George Anthony Calvert Murrell v South Eastern Sydney Area Health Service

George Anthony Calvert Murrell v South Eastern Sydney Area Health Service - [2006] NSWSC 313 - NSWSC 2006 case summary — Zoe

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(b) whether on its true construction Clause 12 of Schedule A supports the exclusion of Dr Clarke from the second floor of the Education Building. 29 The contention is that the plaintiff proceeds on the basis that the defendant has breached Clause 3.4 and 3.5 of the Contract. The submission is that there is no evidence that Clause 3.4 has been breached, but, on the contrary, the evidence is that the position of Professor in Orthopaedic Surgery at, and commensurate in status and remuneration to other full professorial positions within the Faculty of Medicine of the University of New South Wales, was established prior to 2 September 2002. 30 The defendant contends that the plaintiff's reliance on certain authorities proceeds on the misconception that Clause 2.2 of the Contract is a clause relating to termination, or cancellation, or recision of the Contract for breach of a condition, whereas it is not concerned with termination but is a clause that fixes the duration for the operation of the Contract. 31 The defendant further contends that even if it be wrong in its characterisation of Clause 2.2 of the Contract, then the Contract was void on 2 September 2002 and not merely voidable because the defendant had no control over the event in clause 2.2(a). The contention is that there is no causative link between the failure of the defendant to use its best endeavours under Clause 3.5 and the fact that as at 2 September 2002 the plaintiff had not been appointed to the Position. 32 The defendant further contends that contrary to the plaintiff's Outline of Submissions the employment of the plaintiff by the University of New South Wales in the Position was not in the control or gift of the defendant, nor was it something which the defendant could bring about, even if it could influence that fact. 33 Alternatively, the defendant submits that the plaintiff's remedy for the defendant's breach is damages and not specific performance of the Employment Contract. This is said to be so, inter alia, because: (a) the plaintiff seeks to have the whole Contract remain on foot after 2 September 2002. He seeks thereby to have the whole Contract including the service components specifically performed;

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(d) the public interest requirement. 38 The defendant further contends that it cannot be asserted by the plaintiff that Dr Clarke's move into the space occupied by the ORI or the Department, is merely the "thin end of the wedge", because the defendant has already given an undertaking not to implement any changes to the present use and allocation of the second floor of the Education Building occupied by the ORI and the Department, without giving 14 days' notice. Decision 39 In my view the plaintiff has clearly established that there is a serious question to be tried. The plaintiff's Claim cannot be characterised as frivolous or vexatious. The above-described plaintiff's contentions raise close questions as to the proper construction of the contract and close questions as to breach. Whether or not the statutory counts, alleged breaches of duties of good faith and claims that the contract of employment will be held unfair within the meaning of s106 of the Industrial Relations Act must obviously await the matter being fully litigated. 40 It is pertinent to observe that there is no absolute bar to the granting of an injunction which involves supervision by the Court - rather it is a matter of degree: Patrick Stevedores Operations No. 2 Pty Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at paragraphs 79-80: see also Liristis Holdings Pty Limited v Q-Corp Marine Pty Limited [2001] NSWSC 418. 41 There is no absolute rule that in no circumstances will equity refuse to grant specific performance or injunctive relief when there is an element of personal service in a contract: cf Fortescue v Lostwithiel & Fowey Railway Company [1894] 3 Ch 621 at 639.3-640.2; CH Giles & Co Ltd v Morris [1972] 1 WLR 307 at 317.8-319.2; Hill v CA Parsons & Co Ltd [1972] Ch 305, Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 at (the first instance decision which was reversed), and 379-380; Turner v Australasian Coal & Shale Employees' Federation (1984) 6 FCR 177 at 192-193; and Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 481-2. 42 The issue of the propriety of particular equitable relief whether by way of specific performance or injunctive relief is always instant specific.

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Balance of convenience 43 As has already been noted from the written submissions, this parameter of the issues for present decision was vigorously contested. 44 Standing back from all of the detail, it is critical to recall that on an application for interlocutory injunctive relief it is not the role of the Court to make findings as to disputed facts. In a number of instances the evidence has disclosed that the parties are at issue as to the facts. One only example may be seen in terms of the affidavit of Dr Evans of 9 May 2006 in which Dr Evans [taking into account the apparent mistake in the paragraph] deposed that prior to building the Research and Education Building at the hospital, the hospital had another building where research was undertaken but that that building was subsequently deemed unusable. 45 In contradistinction to this evidence, Professor Murrell deposed in his affidavit of 10 March 2006 that this building was then used by particular research groups concerned with cancer care and gynaecology. 46 Then there is the question of the competing contentions as to the extent to which the second floor of the Research and Education Building is presently the subject of underuse. The evidence before the court is that Dr Diwan has recently attracted significant additional funding which is to involve the employment of at least seven new researchers. Apparently two such new researchers have already been accepted as such. The evidence is that the new researchers will require bench space and office space to conduct their program and that the addition of external research groups would impair the space available to Dr Diwan's Group and the existing researchers in the ORI. 47 The defendant has by its counsel characterised the concerns put forward by the plaintiff as unfounded in the extreme. The submission was that effectively the plaintiff is simply about "protecting his own patch". The contention was that the anxieties expressed by the plaintiff as to a reduction of the allocation of floor space with the implementation of changes to present use and allocation of the second floor being likely to have consequences for the plaintiff, the Department of Orthopaedic Surgery and the ORI by way of adverse impact of management, reduced morale of persons working within the ORI, the placing at risk of expensive and complicated equipment; the security concerns; problems of supervision and adverse impact on administration; possible equipment misplacement and disruption to the activities of the ORI; a risk of contamination of cell culture material; were simply effectively specious, unfounded and/or grossly over exaggerated. 48 The simple fact is that each of these matters is the subject of the sworn evidence of the plaintiff. 49 Whilst the Court must of course take into account the sworn evidence of the executive director of St George Hospital on a number of matters concerning the shortage of research space, this is not a situation in which the court is able to decide which of the contentions by either party has clear substance and which are insubstantial. Likely in a number of the categories of matters litigated, there is simply no bright-line distinction so that one is in grey areas. 50 During the hearing the Court made plain to both parties the vital relevance of the particular stage to which this litigation had advanced in terms of the balance of convenience. The Court may approach an application for interlocutory relief where it is clear that the trial is reasonably imminent in an entirely different fashion to the approach the court would take, or likely take, where it seems tolerably clear that the proceedings could not come on for trial say, for example, for nine months or longer. Neither party has seen fit to place before the Court any sworn evidence as to these matters and such investigation as the Court has been able to make today by questioning of counsel has suggested that discovery may take some real time and that the usual stately approach to following completion of discovery, directions being given and hopefully complied with, in terms of the filing of evidence, may be expected. 51 In my view this is a case which justifies curial intervention in terms of the interlocutory processes. The overriding purpose of the Civil Procedure Act 2005 and of the Rules of Court, now enshrined in that Act in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Parties to civil proceedings are under a duty to assist the Court to further that overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. The objects of case management include proceedings being managed so as to achieve inter alia :

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"The degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities." 53 S 59 provides that in any proceedings, the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 54 Reference was made earlier in the judgment to the history of these proceedings commencing following the commencement of the proceedings before the Industrial Relations Commission and the proceedings before the Federal Court and the sundry cross-vesting exercises which then took place. Clearly, a great deal of time has passed during the course of which the witnesses' internecine disputation continuing at a litigious level, has continued unabated, leading to today's interlocutory injunction application some months after the matter was first before this Court. 55 I have come to the clear view that the appropriate exercise of the Court's discretion in this particular case is to immediately fix these proceedings for hearing during the week of 3 July 2006. 56 In my view the balance of convenience is clearly in favour of the granting of an injunction in terms of the orders sought by the plaintiff up to and including the delivery of judgement following that final hearing at first instance. 57 It will obviously be necessary for the Court to oversee a regime whereunder interlocutory steps will be completed in fashion such as to permit that hearing to go forward. The appropriate course is to give the parties an opportunity to put forward an agreed timetable. The proceedings will be before the list judge on the first Friday after Easter for directions, on which occasion if the parties have not been in a position to agree upon a timetable, the Court will dictate that timetable. 58 It is appropriate to make plain that the urgent expedited fixture of these proceedings to the week of 3 July 2006 is not negotiable. This is not a circumstance in which counsel, counsel's convenience, solicitors or solicitors' convenience can be taken into account. The time has come when these proceedings have to be heard and when the legal rights of the parties have to be, finally, once and for all ascertained. That time will be, as I have said, on and after 3 July 2006. 59 It only remains then to return to the notice of motion in order to make appropriate orders of an injunctive nature in so far as the plaintiff presses for such relief as is appropriate.

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Judgment (70 paragraphs)

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Legislation Cited (5)

Cases Cited (7)

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