief Executive was satisfied that the plaintiff had engaged in the alleged serious misconduct. But that letter was not in fact sent. This was because, on 16 November 2021, the plaintiff’s complaint of discriminatory conduct arising out her employment had been referred to the New South Wales Civil and Administrative Tribunal (NCAT) for the purposes of a hearing under s 93C of the Anti-Discrimination Act 1977 (NSW).

9. Subsequently, on 16 December 2021 (i.e. the same day as the unsent letter), the parties participated in mediation as part of the NCAT proceedings. The mediation resulted in a Mutual Deed of Release dated 6 January 2022 (Deed). The Deed was executed by the parties on 12 January 2022. The parties agreed, without admission of liability, to resolve all issues between them in accordance with the terms of the Deed.

10. One of the terms of the Deed was that the plaintiff resign from her employment with SWSLHD on execution of the Deed. SWSLHD agreed to discontinue its investigation into the complaints about the plaintiff’s actions and that no disciplinary action would be taken (including no termination of the plaintiff’s employment). There is no express reference to the SCR in the Deed.

11. Clause 4 of the Deed states (emphasis added):

The LHD will discontinue the investigation into the incident of 20 March 2021 and 26 March 2021 and no disciplinary action [sic]. The shows [sic] cause process will stop and not result in a termination of employment.

12. Clause 10 of the Deed states:

The LHD release the Employee from all Claims which the LHD has or which, but for this Deed, the LHD could, would or might have or have had against the Employee in respect of or arising out of the Employment or its termination and the Proceedings.

13. Clause 1 of the Deed states:

In this Deed, the expression:

Claims means all claims, allegations, demands, suits, complaints, causes of action, damages, debts, costs and judgments whatsoever whether at law or in equity or under any statute whether known or unknown at the execution of this Deed.

14. Some years later, on 23 August 2024, NSW Health became aware that no final SCR record had been made in relation to the plaintiff, notwithstanding that the Chief Executive had approved the termination of her employment back in December 2021. It was noted that the relevant part of the interim SCR entry remained “as pending”.

15. On 26 August 2024, the interim entry relating to the plaintiff in the SCR was converted into a final SCR entry. The final SCR entry apparently created on that day records a Serious Misconduct Finding on 24 August 2021 in relation to the plaintiff as “Substantiated” and describes the “Outcome” as “Terminated”. If the final entry had remained in those terms, a real question would arise as to whether the statement of “Terminated” was accurate as a matter of fact. Significantly, however, the terms of the final SCR entry were amended and the version seemingly dated 11 March 2026, which the plaintiff accepted is the correct version for the purposes of the present proceeding, describes the “Outcome” as “Resignation and one of the above”. Mr Sada, who appeared for the plaintiff, properly acknowledged that the reference to “one of the above” is not a reference to any information set out above in the final SCR entry itself, but rather reflected the language in [3.1.2] of the SCR Procedure (as to which see [31] below).

16. In an internal email, the Chief Executive of SWSLHD approved the making of the final SCR entry in relation to the plaintiff, but noted that there needed to be a process “to ensure that this doesn’t happen again please”. This note presumably relates to the unexplained delay in updating the interim SCR record, particularly in circumstances where [3.2] of the Policy Directive obliges NSW Health organisations to update an interim record to a final one within 10 business days of the final findings of a misconduct investigation or management process.

17. The defendant claims that the updating was consistent with [3.1.2] of the Policy Directive in that:

(a) there were findings in the investigation report, as accepted by the Chief Executive of the SWSLHD, of serious misconduct by the plaintiff; and (b) the plaintiff had resigned her employment but if she had not, her employment would have been terminated in the light of the findings.

18. The plaintiff (or persons acting on her behalf) sought several times to have the final SCR entry removed in its entirety. This culminated in the plaintiff receiving a letter dated 28 November 2025 from NSW Health which refused the plaintiff’s latest request. Despite its length, it is desirable to set out the contents of that letter (omitting formal parts):

Thank you for your correspondence on behalf of Ms Itohan Odiase on 1 October 2025, requesting that the Ministry of Health review the decision of South Western Sydney Local Health District (SWSLHD) to maintain Ms Odiase’s Service Check Register record.

We have completed our review in accordance with Section 4.3 of the NSW Health Policy Directive Service Check Register for NSW Health (PD2021_017) and determined not to intervene in the decision of SWSLHD to maintain Ms Odiase’s Service Check Register record. In forming this view, we have considered the Service Check Register policy, the Service Check Register record review by SWSLHD, in February 2025, the Ministry reviews in September 2022 and February 2023, and additional evidence provided on behalf of Ms Odiase.

The SCR record was created following findings of misconduct

Ms Odiase’s SCR record was initially created after the allegations of conduct that seriously breached the expected practice standards.

The district identified that the standard of patient care Ms Odiase delivered whilst performing duties as a Registered Nurse in Liverpool Hospital in incidents which occurred in March 2021, was below expected clinical standard and presents, in our view, a serious risk to the safety and care of patients. Had Ms Odiase not resigned, she would have been terminated from her employment with the district.

The conduct Ms Odiase engaged in was assessed to meet the definition of serious misconduct under section 1.2 of the NSW Health Service Check Register in NSW Health PD2021_017 as

• conduct by any staff member that presents a serious risk to the safety of patients, other staff or visitors.

Not satisfied of the basis to remove the SCR record

The Ministry has undertaken a review at the request of Ms Odiase pursuant to section 4.3 of PD2021_017.

In line with section 4.3 of PD2021_017, WR considered the seriousness of the misconduct, the length of time passed since the misconduct, and new evidence about change in circumstances such as Ms Odiase’s reflection statement and education activities she undertook.

1. The Deed of Release explicitly confirmed no disciplinary outcome would be pursued

Our assessment of the District documentation indicates that SWSLHD finalised their investigation and issued Ms Odiase with a proposed findings letter including the show cause letter on 19 October 2022. Ms Odiase was given the opportunity to put any information forward or provide further comments in relation to proposed findings and action.

The District CE signed the termination letter on 16 December 2022, a month prior to the execution of the agreement on 12 January 2023. We note that whilst the termination was not officially issued, the final findings and outcome had been made pursuant to then applicable NSW Health Managing Misconduct PD2018_031:

Section 6.6 Where the staff member resigns prior to completion of a misconduct management process of the PD2018_031 states:

The process must still be completed, including making findings and decisions about any action that would have been taken against the staff member had they still been in the position, and all relevant notifications.

Workplace Relations note that the Deed of Release states that the investigation process is to be discontinued including the show cause and disciplinary action, however, the District documentation suggests that these processes had been finalised prior to the execution of the agreement.

2. Finalisation of the record contrary to policy and in breach of procedural fairness

The SCR policy enables a final record to be created where:

“The staff member has resigned or left the position but had they not, one of the above actions (termination of employment) would have been taken in response to a finding”.

On this basis, WR are satisfied that the criteria for creating a final SCR record for Ms Odiase is appropriate, particularly due to substantiated misconduct findings, in line with section 3.1.2 of the PD2021_017 substantiated serious misconduct (Final record) criteria.

Furthermore, NSW Health Managing Misconduct, Serious Performance and Child related Concerns PD2025_021 does not provide for agreements or settlements (Deed of Release) in industrial disputation to impact decisions about investigation and disciplinary action that would have otherwise been taken had the employee not resigned. Had Ms Odiase not resigned, her employment with the district would have been terminated on the grounds of substantiated serious misconduct, on 16 December 2021.

We also acknowledge that Ms Odiase was not notified of a final record until January 2025, following the IRC conciliation. While this is regrettable, the Ministry maintains that the criteria for a finalised record accords with applicable policy.

3. Ms Odiase has gone above and beyond to demonstrate her professional competence and insight

We note that during the IRC dispute and mediation in November 2024, Ms Odiase has taken District’s recommendations to take action to address the risks that led to the SCR creation to support her future reviews. As such, Ms Odiase has taken actions to complete educational activities and reflect on her past behaviours.

You have provided a list of self-directed education articles, videos and read and signed NSW Health policies which Ms Odiase accessed and completed since the subject incident on topics of recognising and responding to acute deterioration, basic life support, adult assessment and treatment, strategies to enhance teamwork in acute healthcare settings and nursing documentation.

We also note that further evidence provided includes Ms Odiase’s insightful reflection statement about what she would do differently in the future and the impacts of her actions in the workplace.

While these are complimentary of Ms Odiase’s efforts to address the risks identified, we are of the view that they do not prove a level of competency achieved and application of learnings in practice. It is also noted that, Ms Odiese [sic] has not provided evidence of practical application to attest to the changes in behaviour. To support Ms Odiase’s claims, Workplace Relations wrote to you on 6 November 2025, seeking further evidence, such as character references from an employer detailing satisfactory work conduct / performance since Ms Odiase’s termination with NSW Health.

In your response to us on 11 November 2025, you have declined to provide further evidence to support your client’s claims and requested the review be finalised on that basis.

Notwithstanding that Ms Odiase has provided some evidence to address risk identified, Ms Odiase has not provided any work history post separation in a nursing capacity that demonstrates progress over an extended period of time.

We are of the view that the reflection statement and educational activities Ms Odiase’s has undertaken without evidence of practical application is not enough to satisfy ourselves that risks that led to the creation and decision of SWSLHD to maintain the record have been sufficiently mitigated.

As is the case with all SCR reviews, our paramount consideration is the protection of health and safety of patients, staff and visitors. In the absence of evidence of practical application of her learnings and recent reflections, it is our recommendation that Ms Odiase’s record remains until such time she provides evidence of practical application of her reflections and learnings over an extended period of time.

If you have any questions please contact Anja Risovic-Manning, A/Associate Director, HR Policy, Workplace Relations on XXXX XXXX or by email at [address redacted].

The plaintiff’s judicial review challenge outlined

19. By amended summons filed 17 December 2025, the plaintiff raises the following six grounds of judicial review:

a) Breach of procedural fairness;

b) Error of law and misapplication of PD2021_017;

c) Ultra vires exercise of power in converting an interim SCR record to a final record without substantiated findings;

d) Failure to consider relevant considerations, including the Deed of Release executed on 6 January 2022, and absence of substantiated findings;

e) Legal unreasonableness and irrationality of the decision; and

f) Ongoing detriment to the Applicant’s professional reputation and employment opportunities.

20. In her written submissions dated 30 January 2026, the plaintiff confirmed that she did not seek judicial review of the discretionary refusal to remove her name from the SCR. Instead, she challenges “the continued maintenance of the SCR record in circumstances where the jurisdictional facts necessary to sustain that record ceased to exist upon execution of a Deed of Release resolving the disciplinary process”.

21. The plaintiff’s essential complaint is that once the disciplinary process relating to the allegations against her were discontinued and extinguished by the Deed, the defendant no longer had legal authority to maintain the SCR record relating to the plaintiff. In her written submissions, this is described as involving a “jurisdictional fact”.

22. It is not entirely clear why the plaintiff reconfigured her judicial review challenge in this way so as to rely on the notion of “jurisdictional fact”, as opposed to the other familiar heads of judicial review identified in the amended summons. The explanation may lie in the difficulty presented by Adamson J’s finding in Clarke v South East Sydney Local Health District [2018] NSWSC 66 at [29]. Her Honour held there that an allegation that placement of a person’s name on the SCR was not in accordance with “policy requirements” did not involve an allegation of an error of law which was necessary to enliven the Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) (see also Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226 at [27] per Leeming and Payne JJA in granting leave to appeal on an unrelated ground).

Consideration and determination

23. I will summarise and address the plaintiff’s primary contentions in this part in my reasons for judgment. Before doing so, it is convenient to say something more regarding the Policy Directive and the legislation regulating the NSW public health system.

(a**)** Policy Directive

24. The Policy Directive stipulates that compliance with it “is mandatory for NSW Health and is a condition of subsidy for public health organisations”. The summary of the Policy Directive states:

This Policy Directive sets out the mandatory requirements for the use of the Service Check Register for NSW Health including: access to the Service Check Register; creation, update and removal of Service Check Register records; review of Service Check Register records; and checking the Register in recruitment and misconduct processes.

25. A “Summary of Policy Requirements” set out in an attachment to the Policy Directive contains the following relevant statement:

…

Service Check Register records must be created, and may only be created, when the Chief Executive / Secretary suspects on reasonable grounds that the staff member may have engaged in serious misconduct … or when a finding of serious misconduct has been substantiated and a decision to take specific action as a response has been made. This includes where the staff member is already absent from the workplace or has resigned.

Staff members (including where they are no longer employed / engaged by NSW Health) must be advised in writing, within the timeframes outlined in the Procedure, if a Service Check Register record for them is created, updated or removed. A printed copy of the record must be provided to the staff member. They must also be informed of their rights in relation to the record, and the role of the Service Check Register in recruitment …

Service Check Register records may only be removed if one of the criteria outlined in the Procedure applies.

...

26. The SCR Procedure is a 17 page document attached to the Policy Directive. It is divided into the following parts:

27. Background

28. Accessing the SCR

29. Creating, updating and removing SCR records

30. Reviewing SCR records

31. Using the SCR in recruitment and misconduct processes

32. Appendix list

33. Relevant provisions in the SCR Procedure may be summarised as follows.

34. First, the two types of SCR records are described in [3.1]:

There are two types of Service Check Register records:

• Interim records are required while an investigation is ongoing (if the conditions under section 3.1.1 have been met), but must be either removed or converted into final records as soon as the relevant process to manage the allegation of serious misconduct has been completed.

• Final records are required once findings have been made and further action in response to the findings determined (if these meet the conditions under section 3.1.2).

Service Check Register records must be created, and may only be created, for alleged or substantiated serious misconduct (as defined in section 1.2) and when specific action (as outlined below in section 3.1.1 or section 3.1.2), has been taken to mitigate related risks.

Such action must be based on risks identified during the investigation or management of the allegation, or following a substantiated finding, in line with NSW Health Policy Directive Managing Misconduct (PD2018_031), NSW Health Policy Directive Managing Complaints and Concerns about Clinicians (PD2018_032), Prevention and Management of Workplace Bullying in NSW Health (PD2020_040), or other relevant policy as applicable.

29. Secondly, the reference to the “management of the allegation” in the final paragraph of [3.1] is further elaborated upon in [3.1.4]. It contains provisions concerning the creation of a SCR record after a staff member has resigned. It states that if a SCR record has been created before a staff member left their position, it must be maintained until the findings have been finalised unless new information has come to light and a risk assessment indicates that the person could now return to their role if they were still employed. Later in [3.1.4], there are important references to the relevance of other NSW Health Policy Directives which relate to management processes. Those paragraphs are as follows:

Further, NSW Health Policy Directives Managing Misconduct (PD2018_031) and Managing Complaints and Concerns about Clinicians (PD2018_032) require that even if the staff member resigns, the NSW Health organisation must complete any investigation or other misconduct management process that it had started. This includes making findings and decisions about any action that would have been taken as a response to the findings, had the person still been in their role.

If the investigation results in findings that meet the criteria in Section 3.1.2, the person’s name must be entered in the Service Check Register. This will ensure an alert is triggered if the person seeks a role elsewhere in NSW Health. If it is identified that the person is already in a role in another NSW Heath organisation, the other NSW Health organisation must be notified of the Service Check Register record (see section 3.5).

30. Thirdly, [3.1.1] sets out the criteria for the making of an interim record based on serious misconduct. It provides:

A Service Check Register record must be created when a finding indicates there is serious misconduct as defined in Section 1.2 against the staff member, and:

• The staff member’s employment or engagement is terminated as a response to the finding, or

• The staff member is a locum doctor or casual/agency staff, and a decision has been made to not use their services or renew their contract due to risks arising from the finding, or

• The staff member’s clinical privileges have been varied or cancelled by the NSW Health organisation because of serious concerns about the safety of patients

• The staff member has resigned or left their position, but if they had not, one of the above actions would have been taken as a response to the finding.

31. Fourthly, [3.1.2] sets out the criteria for making a final SCR entry:

A Service Check Register record must be created when a finding indicates there is serious misconduct as defined in Section 1.2 against the staff member, and:

• The staff member’s employment or engagement is terminated as a response to the finding, or

• The staff member is a locum doctor or casual/agency staff, and a decision has been made to not use their services or renew their contract due to risks arising from the finding, or

• The staff member’s clinical privileges have been varied or cancelled by the NSW Health organisation because of serious concerns about the safety of patients

• The staff member has resigned or left their position, but if they had not, one of the above actions would have been taken as a response to the finding.

32. The last of those criteria is directly relevant to the plaintiff. She had resigned her position before the final SCR entry was made but there was evidence in the form of the Chief Executive’s unsent letter dated 16 December 2021 (see at [8] above) that the plaintiff’s employment would have been terminated had she not resigned.

33. Fifthly, [3.2] relates to the updating of SCR records:

NSW Health organisations must update an interim record to a final one within ten business days of the final findings of a misconduct investigation or management process.

Interim records will also need to be updated where a further risk assessment results in a different risk management action which meets the conditions under section 3.1.1 (such as a change from variation of clinical privileges to suspension from duty).

34. Sixthly, provisions relating to removing SCR records are set out in [3.3] and relevantly include the following (emphasis added):

Apart from the Ministry of Health, only the NSW Health organisation that created the record can remove it.

Service Check Register records can only be removed in line with the criteria set in this Policy Directive. The removal of a record without meeting the criteria cannot form a part of any agreements or settlements in industrial disputes or the like.

Before removing a Service Check Register record, the NSW Health organisation must place a print-out or screen shot of the record on the relevant investigation file. Once a record has been removed from the Service Check Register, no history of it will be available to Service Check Register users.

3.3.1 Removing interim records

…

3.3.2 Removing final records

Final Service Check Register records (identified on the SCR database as ‘substantiated’) must be removed if one of the following applies:

• The record was incorrectly created

• The NSW Health organisation has reviewed the risks posed by the serious misconduct that led to the creation of the record, and is satisfied that the risks no longer exist or have been sufficiently mitigated to warrant the removal of the record. Such reviews must be documented using the template ‘Review of SCR record’ (Appendix 4)

• The staff member’s record was created following a variation or cancellation of their clinical privileges by the NSW Health organisation, and that variation / cancellation has expired or been reversed

• The NSW Health organisation has become aware that the person with the SCR record is currently doing similar work elsewhere in NSW Health, and has confirmed with an appropriately delegated staff member of the other NSW Health organisation in writing that:

o The staff member has been continuously employed / engaged by the other NSW Health organisation for 12 months or more after the date of the serious misconduct that lead to the creation of the record, and

o during that time, no risks relevant to the substantiated serious misconduct have been identified and required ongoing mitigation.

3.3.3 Removing old records that do not meet the criteria of this Policy Directive

…

35. Seventhly, the process by which a person may request a review of his or her SCR record is set out in [4], which includes the following:

4.1 Requesting a review of a Service Check Register record

A person with a Service Check Register record may seek a review of their own record by making a request to the Chief Executive of the NSW Health organisation that created the record. (Staff of the Ministry of Health will need to make their request to the Secretary.) The NSW Health organisation must complete the review of the record within 20 business days of receiving the request, and give the person an opportunity to make submissions to the review process. The person seeking the review must be advised of any delays in the review process and the reasons for such delays.

The person with the record must be advised of the outcome of the review in writing. The NSW Health organisation must also advise the person about the type of information or evidence that might be helpful for any further review.

4.2 Reviews of records by NSW Health organisations

The NSW Health organisation that created the Service Check Register record must review it in any of the following circumstances:

…

• The person with the record asks for a review of the continued need for it on the basis that they believe that:

o Their record has been created or maintained incorrectly, or

o The risks related to the substantiated serious misconduct no longer exist because of action they have since taken, or because of a significant change in their circumstances, or

o They have worked in a similar role elsewhere in NSW Health continuously for 12 months or more since the serious misconduct that lead to the creation of the Service Check Register record, and have had no issues, or

o A decision by the relevant registration board or professional council has relevance to the serious misconduct that lead to the creation of the record. Review requests must be supported by relevant information and evidence (see section 4.2.1).

…

4.2.1 Considerations in the Service Check Register record review

Depending on the reason for the review, the review will need to determine whether the record was created in accordance with this Policy Directive in the first place, and / or whether the related risks have now been sufficiently mitigated to warrant removing the record.

The NSW Health organisation must consider the following in their review:

• The responsibilities of the role the person was in at the time of the serious misconduct

• The seriousness of the misconduct (including whether there is a criminal conviction), and the identified risks that led to the creation of the record

• The length of time since the serious misconduct (in general, the longer the period of time with no further incident, the lower the risk)

• Whether the person is currently doing similar work elsewhere in NSW Health and has been employed / engaged by the other NSW Health organisation for 12 months or more after the date of the serious misconduct. If an initial StaffLink search indicates this may be the case, further information from an appropriately delegated staff member of the other NSW Health organisation must be sought and the following considered:

o Any risk assessments relevant to the substantiated serious misconduct that resulted in the Service Check Register record, and any related risk management action taken by the other NSW Health organisation

o The nature and responsibilities of the role the person is in

o The length of time the person has been employed by them

o Any other relevant information that may support the removal of the record.

• Any supporting information provided by the person with the record:

o Any submissions about action they have taken, significant changes to their circumstances, or any other information that demonstrates that the serious misconduct is not likely to happen again

o References on their behalf, addressing identified risks following the serious misconduct. The type of reference will depend on the nature and circumstances of the serious misconduct, but could include workplace references or information from professionals who have provided treatment, counselling or other help to the person.

o Details and evidence of any relevant training or courses that may have addressed the original risks identified.

o Information about any decision by the relevant registration board / professional council to change or remove registration conditions, or take no further action with a complaint received. The NSW Health organisation needs to consider the reasons for the board’s / council’s action, and their relevance to the ongoing need for the record. However, board / council decisions about health practitioners’ registration conditions are separate from decisions made by the employer to manage workplace risk, and do not automatically lead to the removal of a record.

• Any other evidence or information that demonstrates that the risks have been addressed or are no longer relevant.

36. Eighthly, merely because a person is the subject of a final SCR entry does not mean that the person cannot be employed or engaged by NSW Health, as is made clear in [5.1.2]ff.

(b) Legislative framework for NSW public health system

37. The NSW public health system is established and regulated by the Health Services Act 1997 (NSW). That Act defines the structure, functions and governance of bodies by Local Health District bodies (including the SWSLHD). The functions of the Health Secretary (who is the present defendant) are set out in s 122(1). They include facilitating the achievement and maintenance of adequate standards of patient care within the public health system, as well as providing governance oversight and control of that system.

38. Provisions relating to the employment of staff in the NSW Health Service are set out in Ch 9, Pt 1. Section 116(3) empowers the Health Secretary to “exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service”. Employment with the NSW Health Service is also regulated by the Government Sector Employment Act 2013 (NSW).

(c) Why the judicial review challenge fails

39. As noted above, although the plaintiff’s amended summons identifies six grounds of judicial review, her written submissions confirm that the essential complaint is that it was unlawful to maintain the final SCR entry in relation to the plaintiff because the terms of the Deed undermined the “jurisdictional fact” upon which the final SCR entry depended. This was reformulated by the plaintiff in her written submissions in reply but not in a way which revived the individual heads of review in the amended summons. In oral submissions in reply, Mr Sada raised a complaint of procedural unfairness, but I understood him not to press that complaint having regard to its belatedness and the fact that at least one document relevant to the complaint (a letter from the plaintiff dated 11 November 2021) was not included in the evidence.

40. For the following reasons, this complaint must be rejected.

41. First, putting to one side the issue whether judicial review is available in respect of executive action which relates to the SCR and the related policy directive, neither of which has a legislative basis, the nomenclature of “jurisdictional fact” is entirely misplaced. As the High Court observed in Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]:

The expression "jurisdictional fact” … is [generally] used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

42. The Court in Gedeon referred to the following passage from Latham CJ’s reasons in R v Connell*; Ex parte The Hetton Bellbird Collieries Ltd* (1944) 69 CLR 407; [1944] HCA 42 at 429-30:

The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.

43. It is notable that these statements in both Gedeon and Connell were made in the context of the judicial review of statutory powers. The plaintiff was unable to cite any authority in support of the proposition that the expression “jurisdictional fact” has any application in a non-statutory context as is the case here. This is unsurprising in circumstances where it is well-established that whether a fact is jurisdictional is “purely a question of statutory interpretation … involving the weighing up of the text, structure and purpose of the legislation” (see Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 at [111] (and the cases cited therein) per Ward JA, Basten and Gleeson JJA agreeing and Kewin v AAI Ltd t/as GIO Insurance [2026] NSWCA 86 at [72] per Leeming JA, Kirk JA and Griffiths AJA agreeing (Kewin (CA)).

44. Secondly, there is nothing in the Policy Directive which indicates that the power (or obligation) to make a record in the SCR is dependent upon, or can be affected by, a document such as the Deed here. Indeed, if anything, there is an indication in the text of the Policy Directive that its operation cannot be displaced by such a document. Thus, [3.3] (which is set out at [34] above) expressly states that an entry (or record) can only be removed in line with criteria set out in the Policy Directive. Significantly, it is stated that the removal of a record without meeting such criteria cannot form part of any agreement or settlement in an industrial dispute or the like. Although not determinative, these provisions cast strong doubt on the proposition that the clauses in the Deed relied upon by the plaintiff had the effect of removing the defendant’s power to create and maintain the final SCR record in relation to the plaintiff.

45. Thirdly, there is nothing in the Deed which indicates that it operates to displace any basis under the Policy Directive for maintaining the final SCR entry relating to the plaintiff. As noted above, the Deed is simply silent as to the operation of the SCR vis-à-vis the plaintiff’s circumstances.

46. Fourthly, I do not accept the plaintiff’s claim that “a final SCR record may only be maintained where serious misconduct has been substantiated and disciplinary action, including termination, would have been warranted”; that these criteria constitute “jurisdictional facts” such that, unless they exist, the power to maintain a final SCR record does not exist; and that following execution of the Deed, neither jurisdictional fact existed. As noted above, [3.1.2] of the Policy Directive required a final SCR record to be created where there was a finding of serious misconduct against a staff member and even though the staff member had resigned or left their position, if they had not done so, various actions would have been taken in response to the finding, including termination of the staff member’s employment. I do not consider these criteria to constitute “jurisdictional facts”. Moreover, for the reasons given below, I do not consider that any part of the Deed had the effect claimed by the plaintiff, namely that these so-called “jurisdictional facts” did not exist.

47. In the plaintiff’s reply submissions dated 13 May 2026, the previous strong reliance on “jurisdictional fact” was notably diluted. The plaintiff submitted that the essential issue in her judicial review challenge was not whether the Policy Directive itself creates jurisdictional facts, but rather whether the defendant acted beyond the limits of its authority because “[o]nce the investigation was discontinued and no disciplinary action was taken, the factual basis for maintaining a final SCR entry was materially altered”.

48. The plaintiff’s case is not strengthened by this reformulation. The reasons set out at [44]-[46] above apply equally to the reformulated case, which still depends on the terms of the Deed. I shall now explain in more detail why the Deed does not have the effect claimed by the plaintiff.

49. Putting to one side the issue whether the operation of the Policy Directive could be fettered by a document such as the Deed, which may involve some complex issues of estoppel in a public law context, I will address two clauses which the plaintiff evidently relies upon in support of her contention that there were parts of the Deed which removed the existence of so-called “jurisdictional facts” required to maintain a SCR record. The two clauses are cll 4 and 10, the terms of which are set out at [11]-[12] above.

50. As to cl 4, merely because the SWSLHD agreed to discontinue the investigation, cease the show cause process and not terminate the plaintiff’s employment or take any other disciplinary action does not mean that processes authorised by the SCR and related Policy Directive would not be carried out to update the interim SCR entry where it was appropriate to do so or to remove or undo any interim or final SCR entry. In my view, having regard to the purpose of the SCR, I do not consider that its operation amounts to “disciplinary action” within the meaning of cl 4. Its purpose is not to discipline a person who is the subject of an entry of the SCR. As is explained in [1] of the Policy Directive:

The NSW Health Service Check Register is used during the recruitment process to alert a NSW Health organisation to any significant risks a preferred applicant may pose, as already identified in NSW Health. While the Register does flag misconduct of a level of seriousness that requires further assessment, it does not contain a comprehensive record of all misconduct issues in relation to a person. Furthermore, a Service Check Register record search and check does not replace the requirement for other mandatory recruitment and appointment checks.

For misconduct processes, the Register alerts NSW Health organisations to previous findings of serious misconduct so that they can be assessed for relevance when making decisions in response to current findings.

The Service Check Register cannot operate in isolation from the processes outlined in NSW Health Policy Directives on Managing Misconduct (PD2018_031) and Managing Complaints and Concerns About Clinicians (PD2018_032). Placing someone on the Service Check Register is an additional step to those processes for the most serious and high risk misconduct cases. Any decision to create a Service Check Register record must be based on decisions made under those Policy Directives about risk management action or action in response to findings.

51. As to cl 10, the ordinary principles of contractual construction apply when construing a deed of release: see eg Angas Securities Ltd v Small Business Consortium Lloyds Consortium No 9056 [2016] NSWCA 182 at [99] (Sackville AJA, McColl JA agreeing). Additionally, in Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; [2018] NSWCA 111 at [54], Leeming JA (Beazley P and Emmett AJA agreeing) noted that “[i]t has long been established that the general words in a deed of release are confined by recitals”. His Honour continued at [54]-[55] to explain that:

In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 123; [1954] HCA 23 the joint judgment said:

“The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz that the general words of a release should be restrained by the particular occasion: Knight v Cole. Thus the general words of a release are to be restrained by the particular recital: Payler v Homersham. As it is concisely expressed by Best J in Lampon v Corke: ‘If there be introductory matter, that will qualify the general words of the release.’ (Footnotes omitted)”

Their Honours also relied on Lord Westbury’s statement in London and South Western Railway Company v Blackmore (1870) LR 4 HL 610 at 623:

“The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given.”

52. More recently, in Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd (2024) 303 FCR 100; [2024] FCAFC 15 at [38], Perram and Downes JJ (Nicholas, Burley and Rofe JJ agreeing) observed that:

… there is a prima facie presumption at common law that general words in a release are construed as being limited to the matters which were specifically in the contemplation of the parties at the time the release was given … A similar principle existed in equity. Where a party sought to rely upon the general words of a release, equity would consider whether such reliance would be unconscientious given the “true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor” … Whilst this establishes that evidence of subjective intention could be considered in equity but not at law … there is perhaps a debate as to how such evidence is to enter the analysis in equity. If the construction exercise is to be the same at law and in equity, the operation of the parol evidence rule would mean that evidence of subjective intention would only become relevant when assessing whether reliance on the objectively construed words of the release was unconscionable … However, there is appellate authority to the effect that a party’s subjective intention could inform the construction of a release …

53. There is a question as to whether the release granted by SWSLHD in cl 10 of the Deed encompasses actions that may be taken by the SWSLHD in creating or maintaining records concerning the plaintiff on the SCR. The better view is that it does not. The definition of “Claims” in cl 1 captures courses of action which, if pursued, may render the plaintiff liable “at law or in equity or under … statute” or involve the enforcement of such a liability. The creation of an entry containing information about the plaintiff on the SCR is quite different: it involves neither the creation nor the enforcement of any liability but instead, the creation of an administrative record on an internal NSW Health electronic database.

54. In any event, it does not appear that either existing or prospective action by the SWSLHD in relation to the entries on the SCR about the plaintiff was within the contemplation of the parties when giving their respective releases under the Deed, given that:

(a) the Policy Directive provides at [3.3] that “[t]he removal of a record without meeting the criteria cannot form a part of any agreements or settlements in industrial disputes or the like”; and (b) the Recitals to the Deed make no mention of the SCR (notwithstanding that the plaintiff was aware from letters dated 26 March 2021 and 19 October 2021 that her name either would be or had been entered on the SCR and would remain there in the circumstances set out in the Policy Directive), but simply provide that:

A. The Employee was employed with the LHD as a Registered Nurse since 13 November 2006 till date (Employment).

B. On 21 April 2021, the Employee lodged a complaint with the President of the Anti-Discrimination Board of New South Wales in c2021/0266 & 2021/0362 (the Proceedings). On 16 November 2021, the proceedings were referred to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal for a public hearing under section 93C of the Anti-Discrimination Act 1977 (NSW).

C On 16 December 2021 in NCAT mediation, the parties agreed, without admission of liability to resolve all issues between them in accordance with the terms of this Deed.

55. Finally, it is desirable to say something briefly about the threshold issue concerning whether action by a public authority pursuant to a non-statutory regime such as that represented by the SCR and related Policy Directive are amenable to judicial review. It is unnecessary, however, to resolve this issue in circumstances where the plaintiff has failed to establish any judicial review error. Many complex questions are raised as to the nature and scope of judicial review of actions by a public authority which are not sourced in primary or secondary legislation but rather in guidelines or policies. Some of those issues are explored in Dr Sapienza’s book referred to at [1] above, as well as in articles such as C Horan, “Judicial Review of Non-Statutory Executive Powers” (2003) 31(3) Federal Law Review 551 and J Griffiths, “Judicial and Administrative Review of Non-Statutory State Executive Power” (Keynote Address, Land and Environment Court Annual Conference 2022).

56. One of the complexities is whether different considerations arise in the Commonwealth context as opposed to a State context (see the analysis by the Full Court of the Federal Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23; [2021] FCAFC 213 and the subsequent discussion on appeal in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10).

57. Mr Sada submitted that the High Court’s decision in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 assisted the plaintiff’s claim that the impugned actions were judicially reviewable notwithstanding the non-legislative foundations for the SCR policy. Mr Sada then correctly acknowledged that this decision is probably distinguishable in circumstances where the non-statutorily authorised inquiries made by third party contractors in that case were linked to the exercise of statutory powers under s 46A or s 195A of the Migration Act 1958 (Cth). It is unnecessary to take that matter any further.

58. In this State, relevant authorities (which mainly focus on whether judicial review is available for procedural fairness in a non-legislative setting) include Hall v University of New South Wales [2003] NSWSC 669 at [114]; Stewart v Ronalds (2009) 76 NSWLR 99; [2009] NSWCA 277 at [67]-[70]; Karimbla Property (No 50) Pty Ltd v State of New South Wales [2015] NSWSC 778 at [66]-[74]; Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93]-[97]; and Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 at [187]ff.

59. Relevant authorities in other State jurisdictions include Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121 and L v South Australia (2017) 129 SASR 180; [2017] SASCFC 133.

60. It is also appropriate to refer to a judgment by the late Sir Anthony Mason who, said when sitting as a Non-Permanent Judge of the Hong Kong Court of Final Appeal in C v Director of Immigration (2013) 16 HKCFAR 280 at [77], that “it is now accepted that the foundation of judicial review is the rule of law” and that judicial review extends beyond the review of statutory powers to those which are “based on the prerogative and the common law”.

61. The resolution of these complex issues in an appropriate case may focus attention on the distinction between the traditional “prerogative writs” and the availability of declaratory or injunctive relief. Even if the “prerogative writs” are not available, equitable remedies may be available in respect of the exercise or failure to exercise a non-statutory executive power if the applicant has standing and a reviewable error is established (see generally Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581-2 per Mason CJ, Dawson, Toohey and Gaudron JJ and Davis at [57]-[62] per Kiefel CJ, Gageler and Gleeson JJ, but see also the obiter remarks in Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163 at [15] per Basten AJ and Kewin v AAI Ltd t/as GIO Insurance [2025] NSWSC 1425 at [40] per Mitchelmore JA, noting that her Honour’s obiter observations on this topic did not require any comment by the Court of Appeal in its recent decision in Kewin (CA)).

Conclusion

62. For all these reasons, the amended summons filed 17 December 2025 will be dismissed with costs.

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