Australian Salaried Medical Officers Federation (NSW) v State of New South Wales

Supreme Court of NSW|2023-06-07|Before: Garling J

Proceedings Generally

The Australian Salaried Medical Officers' Federation (New South Wales), ("ASMOF"), has commenced four separate sets of proceedings against the State of New South Wales ("the State") ("the four proceedings"). The first proceeding was commenced in 2021 ("the 2021 proceeding"). Three further proceedings were commenced in 2022 ("the 2022 proceedings").
The 2021 proceeding claims that NSW Health contravened the applicable Public Hospital Medical Officers (State) Awards and underpaid various nominated medical practitioners. This proceeding is one in which ASMOF brings the claim on its own behalf for a civil penalty and declaration of contraventions of the awards, and on behalf of 20 specified junior doctors for underpayment.
The 2022 proceedings are brought on behalf of respectively 14, 15 and five individual doctors.
There are, in total, claims being made in the four proceedings on behalf of 54 identified junior doctors.
The claims cover differing periods and involve a time range from 2016 through to and including 2022. Each of the "individual claims" (a phrase I use to describe the claims of the doctors on whose behalf ASMOF has brought proceedings), cover various periods and various departments within public hospitals and often more than one public hospital. The claims touch upon two subject matters, namely, payments due to the doctors for unpaid, un-rostered overtime and unpaid compensation for meal breaks which could not be taken.
The four Statements of Claim, except for the details contained in a schedule about the individual doctors, are in identical terms. The same industrial awards are relied upon. The specific provisions of those awards are identified in the same way in the pleadings, and the contraventions which are alleged are against similar provisions, although bearing different characteristics respectively for each individual nominated doctor.
In the course of the pleadings, it is pleaded that the various contraventions arose during a defined period known as "the relevant period". That relevant period is defined in the same way in each Statement of Claim. It means the period of time for the relevant conduct and events occurring in the six‑year period prior to the commencement of proceedings. Obviously, the starting point of time for that relevant period will be different. However, that difference is unlikely to be material because the contraventions which are relied upon will run from the first day of the period of the 2021 proceedings until the last day of the proceedings last filed.

Notice of Motion by the State

The State moves by Motion in each of the four cases (which are in identical form) to seek: 1. orders that the four proceedings be consolidated into one; 2. orders that there be an Amended Statement of Claim filed which makes any necessary amendments as a consequence of the order for consolidation; and 3. an order to give effect to that consolidation by defining the date upon which proceedings were commenced on behalf of the various doctors.
In the alternative, the State seeks an order that the four proceedings be heard and determined together with the evidence in each case being the evidence in the others.
ASMOF opposes the orders sought in the Notices of Motion.

Parties' Submissions

Each party has, in their submissions, identified various relevant considerations for the Court in determining whether to make an order for consolidation. Those integers have been identified in a variety of decided cases. Not every case that comes before the Court involving a proposal for consolidation will have the same integers. Different judges will place different weight on different factors in determining the appropriate course.
Simply put, what the Court is required to do when confronted with a series of motions and a series of proceedings such as these is to make an order which advances the overriding purpose contained in s 56 of the Civil Procedure Act 2005, namely, to make orders which enable the just, quick and cheap resolution of the real issues in the proceedings.
I note that in Ghose v CX Reinsurance Company Limited [2010] NSWSC 110 at [27], Austin J suggested that: "… the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else… ."
As a matter of fact, some hospitals will have claimants in the four proceedings, some will have claimants in a lesser number of proceedings, and many will have claimants in only one proceeding. The same spread will apply for particular hospital departments, although most hospital departments only have a limited number of claimants.
It is also clear from a review of the features of the four proceedings, that in respect of claims involving identified employees, hospitals or particular hospital departments, not all of the claims are identical. By that, I mean that not all claims involving, for example, the Central Coast Local Health District or the Gosford or Wyong Hospitals, are necessarily encompassed in one proceeding. However, I note that in that example, with the exception of one individual, they are all in the same proceeding.
To take another example, of the Western Sydney Local Health District and Blacktown Hospital, the Blacktown Hospital has claimants in each proceeding and more than one claimant in each department.
The State submits that consolidation should be ordered, because although it cannot with precision identify individual witnesses who may be required to give evidence for it in more than one proceeding, the probabilities are, having regard to the spread of claims, that there is a substantial overlap in the proceedings, both in the time periods covered, and in the subject hospitals and hospital departments.
It submits that given such overlap it is probable that witnesses will likely be called in more than one proceeding. This is especially so where witnesses will give evidence of general policies and processes at a hospital level, of various departmental practices and procedures at the relevant time and of matters of context with respect to all claimants at a particular hospital at a particular time.
It submits further that similar or identical questions of law about the proper construction of the industrial awards, or common questions of fact such as how one or another department of a hospital operated across a period, are likely to arise in each proceeding.
It further submits that consolidation is likely to advance case management issues without causing any prejudice to the plaintiffs, and that consolidation avoids any difficulties with respect to any procedural issues and admissibility of evidence issues.
It also submits that in the absence of any agreement or proposed methodology by which findings of fact or determinations of law in one set of proceedings would be legally binding on those in subsequent proceedings, the only effective method of ensuring consistency in findings and to avoid inconsistent judgments is to consolidate the matters into one suit.
Finally, it makes a submission that consolidation would avoid difficulties relating to the application of civil penalties: "… there would be additional complexities in dealing with [the four proceedings] separately because they seek civil penalties. For example, if the Court were to accept ASMOF's position that it could rely on admissions made by NSW Health in the [2021 proceedings] in the [proceedings] heard subsequently, this may have the effect of exposing NSW Health to a penalty by its own mouth. Further, if the Court were to find that NSW Health engaged in any of the alleged contraventions, it would be necessary in assessing any appropriate penalty to take into account any commonality between NSW Health's conduct across the [proceedings], to avoid double punishment (the common law 'course of conduct' principle). This would be more difficult if the [four proceedings] were not consolidated." (citations omitted)
I pause here to note that I do not regard that submission as being of any weight. The fact is that, consistently with any proceeding involving the establishment of contraventions and the imposition of a civil penalty, a hearing resulting in factual findings of whether any contraventions have occurred and, if so, what they were and the nature and extent of them, is followed by a separate and subsequent hearing on questions of the penalty including relevant facts which may go to the nature and quality of the contraventions and any mitigating factors.
As I have earlier said, ASMOF opposes the consolidation. It says that consolidation would cause unfair prejudice to it in circumstances where the 2021 proceedings are at a far more advanced stage than the 2022 proceedings. That advanced stage is reflected in the fact that the plaintiff has filed all of its lay evidence with respect to the 20 individual complainants in the 2021 proceedings. If the proceedings are consolidated, then those 20 claimants will be significantly delayed in the prosecution of their claim.
Secondly, it submits that the material relied upon by the State does not provide any evidence of any substance which would persuade the Court that the consolidation of the proceedings would save any material, Court time or expense to the parties. It submits that a better way of achieving such a course would be for the 2021 proceedings to continue to a full hearing.
Thirdly, it submits that if all 54 individual claims were to be consolidated into one set of proceedings, one would have a very lengthy, protracted, complex and confused hearing given the number of witnesses likely to be called, and given the differences in the facts which relate to the individual claimants.
Fourthly, it submits that, having regard to what it perceives to be the central issues in dispute in the proceedings, there is no real prospect of inconsistent results if the 2021 proceedings is heard separately and before the 2022 proceedings. It points to the fact that what is really in issue is a series of individual claims which depend upon: 1. the particular facts of each claimant, namely, where they were in terms of which hospital and which department; 2. what claims they articulate having regard to the particular hospital department's practice and procedure; 3. what contraventions occurred; and 4. in what sum they were underpaid.
It submits that, really, when viewed from that perspective, the claims are fact‑specific so that different judgments can be expected. Nevertheless, it submits that that does not mean that they are, or are likely to be, inconsistent.
Finally, ASMOF submits that the State is not exposed to any prejudice from the proceedings being heard separately. In particular, it submits that the State's claim of prejudice arising from the possibility of the imposition of a civil penalty is not well-founded. I have already indicated that I have put that claim to one side.

Discernment

Ultimately, it is a matter for me, having weighed up these submissions and the integers and the claims of prejudice which have been drawn to my attention, to decide how the interests of justice are best served.
I have come to the conclusion that the orders which are most consistent with the overriding purpose contained in s 56 of the Civil Procedure Act and with the interests of justice to all parties and which are most efficient, are those which consolidate the proceedings as sought by the State.
In coming to that conclusion, the following matters strike me as being of importance.
The first is that, with the exception of the named individual doctor claimants and the variation in the precise calendar years covered by the claims, the Statements of Claim and the contraventions which are covered are pleaded, in all relevant respects, identically. The Defences are also pleaded in identical terms.
Accordingly, whilst ever there remain the four proceedings on foot which are for practical purposes being managed together, the parties are required to file four separate sets of pleadings, four separate sets of interlocutory motions and affidavits and four separate sets of documents. That is an expense which, as a matter of substance, is unnecessary, and ought to be avoided if at all possible consistently with the interests of justice.
Secondly, unlike some other matters in which consolidation is sought, consolidation can in fact be achieved in a practical and substantive way very easily. Any amended pleading will not carry additional complexity.
Thirdly, it seems to me that, leaving aside particular facts relating to particular complainants, there are some legal and factual issues which are likely to be common between all proceedings. For example, questions of the interpretation of and the application of the relevant industrial awards, of any directives or policies of New South Wales Health, and of any procedural requirements of the hospitals before claims can be made of the kind that are claimed here.
In those circumstances, unless there is an effective mechanism whereby all complainants will be legally bound to findings and conclusions, there is a real risk that there will be separate hearings and separate judgments required. If those judgments are the result of proceedings before different judges of this Court, there is a real risk of inconsistency of those judgments. As well, for reasons connected with the risk of the appearance of bias of a judge through pre‑judgment of issues, it is unlikely that one judge having heard and determined one matter would feel able to determine the subsequent matters.
Fourthly, when one examines the spread of Local Health District hospitals and hospital departments, whilst there are a considerable number of departments with only one claimant, there are also a significant number of departments with more than one claimant. In those circumstances, there is, in my assessment, at least a probability that similar witnesses will be called to give evidence with respect to hospital department practice and procedure. Likewise, as some individual doctors are spread across the four claims, there is a real prospect of those doctors having to give evidence on more than one occasion.
Fifthly, as already touched upon, neither party proposes or has agreed upon a test case procedure by which all parties affected by the litigation (by which I include for present purposes the individual doctors with their own claims) would be legally bound to the findings and conclusions in the first set of proceedings which is heard and determined.
Sixthly, I note that both parties agreed in the course of their respective oral submissions that in the event of consolidation, it would be highly unlikely that the Court would embark upon a single hearing to determine all claims of the 54 individual doctors at the same time. Rather, counsel for both parties accept that, by the application of ordinary case management procedures, it will become necessary to find the appropriate procedure by which a limited number of claimants have their claims dealt with initially, and then to work out a procedure as to how the claims of those claimants can be agreed or else determined by a judge to bind all other claimants.

Conclusion

Ultimately, the issue is whether the Court is satisfied that consolidation, as contended for, is the most efficient way of proceeding. In my respectful view, on balance, it is the most efficient way of proceeding.
The effect of this conclusion is that the parties will need to consolidate the four proceedings into the 2021 proceeding and will need to add the individual claimants in each of the 2022 proceedings into those proceedings by way of a separate schedule which reflects the date of commencement and, hence, the different relevant period for each of those separate groups of individual doctors.

Orders

The Court makes the following orders: 1. Order pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that Supreme Court proceedings 2021/335846, 2022/114583, 2022/148391, and 2022/379420 be consolidated. 2. Order that the consolidated proceedings bear proceedings number 2021/335846. 3. Order that the Further Amended Statement of Claim in proceedings number 2021/335846 be the Statement of Claim in the consolidated proceedings. 4. Order the plaintiff to file and serve a Second Further Amended Statement of claim, making any necessary amendments as a consequence of the consolidation of the proceedings by 28 June 2023. 5. Order the defendant to file and serve its defence to the Second Further Amended Statement of Claim by 12 July 2023. 6. Direct that the consolidated proceeding is taken to have commenced in relation to each specified employee on the date of commencement of the individual proceeding relating to that specified employee. 7. Stand the proceedings over for further directions before Garling J on 19 July 2023 8. Order that costs of the Notice of Motion filed 14 April 2023 are to be costs in the cause. 9. Liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2023

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