Abbott v Women's and Children's Hospital No. Scciv-01-1785

ABBOTT v WOMEN’S AND CHILDREN’S HOSPITAL
[2004] SASC 67
Full Court: Doyle CJ, Perry and Duggan JJ

DOYLE CJ: A Judge of this Court heard a summons for judicial review.
The plaintiff Dr Abbott is a highly qualified dental practitioner, with post graduate qualifications. From 8 February 1988 to 30 September 2001 the plaintiff was employed by the defendant on a part-time basis as Assistant Director in a Cranio-Facial Research Unit, which was part of, or linked to, a Cranio-Facial Unit (“the CFU”) conducted by the defendant at a hospital now known as the Women’s and Children’s Hospital (“the WCH”). The defendant is, I understand, a body incorporated under the South Australian Health Commission Act 1976. It operates the WCH. The WCH is administered by a Board of Directors.
In the summons as amended the plaintiff sought the following orders:
“1.The decision of the Defendant to terminate the employment of the Plaintiff with effect from 1 October 2001 be removed into this Court and such decision be quashed.
1.1    The Plaintiff was orally advised by the Director of the Unit on 15 June 2001 that his appointment would not be renewed beyond 30 September 2001.
1.2    By letter dated 22 June 2001 the Defendant advised the Plaintiff that his position would be re-advertised prior to 30 September 2001 (and implied that the Plaintiff might apply for the position).
1.3    In or about the last week of September 2001 the Plaintiff was advised by the Director of Staff Support Services, Michelle Leigh, that his position was not to be re-advertised.
2.The Defendant be prohibited from proceeding to treat the Plaintiffs employment as having been terminated with effect from 1 October 2001.
3.For a declaration that the Plaintiff is a permanent employee of the Defendant on terms and conditions applicable to him as at 30 September 2001.
4.That in the alternative there be an order for damages to be paid by the Defendant to the Plaintiff pursuant to Rule 98.09 of the Supreme Court Rules.
5.Such further or other order as the Court deems fit.
6.Providing for costs of this application.”
At the commencement of the trial, counsel for the defendant told the Judge that the defendant did not oppose an order quashing the decision referred to in paragraph 1.1 of the orders sought. That was on its face a decision not to renew Dr Abbott’s appointment, not a decision to terminate it. Counsel did so without making any concession that the decision was made in bad faith, for an improper purpose or without observing the requirements of procedural fairness. In the course of submissions to His Honour counsel for the defendant said that if that decision was quashed, “the status quo will be restored”. It was clear that the defendant was opposing the other orders sought by the plaintiff.
The concession was made on the basis that s 5 of the Public Sector Management Act 1995 (“the PSM Act”) applied to the plaintiff’s contract of employment. Initially, the defendant had disputed that proposition. Section 5 requires that “public sector agencies” (presumably the concession included a concession that the defendant was a public sector agency) will, among other things:
“…(a) base all selection decisions on a proper assessment of merit; and …
(e)afford employees reasonable avenues of redress against improper or unreasonable administrative decisions.”
It was on the basis that the decision in question was subject to those provisions that, without identifying why the decision was invalid, the defendant agreed to it being quashed.
That left for decision by the Judge, the determination of the contractual position as between the plaintiff and the defendant. Evidence was put before the Judge, almost entirely by affidavit.
The Judge found that the plaintiff was employed under a series of three year contracts, culminating in a three year contract from 1 July 1998 to 30 June 2001. It is convenient to set out here the Judge’s finding at [69] in that respect:
“I find that in November 1987 the plaintiff and the defendant agreed that the plaintiff would serve the defendant under a contract of employment from 8 February 1988 to 30 October 1990. The letters that passed between the parties in November 1987 clearly establish that fact. I reject the plaintiff’s argument that from the outset he was employed under a contract of indefinite duration. From 1 November 1990 until 6 March 1991, the plaintiff was employed under a contract of indefinite duration which contract was terminable on reasonable notice. Thereafter, the parties entered into a series of fixed term contracts or one contract which was extended for fixed periods. The periods were from 6 March 1991 to 30 June 1992, 1 July 1992 to 30 June 1995, 1 July 1995 to 30 June 1998 and then from 1 July 1998 to 30 June 2001. The parties agreed to those terms. I reject any suggestion that there was a wrongful attempt by the defendant to unilaterally alter the terms of an existing contract. In the alternative, whatever may be said about the position prior to 1 July 1998, the plaintiff clearly agreed by signing the letter dated 17 June 1998 to a contract of employment for a period of three years from 1 July 1998 to 30 June 2001.”
The Judge found that when the three year contract in question expired on 30 June 2001, a contract of employment for three months came into existence. The defendant had written to Dr Abbott on 22 June 2001, giving or offering “a three month locum appointment … from 1 July to 30 September 2001.” The plaintiff had continued to work for the defendant during that period. The Judge said at [71]:
“…The parties did not agree to a new contract of indefinite duration after the previous fixed term contract came to an end on 30 June 2001. The plaintiff continued working for three months and then ceased work. I have no doubt he was reserving his position. He considered that he was a permanent employee either from the outset of his employment or at least from about late 1990. I have found against him in relation to those arguments. His contract of employment came to an end on 30 June 2001 and I think that thereafter he continued to work under a contract of employment for three months. The term of the plaintiff’s contract of employment came to an end on 30 September 2001. The contract was not terminated by the defendant.”
It is important to note that the Judge found that neither the three year contract ending on 30 June 2001 nor the three month contract ending on 30 September 2001 was terminated by the defendant. Each of them expired with the effluxion of time.
Having made those findings, the Judge declined to grant the plaintiff any relief other than an order quashing the decision communicated to the plaintiff on 15 June 2001, not to renew his employment beyond 30 September 2001. His refusal to make those other orders reflects a conclusion that the plaintiff was not employed by the defendant after 30 September 2001, that his employment had come to an end by the effluxion of time, and further that the termination of his employment did not result from any decision by the defendant that could be the subject of an order by the Court.
The plaintiff’s victory was an empty one. The decision not to renew his employment beyond 30 September 2001 was set aside, but his employment had in any event come to an end. The plaintiff appealed.
The plaintiff’s case on appeal
Mr Heywood-Smith QC, counsel for Dr Abbott, put a number of alternative submissions. As I understood them they were as follows.
He submitted that Dr Abbott was employed from the outset “on a permanent basis”. This meant, as I understood the submission, that until the defendant effectively or validly terminated the employment, Dr Abbott remained an employee of the defendant. He continued to be an employee of the defendant, even though he had not worked for the defendant since 30 September 2001. The quashing of the decision referred to above meant that that decision was not an effective or valid termination of the employment, and no later decision terminating the employment had been proved. For that reason, a declaration should be made that the plaintiff remained a permanent employee of the defendant. The consequences of that declaration, in terms of damages or an entitlement to remuneration, were to be sorted out later.
Alternatively, if Dr Abbott was employed initially on a three year contract, that contract had become or had been varied to become a contract for employment on a permanent or indefinite basis.
In the further alternative, if Dr Abbott was employed on a three year contract to 30 June 2001, that contract continued after that date and until an effective or valid decision had been made to terminate the contract. On the basis indicated above, there had been no termination.
In the further alternative, if the contract of employment to 30 June 2001 expired on that day, the Visiting Dental Staff Agreement (“the VDSA”), an industrial agreement (I will return to the status and effect of the VDSA later) operated to convert the purported three month contract of employment into a contract of employment for three years, expiring on 30 June 2004, and again subject only to an effective or valid decision to terminate.
Underlying these submissions was a submission that the plaintiff’s employment would not come to an end other than by an effective decision by the defendant to terminate the employment, or not to renew the employment. Mr Heywood-Smith, in effect, submitted that the employment could not come to an end by the expiry of the contract of employment.
A valid decision to terminate or not to renew could be made only if the decision was one in relation to which Dr Abbott had had a fair hearing. A valid decision could be made only if Dr Abbott had had the opportunity to exercise rights derived from s 5 of the PSM Act, and in particular had had the opportunity to invoke “grievance procedures” that the defendant had established.
Although not made explicit, underpinning this submission appeared to be a submission that this entitlement would, in effect, keep the contract of employment in existence until the entitlement had been exercised.
Finally, Mr Heywood-Smith submitted that Dr Abbott had a legitimate expectation of a fair hearing in relation to a decision not to renew his appointment on the expiry of any existing contract of employment. Again, by implication, the submission implied that until Dr Abbott was given such a hearing, an existing contract of employment could not expire.
Correspondence relating to the contract of employment
The Judge correctly approached the question of the terms of the contractual arrangements between Dr Abbott and the WCH on the basis that the decision is to be made by reference to the relevant conduct of the parties, as that conduct would be understood by a reasonable person, and not by reference to the subjective intentions of the parties: Taylor v Johnson (1983) 151 CLR 422 at 429. In the present case, contemporaneous correspondence between Dr Abbott and representatives of the WCH, relating to the terms of his employment, is relevant material. Statements by Dr Abbott, for the purposes of these proceedings, about his belief or intention at various times in the past are of limited value, although not necessarily to be disregarded.
The facts relied on by the Judge are these.
In late 1987, responding to a newspaper advertisement, Dr Abbott applied to the WCH for appointment to a position of “Part-Time Assistant Director, Cranio Facial Research, 5 Sessions Per Week”. By letter dated 6 November 1987 the Chief Executive Officer of the WCH confirmed Dr Abbott’s appointment “for the three year period ending October 30, 1990.” Other material indicates that the appointment was a part-time appointment, for five sessions a week, amounting to 17½ hours per week. For salary purposes Dr Abbott was remunerated as a Senior Visiting Dental Specialist. By letter dated 20 November 1987 Dr Abbott confirmed his acceptance of the appointment, referring to the fact that it was “for the three-year period ending October 30 1990”.
On the evidence before the Judge, Dr Abbott continued in the position of Assistant Director after 30 October 1990, neither party apparently addressing the fact that the initial contract term had expired.
On 6 March 1991 the defendant wrote to Dr Abbott as follows:
“The Board of Directors of this Hospital at its meeting on 5 March 1991 approved a recommendation that your appointment as Assistant Director of the Cranio-Facial Research Unit be continued on a locum basis until 30 June, 1992.
This extension will allow your position to coincide with other appointments at this hospital.”
Other evidence suggests that there was a practice of reviewing and considering the renewal of appointments at the end of a financial year. It is likely that this was linked to funding arrangements. Dr Abbott continued in the position of Assistant Director. The Judge inferred, as he was entitled to, that whatever might have been the position between 30 June 1990 and the receipt of this letter, Dr Abbott, by his conduct, agreed that his then contract would expire on 30 June 1992. Even if the Judge was not correct, in my opinion later events mean that the point is of no importance.
On 30 January 1992 Dr Abbott completed a document “Application For Position On Visiting Medical & Dental Staff”, and delivered it to the WCH. It was an application for appointment to his existing position, on the same part-time basis as before. There was no evidence of any response to that application, Dr Abbott continued in the position.
On 19 January 1995 Dr Abbott completed a similar form, again applying for appointment to the same position and on the same part-time basis. This time the defendant acknowledged the application by letter dated 25 January 1995. The writer added:
“I will contact you again in March with the results of the selection process.”
There was no evidence before the Judge of any further response or decision. Dr Abbott continued in the position.
On 10 March 1998 Dr Abbott completed another similar application form, again for the same position and on the same part-time basis. He wrote to the defendant enclosing “a copy of my application for the position of part-time Assistant Director, Cranio-Facial Research Unit”. He enclosed a number of supporting documents in response to a request to do so in the application form. By letter dated 17 June 1998 the defendant informed him that his application had been successful. In part the letter said:
“The term of this appointment will be from 1 July 1998 to 30th June 2001.
Your appointment will be under the terms of the revised SA Visiting Dental Specialists Agreement. Until the revised Agreement comes into force, you will be employed under the terms of the current SA Visiting Dental Specialists Agreement (1995 – 1998). When the revised Agreement comes into force, the terms of your appointment will be modified to reflect the new Agreement and this will be confirmed under separate letter.”
Dr Abbott signed an acceptance of this offer, and returned it to the defendant. He continued in the position of Assistant Director.
On 21 February 2001 the defendant wrote to Dr Abbott. In part the letter said:
“I write in reference to your current appointment as a Visiting Medical Specialist, under the terms of the SA Visiting Medical Specialist Agreement.
I wish to advise you, as required by the provisions of Clause 7(e) of the Agreement, that your current appointment concludes on 30^th June 2001, and that re-appointment will not be automatic following the conclusion of your current employment. This is because all Visiting Medical Specialist sessions and managerial positions, currently filled by Visiting Medical Specialists, are being (sic.) as is standard practice at the end of an agreement.
Consequently, at the end of this triennium (30^th June 2001), ALL Visiting Medical Specialist sessions and managerial positions will be declared vacant. Those interested in being considered for positions, including management positions, for the new triennium 1 July 2001 to 30 June 2004, will need to make a formal application and go through a formal evaluation process. Managerial positions will be subject to a formal selection process following the overall appointment process.”
The reference to the appointment being as a Visiting Medical Specialist is an obvious mistake. On 22 February 2001 (but before receiving the letter of 21 February 2001), Dr Abbott completed yet another form, similar to earlier forms, applying for appointment to the position as Assistant Director, on the same part-time basis as before. I gather that the application was delivered to the defendant. By memo dated 2 April 2001 Dr David, the Head of the CFU, informed Dr Abbott and other staff that he would conduct a performance review of each of them.
Dr Abbott said in an affidavit that on 15 June 2001 he spoke to Dr David by telephone. Dr David told him that Dr Abbott’s appointment would not be renewed, but that Dr David was extending his “current appointment to September 30th”. This is the decision that the Judge quashed by consent. Dr Abbott was about to go overseas when he received the phone call. The trip was to include an attendance at a conference connected with Dr Abbott’s work.
While he was overseas the defendant wrote to him by letter dated 22 June 2001 as follows:
“I write in response to your application for five (5) research sessions in the Australian Cranio Facial Unit.
I apologise for my delay in responding, however, the Hospital has only recently finalised the ACFU Head of Unit appointment for the new triennium.
I have been advised that the Unit will undergo a review of its research activities in the coming months. As a consequence of this, and in response to your application, a three month locum appointment (five sessions) has been extended to you from 1 July to 30 September 2001.
Visiting research positions will be declared vacant from 1st October 2001. It is my understanding that research positions will be readvertised during his period.
A contract of employment confirming the offer of the locum appointment will be forwarded to you in the coming week.”
When he returned from overseas, Dr Abbott continued in his position. The contract of employment was not sent to him. Dr Abbott stopped working for the defendant on 30 September 2001.
As I understand it, Dr Abbott’s position as Assistant Director of the Cranio Facial Unit was not advertised after 1 October 2001. There was no other response to his application of 22 February 2001.
On 30 November 2001 solicitors for Dr Abbott wrote to the defendant. The solicitors referred to the defendant’s obligations under s 5 of the PSM Act. They said:
“We envisage, at the least, a reconsideration by the Hospital of the decision not to renew our client’s contract, such consideration to be undertaken by the Board or an appropriately constituted Committee of the Board. We would anticipate Dr Abbott having the opportunity of addressing the reviewing body.”
There is no suggestion that there was any such reconsideration of the decision. On 6 December 2001 the WCH replied to Dr Abbot’s solicitors. The WCH stated that Dr Abbott had been employed “on a series of temporary contracts”, and that there was not “any guarantee of on-going employment beyond the term of the temporary contract”. The writer added that Dr Abbott could have complained prior to 30 September 2001 about the fact that his contract would conclude on that date, under a grievance procedure provided by the WCH. The letter stated that he could no longer do so because that procedure was available only to employees. On 7 December 2001 Dr Abbott’s solicitors replied, pointing out that the WCH had not advised Dr Abbott about the grievance procedures that had been open to him.
Proceedings were issued shortly thereafter.
Consideration of arguments on appeal

The material set out above provides a solid basis for the Judge’s findings.
However, Mr Heywood-Smith argued that when other facts were taken into account, they led to a different conclusion. He also argued for a different construction of, or conclusion from, the facts before the Judge. I turn to these matters.
In his affidavit Dr Abbott said that at his first interview he was “led to believe” that the appointment was for “an indeterminate time”. The letters of November 1992 indicate that his memory must be faulty. In any event, the letters in question plainly state the duration of the initial contract.
In November 1991 Dr Abbott wanted to join a superannuation scheme open to government employees. He had to have a certificate of employment. The defendant provided one. It was a pro-forma. A box was ticked under the heading “Employment Status”. The box ticked indicated that his employment was “Permanent”. Boxes designated “On Contract” and “Temporary” were left blank. The certificate was signed by a “Salaries Clerk” and counter-signed by an “Authorised Officer”. I agree with the Judge that it was not proved that these employees had authority to make an admission as to the term of the employment contract, binding on the WCH. Unless the certificate is a binding admission, it proves only the opinion or belief of the employees in question, based on whatever information was then available to them.
A letter of 12 November 1992 from an “Administrative Officer” of the WCH to the “Director of Medical Administration” referred to some discussion that must have taken place about Dr Abbott’s status. The writer said that other appointments in the Unit were “ongoing”, and recommended that be the case with Dr Abbott. This is plainly a suggestion, and no more than that. There is nothing to indicate that it was acted upon. The correspondence summarised above suggests it was not.
Mr Heywood-Smith denied that the series of applications for an appointment made by Dr Abbott should be given the significance that the Judge gave to them. He referred to the fact that Dr Abbott’s position was not advertised, and Dr Abbott’s statement in an affidavit that he believed the applications were required for some reason (not made clear) linked with the funding arrangements for the CFU. The effect of his argument was that the applications were not what they appeared to be, and should be treated as of no legal significance, and that is how the parties regarded them. I do not agree. The fact that the applications were not lodged in response to Dr Abbott’s position being advertised is of no significance. Dr Abbott’s statement about his reasons for completing the applications is not, of itself, a relevant matter. Statements on some occasions by employees of the WCH that it was not necessary for Dr Abbott to apply for an appointment were not shown to have been made with the authority of the WCH. I agree with the Judge that when the material is viewed objectively, it points strongly to the conclusion that although the WCH did not give the attention that it should have to the formalities of the process, the appropriate inference to be drawn from the material as a whole is that drawn by the Judge.
The letter of 17 June 1998 from the WCH to Dr Abbott is a particular obstacle to Dr Abbott’s case, bearing in mind that he signed an acceptance of the offer made in that letter. Mr Heywood-Smith argued that at the time of its receipt, Dr Abbott was employed on a contract terminable only on reasonable notice. He argued that what Dr Abbott agreed to was either a “recommitment” to his arrangement for a further three years, or the substitution (for three years only) of a fixed term contract, the appointment terminable on reasonable notice reviving thereafter. As I have indicated, I do not accept the premise to the argument. But even if I did, I would not accept the conclusion. The letter is clear, and it is inconsistent with an appointment of indefinite duration continuing after 30 June 1998 or after 30 June 2001.
In his affidavit Dr Abbott says that from 18 June 2001 to 8 July 2001 he was out of Australia, and that during this time he attended a professional conference in Sweden. His attendance was linked to his work in the CFU. As well, while at the conference, he participated in a meeting to explore the possibility of the CFU obtaining funds from an international body. This was at the request, or possibly the direction of, Dr David, the head of the CFU. Mr Heywood-Smith argued that, if Dr Abbott’s three year contract expired on 30 June 2001, his attendance at the conference and involvement in the talks after that date must have been pursuant to a new contract of employment, and that contract was either of three years duration or terminable only on reasonable notice.
I do not consider that to be a reasonable inference to draw from the facts. There is not much material before the Judge about the basis on which Dr Abbott made this trip. But it would be going a long way to infer, in the circumstances, that a new contract of employment arose because of what Dr Abbott did in the few days after 30 June 2001. It is all the more difficult to draw this inference bearing in mind the conversation with Dr David before Dr Abbott left Australia. I do not accept the submission.
I return to the VDSA. The VDSA contains conditions of employment for Visiting Dentists and Visiting Dental Specialists, employed in the public sector (to use a rather imprecise term) in a teaching hospital. It deals with the classification or seniority of appointments, with appointment and re-appointment, with hours, duties, remuneration and with termination as a result of misconduct or loss of registration. Clause 5 is as follows:
“5. Appointment and Re-Appointment
(a)In the absence of any expressed agreement in writing between the Board of Management and any individual member of the Visiting Dental Staff to the contrary the terms of appointment of Visiting Dental Staff shall be as follows:
Senior Visiting Dental Specialists        3 years
                  Visiting Dental Specialists   1 year
                  Senior Visiting Dentists   1 year
                  Visiting Dentists   1 year
(b)Whenever a Dentist is appointed to fill a casual vacancy in the Visiting Dental Staff he shall hold office only for the unexpired portion of the term of appointment of the Dentist in whose place he is appointed but shall be eligible for re-appointment.
(c)Subject to sub-paragraph 5(d) hereof all Visiting Dental Staff shall be eligible for re-appointment.
(d)Every member of the Visiting Dental Staff who attains the age of 60 years shall be entitled to retire but may continue in employment and be re-appointed until he attains the age of 65 years.
Mr Heywood-Smith pointed to sub-clauses (a) and (c) in particular. He argued that the effect of sub-clause (a) was that after 30 June 2001 Dr Abbott was employed under a three-year appointment. He was still employed by the WCH (that is not disputed), there was no “expressed agreement in writing” indicating a term other than three years, and accordingly the term was three years. He put the same submission in relation to earlier periods of employment during which employment continued after the expiry of a three year appointment, no replacement term having been agreed to expressly.
The status of the VDSA is not entirely clear. I understand that it was originally an unregistered industrial agreement, having force only to the extent that it was adopted by the parties to a particular contract of employment. But in 1999 it acquired the force of a registered agreement or of an award, by virtue of being referred to or adopted by the South Australian Government Wages Parity Enterprise Agreement 1999. Thereafter, the VDSA was binding as a matter of law. In any event, the correspondence between the parties indicated that they treated the provisions of the VDSA, to some extent at least, as providing terms of the contract of employment between WCH and Dr Abbott. For example, the letter of 17 June 1998 referred to the VDSA. The letter of 21 February 2001 referred to the equivalent medical agreement, it being common ground that the intention was to refer to the VDSA. In their correspondence the parties have treated the VDSA as containing terms on which Dr Abbott was employed, even though it purports to regulate appointments to clinical positions, and not to research positions such as Dr Abbott held.
Even if clause 5 of the VDSA is to be regarded as binding the parties at 30 June 2001, it does not lead to the conclusion that thereafter Dr Abbott was employed on a three year contract. The letter of 21 February 2001 made it clear that after 30 June 2001, re-appointment was subject to a “formal evaluation process”. By continuing to work after 30 June 2001, Dr Abbott must be taken to have accepted that to be so. The letter can be treated as giving rise to “expressed agreement” between the parties, arising from Dr Abbott’s acceptance of the letter, that the term of his appointment after 30 June 2001 was not to be for three years. The letter must be treated as written with the authority of the Board of Management of the WCH.
Alternatively, the appointment and employment of Dr Abbott after 30 June 2001 should be treated as an appointment and employment not made under the VDSA at all. Being an appointment to a research position, and not to a clinical position, the VDSA was not binding of its own force. The conduct of the parties is consistent with the view that after 30 June 2001 the question of whether Dr Abbott would be appointed on terms to be found in the VDSA was yet to be decided, and meantime his employment was for a three month term, a “locum appointment” on similar terms as before, but without the adoption of clause 5 of the VDSA. It would be contrary to the apparent intention of the parties to treat the employment after 30 June 2001 as governed by the VDSA.
Any private reservation by Dr Abbott of his position, or any belief of his that his employment was for three years, cannot alter that conclusion.
Mr Heywood-Smith based a further argument on clause 5(c). He argued that it conferred on Dr Abbott a right to apply for re-appointment (as he did), a further right to be heard on that application and a further right to have a decision made on that application, in relation to which decision Dr Abbott could pursue “grievance procedures” assured to him by s 5 of the PSM Act. Mr Heywood-Smith said that a decision not to renew the appointment, in relation to which Dr Abbott had pursued grievance procedures, had not been made, and accordingly he remained employed by WCH, presumably by operation of clause 5(c).
The case for WCH was that the three month contract of employment had expired, that Dr Abbott had exercised any right he had to apply for re-appointment, and that was the end of the matter.
I consider that Mr Heywood-Smith’s argument attributes to sub-clause (c) an operation that it does not have.
In context, sub-clause (c) does no more than state (probably unnecessarily) that appointments are renewable, subject to the age limit referred to in sub-clause (d). Sub-clause (c) confers no affirmative right, other than the right to reject an assertion that having been appointed the relevant person could not be re-appointed. Dr Abbott was at liberty, along with any other interested person, to submit an application for appointment, and he did so. Sub-clause (c) logically implies that an application for appointment will be considered, and that a decision will be made on the application, but it has no effect on the term of employment of the person who holds an appointment and who applies for re-appointment.
Having regard to the evidence before the Judge, it remains unclear what decision was made in relation to the application for re-appointment submitted in February 2001. Presumably, a decision was made not to offer a further appointment.
On the Judge’s conclusions, with which I agree, whatever grievance procedures were or are available to Dr Abbott, his employment came to an end on 30 September 2001. The availability of means to complain about the failure to continue his employment, about the offer of only a three month contract, or about the failure to offer new employment, does not have the effect of continuing the contract of employment that existed up to 30 September 2001, or of giving rise to a new contract of employment.
It is convenient to deal here with the concession by WCH that the decision communicated by Dr David on 15 June 2001 (that Dr Abbott’s appointment would not be renewed, but that his appointment would be extended to 30 September 2001), should be quashed. The quashing of that decision does not alter the fact that Dr Abbott’s existing contract was due to expire on 30 June 2001 and did expire then. That was due to occur on that date, and would have occurred even if the decision communicated by Dr David was not made. The quashing of the decision has no effect on the position. Similarly, after 30 June 2001 Dr Abbott continued to work for WCH in the CFU, pursuant to an arrangement that he had an appointment until September, confirmed by the letter of 22 June 2001. That situation also is unaltered by the quashing of the decision. The contract in question ran its term.
To my mind, if Dr Abbott had a cause for complaint, it was that WCH decided not to offer him a further appointment, or failed to give proper consideration to his application for a re-appointment. I make no comment on whether such a complaint was open to Dr Abbott before 30 September 2001, or after that date, or could be made out. I merely make the point that that appears to be the appropriate focus of complaint. The fact that such a complaint might have been available or still is available does not alter the fact that Dr Abbott’s employment was for a fixed term that has expired. Nor does the fact, if it be the fact, that such a complaint can be made and that the complaint has not yet been disposed of.
In connection with arguments of this kind Mr Heywood-Smith referred to the statement made by counsel for WCH to the trial Judge that if the Judge quashed the decision communicated by Dr David, that would restore the “status quo”. In my opinion, Mr Heywood-Smith attempted to build too much on this. It was clear that WCH maintained that Dr Abbott’s employment had come to an end on 30 September 2001. The concession was simply that to the extent that the quashed decision was an obstacle to Dr Abbott’s claim, that obstacle could be removed. It was not reasonable to treat the concession as a concession that the contract of employment was revived. WCH continued to argue before the Judge that the contract had come to an end. The concession could not reasonably be understood as altering the contractual position as between Dr Abbott and WCH.
If the PSM Act gave Dr Abbott a right to complain about the failure to re-appoint him, or the decision not to offer him a further appointment, the availability of that right did not alter or affect the contractual arrangements, or change the fact that Dr Abbott’s employment ceased at 30 September 2001. The exercise of any right to complain under the PSM Act might result in a new appointment being offered, but the availability of the exercise of a right to complain could not, of itself, affect the contractual position.
For similar reasons, I consider that Mr Heywood-Smith’s reliance on a legitimate expectation that Dr Abbott would be offered continued employment is misplaced. Whether, in the circumstances, there could be such a legitimate expectation is doubtful. On the Judge’s findings there was a series of fixed term contracts. During the period of the last three year contract it was made clear by WCH that a further appointment would depend on the outcome of a process of evaluation. Putting that to one side, if Dr Abbott had a legitimate expectation that his appointment would be continued, that expectation did not give rise to an entitlement to be re-appointed, let alone to a re-appointment in fact. The expectation would, at most, entitle Dr Abbott to be heard on the question of whether his appointment should be renewed, and to be given a fair hearing. This Court, in protecting that entitlement, could not order that Dr Abbott be re-appointed, nor could the Court extend the term of Dr Abbott’s contract. The remedy that the Court might be able to extend, to protect the entitlement, would be a remedy designed to ensure that Dr Abbott was given a fair hearing. Whether it would have been appropriate for the Judge to grant such a remedy, or for this Court on appeal to do so, was not argued before us. As I understand the case, this was not directly in issue.
Conclusion
I agree with the Judge’s conclusions, the essence of which is reflected in the extract from his reasons that I have set out. I reject the various arguments advanced by Mr Heywood-Smith, most of which were also rejected by the Judge in the passages set out. I also reject the submission that such rights as Dr Abbott might have had under s 5 of the PSM Act had the effect or consequence that the contract of employment between Dr Abbott and WCH remained on foot until those rights had been exercised. I likewise reject the submission that the concession made to the trial Judge carried with it an acknowledgment, or had the effect, that Dr Abbott’s contract remained on foot.
I can understand how Dr Abbott might have been unsure at times about the terms of his contract with WCH. The evidence before the Judge (the facts were not fully explored at trial) suggests that WCH could have avoided some of the uncertainty, had it handled Dr Abbott’s appointments with more attention to detail. It is clear that lying behind this case is a difference or dispute between Dr Abbott and Dr David, and perhaps others involved in the administration of the CFU. It is appropriate to state that the Court is not called on to express any view on the merits of this dispute. Finally, Dr Abbott worked in the CFU for almost 13 years and yet, on the evidence before the Court, he was never told in writing that his application of 22 February 2001 for a further appointment had been unsuccessful, nor was he given a written statement of the reasons. He was told by Dr David on 15 June 2001 that his appointment would not be renewed, but the letter of 22 June 2001 is consistent with the view that a further appointment is still a possibility. I can understand that Dr Abbott might have expected WCH to state in writing that he was not to be re-appointed, and to give an indication of the reasons. I mention these matters because I cannot help thinking that the case before the Court leaves a number of matters unresolved. That is not a criticism of the parties, but rather a reflection of the role of the Court in this case.
For all those reasons I would dismiss Dr Abbott’s appeal.
PERRY J. In my view the appeal should be dismissed. I agree with the reasons of Doyle CJ.
DUGGAN J. I agree that this appeal should be dismissed for the reasons given by the Chief Justice.

[2004] SASC 67

11 March 2004