Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Milne Hall) v Sydney South West Area Health Service

CATCHWORDS: Unfair dismissal - Appeal - Practice and procedure - Clinical academic employed by University - Claim that also employed at the same time by Area Health Service - Claim that Area Health Service had unfairly dismissed applicant - Decision at first instance to dismiss unfair dismissal claim on the ground that there was no intention to create legal relations and so no contract existed between applicant and respondent Area Health Service - Decision appealed - New evidence following handing down of judgment at first instance and prior to finalisation of appeal - Parties sought to have appeal upheld and the matter remitted to a single member to deal with new evidence - Disagreement over whether remitter should be limited to jurisdictional issue or both merit and jurisdiction - New evidence of a limited nature - Full Bench to hear new evidence and determine appeal

Practice and procedure - Unfair dismissal - Appeal - Clinical academic employed by University - Claim that also employed at the same time by Area Health Service - Claim that Area Health Service had unfairly dismissed applicant - Decision at first instance to dismiss unfair dismissal claim on the ground that there was no intention to create legal relations and so no contract existed between applicant and respondent Area Health Service - Decision appealed - New evidence following handing down of judgment at first instance and prior to finalisation of appeal - Parties sought to have appeal upheld and the matter remitted to a single member to deal with new evidence - Disagreement over whether remitter should be limited to jurisdictional issue or both merit and jurisdiction - New evidence of a limited nature - Full Bench to hear new evidence and determine appeal

LEGISLATION CITED: Industrial Relations Act 1996 s 191(2)

CASES CITED: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101

HEARING DATES: 19 March 2007 and 28 May 2007

APPELLANT Mr R Kenzie QC with Mr P Ginters of counsel Mr S Mead Australian Salaried Medical Officers' Federation (New South Wales)

LEGAL REPRESENTATIVES: RESPONDENT Mr H J Dixon SC with Mr A R Moses of counsel Ms K Crawshaw and Mr A Berendsen NSW Department of Health

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Milne Hall) v Sydney South West Area Health Service

Application by Australian Salaried Medical Officers' Federation (New South Wales) on behalf of its member, Bruce Milne Hall, for leave to appeal and appeal from a decision of Justice Staff given on 28 March 2006 in Matter No IRC 1427 of 2005

1 In Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101, a decision given on 28 March 2006, Staff J determined that Professor Bruce Milne Hall was excluded from obtaining relief under Ch 2 of Pt 6 of the Industrial Relations Act 1996 because he was not an employee of the Sydney South West Area Health Service. His Honour consequently dismissed the application for relief from unfair dismissal filed on Professor Hall's behalf by his union, the Australian Salaried Medical Officers' Federation (New South Wales) ('ASMOF'). 2 ASMOF, on behalf of Professor Hall, sought leave to appeal and to appeal the decision of Staff J. The appeal came before the Full Bench for hearing on 25 September 2006. The hearing did not conclude on that day and was adjourned to 28 November 2006. However, the November hearing date was vacated in favour of continuing conciliation between the parties. On 13 December 2006, the Full Bench was advised the conciliation that had been conducted under the chairmanship of Walton J, Vice-President was unsuccessful. Consequently, a further hearing date was set for 19 March 2007. 3 When the matter came on for further hearing on that date, the Full Bench was advised that the parties had arrived at an agreement as to the disposition of the appeal, the terms of which were set out in short minutes of order. The terms were as follows: By consent, the Court orders:

1. The Appellant be granted leave to tender the Appellant's Affidavit filed 26 October 2006 and MFI A. Note: It is noted that the Respondent reserves the right to object to the admissibility of the Appellant's Affidavit filed 26 October 2006 in any subsequent hearing before a member of the Commission;

3. The Appeal be upheld and the decision and order of Staff J be quashed. Note : It be noted that the Respondent's position is that had the Appellant's Affidavit filed 26 October 2006 and MFI A been before Staff J, the presence of that Affidavit and MFI A would have impacted upon its decision to press, as a preliminary interlocutory issue, an objection to the Commission's jurisdiction to entertain the Appellant's claim;

4. The matter be remitted to a member of the Commission for a hearing. In that respect, it be noted that the Respondent will raise as part of the substantive hearing, the standing of the Appellant to seek relief from the Commission; 5. There be no order as to Costs. 4 The Full Bench indicated to the parties that it was prepared to make Orders 1, 2, 3 and 5 by consent but that it wished to hear the parties further in relation to order 4, particularly as to whether it was open to the Full Bench to remit the matter to a single member of the Commission on a limited basis and, if it was open, the precise basis upon which the parties proposed it should be so remitted.

5 The parties duly filed written submissions. However, counsel for the appellant advised that they wished to be heard orally in relation to the matter. That opportunity was provided to the parties on 28 May 2007.

6 In the proceedings on 28 May 2007 and in the light of the appellant's submissions, it became apparent to the Full Bench that in order to make an informed decision about the most appropriate course to be adopted, it would be necessary for the Full Bench to know the nature of the respondent's evidence in response to MFI 'A' and Professor Hall's affidavit of 26 October 2006, and any material of the appellant in reply. Directions were made for the filing and service of the evidence and material. 7 Subsequently, the respondent filed an affidavit of Dr Colin MacArthur who was General Manager of Liverpool Health Service from April 1991 until May 2000. Dr MacArthur acknowledged that he sent a copy of MFI 'A' to all clinical academics, including Professor Hall. However, he had no recollection of the meeting in January or February 2000 referred to in Professor Hall's affidavit, and no recollection of a discussion regarding the NSW Health Code of Conduct. Dr MacArthur denied counselling Professor Hall in the context of his employment status. Dr MacArthur also stated it was his understanding that "Professor Hall would remain an employee of the University of New South Wales." The appellant's material in reply consisted of a further affidavit of Professor Hall answering Dr MacArthur's affidavit by re-affirming his assertions in his affidavit of 26 October 2006, and an affidavit of Mr Simeon Mead, Executive Director of ASMOF, annexing a number of documents, including MFI 'A' belatedly produced by the respondent in answer to a summons for production issued at the request of ASMOF in 2005. 8 A further document produced in answer to the summons and annexed to Mr Mead's affidavit was a memo dated 21 May 1999 from the Acting Director General of the Health Department to the Chief Executive Officer of South Western Sydney Area Health Service, which was in similar terms to MFI 'A' but which did not refer to or attach a circular outlining the new arrangements to apply to clinical academics. It is not clear, on its face, what the relevance is of this May 1999 memo except that it acknowledges the agreement with ASMOF concerning the new remuneration arrangements for clinical academics some seven months before MFI 'A'. The issue

9 The proceedings before Staff J were interlocutory in nature. That is, the respondent raised a jurisdictional objection to the Commission dealing with the unfair dismissal application on the ground that Professor Hall was not an employee of the respondent. Taking the appellant's evidence at its highest Staff J upheld the respondent's jurisdictional point and found there was no employment relationship with the respondent because there was no intention on the part of Professor Hall and the respondent to create legal relations and so an essential element in the making of a contract had not been made out. 10 Following the handing down of the decision at first instance, new material had come to light in the form of MFI 'A' and the associated affidavit of Professor Hall referred to in Order 1 of the proposed consent orders, going to issues central to the Professor's case that he was a party to an employment contract with the respondent. MFI 'A' purported to be a Health Department memo from the Director General to the Chief Executive Officer regarding remuneration arrangements for clinical academics. It referred to "… certain clinical academics who will be appointed as part time employees by Health Services." The memo was purportedly circulated to Professors and senior lecturers at Liverpool Hospital, including Professor Hall. The affidavit of Professor Hall sworn on 24 October 2006 referred to MFI 'A'. In his affidavit Professor Hall asserted that he received a copy of MFI 'A' in January 2000 and in about January or February 2000 had a conversation with Dr Colin MacArthur, General Manager of Liverpool Hospital, in which it was contended Dr MacArthur referred to MFI 'A' as "relating to the change in employment status" and reminding Professor Hall of the requirements of an employee's obligations under a "Code of Conduct" not to make comment in the media. 11 The parties accepted that it was not appropriate for the Full Bench to simply admit such evidence on the appeal and seek to deal with it as fresh evidence admitted under s 191(2) of the Act because it would involve cross-examination and possibly evidence in rebuttal. The parties agreed that the appropriate course was to uphold the appeal, quash the decision and order of Staff J and to remit the matter to a member for hearing, noting that the respondent reserved its right to object to the admissibility of Professor Hall's affidavit before that member and to raise, as part of the proceedings, the standing of the appellant to seek the relief claimed. 12 There was a significant difference, however, between the parties as to what was appropriate to be remitted. The respondent contended that the matter should be remitted with the following directions: (i) The question of whether the applicant was, at the relevant time, an employee of the respondent be tried and determined separately and before any trial of the merits of the application brought in Matter No. IRC 1427 of 2005;

(ii) For the purposes of the determination of the separate question referred to in paragraph (i): (a) the parties be required to present any evidence they wish to rely upon in affidavit form, and will have liberty to cross examine any witness called;

(b) [the member] hear and determine the question on the evidence so presented and make any appropriate findings and orders to determine the question. 13 In other words, the respondent contended that the Full Bench should only remit the matter for the purpose of determining whether Professor Hall was an employee and that should be done prior to and separately from any trial of the merits of Professor Hall's application for relief. 14 The appellant contended otherwise; that the most practicable, quick and cost effective means of resolving the matter was for the Full Bench to refer the matter in its totality to a member of the Commission for hearing and determination. The appellant also contended the matter should not be remitted to Staff J because his Honour had "already formed views about matters of material significance".

15 The Full Bench has received the parties' submissions in the appeal and heard oral argument in November 2006 when the appeal hearing was adjourned to allow conciliation, which was unsuccessful. So the bulk of the appeal has been heard.

16 It is apparent that the new evidence is of a quite limited nature. It consists essentially of an affidavit of Professor Hall relying on MFI 'A' and on an alleged conversation in 2000 with Dr MacArthur, and an affidavit in rebuttal of Dr MacArthur.

17 Despite the agreement of the parties that the appeal should be upheld and the matter remitted to a single member (either to re-hear the jurisdictional issue or hear both jurisdiction and merit), we consider that, given the limited nature of the new evidence, the most expeditious and convenient course would be for the Full Bench to receive the further evidence and deal with the appeal to finality rather than remit the matter.

18 If we remit the matter to deal with jurisdiction, given its history, there is the likely prospect that whatever the outcome the losing party will appeal and the matter will be no further advanced than what it presently is. Similarly, if we were to remit the matter to a single member to deal with the whole of the proceedings, and there was subsequently found to be no jurisdiction to grant the relief sought by Professor Hall, the course adopted would be correctly seen in hindsight to have been inefficient and inappropriate. Having regard to the length of time this matter has already taken and the amount of litigation that has been involved, it does not seem to us it would be in the public interest to adopt a course that would, in all probability, lead to further delay and additional cost.

19 The power of the Full Bench on appeal to receive further evidence is, of course, provided by s 191(2). Further, although we initially indicated we would, in due course, make orders granting leave to appeal and upholding the appeal, we have not yet made those orders. Now that we know the limited extent of the new evidence to be adduced in the appeal we do not propose to make orders disposing of the appeal at this stage. Given the parties' agreement that the jurisdictional question should be reviewed in the light of any new material admitted, we consider that it is appropriate to grant leave to appeal (also bearing in mind the parties' consent in that respect) but we will hold over the ultimate disposition of the appeal until we have resolved the jurisdictional question in these proceedings. 20 Having regard to that conclusion, we consider that, subject to any objection as to the new material, we would grant leave to introduce that material into the appeal as fresh evidence pursuant to s 191(2) of the Act. 21 We propose to list the matter for directions before the Full Bench at 9:30am on Monday 30 July 2007. If there be no objection to the admission of fresh evidence on that occasion, we will then fix a hearing date for the purpose of having the new material tested and finalising submissions (including submissions relating to the new material) in the appeal. If there is a dispute as to the granting of leave to introduce the fresh evidence or objections thereto, the parties should be in a position to file written submissions in Court as to that issue, with a view to that matter being resolved as soon as possible.

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