Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100

Industrial Relations Commission (NSW)|2025-11-26|Before: Taylor J

The application and the appellants' primary written submissions were entirely directed to the adequacy of the settlement terms in light of the strength of her underlying claim. That is, they were directed to obtaining a finding that as a matter of fairness she ought to have been able to resile from the agreement she had reached on 15 April 2025. Such a case was misguided, since the adequacy of the terms was not a matter that was relevant to Commissioner Howell's decision.
The appellants' reply submissions on appeal however relied on further grounds. First, she contended that the agreement was not documented in writing. It was not clear from the written submissions whether this was intended to convey that the agreement reached was an agreement in the Masters v Cameron third category, namely an agreement that was subject to, and would only binding upon the entry into, a subsequent written contract. It may not have been, given that the appellant did refer more than once to the existence of a "binding contract" before us, and in submissions below referred to it not being fair to hold her to "the agreement".
While the appellants' submissions on this point were unclear, we are content to assume that it was at least arguable that the agreement reached on 15 April 2025 was in fact an agreement in the Masters v Cameron third category, and so not binding.
Both Commissioner O'Sullivan and the subsequent draft deed referred to the agreement reached on 15 April 2025 as an 'in-principle' agreement. The expression 'in-principle' ordinarily conveys an expression of "general intentions",[29] not binding agreement.
Commissioner O'Sullivan, who conducted the conciliation and expressed its terms to the parties, listed the matter for further report back 3 weeks after 15 April 2025 in case he needed to provide further assistance. Later, having been told the deed had not been signed, the Commissioner set a timetable for hearing. Arguably this conduct suggests that the Commissioner, at least, did not consider that an agreement had been definitively concluded on 15 April 2025.

"Whenever a court or tribunal is asked to determine whether a binding contract was made due to the parties being in dispute over that fact, one of the parties to the putative agreement will be asserting a lack of the requisite intention. The court or tribunal is however, only concerned with establishing whether the established facts and circumstances, assessed objectively, establish the elements of a binding contract."[30]

The respondent accepts that it has suffered no prejudice.
There is prejudice to the appellant if an extension of time is not granted.

Considering all of the circumstances, we determine not to extend time to appeal, given the absence of a reasonable explanation for failing to file the application for leave to appeal and appeal within time. That is our view even assuming the appellant has an arguable case. Ultimately it is in the public interest that such proceedings be litigated promptly and that a successful litigant can proceed on the basis that a decision in its favour will stand in the absence of an appeal being filed within the time prescribed. A mistaken understanding of a time limit, without any adequate reason for that understanding, does not provide a proper basis to extend time. The consequence of our decision is that the proceedings are brought to an end.

The Full Bench refuses to allow further time to bring the appeal.

[1] Ters v Health Secretary, NSW Ministry of Health in respect of the Sydney Children's Hospital [2025] NSWIRComm 1050.

[3] Ters v Health Secretary, NSW Ministry of Health in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1050 at [19].

[5] It was in fact dated 2 May 2025, as recorded in the Decision and correctly dated in Ms Ters' Notice of Motion.

[6] Liszt v Health Secretary in respect of Sydney Local Health District (No 2) [2020] NSWIRComm 1078 at [17].

[9] (1994) 34 NSWLR 155 at 160, cited in Electrical Contractors Association of NSW v Electrical Trades Union of Australia, NSW Branch (2003) 130 IR 284; [2003] NSWIRComm 404 at [81]; SafeWork NSW v Visscher [2021] NSWIRComm 1051 at [15].

[10] Electrical Contractors Association of NSW v Electrical Trades Union of Australia, NSW Branch (2003) 130 IR 284; [2003] NSWIRComm 404 at [83], [84], citing Wilson v The Prothonotary [2000] NSWCA 23 at [47] and Townsend v Townsend [2001] NSWCA 136 at [64].

[11] GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 633.

[14] Feldman v GNM Australia Ltd [2017] NSWCA 107 at [68].

[15] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360.

[16] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360.

[17] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360.

[18] Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 627.

[19] See Federated Engine Drivers' and Firemen's Association of A/asia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415; [1911] HCA 31.

[20] See, eg, Workcover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-300; Carvacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247; [2002] NSWIRComm 341 at [40]-[43].

[21] Cavacuiti v Toyota Motor Corporation Australia Pty Ltd (2002) 122 IR 247; [2002] NSWIRComm 341 at [41], citing Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262.

[22] R v Lesser (1940) 27 Cr App R 69 at 71; [1939] 3 WLUK 32.

[23] See Cachuela v Commissioner of Police [2025] NSWIRComm 1 at [8]; Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 13 at [13].

[25] Rawlinson v M & CK Engineering Services (WA) Pty Ltd [2018] FWC 304; Hambridge v Spotless Facilities Services Pty Ltd (2017) 271 IR 360; [2017] FWCFB 2811.

[26] Spears v South Australian Wine Group Pty Ltd [2024] FCA 948.

[28] Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009.

[29] Macquarie Dictionary, online ed, accessed 18 November 2025.

[30] Mallegowda v Hawkesbury City Council [2024] NSWIRComm 1048 at [65].

Civil Procedure Rules 2005

Uniform Civil Procedure Rules 2011(NSW)rr 12.11, 13.4

Federated Engine Drivers' and Firemen's Association of A/asia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398

Feldman v GNM Australia Ltd [2017] NSWCA 107

Hambridge v Spotless Facilities Services Pty Ltd (2017) 271 IR 360; [2017] FWCFB 2811

Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257

Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWAFB 975

Rawlinson v M & CK Engineering Services (WA) Pty Ltd [2018] FWC 304

Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310; [1929] HCA 34

Spears v South Australian Wine Group Pty Ltd [2024] FCA 948

Wilson v The Prothonotary [2000] NSWCA 23 Townsend v Townsend [2001] NSWCA 136

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (22)