Dr Leong Fook Ng v North Coast Area Health Service

Dr Leong Fook Ng v North Coast Area Health Service - [2007] NSWIRComm 311 - NSWIRComm 2007 case summary — Zoe

[40]

It is also important to ensure that considerations such as mere "fierce opposition to the claim" or the conduct of a respondent which might justify the grant of the substantive application are not matters which, in themselves, would lead to the grant the costs on an indemnity basis. 15 It is Mr Benson's submission that, having regard to the circumstances preceding the filing of Dr Ng's application, the factual foundation had been laid for the Commission to find Dr Ng's application for relief from unfair dismissal both "frivolous and vexatious". 16 Mr Benson put that, in the alternative, the facts surrounding the settlement negotiations provide that basis on which an appropriate costs order ought be awarded in favour of the NCAHS pursuant to s 181(2)(c) of the Act. 17 Mr Benson relied on Ms Anderson's affidavit (Ex 7) which he said supported the submission that the NCAHS was prepared to settle the proceedings on the basis that each party pay their own costs. It is Mr Benson's contention that Dr Ng's rejection of that offer indicated that he failed to undertake a responsible and careful assessment of his prospects in the matter at that time, or indeed at any time during the course of the proceedings (see Bankstown City Council v Paris (1999) 93 IR 209 at 219; Four Sons v Limsiripothong (2000) 100 IR 400 at 403). Mr Benson put that Dr Ng's failure in this regard was attributable to his motivation to use the proceedings for a collateral purpose. 18 Mr Benson relied upon communication from Dr Ng by email to McKenzie Cox Solicitors on 20 March 2007, copied to Commissioner Murphy's assistant, in which Dr Ng says (Ex 7, attach. F): Further to this morning's hearing I do not know whether it sank in that I will vehemently defend myself to restore my reputation. It is clear that some individuals at the Tweed Hospital had set out to conduct a malicious campaign against me, to harm my career and reputation - and that this has been reasonably successful. This was deliberate, it was planned and orchestrated and conducted over a period of time. But, further damage is unlikely at this stage. Further evidence has now emerged that this was well orchestrated and continuing.

[41]

It is now my turn to seek justice by legal remedies and it follows that unless a reasonable settlement can be negotiated instead of the 'lean' one suggested by the Commissioner, I will be unrelenting in my pursuit of justice through all Courts possible for as long as it will take. I will continue to reveal the truth and uncover the past cover ups and this is likely to lead to serious implications for the NCAHS and some individuals within it. 19 Mr Benson asserts that the final paragraph of the communication conveys a threat and reveals the intention of Dr Ng to use legal process in retaliation for the actions of his employer and former colleagues he perceived as detrimental to himself. 20 Mr Rogers rejects this analysis, submitting that Dr Ng was in the first instance rejecting a proposition advanced by Commissioner Murphy in conciliation for consideration by the parties; and in the final paragraph doing no more than seeking to improve his bargaining position. 21 Mr Benson submitted that the jurisdictional imperatives for the making of an order for costs had been satisfied, i.e. the Commission could be satisfied that Dr Ng unreasonably failed to agree to a settlement of the claim or make a finding that the application was frivolous or vexatious. 22 Mr Rogers submitted that the jurisdiction to award costs in an unfair dismissal case is limited to the circumstances of a case being frivolous or vexatious; or where a party has unreasonably failed to agree to a settlement. Mr Rogers characterised these circumstances as firstly where a case is unarguably bad; or secondly where one party has made an offer it would be unreasonable to reject. 23 Mr Rogers relied upon R v Moore and Others; Ex Parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 to support his submission that a case is not unarguably bad because it is weak or even extremely weak. The principle relied upon is found at 473 in the following terms: … However the present dispute, in so far as it relates to cl. 5 of the log of claims, is not as to whether contractors should be engaged, but as to whether, if they are engaged, their employees should be entitled to the benefits of the award, assuming that one is made. The evidence has failed to show that in the circumstances prevailing in the industry in question such a clause could not be capable of being regarded as merely incidental to the settlement of the dispute as to the conditions of employment of workers in or in connexion with metaliferous mining. I agree with Jacobs J. that this question should not be finally determined until the facts are fully explored.

[61]

37 The facts of this matter compel a finding that the application was frivolous and vexatious. 38 The terms of s 84 of the Act make it plain that re-instatement or re-employment are the primary remedies and that compensation is only available where the Commission considers these to be impractical. 39 It cannot be said that Dr Ng had an arguable case for re-instatement or re-employment when he, by his own actions, removed the foundation for any employment relationship by deliberately and purposefully removing himself from the NSW Register of Medical Practitioners. 40 There is no basis for any argument that the employer could have, or could be compelled by this Commission, to re-employ Dr Ng in any position other than in accordance with his original contract of employment. As noted in the substantive decision Dr Ng was employed pursuant to the Staff Specialists (State) Award (2006) 152 IR 405 which does not contemplate employment in any capacity other than qualified medical practitioner. 41 Mr Rogers' submission that in discontinuing his certificate to practice medicine in New South Wales Dr Ng placed the employer in the position of accepting this and employing him elsewhere or terminating his employment is worthy of analysis as it is consistent with the finding in the substantive matter that Dr Ng was the initiator of the conclusion of his employment. 42 The facts are that the employer chose not to offer alternative employment. If it were that the employer chose to terminate the employment, which on Mr Rogers' argument was an option created by the actions of Dr Ng, it cannot be held that the employer, pressed to such an option in the circumstances described, acted in a harsh, unreasonable or unjust manner as those terms are expressed in s 84(1) of the Act. In short, the termination of employment could not be regarded as unfair. 43 On either analysis the application for relief from unfair dismissal was utterly without merit or prospect of success. 44 In consideration of whether the application was also vexatious, regard must be had to the comments of Dr Ng in his email of 20 March 2007, set out above. 45 The conclusion that Dr Ng was simply trying to improve his bargaining position is open and is supported by him sending a copy to Commissioner Murphy's Assistant. I note that this was most inappropriate and could also be regarded as an improper attempt to influence the Commission. Whilst this may have been a purpose there is also a threat to the NCAHS and individual personnel which has nothing to do with the merit or otherwise of the conclusion of Dr Ng's employment. 46 Dr Ng had a public duty to report any genuine concern to the appropriate authorities for investigation. His threat to do this unless he was compensated amounts to a communication that he will fail to undertake this public responsibility in circumstances favourable to himself. 47 Dr Ng was clearly unhappy with his former employer and colleagues. 48 I am led to the conclusion that Dr Ng instituted these utterly hopeless proceedings with the intent to cause inconvenience and embarrassment to those with whom he was aggrieved. 49 I find that the application was frivolous and vexatious and that Dr Ng unreasonably failed to agree to a settlement, and accordingly the gateway provided by s 181(2)(c) of the Act to an award of costs is open. 50 I further conclude that Dr Ng unreasonably failed to agree to a settlement of the matter. 51 It is not in every case that a "walk away offer" as it was described by Mr Rogers will be held to be reasonable. Every matter must be considered on its merits, however, it must be held that a walk away offer in proceedings which have no basis is a reasonable offer by the employer, unreasonably rejected by Dr Ng in this case. 52 The principles for an award of indemnity costs found in Tuholi are helpful in this matter. 53 I find that these proceedings meet the unusual and distinct criteria for attraction of an award of indemnity costs. ORDER

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Before

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Judgment (63 paragraphs)

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Cases Cited (10)

Cited By (1)