Gibson v Western Sydney Area Health Service

Statutory construction - Unfair contract - Appeal - Statutory construction - Inconsistency alleged between Health Services Act 1997 and Industrial Relations Act 1996 - Visiting Medical Officer in Area Health Service - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Held, by majority, Court Session has jurisdiction Disorderly Houses Act 1968 s 3 Freedom of Information Act 1982 (Cth) Health Services Act 1997 s 76 to 84 s 85 s 86 to 96 s 97 s 98 s 105 s 106 s 107 s 108 s 109 s 110 s 111 s 112 s 113 s 115 s 116 s 117 to 121 Industrial Arbitration Act 1940 s 25 LEGISLATION CITED : Industrial Relations Act 1996 s 105 s 106 s 154 Industrial Relations Act 1998 (Cth) Local Government Act 1919 s 99 Prostitution Act 1979 Public Hospitals Act 1929 s 29L to 29R s 29K to 29RC s 29M s 29N s 29P s 29Q s 29QA s 29R s 29RA to 29 RC s 29T s 33H to s 33N s 33P s 40BA Public Service Act 1922 (Cth) Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1 David Jones Ltd v Cukeric (1997) 78 IR 430 Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90 Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81 Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 Goodwin v Phillips (1908) 7 CLR 1 Horvath v Commonwealth Bank of Australia (1998) VSCA 51 CASES CITED : Incitec Ltd v Industrial Court of New South Wales (1992) 45 IR 155 Maggs v Comptroller General of Customs (1995) 58 IR 40 Northwest County Council v Dunn (1970) 126 CLR 247 Saraswati v The Queen (1991) 172 CLR 1 Shephard, Re Applications of [1983] 1 NSWLR 96 Shergold v Tanner (2002) 209 CLR 126 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 HEARING DATES: 03/19/2003; 10/30/2003 DATE OF JUDGMENT: 12/23/2003

APPELLANT: Mr A R Moses of counsel Tress Cocks & Maddox, Lawyers (Mr Tim Unsworth) LEGAL REPRESENTATIVES: RESPONDENT: Messrs J N West QC and I M Neil of counsel Blake Dawson Waldron, Lawyers (Ms Jan Dransfield/Ms Kirsten West)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President MARKS J Tuesday 23 December 2003

JAMES GIBSON v WESTERN SYDNEY AREA HEALTH SERVICE Application for leave to appeal and appeal against a decision of Justice Boland given on 24 July 2002 in Matter No IRC 6498 of 1999

JUDGMENT OF THE PRESIDENT [2003] NSWIRComm 465

1 The present proceedings, which involve an application for leave to appeal and an appeal, challenge the decision of Boland J given on 24 July 2002 ordering the dismissal of the proceedings brought by the appellant pursuant to s 106 of the Industrial Relations Act 1996.

2 The appeal arises from an application made under s 106 of the Industrial Relations Act by the appellant, Dr James Gibson, who was the applicant in those proceedings. The respondent, both at first instance and on appeal, is the Western Sydney Area Health Service.

3 I have had the benefit of considering in draft form the joint judgment about to be delivered by the Vice-President and by Marks J (for convenience that judgment is referred to as the joint judgment). Regrettably, I find that I am not able to agree with the conclusion reached by their Honours as to the disposition of the appeal. However, because of the detailed exposition in the joint judgment of the factual circumstances, much of the relevant statutory schemes, the procedural background and legal considerations, I am able to provide my reasons in relatively short terms for coming to a different conclusion. These reasons will be limited to those additional statutory areas which I consider are relevant to the issues before the Court and also to the further legal principles and analysis which support the conclusion I have reached.

4 In view of the way in which the matter was developed at first instance, the manner in which the appeal was argued and in light of the conclusion reached, it is appropriate to deal with the issues on appeal in two parts or stages. That is, after dealing with the matter in the way it had initially been decided and then argued, other matters will be considered which are not only germane but which, when taken with the other matters before the Court, seem to me to be determinative of the appeal. 5 I agree with the joint judgment that there is no basis upon which to distinguish the general principles stated or the approach adopted in Shergold v Tanner (2002) 209 CLR 126 in the present case, although it was dealing with Commonwealth legislation. I also agree that the present appeal, as did that case, deals with issues of statutory construction involving statutes said to be inconsistent and the situation where it is said that the later statute has withdrawn jurisdiction from a superior court, albeit a statutory court. In the present case it would also be unlikely that the legislature would have intended to do that without the use of clear words, where the implication appeared clearly and unmistakably or, to use the words of Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17, "[t]here must be very strong grounds to support that implication". Circumstances where the implication has, or could be discerned, include, to paraphrase the discussion in Shergold v Tanner at [35], where it is considered that the two items of legislation could not stand or live together; there is substantial "contrariety" between the two statutes; there is "direct conflict" between the statutes or they are so plainly contradictory manifesting in repugnancy that they could not be reconciled. However, as later explained, I consider that approach or test, when applied to the statutory scheme relevant to the present matter, results in the appeal being dismissed.

6 The judgment of the High Court in Northwest County Council v Dunn (1970) 126 CLR 247, which was relied on by Boland J, turned on the direct inconsistency between the power of a council to terminate employment (even if a statutory inquiry may have reported in favour of the employee) and the right of reinstatement which might arise from the order of an industrial tribunal under the Industrial Arbitration Act 1940.

Arguments based on inconsistency 7 It becomes necessary to deal with the nature and extent of any inconsistency between the respective provisions relevant to the present matter. Detailed reference is made in the joint judgment to the relevant provisions of the Health Services Act 1997 which were relied on by the respondent. As their Honours observe, these provisions apply to three situations only. First, action by a public health organisation to reduce previously granted clinical privileges of a visiting practitioner; second, the failure to reappoint a person as a visiting practitioner and finally, the suspension or termination of the appointment of such a practitioner. The provisions create a right of appeal. That right is limited and does not apply to the circumstances set out in s 106(2) of the Health Services Act. In addition, any notice under s 107(1) must be given within one month of notification of any adverse decision (subject to the discretion of the Minister to extend the time).

8 To the extent that it is necessary to examine the provisions of s 106 of the Industrial Relations Act for the purpose of these proceedings I agree with the joint judgment that it is not necessary to consider this area in great detail because the provisions of s 106 have recently been examined comprehensively by a Full Bench of this Court in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1, and I otherwise agree with their Honours' analysis of the relevant part of the statute.

9 Having regard to the matters which have been referred to above and the matters considered in the joint judgment, I would not have concluded that the legislature had intended that the appellant in the present proceedings which he commenced under s 106 of the Industrial Relations Act was precluded from maintaining them by reason of the provisions of Part 4 of Chapter 8 of the Health Services Act. The contentions of the respondent focussed on the consideration that none of the exclusions referred to in s 106(2) of the Health Services Act applied to the circumstances of the applicant and the relevant provisions should be considered in this light. That is, the test as to whether or not the intention of the legislature may relevantly be discerned in the manner contended for by the respondent involved an examination of the legislation on what might be referred to as its application in the particular circumstances of the matter. Thus, the question to be addressed was whether in enacting s 106 of the Health Services Act the legislature evinced an intention that the provisions of s 106 of the Industrial Relations Act would not apply in the context of appeals which would otherwise come within s 106 of the Health Services Act other than those circumstances excluded by s 106(2) of the Health Services Act.

10 I then turn to a judgment relied on by the respondent: the judgment of Griffith CJ in the High Court in Goodwin v Phillips (1908) 7 CLR 1 at 7. In discussing the principle that a statute may be repealed by subsequent legislation by necessary implication his Honour said: [W]here the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act. It should be observed that his Honour's observations stress that what he was dealing with was a situation where the provisions of a particular statute dealing with a particular subject matter of the earlier Act were "wholly inconsistent" with the provisions of an earlier statute dealing with the same subject matter.

11 In my opinion the legislation the subject of these proceedings does comes broadly within the description in the judgment in Goodwin v Phillips, when there is regard to the whole of the statutory scheme under the Health Services Act 1997 and its predecessor legislation. Although there may be a number of reasons why the subject matter of these proceedings may be distinguished from those in Northwest County Council v Dunn, nevertheless in an overall or practical sense, I do not consider a different result should occur.

Legislative Framework 12 Therefore, it was necessary, in order to properly determine the issue in these proceedings, to consider the legislative background and framework in much greater detail and, in particular, from two particular further perspectives. The first perspective is the historical dimension and, the second, other relevant provisions of the Health Services Act in the light of the whole of that statute, with particular regard being paid to those parts of the statute which deal with: (a) the engagement, and the regulation of the engagement, of visiting medical officers; and (b) those parts of the statute which refer to, or deal with, the powers of the Commission and the operation of the Industrial Relations Act . When it became apparent that the whole of the statutory scheme under the health legislation required consideration the parties were invited to address this aspect in supplementary written submissions which have been considered in the disposition of the appeal.

13 Much of the debate in the proceedings related to the proposition that the Health Services Act, which was enacted in 1997, was a later statute than the Industrial Relations Act, which had been enacted the previous year, and that, because of the chronological or historical circumstances, an important consideration in resolving any apparent inconsistency was the application of approaches to statutory interpretation which depended upon conflict between earlier and later statutes and, more particularly, the question whether a later statute had impliedly repealed an earlier one. I do not consider that method of analysis is particularly useful in the present proceedings particularly when there is regard to the consideration that many of the provisions of the Health Services Act considered in these proceedings were very similar, if not identical, to provisions in the major statute repealed by the Health Services Act; that is, the Public Hospitals Act 1929, the provisions relating to visiting medical officers being inserted into the Public Hospitals Act in 1978 and extended or supplemented in 1988.

Scheme under the Public Hospitals Act 1929 14 Nor do I consider that the solution to the issue posed to the Court in these proceedings is resolved by close reliance on verbal formulas or canons of construction but will more appropriately be reached by consideration of all of the elements of the statutory scheme in their context, having regard to their purpose and to their history. It is thus necessary to turn first to the provisions of the Public Hospitals Act 1929 relating to visiting medical officers (that is, the provisions of the Public Hospitals Act counterpart to those dealt with in the joint judgment from the 1997 statute concerning visiting medical officers and also the provisions in the 1929 statute counterpart to the additional provisions in the 1997 statute which I refer to later in these reasons).

15 Section 33H of the 1929 statute was in substantially similar terms to s 105 of the 1997 statute. Differences are limited to matters of form, clarity or detail. Section 33I of the earlier Act was similar to s 106 of the later one. There are some significant differences however and the terms of s 33I should be noted. They were: 33I. Appeals

(1) Where a person who has been notified under section 33H (3) of the reasons for a decision of a board is dissatisfied with that decision, the person may appeal to the Minister.

(2) Where a person is dissatisfied with: (a) the failure or refusal of a board to make a decision within 30 days of the date of a request from that person to do so concerning re-appointment as a visiting practitioner; or (b) the failure or refusal of a board to notify that person in accordance with section 33H (3) of the reasons for a decision made by it referred to in section 33H (1),

16 Section 33J of the Public Hospitals Act required the appellant to give notice of the appeal to the Minister. The notice was to be given within one month of the date when the appellant was advised of the reasons for the hospital board's decision. The Minister could allow a longer period for the notice to be given.

17 Upon receipt of the notice of appeal, the Minister is required by s 33J(3) to appoint a Committee of Review to determine the appeal. The Committee is constituted in a slightly more complicated way than is the Committee set up under s 108 of the 1997 Act. Section 33K of the 1929 Act provides: 33K. Constitution of Committee

(1) Subject to subsections (2) and (3), a Committee shall consist of: (a) where any reason for the decision of the board appealed against relates to the professional standard or ability of the appellantor where the appeal is made under section 33I (2) (a) or (b): (i) either 3 or 5 persons nominated by the Minister, one of whom shall be nominated by the Minister as the Chairperson; (ii) a person nominated by the board concerned; and (iii) a person nominated by the appellant; or (b) except as provided in paragraph (a): (i) a person, nominated by the Minister who shall be the Chairperson; (ii) a person nominated by the board concerned; and (iii) a person nominated by the appellant.

(2) A person shall not be appointed: (a) in pursuance of a nomination under subsection (1) (a) unless the person is a medical practitioner where the appellant is a medical practitioner or a dentist where the appellant is a dentist; or (b) in pursuance of a nomination under subsection (1) (b) (ii) or (iii) unless the Minister is satisfied that the person nominated is sufficiently experienced in the conduct of hospitals to warrant being appointed.

(3) If the board concerned or the appellant fails to nominate a person for appointment to the Committee within such time as may be notified to it or the appellant by the Minister, the Minister may nominate a person who shall be a medical practitioner, a dentist or a person sufficiently experienced in the conduct of hospitals to warrant being appointed, as the case may be, as if the Minister were the party entitled to make the nomination under subsection (1).

(4) A decision of the Minister as to whether a Committee should be constituted as provided by subsection (1) (a)or (b) shall be final.

18 There were detailed provisions in ss 33L to 33N of the 1929 statute which dealt with rights of representation and the powers of, and procedure before, the Committee. Legal representation is denied except with the consent of all parties and by leave of the Committee. The Committee is given the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner and the decision of the chairperson on any question of law or procedure is taken to be the decision of the Committee. By s 33P an order of a Committee is taken to be the final decision of the hospital board concerned and is required to be given effect accordingly.

19 There were also other extensive provisions in the 1929 statute concerning visiting medical officers. For example, Part 5C, entitled "Visiting Medical Practitioners", contained ss 29K to 29RC. Section 29K was a definitions section and was the only provision in Division 1 of Part 5C. Division 2 concerned arbitration of disputes involving certain service contracts. The Division provided for the appointment of a judge of the Industrial Commission of New South Wales (later the Industrial Relations Commission) to be the arbitrator for the purposes of making the determination under s 29N(1). The trigger for the appointment of the arbitrator was an application received by the Attorney General from either the New South Wales Branch of the Australian Medical Association or the Minister for Health, either jointly, or separately. Section 29M included the following provisions as to such determinations: 29M. Nature of determination

(1) The arbitrator shall, as soon as practicable after appointment under section 29L (1), determine: (a) the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates are applicable, in respect of medical services provided by visiting medical officers under sessional contracts; and (b) the date or dates, not being a date or dates earlier than the date of the determination, on and from which any determination made under paragraph (a) shall have effect.

(1A) The arbitrator shall, as soon as practicable after appointment under section 29L (3), determine: (a) the rates on a fee-for-service basis of remuneration in respect of medical services provided by visiting medical officers under fee-for-service contracts; and (b) the date or dates, not being a date or dates earlier than the date of the determination, on and from which any determination made under paragraph (a) shall have effect.

(2) The arbitrator shall endeavour to bring the persons appearing before the arbitrator to agreement regarding the matters in respect of which the arbitrator is required to make a determination under subsection (1) or (1A).

20 The manner of the exercise of the arbitrator's functions was dealt with in s 29N. Section s 29 O dealt with rights of appearance, administration of oaths and legal representation in proceedings before the arbitrator. Further ancillary provisions relating to the conduct of proceedings and the notification of determinations were dealt with in s 29P and s 29Q. Section 29QA made provision for appeals to the then Industrial Commission in Court Session and later (from 1996) to the Full Bench of the Industrial Relations Commission. Finally, in Division 2, s 29R provided that determinations made under Part 5C were contractually binding.

21 Division 3 of Part 5C was entitled "Service contracts with standardised provisions" and dealt with that subject matter. The Division comprised three sections (ss 29RA to 29RC) which were in the following terms:

29RA. Conditions of appointment of visiting medical officers

(1) After the commencement of this section, a visiting medical officer must not be appointed unless the terms and conditions to which the officer is to be subject are reduced to the form of a written service contract between: (a) the officer; and (b) the relevant area health service, incorporated hospital or separate institution (or its governing body).

(2) An appointment made in contravention of this section is void and of no effect.

(1) The Minister may, by order in writing, approve of sets of conditions recommended by the Association for inclusion in service contracts of a class specified in the order, being contracts entered into on or after the day on which the order takes effect.

(2) An order under this section takes effect on the day the order is made or, if the order so provides, on a later day specified in the order.

(1) A service contract of a class for which there is a standard service contract must not be entered into unless it is an appropriate standard service contract.

(2) A service contract entered into in contravention of this section is void and of no effect.

(3) This section does not apply to honorary contracts.

22 Part 5D was entitled "Visiting Practitioners". In its final form, immediately before the repeal of the 1929 Act, it contained only one section, s 29T which was in the following terms: 29T Effect of contracts of service

(1) Where a provision of this Act (other than Part 5C), or of a regulation or by-law made under this Act before or after the commencement of the Public Hospitals (Visiting Practitioners) Amendment Act 1988, is inconsistent with any of the rights and obligations under an agreement between: (a) an area health service, an incorporated hospital or a separate institution (or its governing body); and (b) a visiting practitioner,

being an agreement relating to the performance of work by the visiting practitioner at the hospital (whether or not the agreement also relates to other matters), the provision shall, to the extent of the inconsistency, have no force or effect in relation to the visiting practitioner.

(2) In this section, a reference to an agreement includes a reference to a service contract within the meaning of Part 5C.

The scheme under the Health Services Act 1997 23 The provisions of Parts 5C and 5D of the 1929 Act had their counterparts in Chapter 8, "Visiting Practitioners" of the 1997 Act. Although there are significant differences as between the terms of the two statutes in this respect, they nevertheless deal with the same subject in substantially the same way: see, for example, by way of comparison, ss 76 to 80, 82 to 83, 86 to 96 and 98 of the later Act and ss 29K, 29RA to 29RC and 29L to 29R of the earlier Act. Sections 76 to 84 of the 1997 statute deal with classifications of visiting medical practitioners and classifications of service contracts; service contracts may be of the different types specified in s 81, which is set out later in these reasons. Section 85 permits medical practitioners in certain circumstances to provide their services through practice companies. Section 86 requires service contracts to be in writing and s 87 empowers the Minister to approve sets of conditions (including remuneration) recommended by the AMA as the basis for standard service contracts. Section 88 requires such standard service contracts, where approved, to be the basis for service contracts entered into of the relevant class. Section 89 to 98 concern arbitrations of service contracts.

24 These provisions are to be seen as the broader context of the provisions in Part 4 of Chapter 8 of the Health Services Act. So considered, the legislature has provided a comprehensive scheme for the regulation of the contracts for, and the engagement of, visiting medical practitioners. The scheme deals in detail not only with the non-renewal of such contracts (the subject of these proceedings) but also the form, terms, interpretation and enforcement of such contracts. The scheme also permits the promulgation of forms of standard service contracts approved by the Minister. Those matters, of themselves, render unlikely that the powers provided to the Commission by s 106 of the Industrial Relations Act were intended also to apply so to provide, at least in substance, an alternative form of regulation of such contracts. The fact that, within the statutory scheme under the Health Services Act, the Commission, or particular members of it, are given particular powers (under, for example, ss 90, 96 and 97) in my view confirms, rather than denies, that conclusion. The legislature seems to have proceeded on the basis that where the Commission was to have a particular role or function in the scheme concerning visiting practitioners it was appropriate, and perhaps necessary, for that to find particular expression in the statute. The legislature in fact appears to have taken that approach generally in the 1997 statute; for example, as subsequently noted, in the field of employee rights in the unfair dismissal area. It is most unlikely, in those circumstances, that the legislature would have intended the broad range of powers available under s 106 of the Industrial Relations Act would also be available to complement, supplement and even to contradict provisions of the Health Services Act without any specific reference in the latter statute to that intention.

25 Reference will now be made to other provisions of the Health Services Act which expressly refer to either the Commission or to the scope for interaction between provisions of that statute and those of the Industrial Relations Act. In my opinion these provisions confirm that the legislature, in enacting the statute in 1997, chose to specify the way in which the scheme under the 1997 statute was to interact with the industrial legislation enacted the year before. In so doing, the legislature plainly demonstrated that the way in which the interaction was to be determined was by regard to the express references in the 1997 statute thus leaving little scope for provisions of the Industrial Relations Act to operate in the public health sphere where the legislature had chosen to remain silent.

26 There are a number of very specific or particular provisions in the later statute. Sections 81 and 97 of the 1997 statute are illustrative and s 81 is itself illustrative of the range of provisions as to contracts for visiting practitioners. Sections 81 and 97 respectively provide: 81 What are the kinds of service contracts?

The kinds of service contracts include (but are not limited to) the following: (a) fee-for-service contracts, (b) sessional contracts, (c) honorary contracts.

(1) The Minister or the Association may apply to the Industrial Relations Commission in Court Session for a declaration of right under section 154 of the Industrial Relations Act 1996 in respect of the interpretation, application or operation of a determination made under this Part.

(2) Subject to subsection (1), the Industrial Relations Act 1996 applies to any such application in the same way as it applies to an application for a declaration of right in relation to any other matter in which the Industrial Relations Commission (however constituted) has jurisdiction.

27 Section 97 is of particular importance in that it not only grants the important power to the Commission in Court Session as to "the interpretation, application or operation" of determinations made by an arbitrator appointed under Part 1 of Chapter 8, it also demonstrates a greater recognition on the face of the statute of the role of the Industrial Relations Commission and the operation of the general industrial relations legislation in the form of the, by then, current Industrial Relations Act 1996 than appeared on the face of the 1929 statute.

28 Other provisions of a similar nature are found elsewhere in the Health Services Act. Chapter 9 is entitled "The NSW Health Service". The first section in that Chapter is s 115. It provides extensive powers to the Health Administration Corporation to determine conditions of employment of the employees of the NSW Health Services. It is similar to s 40BA of the 1929 statute. Section 115(2) and (3) provide: (2) Conditions of employment. Except in so far as provision is otherwise made by law, the conditions of employment (including salaries, wages or remuneration) of the employees in the NSW Health Service are to be as may be determined from time to time by the Health Administration Corporation. (3) Corporation is taken to be employer for certain purposes. The Health Administration Corporation: (a) is, for the purpose of making any determination under subsection (2), taken to be the employer of the employees in the NSW Health Service, and (b) is, for the purpose of entering into an enterprise agreement relating to the enterprise carried on by a public health organisation, taken to be the employer of the employees of the organisation concerned, and (c) is, for the purpose of any proceedings before a competent tribunal having power to deal with industrial matters, taken to be the employer of the employees in the NSW Health Service. 29 The next section in Chapter 9 is s 116 which deals with the transfer of employees of the New South Wales Health Service. The provision provides certain circumstances where an employee might be dismissed for failure to accept a transfer within the New South Wales Health Service. Section 116(4) gives such dismissals certain legal effect and s 116(5) makes plain that nothing in s 115 affects the unfair dismissal jurisdiction of the Industrial Relations Commission. Those provisions are in these terms: (4) Effect of dismissal for failure to accept transfer. If an employee's employment is terminated under subsection (2): (a) the termination of that employment is to be taken for all purposes not to have been on the ground of redundancy, and (b) no compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employee's employment. (5) Operation of Industrial Relations Act 1996. Nothing in this section affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 in relation to any termination of employment if: (a) the termination is based on a certificate given by the Health Administration Corporation under subsection (2) that the employee concerned has no valid reason for refusing a transfer and there are no reasonable grounds for it to so certify, or (b) the termination is not in accordance with any other requirement of this section.

30 Part 2 of Chapter 9 is entitled "Criminal and disciplinary matters concerning employees in NSW Health Service". This Part comprises ss 117 to 121 which provide a comprehensive scheme on those subject matters including provisions for the dismissal of employees. Sections 120 and 121(2) are in these terms: 120 No compensation for termination of employment No compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employment of an employee under this Part.

(2) Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that an employee may have in relation to the termination of the employee's employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to section 119 of this Act. Note: Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables certain employees specified in section 83 of that Act to make an application to the Industrial Relations Commission in respect of a claim that his or her dismissal or threatened dismissal from employment has been or will be harsh, unreasonable or unjust. Section 121(2) again shows the legislature had regard to the role and powers of the Commission and considered it necessary to specify the way in which, and the extent to which, the powers under the Industrial Relations Act were to continue to operate in the public health sphere.

Conclusion on interaction of statutes 31 The analysis undertaken of the relevant provisions of the Health Services Act, seen in the light of their history in the Public Hospitals Act 1929, and of s 106 of the Industrial Relations Act, leads to the conclusion that the legislature in enacting the Health Services Act did not intend to provide the rights or remedies under s 106 of the Industrial Relations Act to a visiting medical officer, such as the appellant, as a means of challenge to the non-renewal of his appointment or contract. I consider this conclusion follows notwithstanding the different nature and extent of the inquiries to be undertaken with respect to the provisions under the different statutes and notwithstanding that the power given to this Court under s 106 to make orders is different to, and distinct from, the powers contained in the provisions of the Health Services Act. As earlier observed, this conclusion shows that the approach in Goodwin v Phillips applies to the interaction of legislative schemes under consideration. Similarly, the expressions set out in para [5] above, derived from Shergold v Tanner, also apply; that is, there is direct conflict between the statutes, properly considered; they are so plainly contradictory in operation that they cannot be reconciled and the two pieces of legislation cannot relevantly "stand or live together".

Obligation on Court as to statutory construction 32 Finally, some observations might appropriately be made as to the adoption of a different approach to the matter; that is, somewhat different to that adopted by the parties at first instance and on appeal. It is plain that the Court is obliged to reach its own conclusion as to what it considers is the correct interpretation of the relevant statutory schemes and their interaction. Pearce and Geddes in Statutory Interpretation in Australia, 5th Edition, 2001 at pp 4 - 5 observe: [1.5] McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212: 'Judges are more than mere selectors between rival views - they are entitled to and do think for themselves'. The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was adopted in Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 at 126. That passage, or the observations there cited of Lord Wilberforce or those of McGarvie J, has been followed in a number of recent decisions of New South Wales courts. The observations, for example, have been cited frequently in judgments of the Land and Environment Court. In addition to the judgment of Bignold J in Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 cited in Pearce and Geddes, other judgments of that court include Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81 ( Bignold J) and Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90 ( Lloyd J). A similar approach was taken recently by Bell J in the Supreme Court in Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552. See also the observations of Gleeson CJ and Kirby J, albeit in dissent, in the recent judgment of the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806, respectively at [7] and [51], where their Honours said: [7] First, there is nothing unusual about a trial court, or an appellate court, adopting a view of the facts, or of the law (including the construction of a written instrument), different from the views for which the parties to litigation respectively contend. In the present case, each party contended for a particular meaning to be given to the Award. The Full Court of the Federal Court was not bound to adopt either of those meanings. It was entitled to reach its own conclusion as to what the Award meant, subject to the requirements of procedural fairness.

[51] The fact that neither of the parties supported the Full Court's reasoning or conclusion is not a ground why this Court, giving effect to the requirements of the law, should not do so: Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527 at 559 - 560. This Court, like the Federal Court, is a court of law. It is not an arbitrator obliged to devise the best possible solution within parameters fixed by the parties. It does not exist merely to reach a conclusion wanted by one side of the contest [cf joint reasons of McHugh, Gummow, Callinan and Heydon JJ at [41]]. It has a higher duty to the law. Sometimes, by the conduct of proceedings, a party may disentitle itself from claiming the benefits of the law: Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706 at [75], [82]. Such cases apart, it is not for parties, by submissions or concessions, to deflect the Court from giving effect to the law, which has a public, not just private, quality and obligation: Roberts v Bass (2002) 77 ALJR 292 at 320 - 321 [143] - [144] …

Leave to appeal 33 I agree with the joint judgment that the interaction between the two pieces of legislation is a significant issue, as also is the proper approach to the determination of whether the requisite inconsistency applies. Leave to appeal should be granted. However, the appeal should be dismissed.

Orders proposed 34 I accordingly propose that the following orders be made in disposition of the appeal: 1. Application for leave to appeal granted.

3. The parties should have leave to file and serve within 14 days short minutes of any orders sought in respect of the costs of the appeal provided that accompanying the short minutes are submissions in respect of that issue.

35 These appeal proceedings arise from a claim for relief brought under s 106 of the Industrial Relations Act 1996 by the appellant Dr James Gibson, who was the applicant in those proceedings. The respondent, both at first instance and on appeal, is the Western Sydney Area Health Service.

36 In the s 106 proceedings, constituted by an amended summons, the appellant sought an order declaring that the contract or arrangement whereby he performed work at a hospital operated by the respondent was unfair. He also sought a number of consequential orders including an order varying the contract or arrangement so as to include a number of terms, as follows: (a) the respondent would act fairly in determining whether to offer the applicant a further appointment at the expiration of his appointment; (b) the respondent would provide the applicant with all appropriate and necessary information to enable the applicant to seek a further appointment at the expiration of his appointment; (c) the respondent would afford the applicant a reasonable opportunity to address any selection criteria against which the respondent would determine whether or not to offer the applicant a further appointment; (d) the respondent would afford the applicant an opportunity to make submissions in respect of the respondent's decision not to offer the applicant a further appointment, such opportunity being afforded prior to the expiration of the applicant's appointment; (e) the respondent would reasonably and fairly consider any such submissions made by the applicant; (f) the respondent would provide the applicant with a reasonable opportunity to apply for any alternative positions, including honorary positions, prior to the expiration of the applicant's appointment; and (g) the respondent would act fairly in determining whether or not it would act to offer the applicant any such alternative positions.

37 The appellant also sought an order varying the contract or arrangement "so as to include terms that the respondent would carry out the decision-making process concerning the offer for a further appointment in sufficient time so as to enable any appeal by the applicant of the respondent's decision not to offer a further appointment to be heard and determined." Consequential orders were sought seeking the payment of compensation and costs.

38 The grounds relied on in the amended summons included that the applicant was a Visiting Medical Practitioner at Westmead Hospital and that he was given notice by the respondent by letter dated 18 August 1999 that it did not intend to renew his appointment to that hospital. The appointment expired on 30 November 1999. Prior to the expiration of his appointment the appellant lodged an appeal against the decision not to reappoint him, which appeal was said to be brought pursuant to ss 106 and 107 of the Health Services Act 1997. (It was common ground that the appellant had not pursued this avenue of appeal). The grounds contained in the amended summons also traversed a number of matters including the fact that the respondent had sought applications from specialist medical practitioners for appointment to a total of nine positions at the hospital.

39 The appellant alleged that he obtained an information kit from the respondent which did not contain the job specification for the particular position in which he was interested, that he lodged an application in writing for that position, was interviewed and was advised at the interview that there was a requirement of special expertise as an essential qualification. The position was offered to another doctor. The appellant contended that in August 1999 he had sought to be engaged in any alternative position, but that the respondent failed to properly or fairly consider his application and declined to offer any alternative position instead offering at or about the same time an honorary position to another doctor who had not made a formal application for the position. At or about the same time the respondent was alleged to have granted an appointment to another doctor who was retired at the time of the appointment and who had not practised under the appointment since it was made. There then followed various allegations concerning the contract or arrangement in justification of the assertion that there was relevant unfairness for the purpose of s 106 of the Act.

40 Sections 105 and 106 of the Industrial Relations Act are in the following terms: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument.

106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

41 It is also necessary to make reference to provisions of Pt 4 of Ch 8 of the Health Services Act. Part 4 of this statute contains ss 105 and 106 which provide: 105 Public health organisation to notify visiting practitioners of certain decisions

(1) If a public health organisation: (a) reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or (b) does not re-appoint a person as a visiting practitioner, or (c) suspends or terminates the appointment of a person as a visiting practitioner,

it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision.

(2) In this Part, clinical privileges means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals.

(1) A person who is dissatisfied with a decision of a public health organisation referred to in section 105 (1) concerning the person may appeal to the Minister against that decision.

(2) However, a person cannot appeal to the Minister in relation to any of the following decisions: (a) a decision by a public health organisation not to re-appoint the person as a visiting practitioner if the organisation has ceased to offer appointments of the kind to which the person seeks re-appointment, (b) a decision by a public health organisation reducing the clinical privileges of a person if the decision is based on grounds other than the lack of professional competence of the person, (c) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if: (i) the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a minor, and (ii) the offence committed involves sexual activity or acts of indecency with, or in relation to the minor, (d) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a patient or client of the practitioner that is committed during the course of his or her practice as a medical practitioner or dentist (whether as a visiting practitioner or otherwise).

(3) For the purposes of this section, a failure of a public health organisation to re-appoint a person as a visiting practitioner on or before his or her appointment expires is taken to be a decision not to re-appoint the person.

42 Section 107 of the Health Services Act requires the appellant to give notice to the Minister of the grounds of appeal. That notice must be given within one month of the date on which the public health organisation notified the appellant of the reasons for its decision or the date on which the appointment of the visiting medical practitioner expires. There is provision for the Minister to allow a longer period of notice to be given.

43 Upon receipt of a notice of appeal under s 107 the Minister is required to appoint a Committee of Review to determine the appeal under s 108. That is to be constituted by a legal practitioner of at least seven years standing who is to be the Chairperson of the Committee, relevantly for current purposes a person nominated by the Australian Medical Association (NSW) Ltd who must be a medical practitioner and, at the discretion of the Minister, one other person in certain circumstances which for present purposes are not relevant. There are detailed provisions in sections 109 to 111 which deal with rights of representation and the powers of and procedure before a committee. Legal representation is denied except with the consent of all parties and by leave of the committee. The committee is given the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner and the decision of the chairperson on any question of law or procedure is taken to be the decision of the committee. By s 113 an order of a committee is taken to be the final decision of the public health organisation concerned and is required to be given effect to accordingly.

44 In connection with the determination of an appeal the committee is given, by s 112, the right to specify a prior appointment which is to be made available to a successful applicant and upon including that specification within an order the appointment of any visiting practitioner specified in the order along with any related service contract is terminated and no compensation is payable to that person as a consequence of the termination (s 113(2)).

45 On 13 July 2000, the respondent filed a notice of motion seeking, inter alia, "a declaration under s 154 of the Industrial Relations Act 1996 … that, upon the proper construction of Pt 4 of Ch 8 of the Health Services Act 1997 and s 106 of the Industrial Relations Act, the Commission has no jurisdiction to hear and determine any of the claims that the applicant has made in these proceedings."

46 The hearing of that notice of motion was the subject of an interlocutory judgment (Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126) from which an appeal was brought to a Full Bench of this Court: Western Sydney Area Health Service v Gibson (2001) 109 IR 359. Consequent upon the determination of that appeal, Boland J embarked upon a hearing of the substantial relief sought by way of the notice of motion namely the declaration under s 154 of the Act. By judgment delivered on 24 July 2002, Boland J concluded that there was no jurisdiction in the Court to hear and determine the claim brought by the applicant and granted declaratory relief to that effect. Subsequently an application was made to his Honour to reopen the matter so that the appellant could make submissions concerning the recent judgment of the High Court in Shergold v Tanner (2002) 209 CLR 126. After hearing submissions from the parties Boland J, in an interlocutory judgment delivered on 4 September 2002, declined to reopen the proceedings.

47 The appellant seeks leave to appeal and, subject to leave being granted, appeals the judgment of Boland J of 24 July 2002. It is not necessary that we deal with the judgment of 4 September 2002. In seeking the declaration the respondent submitted that the general provisions of s 106 of the Act in their application to the particular circumstances of these proceedings were inconsistent with the operation of the provisions of Pt 4 of Ch 8 of the Health Services Act and it might thereby be implied that it was the intention of the legislature in enacting Pt 4 of Ch 8 of the Health Services Act to exclude the operation of s 106 of the Act. The resultant effect would preclude a person in the circumstances of the applicant from recourse to s 106 of the Industrial Relations Act and would confine the person to utilising the appeal provisions contained in the Health Services Act.

48 Boland J dealt comprehensively in the judgment, the subject of this appeal, with the nature and basis of the proceedings brought under s 106 of the Industrial Relations Act and with the relevant provisions of the Health Services Act. In determining to grant the relief sought his Honour said, in part: [24] It does not seem to me that the Legislature would have gone to the trouble of including in the Health Services Act a comprehensive system of review to be undertaken by a specialist Committee with the powers, authorities, protections and immunities of a Royal Commission and with very wide powers to effect speedy relief, if its intention was to allow parallel access to s 106 of the Industrial Relations Act . To accept that was the Parliament's intention could lead to the incongruous situation of a visiting practitioner pursuing his or her appeal rights under Pt 4 of Ch 8 of the Health Services Act by claiming unfairness in terms similar to those set out in the applicant's amended summons for relief and seeking compensation. Having failed in that appeal (if that were the outcome) it would then be open to the practitioner to mount essentially the same case again under s 106 of the Industrial Relations Act thereby nullifying the whole appeal process under the Health Services Act .

49 His Honour also said: [29] Whilst there are obvious differences in the subject matter and purposes of the relevant provisions of the two statutes, there are also similarities. For example, as I alluded to earlier, if the Committee were to decide to "pay compensation for failure to re-appoint a visiting practitioner" it is possible, indeed likely, that it would be done on the basis of some finding of unfairness, either arising out of the contract or arrangement applying to the practitioner or on the basis of the public health organisation's conduct. Having established a specialist review body under Pt 4 of Ch 8 of the Health Services Act , it is implausible to believe that it was Parliament's intention to provide an alternative or additional forum under s 106 of the Industrial Relations Act that had the potential to produce the same outcome, based on the same grounds, as that which might be arrived at by the specialist review body.

50 His Honour then considered the decision of the High Court of Australia in Northwest County Council v Dunn (1970) 126 CLR 247 and after reviewing several of the judgments of the members of the Court concluded that the circumstances in that case had "a conceptual similarity to the case before me and I consider I should follow Dunn."

Application of principles dealing with implied repeal of earlier statutes by later statutes.

51 The most recent consideration in the High Court of the issue of statutory construction relevant to this appeal is the joint judgment of Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ in Shergold v Tanner where the Court said: [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 (cf Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134). An example is Sched 1 of the [Administrative Decisions (Judicial Review)] Act, to which reference has been made. That proposition reflects the general principles respecting implied repeal to which Gaudron J referred in Saraswati v The Queen (1991) 172 CLR. Her Honour said (1991) 172 CLR 1 at 17: "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, 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 (1961) 106 CLR 268 at 280. In the same case, Fullagar J spoke of "contrariety" (1961) 106 CLR 268 at 275. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 375 [67]; 152 ALR 540 at 564 - 565, Taylor J of "direct conflict" (1961) 106 CLR 268 at 285, and Windeyer J asked whether the two statutes were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled (1961) 106 CLR 268 at 290. Later, in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 34, Gibbs J used the expression "could stand together".

52 The Court thus accepted the submissions of the respondent that certain provisions of the Freedom of Information Act 1982 (Cth) did "not work any implied repeal of the jurisdiction of the Federal Court by another statute, the [Administrative Decisions (Judicial Review) Act]".

53 The provisions of the Freedom of Information Act considered in Shergold v Tanner related to the issue of a certificate which gave conclusive effect to certain decisions under that statute. The Court added: [40] That does not deny the anterior question of law, namely whether the decision to issue the certificate will withstand judicial review under the ADJR Act. It may be that various of the grounds specified in s 5 of that statute can have but limited or no operation with respect to applications such as the present brought under the ADJR Act. For example, the range of relevant considerations may be very wide and the range of irrelevant considerations very narrow. The content of a requirement to provide natural justice to the person aggrieved by the decision may be very limited. However, such questions are for determination by the Federal Court when dealing with the applications for review.

54 We do not consider there is any basis to distinguish the principles or approach in Shergold v Tanner in the present case, although that case was dealing with Commonwealth legislation. The present appeal, as did that case, deals with issues of statutory construction involving statutes said to be inconsistent and the situation where it is said that the later statute has withdrawn jurisdiction from a superior court, albeit a statutory court. Here too, it would be unlikely that the legislature would have intended to do that without the use of clear words. This is particularly so where the restriction or withdrawal of jurisdiction is in favour of an administrative tribunal dealing with substantially different issues on the basis of different legal criteria. Such considerations which are discussed in Shergold v Tanner at paras [37] to [39], confirm the improbability of Parliament acting in the way contended for by the respondent.

55 Despite its more recent formulations, the applicable principle has been recognised by the courts for many years. Some of the earlier decisions are collected and referred to in the judgment of Yeldham J in the Supreme Court of NSW in Re Applications of Shephard [1983] 1 NSWLR 96. In that case the Court was required to determine whether there was inconsistency between s 3(1)(e) of the Disorderly Houses Act 1968 and the provisions of the Prostitution Act 1979. His Honour concluded that some provisions of the earlier legislation remained in force and retained a scope of operation and accordingly were not the subject of implied repeal.

56 Although the principle is capable of being stated in simple and straightforward terms, its application at times presents some difficulty. An example is provided by the decision of the Court of Appeal of the Supreme Court of Victoria in Horvath v Commonwealth Bank of Australia (1998) VSCA 51. Section 49 of the Victorian Supreme Court Act 1986 provided, inter alia, that a contract entered into by a minor for the repayment of money lent or to be lent was void. The question for determination by the court was whether there was inconsistency between that provision and a provision of the earlier Transfer of Land Act 1958 which provided that the title of a registered mortgagee was indefeasible in circumstances where a minor had mortgaged land. The three members of the court concluded that both pieces of legislation could stand together, so that the mortgagee bank was entitled to enforce the mortgage. In these circumstances, there was no question of the later provision being so inconsistent with the earlier provision that the earlier provision could not stand. An example of what is considered the appropriate approach to an issue of this kind is to be found in the judgment of Ormiston JA, who said: [34] The answer to the question posed, as I would understand it, flows from a correct characterisation of the two statutes as consistent or inconsistent one with the other. There is a strong presumption that Parliament does not intend to contradict itself but rather intends both relevant acts to operate within their given spheres: Butler v. Attorney-General (Victoria) at 276 and 290. No earlier statutory provision is to be treated as repealed or derogated from by a later enactment unless an intention to do so must necessarily be implied, and ordinarily there must be a very strong basis supporting any such implication, for the Parliament is generally presumed to intend both provisions to operate without there being any such implicit repeal or derogation: cf. Saraswati v. The Queen (1991) 172 C.L.R. 1 at 17. Here, although there can be no doubt that, if not registered, the mortgage would have been unenforceable by the respondent because it was void by reason of the relief provision, that provision says nothing as to the effect of registration or the operation of any of the indefeasibility provisions of the Transfer of Land Act . It is directed to the enforceability of certain contracts. The respondent bank has conceded that it cannot enforce the loan agreement against the appellant. Nevertheless the better view seems to be that the word "void" was never intended to mean that the contract in question was totally ineffective: cf. Pearce v. Brain [1929] 2 K.B. 310 and Woolf v. Associated Finance Pty. Ltd. [1956] V.L.R. 51 and see Greig and Davis, Law of Contract pp.779-780. Whether or not a different construction of the word "void" may have had other consequences (and the forgery cases suggest otherwise), the fact is in this case that the mortgage was registered in the conventional way under the Act. Whatever may have been the position before such registration, the legislature must be treated, subject to the presently irrelevant exceptions as to fraud and the like, as having given an immediately indefeasible title in the land to the respondent bank as mortgagee unless the relief provision should prevail as being relevantly inconsistent.

[35] In my opinion the relief provision is not inconsistent in that sense. The Act deals relevantly with the effect and consequences of registration of any document lodged purporting to deal with the title to land under the Act. The relief provision deals with the binding nature of certain agreements reached with minors. Neither deals directly with the subject matter in law of the other. They can be both left to operate within their respective spheres, unless it can be said that the latter plainly intended to repeal by implication the Act's provisions as to indefeasibility to the extent necessary to give effect to the "avoidance" of contracts with minors pursuant to that provision. If properly an attempt is to be made to read the two statutes together, then the later relief provision may be seen as confined to controlling in the relevant manner the contractual rights of the parties and the indefeasibility provisions of the earlier Act may likewise be confined to the consequences of registration of instruments under the Act. Subject to one line of authority relating to leases, there is no difficulty in identifying the broad spheres of effect of each set of provisions, which ought to be seen as mutually exclusive or at least as capable of having effect without any necessary repugnancy or contradiction.

57 The question was dealt with in a similar way by Philips JA, who said:

[73] The question is whether there is such conflict between the provision made by s.49 of the Supreme Court Act in relation to the mortgage given by the appellant and the provision made in that regard by s.42 of the Transfer of Land Act that the Parliament can only have intended that one should operate to the exclusion of the other. Yet why should that be so? A statutory provision that an infant's contract to repay money is void may perhaps result in the mortgage given by the infant also being void; but if so (and I stress the condition), it is but the consequence of the contract's being void and not because s.49 so provides expressly. There is no conflict in terms between s.49 and s.42. Moreover, it is well established by authority that a void instrument may be effective upon registration to confer title to land. Accordingly if that is the product of ss.49 and 42 acting in combination, it cannot be said to be token irreconcilable inconsistency such that one section must yield to the other.

58 Similarly, the Full Bench of the Industrial Relations Court of Australia in Maggs v Comptroller General of Customs (1995) 58 IR 40 found there was no inconsistency between particular provisions of the Public Service Act 1922 (Cth) and certain provisions of the Industrial Relations Act 1998 (Cth) which conferred a right of action in the event of unlawful termination of employment. The court held there that the public service legislation created a procedure to deal with processes where an employee was accused of a breach of his or her employment duties and that those processes operated prior to termination. This obviated the need to determine whether there was any implied inconsistency and repeal. In determining the matter the Court had regard to the totality of the relevant parts of the legislation.

59 We now turn to the judgment of the High Court of Australia in Northwest County Council v Dunn (1970) 126 CLR 247, upon which the respondent relied heavily and which was applied in its favour by Boland J. The principal judgment in Dunn was given by Walsh J whose judgment was concurred in by Owen and Gibbs JJ. The proceedings arose in respect of action taken by Northwest County Council to dismiss an employee from employment. The action was taken pursuant to the provisions of s 99 of the then Local Government Act 1919. The statute provided that where a council proposed to terminate the employment of employees who had at least one year of continuous service, a council was required either to order an inquiry provided for under s 99 or suspend the employee. If the employee's employment was suspended the council was required to state its reasons for doing so and the employee could apply to the council for an inquiry. If the employee did not apply for an inquiry the council could then deal with the matter as it thought fit, including by a decision to terminate the services of the employee.

60 An inquiry was to be conducted by a person appointed by the Governor who was required to make a written report which had to be read in an open meeting of the council. The council could not make a final determination until this had occurred. The person holding the inquiry was able to award costs and expenses against either the council or the employee and could also determine whether the employee should be paid salary for the period of any suspension. Section 99 (11A) of the Local Government Act was significant in the determination of the proceedings. That sub-section provided that, where the council determined to terminate the services of an employee notwithstanding that the report of the person holding the inquiry was substantially favourable to the employee, the employee could make application to the Minister within 14 days of the termination of employment and the Minister was empowered, after making inquiries, to direct the council to pay the employee compensation from the date of termination of an amount not exceeding the equivalent of four weeks salary or wages for each year of service.

61 In the circumstances which led to those proceedings, the County Council had suspended the employee with a view to terminating employment. Instead of seeking an inquiry, the employee by his union notified a dispute under the s 25 of the then Industrial Arbitration Act 1940 purportedly concerning the suspension of the employee but when the matter came before a conciliation commissioner it was made clear that the union was seeking his reinstatement in employment. There was no dispute that the industrial tribunal had the power generally to order reinstatement and the proceedings before the High Court were dealt with on that basis.

62 The question dealt with by the High Court, as formulated by Walsh J, was: [W]hether the provisions of the Industrial Arbitration Act under which a reinstatement order may be made should be held to be inapplicable, insofar as they would, if applicable, authorise an order for the reinstatement of a servant of a council for whom s 99 applies and whose services had been terminated after the steps specified therein had been taken.

63 His Honour observed that, although the provisions of s 99 and their interaction with provisions of the Industrial Arbitration Act might arise in a number of ways, the court was only concerned with the narrower question as to the power to order reinstatement; and added, at 257, that the provisions of s 99 "as a whole need to be considered in resolving questions raised by the proceedings in which this appeal is being brought".

64 In considering the matter his Honour took into account a number of matters: 1. In exercising jurisdiction under the Industrial Arbitration Act , the tribunal was required to consider whether the employer had exercised the right of termination "so harshly or oppressively against the employee as to amount to an abuse of that right." The investigation needed to be undertaken by the tribunal "does not differ very greatly from that which needs to be made in an inquiry conducted under s 99." (263). His Honour concluded: "… the two investigations seemed to have enough in common to raise serious doubts whether it was intended by the legislature that both may be pursued in relation to the same employee" (264). 2. "[E]ven if (s 99) does not displace all other rights and remedies arising out of the contract of employment and its termination, it may indicate sufficiently an intention that employees to whom it applies may have their services terminated effectively and finally in accordance with its provisions and an intention that its provisions are not to be rendered ineffectual by the making of a reinstatement order" (265). 3. The fact that proceedings under the Industrial Arbitration Act were taken by a union rather than being commenced personally by an individual employee did not affect these propositions. It was necessary to look at the effect of what was sought in proceedings under the Industrial Arbitration Act which was directed to the reinstatement of the particular employee. That is the same question as is dealt with in s 99 of the Local Government Act . 4. "[W]hat s 99 is careful to preserve is the right of the council, after having the benefit of the inquiry and a report, to make for itself the ultimate decision whether to terminate the employment or not. But if the provisions of the Industrial Arbitration Act apply, that right may be destroyed … the intention is indicated that the power of a council to dismiss its servants is to be restricted in relation to the servants to whom s 99 applies to the extent therein specified and only to that extent. It was not intended that in relation to such servants its power of dismissal might be frustrated completely and that the council should be compelled to employ and pay a servant whose employment it has decided to terminate" (267).

65 Accordingly, his Honour held that the "special provisions" created by s 99 of the Local Government Act were intended by the legislature to have effect to the exclusion of the more general provisions of the Industrial Arbitration Act.

66 Barwick CJ in reaching the same conclusion emphasised, at p 252, what his Honour regarded as the most telling feature of the Local Government Act that is, that the legislature had: ... provided a means of examination of the propriety of the dismissal of the employee and the compensation of the dismissed employee, has left for decision whether or not to terminate the employee's services with the council even in circumstances where an inquiry under s 99 may have produced a recommendation that the employee be not dismissed. After a good deal of reflection I find it impossible to conclude that the legislature in so enacting intended that the power of an arbitral tribunal to order the reinstatement of an employee to whom s 99 applies should coexist with the Local Government Act . Menzies J came to a similar conclusion.

67 The decision in Dunn thus turned on the direct inconsistency between the power of a council to terminate employment (even if a statutory inquiry may have reported in favour of the employee) and the right of reinstatement which might arise from the order of an industrial tribunal under the Industrial Arbitration Act.

68 It then becomes necessary to deal with the nature and extent of any inconsistency between the respective provisions relevant to the present matter. Reference has already been made to the relevant provisions of the Health Services Act. It should first be noted that the provisions apply to three situations only. First, action by a public health organisation to reduce previously granted clinical privileges of a visiting practitioner; second, the failure to reappoint a person as a visiting practitioner and finally, the suspension or termination of the appointment of such a practitioner. The provisions create a right of appeal, but that right is limited and does not apply to the circumstances set out in s 106(2) of the Health Services Act. We have previously set out the provisions of s 106 of the Health Services Act (see par 7 above). It will be seen that for example there is no appeal created where a decision not to reappoint is made if the organisation has ceased to offer appointments of that kind. However, such circumstances might arguably create relevant unfairness for the purpose of s 106 of the Act if, for example, representations had been made by the organisation to the person affected at the time of initial appointment. By subs (2)(b) there is no appeal against a reduction of clinical privileges where the basis is other than lack of professional competence. Again, representations or other circumstances might arguable render such a situation unfair for the purpose of s 106 of the Act. In addition, any notice under s 107(1) must be given within one month of notification of any adverse decision (subject to the discretion of the Minister to extend the time).

69 The number of persons constituting the committee of review under the Health Services Act will either be two or three, at the discretion of the Minister, and any member other than the legal practitioner is required to be "sufficiently experienced in the administration of health services within the public health system to warrant being appointed". The committee is entitled to conduct its proceedings in private and may veto any representation by a practising legal practitioner. The committee is given all of the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923, particularly in connection with the compulsion of witnesses to attend and to give evidence. There is no provision requiring the application of the rules of evidence in the conduct of the proceedings. No guidance is given to the committee as to the basis for exercising its powers although it is required to make orders with respect to the matter being appealed "as the committee considers proper." It is clear, however, that the rules of procedural fairness or natural justice apply.

70 One final observation should be made with respect to the provisions of Part 4 of the Health Services Act. By s 113(1)(b), an order of the committee "is taken to be the final decision of the public health organisation concerned and must be given effect to accordingly." On one view it might be argued that consequent upon the exercise of the appeal to the Minister, the determination of the committee becomes the final decision of the public health organisation in the sense that it is substituted for any prior decision taken by that organisation to the extent that the decision of the committee is at variance with any such prior decision. However, the words "decision of the public health organisation" appearing in the sub-section do not purport to make the decision of the committee "final" in the sense that the committee's decision is precluded from review by a Court.

71 It is now necessary to examine the provisions of s 106 of the Industrial Relations Act for the purpose of determining whether the legislature in enacting Pt 4 of Ch 8 of the Health Services Act may be taken to have intended to exclude the applications of s 106 of the Act. It is not necessary to consider this area in great detail because the provisions and operation of s 106 have recently been examined comprehensively by a Full Bench of this Court in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1.

72 Section 106 of the Industrial Relations Act is not confined to the specific circumstances of the kind referred to in s 105 of the Health Services Act. Jurisdiction to determine matters under s 106 of the Industrial Relations Act is vested in this Court, a superior court of record, which is required to apply the laws of evidence. There is a fundamental right to representation by a practising legal practitioner. It is a fundamental precondition to the exercise of jurisdiction that the Court is able to find that there is relevant unfairness, in the sense that the "contract" is an "unfair contract" (both expressions being defined in s 105). The Court may, upon making the requisite finding of unfairness, declare the impugned contract or arrangement to be void or vary it and may make consequential orders for the payment of just compensation. In considering whether a contract or arrangement was or became relevantly unfair whether by reason of its terms or by reason of any omission in its terms or by reason of unfair conduct, the Court is entitled under s 106(2) of the Industrial Relations Act to have regard to relevant steps taken or omitted by an employer or other party, including those of a procedural nature. The jurisdiction of the Court is not constrained by the exclusion of any of the matters excluded from the right of appeal to the Minister by reason of s 106(2) of the Health Services Act. Relevantly, also, the entitlement to commence proceedings under s 106 of the Act may be, since amendments made to the Act in 2002, exercised within 12 months of the termination of the contract or arrangement.

73 It is important to emphasise for the purpose of the determination of these proceedings that s 106 "is concerned with alleged unfairness or harshness or unconscionability of individual contracts of employment. The focus of attention is the contractual relationship between a particular employer and employee." (per Gleeson CJ (as his Honour then was) in the NSW Court of Appeal in Incitec Ltd v Industrial Court of New South Wales (1992) 45 IR 155 at 157, Kirby P and Priestley JA agreeing in his Honour's judgment).

74 Having regard to the matters which have been considered above, it is now necessary to address the question whether it may be said that the legislature has intended that the appellant in these proceedings as to an application brought under s 106 of the Industrial Relations Act, may be precluded from maintaining them by reason of the provisions of Pt 4 of Ch 8 of the Health Services Act. The submissions in support of this contention made by Mr West QC who appeared for the respondent focussed on the fact that none of the exclusions referred to in s 106(2) of the Health Services Act applied to the circumstances of the applicant and the relevant provisions should be considered in this light. That is, the test as to whether or not the intention of the legislature may relevantly be discerned in the manner contended for by the respondent involved an examination of the legislation on what might be referred to as its application in the particular circumstances of the matter. Thus, the question to be addressed was said to be whether in enacting s 106 of the Health Services Act the legislature evinced an intention that the provisions of s 106 of the Industrial Relations Act would not apply in the context of appeals which would otherwise come within s 106 of the Health Services Act other than those circumstances excluded by s 106(2) of the Health Services Act.

75 It might be thought that there is some support for the respondent's approach in the judgment of Griffith CJ in the High Court in Goodwin v Phillips (1908) 7 CLR 1. In discussing the principle that a law may be repealed by subsequent legislation by necessary implication his Honour (at p 7) said: [W]here the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act. However the comments made by his Honour refer to the particular "subject matter" of an earlier Act as being "wholly inconsistent" or "not wholly inconsistent" with the provisions of subsequent legislation. The importance of these phrases to that case may be judged from the particular facts which formed the basis of the proceedings. There was held to be an inconsistency between legislation which permitted the lessee of certain land to cut timber and use it for the purpose of fencing and other improvements and earlier legislation which created an offence for a lessee of premises to ring-bark timber without permission of a local Land Board.

76 The subject matter of each of the statutes being considered in these proceedings is substantially different. We have previously described the provisions and operation of s 106 of the Act which is directed to alleged unfairness (as defined) of individual contracts of employment including in appropriate circumstances the conduct of the parties associated with the operation and performance of contracts of employment. Section 106 of the Act contains powers of avoidance and variation. The section applies potentially to a range of factual circumstances far wider than those which might come to be considered under Pt 4 of Ch 8 of the Health Services Act. The factual circumstances which might be considered relevant for the purposes of proceedings brought under s 106 of the Act include pre-contractual representations, the course of conduct during the subsistence of the contract of employment and in particular cases matters which occur after the termination of the contract of employment (see for example the decision of the Full Bench of the Court in David Jones Ltd v Cukeric (1997) 78 IR 4 30 where the Court held that a deed of release signed by an employee after the termination of employment constituted a collateral arrangement for the purposes of s 106 of the Act). Finally, the definition of contract contained within s 105 of the Act is much wider than the contract of employment simpliciter and extends to related conditions and collateral arrangements. By contrast, the circumstances in which Pt 4 of Ch 8 of Health Services Act may apply are much more limited as we have already discussed. These are the matters which define the subject matter of each statute.

77 A minute examination of the provisions of different statutes may throw up areas where it may be said that there is conflict on a prima facie basis. An example is to be found in Horvath which we have previously discussed. However as the Court said in Horvath the existence of such areas of conflict is not of itself determinative of whether it is permissible to find that relevant inconsistency exists in a sense which leads to the conclusion that there is an implied repeal of either the whole or part of a statute. It is necessary to look at the subject matter of each statute or the relevant part of each statute in determining whether such an argument may be made out. It is not permissible, consistent with authority, to focus on areas which do not reflect the overall subject matter of each statute.

78 The circumstances which apply to these proceedings may be distinguished from those which applied in Dunn upon which the respondent relied because there is no question of inherent or intrinsic rights such as were given to councils under s 99 (11A) of the Local Government Act being trammelled. Neither the public health organisation nor the Minister possess such rights under the Health Services Act. We apprehend that the desire to uphold these inherent or intrinsic rights formed a substantial part of the reasoning of the High Court of Australia in Dunn.

79 For these reasons it is clear that the factual circumstances which form the basis of the proceedings in Dunn are sufficiently different from those in these proceedings to lead to the conclusion that Dunn is distinguishable. Accordingly, it would be inappropriate to apply Dunn by way of analogy in determining the outcome of these proceedings.

80 The respondent also relied upon certain other provisions of the Health Services Act to support a general submission that they demonstrated that the legislature did not intend s 106 of the Industrial Relations Act to operate in connection with the circumstances which have given rise to these proceedings. Reference was made to Pt 2 of Ch 8 of the Health Services Act which was said to provide "detailed regulation in connection with visiting practitioners' service contracts" including "a careful scheme for arbitrations concerning some service contracts in relation to the terms and conditions of work and the amounts or rates of remuneration and the bases on which they are available." It was said that by reason of the provisions of ss 96 and 97 of the Health Services Act limited rights of appeal and declaratory powers were given to the Industrial Relations Commission in connection with that scheme. However the rights of appeal and declaration relate to the functions of an arbitrator appointed under s 90 of the Act by the Minister and that arbitrator is to be a judicial member of the Industrial Relations Commission. It would be surprising if legislation of this kind did not contain detailed provisions relating to service contracts for visiting practitioners and it would be equally surprising if there were no mechanism for the arbitration of disputes and for a review of the arbitrator's decision. Such a regime does not, however, by implication or by any other means consistent with established principle permit a conclusion that s 106 of the Industrial Relations Act was to be excluded. The same applies to the other provisions of the Health Services Act relied upon by the respondent in its submissions which included in general terms, Ch 9 which regulates general staff. None of these provisions nor any regime established by them permits a contrary conclusion to be adopted.

81 It was submitted by Mr West that the creation of concurrent rights which might be pursued before different tribunals could lead to a disaffected visiting practitioner utilising both sets of procedures. There are, however, many circumstances where overlapping or partly concurrent rights arise and their existence does not per se justify a conclusion of implied repeal, as the authorities stress.

82 In our opinion there is a significant difference between the subject matter of Pt 4 of Ch 8 of the Health Services Act and the provisions of s 106 of the Act. We have already described the subject matter of each. The appeal procedure created within Pt 4 of Ch 8 of the Health Services Act is limited in its application, as we have previously described, and the processes adopted are singularly different from the nature and character of proceedings conducted under s 106 of the Act, again as we have previously described. Furthermore s 106 of the Act is much more comprehensive in its operation extending, as we have already referred to, to pre-contractual and post-contractual matters as well as conduct which occurs during the subsistence of the contract of employment which has a relevant connection with that contract. The authorities to which we have referred clearly establish the principle that implied repeal of legislation can only be effected in circumstances where there can be said to be clear and unmistakable intention to this end. We repeat the observations of Gaudron J in Saraswati that: "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." We do not construe the provisions of each statute relevant for the purposes of these proceedings as being clearly and indisputably contradictive or as involving "direct conflict." For these reasons we conclude that the decision appealed from should be overturned.

83 As to the question of leave to appeal, the interaction between the two pieces of legislation is a significant issue, as is also the proper approach to the determination of whether the requisite inconsistency applies. Given that the conclusion has been reached that the judgment of Boland J was in error, it follows that leave to appeal must be granted.

84 We would make the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Judgment of Justice Boland delivered 24 July 2002 set aside. 4. Matter remitted to Boland J to determine in accordance with these reasons.

85 PRESIDENT: The orders of the Court are therefore those proposed in the joint judgment of the Vice-President and Marks J in paragraph [84] above. _____________________

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