Gibson v. Western Sydney Area Health Service [2000] NSWIRComm 13

APPLICANT Mr. A. Moses of counsel SOLICITOR Tress Cocks & Maddox LEGAL REPRESENTATIVES: RESPONDENT Mr I. Neil of counsel SOLICITOR Blake Dawson Waldron

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

DR JAMES GIBSON v WESTERN SYDNEY AREA HEALTH SERVICE.

Application under s106 of the Industrial Relations Act 1996.

1 On 25 November 1999 the applicant, Dr James Gibson, commenced proceedings under s106 of the Industrial Relations Act 1996 (the Act) and also sought interlocutory relief from an impending termination of his appointment as a Visiting Medical Officer at the Westmead Hospital, operated by the respondent. 2 In 1979 Dr Gibson was appointed as a Visiting Medical Officer in the role of senior consultant obstetrician and gynaecologist at Westmead Hospital and had been engaged in that capacity continuously since then. On 18 August 1999 the applicant was notified in writing by the respondent that, after the application of a new appointments procedure which had been introduced at the Hospital and which had the effect of requiring Dr. Gibson and other incumbents to re-apply for their positions, his application for re-appointment had been unsuccessful. This notice contained the following: "To allow you to complete any unfinished clinical work, your current appointment has been extended to 30th November 1999. No further extension is to be expected."

3 In addition to commencing these proceedings, Dr Gibson has initiated an appeal, pursuant to s.106 of the Health Services Act 1997, against his non-appointment; the appeal had not been fixed for hearing at the date of these proceedings. 4 These are the reasons for the refusal on 29 November 1999 of the motion for interlocutory relief from the impending termination. 5 The summons for relief in these proceedings sought, apart from costs and incidental orders, the following: (a) An order declaring that the contract and/or arrangement whereby the applicant performed work at the hospital operated by the respondent unfair, harsh or unconscionable or contrary to the public interest. (sic) (b) An order varying the said contract and/or arrangement from its or their commencement or some other time so as to include terms that if the respondent decides not to reappoint the applicant in his position, the respondent will continue the appointment of the applicant until any appeals relating to the decision not to reappoint the applicant are heard.

6 No doubt due to the fact that the extension of time granted by the respondent was until 30 November 1999, which meant a period of discontinued engagement at least pending the appeal under the Health Services Act 1997, and/or the substantive proceedings in this matter, the applicant filed, together with the summons for relief, a notice of motion which sought interlocutory relief, the relevant aspect of which was an order "restraining the respondent from terminating the appointment of the applicant pending the final determination of these proceedings."

7 That motion was heard urgently on 26 November 1999, at which time the applicant was represented by Mr Moses of counsel and the respondent by Mr I. Neil of counsel. 8 Mr Moses argued that the issues which arise for determination on an application for interlocutory relief are firstly whether there is a serious question to be tried (see Castlemaine Tooheys Ltd and ors v. State of South Australia (1986) 161 CLR 148 and American Cyanamid v. Ethicon Ltd (House of Lords (1975) A.C. 396 at 407 per Lord Diplock) and secondly that the balance of convenience favours the granting of an injunction. 9 Mr Moses relied upon the affidavit of the applicant filed in support of the substantive application which included the following matters relied on by counsel as establishing issues of prejudice to the applicant: "I currently undertake 1 outpatients clinic per week of 1 session and I have 5 operating lists per month of 1 session. If I do not continue with these sessions, I will lose contact with patients and lose momentum in my practice, and it would be extremely difficult for me to re-establish myself with patients if I am forced to leave the hospital until my appeal is successfully determined. My only public hospital appointment is at Westmead Hospital. I hold 1 list per month at the Sydney Adventist Hospital. I hold 1 list per fortnight at the Hills Hospital, although I rarely fill it. I have other private hospital appointments but rarely use them. My income will drop by about 90% if my appointment at Westmead Hospital terminates. Because of my age, it is highly unlikely that I would be able to obtain a public hospital appointment elsewhere."

10 Counsel referred to the decision of Maidment J given on 30 September 1998 in Interlocutory Judgment No. 2 in the matter of TeleTech International Pty Ltd v. Medical Benefits Fund of Australia Limited (unreported 30 September 1998 - Matter No. IRC98/5150). In that matter TeleTech sought, and obtained, an order restraining the respondent from taking any steps to terminate the contract or arrangement between the parties to those proceedings. 11 It was submitted that the matter was one which conformed with appropriate principle and justified the grant of interlocutory relief.

(a) There was no jurisdiction in the Commission in Court Session to grant an interlocutory injunction of this kind in these proceedings.

(b) That in any event, the court would not grant an injunction if the effect was to compel the performance of a contract of personal service.

(c) The court would not grant interlocutory relief unless it be demonstrated that compensation would not be an adequate remedy.

12 It was also submitted that the respondent would wish to adduce evidence on what were described as discretionary considerations, which would relate to other arrangements which the hospital has put in place to operate after 30 November which, it was suggested, would affect the exercise of discretion. The urgent listing of the motion with only a few hours notice had precluded the possibility of putting on evidence. Accordingly, if the Commission was disposed against its submissions on jurisdiction the respondent submitted that an opportunity should be afforded it to put on that evidence but within a timeframe which would ensure the ability of the Commission in Court Session to resolve the interlocutory relief questions by 30 November 1999. 13 Mr Neil argued that the nature of the interlocutory relief sought here was different from that of a Mareva injunction. Submissions were made distinguishing the judgment of Maidment J in TeleTech but in the alternative it was submitted that I should not follow his Honour's decision on the basis that it was wrongly decided. Mr Neil relied upon a chain of decisions given in the Commission in Court Session and its predecessors, the effect of which was to preclude jurisdiction other than in relation to orders in the nature of Mareva-type injunctions. Counsel pointed particularly to an earlier decision of mine, Maharaj and ors v. 7-Eleven Stores Pty Ltd (unreported 4 April 1997 - Matter No. IRC97/1150), which it was said had been followed by members of the Commission in a number of other cases. I will refer to at least some of those cases in the course of my conclusions, to which I will shortly turn. 14 Mr Moses in reply submitted that the nature of the relationship between the parties was not one of contract of service but rather a service contract as a result of the provisions of s.78 of the Health Services Act 1997 which describes a visiting medical officer as "a medical practitioner appointed under a service contract (whether the practitioner or his or her practice company is 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".

Conclusions 15 The circumstances in which this Court has jurisdiction to grant interlocutory relief have been considered on a number of occasions and may now be said to be quite circumscribed. In summary terms, the power is limited to the making of an order which is necessary to preserve the jurisdiction of the Court to hear and determine the issues in the matter, such that any order made will be capable of having practical, or actual, effect. 16 In tracing the history of the development of the jurisdiction, it is convenient to refer to authority on the grant of injunctions. I refer to the judgment of Deane J. (with whom relevantly Mason CJ., and Wilson & Dawson JJ. agreed; Brennan J. deciding to like effect) in Jackson v. Sterling Industries Ltd. (1986-87) 162 CLR 622, where this was said in relation to the power to grant a Mareva injunction: "There may have been a time when it would have been strongly arguable that the making of an interlocutory order to preserve assets of a defendant pending the determination of proceedings against him could not properly have been seen as "appropriate" to be made by a court in relation to the exercise of the jurisdiction to entertain the substantive proceedings. If that be so, that time has passed. Orders preventing a defendant from disposing of his assets so as to create a situation in which any judgment obtained against him would not be satisfied may be of comparatively recent development. They have, however, become an accepted incident of the jurisdiction of superior courts throughout most of the common law world. In this country, the jurisdiction to make such orders, commonly referred to as "Mareva injunctions", has been progressively asserted and exercised by the Supreme Courts of Victoria, New South Wales, Western Australia, Queensland, the Australian Capital Territory and South Australia. Initially, injunctive orders to preserve assets were made to prevent a non-resident defendant from removing assets from the territorial limits of a court's jurisdiction so as to frustrate the effectiveness of any judgment that might be obtained: see Nippon Yusen Kaisha v. Karageorgis [1975] 1 W.L.R. 1093; [1975] 3 All E.R. 282; Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd's Rep. 509; [1980] 1 All E.R. 213. In due course, it was perceived that a general interlocutory power to make orders preventing a defendant from disposing of his assets so as to defeat any judgment obtained in an action was an incident of the substantive jurisdiction to entertain the action and was not continued to the case where the defendant was a non-resident. That general power has been held to encompass an order requiring the disclosure by a defendant of his assets (see Bekhor Ltd. v. Bilton [1981] Q.B. 923; T.D.K. Tape Distributor v. Videochoice Ltd. [1986] 1 W.L.R. 141; [1985] 3 All E.R. 345; an order for the delivery up (to a named solicitor) of designated assets which were not specifically in issue in the proceedings (see C.B.S. United Kingdom Ltd. v. Lambert [1983] Ch. 37; and, an order restraining a local company from disposing of or dealing with assets which were outside the jurisdiction at least where they had been within the jurisdiction when the action commenced: see Hospital Products Ltd. v. Ballabil Holdings Ltd. [1984] 2 N.S.W.L.R. 662; on appeal [1985] 1 N.S.W.L.R. 155." . . . "That general power should, however, now be accepted as an established part of the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction." [1987] 162 C.L.R. 612 at 622-623

17 After referring to the particular position in the Federal Court, Deane J. continued: "In that regard, I agree with the following comments of Bowen C.J. in his judgment in the present matter [1986] 69 ALR 92 at 97: "In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power."

18 That the Industrial Commission of New South Wales had power, in relation to proceedings brought under s.88F of the Industrial Arbitration Act, 1940, to grant orders in the nature of Mareva injunctions was considered and so held by Cahill J. in Wheeler v. Selbon Pty. Ltd, trading as Parklands Nursery. [1984] 1 N.S.W.L.R. 557; 7 IR 383

19 That question of power received further consideration, and support, in Dickins v. Gibb Nominee Services Pty. Ltd. & Anor. [1991] 43 IR 276 at 277-279 per Maidment, Hungerford & Cullen JJ.

20 In Darvall v. N.Z. Securities Ltd. [1990] 39 IR 215, Hungerford J. said, after discussing the cases: "Whether a particular interlocutory order is within the power of the Commission would seem then, on the authorities and in the absence of any explicit grant of power by the statute, to depend upon whether the making of the order is necessary to prevent the frustration of the Commission's due process; because otherwise, it would seem, the very nature of s.88F, properly construed, would be expanded. In other words, unless s.88F expressly or by implication empowers interlocutory relief to be granted, the Commission as a statutory court, albeit a superior court of record, would be exceeding its jurisdiction." (ibid at p.220)

21 and then at p.221 his Honour said: "Thus, jurisdiction to make an order under s.88F can only arise when one or more of the grounds of relief contained in the section are made out; and that can only be, in my view, as part of the proceedings for final relief and not in any interlocutory sense. However, as earlier stated, the Commission is empowered, by reason of its constitution as a superior court of record, to make interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at naught."

22 In Maharaj, the applicants, as operators of a store franchise in respect of which they were under notice of termination, brought an action under s.106 of the Act in which they sought compensation but with the retention of the business an alternative remedy. In the course of judgment I said: "In the present matter the relief primarily sought is effectively compensation although remaining in the business is an alternative remedy. The applicants have been attempting to sell the business. I do not consider the power of the court to grant relief is conditioned or shaped by the nature of the relief sought. The power, as in a mareva case, is to take such steps as are necessary step (sic) to ensure the court is not denuded of the capacity to make an effective order. While the applicants may be denied the opportunity to earn a living from the business at least pending the hearing of the substantive issues next month, a remedy by way of compensation is clearly available if the applicants succeed on the merits. The court's final orders are not, thus "frustrated or put at naught".

23 Approximately two months later Cahill V-P in Cameron & Ors v. Unilever Australia Limited & Anor. (unreported 3 June 1997 - Matter No. IRC97/1602) said: "The interlocutory relief sought by the Notice of Motion now under consideration is that the respondents be temporarily restrained from directly distributing, or appointing any person to distribute, ice cream products in the applicants' geographical area, and from refusing to supply such products to the applicants on terms of trade presently applying. The power of the Court to grant relief of that kind has been considered by the Court and its predecessors on a number of occasions. The most recent case referred to in the submissions of counsel today is Maharaj v. 7-Eleven Stores Pty Ltd decided by Peterson J. in this Court on 4 April 1997. I consider that case is substantially similar in nature to the case now before the Court and I respectfully agree with his Honour's decision in that case and the reasoning which led to that decision."

24 In the same month Hungerford J. delivered judgment in Edwin John Maiden and ors. v. New Zealand Natural Pty. Limited and anor. (unreported 20 June 1997 - Matter No. IRC97/109). After citing the above quoted passages from Maharaj, his Honour said: "As to the present case, I find the reasoning of Peterson J. directly applicable in leading to the conclusion that in the circumstances here the Court lacks jurisdiction to grant the injunctions sought. True it is that the applicants seek, a variation of the franchise agreement so as to enable them to remain in business on fair and reasonable terms; the whole thrust of the interim relief is clearly directed to securing that position pending the determination by the Court of final orders. However, and like Peterson J., I do not think the power to make orders under s.106 "is conditioned or shaped by the nature of the relief sought". For instance, in Darvall I held that there was no basis for the application of general equitable principles for the granting of injunctions in relation to proceedings under s.88F of the then Industrial Arbitration Act 1940 (and, hence, s.106 of the Industrial Relations Act 1996) as the section conferred no rights to have any particular factual situation or set of circumstances created or maintained for the purpose of the determination of the proceedings. My reasoning in that respect was as follows [1990] 21 N.S.W.L.R. 36 at 41-43; [1990] 39 I.R. 215 at 219-221: "Finally, in terms of the application of general equitable principles to the granting of injunctions in relation to proceedings under s.88F of the Industrial Arbitration Act , I respectfully agree with the judgment of McLelland J. in Bringmann v. Lend Lease Investments Pty. Ltd. (McLelland J., 4 December 1979, unreported), which relevantly states (at p.4): "In my opinion, these considerations provide no legitimate basis for the grant by this court of injunctive relief. The principles of equity provide no jurisdiction for the grant of a final injunction to restrain acts which neither infringe some legal equitable or statutory right of the plaintiffs nor are otherwise unlawful. Although s.88F, assuming the plaintiffs can bring their case within its jurisdictional limits, may be accepted as conferring on the plaintiffs a right to have their application determined, it does not confer upon them any rights to have any particular factual situation or set of circumstances created or maintained for the purpose of the determination of that application. Conversely, there is nothing in s.88F which operates to alter the legal position of a respondent to an application or to render unlawful any acts of his at any time before an order is made thereunder. There is, in my opinion, no useful analogy between the circumstances of such a case as the present, on the one hand, and circumstances in which this court in proceedings before it will grant an interlocutory injunction in aid of or to protect a right to final relief which may ultimately be established in those proceedings, on the other hand." One may, it seems to me, readily distinguish cases such as Dickins and Wheeler where jurisdiction to make a Mareva injunction was found to exist on the basis, consistent with the reasoning in Darvall (ibid at 50; at 227-228) and as was stated in Wheeler (supra at 557; at 384), that an interim injunction may be made as "an order designed to prevent an apprehended action on the part of the respondents which, if not prevented, would or may frustrate the due process of the court by denying a successful litigant the right to receive the amount of orders which the court considers just and reasonable in all the circumstances of the case". In the case before me, the applicants have a clear remedy if they succeed in their substantive application for compensation by way of appropriate money orders in relation to the franchise fee, goodwill and loss of business opportunity if the Court were to grant either the primary relief of a variation to the franchise agreement or the alternative relief of avoiding it from its commencement. Therefore, the final orders which may be made in this matter would not be frustrated nor put at naught if the interim relief be declined. The motion for interlocutory injunctions must be dismissed for want of jurisdiction."

25 While the jurisdiction is not necessarily limited to orders equivalent to Mareva-type orders, the purpose of which is to prevent assets being disposed of or removed from the jurisdiction thus frustrating process, nevertheless this Court's jurisdiction seems to me to involve considerations of a similar kind. That is, the purpose and effect of the interlocutory order must not only be to ensure the potential effectiveness, of but be subsidiary to, the final relief. 26 Although Mr. Moses acknowledged that compensation could later be sought, emphasis was placed upon the distinguishing feature here of there being no claim for money. That is to say, the sole matter sought to be preserved, by the interlocutory relief claimed, is the applicant's position as a visiting medical practitioner, at least pending the hearing and determination of the primary question whether it should be preserved pending appeal under the Health Services Act, 1997, and in any event, no longer. However that fact seems to me to put the matter further from, rather than closer to, jurisdiction. The relief sought in terms of the interlocutory order is, in a practical and immediate sense, of no different import and effect to the final relief sought; the latter would have the service contract preserved pending appeal, the former pending the hearing and determination of the case intended to lead to that result. The grant of the interlocutory order could have the effect, depending on the date of hearing of the appeal, that there would be no other work left to be done by the substantive proceedings. Where a summons proceeds on that restricted basis it is not seeking to invoke a specific or recognised jurisdiction, with a supplementary resort to interim relief to protect the main proceedings; its substance appears to me to be as much interlocutory as final relief and, accordingly, I consider it falls short of the reach of the Court's jurisdiction.

27 For these reasons I held that the Court was without power to grant the interlocutory relief sought. 28 Although it is strictly unnecessary, I add for completeness that I consider this is not a case in which I would, on discretionary grounds, grant the interim relief sought. While one can sympathise in the predicament in which Dr. Gibson was placed, this seems to be the inevitable and intended result of a statutory appeal procedure. Section 112 of the Health Services Act, 1997 provides in subsection (2): 112(2) If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners' appointments is to be made available to the appellant.

29 It is difficult indeed to see how the idea of continuance pending appeal by order of this Court could sit comfortably with that provision. Further, the conclusion seems inescapable that the complaint here is ultimately capable of remedy by way of compensation, to the assessment of which there seems to be no obstacle, were that finally necessary. 30 The motion is dismissed, with costs reserved.

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