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

(1) The substantive matter, having been commenced on 20 December 2024, was the subject of Conciliation before the Commission on 20 January and 18 February 2025. The matter did not finally resolve at Conciliation on those occasions.

(2) A third Conciliation was initially listed for 21 March 2025 (to enable the Applicant to obtain legal advice in the interim). That third Conciliation was relisted by consent to occur on 8 April 2025 (it having taken longer for the Applicant to obtain advice that initially anticipated), but ultimately did not proceed as the Applicant had still been unable to obtain that advice.

(3) On 15 April 2025, the matter was listed for Mention via AVL before Commissioner O'Sullivan. The Applicant appeared for herself and the Respondent was represented by Ms Irwin.

I note I have had the opportunity to review the transcript of the proceedings on 15 April 2025, and that the Applicant indicated she had, by that time, been able to speak to a solicitor and obtain some advice.

(4) In the course of the Mention that day, 15 April 2025, Commissioner O'Sullivan and the parties undertook further discussions with a view to resolving the proceedings. They began with a joint session. The Commissioner then adjourned to speak with each of the parties individually in private conference (using the AVL system), in a process well known to those who practice in this jurisdiction, described by Ms Irwin as involving the Commissioner 'shuttling' between the parties.

(5) There is no transcript recording what happened on 15 April 2025, after the matter was adjourned into private conference.

(6) Ms Irwin says (at [19]), based on a contemporaneous files note that have been produced:

"During the Mention, via shuttle conference, based on what was communicated to me by the Commissioner, I understood that the parties had reached an agreement in settlement of the Unfair Dismissal Application, on a without prejudice basis. The agreement was to be documented in a Deed of Settlement and Release with the following terms:

(a) The Respondent would pay the Applicant an agreed settlement sum;

(b) The Respondent would convert the Applicant's termination to a resignation;

(c) The respondent would recommend to the Chief Executive of the respondent that the Applicant's name be removed from the Service Check Register (SCR) after 3 months, or after such time the Nursing and Midwifery council of NSW makes a decision which results in the removal of the conditions on the Applicant's nursing registration, whichever is the sooner;

(d) A mutual release with a carve out for the Applicant to be able to pursue a complaint she has made to the health Care Complaints Commission in respect of a perceived breach of her son's privacy by the Respondent whilst he was a patient; and

(e) Non disparagement and confidentiality obligations."

(7) After the Commissioner had shuttled between the parties and agreement had been communicated, the Commissioner reconvened a joint session. Ms Irwin's contemporaneous file note typed as the Commissioner spoke (close to verbatim, according to Ms Irwin), records the Commissioner saying:

"Ms Ters, we have an in-principle settlement. Ms Irwin is going to put together that draft Deed that looks like a contract. The main aspects of the Deed, the first one is payment of 12 weeks less any tax that has to be deducted, the record amended to say you resigned, clauses in there about non disparagement and confidentiality, in terms of non-disparagement, something like, because they're an organisation, something like the Respondent will not authorise any communication which is designed to disparage you, there will be a provision the wording needs to be tweaked. A recommendation provided to the CE, to remove you from the NTBE after 3 months or the outcome of the Nursing Midwifery. You can still pursue the issue about your belief there has been a breach of privacy. I will set this matter down for a Directions in about 3 weeks, just in case there's any outstanding issues. 5 May, 11.30 how does that work?"

Ms Irwin says, whilst not captured in her file note, each of Ms Ters and herself had said "yes" in response to the Commissioner's question "how does that work?". The matter was then adjourned.

(8) Ms Irwin sent a draft Deed for the Applicant's consideration via email on 30 April 2025. An exchange of emails followed. Copies of that email chain are attached to Ms Irwin's affidavit. The Draft Deed itself was tendered at the hearing and marked Ex 1 on the Motion. I note the Applicant in her correspondence with Ms Irwin does not appear to have specifically responded to the terms of the Draft Deed, to suggest it was not consistent with the agreement reached on 15 April 2025. In an email to Ms Irwin dated 13 May 2025, the Applicant observed (amongst other things, my emphasis):

"Thank you for your email. After careful consideration and with the most recent events, I will be seeking further legal advice regarding my unfair dismissal as I potentially now have a strong case against the hospital. This is why I won't be rushing to sign the Deed of Settlement. I understand the hospital would probably want this all closed but unfortunately it now stands clear that the hospital was in the wrong with my termination."

(9) What the "most recent events" were, was not explained in the email. They were explained in the hearing today, and I will return to them shortly. Nonetheless, in the final email from the Respondent in the chain of correspondence around the draft Deed, and in response to the 13 May 2025 email from the Applicant, Ms Irwin, having referred to the Draft Deed reflecting the agreement reached between the parties, stated (amongst other things):

"If you seek to progress the matter before the Commission, our instructions are to oppose a hearing on the basis that an agreement to resolve the matter has already been reached. The Respondent intends to assert a binding agreement has been reached pursuant to Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353.

Our client is, however, willing to receive the Commission's assistance, via conciliation, to finalise terms of the Deed, should you wish for this to occur".

(10) The matter was listed for a teleconference on 27 May 2025. The Applicant again represented herself. Ms Irwin again represented the Respondent. Ms Irwin described the Applicant having said, on record, that she was not comfortable signing the Deed of Release. At the urging of Ms Irwin (the Respondent at that stage not being clear on what, if any, issue the Applicant had with the terms of the Draft Deed), the Commissioner went off record.

(11) From a contemporaneous file note prepared by Ms Irwin, it would appear the matter was off record for approximately 5 minutes. During that time the Applicant, according to Ms Irwin, said words to this effect "with what information I have got now, when I look at it, the deed of the release is a way of the hospital silencing me and ignoring there were other issues". It would appear from the file note that the part of the Deed the Applicant took issue with, at least at that time, was the "part of the deed where I am gagged and can't take proceedings against the hospital", it would appear because she believed she had a claim of unlawful discrimination against the hospital, and that such a claim related to the termination of her employment_._ Ms Irwin confirmed her client would not adjust the draft Deed to excise a potential discrimination complaint (noting the Respondent had already agreed to excise a then extant privacy complaint raised by the Applicant from the terms of the release in the Draft Deed),

(12) Once it became clear the Applicant would not sign the Draft Deed of Release, the matter went back on record and was programmed for hearing.

(13) At no stage in any of the above correspondence has the Applicant ever indicated that the terms of the Deed did not reflect the agreement reached on 15 April 2025, nor the Applicant asserted there was no agreement at that time.

1. I have had the opportunity to review the transcript of proceedings on 15 April 2025 and the Mention on 27 May 2025 before Commissioner O'Sullivan. As Ms Irwin observed in her affidavit, there was nothing recorded on transcript following adjournment into private conference on 15 April 2025. As for 27 May 2025, the following exchange is recorded at the commencement of the proceedings that day (which I note were dealt with via AVL, emphasis added):

COMMISSIONER: Ms Ters are we setting this matter down for hearing?

APPLICANT: Commissioner I am not comfortable singing the 2.31.15? bid of release.

COMMISSIONER: Well, if you don't sign it, I am just going to make orders now setting the matter down for hearing unless I am able to help resolve the differences between the parties. So, Ms Irwin, what says the respondent?

IRWIN: Commissioner, I wonder if it's worth at least have a very brief conversation off the record to see if there is an issue that can be resolved before we set it down. We're not entirely clear what the concern is so it might be helpful to flesh that out a bit.

COMMISSIONER: Ms Ters would you like to do that? Go off the record and we can see what it is that troubles you with the draft deed of release and see whether that can be resolved?

APPLICANT: Yes, Commissioner, I'd be happy to do that.

COMMISSIONER: Okay, thank you. Off record.

1. The matter was adjourned into private conference. When the matter resumed there appears to have been some difficulty with the recording equipment, but ultimately the Commissioner programmed the matter for hearing. There does not appear to have been any further discussion of relevance regarding the potential for there to have been a settlement, or its enforcement for that matter.
2. As noted above, the Applicant was directed to file and serve any evidence upon which she may rely on in resisting the Motion, including any response she may have to the affidavit of Ms Irwin, by close of business 10 July 2025. On that day the Applicant filed a document entitled "Response to Affidavit". The Applicant's response makes understandable but obviously misguided reference to aspects of the unfair dismissal regime under the Fair Work Act 2009 (Cth), rather than the Industrial Relations Act of New South Wales, but more importantly, largely addresses itself to contentions advanced in support of a conclusion that the Applicant's dismissal was harsh, unjust or unreasonable. It does, however, concluding by stating (emphasis added):

"I believe the Orders sought per Ms Irwin's affidavit are unfair and unjust seeing now that it is evident, without a doubt, that the hospital breached the Fair Work Act 2009 and terminated my employment due to reasons that could have been handled if I'd been Performance Managed. I request the Industrial Relations Commission make a fair and just decision due to the circumstances of my termination and lack of evidence from the hospital that a termination of employment was the only reasonable approach to handling the matter.

It is only fair that I am adequately and appropriately compensated for the damages done to my career, reputation and image through my unfair dismissal. I feel what was verbally agreed upon before Commissioner O'Sullivan is merely what I deserve, considering the hospital failed me as an employee by failing to properly adhere to the Fair Work Act 2009. My dismissal was unjustified and unnecessary and hospital breached the Fair Work Act 2009, dismissing me without taking steps to ensure all avenues were exhausted prior to my dismissal."

1. It is in those circumstances I come to consider the Respondent's Motion.

1. The Part 6 of the Civil Procedure Act 2005 (which applies to the Commission[2]), sets out a number of statutory dictates that are to guide the Commission when exercising discretionary powers associated with case management and interlocutory matters. They begin with a recognition that the "overriding purpose of [the Civil Procedure Act] and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings"[3], and charge the Commission with the obligation to "give effect to the overriding purpose when it exercises any power given to it by [the Civil Procedure Act] or by rules of court..."[4], noting the requirement to ac4t in accordance with the dictates of justice when making any Order or direction for the management of proceedings[5], and specific emphasis given to the elimination of delay "beyond that reasonably required" for the fair and just determination of the issues in dispute preparation of the case for trial[6], and so as to ensure costs remain proportionate to the importance and complexity of the matters in dispute[7].
2. Section 73, being the power substantively relied upon by the Respondent in support of the Orders sought on the Motion, is within Part 6 of the Civil Procedure Act and 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. The Commission has a specific power to make orders hen a matter is settled by conciliation in s 174 of the Industrial Relations Act, but I do not understand that provision to be inconsistent with the aforementioned provisions of the CPA.

1. The Respondent, as directed, filed a brief written outline of submissions in support of the Orders sought in the Motion on 10 July 2025. It is unnecessary to set them out in detail. They may be summarised as follows:

(1) In light of the facts outlined in Ms Irwin's affidavit, on 15 April 2025 the parties reached agreement on the key terms of settlement, and that there was nothing of substance left to be negotiated:

(a) the Respondent would pay the Applicant an agreed settlement sum;

(b) the Respondent would convert the Applicant's termination to a resignation;

(c) the Respondent would recommend to the Chief Executive of the Respondent that the Applicant's name be removed from the Service Check Registrar after 3 months, or after such time the Nursing and Midwifery Council of NSW makes a decision which results in the removal of the conditions on the Applicant's nursing registration, whichever is sooner;

(d) a mutual release with a carve out for the Applicant to be able to pursue a complaint she has made to the Health Care Complaints Commission in respect of a perceived breach of her son's privacy by the Respondent whilst he was a patient; and

(e) non-disparagement and confidentiality obligations.

(2) Relevant principles are to be drawn from the Masters v Cameron[8] line of authorities[9], and in the current case the Commission should be satisfied the parties reached a binding agreement because, on the evidence of Ms Irwin:

(a) The parties expressly agreed to the statement made by Commissioner O'Sullivan that an in-principle agreement had been reached, objectively demonstrating a concluded bargain. Reference to "in-principle" in this context merely reflecting the fact the parties agreed their agreement would be reduced to a formal document in the form of a Deed.

(b) The parties were agreed on "all the critical matters that one would expect to be the subject of agreement" in this context, again objectively consistent with a concluded bargain.

(c) At no time has the Applicant denied, in correspondence or otherwise, that a binding agreement had in fact been reached on 15 April 2025.

(3) The facts demonstrate an agreement of the first or second of the kinds of agreement described in the Masters v Cameron line of authority, both of which mean a binding agreement was reached. In those circumstances, the Commission ought dismiss (or alternatively permanently stay) the proceedings.

1. At the hearing today the Respondent's Counsel, Ms Bulut, additional oral submissions in support of the Orders sought in the Motion, and helpfully took the Commission to the decision of the Full Bench in Liszt v Health Secretary in respect of Sydney Local Health District (No.2) [2020] NSWIRComm 1078, and in particular I note paragraphs [18] and [19] of that decision.
2. At the hearing today, I invited the Applicant to say anything she may wish in addition to the document styled as a Response to Affidavit filed on 10 July 2025. I then asked the Applicant a number of questions designed to enable me to understand whether she took issue with anything in the affidavit of Ms Irwin as to what transpired on 13 April 2025 or 27 May 2025, and to understand some of the comments attributed to her in that affidavit and its annexures. As I understand the Applicant's position in answer to my questions, it is as follows:

(1) The Applicant did not disagree with the events described by Ms Irwin in her affidavit.

(2) The Applicant does not deny there was an agreement reached in the course of the off-record discussions on 15 April 2025, or that was intended to resolve the litigation. I specifically took the Applicant to paragraph [19] of Ms Irwin's affidavit to confirm she accepted that it reflected the terms of the agreement reached on that day.

(3) I took the Applicant to her email of 13 May 2025 to Ms Irwin, extracted above, indicating why she would not sign the draft Deed off Release sent to her by Ms Irwin. Specifically, what was meant by "most recent events" in the phrase "After careful consideration and with the most recent events, I will be seeking further legal advice regarding my unfair dismissal as I potentially now have a strong case against the hospital. This is why I won't be rushing to sign the Deed of Settlement..."[10]. The Applicant referred to having attended a psychiatric assessment and referred to a report of Dr M Atherton dated 2 May 2025, a copy of which was attached to her Response to Affidavit, which expressed various favourable opinions about the Applicant. In answer to a question from me confirmed that it was the fact she now had additional information, not then available at the time of the agreement of 15 April 2025, that led her to change her mind about the agreement reached on that day.

(4) I took the Applicant to that part of Ms Irwin's affidavit in which she is attributed to have said, off record in the proceedings on 27 May 2025, that "with what information I have got now, when I look at it, the deed of the release is a way of the hospital silencing me and ignoring there were other issues", and asked whether the report of Dr Atherton was the "information" she now had that she did not have before. The Applicant confirmed that was the case and also confirmed that it was the comments in that report and the fact the employer had not sought to raise performance concerns with her prior to her having raised a complaint about the handling of her son's care, that caused her to change her mind about settlement.

(5) Finally, I took the Applicant to a comment made by her in the transcript of the proceedings on 27 May 2025 in which she is recorded as having said she was "not comfortable signing the [Deed of Release]", and showed her Ex 1, asking her to identify any part of the draft Deed that she thought was not consistent with the agreement reached on 15 April 2025. In response, the Applicant again made a number of considered submissions directed to the merits of her dismissal. When I asked her to return to my question and identify what, if any, part of the draft Deed she considered did not reflect the agreement reached on 15 April 2025, she confirmed it was not that the terms of the draft Deed did not reflect the agreement reached on 15 April 2025 that led her to refuse to sign it, but rather that she now had additional information that made her reassess the strength of her case and had, to use the Applicant's words, caused her to "change her mind" as on the settlement.

1. The first question that must be answered is whether the parties had in fact reached a final and binding agreement to settle the proceedings on 15 April 2025, or whether there was no intention to create a binding agreement at that time at all unless and until they entered into a formal Deed (what is often referred to as the third category of case in the traditional taxonomy in Masters v Cameron)[11]. As was observed by Young CJ in Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235[12] at [55]:

"The vital question is always what the parties intended by the words they have used. In a case where the parties have expressly or impliedly indicated that there will be a further agreement, it is a question of construction whether the execution of a further contract is a condition of the bargain or else is merely an expression of the desire of the parties as to how their transaction will be completed: .... Each case turns on its own facts".

1. That an agreement was reached on 15 April 2025 is not in doubt. As would be apparent from the recitation of background facts, and as the Respondent emphasises, at no time has the Applicant asserted that there was in fact no agreement reached on 15 April 2025. Indeed, in the 10 July 2025 document she prepared specifically in response to the affidavit of Ms Irwin, the Applicant said, amongst other things (my emphasis) "I feel what was verbally agreed upon before Commissioner O'Sullivan is merely what I deserve...". She confirmed again her understand that there was an agreement to compromise the litigation reached on 15 April 2025, in the course of proceedings today.
2. The more important question is what was the nature of that agreement? Does it fall within one of the two binding categories contemplated in Masters v Cameron, or perhaps the additional category of binding agreement contemplated by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 628 and Sinclair, Scott & Co v Naughton [1929] HCA 34; (1929) 43 CLR 310 at 317, or was it in truth, nothing more than an "in-principle" agreement that was not intended to be effective unless and until the formal Deed of Release to be drafted by the Respondent's solicitors was complete.
3. It has been said "generally speaking, settlements in litigation are intended to be final as soon as the barristers or solicitors involved shake hands - whether they do that physically or notionally over the telephone. The reasonable litigator on the Bondi bus would think that as soon as the legal representatives have reached an agreement as to the principle on which the matter is to be settled then the cause of action has been converted into the new contractual right. Accordingly the situation is one where the first category of Master v Cameron applies, that is that there has been final mutual assent but the people who are to draw up the formal agreement have power to set it down but not alter its terms. "[13]
4. Of course, properly understood there is no general rule and each case will depend on its own facts. Nonetheless, the above passage from the judgment of Young J in Howe, reflects a recognition that the context in which an agreement is reached may inform an objective assessment of what the parties intended by their words and actions, particularly when that context includes compromising litigation.
5. I think the weight that context ought be given in an objective assessment of the parties words and conduct is somewhat (albeit not greatly) diminished, where one of the parties to the litigation is not legally represented. In other words, in my view, where the parties reach an agreement in resolution of a matter before the Commission that contemplates a formal Deed of Release, the Commission can have greater confidence that legally represented parties will make clear if that agreement compromising the litigation is not intended to reflect a final and concluded bargain prior to the completion of the formal document, if that indeed be the intent. I consider the Commission ought be mindful that a self-represented litigant, reaching an agreement described as 'in-principle', may be less likely to appreciate the potential significance of that agreement when they also understand the parties are to enter into formal agreement at a later time (whether it be styled as a Deed of Release or of some other kind).
6. In the instant case, it is particularly difficult to reach an objective assessment of what the parties intended by their words and conduct, because nothing was done in writing (unsurprising given the context in which the agreement was reached), and I have no direct evidence of the words used by the parties because the offers were in fact communicated between the parties by the Commissioner via the 'shuttling' process earlier described.
7. That assessment is further complicated by the observations made by the Commissioner on 15 April 2025 prior to adjourning. The Commissioner, having observed the parties had reached "an in-principle settlement", went on to observe "Ms Irwin is going to put together that draft Deed that looks like a contract". The Commissioner summarised "The main aspects of the Deed". In the course of describing the "main aspects of the Deed", the Commissioner said there would be "clauses in there about non disparagement and confidentiality" but that "in terms of non-disparagement, something like, because they're an organisation, something like the Respondent will not authorise any communication which is designed to disparage you, there will be a provision the wording needs to be tweaked". On one view, the substance of one of the "main aspects of the Deed", being that related to non-disparagement, was in fact not agreed between the parties at that time. The Commissioner's concluding observations were "I will set this matter down for a Directions in about 3 weeks, just in case there's any outstanding issues".
8. No reference is made in the 'in principle' agreement as to how the proceedings would be brought to an end (for example, by a Notice of Discontinuance or via consent Orders), or perhaps more importantly, what would trigger the obligation of the Respondent to make the agreed payment, and if so by what method and within what time of that triggering event having occurred, or what, if anything the parties considered would happen in the event there could be no agreement as to the terms of the Deed (for example, as to the non-disparagement term).
9. Without intending any criticism of the parties involved in this matter, this case stands as yet another cautionary tale about the potential pitfalls of insufficient care being taken by parties to properly document a settlement. Expedition and informality are two of the hallmarks of litigation relating to industrial matters, but in the context of recording a compromise of such litigation, there can be no substitute for clearly recorded written terms of agreement, acknowledged by both sides (preferably by a signature).
10. On the evidence, particularly the content of the Applicant's Response to Affidavit, and the answers given by the Applicant in the course of proceedings today, I do not think that this case falls within the third category of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72. In other words, on the evidence, I am not satisfied the objective intention of the parties was not to make a concluded bargain at all, unless and until they executed a formal Deed of Release.
11. I am satisfied the parties intended to finally compromise the litigation by the Agreement reached on 15 April 2025, the terms of which are not in dispute. There has been nothing put to me that could suggest that the Respondent has somehow repudiated that agreement or acted in a manner inconsistent with it. Indeed, the Applicant's position at the hearing today makes clear her refusal to sign the Deed of Release does not arise from any particular concern as to its terms, but rather from the fact new information obtained after the agreement was reached on 15 April 2025 has caused her to reassess the merit of the bargain she struck on that occasion.
12. That is not a proper basis upon which to allow a party to depart from what was otherwise a clear agreement to compromise extant litigation on agreed terms.
13. In the agreement reached on 15 April 2025, the parties had reached no agreement on precisely how these proceedings should be concluded. There is at least the potential for them to agree (as a part of the finalisation of the Deed) to conclude these proceedings in a manner that requires the making of final Orders. In those circumstances, I make the following Orders in resolution of the Motion:

(1) Matter No. 2024/475226 is stayed pending further Order of this Commission.

(2) The hearing currently listed to commence on 5 August 2025, and all other procedural directions, are vacated.

(3) The parties have liberty to apply to have the matter relisted on the giving of 24 hours written notice, for further Directions.

[1] Noting sections 86 and 87 of the Industrial Relations Act.

[2] See s 4 and Schedule 1 of the Civil Procedure Act; Rule 1.5 and 1.6 and Schedule 1 of the Uniform Civil Procedure Rules 2005.

[3] Section 56, Civil Procedure Act.

[4] Section 57, Civil Procedure Act.

[5] Section 58, Civil Procedure Act.

[6] Section 59, Civil Procedure Act.

[7] Section 60, Civil Procedure Act.

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

[9] referring to Fitzgerald & Ors v Wake & Ors [2022] SASC 47; Holt v Bunney [2020] SASFC 89; and decisions of this Commission including Diver v Object Oriented Pty Ltd [2002] NSWIRComm 138; 119 IR 265 and Dr Payne v The University of Sydney & Anor [2000] NSWIRComm 102.

[11] The traditional taxonomy described by the Court in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360.

[12] His Honor there echoing the observations of the Court of Appeal in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634, affirming the well known decision of Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, 628 and Sinclair, Scott & Co v Naughton [1929] HCA 34; (1929) 43 CLR 310 at 317.

[13] Howe and Anor v Connell [1997] NSWSC 432.