Schwartz v Central Sydney Area Health Service & Anor

Schwartz v Central Sydney Area Health Service & Anor - [2002] NSWIRComm 79 - NSWIRComm 2001 case summary — Zoe

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s Professional ethics s Examination of skeletal remains s Gunshot wound to the head s Child abuse s Petechiae s Bomb scene Professional ethics Dr Schwartz' general understanding of the principles of professional ethics in relation to the practice of forensic pathology appeared to be sound, particularly in regard to the adversarial court processes and the expected behaviour of a forensic pathologist. However, in relation to the practice of defence-based pathology, the candidate did not discuss the option of refusing to act for the defence if the pathologist is denied access to the prosecution pathologist. This is a relatively controversial area in relation to ethical standards in forensic pathology. However, it is one that has received widespread acceptance amongst practising forensic pathologists within Australia. Regardless of personal view point in relation to this matter, it is an important issue to be aware of and to have a logically argued view about. Examination of skeletal remains In relation to the questions regarding skeletal remains, there were a number of inaccurate observations regarding the material displayed in the photographs including misidentification of a long bone and general uncertainty regarding many of the features displayed in the material. Despite this, the most serious concern the examiners had was the candidate's inflexibility regarding interpretation of the observations. The photographs demonstrated portions of skeletal remains in various states and the candidate was asked to provide an explanation for this. The only explanation given by the candidate was that the two types of remains could not have come from the same person. Even when prompted, the candidate's interpretation did not change. When the candidate was informed that the remains had come from the same person and was asked how could this be explained, she stated that the information must be wrong. The inability to provide alternative explanations, together with a high level of dogmatism and inflexibility regarding the candidate's opinion, was of considerable concern to the examiners. Gunshot wound to the head The initial descriptions of the photographic material by the candidate were poor at first but improved considerably on prompting by the examiners. The general approach to examining the wound displayed in the photograph was adequate, but the candidate appeared to have some difficulty in making decisions regarding the nature of the wound. In particular, she jumped to a variety of inappropriate conclusions and implausible interpretations until guided to the salient features of the injury in the photograph, when she correctly identified the injury as a contact gunshot wound. The examiners felt that in relation to this issue, Dr Schwartz showed a general lack of integration of observations with deductions. Child abuse The general description of injuries and their interpretation was adequate. However, the candidate was vague in relation to the spectrum of other injuries that might be found and concentrated on issues of scene examination rather than the issues that were raised by the appearance of the injuries. In particular, there was a lack of knowledge in relation to resuscitation injuries. The matter of drowning arose within this question and whist descriptions of "wet drowning" were good, descriptions in relation to so-called "dry drowning" were generally poor.

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67 Dr Stewart gave evidence concerning an industrial dispute filed in the Industrial Relations Commission of New South Wales in July 1997 by the Australian Salaried Medical Officer's Federation (NSW) ("ASMOF") against the respondent. The dispute notified was the refusal of the respondent to appoint the applicant as a staff specialist. As a result of that notification Dr Stewart met with the applicant and a representative of ASMOF in August 1997. It was agreed that the applicant would submit an application to be re-graded as a staff specialist to the MAAC. Two days later the applicant's husband wrote to Dr Stewart saying that it was "highly unlikely" that the applicant would send a formal application to MAAC. This was because her post-graduate qualifications "have been assessed under the appropriate machinery set up by Legislations of the NSW Parliament and of the Commonwealth Parliament. Their decision is final and not subject to review by Central Sydney Area Health Service or any Committee of it." Dr Stewart referred this letter to the industrial officer handling the matter with ASMOF pointing out that "it is most disappointing that an agreement reached at the meeting concerning an application by Dr Schwartz to MAAC has apparently been revoked. The essential issue, and one which I believe I made perfectly clear at the meeting, is that Dr Schwartz's specialist qualifications for the purpose of employment as a Staff Specialist under the Medical Officers - Hospitals Specialists (State) Award and subsequent Enterprise Agreement, have never been considered by the appropriate committee. As you are aware, this is the Medical Appointments Advisory Committee ("MAAC") of CSAHS." On 13 October 1997 ASMOF made application on behalf of the applicant to MAAC for the applicant's specialist qualifications to be recognised by it. Dr Stewart sought Professor Hilton's views about the matter. In November 1997 a sub-committee met and resolved to recommend recognition of the applicant's Israeli qualifications as being sufficient to meet the requirements of clause 2(d)(ii) of the enterprise agreement, but noted that prior to 1995 when that agreement was made the applicant's qualifications would not have been recognised because to that time a medical practitioner had to have a qualification recognised by NASQAC. On 3 December 1997 the Board of the first respondent met and endorsed that recommendation and the applicant was advised a few days later. On 27 January 1998 a representative of ASMOF asked Dr Stewart at a meeting to appoint the applicant as a specialist. He was advised that although the applicant's overseas qualifications for appointment to staff specialist had been recognised she was now free to apply for any staff specialist position in forensic pathology which was advertised. The representative was also told that a recognised qualification "does not entitle her to automatic reclassification to staff specialist."

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71 It is a trite observation that a pre-condition for the exercise of any power under s 106 is a finding that the relevant contract is unfair. A helpful discussion as to the approach of the predecessor tribunals to this Court to the determination of whether a contract etc is unfair is contained within the joint judgment of Fisher CJ and Hungerford J in the Industrial Court of New South Wales Full Court in Baker v National Distribution Services Ltd (1993) 50 IR 254. At 271 their Honours said: "The test of unfairness within the meaning of s 88F of the Industrial Arbitration Act, and hence s 275 of the present Act, has received much attention by the Court and by the previous Industrial Commission over very many years, but, in our review of the cases, the approach stated by Sheldon J in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 over 26 years ago has endured; his Honour commented (at 374) that unfairness of a contract or arrangement was to be determined according to "the common sense approach characteristic of the ordinary juryman ….It is a plain matter of morals not law." His Honour cautioned, however, (at 374,375) that the section's "massive power makes it imperative that it should be exercised with proper restraint … it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. … the discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes." Those words by his Honour echoed what had been said earlier by Beattie J in Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 at 89 that it was a matter of deciding "in each particular case by the application of the tribunal's common sense and sense of justice whether a particular transaction is unfair, harsh and unconscionable". The nature of the unfairness attracted by s 88F was considered later by the Industrial Commission in Court Session (Perrignon and Dey JJ, Cahill J dissenting) in A & M Thompson Pty Ltd v Total Australia Limited [1980] 2 NSWLR 1 at 13 as follows: "It has been said that fairness is determined by the commonsense approach of a juryman and that it is a moral and not a legal issue ( Davies' case). Whether this be so or not, it does seem that in distinguishing between what is fair and what is not fair the Judge must apply standards which appear to him to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement. In doing so he would always have to bear in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement." (at 271-2).

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75 This reasoning was repeated in the course of the joint judgment. For example at para 27 their Honours said in part: "….to us it seems an utterly arid exercise in semantics to find conduct as part of the operation of a contract to be unfair but not thereby to find also the contract to be unfair because such unfair conduct was not permitted by the otherwise fair contract - we think it should be stated as plainly as it may be, and as we think the authorities and s 106(2) do, that a contract may be found to be unfair because of any conduct of the parties." At para 28 their Honours said: A contract whereby a person performs work in an industry (including as here a contract of employment as a species thereof) has as an inherent feature the behaviour or conduct of the parties for the contract to be able to operate. It is difficult, we think, in conceptual terms to separate the contract itself from the conduct of the parties in performing it. As Priestley JA, with whom Kirby P and Meagher JA agreed, observed in Rothmans Distribution Services Ltd v Full Court of the Industrial Court of New South Wales [1994] 53 IR 157 at 160, "how the terms of the contract operated in practice … necessarily means looking at … conduct … and to conclude that a contract which could so operate was unfair". What a contract of employment does is set the terms and conditions to govern the employment relationship; the contractual relationship is another term which may be readily used to describe it. If a party in the course of operation of the employment relationship were to act in contravention of the contract of employment, particularly by committing a fundamental breach thereof, then that may only mean that the contract otherwise was unfair in so allowing or not preventing such unfair conduct or, indeed, in failing to make appropriate provision in the event occurring. In any of those situations, we think it clear that s 106 could be called in aid by the aggrieved party to obtain relief. We repeat, the section should not be construed to the contrary and as would protect the wrongdoer. (para 28)

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77 Their Honours then proceeded to amplify these comments at paras 170 to 176: 170 Section 106 does not give the Court power to make any orders if the contract in question is not demonstrated on the evidence to be unfair, as defined. That is what the section is concerned with. The conduct of parties to the contract is a relevant consideration, directed however to the determination of whether, and how, the contract rather than the conduct is, in the words of s105: (a) unfair, harsh or unconscionable, or (b) against the public interest, or (c) provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) designed to, or does, avoid the provisions of an industrial instrument 171 It is the 'contract or arrangement, or any related condition or collateral arrangement' identified in the initiating summons which at the end of the day must be the subject of the relevant findings. This approach has often been stated by this Court, most recently perhaps in Bush Boake, in the context of the enactment of s109A of the Act, which is concerned with claims concerning unfair dismissal. It was there observed by the Full Court at p35: 'What emerges from the above authorities, we think, is the now settled view that s.106 (as with the previous s.88F of the 1940 Act and s.275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case.' 172 It follows that where a complaint brought under s106 alleges that there has been unfair conduct which throws light upon the unfairness of a particular contract or arrangement, consideration must be given as to whether or not on the evidence, the contract falls within the statutory definition in s105. If the only complaint advanced in a case brought however, is that the conduct was unfair, it is difficult to see how a case under s106 could be made out, unless the particular conduct itself formed a part of an arrangement which is attacked under the section. No such case was sought to be established here. 173 Had the legislature intended that unfair conduct of itself would be sufficient to warrant the grant of relief under s106(5) of the Act, it is to be expected that the section would have said so expressly. It does not. Section 106(1) is concerned with unfair contracts, which are defined in the way in which we have already noted. Section 106(2) permits regard to be had to conduct and the other matters specified, in determining whether the contract in question is unfair. Section 106(2) does not, however, alter the need for a relevant finding, on the basis of evidence advanced, that the contract is one which falls within the definition of unfair contract. The decision in Dun is not authority for such a proposition. 174 The conclusion that a finding of unfair conduct is not sufficient for relief to flow under s106 is also supported by s106(5), which provides: '(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.' 175 The language of this provision is similar to that of s88F of the Industrial Arbitration Act 1940, considered by the High Court in Brown v Rezitis (1971) 127 CLR 157. Barwick CJ observed as to the power to grant relief, at p165: 'The problem is to ascertain the limitation by construction of the section. It seems to me that the expression "in connection with" the contract or arrangement varied or avoided provides the necessary limitation as to the nature of the orders for payment of money which can be made and as to the person against whom they may be made. The draftsmanship of the section is inadequate: but I think the expressed intention as to this limitation can be derived from the sub-section read as a whole. Whilst it can be said that the expression "in connection with" is of wide import, it does emphasize the need for a close connection between the order made and the contract or arrangement varied or avoided. In my opinion, the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connection with the making, variation or avoidance of the contract or arrangement which has been varied or avoided. It may in truth be limited to a power to make an order for payment of money which has in fact a real connection with the making, variation or avoidance of the contract or arrangement. However, in either case it will, of course, include power to make an order for payment of money which has been paid or which was payable under the contract arrangements themselves. But, in my opinion, the power will not be limited to the making of such orders. It will extend to ordering the payment of money where the order on the larger view of the jurisdiction given by the sub-section could be considered to be appropriate to effect wholly or partially the restitution of the parties to their former position upon the variation or avoidance of the contract or arrangement.' 176 It follows that the relief which s106(5) contemplates, is relief flowing from the contract found unfair on the evidence and not merely any unfair conduct, which may or may not demonstrate the unfairness of the contract under review.

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83 It must be also be observed that the determinative process by which a judge ascertains whether the relevant unfairness exists cannot be undertaken in a factual vacuum. There has to be a contextual framework within which the value judgment may be made, as with any judgment. I am unable to ascertain how a value judgment can be made concerning conduct of persons without considering as a potentially important contextual matter the circumstances of any relationship between them. Where the parties are employer and employee, in many, but not necessarily all, cases the fact of employment and the circumstances surrounding the employment situation will be important contextual matters. In the case of conduct, there may be circumstances where it is appropriate to consider that conduct without having regard in any way to the fact that the parties involved in the proceedings are employer and employee. Examples would include allegations of brutality and vilification. Here, fundamental community values would be involved without necessarily, as a matter of logic, having regard to the employment relationship. However there will be many cases where the fact that there is an employment relationship and the circumstances of that relationship will be critical contextual factors in determining whether the relevant or requisite unfairness exists. In many cases, the consensual nature of the relationship will impact on the circumstances of that relationship. It is quite clear that employment is based on contract, rather than status. (See for example the decision of the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410.) Once circumstances arise which necessitate the contractual basis of the relationship being taken into account in the exercise of a value judgment leading up to a determination of whether conduct is unfair, difficulties emerge in applying in an absolute sense all of the observations of the majority judgment in Reich about the place that conduct per se plays in s 106(2). No doubt it was considerations of this kind which led to the observations of the Full Bench in Origin Energy, to which I have previously referred. As the Full Bench pointed out in Origin, the contract itself assumes significance because the power to award the payment of money is consequential upon the principal relief available under s 106, namely orders declaring the contract void or varying it. That is, there must be an appropriate and relevant nexus between the declaration that a contract is unfair, the avoidance or variation of the contract and the awarding of monetary compensation.

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94 I have already referred to the requirement of unconscientious conduct. In Verwayen, Deane J made the following observations with respect to this aspect, which bear repeating in the context of the attempt to refer to the doctrine of estoppel by way of analogy in these proceedings (at 440-1): "Unconscientious Conduct The doctrine of estoppel by conduct is founded upon good conscience. Its rationale is not that it is right and expedient to save persons from the consequences of their own mistake. It is that it is right and expedient to save them from being victimised by other people (cf. Allcard v Skinner (1887) 36 Ch D 145 at 182). The notion of unconscionability is better described than defined (see per Mahoney JA, Antonovic v Volker (1986) 7 NSWLR 151 at 165; Taylors Fashions Ltd v Liverpool Trustees Co (1982) 1 QB at 151-152; and generally, per Cooke P, Nichols v Jessup (1986) 1 NZLR 226 at 227-229). As Lord Scarman pointed out in National Westminster Bank Plc v Morgan (1985) AC 686 at p 709, definition 'is a poor instrument when used to determine whether a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case'. The most that can be said is that 'unconscionable' should be understood in the sense of referring to what one party 'ought not, in conscience, as between [the parties], to be allowed' to do (see Story, Commentaries on Equity Jurisprudence , 2nd Eng.ed. (1892), par 1219; Thompson v Palmer (1933) 49 CLR at 537). In this as in other areas of equity-related doctrine, conduct which is 'unconscionable' will commonly involve the use of or insistence upon legal entitlement to take advantage of another's special vulnerability or misadventure (cf Stern v McArthur (1988) 165 CLR 489 at 526-527) in a way that is unreasonable and oppressive to an extent that affronts ordinary minimum standards of fair dealing. That being so, the question whether conduct is or is not unconscionable in the circumstances of a particular case involves a 'real process of consideration and judgment' (cf Harry v Kreutziger (1978) 95 DLR (3d) 231 at 240) in which the ordinary processes of legal reasoning by induction and deduction from settled rules and decided cases are applicable but are likely to be inadequate to exclude an element of value judgment in a borderline case such as the present."

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96 Finally, whilst dealing with Verwayen I should take the opportunity of reproducing part of the summary of the content and operation of the general doctrine of estoppel by conduct as formulated by Deane J. The following extract is from pages 444-5 of his Honour's judgment: "2. The central principle of the doctrine is that the law will now permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 5. The assumption may be of fact or law, present of future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct)."

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107 Assuming that this submission is correct, it would produce something of an incongruous result; namely the appointment of a person to a staff specialist position who was nevertheless required to carry out her work under the direct supervision of a named person. Such circumstances would be inconsistent with the position of a forensic pathologist staff specialist, as described in the evidence as being a person who is able to undertake all of his or her duties with no supervision, albeit in consultation where necessary with colleagues and who is expected to supervise others. Any finding of unfairness has to accommodate the totality of the circumstances of the relationship between the applicant and the first respondent and in particular the fact that there is a contract of employment. Any such finding must take into account the position of both parties. Whilst one party may justly complain that his or her situation is unfair, an objective assessment of the situation may not lead to a determination that in considering the overall interests of both parties the requisite unfairness exists. In my opinion the result contended for by the applicant namely that she should have been appointed a staff specialist whilst conditionally registered with conditions requiring ongoing supervision and post-graduate training, would create relevant unfairness to the respondent as an employer and as a party bound by the industrial award. Such unfairness would, in my opinion, outweigh the feeling of unfairness experienced by the applicant. I am fortified in this conclusion by the fact that there is no evidence of any detriment having been suffered by the applicant arising out of the representations made by Dr Oettle, and the failure to appoint her in 1990. There is no evidence that she forewent appointment to or the ability to apply for any other position by reason of these representations. I refer also to the conditional nature of these representations as understood by the applicant.

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152 In essence the applicant submitted that it was improper of the respondents to utilise the determination of the Department of Health that an appropriate higher medical qualification is that which is verified by NSQAC. Presumably the first respondent should have made its own enquiries as to whether the applicant had obtained an appropriate "higher medical qualification" in her specialty and as to whether that was acceptable to the first respondent. Presumably, an enquiry properly made as to the applicant's Israeli qualifications would have necessitated an examination of those qualifications and what was involved in securing them. Whilst there was no evidence led as to what would have been involved in the making of any necessary enquiries and the conducting of any necessary examination of the qualifications, I would not regard it as reasonable to require the first respondent to have conducted such an examination and I do not regard it as unfair that the respondent relied upon the verification by NSQAC, having been directed to that source by the Department of Health. In determining what is fair and, hence, not unfair, it is necessary to focus on the totality of the arrangement or contract, as the case may be, and have regard to the particular circumstances of the parties as well as the general circumstances applying to the totality of the situation. Any assertions of unfairness must be tested having regard to all of these circumstances. Those circumstances include any burden which might unnecessarily be undertaken by a hospital or other medical institution in determining what are acceptable and higher medical qualifications. The ability to have regard to an Australian authority which, prima facie, is able to bring to bear some considered opinion about a matter seems sensibly and reasonably to be an appropriate situation when the alternative is to make individual enquiries to test a situation which is outside Australia and would no doubt involve the expenditure of time and resources.

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160 Conditional upon a finding of unfairness, the applicant sought that the contract and/or arrangement between herself and the first respondent should be varied in the following manner: "(a) The Respondents shall accord to the Applicant a classification and salary commensurate with her skill, ability, training and experience; (b) the Respondents shall accord to the Applicant a classification and salary commensurate with her duties; (c) the Respondents shall appoint the Applicant to a position of Staff Specialist - Forensic Pathologist backdated to such time as to this Honourable Commission appears fit or just; (d) the First Respondent shall provide to the Applicant the entitlement, benefits and salary of the position of Staff Specialist - Forensic Pathologist backdated to such time as to this Honourable Commission appears fit or just; (e) the Second Respondent shall not be permitted to unlawfully interfere with the Applicant's contract of employment; (f) the Second Respondent shall not require the Applicant to obtain a qualification which is not reasonably necessary for appointment to the position of Staff Specialist - Forensic Pathologist; (g) the Respondents shall not be permitted to arbitrarily and unreasonably withdraw from the Applicant opportunities to perform duties which the Applicant has demonstrated that she is capable of performing, and for which she is suited by reason of skill, ability, training and experience; (h) the Respondents shall not arbitrarily and unreasonably restrict the Applicant's opportunities to advance her career; (i) the Respondents shall not be permitted to withdraw benefits and opportunities associated with the Applicant's contract of employment without unreasonable cause; (j) the Respondents shall not be permitted to subject the Applicant to conditions in her employment which are less favourable than previously enjoyed by the Applicant without reasonable cause and proper authority to do so; (k) the Respondents shall not be permitted to deny to the Applicant access to skilled tasks necessary to establish and/or maintain her high level of skills; (l) the Respondents shall not subject the Applicant to unequal treatment, harassment and/or discrimination in the workplace; (m) the Respondents will, in their dealings with the Applicant, treat the Applicant in a fair and equitable manner and not subject the Applicant to any unequal treatment in the workplace; (n) the Respondents shall not conduct themselves in a manner likely to destroy the relationship of mutual trust and confidence between the parties; (o) the Respondents shall not act in a one sided manner contrary to the legitimate expectations and understandings of the Applicant, in circumstances where to do so would damage or detrimentally affect the career interests of the Applicant."

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