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

ABBOTT v THE WOMEN’S AND CHILDREN’S HOSPITAL INC
[2002] SASC 268
Master’s Appeal

DUGGAN J. The appellant is a dental practitioner who was appointed Assistant Director of the Craniofacial Research Unit at the Women’s and Children’s Hospital Incorporated (the respondent) in late 1987. The research unit is a department of the Australian Craniofacial Unit (the Unit).
The original letter of appointment states that the appointment was for three years, but the appellant continued in the appointment after the expiration of that period and he states in his affidavit of 21 December 2001 that he believed throughout that he had been appointed to the position permanently. The affidavit sets out in detail various events which took place in the Unit, particularly since 2001 when he became increasingly concerned about the nature and tenure of his appointment.
These events culminated in a telephone call which the appellant said he received from Mr David David, the Head of the Unit, on 15 June 2001. According to the appellant, Mr David told him that his appointment would not be renewed although his current appointment would be extended to 30 September 2001.
It is the appellant’s claim that he is a permanent employee of the respondent. His response to the purported termination of his appointment was to issue a summons for judicial review pursuant to SCR r 98. The application for leave to serve the summons came on before a master who expressed misgivings about the form of the summons, but granted leave to proceed after noting that the respondent might raise this issue after being served.
After service of the summons the respondent applied for an order that leave to serve the proceedings be set aside and that the application, to the extent that it sought judicial review, be set aside. The matter then came on for hearing before another master who set aside the order granting leave to serve the proceedings.
The summons issued by the appellant seeks the following orders:
“1For a declaration that the plaintiff is a permanent employee of the defendant on terms and conditions applicable to him as at 30 September 2001.
2For an order that the defendant do recognise the plaintiff as the Assistant Director, Craniofacial Research Unit at the Australian Craniofacial Unit and do afford to him all entitlements associated with that position as and from 1 October 2001 to date and continuing.
3That 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.”
When setting aside the leave to serve the proceedings, the learned master said:
“I have had detailed and able argument put to me both by Mr Heywood-Smith, on behalf of the plaintiff, and Mr Whitington QC, on behalf of the defendant, in relation to this matter. The arguments have included reference to the South Australian Health Commission Act 1976, the Public Sector Management Act 1995 and the Government Management and Employment Act 1985. There is no doubt in my mind that if I were hearing an application to strike out a statement on claim as failing to disclose a cause of action, the arguments put would convince me that I should not make such an order, but that the matter should be left to be determined by the trial Judge. However, this is not an application to strike out a statement of claim, but an application in relation to whether or not judicial review may be sought by the plaintiff.
The reason that the rules require leave to be given before an application for judicial review can be served is to weed out those actions where there is no prospect of an order being made or where the application does not identify the decision in relation to which the judicial review is sought.
In my view, the current proceedings suffer from both defects.
The relief sought in the summons does not identify in any way any decision made by the defendant in respect of which relief by way of judicial review might be sought.
Relief by way of a declaration under Rule 98 is permitted by way of ancillary relief. The declaration sought by the plaintiff in this action is primary relief. As Judge Burley said, there may be a cause of action based either in contract or tort or both. This Court could not make a declaratory order as sought in paragraph 1 in an application for judicial review.
Paragraph 2 of the summons is seeking an order for specific performance of an alleged employment contract. This Court cannot, in a judicial review application, make an order as sought.
In my view, therefore, the leave to serve the proceedings should be set aside.”
Mr Heywood-Smith, for the appellant, conceded that the wording of the summons was inappropriate in certain respects. However, he asked that the appellant be permitted to bring into court amendments to the summons which would answer the objections as to form. The question which would then remain would be the respondent’s contention that the circumstances do not permit judicial review and that the appellant’s case on this issue is so clearly untenable that it could not succeed. Although the merits issue to which I have just referred was argued before the master, he appears to have based his decision more on the deficiencies in the wording of the summons.
At the hearing of the appeal Mr Whitington QC, for the respondent, stated that, although there were deficiencies in the summons, the respondent was more concerned about the issue as to whether judicial review was in any way relevant to the circumstances of the present case. This was the principal issue argued before me.
The appellant’s case is that the relationship between him and the respondent went beyond a simple master and servant relationship in that there was an element of public employment or service involved. Whereas judicial review would usually be unavailable in the case of a relationship governed entirely by contract, if an element of public employment was involved the circumstances might require the observance of certain essential procedural requirements. (Malloch v AberdeenCorporation [1971] 2 All ER 1278 at 1294; Saira v Northern Territory University (1992) 109 FLR 46 at para 97).
The appellant’s principal argument is that s 5 of the Public Sector Management Act 1995 (the PSM Act) applies to his employment. The section relevantly provides:
“5 In personnel management, public sector agencies will –
(a) base all selection decisions on a proper assessment of merit; and
(b)treat employees fairly and consistently and not subject employees to arbitrary or capricious administrative decisions; and
. . .
(e)afford employees reasonable avenues of redress against improper or unreasonable administrative decisions.”
The PSM Act regulates various aspects of employment in the public service. In certain respects this regulation extends to employees of public sector agencies. A public sector agency is defined in s 4 of the PSM Act to mean:
“(a)   an administrative unit; or
(b)     an agency or instrumentality of the Crown (including a Minister); or
(c)     a body corporate –
(i)     comprised of persons, or with a governing body comprised of persons, a majority of whom are appointed by the Governor, a Minister or an agency or instrumentality of the Crown; or
(ii)    subject to control or direction by a Minister; or
(iii)   declared under subsection (2) to be a public sector agency,
but does not include a person or body declared under subsection (2) not to be a public sector agency.”
Section 4(2) of the PSM Act states that public sector agencies must implement all legislative requirements relevant to the agencies.
It was argued that the appellant’s affidavit discloses evidence of bad faith and improper purpose on the part of the respondent in purporting to terminate the appellant’s employment. According to the argument, this was contrary to the requirements of s 5 of the PSM Act. Alternatively, it is said that a statutory duty of procedural fairness arises from s 5 and that this has been breached.
Mr Whitington did not dispute that the respondent was a public sector agency within the meaning of that concept as defined in the PSM Act. However, he submitted that s 5 of the PSM Act had no application to the appellant. He pointed out that the respondent is a hospital incorporated under the South Australian Health Commission Act 1976 (the Health Commission Act). Mr Whitington then drew attention to s 59 of the Health Commission Act. The section provides as follows:
“(1)   The Governor may, by proclamation, declare that specified provisions of, and regulations under, the Government Management and Employment Act 1985 apply, with such modifications as may be specified in the proclamation, in relation to –
(a)     officers and employees of the Commission; and
(b)     officers and employees of designated incorporated hospitals; and
(c)officers and employees of designated incorporated health centres,
or in relation to any class of those officers and employees.
(2)    Any such proclamation has effect according to its terms.
(3)    The Governor may, by subsequent proclamation, vary or revoke a proclamation under this section.”
The Government Management and Employment Act 1985 (the GME Act) referred to in s 59 has been repealed and replaced by the PSM Act. However, s 14B(3) of the Acts Interpretation Act 1915 relevantly provides that:
“A reference in an Act to some other Act, or a Part or provision of some other Act, will, unless the contrary intention appears, be construed –
(b) where the Act, Part or provision is substituted –
(i) by a subsequent Act – as a reference to that subsequent Act.”
Accordingly, it was argued that s 59 of the Health Commission Act may be taken to refer to the PSM Act.
The next step in the respondent’s argument is that the Health Commission Act makes specific provision for conditions of employment for employees of hospitals incorporated under that Act and it was argued that it was the intention of the legislature that employment provisions contained in the PSM Act would only be applicable to such employees if they were made so by proclamation under s 59. It is not disputed that no relevant proclamation has been made under the section.
The result, so it is said, is that the appellant cannot rely on s 5 of the PSM Act as imposing procedural requirements to be observed by the respondent; any rights which he possesses can only be determined by reference to his contract of employment. If that is so, then judicial review has no application to the circumstances of the case.
Mr Heywood-Smith’s answer to this contention is that the PSM Act deals with public service employees as well as public sector employees. There are specific provisions in the PSM Act which are applicable to public servants. Section 71 of the PSM Act provides that the Governor may, by proclamation, “extend the operation of specified provisions of this Act, subject to such modifications (if any) as may be specified in the proclamation, to any specified class of public sector employees to whom those provisions do not apply of their own force”. There was an identical provision in s 75 of the GME Act.
Mr Heywood-Smith argued that the intention of enacting s 59 of the Health Commission Act may have been to allow for the adoption, in the case of the employees referred to in the section, of specified provisions previously made applicable to employees in the public sector by proclamation made under s 75 of the GME Act. He said that the purpose of s 59 was to resolve uncertainty as to whether previous proclamations under the GME Act were still applicable. If this was the purpose of the reference to the GME Act then it was argued that s 14B(3) of the Acts Interpretation Act would not apply because a contrary intention would exist in the legislation, namely, an intended reference to a repealed Act. Whether or not this argument is valid might well depend on the history of various amendments to the relevant Acts, an exercise which was not carried out in a detailed manner in the course of the argument before me.
There is an alternative argument which arises out of the fact that not all provisions of the PSM Act apply to public sector employees. This is recognised in s 71 of that Act which, as has been pointed out, provides for a proclamation to be made to extend the operation of specified provisions of the Act to any specified class of public sector employees to whom those provisions do not apply of their own force. If this is so, then it might be argued that s 59 of the Health Commission Act performs a similar, if somewhat overlapping, task of enabling provisions in the PSM Act (previously the GME Act) which do not apply to public sector employees to be made applicable to them by proclamation under the Health Commission Act. If this role for s 59 is acknowledged, it might be said that its purpose was to provide the mechanism whereby provisions of the PSM Act could be made applicable to employees in the position of the appellant.
It is not my function to reach a decided view on this issue. I am required to enquire whether the appellant’s argument on the construction issue is so clearly untenable that it could not succeed. I am unable to accept the respondent’s argument that such is the case. Furthermore, on the assumption that s 5 of the PSM Act applies to this employment situation, it cannot be said that the appellant’s argument that judicial review is open has no prospects of success.
This leaves the issue as to the form of the summons. I agree with the master that the summons is defective. I will allow the appellant to bring an amended summons into court before considering what orders are appropriate.

[2002] SASC 268

22 August 2002