Dr Gibson v Western Sydney Area Health Service

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 6 June, 2001 Matter No IRC 6498 of 1999 DR JAMES GIBSON v WESTERN SYDNEY AREA HEALTH SERVICE Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT

1 In November 1999, Dr James Gibson ("the applicant") filed a summons for relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The respondent named in the summons was the Western Sydney Area Health Service. Dr Gibson had been a visiting medical practitioner in gynaecology at Westmead Hospital, a hospital operated by the respondent. In August 1999 the respondent gave notice to the applicant that it did not intend to renew the applicant's appointment as a visiting medical practitioner - gynaecology at the Hospital. The applicant's appointment as a visiting medical practitioner at the Hospital expired on 30 November 1999.

2 The applicant lodged an appeal against the decision not to re-appoint him pursuant to ss 106 and 107 of the Health Services Act 1997 (NSW). On 25 November 1999 the applicant filed his summons for relief under s 106 of the Act together with a notice of motion, which sought interlocutory relief, the relevant aspect of which was an order restraining the respondent from terminating the appointment of the applicant pending the final determination of these proceedings. 3 The interlocutory application was heard by Peterson J on 26 November 1999. His Honour rejected the application, the relief as sought being beyond power (Gibson v Western Sydney Area Health Service [2000] NSWIRComm13).

4 In May 2000 the applicant filed an amended summons for relief.

5 On 13 July 2000 the respondent filed a notice of motion seeking the following orders: 1 An order under Rule 89(5) of the Industrial Relations Commission Rules 1996 and Part 31 of the Supreme Court Rules 1970 that this application be decided separately from any other question in these proceedings before any trial in the proceedings. 2 A declaration under section 154 of the Industrial Relations Act 1996 and Rule 82(1)(g) of the Industrial Relations Commission Rules 1996 that, upon the proper construction of Part 4 of Chapter 8 of the Health Services Act 1997 and section 106 of the Industrial Relations Act , the Commission has no jurisdiction to hear and determine any of the claims that the applicant has made in these proceedings. 3 An order under Rule 82(1)(a) of the Industrial Relations Commission Rules setting aside the applicant's amended summons in these proceedings. 4 An order under section 181 of the Industrial Relations Act that the applicant pay the respondent's costs of and incidental to this application and the proceedings. 5 Such further or other orders as the Commission sees fit.

6 On 8 August 2000 the respondent filed a further notice of motion seeking the following orders: 1 An order that the Respondent be granted an extension to 13 July 2000 of the time for the filing of its motion handed up in Court on 13 July 2000. 2 Such further or other order as the Commission sees fit.

7 In February 2001 the parties advised that conciliation undertaken pursuant to s 109 of the Act had been unsuccessful and the necessary certificate was issued. 8 The respondent's two notices of motion came before the Court on 8 May 2001. Mr I Neil of counsel appeared for the respondent (the applicant on the motions). Mr A Moses of counsel appeared for the applicant (the respondent on the motions).

9 Mr Neil submitted that the respondent's central contention was that the provisions of s 106 of the Industrial Relations Act 1996 were inconsistent with the later and more specific relevant provisions of the Health Services Act 1997 and that, therefore, the Court had no power to make orders under s 106 in respect of the applicant. Mr Neil said that this central contention gave rise to three applications:

1. An application for a declaration that the relief sought by the applicant was beyond the Court's jurisdiction to grant; 2. An application for an order, either further to or in the alternative to the declaration sought, setting aside the applicant's summons for relief; 3. An application for an order extending the time for filing the first notice of motion. 10 Mr Moses submitted that the question of the Court's jurisdiction to deal with the applicant's case should not be dealt with as a threshold issue. However, there is an issue to be addressed that makes it unnecessary to deal with the threshold jurisdictional issue.

11 The respondent's substantive notice of motion seeks a number of orders, one of which is an order under r 82(1)(a) to set aside the summons. If the Court were inclined to grant this order it would be necessary to first grant an extension of time, because the notice of motion was filed out of time. I will come to the application for extension of time shortly. Another order sought is a declaration under s 154 of the Act and r 82(1)(g) of the Commission's Rules. How am I to regard this part of the application? The question arises because of the respondent's submission that its notice of motion is an application under s 154 and no mention is made of r 82(1)(g). Is it an application for a declaration under s 154 simpliciter as the respondent appears to contend or, alternatively, an application under s 154 but subject to the limitations imposed by the terms of r 82(1)(g)? If it is the latter, then in order to succeed the respondent requires an extension of time. If it is the former, then the respondent needs to establish the grounds for making a "binding declaration of right in relation to a matter in which the Commission (however constituted) has jurisdiction" pursuant to s 154 of the Act.

12 Section 154 of the Act provides: 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.

13 Rule 82(1)(g)of the Commission's Rules provides that: (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order …. (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings …… 14 It seems to me that I should regard the respondent's application for a declaration as an application for a declaration under s 154 limited by r 82(1)(g) of the Commission's Rules, that is subject to the time limit imposed by r 82(2)(c). There are a number of reasons for coming to this view.

15 Firstly, to regard the application as having been made under s 154 without the limitations imposed by r 82(1)(g) would mean that I would have to disregard the words "and r 82(1)(g)" in the application. However, no amendment of the notice of motion was sought to remove these words so, presumably, I should give effect to them. One way of doing so would be to interpret the application as seeking two declarations, one under s 154 and another under r 82(1)(g). This, however, would not make sense because if I were to view the application in this way the terms of the order sought under s 154 and r 82(1)(g) are the same yet the application under r 82(1)(g) is not said to be in the alternative to s 154. In other words, on this construction of the application the Court is being asked to make an order under s 154 and to make the same order under r 82(1)(g).

16 I note that in his submissions Mr Neil referred to his application for a declaration under s 154 and no mention was made of r 82(1)(g). Indeed, Mr Neil contended that no time limit applied to a notice of motion seeking a declaration, thereby inferring that the respondent's application was under s 154 and not limited by r 82(1)(g). If I were to regard the application this way it raises the question as to what is sought by way of a declaration under s 154. In this respect, the declaration sought in the respondent's notice of motion is that the Court "has no jurisdiction to hear and determine any of the claims that the applicant has made in the proceedings." It would seem, however, from the submissions made by the respondent, that what was intended by the wording of the respondent's proposed order was that in exercising its general power under the later Industrial Relations Act, the Commission in Court Session may not make any of the orders sought by the applicant in his amended summons so as to make provision contrary to or otherwise to derogate from any right vested in the respondent by the earlier and more specific Health Services Act. It might be contended that the Court should proceed to deal with the respondent's notice of motion on this basis and I have given serious consideration to doing so.

17 However, I am concerned about the apparent inconsistency between the form of the declaration sought in the respondent's notice of motion and what the respondent actually seeks. In this respect, s 154 gives the Court power to "make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction". The relevant "matter" would appear to be the summons for relief under s 106 of the Act: see Ford v SAS Trustee Corporation (2000) 98 IR 443; [2000] NSWIRComm 92. On its face, the way in which the proposed order is worded immediately raises the question of how the Court could make a declaration of right in relation to "a matter in which the Commission has jurisdiction" if it is contended that the Commission in Court Session does not have jurisdiction to hear and determine the applicant's claims? I do not see that it is open to the Court, pursuant to s 154, to make a declaration in relation to a matter (ie., the applicant's claims under s 106 of the Act) that is said to be outside the Court's jurisdiction. Section 154 is about declaring the rights of parties in relation to a matter within the Court's jurisdiction. It is not about declaring, in isolation from any consideration of a "right", whether or not the Commission has jurisdiction to deal with a matter.

18 Furthermore, the making of a declaratory order has important implications. It operates in law as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal: Declaratory Orders, PW Young, Butterworths, 1984 at par 213. I would be most reluctant to amend the application to reflect what I consider might have been the respondent's intention in seeking the orders.

19 Given my concern about what I perceive to be an inconsistency between the form of the declaration sought and what I understand to be the actual relief sought as well as the uncertainty created by the reference in the notice of motion to both s 154 and r 82(1)(g), it leads me to the view that I should not proceed to deal with the notice of motion in the manner sought by the respondent and without regard to the constraints imposed by r 82(1)(g), namely, that the application must be made within the prescribed time.

20 The other consideration in declining to treat the respondent's application as an application for a declaration unconstrained by r 82(1)(g) is that ultimately there is no prejudice to the respondent. What I understand the respondent to be contending is that in light of the provisions of the Health Services Act it is not open to this Court to entertain the applicant's claims under s 106 of the Industrial Relations Act. Even if the respondent's application for an extension of time fails in relation to that part of its application that relies on r 82, it remains open to the respondent to pursue its contention in the substantive proceedings. At some point it will need to be determined whether it is open to the Court to entertain the applicant's claims or it is not.

21 Given the uncertainty generated by the wording of the notice of motion and the proposed form of the declaration sought, I propose to treat the application as being subject to the requirements of r 82 (2)(c).

22 I turn to consider the application by the respondent for an extension of time in respect of the filing of the notice of motion.

23 Rule 82 of the Industrial Relations Commission Rules 1996 provides that: 82. Setting aside originating process etc . (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process; or (b) set aside the service of the originating process on the respondent; or (c) declare that the originating process has not been duly served on the respondent; or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State; or (e) discharge any order extending the validity for service of the originating process; or (f) protect or release property seized, or threatened with seizure, in the proceedings; or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings; or (h) decline in its discretion to exercise its jurisdiction in the proceedings; or (i) grant such other relief as it thinks appropriate. (2) Notice of motion under subrule (1): (a) may be filed without entering an appearance; (b) must bear a note "The respondent's address for service is" and state the address; (c) must be filed within the time limited for entering an appearance. (3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction.

24 Rule 79 provides: 79. Time for an appearance (1) A respondent must enter an appearance before filing any document and within 7 days of service of any originating process on that respondent.

(2) Notwithstanding subrule (1), where a matter is commenced by way of notice of motion a respondent must enter an appearance before the date appointed for any hearing or mention and before filing any document, except with leave of the tribunal.

25 Clearly, the application in the notice of motion filed on 13 July 2000 to set aside the applicant's amended summons was beyond the prescribed time for filing. A notice of motion filed by the applicant seeking leave to amend the summons and an amended summons were filed on 23 May 2000 and received by the respondent's solicitor on 2 June 2000. On 9 June 2000 the respondent informed Peterson J that the application to amend was not opposed, although the respondent indicated that it did not accept that the Commission could or should grant the relief sought in the amended summons.

26 In proceedings before Peterson J on 29 June 2000 the respondent informed his Honour that it intended to file a notice of motion seeking a stay of the proceedings pending determination of the applicant's appeal under the Health Services Act. The solicitor for the applicant sought an adjournment of the proceedings to clarify the status of her client's appeal. Peterson J adjourned the proceedings until 13 July 2000. On 30 June the respondent's solicitor was advised that the applicant intended to withdraw his appeal under the Health Services Act.

27 In proceedings before Peterson J on 13 July the respondent was given leave to file its notice of motion and affidavit in support. On 20 July 2000 the respondent's solicitor received a facsimile message from the applicant's solicitor indicating that while leave to file the respondent's motion had not been opposed, the respondent had not sought an extension of the time required for filing such a motion under r 82(2) of the Commission's Rules. On 8 August 2000 the respondent filed a further notice of motion seeking an extension of time for filing the substantive notice of motion.

28 No explanation was provided to the Court as to why no action was taken by the respondent's solicitor between 2 June 2000, when she received the amended summons and the notice of motion seeking leave to amend, and 30 June 2000 when she became aware of the fact that the applicant intended to withdraw his appeal, to set aside the amended summons. There was no indication in the letter to Peterson J on 9 June 2000 of any proposed course of action by the respondent other than no opposition to the proposed amendments to the summons. It may have been that up to 30 June 2000 the respondent's solicitor was under the impression that the appeal by the applicant under the Health Services Act was still on foot and that the intention was to seek a stay of proceedings under s 106 of the Act pending the outcome of that appeal. But this does not provide an explanation as to why no application to set aside was not filed with the prescribed time.

29 In the absence of a complete and satisfactory explanation, I am not prepared to grant the extension of time in respect of the respondent's notice of motion to set aside the applicant's amended summons or to make a declaration pursuant to r 82(1)(g). Extensions of time are not there for the asking; they are not automatic: see Taudevin v Egis Consulting Australia Pty Limited and anor [2000] NSWIRComm 63. In any event, as I have already commented, in refusing to extend time the respondent suffers no injustice because if, as it contends, there is no jurisdiction to deal with the amended summons, then, prima facie, it would be open to the respondent to put that submission in the substantive proceedings.

1. The applications for orders in the respondent's notices of motion filed in these proceedings on 13 July 2000 and 8 August 2000 are refused. 2. Costs are reserved.

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