Dr Rosemary Swift v St Vincent's Hospital Sydney Ltd

APPLICANT Mr P J Newall of counsel SOLICITORS Phillips Fox

LEGAL REPRESENTATIVES: RESPONDENT Mr J V Murphy of counsel SOLICITORS Bartier Perry

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 18 June 2001

Matter No IRC 2984 of 2001 DR ROSEMARY SWIFT v ST VINCENT'S HOSPITAL SYDNEY LIMITED Application under s 106 of the Industrial Relations Act 1996

JUDGMENT No 2 1 The applicant Dr Rosemary Swift is a specialist Plastic Surgeon who has a long association with the respondent hospital St Vincent's Hospital Sydney Limited. She commenced with the respondent in 1984 as an Honorary Plastic and Reconstructive Surgeon and held that position until 1992 when she became a Visiting Medical Practitioner ("VMP"). Her appointment as a VMP has been renewed since 1992 on a number of occasions. The applicant utilises the respondent public hospital to admit public patients, a large number of whom are impecunious and do not have the benefit of private health insurance. The applicant is the only female surgeon at the hospital. Her position as a VMP also involves her in the training of medical students and overseas post-graduate trainees in plastic surgery. She regards herself as a role model and mentor for female medical students and female surgical trainees.

2 The applicant's current appointment as VMP expires on 30 June 2001.

3 By letter dated 27 February 2001 all existing VMPs were advised by the respondent that their current appointments concluded on 30 June 2001, that the hospital was about to place advertisements for a three year period for VMP positions, that the Campus Medical Appointments Credentials Advisory Committee would be conducting interviews for appointments following the closing date for applications, that applications needed to be complete and provide adequate information, and that "applications close on Thursday 22 March 2001." An information package was enclosed with the letter, which was under the hand of Dr Charles Blok, Director of Medical Services. Evidence given in the proceedings leads to the conclusion that it was more likely than not that substantially all of those letters were posted at Darlinghurst Post Office on the afternoon of Friday 2 March.

4 The applicant asserted that she completed an application for the position and hand delivered it to St Vincent's Private Hospital on the weekend of the 3rd and 4th of March or possibly on the weekend of the 10th and 11th of March. In an interlocutory judgment given on 30 May 2001 I determined that I was not satisfied on the balance of probabilities that the applicant had in fact submitted an application as alleged by her, for reasons set out in that judgment.

5 Dr Susan Foster is the Director of Medical Administration and Clinical Support with the respondent. She had direct involvement in the processes leading up to the appointment of VMPs. In the course of carrying out her duties Dr Foster became aware that no application had been received by the respondent from the applicant by the due date of 22 March. She became aware of this position on or about 2 April 2001. Dr Foster consulted with Dr Denise Robinson the Executive Director of the respondent. She then determined to ascertain whether or not Dr Swift had received the application form and asked her secretary Ms Lyn Strauss to make contact with Dr Swift's secretary for this purpose. Ms Strauss telephoned Dr Swift's rooms that afternoon and had a discussion with her secretary Ms Svetlana Stevenson. Ms Stevenson said that Dr Swift opened her own mail and that she would need to ascertain from Dr Swift whether the application had been received. The following day, 3 April, Ms Stevenson telephoned Ms Strauss. There is some inconsistency between the evidence of each of them as to what was said. Ms Strauss asserts that Ms Stevenson said that the application had not been received and requested that another one be forwarded. Ms Stevenson does not recollect having said that, but in any event did ask for another copy to be sent. Ms Strauss asserts that she told Ms Stevenson that another application would be forwarded by courier that day which had to be returned by close of business the following day, that is, Wednesday 4 April. Ms Stevenson does not recollect any time limit having been fixed.

6 During the course of the afternoon of 3 April 2001 a courier delivery was made to the applicant's surgery in Macquarie Street. The envelope contained a reference to the respondent hospital but did not give any indication that its contents were to be regarded with any urgency.

7 It is the applicant's practice to open her own mail and she attends to this as and when she is able. The applicant had a busy schedule of patients both on 3 April and 4 April. She did not open the envelope until 12.30pm on 5 April. It was then that she discovered the letter from Ms Strauss dated 3 April which enclosed an application for VMP appointment, indicated that applications had closed on 22 March 2001 and indicated further that the applicant had until 5pm on Wednesday 4 April to lodge an application.

8 The applicant was required to operate on a patient at St Vincent's Private Hospital on the afternoon of 5 April. She instructed Ms Stevenson to telephone Ms Strauss at about 1pm on 5 April to ask whether, because of her heavy workload, the form could be submitted on Monday 9 April. Ms Strauss advised Ms Stevenson that she had spoken to Dr Robinson who indicated that the application would not be accepted.

9 When advised of this by Ms Stevenson, the applicant telephoned Dr Robinson. She alleges that Dr Robinson said that the application was out of time and would not be accepted. (The conversation traversed a number of other issues which, for present purposes, are not relevant). Dr Robinson insisted that at no stage did she instruct Ms Strauss to tell the applicant's secretary that the application would not be received. Dr Robinson also alleged that she told the applicant that she could not reassure her that her application would be accepted but that the matter would have to be considered by the relevant committee who would determine whether it would be accepted and progressed.

10 Having reviewed the evidence I prefer the recollection of Ms Strauss, Ms Stevenson and the applicant to that of Dr Robinson in this respect. That is, there is consistency between what Ms Strauss conveyed to Ms Stevenson as being Dr Robinson's instructions and what the applicant alleged Dr Robinson said to her concerning acceptance of the application although out of time. Accordingly, I find that on the afternoon of 5 April 2001 the respondent, by its Executive Director Dr Robinson advised the applicant that her application would not be accepted.

11 The applicant personally attended at the Administration Office of the respondent at about 6.45am on 6 April. She endeavoured to see Dr Robinson without success and left the signed application with a person in the office.

12 Dr Foster had received some advice from the Head of Human Resources of the Department of Health about Dr Swift's situation. She had been told that "a deadline is a deadline" and that this applied after the forms had been sent out.

13 The Campus Medical Staff Appointment and Credentials Advisory Committee met on the evening of Monday 9 April. The Committee is comprised of the Professor of Medicine, Professor of Surgery, Heads of the Divisions of Medicine and Surgery of the respondent, a non-medical representative of the respondent, three representatives of St Vincent's Private Hospital, the Director of Medical Services of St Vincent's Private Hospital, the Director of Medical Administration of the respondent hospital and Chairman of the St Vincent's Medical Council. Dr Foster attended that meeting as Director of Medical Administration. She said that she made no recommendation but she explained the background to what had happened to the applicant's application and the fact that the necessary papers had not been handed in within the further 24 hour period granted. There is no evidence as to the deliberations of the Committee and the reasons advanced for its decision, nor is there any evidence as to the names of the persons who comprised that Committee. However the Committee determined that "it is not in a position to accept applications received outside the advertised time for lodgement" and this information was conveyed to the applicant in a letter from Dr Robinson dated 10 April.

14 I shall return to this letter later. It makes no reference to any extension of time having been granted but merely states that applications received "outside the advertised time for lodgement" could not be accepted by the Committee.

15 I should add, as is obvious, that the applicant was not invited to attend the Committee meeting and the Committee, according to the evidence of Dr Foster who was present, received no information from the applicant concerning the delay which had occurred and the failure to meet "the advertised time for lodgement." There is also no evidence as to the precise information which was conveyed by Dr Foster to the Committee.

16 The applicant wrote to Dr Robinson by letter dated 13 April which appears to have been forwarded by courier on 17 April. There followed correspondence between the applicant's solicitors and the respondent, which was responded to by Dr Robinson in uniform terms. These were to the effect that it was the applicant's fault that she had failed to put in any application within the advertised time period, the application process had to proceed with "due regard to probity principles" and that acceptance of the application out of time would demonstrate partiality to the applicant.

17 A summons seeking relief in this Court under s 106 of the Industrial Relations Act 1996 ("the Act") was filed by the applicant on 1 May 2001. The summons sought orders directed to the contract, arrangement, conditions or collateral arrangement between the applicant and the respondent declaring them void in whole or in part or varying them based on the fact that they were unfair, harsh or unconscionable and contrary to the public interest. As will be seen, the substantial allegation was one of unfair conduct on the part of the respondent in failing to accept the applicant's application for a position of VMP. An order of variation sought was to the effect that respondent should accept the applicant's application.

18 The Interviewing Committee conducted interviews for applications for the position of VMP in Plastic Surgery at 5pm on 14 May and four persons were appointed to the vacant positions, although they have not been informed of their appointments pending the outcome of these proceedings.

19 An order for expedition was made on 15 May 2001; mandatory conciliation was conducted under s 109 of the Act on 17 May and the hearing of the proceedings commenced on 24 May. For reasons which will become obvious, it was in the interests of both the applicant and the respondent that the proceedings be determined with urgency. Counsel who appeared in the proceedings and their instructing solicitors are to be commended for the manner in which they cooperated in the conduct of the proceedings so that they might proceed in an efficient and effective manner. I should add that the respondent took a constructive and pragmatic approach to the manner in which the proceedings were conducted. In the same vein I wish to express my disappointment at the failure of the Court Reporting Branch of the Department of the Attorney-General to produce a transcript of the proceedings held on Wednesday 6 June 2001 as at the time of the final writing of this judgment (15 June 2001). My Associate has advised the Branch on numerous occasions that the transcript was required urgently and that the proceedings had been expedited. Her inquiries reveal that there are two or three full time typists and one part time typist only to service the needs of the Branch, presumably for all courts in New South Wales. Whilst I endeavour to take reasonably detailed notes of the evidence, I am unequipped to take down every word, and if I endeavour to do so I would not be able to give such concentration as is necessary to the evidence itself during the course of the proceedings. In addition, it is often difficult to foretell which of the evidence will be of vital significance to the ultimate determination of the proceedings. Because the matter is urgent and because no indication has been forthcoming from the Court Reporting Branch as to when the transcript will be available, I have been forced to produce the judgment without the benefit of the transcript on that day. I shall ask the Registrar of this Court to forward a copy of this judgment to the Director General.

20 My interlocutory judgment of 30 May determined a discrete factual issue, namely whether the Court was satisfied on the basis of evidence adduced that on the balance of probabilities the applicant did lodge an application for reappointment on or before 22 March and in the manner and circumstances which she alleged. The respondent through its counsel Mr Murphy indicated that if that matter had been determined in favour of the applicant she would have been granted an interview. As I have already indicated the finding made as contained in the judgment of 30 May was adverse to the applicant.

21 Sections 105 and 106 of the Act are in the following terms: 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.

22 Before considering the relevant principles that apply to these proceedings it is necessary to refer to some additional factual material. Dr Foster in her evidence said that she had made a particular effort to ensure that all existing medical practitioners associated with the respondent hospital were aware of the 22 March deadline. She spoke to as many heads of departments and other doctors as she could. She did not however have a direct conversation with the applicant.

23 Evidence was given by Dr Foster concerning the rationale for the processes adopted by the respondent, which covered also the rationale which she asserted was adopted by the Committee when declining to accept the applicant's application.

24 Together with other public hospitals, Dr Foster said that the respondent was under pressure from the ACCC (Australian Competition & Consumer Commission) and the Department of Health to ensure that there was a transparent process of complete impartiality in the appointment of VMPs to public hospitals. This involved the creation of a uniform approach to be applied equally to all persons who were interested in making application.

25 In her evidence Dr Foster referred to contact made by seven other doctors, all of who wished to be considered for, or who had made inquiries about, VMP positions after the 22 March deadline. Dr Dennis Lowe did not receive any forms from the Hospital to enable him to make application for reappointment as a VMP. He contacted the Medical Administration and received further forms. He was given a few additional days in which to complete the application. His application was received on 23 March 2001, one day after the time limit had expired. A written application was received from Dr Suzie Freeman on or about 12 April. She was advised by letter that her application would not be accepted because it was out of time. Dr Chris Hughes approached Dr Foster in late April saying that he wished to apply for his VMP position but was told that he could not do so. Dr Gordon O'Neil was told "a few days" after 22 March that he could not apply. Drs Roy, Thorburn and Whitfield made written application on 1 May but these were returned because they could not be accepted out of time.

26 Dr Foster expressed concern that if the applicant's claim were accepted, this would require the respondent to reconsider all of the applications or proposed applications which had been made or communicated after 22 March. She stressed that with respect to the claim made by the applicant in these proceedings the respondent's concern was centred around the issues of fairness and probity as they affected other potential applicants rather than the process of the appointment of the applicant as a VMP.

27 In terms of the leniency that had been granted to the applicant, Dr Foster and Dr Robinson stressed that they would not have agreed to forwarding further application forms to the applicant had they not been under the impression that she had not received the original forms.

28 The case as presented by the applicant focused on allegations of unfair conduct on the part of the respondent and did not focus on any particular term or condition of any contract or arrangement between the parties. The respondent accepted that the case was made out in this way and took no issue in terms of the jurisdiction or power of the Court. Mr Newall of counsel who appeared for the applicant relied on the decision of the Full Bench of this Court in Reich v Client Server Professionals of Australia Pty Ltd [2000] NSWIRComm 143. I am bound by the judgment of the majority members of the Full Bench. The majority of the Bench (Wright J President, Walton J Vice President and Hungerford J) in a joint judgment held: In other words, it seems to us, in finding a contract (contract or arrangement, or any related condition or collateral arrangement) to be unfair, that may be supported because it became an unfair contract due to the conduct of a party at the time of the termination of the contract which enabled a finding that a contract which could or did so operate was relevantly unfair. It would then be open to declare the contract void or to make an order varying its terms in an appropriate way, with as to either form of relief a consequential order for the payment of money considered to be just in the circumstances. We have to say we find nothing surprising in that reasoning in terms of the operation of s 106 and, indeed, if it were otherwise then the whole jurisprudence developed in relation to the unfair contracts provisions in the industrial legislation over more than three decades would be effectively negated. Indeed, as to the conduct of parties, s 106(2) not only recognises such development in the cases but emphasises it by express statutory provision. (para 24) 29 This reasoning was repeated in the course of the joint judgment. For example at para 27 their Honours said in part: "….to us it seems an utterly arid exercise in semantics to find conduct as part of the operation of a contract to be unfair but not thereby to find also the contract to be unfair because such unfair conduct was not permitted by the otherwise fair contract - we think it should be stated as plainly as it may be, and as we think the authorities and s 106(2) do, that a contract may be found to be unfair because of any conduct of the parties." At para 28 their Honours said: A contract whereby a person performs work in an industry (including as here a contract of employment as a species thereof) has as an inherent feature the behaviour or conduct of the parties for the contract to be able to operate. It is difficult, we think, in conceptual terms to separate the contract itself from the conduct of the parties in performing it. As Priestley JA, with whom Kirby P and Meagher JA agreed, observed in Rothmans Distribution Services Ltd v Full Court of the Industrial Court of New South Wales [1994] 53 IR 157 at 160, "how the terms of the contract operated in practice … necessarily means looking at … conduct … and to conclude that a contract which could so operate was unfair". What a contract of employment does is set the terms and conditions to govern the employment relationship; the contractual relationship is another term which may be readily used to describe it. If a party in the course of operation of the employment relationship were to act in contravention of the contract of employment, particularly by committing a fundamental breach thereof, then that may only mean that the contract otherwise was unfair in so allowing or not preventing such unfair conduct or, indeed, in failing to make appropriate provision in the event occurring. In any of those situations, we think it clear that s 106 could be called in aid by the aggrieved party to obtain relief. We repeat, the section should not be construed to the contrary and as would protect the wrongdoer. (para 28)

30 In conformity with the expression of opinion of the majority in Reich it is only necessary that I find in the circumstances of these proceedings that there was unfair conduct on the part of the respondent and it is not necessary that I relate that conduct in any way to any terms of the underlying contract of employment or to any of the provisions of any arrangement or related condition or collateral arrangement.

31 It is a trite observation that the determination of whether conduct is fair or unfair involves the exercise of a value judgment made against the background of all relevant circumstances. In the case of these proceedings it involves applying, as Mr Murphy put it "contemporary community standards." It is obvious that if the applicant does not succeed in obtaining, at the least, an interview, she will ipso facto be denied the right to practice her specialty within the public hospital environment provided by the respondent. I can well understand that the applicant would see this as being grossly unfortunate and, from her point of view, unfair. However the respondent is equally adamant that if it is forced by court order to grant the applicant an interview it will be forced to reconsider its position with respect to the other medical practitioners who were denied the opportunity to make application after 22 March.

32 I was assisted by written submissions from counsel received on 13 and 14 June 2001. I trust that Mr Newall will excuse me for adopting Mr Murphy's summary of the matters relied upon by him as indicative of relevant unfairness. Mr Murphy's summarised the applicant's complaints of unfairness in the following terms: "The applicant identifies the following matters as indicators of unfairness:

a) The rigid imposition of the deadline of 5pm on 4 April 2001 despite the applicant only being 36 hours late in lodging her application; b) The deadline was arbitrary and of no relevance to the appointment processes; c) The applicant was not advised that the application had to be completed and returned as a matter of urgency and the envelope that was couriered to her rooms on 3 April 2001 was not marked "Urgent". d) Some doctors were reminded to get their applications (sic) but the applicant was not; e) Some doctors were told that a letter would suffice but the applicant was not. f) It has not been the respondent's practice in the past to enforce deadlines; g) The decision to exclude the applicant from consideration for appointment was taken by Dr Robinson and not the Medical Appointments Committee; h) The respondent's concerns about probity guidelines are not reflected in the hospital's by-laws.

i) The respondent had discretion to accept late applications. j) The applicant is concerned that hostility towards her by the head of plastic surgery affected the decision to exclude her application."

33 The difficulty that I have concerning allegations based on the deadline imposed by Drs Robinson and Foster which was said to expire at 5pm on 4 April 2001 is that firstly, the applicant failed to meet that deadline and secondly the evidence is to the effect that the matter was finally determined by the Committee which met on the evening of 9 April. I do not feel any particular sympathy for the applicant who has chosen to conduct her business on the basis that her secretary does not open the mail and who, consequently, failed to open the envelope until after the putative deadline had expired.

34 I reject the assertions made on behalf of the applicant which go to the time limit of 22 March. There is no doubt that the applicant received the original letter and was aware that 22 March had been imposed as a deadline. Whether some doctors had been reminded either directly or indirectly that they should get their applications in by this time is not to the point because the applicant was aware of the deadline. Whether or not she had been told that a letter would suffice rather than completing a form does not impact upon her failure to meet the 22 March deadline and the later deadline set by Drs Robinson and Foster.

35 There is no evidence that the respondent had failed to enforce deadlines in the past. Likewise there is no evidence that would even remotely support a suggestion that the applicant's application was excluded because of hostilities shown towards to her by Dr Caminer, the Head of Plastic Surgery.

36 In his submissions Mr Newall asserted that "a process which is not on its face necessarily unfair may in practice have unfair consequences remedial under s 106." He cited Walker v Industrial Court (1994) 53 IR 121, Michel v Ogilvy & Mather (1996) 71 IR 417 and Reich in support of this proposition. I agree with Mr Murphy's response that none of these cases is authority for such a proposition. Each of them requires some form of unfair conduct in order to attract the jurisdiction of the Court. Absent unfair conduct, unfair consequences do not per se ground jurisdiction.

37 It is obvious that failure to have her application considered by the relevant Committee will, per se, have a detrimental impact upon the applicant. But absent any finding of unfair conduct on the part of the respondent this Court cannot intervene to assist the applicant. Whether such unfair conduct exists must take into account all of the circumstances. This includes relevantly the requirement of the respondent to create a transparent and fair process for the appointment of VMPs. There is inherent in the creation of such a process the fixing of deadlines to enable all of the administrative work to be carried out. As I indicated in my earlier judgment there were more than 120 positions to be filled. In my opinion it is not unfair for the respondent to have fixed deadlines and in general terms to apply them. I would not necessarily embrace the advice which Dr Foster says she obtained from the Department of Health to the effect that "a deadline is a deadline". Deadlines must be tested against the reasons why they were established. See, for example, the rationale for the creation of statutory limitation periods for commencing actions discussed by McHugh J in the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552. The rationale for the creation of a time limit for the making of applications for VMP positions was to enable the positions to be filled in an appropriate manner prior to the 30 June deadline. The rationale adopted by Drs Robinson and Foster in imposing their own time limit of 5 April was to ensure probity in terms of a fair approach to all applicants. It is obvious that unless some uniform approach was adopted, opportunities would exist to favour one applicant over another in terms of the exercise of discretion to permit late applications. Dr Foster emphasised in her evidence that it was this probative factor rather than any procedural difficulty that motivated the approach that was ultimately taken.

38 The applicant through her counsel sought to criticise many features of the processes adopted by the respondent. I do not find that any unfairness attaches to the manner in which the respondent's processes were carried out, at least until after the expiry of the extension of time given by Drs Robinson and Foster. I reject the applicant's assertions that Dr Foster conducted herself in an unfair manner by encouraging medical practitioners generally through the means adopted by her to ensure they complied with the 22 March deadline, without speaking personally to the applicant. In my opinion Drs Robinson and Foster acted most fairly in giving the applicant an extension of time in which to lodge the application. I prefer the evidence of Ms Strauss to that of Ms Stevenson in terms of what was said during the course of their conversation. As I have previously indicated Ms Strauss asserts that she told Ms Stevenson that there would be a time limit imposed. This is corroborated by a file note which she made shortly thereafter. Whilst Ms Stevenson denies that any such time limit was imposed, she was not asked to recollect what had been said precisely for some time after that conversation occurred. Certainly, I do not find that there was any unfairness in the delivery of the further documents by courier without any special marking on the courier envelope to the effect that the material contained in it required the urgent consideration of the applicant. The fact that the applicant chose to open her own mail, including that delivered by courier, with resultant delays is a matter which impacts on her method of operation and cannot be the basis for any unfair conduct on the part of the respondent.

39 This leaves for final consideration the decision of the Committee on the evening of Monday 9 April to reject the applicant's application, presumably because it had not been lodged on or before 22 March, being the advertised time for lodgement. As I have previously stated, the applicant was not invited to attend the meeting of that Committee and the Committee received no information from the applicant concerning the delay which had occurred and her failure to meet the advertised time for lodgement. There is also no evidence as to the precise information which was conveyed by Dr Foster to the members of the Committee. I assume that the intent of the Committee at the meeting on 9 April was to commence the process by which applications should be considered, interviews conducted and appointments eventually made. The evidence of Dr Foster was to the effect that arrangements were to be made for interview committees to interview all applicants and the recommendations of the interview committees would then be sent to the Board of the respondent for acceptance or otherwise. It was also necessary to obtain criminal records and references from persons nominated by the applicants as referees.

40 The applicant submitted that the decision of the Committee was procedurally unfair because the applicant was given no opportunity to appear before it, be represented before it or make any kind of submission to it. All of this was in the context that the applicant had had a long and senior association with the respondent and that rejection of her application would ipso facto bring this to an end.

41 In its submissions on this aspect the respondent emphasised that the Committee's decision was made for one reason only namely that both the first and second deadlines had passed. It was asserted that all other applications received after the first deadline had also been rejected.

42 I have already referred to the approach which should be adopted in determining whether the relevant unfair conduct has been demonstrated. This involves applying contemporary communal values. Leaving aside for one moment the obvious difficulty in endeavouring to reflect a value adopted by the community as a whole, it is also necessary to ensure that in reflecting a relevant value one does not inadvertently reflect a community attitude. The distinction between attitudes and values is made cogently by Professor John Braithwaite in a learned article entitled "Community Values and Australian Jurisprudence" published in vol 17 of Sydney Law Review 351, commencing at 354. No doubt there is a community attitude within New South Wales to the effect that non-adherence to time limits set for the making of applications for employment positions should be regarded sympathetically and that all reasonable excuses should be allowed, but this does not necessarily reflect any particular value which should be applied in the circumstances of these proceedings. Such an attitude expressed simpliciter pays scant regard for the over-riding obligation of the respondent as a public hospital to create and apply appropriate processes leading to fairness and transparency in appointments which are publicly funded. It seems to me that it is more appropriate to consider the matter by taking this obligation as a given and testing it by applying a more appropriate communal value, expressed so aptly in the vernacular by Sheldon J many years ago, namely, by providing "a fair go all round".

43 Despite the applicant's submissions to the contrary the conduct against which such an approach must be tested is that of the Committee in determining on the evening of 9 April not to accept the applicant's application. It is obvious that if the Committee had determined to accept that application, even though out of time, this would not have impacted upon the probity considerations which motivated the Committee to refuse the application. The only other out of time application dealt with at that stage was that of Dr Lowe who was granted an extension because he had not received the original application forms. His application had in fact been lodged on 23 March and, I assume, accepted without question. Except for Dr Gordon O'Neil none of the other medical practitioners who expressed an interest in making an application after 22 March had communicated such an interest to the respondent prior to 9 April. As Dr Foster conceded there were no procedural or administrative bases for refusing to accept the applicant's application at the meeting on 9 April. It was solely related to probity grounds. As, however, no other medical practitioner had by that date approached the respondent for an extension of time other than Drs Lowe and O'Neil, there were no probity considerations which would have impacted upon the acceptance of the applicant's application at that time, coupled perhaps with an announcement that no other out of time applications would be considered.

44 It might be argued that adopting such an approach would leave the respondent open in the future to out of time applications which could adversely affect its administrative processes. However this could equally be accommodated by making it clear in the future that no extensions of time would be granted.

45 I conclude, therefore, that on the basis of such evidence as is before the Court, there was no substantiated probity reason for the rejection of the applicant's application on 9 April, other than adherence to a rigid formula of "a deadline is a deadline".

46 Does such a conclusion render the respondent's conduct relevantly unfair for the purpose of s 106 of the Act? Section 105 defines an unfair contract as one that is "unfair, harsh or unconscionable." I would not describe the conduct of the respondent, through the Committee at its meeting on 9 April as either harsh or unconscionable. However I confess to have had great difficulty in determining whether, in all the circumstances, the conduct of the Committee was unfair in the sense that it was not equitable. Looked at predominantly from the point of view of the respondent and the requirements to administer the processing of applications for appointment, it could not be said that the conduct was in all the circumstances unfair. However when one adds into the equation a consideration of the applicant's circumstances of a long standing association with the respondent and the fact that the probity of the processes would not be compromised by having accepted the application even though out of time on 9 April (except possibly in relation to Dr O'Neil), the scales tip a little in the applicant's favour. As against this, however, the applicant was at all times aware that there was a time limit, she was given an extension of time in which to lodge an application and through no fault of the respondent she failed to do so within the extended time so allowed. The resultant picture is very finely balanced. Not without considerable difficulty, I have come to the conclusion that on balance and having regard to all the circumstances the conduct of the Committee was unfair. In coming to this conclusion in this way I acknowledge the "probity" issue may possibly affect the position of Dr O'Neil depending, of course, on all of the circumstances applying to him and his position.

47 Accordingly I would conclude that the applicant is entitled to an order in her favour that the collateral arrangement under which she was entitled to make application be varied so as to insert a provision requiring the respondent to accept and consider on its merits her application for position of Visiting Medical Practitioner for the period 1 July 2001 to 30 June 2004 as lodged with the respondent on 6 April 2001.

48 This leaves outstanding the question of costs which has not been argued before me. Arguably the applicant has succeeded only in part in these proceedings in particular on account of the adverse finding made in my earlier interlocutory judgment. I shall reserve costs and I grant liberty to apply with respect to this issue. _____________________

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