Dr Stephen Prince v North Coast Area Health Service

Beahan v Bush Boake Allen Australia Pty Ltd (1999) 93 IR 1 Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 273, 290 Haynes v CI & D Manufacturing Pty Ltd and anor (1995) 60 IR 455 Ferdinands v Commissioner for Public Employment (2006) 80 ALRJ 555 Gibson v Western Sydney Area Health Service (2003) 130 IR 95 Goodwin v Phillips (1908) 7 CLR 1 at 7 Huskisson RSL Sub- Branch Club Ltd v Sullivan (1990) 32 IR 304 Hyslop and anor v Liverpool Hospital and anor (1987) 21 IR 192 CASES CITED: Incitec Ltd v Industrial Court of New South Wales (1992) 29 NSWLR 83 Inspector Marshall v BBC Hardware Ltd (2004) NSWIRComm 296 Nagle v Tilburg (1993) 51 IR 8 Public Service Association of New South Wales and anor v Industrial Commission of New South Wales and anor (1985) 1 NSWLR 627 Re Crown Employees (Motor Vehicle Allowances) Award (1983) 14 IR 289 Rose v Hvric (1963) 108 CLR 353 at 360 Rothmans Distribution Services v Industrial Court (1996) 53 IR at 160 Saraswati v The Queen (1991) 172 CLR 1 at 17 Shergold v Tanner (2002) 209 CLR 126 at 136-137) Walker v Industrial Court of New South Wales (1994) 53 IR 212

APPLICANT: Mr P Coleman of counsel SOLICITORS: Tress Cox Lawyers LEGAL REPRESENTATIVES:

RESPONDENT: Mr M Christie of counsel SOLICITORS: Blake Dawson Waldron

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 13 December 2006

Matter No IRC 2614 of 2006 DR STEPHEN PRINCE v NORTH COAST AREA HEALTH SERVICE Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 398

A VMO CONTRACT DISPUTE ARISES 1 Dr Stephen Prince is a specialist ear nose and throat surgeon who has had the benefit of an appointment as a Visiting Medical Officer ("VMO") at Grafton Base Hospital since 1995. Since his initial appointment he has remained continuously engaged as a VMO with his present contract expressed to operate until 30 June 2008 when he will be eligible for re-appointment. 2 Since 1995, Dr Prince has conducted an operating theatre list on a regular fortnightly basis and has provided this service under a series of standard form written contracts made pursuant to Chapter 8, Health Services Act 1997. The most recent contract made on 1 October 2005 was entitled "Fee For Service Contract Rural Doctor Package Hospitals". The execution of that contract took place in circumstances of a dispute as to the appropriate rate of remuneration. The previous contract executed in 2002 was entitled "Form of Fee - For - Service Contract" and operated from 1 July 2001 to 30 June 2005. Because of the dispute over rates, between 1 July 2005 and 30 September 2005, a temporary appointment was agreed between Dr Prince and the North Coast Area Health Service while the re-appointment process was being finalised. It was the expectation of the parties that the new contract would cover this period as part of a three year renewed contract. Under these arrangements, Dr Prince conducted a surgery theatre list for public patients at Grafton Base Hospital on one day each fortnight. 3 The dispute between the parties centred on Dr Prince's repeated request that he be paid the higher rates available to VMOs under an arrangement referred to as "The Rural Doctors' Settlement Package",("the settlement package rate") a package introduced in approximately 1988 for the express purpose of retaining country doctors as VMOs in small hospitals. The settlement package rate was alleged to be approximately 20 per cent more than Dr Prince's fee for service rate. The higher rates available under the settlement package applied to identified hospitals but Grafton Hospital was not one of the hospitals to which it was originally determined that the higher rates would apply. 4 In 2001, the Area Health Service made submissions to the Health Department seeking permission to enter into settlement package contracts with VMOs at Grafton Hospital. On 6 August 2001, the Health Department through the Director-General gave permission for specialist surgeons at the hospital to be paid the settlement package rates backdated to 23 July 2001. Dr Prince was a specialist surgeon at all relevant times. From March 2002 the Department of Health approved the higher rates to be paid to specialist physicians and for general practitioner paediatricians. The approvals applied to existing and newly appointed VMOs. 5 In approximately 2002, the Area Health Service entered into settlement package contracts with ten of the twelve VMOs engaged at Grafton Hospital including general and specialist surgeons but did not enter such a contract with Dr Prince. The settlement package contracts were renewed from 1 October 2005 and continue to be paid. 6 From early 2002, Dr Prince continually disputed the refusal of the respondent to offer him a settlement package contract and until October 2005 he remained on the standard VMO contract providing a lower rate of pay. During 2002 and 2003, numerous requests were made by Dr Prince for the higher rate of pay but, in late December 2002 the Area Health Service informed him that, following consultation with the Department of Health no change would be made to the pay rate because Dr Prince did not reside in Grafton, he did not participate in an on-call roster, and because he derived income from at least one private hospital in Lismore. 7 In 2002, Dr Prince raised a dispute under the Dispute Resolution Procedure about his existing contract and, although mediation was conducted during 2003, the issue remained unresolved between the parties. As a result, Dr Prince was paid approximately 20 per cent less than other VMOs at Grafton Hospital performing similar work, and his rate of remuneration for some procedures was lower than the rates of pay paid to non-specialist practitioners performing the same work. 8 Approximately ten of the twelve VMOs at Grafton Hospital received the settlement package rates. Of the remaining two VMOs, one, an ophthalmologist, received higher than standard VMOs rates for cataract/implant operations in accordance with a Department of Health directive applying to ophthalmologists generally. Dr Prince believed he was the only VMO surgeon at Grafton Hospital paid standard VMO rates. 9 It appears that the October 2005 contract signed by Dr Prince contained the settlement package rates but, in February 2006, the Area Health Service, through its solicitors, asserted that the contract was issued in error and was invalid on the basis of unilateral mistake. The Area Health Service has at all times maintained that the appropriate rate was the standard VMO rate, has remunerated Dr Prince on that basis and has not paid him the settlement package rate. Later in February 2006, the Area Health Service asserted that, due to the New South Wales Health Department's account and audit determination in January 2005, the Area Health Service was unable to pay the higher rates.

AN APPLICATION MADE UNDER s 106, INDUSTRIAL RELATIONS ACT 10 In early March 2006, the Area Health Service refused to recognise that indemnity insurance cover was in operation for Dr Prince because there was no valid VMO contract in existence. The indemnity coverage provides a VMO with indemnity for certain work undertaken in public hospitals operated by the Area Health Service. The Area Health Service through its solicitors then demanded that Dr Prince sign a new standard VMO contract and agree to a retrospective variation. A regular operating list due for 16 March 2006 was cancelled by the Area Health Service on less than two days' notice when Dr Prince refused to accede to the demands to sign a new standard VMO contract and to agree to a retrospective variation. The Area Health Service threatened to cancel his lists unless a new standard VMO contract was signed or a retrospective variation agreed between the parties. After negotiations, an interim arrangement was entered without prejudice under which Dr Prince was to be remunerated at the lower rate pending a resolution of the issues existing between them. In June 2006, Dr Prince commenced proceedings under s 106 of the Industrial Relations Act 1996 against the North Coast Area Health Service seeking payment of the settlement package rates from July 2001 and reimbursement for the cancelled theatre list of 16 March 2006. Consequential orders for interest and costs were also sought. A JURISDICTIONAL ISSUE RAISED 11 In August 2006, the North Coast Area Health Service filed a Notice of Motion seeking orders to have determined as a separate and preliminary question the jurisdiction of the Court to entertain the application filed by Dr Prince. In summary, the Area Health Service sought to argue that the provisions of the Health Services Act, in particular, upon the proper construction and application of ss 86 and 127 of that Act operated to impliedly repeal the provisions of s 106 of the Industrial Relations Act so as to exclude the operation of Ch 2 Pt 9 of the Industrial Relations Act in relation to VMO contracts. 12 The Notice of Motion was supported by two affidavits sworn by a solicitor instructed by the Area Health Service annexing a large number of documents dealing with the manner in which VMO rates were determined and also dealing with the history of the Settlement Package rates. THE STATUTORY FRAMEWORK 13 The following provisions of the Health Services Act were relied upon as shedding light on the intention of the legislature: · Section 4, Objects, in Clause (e) provided that an object of the Act was to regulate the conditions of contract of Visiting Medical Officers appointed by public health organisations, and in sub-clause (i) it was an object of the Act to make provisions for the funding of public health organisations. · Section 7 provided that a "public health organisation" included an area health service. · Section 17(2) provided that an Area Health Service was a body corporate with a corporate name as specified in Schedule 1. · Section 24 provided that a Chief Executive was to manage and control the affairs of an Area Health Service. · Section 25(b) provided that, in the exercise of his or her functions, the Chief Executive Officer was subject to the control and direction of the Director-General. · Section 32(1) provided that the Director-General could determine the role, function and activities of any public hospital, health institution, health service or health support service under the control of an Area Health Service and for that purpose was able give any necessary directions to the Chief Executive of the Area Health Service. · Section 37(1) provided that an Area Health Service could make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, machinery or material by that person with respect to the exercise by the Area Health Service of its functions conferred or imposed by or under this or any other Act. · Section 37(2) provided that an Area Health Service could also, with the approval of the Director-General, make or enter into contracts or agreements with any person for the provision of any service by the Area Health Service to that person. 14 Attention was then directed to the provisions of Ch 8 of the Act dealing with visiting practitioners: · Section 78 provided that a VMO was a medical practitioner appointed under a service contract (whether or not the practitioner or his or her practice company was a party to the contract) to provide services as a visiting practitioner for monetary remuneration for or on behalf of the public health organisation concerned. · Section 80 defined a service contract as an agreement between a public health organisation and a medical practitioner to provide medical services to or on behalf of the public health organisation. · Section 81 provided that the kinds of service contracts included but were not limited to: (a) fee-for-service contracts, (b) sessional contracts, (c) honorary contracts. · Section 82 provided that a fee-for-service contract was a service contract under which a medical practitioner (or the medical practitioner's practice company) was remunerated for medical services performed by the medical practitioner by reference to a scale of fees for different kinds of medical services that were contained in, or specified or otherwise identified by, the contract. · Section 83 provided that a sessional contract was a service contract under which the medical practitioner (or the medical practitioner's practice company) was remunerated by reference to any hourly rate or rates for services provided but not on a fee-for-service basis. · Section 86(1) provided that a VMO must not be appointed unless the terms and conditions to which the officer was to be subject were in the form of a written service contract between (a) the officer and (b) the relevant public health organisation. By sub-section (2) an appointment made in contravention of this section was void. · Section 87(1) provided that the Minister could, by order in writing, approve of sets of conditions (including remuneration) recommended by the Association (defined in the Dictionary to mean the Australian Medical Association (NSW) Ltd) for inclusion in service contracts, entered into on or after the day on which the order took effect, of a class specified in the order. · Section 87(2) provided that a standard service contract, in relation to a class of service contract (such as fee-for-service contracts, sessional contracts or honorary contracts) was a contract that, when entered into, contained the set of conditions (if any) approved for the time being under sub-section 87(1) for those service contracts, whether or not it contained other conditions that were not inconsistent with the approved set of conditions. · Section 88(1) provided that a service contract of a class for which there was a standard service contract was not to be entered into unless it contained the set of conditions contained in the relevant standard service contract. By sub-section (2), a service contract entered into in contravention of this section was void. 15 Division 3, Ch 8 of the Act dealt with arbitrations concerning certain service contracts in the public health system generally. · Section 89(1) provided that the Minister or the Association could apply either jointly or individually to the relevant Minister for the appointment of an arbitrator to determine the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates were applicable, in respect of medical services provided by VMOs under fee-for-service contracts or sessional contracts or both. · Section 90 provided that, on receipt of an application under s 89, the relevant Minister must appoint a judicial member of the Industrial Relations Commission (now the Industrial Court) nominated by the President to be the arbitrator for the purposes of making a determination under Part 2. · Under s 91(1), the arbitrator must, as soon as practicable after being appointed under s 90, determine the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates were applicable, in respect of medical services provided by VMO's under fee-for-service contracts or sessional contracts or both. · Section 92(2) provided that, in making a determination under this Part, the arbitrator must have regard to the economic consequences of the proposed determination and the established principles of the Industrial Relations Commission in connection with the determination of remuneration under awards made under the Industrial Relations Act 1996. · Section 93(1) provided that the Minister and the Association could appear before and be heard by an arbitrator by their respective representatives in any proceedings before the arbitrator and, in sub-section (5), provided that a person appearing before the arbitrator could be represented by an Australian legal practitioner. · Section 96(1) provided that the Minister or the Association could appeal to a Full Bench of the Industrial Relations Commission against a determination made under this Part. · Section 97(1) provided that the Minister or the Association may apply to the Industrial Relations Commission in Court Session for a declaration of right under s 154 of the Industrial Relations Act 1996 in respect of the interpretation, application or operation of the determination made under this Part. · Section 98 provided that any provision of any service contract that was inconsistent with a determination made under Part 2 was, to the extent the inconsistency, of no effect on and from the date or dates that the relevant determination was to take effect and the contract was, on and from that date or those dates, taken to be varied so as to include the terms of the determination. 16 Part 3, Ch 8 dealt with criminal and disciplinary matters concerning visiting practitioners and imposed a duty on appointees who were charged with certain serious sex or violence offences to report that fact to the Chief Executive. The Part contained provisions allowing the termination of appointments because of serious sex or violence offences and provided in s 102 that no compensation, for breach of contract or otherwise, was payable in respect of the termination of an appointment of a visiting practitioner under the Part. Section 103 preserved appeal rights as to appointment or termination under Pt 4 but removed a right of appeal by a visiting practitioner against a decision under Pt 3 to terminate the appointment because the practitioner had been convicted of a serious sex or violence offence in respect of a minor or a patient or client. 17 Part 4, Ch 8 dealt with appeals concerning appointment decisions. · Section 105 required a public health organisation to give notice in writing to a person of a decision to reduce any clinical privileges of a person appointed as a visiting practitioner that had previously been granted or where the organisation did not re-appoint a person as a visiting practitioner or where the organisation suspended or terminated the appointment of a person as visiting practitioner. · Section 106 provided a person who was dissatisfied with a decision of a public health organisation with an appeal to the Minister against such a decision. No appeal to the Minister was available where: there was a decision not to re-appoint where the organisation had ceased to offer appointments of the kind to which the person sought re-appointment; a decision by a public health organisation under s 105 reducing the clinical privileges of a person where the decision was based on grounds other than lack of professional competence of the person; and, a decision not to re-appoint or terminate the appointment if the decision was based on the fact that the practitioner had been convicted of a serious sex or violence offence in respect of a minor and the offence committed involved sexual activity or acts of indecency with or in relation to the minor. · Under s 108, on receipt of a notice of appeal the Minister was to appoint a committee of review to determine the appeal. The section also set out the manner in which the Committee was to be constituted. · Under s 110, in any proceedings before a review committee, a party to the proceeding may appear in person or by an agent but representation by an Australian legal practitioner was not to be allowed unless there was consent of all parties and by leave of the committee. · Section 111(1) provided that the Committee had, for the purposes of appeal, the powers, authorities and immunities conferred by the Royal Commissions Act. · Section 112 required a committee to determine the appeal and to make such orders with respect to the matter being appealed as the committee considered proper. Under s 113, an order of the committee under s 112 had force and effect from the day it was made, was taken to be the final decision of the public health organisation concerned and was to be given effect to accordingly. 18 Part 5, Ch 8 dealt with the effect of the Act on agreements with visiting practitioners. By s 114, the section applied to any agreement between a public health organisation and a visiting practitioner relating to the performance of work by the practitioner whether or not the agreement also related to other matters. By sub-section (2), a provision of the Act (other than Pts 2, 3 and 4 of Ch 8) or a regulation or by-law made under the Act that was inconsistent with any of the rights and obligations under any agreement to which the section applied had to the extent of the inconsistency, no force or effect in relation to the visiting practitioner concerned. 19 The respondent Area Health Service also referred to the provisions of Ch 10 of the Act dealing with the administration of the public health system. · Under s 127, in determining what amounts of money were to be paid to each area health service out of money appropriated from the Consolidated Fund, the Minister was to have regard to a number of nominated matters. · Under s 127(4), the Minister could attach to the payment of any subsidy or part of any subsidy such conditions as the Minister determined from time to time. 20 The respondent Area Health Service also referred to a determination made by the Director-General of the Department as the delegate of the Minister pursuant to s 127(4) of the Act. The determination, entitled "Accounts and Audit Determination for Public Health Organisations", was binding on the Area Health Service as a recipient of payments from the Consolidated Fund. · Clause 3.18 of the Determination prohibited the Area Health Service without specific approval of the Director-General or the authorised delegate to provide to any VMO remuneration or conditions of service other than in accordance with the rates and conditions specified in policy directives or information bulletins issued by the Department. · In February 2005, the Director-General as delegate of the Minister issued a policy directive that was mandatory in its terms applying to visiting practitioners' appointments. Under this directive the conditions of appointment for VMOs including fee-for-service - RDA contracts and the fee-for-service (non RDA) contracts were specified, as well as the standard form fee-for-service (RDA) package. 21 The Health Services Regulation 2003 also made provision in relation to VMOs. · Clause 7(1) of the Regulation provided for a maximum appointment of five years as a VMO. Under Clause 7(2), a person if otherwise qualified was eligible for re-appointment from time to time. · Under Clause 8(1), a person could resign an appointment as a visiting practitioner by giving three months' written notice to the public health organisation concerned. Clause 8(2) permitted the public health organisation to waive the requirement for notice or to accept a lesser period of notice if reasonable to do so. THE SUBMISSIONS 22 The respondent Area Health Service argued that the substance of the relief sought by Dr Prince under s 106 of the Industrial Relations Act 1996 was the imposition upon the respondent of an obligation to pay him the settlement package rate both retrospectively and prospectively, although he did not qualify for those rates of pay and would not be entitled to receive a standard form of contract under which those rates were paid. This was not a case where the terms of the standard form of contract were themselves unfair. The respondent argued that Dr Prince was qualified only for payment of the rates available under the standard fee-for-service contract and he did not qualify for the settlement package rate. Apart from these propositions, on a consideration of the whole of the Health Services Act, there was an implied repeal of s 106 of the Industrial Relations Act. By reference to the various sections of the Health Services Act, the Regulations and the determination under the Act dealing with other matters in which money from the Consolidated Fund was to be dealt with by Area Health Services, it was clear that, in accordance with longstanding authority, the legislature had set up a comprehensive legislative scheme for the regulation of the engagement and payment of VMOs and that legislative scheme came into direct conflict with the provisions of s 106 of the Industrial Relations Act such that both statutory schemes could not stand together. 23 It was accepted by the respondent that, although the later Act, the Health Services Act, did not expressly repeal s 106 of the Industrial Relations Act, there was an implied repeal where the two statutes were held to be inconsistent (Goodwin v Phillips (1908) 7 CLR 1 at 7; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 273; 290; Rose v Hvric (1963) 108 CLR 353 at 360; Saraswati v The Queen (1991) 172 CLR 1 at 17; Shergold v Tanner (2002) 209 CLR 126 at 136-137). 24 The inconsistency between the two statutory regimes, insofar as they dealt with the regulation of remuneration of VMOs, was said to be demonstrated by the following matters: (a) it was an express object of the Health Services Act that it regulate the conditions of contracts of VMOs appointed by public health organisations including Area Health Services in respect of recognised establishments and services. It was apparent that the objective was to obtain uniformity of regulation across the public health system; (b) the regulatory regime in the Health Services Act appeared to be comprehensive; (c) the legislator proceeded on the basis that it was desirable for the Health Services Act to provide for and require the use of standard service contracts containing standard sets of conditions that had been the subject of ministerial approval or otherwise determined by arbitration by a judicial member of the Industrial Court; and, in the case of fee-for-service contract remuneration for VMOs, was regulated by reference to a scale of fees for different kinds of medical services contained or specified in the contract; (d) the Minister was given broad statutory power under the Health Services Act to determine conditions attaching to the payment of any subsidy to Area Health Services under s 127(4). That power might properly extend to conditions affecting remuneration paid to the VMOs engaged by an area health service such as found in the Accounts and Audit Determination. Thus, the Minister could determine that an area health service was to provide benefits to certain VMOs above and beyond those to which they would be contractually entitled, otherwise the contract conditions and rates would remain unaltered for other VMOs. If the Minister made such a determination and issued it as a policy directive then the area health service was obliged to comply, such compliance was assured by the operation of s 127(4) and Clause 3.18 of the Accounts and Audit Determination; (e) the legislature had proceeded on the basis that, where the Industrial Court was to have a particular role or function in the scheme concerning remuneration of VMOs, it was appropriate to find that expression in the Health Services Act ; (f) the arbitrator's role expressly conferred by the Health Service Act on a judicial member of the Industrial Court was concerned with the making of standard determinations of terms and conditions of work in respect of medical services provided by VMOs across the public health system. The arbitration procedure was not available to settle a dispute about fees or other terms and conditions that should be provided to an individual on a case by case basis. The arbitrator was no more concerned with individual disputes about applicable contractual terms for a particular doctor than was the Minister under s 87. The procedure under Ch 8 of the Act was concerned with the making of standard contracts applicable to appropriately identified VMOs; (g) the power under s 106 of the Industrial Relations Act 1996 was not available to assist an individual to procure a variation of the terms of remuneration in a fee-for-service contract for a VMO. There were no means for a VMO to challenge the decision of the Minister (whether made by him or the Director-General as his delegate) or the determination of an appointed arbitrator being a judicial member of the Industrial Court in relation to rates of pay approved or determined pursuant to the Health Services Act in respect of a specified class of service contract for VMOs for use throughout the public health system in New South Wales. 25 It was submitted that, if the Court was empowered pursuant to s 106 of the Industrial Relations Act to vary the fee-for-service contract applicable to the applicant so as to compel the Area Health Service to apply rates of fees for service exceeding those specified for the purposes of the VMOs fee for service standard contract, there would be a derogation from the power of the Minister given by the Parliament under the Health Services Act. 26 Here the specific statutory regime provided for uniformity of fees for identified services under specific classes of contract for VMOs throughout the whole of the State public health system. It was therefore highly improbable that the legislature intended that an individual contract between a VMO and an area health service, insofar as it concerned fee-for-services, could be examined by this Court and if found to be unfair declared void or varied having regard to the particular circumstances of the VMO. Such conclusions were more compelling when regard was had to the provisions of s 107 of the Industrial Relations Act, enabling the Court to make an order for the purpose of prohibiting the respondent from entering into a fee-for-service contract in similar or the same terms with any other VMO in the public health system. Such an order would be in direct conflict with the parliamentary approved authority of the Minister to do the very opposite by resort to s 87 and s 127(4) of the Health Services Act and a judge of this Court to arbitrate a result to the very opposite effect. 27 Submissions for Dr Prince referred to the same line of authority as governing the test of inconsistency between statutes and the implied repeal of previous provisions because of the terms of a later statute. It was submitted that on a proper analysis there was no inconsistency between the two statutes or at least not sufficient inconsistency to meet the test laid down by the authorities. Further, it was pointed out that s 106 was remedial in nature and was structured to enable a person aggrieved by a contract to obtain relief. In those circumstances, the test was more difficult to overcome than in normal circumstances of simply two statutes appearing to cover the same subject matter. The jurisdiction created by s 106 was beneficial in nature and granted fundamental civil rights. A Full Bench of the Commission in Beahan v Bush Boake Allen Australia Pty Ltd (1999) 93 IR 1 (between 13 and 18) stated that the approach to construction of legislation which is contended to affect pre-existing rights and an established system of law requires even more clarity of intent than otherwise and the jurisdiction would only be removed in circumstances of "irrestible clearness". It was also submitted that the Full Bench in Beahan applied the reasoning in Nagle v Tilburg (1993) 51 IR 8, namely, to succeed on a motion to effectively strike out an application, the applicant for such a course "must demonstrate that no order could be made which would be within jurisdiction". 28 It was further noted that in Beahan the Full Bench stated that s 106 was directed to an impugned contract, whether existing or terminated, as to the fairness of express or implied terms and that such unfairness would depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness might arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance of or operation of the contract. In the present case, issues of unfair conduct and unfair performance of the contract were an essential part of Dr Prince's case. Authorities such as Incitec Ltd v Industrial Court of New South Wales (1992) 29 NSWLR 83; Walker v Industrial Court of New South Wales (1994) 53 IR 212 and Rothmans Distribution Services v Industrial Court (1996) 53 IR at 160) firmly established that a contract might be unfair as to its express or implied terms, in the way the contract operated in practice, and/or through the conduct of the parties to the contract. The section was directed to the unfairness of the individual contract between the parties, and unfairness may be assessed by reference to a comparison with the treatment of other persons: this was now specifically recognised by s 106(2). 29 Reference was then made to specific provisions of the Health Services Act. It was accepted that Ch 8 set up the mechanism for standard service contracts to be approved but it did not require the Minister to do so. Section 87(1) and (2) made it clear that a contract might contain additional terms which were not inconsistent with the standard terms. It was also clear that the Minister could choose not to approve a set of conditions at all. The settlement package rates to be applied to certain VMOs at Grafton Hospital were an example of other conditions that were not inconsistent with the approved set of conditions under a standard service contract and expressly permitted by s 87(2). Further, arbitration of contractual terms was not required and the last determination dealt only with sessional contracts. The fee-for-service contract terms (with which Dr Prince's claim is concerned) were not arbitrated. In the absence of a fee-for-service determination, there is a fee-for-service agreement between the Australian Medical Association and New South Wales Health which agreement provides the framework for the terms and conditions of VMO appointments and contracts. It was asserted to be not uncommon for arrangements to be made over and above the standard framework and that such arrangements were subject to approval on a case by case basis. 30 It was submitted that the effect of Ch 8 of the Health Services Act was to set up the mechanism to regulate the conditions of contracts of VMOs at a global level and that it did not attempt to regulate the individual contract between a VMO and an area health service other than to require that certain standard terms be incorporated if they were approved by the Minister or arbitrated. In contrast, s 106 of the Industrial Relations Act was directed solely at the individual contract. Nothing in the Health Services Act was directed at dealing with or providing a remedy in respect of unfair conduct by parties to individual contracts or in relation to unfairness associated with the operation of an individual contract. While there was an appeal procedure in Pt 4, Ch 8 in relation to certain appointment decisions, there was nothing in the Health Services Act concerning the operation or fairness of individual contracts. Properly viewed there was no inconsistency between Pt 2, Ch 8 of the Health Services Act and s 106 of the Industrial Relations Act. 31 Chapter 10 of the Health Services Act in Pt 2 dealt with the financial administration of the public health system. Section 127(4) empowered the Minister to place conditions upon the payment of subsidies to area health services and any instrument or condition made pursuant to this power by the Minister or his delegate was subordinate to the legislation. There could be no inconsistency between an instrument made under legislation and another Act: delegated legislation could not expressly repeal an Act of Parliament. The conditions attached to a grant of subsidies as an instrument of delegated legislation could not by implication repeal s 106 of the Industrial Relations Act. Further, there was nothing in s 127 of the Health Services Act that indicated any intention of Parliament to repeal s 106 of the Industrial Relations Act. 32 If it was assumed that approval for the payment of this rate to Dr Prince was necessary under s 127(4), it was submitted that it was difficult to see how such a course would impact upon the jurisdiction of the Court under s 106 - there was no inconsistency between the two statutes. At its highest, there may be a factor impacting upon the exercise of the discretion to grant relief if unfairness was found in the contract. It was then pointed out that it was clear from the documentary evidence that approval had been given by the Director-General for the payment of the settlement rates to staff specialists at Grafton Hospital following submissions made by the respondent in June 2001. At that time Dr Prince was a specialist VMO at Grafton Hospital and approval for those rates had been given by the Director-General on 6 August 2001. The clarification of that approval formed part of the unfairness: approval had been given in terms and was unambiguous and the respondent actively sought to have the approval revoked in relation to the applicant. There were further issues. The current written contract dated 1 October 2005 provided for the payment of the settlement rates although the respondent now asserted that such contract was invalid. In addition, the variation of the Director-General's approval was made without authority, being signed by a Deputy Director General who did not have a delegation to make such a decision. 33 Attention then was drawn to the provisions of s 114 of the Health Services Act. It was submitted that the effect of this provision was to give no force or effect to s 127 insofar as it would otherwise remove any rights under an agreement made pursuant to Ch 8. It was submitted that the provision included the right to seek a remedy under s 106 in relation to unfairness in the contract. It followed that s 127(4) had no force or effect to the extent that (as asserted by the respondent) it removed the applicant's right to seek remedial orders under s 106. 34 In drawing attention to the fact that the alleged unfairness resulted from the operation of a contract and the conduct of the respondent making the contract unfair for allowing such unfair conduct, it was submitted that the additional contractual terms sought were not inconsistent with any of the approved sets of conditions under the Act. 35 Dr Prince suggested a similar jurisdictional argument as raised by the present respondent had been rejected by a Full Bench in Gibson v Western Sydney Area Health Service (2003) 130 IR 95. That case centred around the operation of Pt 4, Ch 8 of the Health Services Act that provided an appeal in respect of certain decisions made about appointments and the alleged direct conflict with the operation of s 106 of the Industrial Relations Act. The majority judgment referred to s 106 as being focused upon the individual contract and that the subject matter of the two legislative provisions was substantially different. The majority had rejected the same line of argument being pursued in those proceedings by the respondent, namely, that the Health Services Act provided detailed regulation in connection with visiting practitioners' service contracts including a careful scheme of arbitration. 36 It was observed that, in other legislation dealing with public employment, Parliament had been able to specify what parts of the Industrial Relations Act would not apply. For example, the Public Sector Employment and Management Act 2002 in s 72(4) made it clear that the provisions of the Industrial Relations Act dealing with unfair dismissal and unfair contracts did not apply to or in respect of the employment of an executive officer. It was noted that, if Parliament had intended to exclude VMOs from the operation of s 106 of the Industrial Relations Act, it could have done so expressly just as it had in relation to the Public Sector Employment and Management Act.

37 In applying the accepted tests for determining inconsistency leading to an implied repeal of prior statutory provisions, it was submitted that the relevant parts of Ch 8 of the Health Services Act could be summarised as providing a mechanism for setting standard terms and conditions for contracts of VMOs, while the relevant parts of Ch 10 could be summarised as empowering the Minister to attach conditions to the provision of money to an area health service. The subject matter of s 106 was summarised as providing a remedy for unfairness in the terms or operation of an individual work contract or the unfair conduct of a party to the contract. There was no inconsistency and the two pieces of legislation could stand or live together.

INCONSISTENCY OUSTING JURISDICTION? 38 It was common ground that the High Court had recently revisited the applicable principles concerning the implied repeal of jurisdiction conferred by earlier acts in Shergold v Tanner (2002) 209 CLR 126. At [34] et seq, the Court stated: [34] However, the present case at least attracts the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably ... That proposition reflects the general principles respecting implied repeal to which Gaudron J referred in Saraswati v The Queen (1991) 172 CLR 1. Her Honour said: 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 Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 276 per Fullagar J; at 290, per Windeyer J. [35] In Butler, Kitto J expressed the question as being whether the two items of legislation could stand or live together ... In the same case, Fullagar J spoke of "contrariety" ..., Taylor J of "direct conflict" ... , and Windeyer J asked whether the two statutes were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled ... Later, in Travinto Nominees Pty Ltd v Vlattas ... , Gibbs J used the expression "could stand together".

39 In Shergold, a request had been made under the Freedom of Information Act for certain reports but pursuant to the provisions of that Act, a certificate had been issued stating that the disclosure of the document would be contrary to the public interest and such certificate, as long as it remained in force, established conclusively that the disclosure of that document would be contrary to the public interest. The certificate was issued while the matter of non-disclosure was before the Administrative Appeals Tribunal but the provisions governing that Tribunal did not allow the Tribunal to review the decision to give the certificate and permitted only an investigation as to whether there existed reasonable grounds for the claim of exemption. Rather than seeking to pursue the issue through the Tribunal, an application was made for judicial review under the provisions of the Administrative Decisions (Judicial Review) Act but, in the Federal Court, issue was taken with the competency of the application as a matter of jurisdiction. The Court noted that no provision of the Freedom of Information Act, in terms, amended the operation of the Judicial Review Act by contracting the jurisdiction otherwise enjoyed by the Federal Court. The Court accepted the respondent's submission that the phrase "establishes conclusively" in the two provisions of the Freedom of Information Act was directed to the effect of the certificates in proceedings under and in accordance with the Freedom of Information Act and therefore did not work any implied repeal of the conferral of jurisdiction on the Federal Court by another statute, namely, the Judicial Review Act. After reviewing the regime established by the Freedom of Information Act, the AAT Act, the Ombudsman's Act and the Judicial Review Act, the Court concluded that enacting the provisions of the Freedom of Information Act with respect to conclusive certificates, the Parliament did not clearly state its will to redefine the jurisdiction of the Federal Court under the Judicial Review Act. For that reason, the nature of the conclusiveness given to the decision was to be seen within the operation of the Freedom of Information Act.

40 In Statutory Interpretation in Australia [ (6th Ed) Butterworths: D.C. Pearce and R.S. Geddes], in dealing with implied repeal by later statute, the learned authors stated: [7.10] ... Barton J in Goodwin v Phillips (1908) 7 CLR 1 at 10, adopted the following statement from Hardcastle on Statutory Law: The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the latter imply the repeal of an express prior enactment, ie. the repeal must, if not express, flow from necessary implications. If, therefore, there is open on the words of the later Act, a construction by the adoption of which the earlier Act may be saved from repeal, that construction is to be adopted. Similar statements to that of Barton J may be found in Hack v Minister for Lands (NSW) (1906) 3 CLR 10 especially per O'Connor J at 23. In Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 276, Fullagar J sounded the salutary warning that there is a strong presumption that the legislature does not intend to contradict itself but in fact intends both Acts to operate within their given spheres. The implication of there being a repeal was "a comparatively rare phenomenon", a view endorsed by Gummow, Hayne and Heydon JJ in Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 14. ... See also re Chance [1936] Ch 266 per Firwell J at 270: If it is possible it is my duty to so read the section ... as not to effect an implied repeal of the earlier Act. There must be "close attention" to the construction of the provisions in question: Ferdinands v Commissioner for Public Employment [2006] HCA 5 at [18] per Gummow and Hayne JJ.

It may well be that provisions of Acts that appear to conflict are in fact intended to operate, as it were, in parallel. (See Trade Practices Commissioner v BP Australia Ltd (1985) 7 FCR 499 at 506 ... where this statement was endorsed.) So in re Murphy (1877) 2 QBD 397 what were at first sight conflicting provisions relating to failure to send a child to school was held to be compatible on the basis that one dealt with an habitual failure and the other with an occasional failure. In R v Chalak [1983] 1 NSWLR 282, the court held that a power to deal with an offence summarily did not displace a provision provided for an indictable offence for the same conduct. The intention was to make it possible to choose between the offences according to the gravity of the conduct in a particular case. Similarly, in Davies v Taylor (1996) 140 ALR 245, the enactment of civil penalties did not displace existing criminal offences for the same conduct. ... It would thus appear that there is a heavy onus on a person asserting an implied repeal - it must be shown that the legislature did not intend to contradict itself. 41 It was accepted by the parties in the present matter that the latest judgment of the High Court dealing with the relevant principles for implied repeal was the decision in Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555. That case concerned the powers of a Commissioner of Police to terminate the appointment of a police officer under the Police Act 1998 (SA) and whether, in light of the nature of the legislative scheme contained within the Police Act, there was power under the Industrial and Employees' Relations Act 1994 to obtain an order of reinstatement on the basis that the dismissal was harsh, unjust or unreasonable. The Full Court of the Industrial Relations Court of South Australia and the Full Court of the Supreme Court of South Australia (by majority) held that the Industrial Relations Commission had no jurisdiction to entertain such an application. The High Court by majority dismissed an appeal against those findings. 42 The five members of the High Court in Ferdinands delivered four judgments, with Kirby J dissenting. The judgments made reference to the fact that the legislature may by necessary implication manifest an intention to repeal earlier legislation although partial repeal of an earlier statute by a later statute would only be inferred on "very strong grounds", citing Saraswati. The Chief Justice referred to an elaborate system of merits review of decisions relating to transfer, promotion, termination on certain grounds and discipline and the fact that there was an appearance of "exhaustiveness" about the statutory arrangements for control and management of the police force. It was apparent from the judgments that the nature of the engagement (being a disciplined force) and the significantly different considerations that might influence the exercise of the power to terminate the services of a police officer left by the legislation in the hands of the Commissioner were critical factors in determining the appeal. The decision, however, was arrived at by the application of longstanding principle and did not purport to introduce different considerations. 43 The decision of the Full Bench in Gibson has relevance for the present proceedings, although dealing with a different issue involving a VMO. In that case, the VMO was offering for further appointment and sought, under s 106 of the Industrial Relations Act, procedures governing that process, including the provision of information about available positions, the provision of a reasonable opportunity to make submissions on a decision not to appoint him and the provision of procedural fairness-type procedures to operate in considering and dealing with these matters. These matters were all to be attended to in a timeframe which would allow him to file an appeal against his non-appointment under the provisions of ss 105, 106 and 107 of the Health Services Act. Such an appeal was filed but not pursued. It was argued by the relevant Area Health Service that the appeal provisions under the Health Services Act operated to impliedly repeal the provisions of s 106 of the Industrial Relations Act in relation to an application concerning a failure to reappoint a person as a VMO.

44 The majority judgment of the Vice President Walton J and Marks J analysed the competing provisions and concluded that they were not dealing with the same subject matter. Thus, properly approached, there was no conflict giving rise to an implied repeal of the earlier statutory provisions. Under s106 of the Health Services Act, a VMO could appeal a decision reducing clinical privileges, a decision not to reappoint the VMO, or a decision to suspend or terminate the appointment of the VMO. There were limits imposed on that right of appeal. In relation to those matters where no appeal lay, the majority judgment pointed to the fact that there could be s 106 Industrial Relations Act implications if representations were made at the time of the initial appointment. It was noted that the appeal under the Health Services Act was one where the rules of evidence did not apply, where legal representation could be prevented and where there were no express guidelines governing the exercise of the power. The decision of the committee on appeal was taken to be a final decision of the Area HHealth Service but that was not a provision treating the committee's decision as a final decision precluding review by a court. 45 The majority noted the width of the power available under s 106 of the Industrial Relations Act and that it was not confined, as was the joint operation of ss 105, 106 and 107 of the Health Services Act. Under the Industrial Relations Act, the jurisdiction was vested in a superior court of record that applied the rules of evidence and where the parties were entitled to representation by legally qualified persons. There was a requirement that the Court find unfairness before it could exercise the jurisdiction to make orders in relation to a contract and there were no exclusions from consideration, as there were in the appeal provision under the Health Services Act. 46 Having regard to these matters, the majority held that the subject matter dealt with by the two statutes was completely different, with the Health Services Act being very much more limited and not extending, for example, to collateral arrangements. The authorities recognised that conflict between provisions by itself was not determinative of inconsistency leading to an implied repeal: it was necessary to look at the subject matter in each statute. It was not open to focus on areas that were not reflective of the overall subject matter of each statute. Under the Health Services Act, the provisions dealing with determinations for VMO contracts realistically had to be detailed, including the provision of a right to appeal a decision of the arbitrator and a power to interpret the terms of the determination. Given that background, it would not be expected, other than that there would be quite detailed provisions dealing with the engagement and conditions of VMOs and no adverse conclusion flowed from such a situation. The existence of overlapping or concurrent rights was not determinative of the issue and such a situation was not unusual.

47 In his dissenting judgment, the President, Wright J, made an overall assessment having regard to the whole of the statutory scheme including the legislative history, and concluded there was such inconsistency that the two statutory regimes could not stand together. That conclusion did not follow from a consideration only of the provisions of the Health Services Act and the fairly narrow proposition argued for by the Area Health Service. His Honour did not place a great deal of weight on the fact that the Health Services Act was a later statute and found that approach "not particularly useful" in view of the fact that similar provisions were found in longstanding legislation, namely, the Public Hospitals Act, 1929. His Honour was of the view that the legislator had provided a comprehensive scheme for the regulation of contracts for the engagement of VMOs. It was unlikely that the powers of the Commission under s 106 of the Industrial Relations Act were intended by Parliament to apply in substance to provide an alternate form of regulation of such VMO contracts. That approach was confirmed by the fact that the Commission had certain roles and powers identified to apply under particular provisions of the Health Services Act - such as ss 90, 96 and 97. Where the Commission was to have a particular role or function, it was necessary to set it out in the Health Services Act. There was no scope therefore for the Industrial Relations Act to operate where the Health Services Act remained silent. 48 It became apparent during the course of oral argument in the present matter that the respondent Area Health Service was not challenging the decision of the majority in Gibson nor was it seeking to re-argue and/or seek to have established the dissenting position of the President Wright J, although the written submissions filed on behalf of the respondent gave a quite contrary indication. It was ultimately accepted by the respondent (without demur from the applicant) that the decision of the majority in Gibson implicitly rejected the view that the Health Services Act viewed as a whole operated to repeal the operation of s 106 in relation to the engagement and terms of contract of VMOs. It was argued that the majority, however, had confined their consideration to the operation of Pt 4, Ch 8 dealing with appeals concerning appointment decisions, leaving the possibility that there might be other provisions of the Health Services Act that showed such conflict as to impliedly repeal the operation of s 106 of the Industrial Relations Act to VMOs. In the present matter, the respondent's arguments were directed to the operation of Pt 2, Ch 8 and Pt 2, Ch 10 of the Act. 49 Before dealing with those submissions, reference should be made to two further judgments although dealing with public sector employment. In Public Service Association of New South Wales and anor v Industrial Commission of New South Wales and anor (1985) 1 NSWLR 627, the Court of Appeal upheld the decision of a Full Bench of the Commission in deciding that certain provisions of the Public Service Act 1979 dealing with excess staff and excess salaries excluded the possibility of the Commission making an award in relation to redundancy. In that case, the focus was on the provisions of the Public Service Act stating that "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act 1940". It was held that the express provisions dealing with excess staff and excess salaries indicated by way of negative implication that the functions and powers created by those sections were to be exercised under the Public Service Act 1979 only and by the persons mentioned in that statute and that the Industrial Commission's jurisdiction relating to excess staff or excess salaries in the public service was withdrawn in respect of matters provided for in the Public Service Act. Interestingly, both the Full Bench of the Commission and the Court of Appeal held that the provisions of the Public Service Act in relation to excess salaries and excess staff did not constitute a code on redundancy so as to exclude entirely the jurisdiction of the Industrial Commission and that there was jurisdiction in the Commission by award to flesh out those matters specifically dealt with by the Public Service Act 50 The judgments in the Court of Appeal noted (without apparent exception being taken) that the Commission had reconciled the powers of the Public Service Board to fix salaries by determination or agreement under the Public Service Act with the powers of the Commission under the Industrial Arbitration Act 1940 to make an enforceable award that might differ from the determination of the Board. The Commission had rejected the argument that the determination and agreement making powers under the Public Service Act were "strong enough" to amount to such an express provision as to diminish the power of the Commission to make awards and to exclude the powers and jurisdiction of the Commission under the Industrial Arbitration Act. The Commission recognised, however, that the existence of any such determination or agreement lawfully made under the Public Service Act would be of considerable importance in relation to the exercise of the Commission's discretion in responding to an application for an award by the Commission in terms that would be inconsistent (see Kirby P at 646 B-E). Particular weight had to be given to the provisions of the Public Service Act that provided that "unless otherwise expressly provided" nothing in that Act affected the Industrial Arbitration Act: in the absence of inconsistency there was no work for that provision and it followed that the section must contemplate that, before it operated, there must be in addition to the inconsistency some further indication that the inconsistency itself in the Public Service Act 1979 showed that the inconsistent provision was intended to affect the Industrial Arbitration Act. The excess staff and excess salaries provisions fell into this category. 51 Following the Public Service Association case, a Full Bench of the Commission was called upon to consider whether the general regulation making power under the Public Service Act and in particular dealing with travelling allowances, ousted the jurisdiction of the Commission to make an award in relation to travelling allowances. In Re Crown Employees (Motor Vehicle Allowances) Award (1983) 14 IR 289 the Full Bench considered the decision of the Court of Appeal in the Public Service Association case dealing with redundancy but found that a general regulation making power that permitted a regulation to be made in relation to travelling allowances (and a wide variety of other matters) did not operate so as to oust the jurisdiction of the Commission to make an award in respect of those same matters. 52 Although giving consideration to the history of the Public Service Act and recent amendments to the Industrial Arbitration Act granting public servants greater access to the award making power of the Commission, the Full Bench considered the terms of the regulation making power to determine whether or not they operated so as to exclude the award making powers of the Commission. In turn, the Full Bench considered whether there was anything different between this regulation making power under the Public Service Act and the provisions of the Public Service Act dealing with excess staff and excess salaries as dealt with by the Court of Appeal. It noted that there was no explicit reference made to the Industrial Arbitration Act in the Public Service Act (s 133) dealing with the making of regulations although that had occurred in s 65A of the Public Service Act excluding award making in relation to promotions and appointments. The Full Bench then continued, at p 295: Adopting the approach in the Public Service Redundancy case, it is accordingly necessary to consider whether or not there is anything by way of implicit contradiction in s 133 which could be said to involve 'a negative implication' precluding the making of an award inconsistent in operation, or in contradiction, of the section so that both cannot stand together. Section 133 is a general enabling provision which empowers the Board, (which has been created, amongst other functions, as a statutory employer on behalf of the Crown), to determine by regulation conditions of employment and other matters specified in the section. If an award were to prescribe benefits equal to or in excess of entitlements under regulations made pursuant to s 133, the consequence would not be to render inoperative those regulations or the regulation-making power. It would simply mean, as we see the position, that two bases of entitlement would be provided, one under the regulations made by the statutory employer and the other by award of an industrial tribunal. A parallel situation is where an award applies in the same area as an agreement under s 83 of the Public Service Act, a circumstance held by a full bench of the Commission in the Agricultural Field Officers case [1953] AR (NSW) 478 not to amount to an express provision within the meaning of former s 5A, the precursor section to s 8. A further analogy arises in the circumstances under which an award stands side by side with rights and obligations under contracts of service (although in the latter case, contractual rights less favourable than an award may be ineffective). These parallels suggest, if any inconsistency between an award and the regulations is to be resolved in favour of the regulations, that, having in mind s 8, some form of expression might be expected in s 133 which indicates a legislative intention that the statutory employer's determination of conditions of employment is to be paramount. Notwithstanding that expectation, in its general purport and operation, s 133 is not materially different from provisions in legislation establishing statutory authorities which enable the employing authority created under such legislation to determine conditions of employment for its staff (see, for example, s 7(2) of the Main Roads Act 1924). It is not readily to be presupposed that, following any re-enactment of such legislation or the creation of new bodies, the intention, in the normal course, will be the ousting of award-making powers, without something more appearing than appears in s 133, with or without the presence of a section such as s 8. The difficulty with the Board's argument, in light of the foregoing, is to see any indication in s 133 which suggests that the respective entitlements and obligations created by award and by regulation cannot stand side by side. Viewing s 133, as other sections were viewed in the Public Service Redundancy case, no indication would seem apparent in s 133 which amounts to a 'contra indication' or negation of the general intent of s 8 so as to preclude the making of an award as sought . 53 The significance of these cases is that a statutory power to determine conditions and remuneration has not, by itself, generally been regarded as ousting the jurisdiction of industrial tribunals. A power to make such determinations is regarded as part of the employers' function in establishing regular and stable conditions - something much more definite is required to operate as an ouster of jurisdiction exercised by industrial tribunals. A mere regulation making power is unexceptional and does not constitute a necessary implication that jurisdiction is withdrawn from such a tribunal - both provisions can stand side by side. 54 The various cases cited by the parties and the cases referred to immediately above are not to be taken as requiring an exercise whereby the result in those cases is to be reconciled with the legislative provisions here under review. Those cases refer to general principles and, in relation to the Public Sector cases, give some history as to the way in which employers have made determinations affecting salaries and conditions under statutory provisions which have not been found to exclude the award making power generally granted by the Industrial Arbitration Act a predecessor of the present Industrial Relations Act. The decision in Gibson rather highlights the difficulty in using the decision in relation to one statutory provision in seeking to reconcile the questions arising in relation to another statute. 55 Having regard to the submissions of the parties and in particular aspects of the submissions made by the respondent Area Health Service, it is appropriate to make some reference to the history of VMO engagement and how a judicial Member of the Commission became nominated to make determinations as to the conditions of engagement of VMOs.

In the 1993 determination made by Hungerford J, his Honour briefly dealt with the development of the legislative scheme noting that traditionally medical services were provided in public hospitals by honorary practitioners who, whilst engaged in private practice, freely gave of their time and services in the treatment of public patients. It was recognised that practitioners set the fees for private patients at a level to cover the honorary work and expenses incurred in relation thereto. The benefit to the honorary medical officer was that he was able to have his private patients admitted to the hospital with its extensive and specialised facilities, hospital staff were available to attend to the honorary's private patients and further private patients were acquired by the honorary through the hospital's admission system. 56 Full-time salaried medical specialists and resident medical officers were employed eventually by public hospitals to provide services in addition to those rendered by the honoraries and their salaries and employment conditions were determined by awards made by industrial tribunals while the honoraries who were independent contractors, were outside the normal scope of industrial regulation. This position continued until a system of national health insurance (Medibank) was introduced in 1975. As part of that scheme, although with strong objections by many honorary practitioners, it was provided that those practitioners rendering services to public patients in hospitals in an honorary capacity would be paid a sessional fee for the first time for the services so rendered by them. Thus, the category of visiting medical officer, known as the VMO, was created. To give effect to the change from the honorary to the sessional fee system, the then Public Hospitals Act was amended and a new part inserted in 1978 dealing with visiting medical officers and allowing for the appointment of a member of the Industrial Commission as an arbitrator to determine the terms and conditions of work and the rates of remuneration of practitioners appointed under sessional contracts to render medical services to hospital patients. In the Minister's Second Reading Speech, it was said that the concept of the amending legislation had been approved by the New South Wales branch of the Australian Medical Association. 57 The arbitration provisions were designed to provide an acceptable method of mediation and determination with respect to the terms and conditions of work, and the rates of remuneration on an hourly basis of medical practitioners who rendered medical services to hospital patients at incorporated hospitals and separate institutions within the meaning of the principal Act. In 1986, a further amendment allowed for a right of appeal against a decision of the arbitrator. The Minister's Second Reading Speech also dealt with another important aspect, namely, certain restrictions on the regulation and by-law making power in respect of public hospitals. The Minister for Health the Hon B J Unsworth MLC explained (Hansard, 29 April 1986 at p 2929): ... the proposed amendments to the Public Hospitals Act also incorporate restraints on the regulation and by-law making powers in respect of public hospitals. As with regulations and by-laws affecting Area Health Services, a regulation or by-law relating to public hospitals will, if inconsistent with an agreement between a public hospital and a visiting practitioner, have no force or effect to the extent of any inconsistency with any agreement existing between the parties. This means that no government or public hospital can, under this legislation, unilaterally change any agreement existing between public hospitals and visiting practitioners. 58 In the course of dealing with the history, Hungerford J referred to the circumstances that led the Australian Medical Association through one of its members to seek injunctive and declaratory relief in the Equity Division of the Supreme Court in 1987 concerning the operation of the determination made by Macken J at an earlier time. In Hyslop and anor v Liverpool Hospital and anor (1987) 21 IR 192, Hodgson J received submissions as to the basis upon which the determination was to be approached for the purposes of interpreting its terms. The Australian Medical Association had submitted that the question of interpretation should be approached on the basis that the determination was delegated legislation and that historical material was irrelevant. It was also submitted the Court should not apply rules appropriate to the construction of contract as these were directed to obtaining the intention of the parties as objectively disclosed by the communications in the light of the matrix of facts. While the determination did become part of the contract between a VMO and a hospital, it was not by way of consensus or agreement or intention on their part, but by force of the legislation. The hospital defendant in these proceedings submitted that the determination should be approached like an award under an industrial arbitration statute and therefore the court should understand the historical circumstances in order to place itself notionally in the surroundings of the Arbitration court just as a court in construing a will endeavours to place itself in the testator's armchair. It was submitted that the process of making a determination was unlike a legislative process by which rules were made for the whole population. What was done, essentially, was resolving a dispute involving what could essentially be regarded as an employer organisation and an employee organisation. Hodgson J determined to adopt the general approach put forward by the defendant hospital stating that, in his view, the legislation was similar in nature to industrial arbitration legislation and he saw no reason that the determination should be approached any differently from the way one would approach an award under industrial arbitration legislation. 59 These extracts dealing with the history of VMO regulation run quite contrary to a number of the submissions made by the respondent Area Health Service in the present proceedings. Significantly, the purpose of Ch 8 of the Act (and its predecessor) was not primarily about the need to introduce standard or uniform rates and conditions but was an important mechanism to overcome VMO objections to the new scheme and the change in their status. An independent method of arbitration was necessary in order to defuse disputes and to avoid VMOs withdrawing from the system. The nature of the arbitration was closely fashioned on equivalent award making powers in recognition of the fact that VMOs were not employees. The provisions of industrial legislation were not being excluded for they had little direct application to this class of engagement - indeed, the industrial tribunal was the model adopted to address novel and difficult problems arising with this new category of visiting practitioner. In addition, the legislation did provide for individual contracts between VMOs and area health services and was not excluding individual negotiation in favour of only standard provisions in contracts. 60 It is important in dealing with the competing arguments to bear in mind the approach referred to by Gummow and Hayne JJ in Ferdinand, namely that no conclusion can be reached about whether a later statutory provision contradicts an earlier provision without first construing both provisions. Where it is found upon a true construction of provisions that there is an explicit or implicit contradiction between the two, the later Act impliedly repeals the earlier: a distinction was to be drawn between explicit or implicit contradiction on the one hand and merely inferential contradiction.

Despite the wide ranging argument contained within the submissions, this case does not involve a claim for a rate payable to a VMO determined by a judicial member of the Court under s 91 of the Health Services Act , nor is there a claim contesting such a rate. There is no relevant arbitrated rate to be considered in these proceedings and such a case might legitimately involve considerations that are different to those arising in present matter. 61 Although numerous provisions of the Health Services Act have been set out earlier in the judgment as representing the width of submissions of the parties, in fact, only a relatively small number are relevant once the argument is no longer concerned with the existence of a "code" excluding the operation of the Industrial Relations Act. The "code" approach found in the respondent's written submissions was effectively abandoned during argument. It must be accepted that the joint judgment in Gibson found against the existence of a code or that numerous provisions of the Health Services Act read together, generally, led to the ouster of jurisdiction under s 106 of the Industrial Relations Act. Counsel for the respondent indicated that it was not proposed to re-argue Gibson and that the joint judgment was to be accepted but in the context of that joint judgment dealing only with the operation of Pt 4, Ch 8 of the Act ,whereas the present case involved Pt 2, Ch 8 and Ch 10 of the Health Services Act. The respondent submitted that the joint judgment in Gibson left it open for other parts of the Act (besides Pt 4, Ch 8) to have the effect of ousting the operation of s 106 of the Industrial Relations Act and for that reason the majority judgment in Gibson was not binding on the Court in relation to this particular argument. It should be stated, however, that in some respects the joint judgment in Gibson gives the impression of making a general ruling as well as a particular ruling about the operation of Pt 4, Ch 8 of the Health Services Act but it is unnecessary for this issue to be determined in the present proceedings. 62 It is important, nevertheless, to note that the joint judgment in Gibson related to a conflict between provisions that on their face were very much more in apparent conflict than the provisions involved when considering VMO agreements under Pt 2, Ch 8 and Ch 10 of the Health Services Act. In Gibson, there was a specific appeal provision to a committee clothed with the powers of a Royal Commission and otherwise empowered to deal with the issue of substance, namely, the failure to re-appoint the VMO. 63 In the present case, Dr Prince seeks the payment of the settlement package rates because: (a) the other specialist surgeons at Grafton Hospital have been paid that rate and there is no relevant distinction that would prevent him from being paid that rate as a matter of fairness; (b) that the only effective authorisation of the payment of those rates to Grafton Hospital VMOs made no relevant distinction as to which of the specialist surgeons should be paid the rate; (c) the document purporting to restrict the payment of the settlement package rates to some of the VMOs at Grafton Hospital excluding Dr Prince was not authorised by the standard delegation of authority of the Director-General and was of no effect; and (d) the contract actually offered to Dr Prince and signed by him contained the settlement package rates and that contract was binding on the respondent. His case is that in its terms and by the conduct of the respondent, his contract was, or became, unfair. 64 From documents tendered on the Notice of Motion it is apparent that the origin of the settlement package rate was an agreement reached in August 1988 and arose from a 1987 country general practitioners' dispute. A media release issued in July 1988 by the Minister for Health, Mr Peter Collins MP, announced a significant breakthrough in the "long running dispute over payments for rural doctors". The Rural Doctors' Association had voted in favour of a package of recommendations aimed at solving the major dispute affecting rural health care with the proposals being negotiated by the Department of Health Joint Working Party established in April 1988. The Working Party had proposed a set of initiatives designed to take account of the "realities of rural practice" said to include the lack of expert backup and special facilities that were available to larger hospitals. The major proposals of the Joint Working Party included a recommendation to establish an ongoing liaison committee with agreed methods for resolving disputes. 65 These documents dealing with the 1988 resolution of the dispute do not descend into detail as to the statutory basis for making and implementing the agreed rates but it is clear that they involved no unilateral determination by the Minister nor did it involve an arbitration by a judicial member of the then Commission. It was common ground that the original agreement did not extend to Grafton Base Hospital and that over the years the settlement package rates were extended, apparently by the Director-General (possibly under delegation from the Minister) to other hospitals. Representations made by the respondent Area Health Service to the Director-General in June 2001 led to the extension of the settlement package rates to Grafton Base Hospital in August 2001. 66 During argument counsel for the parties were asked if they were able to identify any provision in the Act that authorised the Minister or the Director-General to make a unilateral determination regarding VMO conditions or remuneration - none could be identified. As referred to in the Crown Employees (Motor Vehicle Allowances) Award, the existence of a power to determine salaries and conditions or a power granted by way of regulation to set allowances and conditions has not been treated as determinative of the issue of jurisdiction to make awards or rulings under industrial legalisation but, in the present case, it does not appear that the Minister's power reaches the height of being able to make a unilateral determination. 67 The relevant statutory scheme for the purposes of determining the present Notice of Motion appears, therefore, to be as follows: · A visiting practitioner is a medical practitioner who is appointed by a public health organisation (in the present case the Area Health Service) to practice at public hospitals (s 76). · A visiting practitioner may be appointed under a service contract or, importantly, may be appointed otherwise than under a service contract (s 77). · A VMO is a medical practitioner appointed under a service contract to provide services as a visiting practitioner (s 78). · A service contract is an agreement between (in this case) the Area Health Service and a medical practitioner whereby the practitioner is appointed a visiting practitioner to provide to or on behalf of the Area Health Service the medical service specified in the agreement (s 80(1)). · A service contract may be a fee for service contract or a sessional contract but is not limited to these types of contract (s 81). · A fee for service contract is a service contract by which the visiting practitioner is remunerated for medical services performed and paid by reference to a scale of fees of different kinds of medical services contained in or specified or identified by the contract (s 82). · A sessional contract is a service contract under which the medical practitioner is remunerated by reference to an hourly rate or rates for services provided but not on a fee for service basis (s 83). · A VMO must not be appointed unless the terms and conditions to which the officer is to be subject are in the form of a written service contract between the officer and the relevant public health organisation, here the Area Health Service. An appointment made in contravention of this provision is void (s 86). 68 This collection of provisions makes it clear that a VMO's contract (whether providing for payment on a fee-for-service basis, a sessional basis or otherwise) is simply an agreement between the VMO and the public health organisation including an area health service. It seems that absent a determination under s 91,(which operates to vary any service contract, but only in relation to fee-for-service or sessional rates, to the extent that it provides for a rate or conditions inconsistent with the determination and is taken to vary the contract so as to include the terms of the determination by s 98) then the rates agreed between, for example, an area health service and the VMO will be the contract rates. A VMO not engaged under a fee-for-service or sessional contract will not be affected by a s 91 determination in relation to these matters. The only other position is governed by s 87: under that section the Minister may by order in writing approve sets of conditions and remuneration recommended by the Australian Medical Association for inclusion in service contracts. When such approval is given by the Minister, all service contracts are relevantly varied. This is referred to as the approval of "standard conditions for service contracts", a term defined by s 87(2) to refer to a contract that, when it is entered into, contains the set of conditions (if any) approved for the time being under s 87(1) for those service contracts, whether or not they contain other conditions that are not inconsistent with the approved set of conditions. Section 88 provides that service contracts of a class for which there is a standard service contract is not to be entered into unless it contains the set of conditions laid down in the relevant standard service contract and any service contract entered into in contravention of the section is void. 69 The legislation therefore contemplates that there may be standard conditions for service contracts, but the Minister is not obliged to accept the Australian Medical Association's recommendation. It is only the Australian Medical Association's recommendation, if accepted, that becomes standard conditions of service when agreed to by the Minister. It can therefore be seen that this is a very special type of arrangement quite unlike the usual statutory power to make a unilateral determination on salaries and conditions. The unusual nature of the power of approval is highlighted by the fact that it picks up and implements a recommendation by a body external to the Health Department and the Minister, namely, the Australian Medical Association. This very special provision perhaps owes its existence to the historical difficulty of private practitioners making their services available to public hospitals and the fact that VMOs are not employees for whom an award might be made under the award making powers granted to industrial tribunals. Absent the approval of standard conditions by the Minister on the recommendation of the Australian Medical Association and absent a determination made by a judicial member of the Court in relation to fee-for-service or sessional contracts, it appears that the terms of contract between an area health service and a VMO are those matters agreed between them. This position is recognised in part by s 87(2), where a standard set of conditions and remuneration is approved and those parts of service contracts that are not inconsistent with the approval will continue in operation. The s 87 approval operates as an "inclusion" of these matters in VMO contracts. 70 On this analysis, it is quite impossible to see what conflict or level of contrariety exists between these provisions of the Health Services Act and s 106 of the Industrial Relations Act, nor is there the type of "exhaustiveness" as referred to in the judgments in Ferdinands. There is no reason why these provisions of the Health Services Act could not stand and operate side by side with any order made under the Industrial Relations Act - certainly, in relation to a contract that is not a standard conditions of service contract but one wholly the result of agreement between the Area Health Service and the VMO. That type of contract falls within the class of contracts and arrangements regularly dealt with under s 106 of the Industrial Relations Act. 71 Does any different position apply if the contract contains conditions and/or rates approved by the Minister under s 87? The evidence before the Court does not go so far as to specify what provision of the relevant legislation was relied upon in the making of the 1988 agreement concerning rural doctors. Those rates accepted by the rural doctors, after being proposed by a departmental working party, may simply have been adopted by hospitals or area health services in the knowledge that, in certain rural hospitals those rates would be accepted by visiting practitioners. If that is the true nature of the 1988 agreement, then there is no level of conflict or contrariety that would lead to the setting aside of the strong presumption that the legislature wished both provisions to apply. 72 Assuming, for the purposes of argument, that the 1988 Rural Doctors' Agreement and the settlement package rates were approved by the Minister under some statutory predecessor similar to s 87 of the Health Services Act, does any different result arise? I am unable to conclude that s 87 operates in such a way as to oust the jurisdiction of the Industrial Relations Act, s 106. The conditions and rates are merely approved by the Minister (although the Minister is not obliged to accept the recommendations of the Australian Medical Association) and the recommendations itself may arise from considerations in which the Minister has played no part at all, but which he or she is convinced or accepts are appropriate to be approved as setting standard rates and conditions: the approved rates and conditions apply together with any other matter agreed between the area health service and the VMO not inconsistent with the approval. The language of the legislature is not that of a binding and final determination clearly excluding further intervention (compare s 95). Indeed, the Act contemplates at least one possible further act of external intervention, namely, a determination by a judicial member of the Court in contested proceedings in which the arbitrator will apply the usual rules and practices applying to the making of awards. 73 In general terms, therefore, it may be said the provisions of Pt 2, Ch 8 of the Health Services Act facilitates the making of agreements between, for example, area health services and VMOs and provides mechanisms for either approved or determined conditions of service or remuneration to be inserted in those contracts either by agreement with the Australian Medical Association or in arbitrated proceedings. Contracts that are the result of simple agreement between the area health service and the VMO or such contracts that have also as part of their terms conditions or remuneration approved by the Minister are nevertheless contracts that are not, in substance, far removed from employment contracts or employment related contracts dealt with under s 106 of the Industrial Relations Act. In Gibson, the President, Wright J, accepted that the power given to the Court under s 106 of the Industrial Relations Act to make orders was different to and distinct from the powers contained in the provisions of the Health Services Act. The majority in Gibson noted that s 106 was concerned with alleged unfairness or harshness or unconscionability of individual contracts with the focus of attention being the contractual relationship between the parties and at para [72] drew attention to the widely different context in which s 106 operated compared with the operation of the Health Services Act. Those differences are of significance in the present proceedings and assist in demonstrating how the two provisions can stand together without the level of contrariety that would result in the implied repeal of s 106 of the Industrial Relations Act. Both judgments in Gibson refer to the analysis of s 106 in Beahan: at page 13, the Full Bench in Beahan noted that s 106 had properly been described as remedial in nature in enabling a person aggrieved by a contract within the scope of the section to obtain relief and that such legislation was to be construed beneficially so as to give the fullest relief which the fair meaning of its language would allow. It was noted that a further Full Bench in Huskisson RSL Sub- Branch Club Ltd v Sullivan (1990) 32 IR 304 had considered the scope of s 88F which the Full Bench broadly characterised as dealing with the rights of a party or an interested person to have declared void or varied any contract or arrangement which was unfair, harsh or unconscionable or against the public interest and to recover any losses connected with such contract or arrangement. This power is quite different to the matters dealt with by Pt 2, Ch 8 of the Health Services Act. 74 The Full Bench in Beahan, after consideration of the authorities, then stated: What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous s 88F of the 1940 Act and s 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness would depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In order words, the section if properly concerned with the fairness of the terms of the contract of employment in its various respects, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. (at 35).

Those observations also demonstrate the fundamentally different purposes of s 106 of the Industrial Relations Act and Pt 2, Ch 8 and Ch 10 of the Health Services Act . 75 In deciding the present Notice of Motion, the parameters of the Summons for Relief needs to be kept firmly in mind. Dr Prince does not seek to challenge the rate of payment available under the Rural Doctors Settlement Package but, rather, seeks to have the precise terms of that package applied to him because he says that the surrounding circumstances make him eligible for that package and, as a matter of fairness, he should be paid the package rates. There is force in the argument put on behalf of Dr Prince that s 106 applications are concerned with the fairness of individual contracts and, hence, the subject matter is not in conflict with the provisions of Pt 2, Ch 8 of the Health Services Act. Having regard to all these matters, the respondent Area Health Service has not been able to rebut the strong presumption that these two quite different sets of provisions were intended to operate side by side. 76 The respondent then argues that Pt 2, Ch 10 operates to create the type of direct conflict that requires the ouster of jurisdiction available under s 106 of the Industrial Relations Act. The submission proceeds on the basis that s 127 dealing with the determination of subsidies in sub-section 4, allows the Minister to attach to the payment of any subsidy such conditions as the Minister determines from time to time. On the face of the two provisions, there is no clear conflict arising. The respondent, however, argues that it is open to the Minister under s 127(4) to impose a condition on the payment of subsidies to an area health service so that certain rates might be paid to VMOs or prohibit certain other rates, such as the Rural Doctors Settlement rate being paid to VMOs. The use of s 127(4) for such purpose appears to be quite contrary to the steps set out in Pt 2, Ch 8 of the Act dealing with the making of agreements, or the approval or determination of the standard conditions and remuneration. It might have been thought that, if some new and overarching power was to be granted to the Minister in relation to the setting of these rates and, perhaps, even in conflict with a determination made under Pt 2, then it would have been clearly set out in Pt 2, Ch 8 of the Act. The better view appears to be that the provisions of s 127(4) are general provisions and the provisions constituting Pt 2, Ch 8 of the Health Service Act are special provisions - the principle of generalia specialibus non derogant applies so that the special provision is read to be a proviso to the general provisions and the general provision, insofar as it is inconsistent with the general provision, must be deemed not to apply. In any event, this seems to be the clear operation of s 114: nothing done under Ch 10 is effective if it is inconsistent with an agreement made under Ch 8. This operation of s 114 is confirmed by the Minister's Second Reading Speech referred to in para [57]. 77 There was no evidence before the Court that the Minister has attached any relevant condition to the payment of a subsidy so that the Area Health Service was to apply and pay only certain conditions and rates to VMOs. There is nothing in terms to this effect. It is to be noted that, in any event, the breach of such a condition does not lead to any particular result, such as invalidity, with s 127(5) contemplating that the Director-General may make recommendations to the Minister as to what action might be taken against an area health service or any officer or employee of the organisation. To the extent that it is assumed that s 127(4) has some role to play, I would accept the applicant's submissions as to there being no conflict of such significance as would require the ousting of the Court's jurisdiction under s 106 of the Industrial Relations Act. 78 On a more general note, one further observation should be made. The decision in Gibson divided the Court and demonstrated the difficulty of applying simply stated principles to the facts of a particular case and a particular statutory regime. It is significant that, shortly after Gibson was decided by the Full Bench in 2003, there was an extensive review of the Health Services Act in 2004 resulting in approximately 70 amendments followed by a further significant review in 2006 resulting in approximately 19 amendments to the Act. In both reviews, there was one amendment to Ch 8. In the same timeframe, there was a considerable review of the extent and operation of s 106 of the Industrial Relations Act. If the legislature was concerned that any provision of the Health Services Act or the Act as a whole should operate as a code or in relation to VMOs at least so that s 106 should be removed as an available source of remedial orders, then there was ample opportunity for the legislature to do so in clear and unambiguous language. 79 Having determined the Notice of Motion against the submissions put forward by the respondent, I believe that this is an appropriate case where the respondent should pay the applicant's costs in relation to the Notice of Motion and pay those costs forthwith. During argument, the applicant asked for his costs of the Motion if the respondent should fail and no reservation of the issue of costs was sought by the respondent. If, however, within seven days of this decision, any party wishes to be heard on the question of costs, they should notify the Court and appropriate arrangements will be made to deal with any submissions in relation to that matter. 80 As this matter has been allocated to the Court as presently constituted to deal with both the Notice of Motion and conciliation, I propose to conduct a conciliation of the matter as early in the new term as is possible having regard to the other commitments of the Court. The parties should discuss available dates for conciliation and contact my Associate in that regard.

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