Dr Gibson v Western Sydney Area Health Service - [2002] NSWIRComm 168 - NSWIRComm 1998 case summary — Zoe

NSWNSWIRComm

Dr Gibson v Western Sydney Area Health Service

[2002] NSWIRComm 168

Industrial Relations Commission (NSW)|1998-05-29|Before: Boland J, Peterson J, The Hon J, Ms J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-05-29

Before

Boland J, Peterson J, The Hon J, Ms J

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Dr Gibson v Western Sydney Area Health Service (No 3) [2002] NSWIRComm 168 APPLICANT Dr James Gibson PARTIES : RESPONDENT Western Sydney Area Health Service FILE NUMBER: IRC 6498 of 1999 CORAM: Boland J Jurisdiction - Unfair Contract - Interlocutory proceedings - Notice of motion seeking declaratory relief - Inconsistency between Health Services Act 1997 and Industrial Relations Act 1996 - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Held no jurisdiction CATCHWORDS : Unfair Contract - Interlocutory proceedings - Notice of motion seeking declaratory relief - Inconsistency between Health Services Act 1997 and Industrial Relations Act 1996 - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Held no jurisdiction Australian Broadcasting Act 1983 Australian Telecom Corporations Act 1989 Health Services Act 1997 Industrial Arbitration Act 1940 LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Local Government Act 1919 Public Hospitals Act 1929 Royal Commissions Act 1923 Supreme Court Rules 1970 Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 Barry v Australian Broadcasting Corporation (2002) 112 IR 33 BNY Australia Ltd v James (1992) 26 NSWLR 57 Brown v Rezitis (1970) 127 CLR 157 Butler v Attorney-General (Vic) (1961) 106 CLR 268 Dawson v Telstra Corporation Ltd (unreported, Peterson J, IRC 5521 of 1996, 29 May 1998) Dr Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 Gibson v Western Sydney Area Health Service [2000] NSWIRComm13 Goodwin v Phillips (1908) 7 CLR 1 CASES CITED : Integral Energy v Allen (2001) 107 IR 456 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 Maggs v Comptroller General of Customs (1995) 58 IR 40 Makler v ABC (2001) 104 IR 260 McGowan v ABC (2001) 104 IR 244 Miller v Scales (1907) 5 CLR 405 North West County Council v Dunn (1971) 126 CLR 247 Saraswati v The Queen (1991) 172 CLR 1 Tana v Baxter (1986) 160 CLR 572 Taudevin v Egis Consulting Australia Pty Limited and anor [2000] NSWIRComm 63 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 HEARING DATES: 07/12/2002 DATE OF JUDGMENT: 07/24/2002

[28]

(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.

[44]

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

[45]

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.

[46]

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.

[56]

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.