Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association

In the circumstances that apply the employees are not entitled to the voluntary redundancy package described in the Policy Directive. The Policy Directive is concerned with managing displaced staff members and describing the conditions applicable and the administrative procedures to be followed when a staff member of the appellant is excess to the workforce needs in which employed. None of the employees were " displaced staff " or excess to the workforce needs of the Appellant. Voluntary redundancy provisions apply where redeployment is not practical. The Appellant required the work to be done and the employees remain employed by the Appellant.

Voluntary redundancy is dealt with specifically in clause 12 of the Policy Directive. The term " voluntary redundancy " is not defined in the Policy Directive. Thus, what is accepted when voluntary redundancy is accepted under the Policy Directive is not defined. 89The appellant contended that 'redundancy' connotes the circumstance that exists when an employer no longer desires to have performed the job which the employee was undertaking. Redundancy is concerned with the decision of the employer in circumstances in which the employer decides that it no longer requires the job to be performed. The entitlement to payment specified in cl 12.5 of the Policy Directive is an entitlement that arises on termination of employment including a staff member who has "accepted" voluntary redundancy. 90The appellant further submitted that:

The notion of voluntary redundancy in the context of the Policy Directive is to be understood therefore as an employee's agreement, or offer, to forego continuing employment in exchange for a payment, that is the voluntary redundancy package. In other words on termination of the nurse's employment by the employer the nurse will not invoke any right that might otherwise be available to object to or challenge the termination of employment in exchange for the voluntary redundancy package.

Thus the " entitlement " to a payment specified in clause 12 of the Policy Directive is an entitlement arising upon the termination by the employer of " a staff member who accepts voluntary redundancy ".

The idea that an employee would receive a substantial payment for accepting voluntary redundancy when the staff member's employment is not terminated is not consistent with the purpose of the Policy Directive.

The context in which voluntary redundancy appears in the Policy Directive corroborates this construction - voluntary redundancy is offered where a position is deleted, there is no likelihood of redeployment or the skills of the " displaced staff member " are not in demand. Further in respect of one part of the redundancy package, accrued annual leave loading, is calculated " at the date of termination ". In clause 12.6 - taxation information redundancy payments are referred to as " eligible termination payments ".

In this case the necessary pre-condition for payment of the redundancy package under the Policy Directive was not met - the Appellant did not terminate any of the employee's employment. No position was deleted (with the possible exception of Ms Rabie and Ms Alzamora). 91By reference to grounds 6 and 11 of the notice of appeal, the appellant contended that, if an entitlement to voluntary redundancy could arise under a contract, the trial judge erred in concluding that the August correspondence and the correspondence withdrawing the offer of voluntary redundancy (on either 28 or 29 September) constituted an offer which was capable of acceptance and accepted by the appellant. It was submitted that his Honour erred in concluding that each employee accepted an offer to enter into an agreement "to take voluntary redundancy", thereby giving rise to an entitlement to a redundancy payment. In short, it was contended that the trial judge erred in finding that, on acceptance, there came into effect a binding contractual agreement for the termination of the employment of the employee at a given time in return for payment of a voluntary redundancy package. 92The appellant contended, in this respect, that the trial judge's reasoning was not correct because: (a) " the offer " and " acceptance " analysis applied by his Honour was inappropriate; (b) even if appropriate the offer was conditional upon the employee's position being excess to staffing requirements and acceptance of the offer was an acceptance of the offer upon that condition. " Withdrawal " of the " offer " indicated non-fulfilment of that condition; (c) the true offer (assuming the contractual analysis to be correct) was the employee's " acceptance of offer of voluntary redundancy ". That communication was the mechanism by which each employee advised the Appellant that no objection would be taken to a termination of their employment on the appointed day. This offer was not accepted. 93The respondent submitted that the Policy Directive did not constitute a 'fixation' by the Director-General and that the "plain wording" of the Policy Directive conferred an entitlement to a redundancy package upon an employee who accepted an offer of voluntary redundancy. The 'Expression of Interest' document completed by the employees enquired why their positions were surplus. The appellant considered their responses, determined positions to be surplus and made offers accordingly. The August correspondence was predicated upon the positions being surplus and stated that the offers were made on the grounds that the positions of the subject employees were excess to staffing requirements. No condition was attached to the August correspondence that the positions of the subject employees must be surplus in order for the voluntary redundancy to be given effect.

Was there a binding contract between the subject employees and the appellant? 94The first question raised by these contentions was whether a binding contract came into existence between the appellant and each of the subject employees for, as the trial judge found, a "voluntary redundancy package". 95I agree with the appellant that classical theory of contract based on offer and acceptance is not easily applied in the circumstances of this matter (see the observations of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd [1988] unreported, BC8801158 at (16) and Heydon JA in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSW LR 153 at [71] to [81]). Further, the transactions between the parties, occurring as they did against a background of the Policy Directive, and the relative ambiguity of the notion of a voluntary redundancy, complicated the resolution of the contractual question. 96Nonetheless, I have formed the view that there was a binding contract entered between each of the subject employees and the appellant. I do not accept the appellant's contention that no agreement was formed because the Memorandum, in fact, constituted "an offer" by the subject employees which was not accepted by the appellant (by various means earlier described including the written withdrawal of offers made by the appellant). 97In broad terms, I agree with the judgment of the President in this respect. Whether a contract has come into existence must depend "on a true construction of the relevant communications which have passed between the parties and the effect (if any) of their actions pursuant to those communications": British Steel Corp v Cleveland Bridge Engineering Co Ltd [1984] 1 AII ER 504 at 509. 98Here the parties entered into an executory contract upon the mutual promises that the subject employees would accept voluntary redundancy (as that concept was understood in the Policy Directive) for certain severance payments, each of which was to occur (in specified circumstances) at a future date. The employees accepted they would terminate their services at future specified dates in return for certain payments made at or about that time. The terms of that agreement were sufficiently complete and certain to form a contract, having regard to the terms of the August letter and the Memorandum, when read in the light of the Policy Directive.

Was there a repudiation of the contract? 99I consider, however, the trial judge erred in concluding that the contract, so formed, was repudiated in the case of the subject employees (save as to Ms Alzamora and Ms Rabie) and that his Honour, accordingly, erred in making declarations in favour of the subject employees (save, again, as to Ms Alzamora and Ms Rabie). 100As the appellant submitted, "the true offer (assuming the contractual obligations to be correct) was the employees' acceptance of 'voluntary redundancy'". Voluntary redundancy had a particular meaning in the context of communications between the parties which formed the contract. The Memorandum was the medium by which each employee advised the appellant that no objection would be taken to the termination of their employment on an appointed day. The 'offer' or promise by the appellant, consistently with that consideration, was made conditional upon the employees' position being excess to staffing requirements and acceptance of that offer was based upon that condition. That much was implied by the very notion of voluntary redundancy upon which the contract was predicated (either generally or specifically in the terms of the Policy Directive) and, as I will discuss below, was an express condition contained in the August correspondence. The withdrawal of the 'offer' (at least by the letter of 28 or 29 September 2009) indicated the non-fulfilment of that condition, except, again, in the cases of Ms Alzamora and Ms Rabie. 101The respondent contended, and the trial judge accepted, that no such condition arose because of the express terms of the August correspondence and the context in which that correspondence was sent. Reliance was placed, in that respect, upon the words "This offer is made on grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service". It was contended that the offer was made on the ground that a decision had been made that the employees' position was excess prior to making the offer. 102The respondent also contended that this approach was consistent with the course of conduct of the parties. The subject employees had submitted an Expression of Interest Form and in doing so, upon request by the appellant, indicated why they considered their position was surplus and could be deleted. It was based upon that information, it was submitted, that the appellant made the offers of voluntary redundancy. 103The sentence, "This offer is made on the grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service", is slightly inelegant and does give rise to some ambiguity. However, the language used is equally consistent, in my view, with the "offer" conveying a condition. The words "made on grounds that" are capable of conveying such a meaning, particularly when the document was not drawn in a formal fashion. When regard is had to the reference, in the August correspondence, to cl 12 of the Policy Directive, and the conditions for voluntary redundancy stated at herein, the offer, in my view, conveyed that it was made "upon the foundation of" the positions of the subject employees being surplus or "upon the foundation that" the positions they occupied were excess to staffing requirements. 104In any event, the offer in the August correspondence needs to be understood in the context of all of the communications between and actions of the parties and in the broader industrial or employment context in which it arose. 105I accept the following submission of the appellant in this respect: This construction ignores the context in which the condition appeared. The terms of the letter of 27 August 2009 referred to " redundancy " the very nature of which contemplates termination of employment in circumstances where the employee's position has become surplus to the employer's requirements. A condition of accepting the offer of redundancy was that the severance payment be refunded in the event that the employee was re-employed. Again the context repeats that an entitlement to payment depended upon no work being available for the employee in a position. Further, the conditional nature of the offer, one whereby it is accepted on the grounds that the position is excess to staffing requirements is to be understood in the context of the Policy Directive (as referred to above). 106Both the Expression of Interest Form and the August correspondence make clear that the offer arose because the employee's position was no longer required by the appellant. It was not the subject employees, as natural persons, who were redundant to the service of the appellant. This is entirely consistent with the context in which the offer is made. The August correspondence makes express reference to the Policy Directive. This document makes clear that offers of voluntary redundancy are made only where the "positions" held by employees are excess or, to use the language of the Policy Directive, the positions were "deleted". Whether the Policy Directive had statutory force or was a policy, it relevantly, in an employment context, governed the circumstance under which the offers were made and established a context which left, in my view, no other available reading of the August correspondence than it was made conditional upon the requirement that the positions of the employees were no longer required. It is inconsistent with the Policy Directive, and, hence, the context in which the offers arose, that the conditions in the August correspondence should be construed as merely a statement or record of the state of affairs ( vis vis excess positions) as at the date the correspondence issued. The policy required the position to be vacant or excess in order for the policy to apply, such that, the existence of the vacancy was a condition for its fulfilment. 107Further, the arrangement made between the parties also arose in an industrial or employment context, albeit one that has as its epicentre the public sector or public health sector. 108The term 'redundancy' has a meaning in an industrial context, even if it may not necessarily be a term of art or law when used in particular circumstances. The term, when properly understood, means that the 'job' or 'position' held by an employee has come to an end. The focus is not upon whether the worker has become redundant: Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 at [43], [44] and [54]. Thus, the concept of redundancy would not ordinarily attach itself to the factual circumstances of this matter where the job positions of the subject employees (save for Ms Alzamora and Ms Rabie) had not, in fact, come to an end (due, ironically, to the industrial intervention of the respondent). 109The finding of the High Court in Amcor is a useful illustration of this point. In that matter, the issue was whether a clause of an agreement which provided for severance payments when a position became redundant (and an employee was subsequently retrenched) would apply in circumstances where the former employees of Amcor (where fresh employment arose after the particular company of a group that carried on two kinds of businesses was split so that each business would be conducted separately), nonetheless, carried out the same work under the same conditions in the same style of business as before. The fact that the employee had a new employer did not result in an affirmative answer to questions raised by that issue (see at [14] per Gleeson CJ and McHugh J and at [57] per Gummow, Hayne and Heydon JJ). 110I agree with the submission of the appellant that the expression "voluntary redundancy" is, in a sense, a misnomer. The entitlement to payments under the Policy Directive (or under the mutual promises of the parties) is an entitlement that arises on the termination of employment (where an employee has accepted voluntary redundancy). In the context of the Policy Directive (or the broader industrial or employment usage of the expression 'redundancy' or 'retrenchment'), voluntary redundancy is to be understood as an employee's agreement to forgo continuing employment in exchange for a special payment. This has a particular relevance in an employment context where an employer wishes to reconfigure or restructure the workplace without the industrial and other difficulties associated with compulsory terminations or redundancy. 111A declaration which would result in substantial payments to an employee for accepting voluntary redundancy where the employee's position ultimately remains extant or the employee has initiated a termination (in the knowledge that the position and employment conditions attached to it remain extant) is inconsistent with the notion of voluntary redundancy in the Policy Directive, the general notion of redundancy (whether voluntary or otherwise) and ultimately the offer contained within the August correspondence. 112Those conclusions are not applicable, however, to the applications brought by the respondent on behalf of Ms Alzamora and Ms Rabie. In my view, the evidence is sufficiently clear to enable an conclusion (without the need for a remitter) that former employees of the appellant ceased their employment with the appellant so as to give rise to an obligation to pay redundancy under contract. I have found that an executory contract was made between those persons and the appellant. That contract was executed by them, in accordance with its terms, by the termination of their employment in circumstances where their former positions were vacant and excess to the requirements of the appellant. Ms Alzamora terminated her employment at a date which constituted an agreed extension to the proposed date for termination under the contract. Ms Rabie resigned at a time contemporaneous with the date specified for termination ( vis vis voluntary redundancy). The contract bound the appellant to make payments to them in accordance with the terms of the August correspondence and the Memorandum. The suspension of or withdrawal from voluntary redundancy by the appellant with respect to Ms Alzamora and Ms Rabie constituted a repudiation of that contract. 113What should be done then in the disposition of the application for leave to appeal and appeal brought by the appellant? 114In my view, there is ample basis to grant leave to appeal. The proceedings raise important questions going to the declaratory powers of the Court under s 154 and executory employment contracts. The matter also raises important questions about the terms of the Policy Directive which has wide implications for the public health sector. 115As to the merits of the appeal, the trial judge erred in concluding that the appellant repudiated its obligations under contracts with the subject employees, save for Ms Alzamora and Ms Rabie, and erred in declaring that the subject employees were entitled to voluntary redundancy payments under the contracts, save for Ms Alzamora and Ms Rabie. Nonetheless, I do not consider that the decision at first instance can be sustained in part ( albeit for different reasons) in this case because of my finding regarding Ms Alzamora and Ms Rabie. This is because I consider that the orders made by Marks J are bad in form either because they do not purport to declare the rights of the parties in any respect or do not declare rights under the contract as found by the trial judge (or the contract found to exist in this judgment). Accordingly, the appeal must be upheld. 116It is sufficient, for present purposes, that the orders of Marks J should be set aside and orders substituted so as to make declarations of right in favour of Ms Alzamora and Ms Rabie in accordance with this judgment. The parties should bring in draft orders, in that respect, and orders will be made accordingly. 117Given the partial success of the respondent, I will reserve the question of costs.

ORDERS 118I would make the following orders:

1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision and orders made by Marks J in Matter No IRC 163 of 2010 are set aside.
4. Orders for declarations shall be made upon the application made by the respondent on behalf of Miriam Alzamora and Amal Rabie in accordance with this judgment.
5. The appellant shall file and serve draft orders reflecting this judgment within seven days and the respondent shall have a further seven days to file and serve any disputed version of those draft orders. If the form of orders remains in contest, the matter shall be listed for further hearing in that respect.
6. Costs are reserved.

JUDGMENT OF HAYLEN J

APPEAL 119The Crown in Right of the State of New South Wales (Director-General NSW Department of Health) in respect of Sydney West Area Health Service seeks leave to appeal and to appeal the judgment of Marks J wherein his Honour made a declaration that certain nurses employed in the Sydney West Area Health Service ("SWAHS") were entitled to redundancy pay calculated in accordance with an offer made to them by the SWAHS (see NSW Nurses' Association v Crown in Right of the State of New South Wales (Director General, NSW Dept of Health) in respect of Sydney West Area Health Service [2010] NSWIRComm 125).

BACKGROUND 120The declaration was sought by the NSW Nurses' Association ("the Association") following dispute proceedings. The Application for Declaration stated that the applicant Association was an industrial organisation registered under the Industrial Relations Act 1996 and had constitutional coverage of persons employed in nursing positions established within the SWAHS. It was acknowledged that persons employed in nursing positions within the Area Health Service were employed in the Health Service of New South Wales for the purposes of Ch 9 of the Health Services Act 1997. 121The application identified some 28 employees of the SWAHS who were members of the Association and in respect of whom a declaration was sought as to their right to receive a redundancy payment. None of those matters were challenged before Marks J. His Honour succinctly described the nature of the application in [1] of his judgment: In essence, the proceedings are brought by the applicant on behalf of a number of its members, all of who were or are employed by the respondent in nursing positions within the Health Service of New South Wales operated by the Sydney West Area Health Service. Each of the persons concerned received a communication from persons representing the respondent offering them the ability to terminate their employment on the basis of voluntary redundancy and to be paid certain moneys on termination of employment. It was said by the applicant that the employees concerned accepted these offers of voluntary redundancy. However, before the date fixed for the termination of their employment, the respondent purported to withdraw the offer of voluntary redundancy. In these proceedings, the applicant seeks declarations that will, in effect, require the respondent to make payment to those of the employees who have left the respondent's service and to require such payment to be made for those employees who terminate their employment within a fixed period of time. 122His Honour noted that the precise factual circumstances applying to each employee were not identical in all respects. Common to them all, however, was that they had each received a letter offering them the opportunity to express interest in applying for voluntary redundancy and/or to apply for voluntary redundancy. 123Upon analysis of the evidence relating to each of the employees named in the application, his Honour discerned the existence of three classes. The first class comprised a number of employees who acted upon the notification that they had been accepted for voluntary redundancy with a nominated final date of service, with some seeking and obtaining other employment and leaving the SWAHS on approximately 9 October 2009 or by agreement on some other date close to 9 October 2009. 124The second class of employees were on long service and/or annual leave when the offer of voluntary redundancy was made. Expressions of interest were forwarded to the SWAHS when they discovered that there was an opportunity for voluntary redundancy - they were ultimately accepted for voluntary redundancy. The members of this class did not return to work after 9 October 2009, but relied upon the notice they had received as to their selection for redundancy. 125The third class of employees, which his Honour described as consisting of the majority of persons affected, although having accepted the offer of voluntary redundancy and offer of payment of the package, remained working for the SWAHS after the purported withdrawal of the offer by the SWAHS. Some people in this category indicated that they could not retire without the redundancy payment. 126The offer of voluntary redundancy, mostly made in letters dated 27 August 2009 by the SWAHS, contained details of a package whereby considerable sums were available, especially to long-serving employees. Briefly put, the package offered: four weeks' notice or four weeks' pay in lieu of notice; an additional one week's notice or pay in lieu for employees aged 45 years and over with five or more years of completed service; accrued annual leave loading, including pro rata (or shift penalties if applicable) in respect of leave accrued at the date of termination; an additional severance payment component at the rate of three weeks' per year of continuous service with a maximum of 39 weeks with pro rata payments for incomplete years of service calculated on a quarterly basis; an additional voluntary redundancy acceptance payment where the offer was accepted within two weeks of being made with an extension of up to four weeks; reimbursement of approved expenses associated with re-training in accordance with policy documents; long service leave entitlements where eligible; and, additional superannuation benefits that may be allowable as a contribution to a retirement fund. 127It is worthy of note that the offer also stated that, if voluntary redundancy was accepted within two weeks of the offer being made and termination of employment was within the time nominated by the employer, the following additional payments would be made: for persons with less than one year's service, two weeks' pay; for service between one year and less than two years, four weeks' pay; for service of two years and less than three years, six weeks' pay and for three years' service and over, eight weeks' pay. Clearly, employees were being encouraged to make a speedy decision to accept voluntary redundancy when it was offered. 128A condition of acceptance of the offer of redundancy was that, should the employee obtain employment in any capacity in the New South Wales Public Sector within the period during which the severance payment applied, they were to refund to the SWAHS that portion that applied to the period of re-employment prior to commencing employment with a new Public Sector organisation. 129The respondent Association, in written submissions on the appeal, provided a summary of the background facts that was not controversial. It is convenient, therefore, to reproduce that summary: (a) In or around late June or early July 2009, the Area Health Service sought expressions of interest for voluntary redundancy from staff within the Area Health Service. Employees who were interested in being considered for an offer of voluntary redundancy were invited to complete an expression of interest form. (b) By letters dated 27 August 2009, offers of voluntary redundancy were made to the individual employees concerned under the hand of Kevin Gillies, Area Manager, Human Resources Services and Policy for the Area Health Service. The offers of voluntary redundancy commenced with the words: " As a result of your expression of interest in voluntary redundancy and recent discussions with the Area Health Service, I would like to offer you the opportunity to take voluntary redundancy". The correspondence then set out the components of the voluntary redundancy package that was on offer. (c) In two instances, the letters containing offers of voluntary redundancy were made by letter of a different date. An offer of voluntary redundancy was made to Margit Kent by letter dated 17 August 2009. An offer of voluntary redundancy was made to Siew Khim Seow by letter dated 29 September 2009. The letters were in identical terms to the letters of 27 August 2009 other than that the dates proposed for the termination of employment were different. (d) Employees wishing to accept the offer of voluntary redundancy were required to sign and return a pre-prepared document entitled "Confidential Memorandum - Acceptance of Offer of Voluntary Redundancy". The memorandum included the following: I declare that: I wish to accept the Voluntary Redundancy offer as attached and to voluntarily terminate my services with the Sydney West Area Health Service. I acknowledge that my last day of service with the Sydney West Area Health Service will be 9 October 2009. I acknowledge that I have been offered the following redundancy payments by Sydney West Area Health Service:

• four weeks notice of four weeks pay in lieu of notice ;
• pro rata annual leave loading in respect of leave accrued at the date of termination ; accrued annual leave loading; additional severance payment component at the rate of three (3) weeks per year of continuous service, with a maximum of 39 weeks, with pro-rata payments for incomplete years of service to be on a quarterly basis; additional voluntary redundancy acceptance payment where the offer of voluntary redundancy is accepted within 2 weeks of the offer being made, or with extension of up to 4 weeks at discretion of the employer; reimbursement of approved expenses associated with retraining (as detailed under Section 12.8 of PD2007_085); long service leave entitlement (if any); the benefit allowable as a contributor to a retirement fund. (e) The individual employees all completed the memorandum and returned to the Area Health Service accepting the offer of voluntary redundancy on the following dates: Caterina Scarazza, Amal Rabie, Michelle Roach, Peck Waldon - 3 September 2009; Katherine Turner - 4 September 2009; Mirian Alzamora, Sandra McDermott - 7 September 2009; Margaret Kirkley, Cheryl Hunter - 9 September 2009; Cornelia Jongsma - 10 September 2009; Anne Brady - 11 September 2009; Dongmei Lu, Grace Mazi - 14 September 2009; Lorraine Bateman - 16 September 2009; Julianne Brisbane, Miriam Panol - 18 September 2009. (f) On 4 September 2009, the Area Health Service published a communication known as a "Broadcast". The "Broadcast" indicated that: As an outcome of a dispute notification lodged in the NSW Industrial Relations Commission by the NSW Nurses Association and the Health Services Union staff need to be advised that the progressing of any further voluntary redundancies is on hold until such time as the dispute is resolved. (g) The majority of employees either did not see the "Broadcast" or became aware of the "Broadcast" only after they had returned the memorandum accepting the offer of voluntary redundancy, including Miriam Alzamora, Lorraine Bateman, Anne Brady, Cornelia Jongsma, Marlene Lawler, Margaret Kirkley, Dongmei Lu, Grace Mazi, Miriam Panol, Amal Rabie, Michelle Roach, Caterina Scarazza, Katherine Turner and Peck Waldon. (h) The Area Health Service continued to provide information in relation to the offers of voluntary redundancy and to receive and acknowledge acceptances of the offers that were provided. For example, Miriam Alzamora was provided with a payout figure on 16 September 2009. Lorraine Bateman was provided with a payout figure on 15 September 2009. Julianne Brisbane was provided with a payout figure on or around 15 September 2009 and advised by a Human Resources officer, Jeanette McKenzie, on the same date to return her acceptance. Margaret Kirkley received a payout figure on 23 September 2009. Sandra McDermott was advised on or around 7 September 2009: " Don't worry, put the application in, we are still accepting all the paperwork." (i) By letters dated 28 September 2009 or 29 September 2009, the Area Health Service purported to withdraw the offers of voluntary redundancy contained in the letters of 27 August 2009. The correspondence, again under the hand of Mr Gillies, stated as follows: This letter is to confirm the telephone advice you received from a representative of SWAHS Human Resources Department regarding your offer of voluntary redundancy. The Director General of Health has advised that voluntary redundancies involving frontline clinical staff are not to be further progressed. On that basis, the offer of voluntary redundancy made to you by SWAHS is now withdrawn. (j) In some (but not all) instances, employees had received verbal advice shortly prior to receipt of the letters of 28 or 29 September 2009 informing them that the Area Health Service intended to withdraw the offers of voluntary redundancy. (k) Some of the employees left their employment on or around 9 October 2009 in accordance with the letters of offer or did not return to work thereafter, including Miriam Alzamora, Dongmai Lu, Amal Rabie, Michelle Roach and Katherine Turner. Grace Mazi subsequently terminated her employment in or around 30 March 2010. (l) The remainder of the individuals concerned continued their employment under protest. The Association wrote to the Area Health Service by letter dated 2 October 2009 indicating that the Association proposed to examine the contractual position of its members who had been offered and accepted redundancy packages and stating as follows: Nurses who were offered voluntary redundancies by the Area were given a cessation date for employment. During this period of examination of particular nurses' contractual rights any work performed by nurses who hold contractual rights with the Area does not constitute a rejection of the contract already entered into with the Area. (m) A number of individual employees also wrote to the Area Health Service indicating that their continuation of employment was without prejudice to their contractual rights and that the purported withdrawal of the offers was disputed, including Margartet Kirkley, Dongmei Lu, and Peck Waldon.

ARGUMENTS AND DECISION BELOW 130Before his Honour the Association asserted that, based on the facts, there was a completed contract whereby the employees became entitled to the payment of the redundancy package calculated in terms of the offer. The issue was one of an industrial nature over which the Commission might otherwise have jurisdiction and, therefore, it was open for the Court to make a declaration. 131The Association's case was primarily resisted on the basis that there was no concluded contract and that, to the extent there was an offer of redundancy pay, it had been effectively withdrawn. The appellant also relied upon Policy Directive documents setting out the circumstances in which voluntary redundancy may be offered to employees and that such a possibility was limited to the situation where the position of staff members had been deleted and when there was no likelihood of re-deployment or where the skills of the displaced staff members were not in demand. This document was relied upon to argue that the offer and any agreement by the employee was, nevertheless, conditional upon the respondent determining that the employee's position remained "surplus to requirements." His Honour rejected these arguments, noting that the offer of voluntary redundancy contained in the letter of the SWAHS dated 27 August 2009 contained the following statement: This offer is made on the grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service. 132In rejecting the arguments for the appellant, his Honour held that there was a binding contract that resulted in the employees having a right to the payment of the redundancy package and that their positions had been in excess of the employer's requirements. His Honour also found that the purported withdrawal of the offer after the contract was concluded constituted a repudiation of the obligations of the SWAHS under the contract, but that the employees concerned were entitled to elect, if they wished, to terminate that contract and sue for breach or to elect to keep the contract on foot. He concluded on the evidence that none of the employees accepted the repudiation by the SWAHS. Many of the employees had remained in employment and had continued to assert their right to the payment of the redundancy package. 133His Honour relied upon the judgment in Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235; (1954) 28 ALJR 162 for the proposition that a party to a contract, who refuses to carry out contractual obligations and persists in that refusal until a time has arrived at which performance of the contract was due, is prohibited from relying on effluxion of time to deny the innocent party the right to enforce the contract. Having satisfied himself that there was jurisdiction to grant the declaration, his Honour then considered discretionary issues, but ultimately determined that a declaration should be made in favour of the employees. 134His Honour requested the parties to confer as to the appropriate terms of a declaration that reflected his judgment. As a result of an exchange of correspondence there was no disagreement between the parties as to the terms of the declaration to be made in accordance with his Honour's findings although, clearly, the SWAHS reserved the right to challenge the correctness of his Honour's decision. 135In accordance with those arrangements, his Honour made the following declaration:

1. That the offers of voluntary redundancy made by letters dated 17 August 2009, 27 August 2009 and 29 September 2009 constituted binding contractual agreements upon acceptance and the Sydney West Area Health Service was not entitled to withdraw the offers of voluntary redundancy.
2. That the following employees are immediately entitled to payment of a redundancy payment calculated on the basis set out in the letters addressed to each employee from the Sydney West Area Health Service offering voluntary redundancy: Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu Marlene Lawler Grace Mazi Siew Khim Seow
3. That the following employees are entitled to have their employment terminate within 28 days of date of judgment on the basis they receive a package of redundancy payments calculated on the basis set out in the letters addressed to each employee from the Sydney West Area Health Service offering voluntary redundancy. Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson
4. That the redundancy payments payable to each employee under Order 2 or Order 3 are to be calculated on the basis of their period of service as at the date their employment terminated or terminates.

NEW EVIDENCE 136On appeal, the appellant raised substantially different and new points. By majority, the Court received new evidence filed by the appellant but in the first instance, limited that evidence to the issue of whether or not leave to appeal should be granted. The new evidence received on that basis was an affidavit of Ms Deborah Oong, Acting Director, Corporate Government and Risk Management Branch, of the New South Wales Department of Health. The new evidence was directed to the following matters: the statutory basis by which the employees concerned were employed under Pt 1, Ch 9 of the Health Services Act ; how the Sydney West Area Health Service, as a condition of receiving a subsidy from the New South Wales Government, was obliged to follow New South Wales Health Policy Directives including Managing Displaced Staff of the New South Wales Health Service published in November 2007; and that employees concerned were entitled to voluntary redundancies in accordance with the terms and conditions of the managing of displaced staff of the New South Wales Health Services Directive identified as PD 2007_085. 137The appellant conceded that the material had not been put forward on the same basis as before Marks J, but advanced no reason as to why that had not occurred. It was said that the new evidence was "... of a kind of re-characterising an argument that was put before the Court below." It was frankly conceded that it was neither evidence that was not available nor reasonably available to the appellant at the time of proceedings before Marks J. The evidence was, however, supplementary evidence to that already before the Court and placed that evidence "into a better context."

GROUNDS FOR LEAVE 138In relation to the application for leave to appeal, it was submitted that it was in the public interest that leave be granted as the appeal raised substantial issues of principle and law that had wide implications for the jurisprudence of the Court and went to the administration of justice. The appeal was said to raise the following issues: (a) the operation of s 154 of the Industrial Relations Act and the power of the Court to make declarations/consequential orders; (b) the power of the Court to make binding declarations on people who are not parties to the proceedings; (c) the operation of a Managing Displaced Staff of the New South Wales Health Service Policy Directive that affects the delivery of the Health Service in New South Wales; (d) the legal basis of any employee's entitlement to voluntary redundancy as an employee of the Crown, and in particular, whether it arises under statute or contract; (e) the relationship of any contractual right to the statutory regime for voluntary redundancy in respect of the employees concerned. These grounds were considerably elaborated upon in what was described by Senior Counsel for the appellant as a multi-layered argument.

ESTABLISHED SCOPE OF DECLARATORY ORDERS IN INDUSTRIAL COURT 139Before considering ground (a) and remaining grounds upon which leave to appeal may be granted, it is appropriate to refer to the legislative provision. Section 154 is in the following terms:

154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 140The operation of the equivalent of s 154 of the Act has been considered at Full Bench level as long ago as the case of the Public Service Board (NSW) v The Public Service Association (NSW) (1986) 14 IR 445. Having regard to the similarity of the provision to s 75 of the Supreme Court Act 1970 and taking into account the industrial context in which s 154 of the Industrial Relations Act appears, the Court has been guided by the principles established in the Supreme Court, the Federal Court and the High Court in relation to granting declaratory relief. As shown in the following pages, the present appeal presents no new or novel issue that warrants a consideration or re-consideration of the scope of the s 154 power. Significantly, it was not argued before Marks J that there was some new or important issue at stake in relation to the operation of s 154 arising from this case. The following passages indicate the scope and operation of declaratory orders in the context of the Industrial Relations Act and predecessor legislation and the general flexibility of this form of relief. 141It was implicit in the argument for the appellant that, where individual employee rights were concerned, it was at least highly unlikely, if not impossible, for a union to be the applicant for a declaration especially where the issue was contractual. This argument was based upon the proposition that only those who are parties to the contract can enforce it. There are a number of difficulties with this proposition. As already indicated, the question of the standing of a union to apply for a declaration under the equivalent of s 154 of the Industrial Relations Act then appearing as s 30A(2) of the Industrial Arbitration Act, 1940, was considered by a Full Bench in PSB(NSW) v PSA(NSW) . In that case the PSA had successfully applied for a declaration that a member had not been dealt with in a disciplinary inquiry in accordance with the provisions of the Public Service Act 1979. 142Having failed at first instance, the PSB raised a number of issues about the standing of unions to bring applications for declaration arguing that whether or not the Public Service Board had failed to exercise its functions legally pursuant to the Public Service Act and the Regulations was not an industrial matter but purely a judicial matter and was, therefore, a matter for the Supreme Court. Further, it was argued that, if there was a breach of the applicable award, the proper remedy was for proceedings for enforcement under s 92 of the Industrial Arbitration Act. It was also submitted that the employee affected was not an applicant in the proceedings and under the then provisions of the Industrial Arbitration Act, could not bring proceedings and, therefore, had no standing. An argument was then raised that the matter before the Commission was, in effect ,an order sought by an industrial union that had no direct interest in the individual's right to payment or alleged payment of his salary. The Government Insurance Office or the Crown, as the employer, was not joined and could not be bound by the order. 143In dismissing the appeal, the Full Bench noted that there was no question that the powers of the Commission under a variety of provisions involved making decisions of a judicial nature, determining the extent or nature of existing rights and providing appropriate relief where required. Those powers and functions existed side-by-side with quasi-legislative functions normally associated with an administrative tribunal. While the Commission was also involved in award making in relation to industrial matters, it was nevertheless constituted as a Superior Court of Record. In relation to the declaratory power, the Full Bench stated at 448-449: The new power to make declaratory orders is couched in language which is consistent with that used in the Supreme Court Act , clearly demonstrating an intention that the Commission is to be vested with a discretionary power to make declaratory orders similar to that of the ordinary courts. ... There can be little room to question in the present case, which concerns an employee in the Public Service whose rate of salary is regulated by an industrial award made under the Industrial Arbitration Act , that the new power is intended to be exercised in a situation in which a question arises whether or not the employee has been lawfully deprived of his entitlement to salary, either as a consequence of some alleged incorrect application of award provisions, or of the terms of his contract of employment or some applicable statutory prescription, in this case the Public Service Act . 144Generally, the Full Bench accepted the PSA argument that, on the authority of Burwood Cinema Ltd and ors v Australian Theatrical and Amusement Employees Association [1925] HCA 7; (1925) 35 CLR 527; (1925) 31 ALR 282 an organisation of employees was recognised as standing in the place of and representing members and did not act as an agent. At the time of the decision of the Full Bench, the Industrial Arbitration Act gave only limited rights to individuals to commence proceedings and the standing of a registered organisation, therefore, had particular significance. In this context, the Association had argued that it had sufficient interest in the matter and therefore locus standi to bring the proceedings: applying the principles laid down by the High Court in Australian Conservation Foundation Inc v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493; (1980) 45 LGRA; (1980) 28 ALR 257; (1980) 54 ALJR 176 as a registered organisation, the Association had a special interest in the employment relationship between its members and the Crown under the Public Service Act . 145The Full Bench went on to consider the utility of the declaratory order under industrial legislation noting that, in an earlier decision (where it had held that there was no power under the relevant contracts of employment or under the common law for an employee to be suspended by his employer) such a case was suitable for declaratory relief as not only providing an appropriate remedy but also eliminating the possible need for further litigation of the issues that arose in a collective situation which was the more usual position in industrial dispute cases. 146The Full Bench, at 450, continued: We think also that further illustrations cited by Mr Handley, where declaratory orders were made to deal with suspensions under statutory provisions contained in United Kingdom legislation, are very much in point (see Barnard v National Dock Labour Board [1953] 2 QB 18; Vine v National Dock Labour Board [1957] AC 488), although as we follow Mr Cullen's argument he did not contest that the validity of the suspension procedures were reviewable before the Supreme Court as opposed to the Commission. Where s 30A is said to be deficient as the basis for making a similar order on his argument is rather that the administration of the Public Service Board is said to be something which should be reviewable by the Supreme Court and not the Commission. In the light of the obvious intent of the new provision and its terms we see no basis for that contention. Alternatively, it is claimed that the power is not open in arbitral proceedings dealing with industrial matters. The illustrations discussed above demonstrate that it is in that very context that s 30A must clearly be contemplated as exercisable, although it is in relation to powers of a judicial nature that it is to be applied and not in the establishing of future rights and obligations under the Commission's quasi-legislative powers. There is likewise no substance in the contention that the case should have been processed under the recovery provisions of the Act. One of the purposes of such a declaratory order is to avoid the need for such processes. That consequence, however, and the identity of the parties who would be involved in recovery proceedings, points up another aspect of the Board's argument to which we must turn. It is essential that the prerequisites to the making of a declaratory order be observed. In that respect, what was said by Gibbs J (as he then was) in the Jododex case is very much in point. We refer in particular to what was said in the following passage from his Honour's judgment: It is neither possible nor desirable to fetter the broad discretion given by s 10 (of the Equity Act ) by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank of Foreign Trade Ltd [1921] 2 AC 438 at 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to procure a proper contradictor, that is to say someone presently existing who has a true interest to oppose the declaration sought. Beyond that, however little guidance can be given. As Lord Ratcliffe said in Ibeneweka v Egbuna [1964] 1 WLR at 225: After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. 147It is to be noted that, at 451, the Full Bench concluded that this was a case where it was not necessary to have the individual employee joined as a party but accepted that there would be situations where it would be both "expedient and necessary" for individual employers or employees to be joined as parties where a declaratory order was made. In that case the PSA had submitted that, once the registered organisation applying for a declaration had opened the jurisdictional gate, it was also open to then have individuals joined. As the present matter progressed before Marks J the appellant raised none of these issues and so the occasion did not arise for the Association or his Honour to consider whether or not it was appropriate for the individuals to be joined. For reasons that will be developed later in this judgment, the appellant should not be allowed now to raise these issues on appeal when it was not only content for the matter to proceed without joinder of the individuals before his Honour, but also where it had the opportunity to raise the matter when the parties were directed to frame orders that reflected his Honour's decision and again, failed to do so. 148The approach of the Full Bench in that seminal PSB case has been continued in relation to s 154. In Tempo Services Ltd v Strezouski [2005] NSWIRComm 329 ; (2005) 146 IR 411 the Full Bench of the Commission in Court Session made some general observations about the availability and use of declaratory relief under s 154 of the Act, stating at [43]: The power to grant declaratory relief under s 154 is provided only to the Commission in Court Session although the power is expressed in extremely wide terms and may be exercised in respect to any matter 'in which the Commission (however constituted) has jurisdiction.' That phrase means that the Court Session may grant declaratory relief in respect of any matter in which the Court Session of the Industrial Relations Commission has jurisdiction. 149In Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 , Hungerford J spoke of the scope of s 154 at [76]: The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) [1997] NSW IRComm 185, the majority of the Full Bench ( Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at 4): The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. 150The history of the power to grant declaratory relief originating in s 30A of the Industrial Arbitration Act 1940 was referred to by the Full Industrial Court in Public Employment Industrial Relations Authority v Public Service Association of New South Wales (re Scorzelli and ors) (1993) 49 IR 169 at 195-6: The second reading speech of the then Minister for Industrial Relations (the Hon. P.D. Hills) in dealing with the 1985 amendment to the 1940 Act said: Third, it is proposed that the Act be amended to confer jurisdiction on the Industrial Commission to make a declaratory order or award. The Government considers that the declaratory remedy, which is already available to the commercial community, should also be available to the industrial community. This will enable the Commission when dealing with a large number of applications, all depending upon the same facts and legal considerations, to make a finding about the matter once and for all. The language used by the then Minister reflected that used by Sheppard J. in the AIS Bricklayers Case [1972] AR 285 which had in turn referred to the great value of the declaratory jurisdiction of the Supreme Court to which Barwick CJ. had referred in Commonwealth v. Sterling Nicholas Duty Free Pty. Limited (1972) 126 CLR 297 where his Honour said at 305: The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. ... Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction. 151Under the Industrial Arbitration Act , as amended, s 30A(2) provided: No proceedings before the Commission shall be open to objection on the ground that a merely declaratory order or award is sought thereby, and the Commission may make binding declarations of right whether or not any consequential relief is, or could be, sought. 152It is of interest that in the PEIRA case, the Full Industrial Court drew attention to the fact that under the 1991 Act the Commission and the Court were separated and whatever powers the Court could exercise by way of declaratory orders (which they held to be not available) declarations were definitely not available in the Commission. Against that background it can be said that s 154 was drawn in wider terms to ensure that the court could grant declaratory relief so long as there was any matter within the jurisdiction exercised by the Commission or the Court. Thus, in Crewdson v Department of Community Services and anor [2002] NSWIRComm 121 Boland J was moved to state at [64]: It is evident from the terms of s 154 of the Act that it is not necessary that a claim for a declaratory relief be based on a cause of action. The applicant has not identified a cause of action but I consider, nevertheless, the Court has jurisdiction in relation to the matter. Such jurisdiction may be invoked under various provisions of the Act including Pts 1 and 2 of Ch 3 (industrial disputes), Pt 6 - Unfair Dismissals of Ch 2 or Div 2 of Pt 9 of Ch 2 (unfair contracts), ss 210, 213 (victimisation) and Pt 2 of Ch 7 (recovery of remuneration). I would respectfully agree with that statement of his Honour. 153The special standing of a union such as the Association is recognised in s 366 and s 369(1)(b) of the Industrial Relations Act . These provisions permit the union to make an application for the recovery of, inter alia, over-award amounts payable under a contract "relating to the employment of the person" where their members have not been paid those entitlements. Those provisions require the consent of the person: in the proceedings before Marks J the evidence was that each of the employees seeking the payment of the redundancy package were members of the Association and had provided affidavits in support of their claim that became evidence in the proceedings. In those circumstances, there is no reason to doubt that the proceedings for a declaration were taken with their consent. The union could have proceeded under the provisions of s 366 and s 369 of the Act, but the circumstances of the members presented a classic example of the simplicity and utility of obtaining a declaration over commencing other types of proceedings. This benefit was particularly noted by the Full Bench in the PSB v PSA . It might also be noted that the issue of non-payment of the redundancy package was first raised in dispute proceedings under Ch 3 of the Industrial Relations Act and may well have been raised in unfair contracts proceedings brought under Pt 9, Ch 2 of the Act, at the very least in relation to "an arrangement." 154Importantly, these provisions, as well as a variety of other provisions (including dispute proceedings) provide the Commission, however constituted (as that term is used in s 154), with a wide jurisdiction to deal with industrial, employment and employee contractual issues in which it is envisaged that a registered union would be expected to be a party even where individuals may also be parties. Once that status of a registered union is understood, the provisions of s 154 allow a union that is able to demonstrate an interest in the matter to seek a declaration whether or not any consequential order could be made. Such a declaration would be binding between the union and the respondent. It may be possible for such an applicant union to seek consequential orders. In the present case, employees such as Ms Alzamora were provided with a final payout figure calculated in accordance with the provisions of the Policy Directive. Any failure of the respondent to abide by that declaration might lead to the matter being relisted and a consequential order or series of orders made to that effect and that particular individual employees are entitled to the payment of the money amount provided to them by the employer as representing the calculation of redundancy pay. The arguments for the respondent on appeal fail to recognise these options. 155In the present proceedings the Association clearly took the proceedings on behalf of its members in seeking a declaration under the terms of the Industrial Relations Act . The Industrial Relations Act has long recognised the special status of registered organisations to act for their members and that is the context in which the power to make declarations is to be exercised. In Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554; (1956) 1 LGRA 206; [1956] ALR 614; (1956) 30 ALJR 166, the High Court stated: When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality. In industrial matters brought under the provisions of the Industrial Relations Act the registered organisation has locus to move the Commission and the Court as a party in its own right. That is the context in which the s 154 power was granted to the Industrial Court. 156The Court has previously dealt with applications by registered unions (or through the union secretary) for declaratory relief (for example, see Beattie (o/b CBOA) v Commonwealth Bank [2006] NSWIRComm 238; (2006) 155 IR 295; Police Association (NSW) v Commissioner of Police [2002] NSWIRComm 126; (2002) 123 IR 301 ). In the Police Association case , Wright P at [71] stated: It is to be observed that the grant of declaratory relief carries with it the grant of liberty to apply to seek further relief should the declaration granted not resolve the issues between the parties: see Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 at 497 per Isaacs J (with whom Knox CJ and Starke J agreed) and Quin v Attorney General New South Wales (1988) 28 IR 244 at 249, 261. 157The width of the power to make declaratory orders under s 154 and the circumstances in which the exercise of the jurisdiction would be appropriate was further commented upon by the Full Bench in State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124; (2000) 101 IR 131 where, in proceedings against an offence against the Occupational Health and Safety Act 2000, the Court noted at [20]: We interpose the observation that it may have been open to the applicant to seek from this Court declaratory orders under s 154 of the Industrial Relations Act as against the respondent in relation to the right of the applicant to be free from prosecution in its emanation as separate government departments and as to its privilege from self-incrimination in resisting the production of documents. ... We mention it, however, because the Industrial Relations Act affords what is a most useful facility in the declaratory jurisdiction in the resolution of legal issues between parties and we would not wish to be seen as ignoring such mechanism for an appropriate case in the future. 158There are other examples that demonstrate that an industrial organisation has a sufficient interest to apply for a declaration in circumstances where the terms and conditions of their members' employment are affected. Thus, in Shop Distributive and Allied Employees' Association v The Minister for Industrial Affairs for the State of South Australia [1995] HCA 11; (1995) 183 CLR 552; 129 ALR 191; (1995) 69 ALJR 558; [1995] 9 Leg Rep 2; (1995) 60 IR 11 the High Court held that the union had locus standi to apply for a declaration because its members, who were shop assistants, had a special interest in the trading hours of shops in which they were employed and any alteration to those hours would necessarily affect the terms and conditions of their employment. 159In the SDA case, the Minister proposed to change retail industry trading hours to permit general Sunday trading in the Adelaide city centre. The changes were brought about by the Minister issuing certificates of exemption to a number of specified shops under the provisions of shop hours legislation . The union sought declarations that the certificates of exemption would, if issued, be invalid and also sought an injunction restraining the Minister from issuing those certificates. The High Court rejected contentions that the change in shopping hours would tend to affect the whole community in various ways and that the shop assistants concerned had no special interest in that subject matter that would give them standing to make the applications. There was no suggestion that, because the union was not a party to the contracts of employment, it had no standing to seek a declaration. To similar effect is the decision of Ryan J in Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375; (2004) 136 FCR 530; (2004) 138 IR 122 where the union and members applied for declarations concerning the respondent Hostel's standing under Victorian Regulations. 160The approach, referred to above, is not unusual. In a different context the interests of a union to make an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was recognised in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; (1986) 12 ALD 138; (1986) 71 ALR 73; (1986) 18 IR 431. In that case Gummow J, then sitting in the Federal Court, declared that the union was entitled to make a request for reasons from the Department because it had a sufficient interest to constitute the applicant as an aggrieved person within the meaning of the Judicial Review Act . 161In reaching that conclusion his Honour considered the position of an aggrieved person under the general law: locus standi involved the concept of grievance as providing standing in relation to the rules that controlled the issue of writs of certiorari. At [132] his Honour noted that what needed to be emphasised was that, even at common law, it was by no means apparent that "grievance" necessarily involved injury to property or present legal interests or "special damage" in any technical sense: nor was it essential that the aggrieved person be a party to the administrative decision sought to be quashed by certiorari if he otherwise had sufficient standing. The result was that there was a measure of broad agreement as to locus standi for both legal and equitable remedies in public law. The position is a fortiori in relation to s 154 of the Industrial Relations Act.

LACK OF PRIVITY OF CONTRACT NO BAR TO DECLARATION 162It appears to be the situation that, if the present declaration is required to be enforced, there is no barrier to the Association exercising its implied right to relist the matter in order to perfect the orders if that course was thought to be desirable. While it has been held that only parties to a declaration can enforce it, once a registered organisation is properly a party to such an application because of its special interests in the subject matter then it is a party capable of having the declaration enforced. The submissions for the appellant confuse the usual rule that only a party to a contract can enforce the contract with the special considerations that have to be applied where a declaration is involved: an application for a declaration does not require the moving party to be privy to the contract and a third party may have a relevant interest that permits it to be an applicant: this was the case in Aussie Airlines Pty Ltd v Australian Airlines Ltd and ors (1996) 68 FCR 406; (1996) 139 ALR 663. 163The issue in the Aussie Airlines case concerned arrangements whereby two established airlines, Qantas and Ansett, were granted long-term leases to enable each of them to develop terminal facilities essential for their operations. The leases contained provisions compelling both airlines to provide sub-leases to new entrants to the domestic aviation industry - the entire arrangement was designed to bring about de-regulation in the industry. Aussie Airlines was incorporated for the purposes of operating a domestic airline service but at the relevant time was not conducting any business in the aviation industry, had only a small issued capital and had no business premises although one of its directors had considerable experience in the airline industry. Aussie Airlines requested the head lessee to grant it a sub-lease but that application was refused. Aussie Airlines then applied to the Federal Court for a declaration that it was a new entrant to the domestic aviation industry within the leasing arrangements and with the rights attached to such an entity. A declaration was made at first instance and was confirmed on appeal by the Full Court of the Federal Court. 164For present purposes it is of significance that, on the appeal, it was argued by Qantas that at first instance the trial judge had not dealt with an argument that Aussie Airlines had no privity of contract with Qantas or the head lessor and therefore, having no rights under the head leases, had no standing to sue. In dismissing the appeal, Lockhart J (with whom Spender and Cooper JJ agreed) addressed the question of necessary standing to obtain a declaration and stated at 414: For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows: The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties. The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J: or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 180 per Mason J and at 189 per Aickin J. The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J and Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd at 448 per Lord Dunedin. Generally there must be a proper contradictor: Russian Commercial & Industrial Bank at 448; and Ainsworth at 596 per Brennan J. The relevant principles are laid down by the High Court in Ainsworth , in particular in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ at 581-582. Their Honours made the point that "[it is now accepted that superior courts have inherent power to grant declaratory relief"; and "[ilt is a discretionary power which ' it is neither possible nor desirable to fetter . . . by laying down rules as to the manner of its exercise' " (a reference to a passage from the judgment of Gibbs J in Jododex at 437). See also Oil Basins Ltd v Commonwealth at 649 per Dawson . These are the rules that should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief. This Court has undoubted power to grant declaratory relief whether or not any consequential relief is or could be claimed: s 21 of the Federal Court of Australia Act 1976 (Cth); and Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ at 581-582. See also Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305 per Barwick CJ; Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 at 424-425 per Lockhart J; and Young on Declaratory Orders (2nd ed, 1984) p 74. 165In Edwards v Santos Ltd (2011) HCA 8, the High Court at [38] spoke of Aussie Airlines as providing an example of how a person could have standing to obtain a declaration and how a court could have jurisdiction to grant the declaration even though the applicant did not have rights under the head leases enforceable against the head lessee. Specific mention was made of the fact that Lockhart J had found that the question was not hypothetical and that it was of real and practical importance to the applicant, that the applicant had a real commercial interest in the relief, that the head lessee was plainly a contradictor and there was obviously a real controversy. The High Court noted that, whether or not the plaintiffs in Edwards and Santos Ltd had enforceable rights against the petroleum defendants, the question whether the authority to prospect was valid was not hypothetical but was of real practical importance to the plaintiffs because they had a real commercial interest in the relief - the defendants were plainly contradictors and it was obviously a real controversy. 166As the appellant developed the argument, grounds (a) and (b) became intertwined and overlapped. The fundamental issue raised by the appellant was that a declaration concerning contractual relationships, in an employment context, could not be made unless the parties to the contract were also parties to the proceedings. It was submitted that there were two necessary elements for such a declaration to be made: firstly, only parties who were privy to the contract could apply for a declaration as to their rights and thereby achieve res judicata and/or issue estoppel in relation to the rights so established; and secondly, if the person seeking the declaration was not establishing their rights it was necessary for those whose rights were being affected to be party to the proceedings and so be bound by the order. The consequence of that approach was that the nurses claiming a right to the redundancy package individually had to be parties to the proceedings before Marks J. The requirement for personal involvement of the contracting parties was said to flow from the fact that a declaration established in the parties res judicata or issue estoppel as a result of the proceedings. In the present case, the industrial union representing nurses was the only moving party but it was not privy to the contract alleged to exist. 167Unfortunately, as earlier noted, these issues were not addressed at the trial before Marks J and no opportunity was provided to the Association and its members to consider the consequences of proceeding without the joinder of individuals claiming a right to the redundancy package. It was further argued by the appellant that no declaration could be made in such circumstances on the application of the Association alone as the Association could only raise a hypothetical question because it could not establish res judicata or issue estoppel against the employer. Cases such as Aussie Airlines demonstrate the error in that approach as does the proceeding discussion. 168There is further longstanding authority against the type of restrictions sought to be imposed on the making of declaratory orders as reflected in the appellant's submissions. In P W Young QC, Declaratory Orders, 2nd ed (1984) Butterworths at [205] and [206] it was stated:

Upon the footing that the purported removal of the applicant from his statutory office was invalid, the authorities in this Court ( Williamson v The Commonwealth (1907) 5 CLR 174; Lucy v The Commonwealth (1923) 33 CLR 229; McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 531) indicate that the refusal to allow the applicant to perform his duties for the balance of his term and receive his remuneration was without justification and amounted to, or was "analogous to" ( Geddes v Magrath (1933) 50 CLR 520 at 534) , wrongful dismissal. The reasoning in the authorities appears sufficiently from the statement of Starke J in Lucy v The Commonwealth (1923) 33 CLR 229 at 253; cf Director-General of Education v Suttling (1987) 162 CLR 427 at 437-438: The relation between the Crown and its officers is contractual in its nature. Service under the Crown involves, in the case of civil officers, a contract of service - peculiar in its conditions, no doubt, and in many cases subject to statutory provisions and qualifications - but still a contract ( Gould v Stuart [1896] AC 575 at 577). And, if this be so, there is no difficulty in applying the general law in relation to servants who are wrongfully discharged from their service. A servant so treated can bring an action against his master for breaking his contract of service by discharging him. ... ...

Fourthly, the rationale for the "at pleasure principle", namely, as Lord Diplock put it ( Council of Civil Service Unions re Minister for the Civil Service [1985] AC 374 at 409): the theory that those by whom the administration of the realm is carried on do so as personal servants of the monarch who can dismiss them at will, because the King can do no wrong. cannot now, if it ever did, adequately support that "principle" in a contemporary setting of public administration. Nor can the theory that the executive government should not be hampered by contract "in matters which concern the welfare of the State". ( Fletcher v Nott (1938) 60 CLR 55 at 67 . See, however, as to the contractual fettering of statutory discretions, Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 74-76; Rose, "The Government and Contract", in Finn (ed), Essays on Contract , (1987) 233 at 242-244 . Hence the well-based criticisms by McHugh JA in Suttling v Director-General of Education (1985) 3 NSWLR 427 at 444-447 . (See also the statements by the Supreme Court of Canda in Wells v Newfoundland [1999] 3 SCR 199 at 215-29).

Finally, the retention of the prerogative as the source of obligation for those in military and civil service persisted in the United Kingdom well after statute had taken the field in Australia. With respect to the army, this was still true of the United Kingdom at the time Marks ((1964) 111 CLR 549 at 564-565. See now H alsbury's Laws of England , 4th ed Reissue, Vol 8(2), 883-885) was decided in this Court. It appears that for the most part the regulations which govern the Civil Service in the United Kingdom still have no statutory basis and are made under the prerogative ( Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 397; Halsbury's Laws of England , 4th ed Reissue, Vol 8(2), 549. The public service of the Australian colonies, then of the Commonwealth and the States, developed quite differently .

Professor Finn has described the processes whereby the public service in the colonies was marked off from its British counterpart so that in Australia, as confirmed by the Privy Council in Gould v Stuart [1896] AC 575 ..., the position was that ( Finn, Law and Government in Colonial Australia , (1987) at 66: the Crown-public servant relationship was a contractual one; that the relevant Act and its regulations prescribed the conditions on which the contract was to be made; and that the contract and thus the Act founding it, were enforceable in the courts (emphasis added) The remarks of Starke J in Lucy v The Commonwealth set out earlier in these reasons display that understanding of the position in this country . 185These passages make it abundantly clear that there is no legal imperative that requires persons in the service of the Crown to be dealt with by the courts on the basis that their engagement was purely statutory and could never be contractual. This appeared to be the starting point for the argument pressed by the appellant. To the extent that employment in the service of the Crown may be statutory, but also may be contractual, as in Jarratt , the position with the nurses identified by his Honour in the declaration of their right to redundancy pay is resolved by reference to the statutory provisions covering their employment. 186Each of the employees covered by the declaration were employed within the SWAHS under Ch 9 of the Health Services Act . Pursuant to Ch 9, s 116(1) speaks of the Government of New South Wales employing staff under the Part to enable local health networks, statutory health corporations and public hospitals that they control to exercise their function, amongst other things. Under s 116(2) of the Act employment of staff in the New South Wales Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of the Health Service Act or any other Act relating to that staff. Under 116(3) the Director-General, subject to sub-section 2, is to exercise on behalf of the Government of New South Wales the employer function to the Government in relation to the staff employed in the New South Wales Health Service. Under s 116A(1) the Director-General may fix salary, wages and conditions of employment of staff employed under Pt 9 insofar as they are not fixed by or under any other law. Under 116A(3) the Director-General may enter into an agreement with any association or organisation representing a group or class of members of the New South Wales Health Service with respect to the conditions of employment, including salaries, wages or remuneration of that group or class. 187In light of these provisions there can be no doubt that the nurses covered by his Honour's declaration had their employment conditions governed both by statutory provisions and a contract of employment: they were not appointed to an office but were clearly to be "employees" in the normal sense of that word. In any event, if the nurses' entitlements to voluntary redundancy were statutory, a declaration as to their rights under that statute could be made by the Court. It should be noted at this point, however, that the challenge mounted by the appellant did not assert that there was no contract regarding these redundancy arrangements because of a failure to comply with the law regarding formation of contract: rather, the challenge firstly asserted that there could be no contract regarding these arrangements because the employment was entirely statutory in nature and in the alternative, argued why the contract did not lead to an obligation to make redundancy payments.

EFFECT OF "BROADCAST" NOTICE 188Another layer of the appellant's argument was that the email "Broadcast" sent out in mid-September operated in some way to bring to a halt the voluntary redundancy programmes. That document was headed "SWAHS Voluntary Redundancy Programme" and advised that the progressing of "any further" voluntary redundancies was on "hold" until such time as the industrial dispute in the Commission was resolved. Importantly, the Broadcast stated that, employees who had lodged their acceptance by Wednesday, 2 September 2009 and where the acceptance had been processed by the SWAHS, would not be affected. People were asked to contact Human Resources to clarify the status of their voluntary redundancy application. In terms, this notice: firstly, acknowledged that some redundancies were concluded and, therefore, the positions were in excess of requirements; secondly, simply put on hold the administrative process while the dispute was on foot and did no more. 189The evidence was that, even after this Broadcast was issued, employees continued to receive details about their application. For instance, Ms Alzamora was informed of the payout figure of just under $30,000 net, information sent to her approximately nine days after she forwarded her acceptance of the voluntary redundancy offer. The evidence also demonstrated that, before the attempted withdrawal of the offer by the appellant on or about 28 September 2009, all the nurses identified in the Association's Application for a Declaration had, prior to that time, returned their acceptances of the offers of voluntary redundancy. In addition, after the Broadcast was issued, nurses were still being informed about voluntary redundancy options and some paperwork was being processed. Whatever may be said about the Broadcast document, it could not have and did not have any effect on the concluded contract accepted by the nurses.

NO ENTITLEMENT TO REDUNDANCY PAY WHERE NO TERMINATION 190As part of the appellant's multi-layered approach, an issue was raised as to the true nature of the contract and whether Marks J had properly understood the contract. This argument was put in the alternative to the argument that there was no contract because the relationship was statutory and not contractual. There were several elements to this particular argument: firstly, it was argued that the payment of the redundancy package did not arise as the main group of nurses remained in employment and did not terminate their services; secondly, the Policy Directive required employees to be made redundant and to cease employment by the action of the employee; thirdly, nurses such as Ms Alzamora who accepted the offer and left the Service were "not truly redundant"; and, lastly, the positions occupied by people needed to be no longer required to allow redundancy pay but in this case, the employer did wish the work to be performed and a number of people continued to perform that work. 191A further aspect or element of this multi-layered argument was that, even if there was a repudiation of the contract by the appellant, that only gave rise to an action in damages for breach of contract and no such damages would be available to those who remained in employment because there was no termination. It was the termination that crystallised their right to payment. In another related submission it was put for the appellant that it was absurd to enforce the contract when there was no termination. In relation to the group who resigned at a later date their termination was, in truth, a resignation and not a termination by the action of the employer due to the employer no longer wishing the work to be performed. The bulk of these arguments were raised for the first time on appeal. In addition, it can be seen that a number of aspects of the appellant's argument were repeated but under different subject categories. The result is that the abovementioned issues as to the policy as a contractual document can conveniently be dealt with when considering the policy as an alleged statutory provision - others have already been addressed. 192Those employees, like Ms Alzamora, who adhered to the date of 9 October 2009 or some other agreed date for their termination complied with the terms of the contract in every respect. The contract was concluded prior to the appellant "changing its mind" - a decision made too late to affect the contract it had entered into, for example, with Ms Alzamora. On the appellant's own argument, the entitlement to the payments under the redundancy package crystallised on the termination of her employment yet the appellant has refused to make the payments required under the contract. Marks J was correct to make a declaration that Ms Alzamora and those in the same category were entitled to the redundancy package. The appellant's submission that Ms Alzamora was not "truly redundant" is really an assertion that, after the contract had been concluded, the appellant was entitled to change its mind and withdraw from the contract up to the day redundancy was to occur. At the time for termination of services (usually 9 October 2009), it was said that the employer then required the work to be performed. It was, however, too late for that decision, if it was ever made, to affect the concluded terms of the contract which operated on the basis that Ms Alzamora's position was in excess of requirements and under the Policy Directive, she was to be deleted and a voluntary redundancy package was to be paid to her. 193In relation to the nurses who continued in employment after 9 October 2009 or other agreed date but later resigned, their contractual position is little different to the group of nurses of whom Ms Alzamora is a member. There was a concluded contract and the appellant's breach of that contract by refusing to pay the redundancy package was not accepted as a repudiation by these employees and they were entitled to keep the contract on foot in the hope that the appellant would ultimately change its mind and make those payments to which it had agreed. The basis for that approach will be discussed later in this judgment when dealing with related issues raised by the appellant. 194It is an odd result but one contended for by the appellant that, by its own unconscionable conduct in refusing to be bound by the contract it had entered (having initiated amongst the nurses applications for consideration of redundancy and then urged speedy acceptance), the appellant could avoid its obligation to pay that redundancy package because the employees did not leave on the date they had agreed even though that date meant nothing unless they were being paid the redundancy package which the appellant was then refusing to honour. There is more than a degree of sophistry in these submissions on behalf of the appellant. Once this group of employees chose to accept the repudiation of the contract by the appellant and terminate their services, they were then entitled to seek whatever relief they thought appropriate in relation to the appellant's breach, be it a claim for damages, a claim in debt or a simple declaration of their entitlement under the contract to the payment of the redundancy package as agreed. 195The third and largest group have remained in employment, have rejected the repudiation of the contract by the appellant and wished to be paid in accordance with the redundancy package. The appellant's position appears to be that they should have resigned or voluntarily terminated their employment on the agreed date even though they knew that the appellant would not pay them the redundancy package. This group could then, apparently, take their chances by commencing legal proceedings for the breach, thus incurring the costs attendant upon such a course. The members of this group, however, were entitled to refuse to accept the repudiation and to continue to insist upon their right to payment under the contract. In particular, they were entitled, through their Association, to seek a declaration as to their right to such a payment in circumstances where the appellant was telling them that it was allowed to change its mind and as a result, they had no such entitlement. This is a classic situation in which declaratory relief is a useful tool to establish the legal position of the parties in circumstances where significant amounts of money were in question, as well as the employment status of a large number of nurses. 196This part of the layer of the submission has another fundamental, flaw. The appellant assumes that, after the contract was concluded, it always remained open until the nominated date of termination for the employer to change its mind and decide that the position was in fact needed and was no longer to be regarded as excess. To have that effect the contract would need to contain very different words to those exchanged between the parties, as set out in the evidence. Further, on the application of the Policy Directive, there could not be an offer of voluntary redundancy unless the position held by the person was excess to the needs of the proposing service (see the discussion from [93] et seq). The effect of the contract, in compliance with the Policy Directive was that, when the contract was concluded, the position of each nurse was in fact excess to needs and the employer might take whatever administrative action necessary to delete the position. The date of termination, specified by the employer (although permitting another close by date to be agreed upon), was evidence that the employer had at least some work that it wished the employee to perform until that date but not thereafter. The terms of the contract meant that, once voluntary redundancy was confirmed, there was no ongoing work for that position beyond the date nominated by the employer. 197There was nothing in the documents exchanged between the nurses and the employer to suggest that voluntary redundancy was no more than a possibility and that no final decision would be made until the nominated date. Indeed, cl 12.1 of the Policy Directive laid down that voluntary redundancy could only be offered where positions had been deleted, where there was no likelihood of re-deployment or where the skills of the displaced staff members were not in demand. The provisions of the Policy spoke of the position being in excess of needs and being deleted once voluntary redundancy was offered and accepted and employees then being given assistance in looking for other employment. These provisions are quite contrary to the submissions put by the appellant.

LATER ACCEPTANCE OF REPUDIATION NOT AVAILABLE 198Another submission pursued on appeal was that Marks J had misapplied authorities he had relied upon in relation to repudiation of contracts and, in particular, the decision of the High Court in Peter Turnbull . His Honour came to consider this area of the law because of a submission for the appellant that the period for terminating employment under the contract had expired, that is, most of the employees had not left their employment on the nominated date or a later agreed date. It was submitted that, once the employees had not abided by the contract by leaving their employment, they were no longer entitled to rely on the contract for payment. 199His Honour rejected that approach and cited Peter Turnbull for the proposition that a party to a contract who refused to carry out contractual obligations and persisted in that refusal until the time had arrived at which performance of the contract was due, was prohibited from relying on the effluxion of time to deny the innocent party the right to enforce the contract. His Honour reproduced a lengthy passage from the judgment of Kitto J from the Peter Turnbull judgment that reflected his Honour's summary of the law. It is to be noted that, more recently, Peter Turnbull has been again applied by the High Court in Mahoney v Lindsay and ors (1980) 33 ALR 601; (1980) 55 ALJR 118; [1981] ANZ ConvR 71 . In that case the High Court, in applying Peter Turnbull, stated that, if one party to a contract was prevented by the other from fulfilling a condition of the contract, it was equivalent to performance by the former. A party must show only that he was ready but if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go further and do a nugatory act. 200Applying those cases to the present situation the evidence demonstrates that the nurses were ready to perform their part of the contract by terminating their services, but only on receipt of the redundancy package. The appellant employer stopped that taking place by informing the nurses of an intention not to perform its part of the contract by paying the redundancy payment. In those circumstances, the nurses were not required to perform a nugatory act, namely, terminating their services without payment of the redundancy package. In the face of these authorities the appellant submitted that Peter Turnbull applied to a different situation and that there was a failure to satisfy a condition precedent and that the court was dealing with damages rather than the rights of parties under the contract. The Peter Turnbull case was said to be dealing with a different factual situation. These submissions fail to appreciate that Peter Turnbull was laying down a principle and it was the principle that was being relied up. Having regard to the judgments in Peter Turnbull and Mahoney, the appellant has failed to establish how the principles laid down in those judgments were not relevant to the submissions being considered by his Honour. 201The reasons for electing to continue performance of a contract where there has been a repudiation by one of the parties was discussed by Carter in Ch 11, [1104]. In that para it was stated: The main reason for an election to continue with the performance of a contract, notwithstanding the existence of a right to terminate, is the hope of receiving the performance promised by the party who has breached or repudiated his contractual obligations. For example, a party who elects to continue performance after a repudiation of obligation by the other party does so in the hope that the repudiating party will reconsider the position and actually perform outstanding contractual obligations. . ... There may, alternatively, be some intrinsic quality in the subject matter of the contract which makes an election to continue performance more attractive than termination. For example, a purchaser of land may regard it as so attractive or beneficial that the vendor's refusal to complete is not accepted as a repudiation. ... Finally, it appears that there may be procedural advantages in continuing with performance rather than terminating for breach of repudiation. Thus, election by continuing performance may enable the promisee to sue for a debt rather than damages if litigation is necessary. 202In this case the nurses involved had a most valuable asset, namely, their employment. It was an asset that they were not willing to give up voluntarily without the payment available under the redundancy package and probably the assistance available to them to obtain other employment, including re-training. It was not only perfectly logical, but legally open for such employees to continue their employment and decline to accept the employer's repudiation in the hope that either the employer would change its mind or there might be some settlement through industrial proceedings such as a dispute or some other action taken on their behalf by their Association. The cases referred to above demonstrate that this option was legitimately open to the nurses and by continuing in their employment whilst asserting their right to payment of redundancy, they could not lose their right to insist upon payment of redundancy pay.

ORDERS NOT DECLARATIONS 203A further layer of the argument raised on appeal concerned the form of the orders made by his Honour. The circumstances in which the orders were made raises a serious question as to whether or not these arguments should be heard on appeal. It is accepted that, after publishing his reasons for decision, his Honour directed the parties to confer on orders that reflected the terms of his judgment. The respondent apparently drafted the orders and made them available to the appellant who raised no issue about the terms of the proposed orders although that acquiescence is accepted as being no more than an acknowledgement that the orders reflected the judgment of his Honour. It was not an acknowledgement that his Honour was correct in reaching the conclusion that a Declaration should be made. For reasons stated later in this judgment, parties should not be encouraged to save these points for appeal and the appeal process should not be converted into a primary hearing. 204The essence of the objections to the orders appears to be that order 2, by declaring that the following employees were "immediately entitled" to payment of the redundancy package, was in fact not a declaration but an order for enforcement. It is important to note that this wording appeared in the Amended Application for Declaration but attracted no adverse comment before Marks J. It has to be understood, however, that the group of employees that his Honour was dealing with in order 2 were people who had left the service of the appellant and, therefore, all the conditions of the contract had been complied with, except payment of the redundancy package by the appellant. It is in that context that his Honour's use of the word "immediate" is to be understood, namely, the payment was not contingent upon those employees having to do anything more while order 3 dealt with people who had yet to terminate their employment. 205Order 3 was then attacked because it stated that those employees identified were entitled to have their employment terminated "within 28 days of the date of judgment" on the basis that they would then receive the redundancy package. Here, his Honour was acknowledging that there was a step for those employees to take, namely, to terminate their employment and at that point they were to be paid the redundancy package. Obviously, there were some administrative matters to be considered by the employer and the employees in the termination of the employment of some 20 people and his Honour was entitled to believe that the parties had agreed that period would be given to allow the terminations to take place. It was simply a practical course adopted to bring about an orderly termination of many employees and to allow arrangements to be made for the payment of the redundancy package. 206If there continues to be an issue about the form of the Declarations following this judgment on appeal it is open to either party to have the matter relisted so that consideration might be given to making differently framed orders that declare the rights of the individuals to redundancy pay as well as consequential orders. It may well be that, as indicated earlier, like Ms Alzamora, they have all received a net payout figure from the appellant that is still accurate and that his Honour may be asked to make a Declaration in relation to each person and their entitlement to that amount. It may also give the Association time to consider whether the individuals might be joined to the proceedings now that the appellant has raised that issue. It is to be hoped, however, that further proceedings are not required in light of this judgment.

WHETHER LEAVE TO APPEAL SHOULD BE GRANTED 207The variety of technical or formal issues sought to be raised by the appellant for the first time on appeal and the many answers available to those points as discussed in relation to grounds (a), (b), (d) and (e) above demonstrates the point that, had these matters been raised before Marks J, a variety of approaches might have been taken, including the simple joinder of all the employees who had, in any event, provided affidavits supporting their claims for the payment of the redundancy package. Many of the points now taken have no basis in law. 208In relation to these matters I am satisfied that leave to appeal should not be granted. There are two aspects to that finding. Firstly, a number of the propositions contended for by the appellant do not represent the established legal position relevant to the parties. As indicated above, other propositions for the appellant misstate or fail to accurately state the circumstances surrounding the making of the declaration by his Honour. There is a further and substantial ground upon which leave in relation to these matters should not be granted. It is well settled that, on appeal, a party is bound by its conduct of the case below. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ stated at [7]: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. ... In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Bloemen v Commonwealth (1975) 49 ALJR 219. In O'Brien v Komesaroff (1982) 150 CLR 310, Mason J, in a judgment in which the other members of the Court concurred, said: In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided ... However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial. In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this court ( University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483) the Court said: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms: "the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court." (Note: at 7-8). 209Despite the High Court's determination of this issue, the same type of issue was again litigated in 1988. In Holcombe & ors v Coulton & ors (1988) 17 NSWLR 71, McHugh JA, speaking for the court at 77, stated: I do not mean that this Court ought never entertain a pure question of law or construction which was not raised in the Administrative Law Division. Each case must be considered on its own facts. But as a general guide, I think that the interests of justice are best served by keeping parties to the cases which they ran before the Administrative Law Division. Certainly, I cannot accept the notion that the interests of justice require that cases should be heard and re-heard until every conceivable factual pattern or every conceivable legal principle of relevance that finally occurs to the parties have been litigated. The cost and strain of litigation and the limits of curial resources have to be weighed against the demand of the appellant for justice according to the set of rules which represent the "law" which should have governed the case. Under the adversary system of justice, the function of the trial court is to determine disputes in respect of issues formulated by the parties, and the function of an appellate court is to correct any error of the trial court in making its determination. Moreover, the policy of the law is that, when a matter becomes the subject of litigation and adjudication, both parties are forever precluded from litigating any issue which might have been brought forward as part of the matter in dispute: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. To allow a party to raise in an appellate court a matter which was not litigated in the trial court not only undermines the respective functions of the trial and appellate courts and the policy of law but perhaps more importantly it deprives the appellate court of the benefit of the views of the trial court. 210Although in industrial matters this Court has afforded an amount of flexibility to the parties, there are some aspects of the jurisdiction of the Court where the approach in Coulton v Holcombe is appropriate. This is such a case. No attempt was made by the appellant to explain why these variety of points were not taken at first instance and it was accepted that there were no special circumstances surrounding these issues such that they had only been capable of discovery after the proceedings were concluded before his Honour. Parties who bring proceedings in this Court should not be led to understand that they can routinely bring a different case on appeal to that litigated at the initial trial, nor can they expect that any such attempt will not be subjected to the scrutiny demanded by the High Court in Coulton v Holcombe.

EFFECT OF POLICY DIRECTIVE 211There is one matter, however, that falls into a different category and where leave to appeal would be appropriate. This matter, arising under ground (c), is the argument based upon the proper application of the Policy Directive issued in November 2007 and applied to Area Health Services. This document was in evidence before his Honour and brief reference was made to cl 12 of the Directive in the letters of offer of voluntary redundancy dated 27 August 2009. Clause 12 dealt with voluntary redundancy and Managing Displaced Staff of the New South Wales Health Service. Although the argument, in its refined form, was not put before his Honour, on appeal it was submitted, in part, that the Directive had statutory force and that failure to comply with its provisions left the so-called offers of voluntary redundancy without the necessary contractual basis. The significance of that argument generally and its importance for the declarations made by his Honour is of such importance that, in the public interest, leave should be granted on that question. For that purpose, the new evidence of Ms Oong should be received on the substantive appeal insofar as it concerns subsidy conditions and the Policy Directive for Managing Displaced Staff. 212Ms Deborah Oong was Acting Director, Corporate Government and Risk Managers Branch of the Department of Health. Ms Oong was not required for cross-examination and the following matters set out in her affidavit were not challenged on appeal: 16 The Health Services Act sets out the conditions under which the Minister or his or her delegate may pay subsidies to an area health service, such as SWAHS. 17 Section 127(3) authorises the Minister to determine the amount of the subsidy to be paid to each area health service, statutory health corporation and affiliated health organisation. 18 Section 127(4) permits the Minister to attach to the payment of subsidies such conditions as the Minister determines from time to time. 19 Section 21 of the Health Administration Act 1982 (NSW) allows the Minister to delegate such of his or her functions under any Act to the person specified in the delegation instrument. 20 The Minister has delegated his or her power under section 127(4) of the Health Services Act to determine conditions for the payment of a subsidy to the Director-General. ... 21 On or around 24 December 2004, the Director-General approved the issuing of a revised Accounts and Audit Determination for Public Health Organisations ( Accounts and Audit Determination ). The Accounts and Audit Determination was then issued in January 2005. 22 The Accounts and Audit Determination, at section 1.1, states: In exercise of the power conferred under section 127(4) of the Health Services Act 1997 the Director-General as delegate of the Minister has determined that it shall be a condition of the receipt of Consolidated Fund Recurrent Payments and Consolidated Fund Capital Payments that every public health organisation receiving such monies shall comply with the requirements of this Determination and the Accounting Manual for the Public Health Organisations. 23 Section 1.3 of the Determination further provides as follows: The Board of Directors (where applicable) and the Chief Executive, or equivalent, of a public health organisation shall be responsible to ensure: (i) .... (iv) the due observance of the directions and requirements of the Director-General and the Department as laid down in this Determination and in circulars, policy directives and policy and procedure manuals issued by the Minister, the Director-General and the Department. 24 On or around 24 February 2005, the Director-General approved the Policy, Guideline and Information Bulletin Distribution System PD2005_481 for the NSW Department of Health policy directive, which set out a revised system for the issuing of NSW Health policy directives. 25 The Policy, Guideline and Information Bulletin Distribution System for the NSW Department of Health PD2005_481 was then issued on 24 February 2005. A copy of this document is annexed and marked "F". This document is marked "rescinded", as it was rescinded and replaced in May 2009. 26 In this policy directive, the Director General delegated the function of approving the issuing of policy directives to a Deputy Director-General of the NSW Department of Health. This policy directive also provided that " Chief Executives [of the area health service] are responsible for ensuring the observance of policy directives and are required to designate an officer, who will be responsible for ensuring the effective dissemination of policies and guidelines within an organisation ". 27 On or around 16 November 2007, the Deputy Director-General of NSW Health approved the release of a new Managing Displaced Staff of the NSW Health Services Policy Directive for the NSW public health system. The Managing Displaced Staff of the NSW Health Service Policy Directive PD2007_085 was then issued on 21 November 2007. ... 213The Policy Directive carried a note in the following terms: "Compliance with this Directive is mandatory for NSW Health and as a condition of subsidy for public health organisations." The Policy Directive was headed Managing Displaced Staff of the NSW Health Service." A summary, appearing on the first page of the Policy Directive, was in the following terms: This document is the policy on managing Displaced Staff members of the NSW Health Service. It describes the conditions applicable and the administrative procedures to be followed when a staff member of the NSW Health Service is excess to the workforce needs of the division of the NSW Health Service in which they are employed. This document places an emphasis on redeployment, supported by counselling and training services. It also includes voluntary redundancy provisions where redeployment is not practical. 214Clause 12 of the Policy Directive is headed "Voluntary Redundancy." A copy of cl 12 was attached to the letters dated 27 August 2009 whereby individual employees were offered voluntary redundancy on terms set out in that document. 215For present purposes, cl 12 of the Policy Directive contained the following entries: 12.1 Offering voluntary redundancies Voluntary redundancies may be offered to staff members whose positions have been deleted, where there is no likelihood of redeployment or where the skills of the displaced staff members are not in demand. Before expressions of interest in voluntary redundancy are called the employer must consult with the relevant industrial organisations. (The clause then sets out circumstances in which voluntary redundancy might be appropriate). 12.2 Authority to Offer Voluntary Redundancy Chief executives (however called) of organisations in the public health system are delegated with the authority to offer displaced staff members voluntary redundancy, except in the circumstances outlined in 12.2.1 and 12.2.2. below. [Clauses 12.2.1 and 12.2.2 identified two circumstances where other persons were identified as required to take certain steps before expressions of interest were called for]. 12.5 Voluntary Redundancy Package Staff members who accept voluntary redundancy are entitled to the following with payments to be made at ordinary rates of pay: [The six matters identified under this clause were contained within the letters of offer of redundancy dated 27 August 2009 and referred to earlier at [4]]. 12.5.1 Severance Payment Displaced staff members with greater than 12 months' continuous service who accept a voluntary redundancy are entitled to the following payment as part of their voluntary redundancy package: 3 weeks per year of continuous service to a maximum of 39 weeks (13 years' service) with pro rata payments for incomplete years of service to be on a quarterly basis irrespective of whether that continuous service was full-time, part-time or a combination of both ... ... 12.5.3 Additional VR Acceptance Payment Staff members who accept an offer of voluntary redundancy within 2 weeks of the offer being made or with an extension of up to 4 weeks at the discretion of the employer and who agree to terminate their employment within the time nominated by the employer are entitled to the following additional payments at the staff member's ordinary rate of pay: less than 1 year of service: 2 weeks pay; 1 year and less than 2 years service: 4 weeks pay; 2 years and less than 3 years of service: 6 weeks pay; 3 years of service and over: 8 weeks pay. ... 12.7 Assistance for Staff Members Accepting Voluntary Redundancies The Employer is to ensure that a staff member accepting voluntary redundancy is aware of and has access to: counselling; retraining opportunities, career transition and occupational information; advice on access to professional assessment to assist in determining vocational skills, aptitude and interest; information on programmes to upgrade existing skills or require new skills; assistance with job search (including resume preparation, interview skills etc); assistance with trade/skill certification. ... 12.9 Re-Employment Following Acceptance of Voluntary Redundancy Staff accepting voluntary redundancy are required to sign an undertaking to refund the employer that proportion of the severance payment applying to the period of re-employment should they be re-employed in any capacity (including employment in a temporary, part-time, casual, consultancy or contracting capacity) in a NSW public sector service as defined in the Public Sector Employment and Management Act 2002 within the period covered by the severance payment, prior to commencing such employment. The repayment covers the severance component and the additional VR acceptance payment but excludes payment in lieu of notice. ... 216It was submitted for the appellant that the Policy Directive had statutory force: there was no capacity or discretion in the Area Health Services to deviate from the Policy and it was submitted that his Honour had failed to properly appreciate the voluntary redundancy terms of the Policy Directive. It was also submitted that cl 12 of the Policy Directive dealing with voluntary redundancy was incorporated into the offers of voluntary redundancy made in the letters dated 27 August 2009. Having regard to the necessity to comply with the terms of the Policy Directive regarding voluntary redundancy, it was submitted that no positions had been deleted and that following the withdrawal of the offer of voluntary redundancy, the employer wished the positions to be filled and so the pre-conditions for qualifying for a voluntary redundancy had evaporated. 217Further, applying the well-understood industrial concept of "redundancy" it was submitted that, on the evidence, from the date of the withdrawal of the offer and at least by 9 October 2009 and thereafter, there were no positions "deleted" in accordance with the Policy and the continuation of employment by the majority of the nurses who had received the offer dated 27 August 2009 demonstrated that the employer in fact wished the positions to be filled and the work to be performed. Although a submission in these terms was never put to his Honour, those circumstances were said to result in there being no occasion for redundancy payments to be made to the various claimants and, therefore, there was no basis for the declaration ultimately made by his Honour as to the appellant's liability to pay redundancy pay. 218In dealing with this submission it is necessary to return to the circumstances in which the offers contained in the letter dated 27 August 2009 arose. It appears that it became known that the SWAHS was entertaining applications for voluntary redundancy. A form, entitled "Expressions of Interest - Voluntary Redundancy" was available on the website and was to be completed and submitted to the Area Health Service if voluntary redundancy was being sought by the employee. The form, below the heading referred to above, stated: Please complete the following information to enable an assessment of your current entitlement. Please note, completion of this application provides information only and does not constitute an approval or offer for a voluntary redundancy. 219A person completing the form was required to provide details of their employment history and their present position and award classification. They were asked to describe the main functions of their position and provide details of the way they thought their position was "surplus to requirements" and could be deleted. 220The letter dated 27 August 2009 on the letterhead of Sydney West Area Health Service and signed by Kevin Gillies, Area Manager, Human Resources Services and Policy, Sydney West Area Health Service carried the heading: "Expression of Interest - Voluntary Redundancy." The opening paragraph of that letter stated: As a result of your expression of interest in voluntary redundancy and recent discussions with the Area Health Service, I would like to offer you the opportunity to take voluntary redundancy. The components of the package were then set out in terms that reflected cl 12.5 of the Policy Directive. The letter then stated that, if the offer of voluntary redundancy was accepted within two weeks, certain benefits would flow and those benefits reflected the additional payment provided by cl 12.5.3 of the Policy Directive. A condition was imposed on accepting the offer that reflected the terms of cl 12.9 of the Policy Directive so that re-employment in the public sector would result in an obligation to refund identified portions of the redundancy payment. The letter then contained the following sentence: This offer is made on the grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service. The proposed date for your termination is 9 October 2009. Any departure from this date should be discussed with the undersigned. Find attached for your information: A copy of s 12 "Voluntary Redundancy" of NSW Health PD2007_085 Managing Displaced Staff of the NSW Health Service. There was a further note concerning details of final payment being provided within five working days of acceptance of the offer - recipients were then asked to consider and sign the attached form. 221The attached form was headed - "Confidential Memorandum - Acceptance of Offer of Voluntary Redundancy." The forms were to be returned to Professor Stephen Boyages - Chief Executive, Sydney West Area Health Service. The acceptance form was in the following terms: I refer to your letter of 27 August 2009 concerning the offer of a voluntary redundancy. I have considered the offer of voluntary redundancy by the Sydney West Area Health Service. I declare that: I wish to accept the voluntary redundancy offer as attached and voluntarily terminate my services with the Sydney West Area Health Service. I acknowledged that my last of service with the Sydney West Area Health Service will be 9 October 2009. I acknowledge that I have been offered the following redundancy payments by Sydney West Area Health Service [setting out the package arrangements set out in cl 12.5 and also 12.9 of the Policy Directive]. The letter continued - I have read and understood the information relating to voluntary redundancy in s 12 "Voluntary Redundancy" of PD2007_085 - Managing Displaced Staff in the NSW Health Service. 222There was no evidence or submission that Mr Gillies was not a person authorised to make the offers and in any event the acceptance of the offers were directed to the Chief Executive of the Area Health Service as required by the acceptance forms. The principle of the presumption of regularity would require these offers to be treated as being made in accordance with the Policy Directive (see Berwin v Donohoe [1915] HCA 79; (1915) 21 CLR 1 at 25 per Isaacs J; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 64 per McHugh JA; (1987) 62 LGRA 409 ). 223At every step those who responded must be taken to have understood and accepted that they were putting forward their position as being in excess of requirement and a position that should be deleted so that voluntary redundancy pay would be made available in accordance with the Policy Directive. The letter dated 27 August 2009 acknowledged, in terms of the Policy Directive, that the position was "excess", undoubtedly a reference to being "excess to the workforce needs" as referred to in the summary to the Policy Directive. Such an excess position was deleted under the Policy: indeed, offers of voluntary redundancy could not be made unless the position was excess and deleted. The appellant points to no statutory or policy provision that governs how a position may be deleted, but it must follow that, where expressions of interest have been canvassed and responded to and the employer has determined that the position is in excess of requirements and offers a voluntary redundancy payment, upon acceptance of that offer the position is considered to be deleted and treated by the policy provisions as deleted. 224The Court is also entitled to look at the substance of the matter (Re Wiseu (1983) 4 IR 67 at 72; R v Turbet; Ex parte Australian Building Construction Employees & BLF (Loy Yang case ) [1980] HCA 47; (1980) 144 CLR 335; (1980) 33 ALR 79; (1980) 55 ALJR 59 where the High Court looked at the history of relations between unions in order to find the existence of an actual interstate industrial dispute in terms wider than that found by the Commission; Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 at 610; (1981) 147 CLR 589; (1981) 36 ALR 3; (1981) 55 ALJR 621; WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68; (2002) 112 IR 332 at [60] where the Full Bench referred to it being trite that the law will usually look to the substance rather than the form of transactions and procedures to decide validity). 225When the entirety of the evidence is considered I am in no doubt that the Area Health Service canvassed for expressions of interest from people whose positions could be declared excess and deleted and thereby become eligible for voluntary redundancy payments in accordance with cl 12 of the Policy Directive. The letter of offer itself recognised if not declared that the position held by the addressee was in excess of needs and the consequence of offering that person the voluntary redundancy package was that, in accordance with the Policy Directive, it was regarded as deleted. What administrative formalities were required to bring about deletion, other than paying out the person, could not affect the substance of what was being achieved, namely, position redundancy and the payment of a voluntary redundancy package. The Policy Directive itself was described as laying down procedures for "Displaced Staff", that is, those who were no longer required and whose position had become redundant: that was the context in which these offers were made. To the extent that it is necessary to determine this question at the time of acceptance, I am satisfied that the terms of the Policy Directive were complied with and in fact there were a number of excess positions in the workforce of the Area Health Service and that those positions were deleted with the displaced persons to be paid a redundancy package in accordance with the provisions of the Policy Directive. 226The submission that the Policy Directive was statutory in nature and/or had statutory force, even if correct, has no consequence having regard to the view expressed above. Nevertheless, it is difficult to accept the appellant's submission that the Policy Directive had statutory force because of the subsidies determination provisions of s 127 of the Health Services Act. While it may be accepted that the Policy Directive represented a condition under which the subsidy was payable to the Area Health Service, the terms of s 127(5) strongly suggests that the Directive did not have statutory force. Section 127(5) provides that a condition imposed pursuant to s 127, if breached, would result in no more than the Director General making a recommendation to the Minister in such terms as the Director General saw fit. 227There is, of course, a distinct difference between decisions that are made under and authorised by a statute and decisions that are directly governed by the terms of a statute. On its face, conditions that might be imposed pursuant to s 127 of the Health Services Act are decisions that might well be made under a statute, but those decisions of themselves are not by the statute or by necessary implication thereby given the status of a statutory provision. 228While leave should be granted to consider the status and role of the Policy Directive, ultimately nothing in that document detracts from the strength of the case for the respondent. Having considered these matters the appeal should be dismissed. For reasons identified earlier in the judgment, it is open to the respondent to relist the matter before Marks J for the making of any appropriate consequential orders. 229In my view costs should be reserved. The parties should be requested to confer on the issue of costs and should agreement be reached, short minutes of consent orders should be filed. If there is no agreement as to the costs, the parties should file written submissions with the respondent to file and serve its submissions within 14 days and the appellant to file and serve its submissions within a further 14 days. In my view the Court should decide the contested issue of costs on the submissions filed. 230Since preparing this draft I have subsequently had the opportunity to consider the draft judgments prepared by the President, Boland J and the Vice-President, Walton J. I am in general agreement with the views expressed by Boland J although his Honour has proposed reformulated declarations. 231My primary view remains that, properly construed, the orders made by Marks J are valid declarations. Those orders reflect the width of declaration that may be properly made, stating the rights and/or obligations of those involved. Boland J broadly accepts that approach in [57] of his separate judgment. Importantly, his Honour accepts that "the substance of his Honour's orders were within power", although expressing concerns about the form of orders 2, 3 and 4. The reformulation of the orders may have the advantage of removing the possibility of further litigation should the orders made by Marks J stand yet the appellant decline to give effect to them because of their form. This is a significant consideration. 232Earlier in my judgment I have dealt with the principle laid down in Coulton v Holcombe , namely, that a party is bound by its conduct of the litigation below and should not normally be at liberty to raise issues for the first time on appeal when the opportunity was available to raise those issues at first instance. This is an important principle and one I firmly believe should apply in the present circumstances. Marks J had asked the parties to discuss and formulate orders that reflected the views that he had expressed regarding their respective rights and obligations. The appellant did not raise any issue concerning the orders proposed by the respondent when it had the opportunity to do so before Marks J. Notwithstanding the view that I hold in this regard, the declarations proposed by Boland J have the benefit of reducing the prospect of ongoing litigation in this matter and does no violence to the important principle laid down in Coulton v Holcombe . In those circumstances I am content to concur in the declarations proposed by his Honour.

ORDERS 233The Full Bench makes the following orders: (1) Leave to appeal is granted to deal with the status and role of the Policy Directive regarding redundancy raised in (c) of the grounds, but leave to appeal is refused in relation to the matters covered in (a), (b), (d) and (e) of the grounds for granting the appeal; (2) To the extent determined in this judgment the appeal is dismissed; (3) That declarations and orders be made as follows: (a) That there exists a binding contract between the Director-General of the NSW Health Service and the following persons: Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu Marlene Lawler Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson Grace Mazi Siew Khim Seow (b) That the terms of the contracts referred to in Order (a) hereof are those set out in the letters of offer dated 17 August 2009 and 27 August 2009 and the acceptance of that offer on various dates (as set out in the table at [4] of this judgment) by the persons referred to in Order (a). (c) That the Director-General of the NSW Health Service wrongfully repudiated the contracts referred to in Orders (a) and (b) hereof. (d) That the following persons who have left employment on the dates recorded in the table in [4] of this judgment are entitled to a redundancy payment in accordance with the terms of their contract with the Director-General of the NSW Health Service: Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu Grace Mazi Siew Khim Seow (e) That in the event the Director-General continues to refuse to honour the contracts referred to in Orders (a) and (b) hereof the following persons, upon termination of their employment other than for cause, shall be entitled to a redundancy payment in accordance with the terms of their contract with the Director-General of the NSW Health Service: Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Marlene Lawler Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson (f) That the persons referred to in Orders (d) and (e) are entitled to have any redundancy payment payable to them calculated on the basis of their period of service as at the date their employment terminated or terminates. (g) Costs are reserved. The respondent shall have 14 days to file and serve any submission regarding costs, with the appellant having a further 14 days in which to respond. Unless a party indicates they wish to make oral submissions on costs the question of costs will be determined on the papers.

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 August 2011

It is said that by definition, for there to be a declaration of right the plaintiff must possess a right which is recognised in law. This, however, is too simplistic. ... Despite, however, such statements as that by Lord Diplock in Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862 at 910 that 'The jurisdiction ... to give declaratory judgments is limited to declaring the existence of legally enforceable rights or liabilities', even judges whose judgments tend to restrict the ambit of declaratory order go further than this in New South Wales. For instance, Hutley JA said in Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corp [1977] 1 NSWLR 43 at 65, 'The plaintiff seeking a declaration may not necessarily have to have an existing bond which he is entitled to enforce, but the declaration itself must be made within the sphere of legal relations.' Street CJ, in the same case at 54, held that there was no separate test of jurisdiction that a right or 'justiciable right' was involved, there was unlimited jurisdiction but the court would in its discretion consider whether it would be proper to grant declarations where traditional rights were not involved. ... In Sankey v Whitlam (1978) 142 CLR 1 at 23, Gibbs CJ said, 'The word 'right' in the expression 'declarations of right' ... is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant...'.

Although there is no requirement for a cause of action in declaratory matters, the law must draw the line somewhere as to the sort of disputes which may be brought before it for adjudication. Borchard ( "Declaratory Judgments" Borchard EM, Cleveland Banks-Baldwin Law Publishing Co, Cleveland Ohio, 2nd ed (1942)) says (p 49) that one cannot talk in terms of causes of action in the strict sense because two of the main virtues of a declaratory action are to get relief before damage or to 'escape from dilemma and uncertainty by a clarification of the legal position'. He goes on to say: The wider opportunity and necessity for judicial usefulness disclosed by the declaratory judgment make necessary either a more flexible and comprehensive connotation of the terms 'cause of action' or the employment of a less chameleonic term to indicate when the petitioner may be accorded judicial protection without losing sight of the necessity for jurisdictional facts, it is suggested that the term ' legal interest' meets the need. ... 169The flexibility of declaratory relief and its relative freedom from technical issues was highlighted by the judgment of the Court of Appeal in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43. Street CJ, a p 54, dealing with the issue of whether or not there needed to be a "justiciable issue", stated: If justiciable issue means no more than a question falling within the declaratory jurisdiction then, whether or not one agrees, the phrase can be understood. But, if it means something different - if it is put as a test by which to determine whether the dispute falls within the scope of the jurisdiction - I do not, with respect, find it easy to understand its import. An issue may be justiciable in equity, or at common law, or in a court of Petty Sessions or before a statutory tribunal; an issue may be justiciable in proceedings in a superior court seeking declaratory relief, although not otherwise justiciable before that or any other court or tribunal. I disclaim semantic pedantry, but it is as well to ensure that the phrase "justiciable issue" does not become imported as a gloss on this jurisdiction. It casts no light and it carries with it a risk of circuitous reasoning. 170In a separate judgment in Johnco, Hutley JA, at p 66, stated: The Courts can make declarations which go beyond the legal rights of the plaintiffs who seek them. The High Court in Buckley v. Tutty approved, subject to minor amendment, orders made in the Supreme Court of New South Wales in respect of certain rules of the New South Wales Rugby Football League which interfered with the plaintiff's right to pursue his vocation as a professional Rugby League footballer, even though those rules were not rules of a body of which he was a member. It further approved the decision of the Court of Appeal in England in Nagel v. Feilden , where it was held that the plaintiff, who was not a member of the Jockey Club, had at least an arguable right to have the Court declare that the practice of the Jockey Club not to grant licenses to female trainers of racehorses was, as Danckwerts L.J. said: "... the dictatorial exercise of powers by a body which holds a monopoly" and contrary to public policy. The effect of such a declaration, if it had been made, would have at least given to the plaintiff a right to require the Jockey Club to consider her application on its merits, disregarding the fact that she was a female. The reality of the situation is that, so far from a legal right having to precede a declaration the declaratory procedure can actually generate rights. Rules relating to procedure are customarily described as adjectival, to emphasize the fact that they are in the main subsidiary to substantive rights, but historically, substantive rights have arisen from the invention of procedures. The writ created the right, and did not follow it. The powers of the Courts to grant declarations are in fact generating new systems of rights. 171Ground (b) separately raised the issue of the power of the Court to make binding declarations on people who are not parties to the proceedings, as a new issue. This issue has been addressed in preceding paragraphs. While it has long been understood that a declaration will only bind the parties to the proceedings (eg Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119 at 113-4; [1959] ALR 65; (1958) 32 ALJR 301 ), nevertheless, as earlier observed, with every declaratory order, liberty to apply is implied so that the court can make appropriate consequential orders as required ( Royal Insurance Co Ltd v Mylius [1926] HCA 49; (1926) 38 CLR 477 at 497; [1926] ALR 446; [1927] VLR 1 ). I have concluded that, once the Association was found to be a proper party to the declaration, it may enforce it but there may be other options open to the Association by way of an implied power to exercise liberty to apply. These options are discussed later in the judgment. 172There is also an established convention relating to the Crown noted in Declaratory Orders, 2nd ed (1984) Butterworths at [214]: The enforceability of a declaratory order is the weak spot in its armour, as there is no sanction built into declaratory relief. This is of little moment in suits involving the Crown or public authorities who have persistently conducted themselves according to the court's finding. In Dharmananda and Papamatheos "Perspectives on Declaratory Relief", The Federation Press, 2009, it was noted by the Hon R S French: It is always presumed that once a declaration of entitlement is made the Crown will honour it ( Franklin v The Queen (No 2) [1974] 1 QB 2905 at 218). 173During argument, Senior Counsel was asked whether the appellant, as the Crown, would now depart from that longstanding convention but Senior Counsel replied that he had no instructions to that effect. At the conclusion of the two-day hearing no indication had been given that the Crown would not abide by a declaration made by the Industrial Court. The enforcement point taken by the appellant appears, therefore, to be a mere technicality. The appellant's ultimate position is that if the declaration can be made then only the parties to the contract can enforce the contract. If that need arises it does not affect the validity or the discretion to make the declaration (see Australian Oil Exploration supra ) but if necessary, may lead to the Association exercising the implied liberty to relist the matter in order to meet any technical difficulty, including adding the individual employees as parties. 174This survey of case law and texts demonstrates the appellant's case on these matters to be without foundation. The prospect that privity of contract would operate as a disqualification against a non-party to the contract has been rejected over many years but was conclusively disposed of in Aussie Airlines and in Edwards v Santos. The decision in PSB v PSA is consistent with that approach and recognises the special circumstances in which declaratory relief operates under industrial legislation. 175In the present case, the question is real and not a theoretical question. The employees have acted upon an offer made on behalf of the employer for redundancy pay and that payment has not been honoured. The union covering these employees, as a registered organisation, stands in place of the employees in industrial matters and, therefore, has a real interest in raising the question of its members' entitlements under this arrangement whereby redundancy pay became available to its members. It cannot be doubted that there is a proper contradictor here, being the Crown in Right of New South Wales in the embodiment of the Director General of the Department of Health. Importantly, a declaration may be made even where there has yet to be a wrongful act or omission because the moving party has an interest in having their position declared (see Oil Basins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643; (1993) 117 ALR 338; (1993) 67 ALJR 955; (1993) 93 ATC 4947; (1994) 29(1) AustLawyers 49a).

DAMAGES ONLY CAUSE OF ACTION 176There was also an argument put by the appellant that, because the majority of employees did not leave their employment (and others left their employment after a significant elapse of time), the only cause of action left to such employees was damages: the continuing employment, however, would substantially mitigate the damages leaving the declaration as a largely hollow exercise that in the exercise of its discretion, the Court would not grant. While it is accepted that a court that is asked to make a declaration will investigate the utility of that course and enquire as to the existence of a real dispute, the terms of s 154 do not require that consequential relief "is or could be claimed." It is the very width of that jurisdiction that makes it an effective remedy avoiding a multiplicity of proceedings. In any event, quite apart from the longstanding convention that the Crown will abide by declarations made by the courts, if enforcement of the order was required then the employees would not be limited to a claim in damages but may, in the alternative, take an action on the debt (see J W Carter, Breach of Contract, 2nd ed (1991) Law Book Company at [404]). As already discussed, leave to apply could be exercised and his Honour asked to make a further declaration where the precise money amount due under the package is known or capable of calculation.

CONTRACT OR STATUTORY EMPLOYMENT ENTITLEMENT 177The matters raised in paras (d) and (e) as to why leave should be granted might be dealt with together. These grounds raised the legal basis of an employee's entitlement to voluntary redundancy as an employee of the Crown and in particular, whether it arises under statute or contract: they also raised the relationship of any contractual right to the statutory regime for voluntary redundancy in respect of the employees concerned. It was asserted, on behalf of the appellants, that the relationship of the employees with the appellant was not contractual, but rather "was governed by statute." It seems to follow from such a conclusion, if available, that the arrangements concerning voluntary redundancy pay could not be contractual, as found by his Honour. The appellant did not explain why a declaration could not be made if redundancy pay was conferred by statute: it was the appellant's position that the Policy Directive on redundancy had statutory force. For the main proposition the appellants relied upon the Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427; (1987) 12 ALD 245; (1987) 69 ALR 193; (1987) 61 ALJR 117; (1987) 20 IR 250 and in particular the reasoning of Brennan J at 437. 178Suttling , however, did not determine that civil servants held only statutory appointments or that there was no contractual relationship possible but, rather, highlighted the fact that in a particular situation the statute may be determinative of a particular issue. Indeed, in the passage relied upon in the judgment of Brennan J, his Honour stated: Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, for example, Gould v Stuart [1896] AC 575 at 577; Carey v Commonwealth (1921) 30 CLR 132 at 137; Lucy v Commonwealth (1923) 33 CLR 229 at 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, for example, Monckton v Commonwealth (1920) 27 CLR 149 at 155, 156; Lucy v Commonwealth , at 244; Geddes v Magrath ; Morgan v Geddes (1933) 50 CLR 520 at 533-34; Commonwealth v Welsh (1947) 74 CLR 245 at 262, 274; and cf Ryder v Foley (1906) 4 CLR 422 at 440. And sometimes an espousal of one view rather than the other has been avoided: see, for example, Reilly v R [1934] AC 176 at 180; Kodeeswaran v Attorney- General of Ceylon [1970] AC 1111 at 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 5 21 at 527. 179In Holly v The Director of Public Works and ors (1988) 14 NSWLR 140; (1988) ALD 43; (1988) 28 IR 270 the Court of Appeal considered arrangements for the employment of persons in the service of the Crown in the context of a ministerial employee seeking appeal rights under the Government and Related Employees Appeal Tribunal Act 1980. In the course of dealing with the issues that arose in that case, the Court of Appeal came to consider the various ways in which persons might be engaged in the service of the Crown. 180Mahoney JA at 145 noted that, since the commencement of responsible government in New South Wales under the Constitution Act 1885 the appointment to all public offices under the government of the colony had been vested in the Governor in Council, subject to the proviso appearing in s 47 regarding minor appointments. The proviso now stated that the requirement for the appointment of all public offices under the Government to be vested in the Governor with the advice of the Executive Council did not extend to "minor appointments which by any Act or by Order of the Governor and Executive Council are vested in Heads of Departments or other officers or persons." His Honour noted, therefore, that Heads of Departments or others could make minor appointments. 181Having then referred to the operation of the Public Service Act his Honour addressed the ways in which persons could engage in the service of the Crown and stated at 146 -147: I come now to consider the relationship which exists between those acting in the service of the Crown and the Crown and the corporations through which, directly or indirectly, it performs the executive functions of government. It will be convenient to examine this, as far as is necessary for present purposes, by reference to three classes of cases: persons who act in the service of the Crown directly and as such; persons who act in the service of the Crown by acting for bodies which, though separate entities, "represent the Crown" in the sense in which that term is used in constitutional law: see, eg, Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 and Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; and persons acting in the service of the Crown in the sense that they perform functions of government but do so as employees of corporations which, in that sense, do not represent the Crown: see, for example, Rural Bank of New South Wales v Hayes (1951) 84 CLR 140 at 146. A person who is, as I have described it, acting in the service of the Crown may do so in one or other of several different relationships which may exist between him and the Crown. Thus, he may act in the Crown's service because he has been appointed to an office in which he acts in that way. The office of a constable is an example of this: Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113 at 118. Or he may act in the Crown's service because, I think, a contract of employment has been made with him by the Crown and he is, in the ordinary sense, in a master and servant relationship to the Crown. In the present case, Mr Holly did not occupy an office but did what he did under a contract of employment with the Crown. The distinction between acting as a servant of the Crown in an office and acting in the course of a contract of master and servant was discussed in Enever v The King (1906) 3 CLR 969 and was referred to in Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (at 118-120). In each case, such a person will act in the service of the Crown in the broad sense. And, in each case, the term "employed" may be appropriately applied to his relationship with the Crown. As the Shorter Oxford Dictionary indicates, "employment" is a term long applied to a position in the Public Service and such a use of it has been recognised in the cases: see, for example, R v Graham (1875) 32 LT 38 at 39. As I have indicated, either of these relationships may be brought into existence in a number of ways and by a number of different kinds of persons. Thus, a person may be appointed to an office in the service of the Crown or enter into a contract of employment as the result of a formal act of the Crown itself: in New South Wales that will ordinarily be done by the Governor with the advice of the Executive Council under the Constitution Act 1902. The relationship may be created because of what a Minister or other authorised servant of the Crown does within the scope of his authority, in the sense referred to by Griffith CJ in Ryder v Foley (at 432 et seq). And the relationship may be created by the exercise of a statutory power. Thus, ordinarily appointments to positions in the Public Service are made by the Governor (s 50); or by the Governor on the recommendation of the appropriate Department Head (s 61). ... Where the relationship is created by a corporation which represents the Crown in the sense to which I have referred, the position may be more complicated. The person may be simply a servant of the corporation and the fact that the corporation represents the Crown and is engaged in the service of the Crown may not, in the particular case, create any relationship between that person and the Crown. Alternatively, the person may, though employed or appointed by the corporation, be, and be only, a person engaged in the service of the Crown. His position in this regard will depend upon the legislation governing the particular corporation and the circumstances of his appointment: see, for example, the operation in this regard of the Energy Authority Act 1976, ss 6(1), 6(2), 9 and 10; see generally s 6 and s 7 and Schedule 2, Pt 2 of the Public Service Act 1979. 182The decision of the Court of Appeal in Holly demonstrated the possibility of persons engaged in the service of the Crown nevertheless working under a contract of employment. The judgment of the High Court in Jarratt v The Commissioner of Police of New South Wales and anor ([2005] HCA 50; (2005) 224 CLR 44; (2005) 221 ALR 95; (2005) 79 ALJR 1581; (2005) Aust Contract R 90-218 (2005) 145 IR 194); demonstrated that there was no impediment to an employee in the service of the Crown also being employed under a combination of statutory provisions and a contract of employment. In that case the legislative provisions covering the position of Deputy Commissioner of Police specified that the employment of the officer be governed by a contract of employment between the officer and the Commissioner with the contract being made by the Commissioner for and on behalf of the Crown in Right of the State of New South Wales. The contract governed the employment and dealt with matters such as the officer's duties and remuneration but did not amount to an instrument of appointment and did not fix the officer's term of office. Those matters were dealt with by statute. Although the contract reflected an instrument of appointment for five years, that itself was not a term of the contract and the officer held office by virtue of the Act and appointment under the Act. 183The judgment dealt with the development of modern conceptions of government employment and how the older cases dealt with circumstances at a time when the Public Service was less likely to be subject to statutory and contractual regulation than at present (see Gleeson CJ at [10]). The joint judgment of McHugh, Gummow and Hayne JJ at [45], after recording several provisions of the Police Act 1990, stated: The confluence between the Act and the Contract rendered apt the identification in McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 531 at 528 of an engagement of employment on terms partly statutory and partly contractual. 184Their Honours continued their analysis at [58], [71] [72] and [73] as follows: