Woodgate v St Vincent's Hospital Sydney Ltd [2001] NSWSC 941 | Case summary

Judgment 1 His Honour: The plaintiff is an orthopaedic surgeon, having carried on that specialist occupation for some sixteen years. He was offered, on 26 May 1999, an appointment to the position of relieving visiting medical officer in the Department of Orthopaedics of the defendant for a period of twelve months, effective from 31 May 1999. He accepted this offer on 5 July 1999. 2 On 31 May 2000 he was offered temporary appointment to the position of locum visiting medical officer in the same department from 1 June to 31 August 2000. This letter included the following: "Clinical privileges associated with the position will be general orthopaedic privileges and admitting privileges. Temporary appointments should not be considered to provide any advantage or right to the appointee should a staff specialist or VMO appointment be formally advertised and recruited. This appointment is primarily aimed at supporting the Orthopaedic Department to manage its current caseload and waiting list." 3 The plaintiff accepted that offer on 12 June 2000. 4 On 29 August 2000 a further offer was made in the same terms for the period 1 October 2000 until 31 March 2001, which the plaintiff accepted on 1 September 2000. 5 Finally, an offer was made in similar terms for the period 1 July to 31 August 2001. 6 There would appear to have been what might be called a spill of all VMO positions in the relevant department and, in accordance with clause 5 of the Health Services Regulation 1998, an advertisement was placed in the newspapers seeking applicants for seven permanent positions in orthopaedic surgery for the period 1 July 2001 to 30 June 2004. The closing date for applications was Thursday, 22 March 2001. 7 The plaintiff applied for one of those positions. He was interviewed by what is described as an advisory committee on 28 May 2001. The committee seems to have consisted of six doctors. The plaintiff says - and it was not contradicted - that the interview that he had only lasted five minutes; there were five committee persons present during his interview and he was asked questions by each member. 8 He says that one of the committee members, Dr Lesley Forster, not only questioned him about his workload, but also challenged it. He says that nobody asked him any questions at all about his ability to work in a multi disciplinary team, or his ability to communicate with patients and staff. 9 The committee, according to its minutes, formally met at 5 pm on the same day and its minutes, which are unsigned and undated, merely say: "Nine applicants for the position of Visiting Medical Officer in Orthopaedics were interviewed. There were seven positions available. The Committee unanimously recommended the appointment of the seven applicants as outlined the attached appendix on the basis that they were competent and skilled and provided the mix of general and sub speciality expertise." 10 The appendix contained the names of seven doctors, not including the name of the plaintiff. 11 The minutes of the Board of Directors of the defendant for 28 June 2001 were annexed. Ten board members attended. One of the people in attendance, Dr Denise Robinson, tabled the minutes of the meeting and all we know is they were "approved". The minutes of the Committee were noted. 12 The plaintiff was notified of his non-success and he made it quite clear that he was completely dissatisfied with what had occurred. He took the appropriate steps to lodge an appeal under s 106 of the Health Services Act 1997, and in connection with that appeal, asked the defendant to give reasons. Dr Lesley Forster wrote on 23 August 2001: "On the 29th June 2001 you were advised that you had been unsuccessful in your application for the position of Visiting Medical Officer in the department of Orthopaedic Surgery. As requested, I am now writing to advise you of the reasons for that decision. As you are aware, the Campus Medical Appointments and Credentials Advisory Committee interviewed all nine applicants for the seven available positions of Visiting Medical Officer, Orthopaedics, and then made recommendations to the Board as to the suitable applicants for appointment. After due consideration, the Committee decided that you were not suitable for appointment because of concerns under the selection criteria relating to your ability to work in a multi disciplinary team and your ability to communicate with patients and staff. The recommendations of the Committee were accepted by the Board at its meeting on Thursday 28th June 2001, and the decision was made accordingly." 13 On 30 August 2001 the plaintiff filed a summons in this Court for: "1. A declaration that the purported decision of the Defendant's Campus Medical Staff Appointments and Credentials Advisory Committee made on or about 28 June 2001 not to re-appoint the Plaintiff to the position of Visiting Medical Officer was unlawful and of no effect. 2. An injunction restraining the Defendant from giving effect to the purported decision in paragraph 1 until: (a) further orders; or (b) until the procedure concerning appeals set out in S.105 - 113 of the Health Services Act is exhausted." 14 On the return of the summons, it was fixed for final hearing before me today. 15 There are two major matters in contention: (A) Whether the Court should order some sort of injunction pending the hearing of the appeal under s 106 of the Health Services Act, 1997; and (B) Whether some declaration should be made with respect to the decision not to appoint the plaintiff. I will deal with these in order. 16 (A) Section 105 of the Act provides that if a public health organisation does not re-appoint the person as a visiting practitioner it must give notice of that decision to the applicant. 17 Section 106 then says a person who is dissatisfied with such a decision may appeal against that decision and, for the purposes of s 106, the failure of the public health organisation to re-appoint is taken to be a decision not to re-appoint. The Minister must then set up a Committee of Review consisting of a lawyer of at least seven years' standing, a medical practitioner and another person and, under s 112, the Committee determines the appeal and makes such orders as it considers proper. However, under s 112(2): "If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners' appointments is to be made available to the appellant." 18 There is no doubt that the defendant is a public health organisation within the meaning of the statute. 19 The first question that arises is whether the present case is a case of re-appointment. Re-appoint is just a shorthand way of saying "appoint again". Mr Peter Walsh, who appeared for the plaintiff, says that under Chapter 8 of the Act there is only one class of visiting practitioner; his client was a visiting practitioner; his client had been serving the hospital since 1999; there was a spill of positions; his client applied to continue on as a visiting practitioner and, accordingly, he was seeking re-appointment. 20 Ms McColl SC, who appeared with Mr Simon Kerr for the defendant, said that there is a real distinction between a person who is in a locum position or is in a temporary position and a person who is in a permanent position. She points to the offers which the plaintiff had accepted, which made it clear that accepting a temporary position gave no advance status for a permanent position or appointment, and says it is quite clear that this was not a case of re-appointment to a temporary position, but it was rather a case of an applicant for a fresh appointment to a new position. 21 Chapter 8 commences with s 76, which just defines a visiting practitioner. Section 77 then divides the visiting practitioners into two classes, those under a service contract and those who have no such contract, and it seems clear that we are concerned with the first class. Sections 80 to 88 then deal with service contracts and the provision for certain controls by the Minister under s 87, which appears to be of no relevance in the instant case, but leaves it to the public health organisation to formulate the terms of the contract. 22 The contracts in the instant case took the form of offers made by letter, which were accepted by the doctor. These contracts, on a fair reading of them, particularly the contract of 31 May 2000, which I set out, made it quite clear what the difference was between a temporary appointment and a permanent appointment. They use the word "locum", which is a term, generally speaking, which means in place of some other person rather than meaning that the person appointed has some status by himself or herself. 23 In my view, there is a big difference between a person who holds a locum position and a temporary position on the one hand, and a person who obtains a permanent position on the other hand. That is reinforced by the fact that the Regulation contemplates that permanent positions are to be publicly advertised vis-a-vis clause 5. 24 In my view, the position which was the subject of the advertisement was, so far as the plaintiff is concerned, a fresh appointment and not a re-appointment, and accordingly, the provisions in sections 105 and following have no application. 25 Because of this, it is pointless to grant any injunction to hold the fort until the appeal is heard. 26 This Court does have jurisdiction, in proper cases where a statute has not provided for what is to happen pending an appeal, to make appropriate orders. The jurisdiction can be exercised as a last resort, for instance, in cases involving appeals relating to the withdrawal of motor drivers' licences where there is too great a delay in hearing the appeal; cf Petrou v Roads & Traffic Authority, Young J, 30 May 1991, unreported. Ms McColl SC and Mr Kerr said even if that jurisdiction existed, it would not be exercised in the instant case because the statute makes it clear, especially by the provisions of s 112(2), that the position as determined by the defendant is to continue in existence until the Minister's decision is made. 27 Although I do not have to decide the matter, it seems to me that that is the proper construction of this particular statute, so that even if I were of the view that an appeal was competent, I should not make any order at least until it appeared that there was undue delay in hearing the appeal, in which case there may be some room for an order being made under s 65 of the Supreme Court Act 1970, rather than an injunction. 28 There are obvious problems with s 112(2) of the Act in that it is completely unclear at what stage the person whose position may be in jeopardy is to be alerted to the appeal and given the opportunity to be involved, but fortunately that is not a problem for me in the instant case. 29 (B) The declaration as framed is one which could not be made. First of all, the decision was not a decision of the Advisory Committee, it was a decision of the Board. Secondly, it was not a decision to re-appoint the plaintiff, but it was a decision not to appoint him. Both of those statements are made on the basis that there was actually a decision in the first place. No-one actually appeared to have directed their mind to the fact that if they appointed seven people they were not appointing all the other applicants, so there was never any formal decision not to appoint the plaintiff made. 30 That probably explains why it was difficult to give reasons for the notional decision not to appoint the plaintiff. The flavour of the evidence is that there were seven better applicants than the plaintiff and that the decision in no way reflected on the plaintiff any more than in the situation where seven excellent people apply for a Rhodes scholarship, all of whom are of excellent quality, but only one position is available. 31 However, there is a nasty sentence in Dr Forster's letter: "… the Committee decided that you were not suitable for appointment because of concerns ... ". 32 There is nothing at all in the minutes of the Committee that would allow anyone to come to that conclusion. It would seem that the plaintiff was only interviewed by five of the six members of the Committee so that there would be very great doubt as to whether the Committee could have reached that decision. Indeed it is most questionable whether the whole process by which there is an Advisory Committee, and the Advisory Committee tenders no advice to the Board other than its view that applicants A to F should be appointed, complies with the regime that the Act and Regulation set out. 33 As the Court of Appeal held in White v Ryde MC [1977] 2 NSWLR 909, 924, if the decision maker (the Board, in this case) does not actually hear the primary material, it must be apprised of all the relevant material by the Advisory Committee in order to be able to evaluate the recommendations and to understand the relevant material before making its decision. 34 35 It is quite surprising that a professional committee which is charged with making sure the very best people are involved in the public health system can say, as they do say, that they have no obligation to do natural justice to applicants for positions. 36 If the material set out in Dr Forster's third paragraph really was a matter of concern to the Committee, one would have expected any right thinking person to have allowed the applicant to respond because, unless one has direct knowledge of the matter, it is almost always appropriate in order to fulfil one's statutory task to inquire into all matters of concern, and at least the first way of dealing with matters of concern is to ask the applicant about them and not just keep them privately in one's own breast. 37 Ms McColl SC puts that there is no duty to do natural justice in the instant case because this is a case of appointment rather than re-appointment, and she referred to Cole v Cunningham (1983) 49 ALR 123. I am not completely satisfied of that point because of the public nature of the appointment that was to be made here, and the duty to do natural justice to the applicant was completely intertwined with the duty to the public to make the very best appointment, which one can only do if one takes the matter seriously and explores all proper matters of concern. 38 However, although I considered whether I would reserve on this point, in the ultimate I cannot see any utility in making any declaration. Certainly it could not be the declaration that was sought in the summons. Further, even if I were to declare that the decision not to appoint the plaintiff was of no effect, then, as there are no positions to be filled, and there is no way other than an appeal under s 106 of unseating one of the other applicants, it would be just of no effect at all. 39 Mr Walsh says that is not right; that the declaration would have some effect before the Ministerial Committee, or it might have some effect if his client were to sue members of the Committee. One wonders for what he could sue members of the Committee. The fact that such a declaration could be used for this collateral purpose is to my mind an additional reason for not making it, rather than the other way around. 40 Stress was laid on the decision of the Court of Appeal in Macksville and District Hospital v Mayze (1987) 10 NSWLR 708. Mr Walsh also referred me to Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590. These were cases of termination of appointment rather than an authority declining to make an appointment and so do not assist me. 41 Had the summons named the other applicants as parties and sought to invalidate the whole selection process, a case of invalidity might have been made out within the rule in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171. However that was not the case mounted by the plaintiff. One reason for this is doubtless that he wished to keep the goodwill of the successful applicants in his dispute with the hospital. 42 Accordingly, in my view, the summons should be dismissed with costs. The exhibits are to be retained.

Woodgate v St Vincent's Hospital Sydney Ltd

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