Dr Gibson v Western Sydney Area Health Service

APPLICANT: Mr A R Moses of counsel Solicitor: Mr T Unsworth Tress Cocks & Maddox LEGAL REPRESENTATIVES: RESPONDENT: The Hon J W Shaw, QC with Mr I Neil of counsel and Mr A B Gotting of counsel Solicitor: Ms J Mansfield Blake Dawson Waldron

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 24 July 2002 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 (No 3)

1 The background to this matter is set out in Dr Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 at pars [1] to [10] as follows: 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.

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.

4 The respondent appealed and the appeal was upheld: see Western Sydney Area Health Service v Gibson (2001) 109 IR 359. The matter was remitted to me for hearing and determination in accordance with the Full Bench's reasons.

5 The matter was heard on 12 July 2002. Whilst Mr I Neil of counsel had appeared originally for the respondent (applicant on the motion), on 12 July 2002 the Hon J W Shaw QC with Mr A Gotting of counsel appeared for the respondent. Mr Moses continued his appearance for the applicant (respondent on the motion). At the hearing the parties took the opportunity to supplement their earlier submissions on the substantive issue.

6 The central question the Court is now required to determine is whether it should make a declaration under s 154 of the Industrial Relations Act 1996 to the effect that upon the proper construction of Pt 4 of Ch 8 of the Health Services Act 1997 and s 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.

7 The relief sought by Dr Gibson in his amended summons for relief was as follows: Claims:

1. An order declaring that the contract(s) and/or arrangement(s) whereby the applicant performed work at the hospital operated by the respondent were unfair, harsh or unconscionable or contrary to the public interest.

2. An order varying the said contract(s) and/or arrangement(s) from its or their commencement or some other time so as to include terms that: (a) the respondent would act fairly in determining whether to offer the applicant a further appointment at the expiration of his appointment;

(b) the respondent would provide the applicant with all appropriate and necessary information to enable the applicant to seek a further appointment at the expiration of his appointment.

(c) the respondent would afford the applicant a reasonable opportunity to address any selection criteria against which the respondent would determine whether or not to offer the applicant a further appointment;

(d) the respondent would afford the applicant an opportunity to make submissions in respect of the respondent's decision not to offer the applicant a further appointment, such opportunity being afforded prior to the expiration of the applicant's appointment;

(e) the respondent would reasonably and fairly consider any such submissions made by the applicant;

(g) the respondent would provide the applicant with a reasonable opportunity to apply for any alternative positions, including honorary positions, prior to the expiration of the applicant's appointment; and

(e) The respondent would act fairly in determining whether or not it would act to offer the applicant any such alternative positions. 3. An order varying the said contract(s) and/or arrangement(s) from its commencement or some other time so as to include terms that the respondent would carry out the decision making process concerning the offer for a further appointment in sufficient time so as to enable any appeal by the applicant of the respondent's decision not to offer a further appointment to be heard and determined. 4. An order that the respondent pay to the applicant such sum of money in connection with the contract(s) and/or arrangement(s) so varied as may appear to be just in the circumstances. 5. An order that the respondent pay to the applicant interest upon such amount of money as is ordered to be paid to the applicant in connection with the contract(s) and/or arrangement(s) at such rates and from such time as this Honourable Commission considers appropriate. 6. An order that the Respondent pay the applicant's costs of these proceedings. 7. Such further or other orders as appropriate to this Honourable Commission. 8 The grounds upon which Dr Gibson relied in the amended summons were as follows: Grounds 1. The applicant was a visiting medical practitioner in gynaecology at Westmead Hospital, a hospital operated by the respondent. 2. By letter dated 18 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 Westmead Hospital. 3. The applicant's appointment as a visiting medical practitioner at Westmead Hospital expired on 30 November 1999. 4. Prior to the expiration of the applicant's appointment as a visiting medical practitioner, the applicant lodged an appeal against the decision not to re-appoint him pursuant to section 106 and section 107 of the Health Services Act. 5. The said appeal pursuant to the Health Services Act has been . . . . . [the applicant did not proceed with the appeal] 6. On or about 1 April 1999 and 3 April 1999, the respondent sought applications from specialist medical practitioners for the appointment to 8 positions at Westmead Hospital available in obstetrics and gynaecology and 1 position available in gynaecology. 7. On or about 8 April 1999 the applicant obtained from the respondent an information kit in respect of these positions. The information kit did not contain the job specification for the gynaecology position. 8. On or about 13 April 1999, the applicant lodged an application in writing for the gynaecology position. 9. On 31 May 1999, the respondent interviewed the applicant in relation to the applicant's application for the gynaecology position. 10. At the interview on 31 May 1999 the applicant was provided with a copy of the job specification for the gynaecology position which provided, under the heading 'Qualifications - Essential': 'Special expertise in gynaecological problems of adolescents .' 11. On or about 31 May 1999, the respondent offered the gynaecology position to Dr McGee. 12. On or about 9 August 1999, the applicant sought to be engaged by the respondent in any alternative positions including honorary positions. 13. The respondents failed to properly or fairly consider the applicant's application for any alternative positions and declined to offer any alternative position to him. 14. On or about 9 August 1999, the respondent granted an honorary position to Dr Driscoll who did not make a formal application for the position. 15. On or about 9 August 1999, the respondent granted an appointment to Dr McDonald who was retired at the time of the appointment and who has not practiced under that appointment since it was made. 16. The contract(s) and/or arrangement(s) under which the applicant performed work in an industry were and are unfair, harsh and unconscionable and contrary to public interest in that: a. the contract(s) and/or arrangement(s) permitted the respondent not to offer a further appointment without sufficient notice to the applicant; b. the contract(s) and/or arrangement(s) vested the respondent with significant discretionary powers which may and have been used to the substantial disadvantage of the applicant, particularly in the circumstances relating to the decision not to offer a further appointment to the applicant; c. the applicant was at all times in a position of unequal and inferior bargaining power in respect of his dealings with the respondent and was specifically in such position at the time of the respondent's decision not to offer a further appointment to the applicant; d. the contract(s) and/or arrangement(s) permitted the respondent to deprive the applicant of significant benefits which had accrued to the applicant by reason of the applicant's long term association with the respondent since 1979; e. the contract(s) and/or arrangement(s) permitted the respondent to deprive the applicant in circumstances whereby the contract(s) and/or arrangement(s) failed to provide for any or any reasonable payment of compensation to the applicant by the respondent upon the decision not to offer a further appointment; f. the contract(s) and/or arrangement(s) failed to provide that the respondent afford to the applicant procedural or substantive fairness in the process of determining whether or not the applicant would be afforded a further appointment or any appointment; g. the contract(s) and/or arrangement(s) were otherwise unfair, harsh and unconscionable or contrary to the public interest upon such grounds and for such reasons as this Honourable Commission may find; h. the applicant otherwise seeks the relief set out in this amended summons for relief; and i. in the alternative, the conduct of the respondent as set out in the applicant's affidavit filed with this amended summons for relief caused the contract(s) and/or arrangement(s) between the applicant and the respondent to become unfair in the terms of the Act.

9 The relief sought by Dr Gibson is pursuant to s 106 of the Industrial Relations Act. Sections 105 and 106 of that Act provide as follows: 105. Definitions In this Part: "contract" means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. "unfair contract" means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 106. Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

10 The relevant part of the Health Services Act is Pt 4 of Ch 8, which deals with appeals by visiting practitioners from certain decisions by "a public health organisation". The Western Sydney Area Health Service is a public health organisation for the purposes of the Health Services Act.

11 The scheme of Pt 4 as it relevantly applies to the circumstances of Dr Gibson, may be summarised as follows: 1 If a public health organisation does not re-appoint a person as a visiting practitioner it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision. 2 A person who is dissatisfied with a decision of a public health organisation not to re-appoint that person may appeal to the Minister against that decision.

3 An appellant must give notice to the Minister of the grounds of the appellant's appeal within 1 month (or within such longer period as the Minister may allow) of the date on which the appointment of the appellant expires.

4 On receipt of a notice the Minister must appoint a Committee of Review to determine the appeal. A Committee of Review is to be constituted by: (a) a legal practitioner of at least 7 years standing (who is also to be appointed as the Chairperson of the Committee), and (b) if the appellant is a medical practitioner---1 person nominated by the Association who is a medical practitioner, and (c) 1 other person. 5 The Chairperson of the Committee is to fix a date and a place for the hearing of the appeal, and must give 14 days' notice of those details to the parties to the proceedings.

6 A Committee has, for the purposes of the appeal, the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner and the chairperson of a commission respectively, appointed under Division 1 of Part 2 of that Act. That Act (Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before a Committee in the same way as it applies to any witness summoned by or appearing before a commission. The decision of the Chairperson of the Committee on any question of law or procedure that may arise before a Committee is taken to be the decision of the Committee.

7 A Committee must determine the appeal and may make such orders with respect to the matter being appealed as the Committee considers proper. If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners' appointments is to be made available to the appellant.

8 An order of a Committee has force and effect from the date it is made, and is taken to be the final decision of the public health organisation concerned and must be given effect to accordingly.

12 It was the respondent's submission that Pt 4 of Ch 8 of the Health Services Act: (a) provides a detailed and elaborate scheme for the review by an independent and specialist tribunal of the decisions of a public health organisation not to re-appoint visiting practitioners and, importantly, to substitute the decision of the tribunal for that of the public health organisation, and

(b) evinces the legislature's intention to constitute a comprehensive code for the review and determination of any such decision.

13 It was submitted for the respondent that every one of the grounds upon which the applicant relies in his amended summons would have been available to him on an appeal under Pt 4 of Ch 8 of the Health Services Act. However, it was submitted that the general provisions of s 106, at least in their application to the particular circumstances of this case, are inconsistent with the code established by Pt 4 of Ch 8 of the Health Services Act, so that the operation of s 106 is excluded from cases that, like this case, fall within the later statute: Goodwin v Phillips (1908) 7 CLR 1 at 7, 14 and 16; Miller v Scales (1907) 5 CLR 405 at 417; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276; North West County Council v Dunn (1971) 126 CLR 247; Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 281-282.

14 The respondent also referred to Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 and the considerations by Kirby P at 720-721 in favour of the conclusion that under the Public Hospitals Act 1929 it was the Legislature's intention that the provision of an appeal from a decision of a Hospital Board to terminate the appointment of a visiting practitioner was to exhaust the procedures for review and the remedies available to a disaffected practitioner.

15 Counsel for the respondent also relied on Integral Energy v Allen (2001) 107 IR 456 and submitted that consistent with the approach in that case a declaration is an appropriate means to recognise the inconsistency that exists between the provisions of the Health Services Act and s 106 of the Industrial Relations Act.

16 Counsel for the applicant submitted that Pt 4 of Ch 8 of the Health Services Act did not constitute a comprehensive code for the review and determination of a decision by a public health organisation not to re-appoint a person as a visiting practitioner. It was submitted that the approach to be taken in determining whether the relevant provisions of the Health Services Act ousted those of the Industrial Relations Act was that in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied: Saraswati v The Queen (1991) 172 CLR 1 at 17 per Gaudron J. See also Maggs v Comptroller General of Customs (1995) 58 IR 40.

17 It was further submitted for the applicant that:

1. Section 106 of the Industrial Relations Act confers on the Commission, two powers; (i) where the contract is found to be unfair, the power to make an order declaring that a contract is wholly or partly void or varying the terms of the contract(s 106(1)); (ii) the power to make an order for the payment of money in connection with an order declaring a contract void or varying its terms. 2) The relevant question for present purposes is whether any provisions of the Health Services Act make the determination of the terms and conditions of contract entered into by an Area Health Service a matter solely for an entity other than the Commission. Nothing in the Health Services Act vests this power exclusively in a body other than the Commission. The Health Services Act contains no provision of the nature of s 85 of the Australian Telecom Corporations Act 1989 (Cth) found to be directly inconsistent with s 106 in Dawson v Telstra Corporation Ltd (unreported, Peterson J, IRC 5521 of 1996, 29 May 1998 or s 32(2) of the Australian Broadcasting Act 1983 (Cth), found to be inconsistent with s 106 in McGowan v ABC (2001) 104 IR 244; Makler v ABC (2001) 104 IR 260 and Barry v ABC (2002) 112 IR 33. 3) Neither s 37(1) nor s 22(d) of the Health Services Act, which may be the source of power for the Area Health Service to determine the conditions of visiting practitioner's contracts, are in any way inconsistent with the exercise of power under s 106 of the Industrial Relations Act in relation to a contract entered into by an Area Health Service. 4) The orders sought by the applicant under s 106 do not conflict with any of the provisions of the Health Services Act. 5) Integral Energy v Allen may be distinguished. 6) Part 4 of Ch 8 of the Health Services Act does not manifest a legislative intention that a visiting practitioner who has not been re-appointed should have recourse only to the appeal process set out in that Part. Of particular significance is the absence of any privative clause in Pt 4. Compare s 113(b) with s 95(2) of the Health Services Act. The latter provides that the decision of an arbitrator appointed pursuant to Division 3 of Pt 2 of that Act is "final" and may not be "appealed against, reviewed, quashed or called into question by any court or tribunal". Consideration

18 The respondent's principal contention was that given the collision between s 106 of the Industrial Relations Act on the one hand and Pt 4 of Ch 8 of the later Health Services Act on the other, the maxim leges posteriores priores contraries abrogant applied. That is, the later Act repealed the earlier inconsistent Act. In this respect the respondent relied on Goodwin v Phillips where Griffith CJ said at 7: … where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act. 19 It is apparent, however, that there are limits applying to the implication that a later statute repeals an earlier inconsistent statute and this is reflected in the statement of Gaudron J in Saraswati v R (1991) 172 CLR 1 at 17: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See also Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276 per Fullagar J; Maggs v Comptroller General of Customs (1995) 58 IR 40 at 43-44.

20 The Industrial Relations Act 1996 is, of course, the earlier statute. The substance of s 106 of that Act was considered at length by the Full Bench in Barry v Australian Broadcasting Corporation (2002) 112 IR 33 at 44-46. At 45-46 the Full Bench said: 27 In summary, the subject matter of s 106 is the power of the Court in relation to a relevant contract, including as here a contract of employment, as being one whereby work is performed in any industry. The operation of the section on the ground of unfairness being found is to declare the subject contract void or to vary it and to make an order for the payment of money in connection with the contract so declared void or varied. Howsoever one views s 106, either in substance or in form, it is clear that an inherent and fundamental aspect is the contract itself as to its terms and conditions, including any adjustment thereof. The payment of money in connection with the contract so declared void or varied is dependent upon such a declaration being made: see Tana v Baxter (1986) 160 CLR 572 at p 578 and BNY Australia Ltd v James (1992) 26 NSWLR 57 at pp 83, 95; [1992] 40 IR 1 at pp 25, 38. Also, any order for the payment of money is to be one with a necessary connection with the contract: see Brown v Rezitis (127 CLR at pp 166, 170). 21 The provisions of Pt 4 of Ch 8 of the Health Services Act have been summarised earlier in this judgment. It may be seen from that summary that Pt 4 provides a comprehensive system of review of adverse decisions of a public health organisation. The system is designed to expedite any hearing and avoid undue delay. The appeal is to a specialist body comprising a legal practitioner as Chairperson of the Committee of Review and the visiting practitioner's "peers". As Kirby P noted in Mayze, "Such a tribunal may be better able than a court to determine quickly and finally a matter of importance to the Hospital and the medical practitioner concerned". When Kirby P made this observation there was no requirement for a legal practitioner to chair the Committee. It is most likely that s 108 of the Health Services Act introduced the legal practitioner as the Chairperson because of the criticisms of the Court of Appeal in Mayze in relation to the then Committee's failure to observe the rules of natural justice.

22 A visiting practitioner dissatisfied with a decision not to re-appoint him or her is, subject to certain limits imposed by s 106 of the Health Services Act, at large in formulating the grounds for any appeal and in specifying the relief that he or she may seek. It would, for example, be open to an appellant to claim that the contract or arrangement with the public health organisation was unfair for the reasons expressed in the applicant's amended summons for relief and that by way of a remedy compensation should be awarded.

23 Moreover, the Committee of Review has wide powers as to the orders it may make in relation to any appeal. Indeed, they could be described as plenary in nature. It may be envisaged that in determining the appeal it would be open to the Committee to dismiss the appeal and decline to re-appoint a visiting practitioner; to order that the public health organisation re-appoint the practitioner on specified terms, or; to order compensation on the basis that the contract or arrangement between the practitioner and the organisation was unfair in that it did not include such terms as those set out in pars 2 and 3 of the applicant's amended summons for relief. Having made such an order under s 112, s 113(1)(b) provides that the Committee's order "is taken to be the final decision of the public health organisation and must be given effect to accordingly."

24 It does not seem to me that the Legislature would have gone to the trouble of including in the Health Services Act a comprehensive system of review to be undertaken by a specialist Committee with the powers, authorities, protections and immunities of a Royal Commission and with very wide powers to effect speedy relief, if its intention was to allow parallel access to s 106 of the Industrial Relations Act. To accept that was the Parliament's intention could lead to the incongruous situation of a visiting practitioner pursuing his or her appeal rights under Pt 4 of Ch 8 of the Health Services Act by claiming unfairness in terms similar to those set out in the applicant's amended summons for relief and seeking compensation. Having failed in that appeal (if that were the outcome) it would then be open to the practitioner to mount essentially the same case again under s 106 of the Industrial Relations Act thereby nullifying the whole appeal process under the Health Services Act.

25 Mr Moses for the applicant contended that in seeking relief from an adverse decision of a public health organisation a visiting practitioner was not bound to follow the appeal procedure in Pt 4 of Ch 8 of the Health Services Act. Mr Moses referred to the use of the word "may" in s 106(1) of that Act. Consequently, it was submitted, it was open to a practitioner to opt for relief under s 106 of the Industrial Relations Act rather than under the Health Services Act. In my opinion, the word "may" in s 106(1) of the Health Services Act is used in the sense of giving the practitioner the option of taking an appeal under that Act if he or she so chooses. It is not used in the sense of giving the practitioner the option of choosing a path to relief under some other statute such as the Industrial Relations Act. This is consistent with what I consider to be Parliament's intention.

26 Mr Moses further contended that: There is nothing in Part 4 of Ch 8 of the 1997 Act that suggests the legislature intended a decision on appeal under Part 4 of Ch 8 to be immune from challenge or from the effect of another decision that tended to derogate from it. Had such an intention been present a privative clause of the nature of s 95(2) would have been inserted instead of the deeming provision in s 113(b).

27 The fact that the Legislature chose not to insert a strong privative provision in Pt 4 of Ch 8 of the Health Services Act is merely an indication that its intention was not to make any determination by the Committee of Review immune, or partly immune, from judicial review by an appropriate court. That the Legislature did not include a privative clause in Pt 4 of Ch 8 is not, in my opinion, an indication that it was the Legislature's intention to allow a visiting practitioner, if he or she were dissatisfied with the outcome under Pt 4 of Ch 8, to make a second claim for relief by way of an application under s 106 of the Industrial Relations Act. Nor does the absence of a privative clause indicate an intention to allow a practitioner the opportunity to by-pass the specialist review body, in favour of another forum, to pursue any claims for relief.

28 Mr Moses submitted that: In the present case, the respondent has decided not to re-appoint the applicant, pursuant to s 105(b) of the 1997 Act. An appeal against this decision under Pt 4, Ch 8 of the 1997 Act does not raise the fundamental question raised under s 106 of the 1996 Act; whether the terms and conditions of service contract were "unfair" as set out in s 105 of the 1996 Act. Instead, an appeal under Pt 4 Ch 8 is concerned with the question of whether the decision not to re-appoint a visiting practitioner should be overturned or whether a public health organisation should pay compensation for failure to re-appoint a visiting practitioner. 29 Whilst there are obvious differences in the subject matter and purposes of the relevant provisions of the two statutes, there are also similarities. For example, as I alluded to earlier, if the Committee were to decide to "pay compensation for failure to re-appoint a visiting practitioner" it is possible, indeed likely, that it would be done on the basis of some finding of unfairness, either arising out of the contract or arrangement applying to the practitioner or on the basis of the public health organisation's conduct. Having established a specialist review body under Pt 4 of Ch 8 of the Health Services Act, it is implausible to believe that it was Parliament's intention to provide an alternative or additional forum under s 106 of the Industrial Relations Act that had the potential to produce the same outcome, based on the same grounds, as that which might be arrived at by the specialist review body.

30 Mr Moses contended that in looking at the question of inconsistency between the two statutes the focus should be on s 37(1) and s 22(d) of the Health Services Act on the one hand and s 106 of the Industrial Relations Act on the other. It was said that ss 37(1) and 22(d) are the source of power for the Area Health Service to determine the conditions of visiting practitioner's contracts. It was submitted that these provisions were not in any way inconsistent with the exercise of power under s 106 of the Industrial Relations Act in relation to a contract entered into by an Area Health Service. I disagree with this contention. For the reasons I have already explained the provisions of Pt 4 of Ch 8 of the Health Services Act are inconsistent with the provisions of s 106 of the Industrial Relations Act.

31 In North West County Council v Dunn the High Court held that the provisions of the Industrial Arbitration Act 1940 (NSW) providing for the reinstatement in employment of persons wrongly dismissed were inapplicable so far as, if applicable, they would authorise an order for the reinstatement of a servant of a county council whose services had been terminated pursuant to s 99 of the Local Government Act 1919 (NSW).

32 Walsh J stated at 260 that the question to be considered … is whether the provisions of the Industrial Arbitration Act under which a reinstatement order may be made should be held to be inapplicable, in so far as they would, if applicable, authorize an order for the reinstatement of a servant of a council to whom s. 99 [of the Local Government Act ] applies and whose services have been terminated after the steps specified therein have been taken. 33 After reviewing the process for dealing with reinstatement claims under the Industrial Arbitration Act, Walsh J said at 263-264: Thus understood, the investigation which an application for reinstatement requires does not differ very greatly from that which needs to be made in an inquiry conducted under s. 99 [of the Local Government Act ]. The scope and purpose of such an inquiry have recently been elucidated in Sutherland Shire Council v Finch ( 1970) 123 CLR ; 20 LGRA 350. Its object is to find out "whether in all the circumstances the services of the employee ought to be terminated" (per Barwick C.J. (1970) 123 CLR 567, at p 660; 20 LGRA 350, at p 351). It should cover "whatever is material to an informed decision whether or not to dismiss a particular servant" (per Menzies J. (1970) 123 CLR 657, at p 662; 20 LGRA 350, at p 353). The primary purpose of the report made after an inquiry "is to provide material for consideration by the council before it decides upon the dismissal of a servant" (per Gibbs J. (1970) 123 CLR 657, at p 670; 20 LGRA 350, at p 359). … I acknowledge, also, that the inquiry and report under s. 99 do not bind the Council as to whether the employee is or is not to be in its employment, whereas an order under the Industrial Arbitration Act would bind it. Yet the two investigations seem to have enough in common to raise serious doubts whether it was intended by the legislature that both may be pursued in relation to the same employee. These doubts are increased by other considerations to which I have yet to refer.

34 Walsh J concluded at 265-266 that …in relation to the employees to whom s. 99 applies, the special provisions of the Local Government Act take effect to the exclusion of so much of the more general provisions of the Industrial Arbitration Act as would give authority to order their reinstatement. In my opinion, the existence in relation to those employees of that power would be so incompatible with the operation of the relevant provisions of the Local Government Act and with the execution and performance by these statutory bodies of their statutory powers and duties that it should be held that it was not intended that the power should be applicable to those employees.

35 Barwick CJ expressed his agreement with Walsh J as to the latter's conclusion regarding the interaction between the two statutes and with his analysis. Owen J also agreed with Walsh J. Menzies J decided that In my opinion the effect of those provisions (s 99(11A) of the Local Government Act ] is to entrust to the decision of a council the question whether one of its servants is to be dismissed and it would be an unauthorized derogation from those provisions to treat s. 20(1) of the Industrial Arbitration Act as conferring the final power to determine whether or not a council servant, protected by the Local Government Act , should be dismissed.

36 The circumstances in North West County Council v Dunn have a conceptual similarity to the case before me and I consider that I should follow Dunn.

37 The Court finds that it has no jurisdiction to hear and determine any claims that the applicant has made in matter no. 6498 of 1999.

Orders 1) The Court declares 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 1996, the Commission has no jurisdiction to hear and determine any claims that the applicant has made in proceedings numbered 6498 of 1999.

2. The respondent on the notice of motion shall pay the costs of the applicant on the motion as agreed or, failing agreement, as assessed.

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