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

[2003] SASC 145

ABBOTT v WOMEN’S AND CHILDREN’S HOSPITAL

[2003] SASC 145

Civil

1. BESANKO J: This is a summons by the plaintiff for judicial review pursuant to r 98 of the Supreme Court Rules 1987 (“the Rules”). The plaintiff is a highly qualified dental practitioner. The defendant is a hospital incorporated under s 27 of the Health Commission Act 1976.  Since 1987, the defendant’s name has been changed on various occasions, but those changes are not material for the purposes of the present action.

2. From 8 February 1988 to 30 September 2001, the plaintiff served the defendant under a contract of employment.  He was engaged as the Assistant Director in the Cranio-Facial Research Unit of the defendant.  The plaintiff’s salary classification was that of Senior Visiting Dental Specialist and he was engaged to conduct five sessions per week, a total of 17.5 hours per week.  His responsibilities as Assistant Director included the following:

   “ … the promotion of appropriate research projects, the supervision of postgraduate students and, where necessary, the organization of postgraduate courses and symposia dealing with the work of the SA Cranio-Facial Unit.  The Assistant Director will also act on behalf of the Temporary Part-time Director when the latter is absent from the Cranio-Facial Research Unit.”

3. The above description is taken from a document entitled “Job Specification” which was sent to the plaintiff at the commencement of his employment.

4. The Cranio-Facial Research Unit is a department or division of the Australian Cranio-Facial Unit (“the Unit”).  The Head of the Unit is Mr D J David.  The Unit is subject to the direction of the Chief – Division of Paediatric Surgery (Mr A Sutherland).  The Unit is assisted in its work by the Australian Cranio-Facial Institute which was previously known as the Institute of Cranio-Facial Studies Inc.  The governing body of the Institute is the Board.  Another relevant organization is the Australian Cranio Maxillo Facial Foundation which was established in 1984.  The governing body of the Foundation is the Council.

   History of the Action

5. The plaintiff commenced this action by summons issued on 21 December 2001.  The relief sought by the plaintiff in the summons was as follows:

   “1.For a declaration the Plaintiff is a permanent employee of the Defendant on terms and conditions applicable to him as at 30 September 2001.

   2.For an order that the Defendant do recognise the Plaintiff as the Assistant Director, Cranio-Facial Research Unit at the Australian Cranio-Facial Unit and do afford to him all entitlements associated with that position as and from 1 October 2001 to date and continuing.

   3.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.

   4.Such further or other order the Court deems fit.

   5.Providing for the costs of this application.”

6. Rule 98.09 which is referred to in paragraph 3 of the summons provides:

   “98.09(1)   Court may award damages  On a summons for judicial review the Court may, subject to paragraph (2), award damages to the plaintiff if:

   (a)he has included in his summons a claim for damages arising from any matter to which the application relates;

   (b)the Court is satisfied that if the claim had been made in a proceeding begun by the applicant at the time of issuing his summons, he could have been awarded damages.

   (2)   Rule 46 applies where damages are claimed   Rule 46 shall apply to an affidavit under Rule 98.04 claiming damages as it applies to a pleading.”

7. The summons was supported by an affidavit of the plaintiff sworn on 21 December 2001. The plaintiff made an application ex parte for leave to serve the summons as required by r 98.04A of the Rules. A Master of this Court heard the application on 14 January 2002. The Master expressed doubts as to whether the plaintiff could, in an action for judicial review, obtain relief based on causes of action in contract and/or tort. Nevertheless, he granted leave to serve the summons. The defendant was duly served and it entered an appearance on 6 February 2002.

8. On 14 February 2002 the defendant issued an application supported by affidavit seeking (relevantly) the following orders:

   “1.     That leave to serve the within proceedings be set aside.

   2.That the action to the extent that it seeks judicial review be struck out.”

9. The defendant’s application contained a statement that it was brought pursuant to r 46.18 of the Rules. It is unnecessary to examine the particular procedure adopted by the defendant. The important point is that the basis of the defendant’s application was that the action for judicial review did not disclose an arguable cause of action. The defendant’s case was that the relationship between the plaintiff and the defendant was governed entirely by contract and no element of public employment was involved.

10. The defendant’s application came on for hearing before another Master of this Court on 7 March 2002.  Debate centred on whether s 5 of the Public Sector Management Act 1995 (“the PSM Act”) applied to the plaintiff’s contract of employment.  That 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.”

11. The plaintiff’s contention was that s 5 applied to his contract of employment with the defendant, and therefore, it was open to him to bring proceedings for judicial review (Malloch v Aberdeen Corporation [1971] 1 WLR 1578; Saira v NT University (1992) 109 FLR 46). The defendant’s contention was that s 5 did not apply to its contract of employment with the plaintiff. For reasons which I will mention in due course, it is unnecessary for me to analyse the rival contentions in any further detail.

12. The Master delivered his decision on 2 May 2002.   He set aside the order giving leave to serve the summons.  He appears to have done so on the basis that the relief claimed could not be claimed in an action for judicial review.  He also said that the summons did not identify the decision which was the subject of the application for judicial review.

13. The plaintiff appealed from the decision of the Master to a single Judge of this Court.  The Judge allowed the appeal and made an order dismissing the defendant’s application dated 14 February 2002 (Abbott v Women’s and Children’s Hospital [2002] SASC 268). There were two important aspects to the Judge’s reasoning. First, he held that the form of the summons was defective in that it did not identify the decision under challenge. He gave the plaintiff leave to bring in an amended summons. Secondly, he held that it was arguable that s 5 of the PSM Act applied to the contract of employment, and that it could not be said that the action for judicial review had no prospects of success. The plaintiff brought in an amended summons in the following form:

    “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.

    Particulars of Decision

    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.”

14. The Judge gave the plaintiff leave to serve the amended summons, and it is the amended summons which is the summons before me.

    The Trial of the Action and the Evidence Tendered

15. The plaintiff alleged that the decision identified in the amended summons was void ab initio because it was made in bad faith or for an improper purpose, or without according procedural fairness to the plaintiff.  The plaintiff argued that it was open to him to attack the decision on these grounds because the defendant was bound to observe the requirements of s 5 of the PSM Act.

16. At the outset of the trial, the defendant’s counsel indicated that the defendant now conceded that s 5 of the PSM Act applied to the contract of employment between the plaintiff and the defendant.  He also said that the defendant did not oppose an order quashing its decision, although it did not concede that the decision had been made in bad faith, or for an improper purpose or without according procedural fairness to the plaintiff. 

17. Ordinarily, I would hesitate before making orders by consent on an application for judicial review.  However, there are two reasons in this case why I think it is appropriate to make an order quashing the decision of the defendant.  The first is that the plaintiff has put forward evidence which would support a finding that the decision is bad, if on no other basis than the fact that the plaintiff was not given an opportunity to be heard on whether his contract of employment should be renewed.  The evidence put forward by the plaintiff was not challenged by the defendant.  Secondly, in the circumstances of this case an order quashing the decision is unlikely to affect any party other than the plaintiff and the defendant.

18. The concession by the defendant that the decision could be quashed meant that the main contest between the parties in the trial before me was the nature and extent of the plaintiff’s private law rights against the defendant.

19. As part of his case, the plaintiff tendered a number of affidavits.

    1.Affidavit of the plaintiff sworn 21 December 2001 (“the plaintiff’s first affidavit”).

    2.Affidavit of the plaintiff sworn 27 February 2001 (“the plaintiff’s second affidavit”).

    3.Affidavit of Mr David Thomas Crocker sworn 18 December 2001.  Mr Crocker is the plaintiff’s solicitor.

    4.Affidavit of Professor Tasman Brown sworn 27 August 2002.

20. The defendant objected to certain paragraphs in some of these affidavits.  The objections to the plaintiff’s affidavits fell into two main categories, relevance and hearsay.  By and large the relevance objections related to statements by the plaintiff about what he considered the duration or period of the contract to be.  The hearsay objections primarily related to statements made from time to time by officers and employees of the defendant which the plaintiff said assisted his case because they showed that the plaintiff was considered by the defendant to be a permanent employee.  The defendant said that in the absence of proof of authority to make the statements they were inadmissible.  I decided that the most expedient course was to receive almost all of the material reserving to the defendant the right to argue that the paragraphs to which objection was taken should be ignored because relevance or authority had not been established.

21. The defendant objected to certain paragraphs in Professor Brown’s affidavit on the ground of relevance.  Professor Brown deposed to the fact that his position as Consulting Research Director and the position occupied by the plaintiff (and others) were funded by monies provided to the defendant by the South Australian Health Commission.  Again, I received the paragraphs to which objection was taken reserving the defendant’s right to argue relevance.  As will become apparent later in these reasons, the funding arrangements are of no great significance in resolving the issues before me.  The defendant did not cross-examine any of the deponents of the affidavits.  The plaintiff also tendered some other documents as part of his case.  I should mention that the plaintiff also applied to tender an affidavit he had sworn on 11 December 2002.  The affidavit seemed to deal with issues relevant to the type of relief the plaintiff might obtain for breach of contract, rather than the issues before me.  The Judge who heard the plaintiff’s appeal had ordered the plaintiff to file any further affidavit material upon which he intended to rely on or before 30 August 2002.  The plaintiff provided no explanation for the fact that the affidavit was not filed and served within the period fixed by order of this Court and in those circumstances I rejected the tender of the affidavit.  I indicated to the plaintiff that he could make a further application to tender the affidavit and provide an explanation for the delay.  No such application was made.

22. In its case, the defendant also tendered a number of affidavits.

    1.     Affidavit of Ms Anita King sworn 14 February 2002.  Ms King is the defendant’s solicitor.

    2.     Affidavit of Ms Michelle Leigh sworn 14 February 2002 (“the first Leigh affidavit”).  Ms Leigh has been an employee of the defendant for approximately four and a half years.  During the last two years she has been employed as the Director of Staff Support Services.

    3.     Affidavit of Ms Michelle Leigh sworn 20 December 2002 (“the second Leigh affidavit”).

23. The plaintiff objected to certain paragraphs in some of these affidavits.  It is unnecessary for me to explain my rulings in these reasons.  Reference may be made to the transcript.  The plaintiff’s counsel briefly cross-examined Ms Leigh on some aspects of her second affidavit.  Ms Leigh was an honest witness and I accept her evidence.  The defendant also tendered a document entitled “South Australian Wages Parity Enterprise Agreement 1999.  Varied on 4 July 2000”.

    The Issues in the Action

24. It is important that at the outset I identify the issues in the action, particularly in view of the fact that the defendant did not oppose the quashing of the decision. 

25. The quashing of a decision on judicial review grounds does not of itself give rise to an entitlement to damages.  As the learned authors of Judicial Review of Administrative Action, 5^th ed, de Smith Woolfe and Jowell, state (at para. 19 – 009):

    “There is no special affinity between any particular grounds of judicial review and cause of action for damages; whether there is a cause of action will depend on the particular facts.”

26. For example, a decision may be quashed on an application for judicial review because the decision-maker has taken into account an irrelevant consideration.  There may be a claim for damages against the decision-maker for misfeasance in public office, but only if it could be proved that the action of taking into account an irrelevant consideration was done knowingly or maliciously.  The plaintiff in this case claimed private law rights on the basis of contract rather than tort.  Closer to the present case is the third example given by the authors of Judicial Review of Administrative Action as follows (at para 19 – 009):

    “(3)  The failure of a public body, contrary to the principles of natural justice, to give a person a proper hearing before making a decision does not, of itself, give rise to a cause of action for damages.  Where a contract exists between the parties, such as a contract of employment, contravention of a principle such as audi alterem partem may amount to a breach of an express or implied term of the contract; but where there is a contractual relationship of this sort, judicial review will not normally lie.  In order to recover damages in the public law arena, the aggrieved person will need to show that the procedural impropriety or other unlawful administrative action also constituted an actionable breach of statutory duty, misfeasance in public office or other recognised civil wrong.”

27. The plaintiff submitted that from the outset of his employment, or at least from late 1990, he was employed under a contract of employment of indefinite duration, or as his counsel put it, he was a permanent employee.  The decision terminating his employment should be quashed.  I should declare that at the time of the decision in 2001 the plaintiff was a permanent employee of the defendant.  If I make those orders, the plaintiff is left with certain rights, including the right to claim damages from the defendant for wrongful termination of his contract of employment.  There was no debate before me as to what a finding that the plaintiff was a permanent employee of the defendant would mean in terms of damages.  It seemed to be accepted by both parties that if this point was reached, there would need to be further procedural steps (including, perhaps, the filing of a Statement of Claim as envisaged by the Master who heard the ex parte application for leave to serve) and, absent a settlement, a further hearing before a Court.

28. The plaintiff put an alternative to his principal argument.  He submitted that even if the defendant’s argument that the plaintiff was employed under a series of fixed term contracts, including a fixed term contract from 1 July 1998 to 30 June 2001, was correct, he (the plaintiff) nevertheless continued to work for the defendant after 30 June 2001 and until 30 September 2001.  There was, the plaintiff said, a “holding over” of his contract of employment.  A new contract of indefinite duration came into existence.  The plaintiff did not receive reasonable notice of the termination of this contract of employment.  It followed that the defendant had acted in breach of contract.

29. It is important to note that the plaintiff argued that his underlying private law rights lay in contract.  He did not argue that he had private law rights as a result of representations or based on the doctrine of estoppel.

30. The defendant submitted that the plaintiff’s contract of employment from February 1988 to September 2001 involved either a series of fixed term contracts or one contract for a fixed period which was from time to time extended.  It did not seem to be critical to the defendant’s argument for me to determine whether there was a series of fixed term contracts or one contract extended from time to time.  In those circumstances, it is unnecessary for me to discuss the factors relevant to whether it is one or the other (for a discussion of the relevant factors see D’Ortenzio v Telstra (1997) 78 IR 468 per von Doussa J at 477 – 480). The critical point (according to the defendant) was that the public law remedy (ie., an order quashing the decision, or a declaration that the decision is void) could not enlarge private law rights, in this case rights based in contract. The defendant submitted that there was a contract of employment for a fixed term of three years from 1 July 1998 to 30 June 2001 and that that contract was extended for a period of three months from 1 July 2001 to 30 September 2001. The plaintiff had no right in contract to be employed by the defendant after 30 September 2001. The defendant referred to the decision of the High Court in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 to illustrate its point. In that case, an insurance company applied under the Workers Compensation Act 1958 (Vic) for renewal of an approval to conduct an insurance business against workers’ compensation liability. Under the legislation, such approvals were valid for a period of 12 months. The decision to refuse an application for renewal was held to be void because the applicant for approval had been denied procedural fairness. The granting of relief in relation to the decision did not mean that the applicant was left with an existing approval. The approval had expired by virtue of the Act (per Aickin J at 386 – 387; per Mason J (as he then was) at 372 – 373). The defendant submitted that the same position applies in this case. A public law remedy may be granted in this case, but the granting of such a remedy does not enlarge the plaintiff’s private law rights. The plaintiff’s private law rights came to an end when his contract of employment expired on 30 September 2001.

1. The rival contentions of the parties meant that the principal issue before me was the nature of the contract of employment between the plaintiff and the defendant.  More precisely, the question was whether the contract of employment was one of indefinite duration (the plaintiff’s principal argument) or was it a fixed term contract extended from time to time, or a series of fixed term contracts (the defendant’s argument).

2. Before turning to the facts, I mention some legal principles which are relevant to the issues in the action and which I do not think are in dispute.  A contract may be for a fixed period or term.  Where employment comes to an end because the term has expired, there has not been a termination of employment at the initiative of the employer (Victoria v The Commonwealth (1996) 187 CLR 416 at 520; D’Ortenzio v Telstra at 478 – 479). There is probably an exception or qualification to this general proposition (see Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 at 469 – 470), but as it is not argued that that exception or qualification is relevant in this case, it is unnecessary to consider it any further.

3. If the contract of employment is for an indefinite duration, it is terminable upon reasonable notice or summarily for serious breach (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 per Brennan CJ, Dawson and Toohey JJ at 422 – 423). There is no longer a presumption of a yearly hiring. The length of notice depends upon the circumstances of the case (Thorpe v South Australian National Football League (1974) 10 SASR 17 per Jacobs J at 29). Save in exceptional circumstances, a Court will not order specific performance of a contract of personal service (Byrne v Australian Airlines Ltd per Brennan CJ, Dawson and Toohey JJ at 428). Ordinarily, an employee is restricted to a claim for damages for the wrongful termination of a contract of employment.

4. In determining what the parties have agreed - in this case as to the period or duration of the contract of employment – the following considerations are relevant.  First, the agreement must be determined by the outward manifestations of the intentions of the contracting parties.  The Court will disregard the real intentions of the parties (Taylor v Johnson (1983) 151 CLR 422 per Mason ACJ, Murphy and Deane JJ at 428 – 429). Secondly, an agreement may come about by reason of an express mutual agreement or it may be implied from the conduct of the parties (Armstrong Whitworth Rolls Ltd v Mustard [1971] 1 All ER 598). In the latter case, it may be difficult, if not impossible, to analyse the conduct in terms of offer and acceptance (Vroon BV v Fosters Brewing Group Ltd [1994] 2 VR 32 per Ormiston J at 82 – 83). Thirdly, an existing relationship may be changed either by a variation of the terms of an existing contract or by the forming of a new contract (Federated Mutual Insurance Company of Australia Ltd and Anor v Sabine [1920] SALR 284). In considering whether there has been a variation of the terms of the existing contract, it must be borne in mind that it is not open to one party to unilaterally vary the terms of the contract (Labor Law, An Introduction, 3^rd ed., Creighton and Stewart, para [8.07] – [8.09]; Outline of Employment Law 2^nd ed., Wallace-Bruce at pp 166 – 169).  Whether there has been an attempt to unilaterally vary the terms of the contract or whether it should be inferred that by continuing to work an employee has accepted the new terms is a question of fact (Irons v Merchant Capital Ltd (1994) 116 FLR 204 per Young J at 206 – 207).

5. Fourthly, the duration of a contract may be for a fixed period, but on the expiry thereof, the relationship of employment may continue.  If that occurs, a Court is likely to infer that the parties have entered into new contract.  In the Law of Employment, Macken and others, Lawbook Co. 2002, the learned authors state (at 235):

   “Where a contract provides for employment for a fixed term, the contract will automatically end when the term expires unless, of course, it is lawfully terminated in some other way in the meantime.

   However, if, without expressly extending the term of the contract, the employment continues beyond the expiry of the fixed term, a court is likely to conclude that a new contract has commenced.  The employer could not then rely on the expiration of the fixed term contract to justify the termination.  A failure by the employer to renew a contract that is part of a series of contracts may, for the purposes of unfair dismissal legislation, amount to a termination by the employer rather than a termination by the effluxion of time.

   These decisions turn on the construction of the particular contracts, and statutes there under consideration.  Accordingly, care must be taken when applying them.”

   See, for example, D’Arcy v SE Dickens Pty Ltd (1992) 5 VIR 85.

   The Facts

6. In early September 1987 the defendant placed an advertisement in a newspaper circulating in South Australia, The Advertiser, inviting applications for “the position of part time Assistant Director Cranio-Facial Research five sessions per week”.  The plaintiff answered the advertisement by lodging an application for the position.  I assume that the plaintiff’s application no longer exists; it was not put before me.  The plaintiff attended an interview with officers of the defendant.  On 6 November 1987 the defendant wrote to the plaintiff confirming his appointment to the position of Assistant Director in the Cranio-Facial Research Unit.  The letter was in the following terms:

   “Following your application and interview for the position of Assistant Director in the Cranio-Facial Research Unit I have pleasure in confirming your appointment for the three year period ending October 30, 1990.

   Your salary classification is that of Senior Visiting Dental Specialist which carries a current rate of $153.80 per session.  Your appointment is for five sessions giving a current salary of $40,115 per annum.

   A job description for the position is attached.

   Could you please contact Mr David David to organise a mutually convenient starting date.”

7. On 20 November 1987 the plaintiff wrote a letter to the defendant in response to the defendant’s letter dated 6 November 1987.  The letter was in the following terms:

   “Thank you for your letter dated 6th November, 1987 in which you informed me of my appointment as Assistant Director, Cranio-Facial Research for the three year period ending October 30th 1990.

   This letter will serve as confirmation of my acceptance of the appointment.

   I will be taking up the position on Monday February 8th 1988.”

8. It was not made clear in the evidence why the plaintiff did not take up his position until 8 February 1988, and how, in view of that fact, the plaintiff could be said to have been appointed for a three year period ending on 30 October 1990.  In the end, I do not think it matters a great deal, because in my opinion it is clear that the initial contract of employment was for a fixed term ending on 30 October 1990. 

9. In his affidavit, the plaintiff stated that in his discussions with Mr David prior to the interview, Mr David led him to believe that the appointment was to be for an indeterminate time.  The defendant objected to the admission of this statement on the ground of relevance.  I admitted the statement reserving the defendant’s right to argue that it is irrelevant. I have decided that it is not appropriate for me to place any weight on the statement.  The plaintiff provided no details of what Mr David said which led him to hold the asserted belief.   Furthermore, even if certain things were said, they were overtaken by the letter of offer and the letter of acceptance.  Even if these considerations are put to one side, the objective theory of contract means that no weight should be placed on the plaintiff’s impressions (Taylor v Johnson per Mason ACJ, Murphy and Deane JJ at 428 – 429). There is yet a further reason why I place no weight on the plaintiff’s statement. The plaintiff placed significant reliance on a letter from a Ms Y Winter, an administrative officer of the defendant, to Dr B Fotheringham, the Director of Medical Administration of the defendant, dated 12 November 1992. In that letter, Ms Winter states:

   “Following my telephone conversation to you some weeks back regarding the Cranio-Facial Research Unit, my enquiries lead me to confirm my original answer to you.  You will recollect that I indicated that Mr David was of the opinion that the staff employed to the Cranio-Facial Research Unit were not sessional appointments rather long term appointments.

   The funding for the Cranio-Facial Research Unit was a specific initiative of the Health Commission specifying that those funds were to be used for that purpose only.  Letters in the personnel files of Professor Tas Brown, Dr John Barker and Dr Amanda Abbott confirm their appointments and indicate no end to those appointments.  However, in Dr John Abbott’s case he was appointed on the 8th of February 1988 as a part-time Assistant Director on 5 sessions per week with a review date of 30 October 1990.  Personnel inform me that nothing has been done since that time.  I actually spoke to John Abbott and asked him his impressions about the nature of his appointment.  In all honesty he said he could not remember whether there was mention at his interview of this being an ongoing appointment or a fixed contract appointment.  The discussion at the interview tended to focus around the fact that it was a part-time appointment and whether he could survive on that level of income.   He is able to confirm, however, that he has received no further contracts beyond 1990.

   Given that all the other appointments are ongoing, and that David David’s impression was that that was the nature of appointment for all the staff to this unit, I am recommending that this be the case with Dr Abbott’s appointment …”

10. I appreciate that the letter refers to what was or was not said at the interview, but I would have expected reference to have been made to statements made on the topic by Mr David prior to the interview if the plaintiff’s recollection in 1992 was that Mr David had said something which led him to hold the asserted belief.  The plaintiff’s counsel submitted that I should not reject any statement in the plaintiff’s affidavits because the defendant had chosen not to cross-examine the plaintiff on any of the statements in his affidavit.  I do not think the submission of the plaintiff’s counsel is correct.  It is the plaintiff who put forward not only the statements in his affidavits, but the letter dated 12 November 1992.  I must make findings having regard to all of the evidence put before me.  I find that the plaintiff was employed under a contract of employment for a fixed term expiring on 30 October 1990.

11. In May 1988, the plaintiff applied for a clinical dental access appointment (honorary) to the defendant’s dental department.  An appointment from 1 July 1988 to 30 June 1989 was made by the defendant, and the plaintiff was advised of that fact by letter from the defendant dated 1 July 1988.

12. At some stage in the first half of 1989, the plaintiff made a request of the defendant for leave.  By letter dated 6 July 1989, the defendant advised the plaintiff that it could not grant him leave.  The plaintiff was referred to the Visiting Dental Staff Agreement, and in particular, clause 8(d) of that agreement which provides as follows:

    “(8)    Remuneration

    (d)     No payment shall be made for any leave as hourly payments include a loading of 20% in lieu of leave.”

13. It was common ground between the parties that the plaintiff was not appointed to the position of Senior Visiting Dental Specialist.  He was appointed to the position of Assistant Director of the Cranio-Facial Research Unit.  His salary classification was that of Senior Visiting Dental Specialist.  Provisions relevant to the salary of a Senior Visiting Dental Specialist are contained in the Visiting Dental Staff Agreement.   I did not understand the defendant to argue that all the other provisions of the Visiting Dental Staff Agreement applied to the plaintiff’s contract of employment.  Those provisions included a provision that absent an express agreement in writing, the term of appointment of a Senior Visiting Dental Specialist was three years.  In view of my other conclusions in this case, it is, in any event, unnecessary for me to determine whether this provision applied to the plaintiff’s contract of employment.

14. The plaintiff submitted that even if the initial contract was for a fixed term, in about late 1990 he became a permanent employee of the defendant.  I do not accept that argument.  It is true that between 1 November 1990 and 6 March 1991 there was no communication between the plaintiff and the defendant about the period or duration of the former’s employment.  The plaintiff continued to work for the defendant on the same general terms and conditions.  There may well have been what the plaintiff’s counsel called a “holding over” during this period or a new contract of indefinite duration and the plaintiff’s employment could not have been terminated without reasonable notice.  However, in my opinion it is clear that subsequently, the parties did reach agreement as to the period or duration of the contract of employment.

15. By letter dated 6 March 1991 the defendant advised the plaintiff that the Board of Directors of the defendant at its meeting on 5 March 1991 had approved a recommendation that his appointment as Assistant Director of the Cranio-Facial Research Unit be continued on a locum basis until 30 June 1992.

16. In November 1991, the plaintiff asked the human resources office of the defendant for information concerning superannuation.  He was sent a publication of the South Australian Superannuation Board which contained information about the State Superannuation Scheme.  In order to join the scheme, the plaintiff was required to obtain a certificate from his employer.  He obtained a certificate from the defendant which referred to his employment status as “Permanent” as distinct from “Temporary”, “Apprentice”, “On Contract” or “Casual”.  The certificate is dated 18 November 1991, and appears to have been signed by two employees or officers of the defendant.  The defendant objected to the admission of the certificate.  Perhaps recognising that he had not proved authority (Posts and Telegraphs v Abbott (1974) 7 SASR 540 per Walters J at 553 – 554) the plaintiff did not argue that the certificate was a contractual document. Rather, he submitted that it was evidence of a mutual understanding that was in place at the time. I think the only way in which the evidence could be of assistance to the plaintiff (assuming as was accepted that it is not a contractual document) is if it constituted an admission by the defendant. It would only be an admission by the defendant if those “making” the statement had authority to do so. In the end, I do not think authority to make an admission was established.

17. The plaintiff said that the statement in the Certificate that he was a “Permanent” employee confirmed his view that any reference to his employment as employment for a three year term was a matter of form rather than substance.  The plaintiff’s belief in this regard is irrelevant.  There is no suggestion of estoppel. 

18. On 30 January 1992, the plaintiff completed a form entitled “Application For Position on Visiting Medical and Dental Staff” and lodged that form with the defendant.  The plaintiff applied for 17.5 hours per week as a Senior Visiting Dental Specialist in the Cranio-Facial Research Unit, and stated that he was currently the Deputy Director of the Cranio-Facial Research Unit.  As I have said, the plaintiff’s position was Assistant Director of the Cranio-Facial Research Unit.  He was not employed as, nor was he applying for a position as, Senior Visiting Dental Specialist.  Presumably, the particular form was used as a matter of convenience.  The defendant’s records do not disclose the result of the application.  The defendant’s pay records indicate that the plaintiff was in receipt of remuneration from the defendant for the period from 30 June 1992 to January 1995. 

19. On 19 January 1995 the plaintiff again completed a form entitled “Application for Position of (Senior) Visiting Medical Specialist” and lodged that form with the defendant.  The plaintiff stated that the position he applied for was Deputy Director Cranio-Facial Research Unit and in relation to the number of hours per week he stated that he was seeking five sessions or 17.5 hours per week.  I find that the defendant extended the plaintiff’s contract of employment for a fixed period from July 1992 to June 1995.  The plaintiff said that he relied on the letter from Ms Winter to Dr Fotheringham dated 12 November 1992 to which I have previously referred to conclude that he was a permanent employee.  The plaintiff’s counsel sought to rely on the letter in the same way as he relied on the certificate dated 18 November 1991.  I make the same findings as I did in relation to the certificate.  In any event, there is a further difficulty for the plaintiff is seeking to rely on the letter.  The letter does not state that the defendant considered that the plaintiff was a permanent employee.

20. On 25 January 1995 the defendant wrote to the plaintiff advising him that his application dated 19 January 1995 had been received and that the plaintiff would be contacted again in March with the results of the selection process.  Again, the defendant’s records do not disclose the result of the plaintiff’s application dated 19 January 1995.  The defendant’s pay records indicate that the plaintiff was in receipt of remuneration for the period from March 1995 to March 1998.  In March 1998 the plaintiff completed a form entitled “(Senior) Visiting Medical/Dental Specialist and Visiting Dental Officer Application Form and lodged that form with the defendant.  The form was sent to the defendant under cover of a letter from the plaintiff dated 11 March 1998.  Also sent to the defendant was a copy of the original job specification, a certificate from the Dental Board of South Australia stating that the plaintiff was registered with the Board, a letter from the Medical Protection Society confirming that the plaintiff was a member of the Society and a curriculum vitæ of the plaintiff.  I find that the defendant extended the plaintiff’s contract of employment for a fixed three year period from July 1995 to June 1998.

21. The plaintiff said in his first affidavit that he recalled making applications to the defendant, although it appears that his recollection of when those applications were made is faulty.  He said that during this period his position was never advertised and he considered that he was a permanent employee of the defendant.  In my opinion, the plaintiff’s subjective belief that he was a permanent employee is of no relevance to the question of what was the period or duration of the contract of employment.  The plaintiff said that at about the time he signed the application in March 1998 he was advised by Ms Deidre Stone, the Co-ordinator of the Cranio-Facial Unit, that it was not necessary to do so because he was permanent.  As with the certificate dated 18 November 1991 and the letter dated 12 November 1992, the plaintiff did not rely on this statement as itself giving rise to a contractual term or condition.  There was no evidence that Ms Stone had the authority of the defendant to make contracts with the plaintiff or indeed to make admissions on behalf of the defendant on this topic.  Again, the plaintiff sought to rely on Ms Stone’s statement as evidence of the mutual understanding between the parties.  I do not think any weight can be placed on the statement of Ms Stone for the same reasons I gave in relation to the certificate dated 18 November 1991 and the letter dated 12 November 1992.

22. The defendant wrote to the plaintiff on 17 June 1998.  The letter is to the following effect:

    “Further to your application for the position of Visiting Dental Officer within the Division of Paediatric Surgery I am pleased to advise that your application has been successful and you have been appointed to the position of Assistant Director, Cranio Facial Research for 17.5 hours (5 sessions) per week.

    The term of this appointment will be from July 1998 to 30 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.

    Enclosed is a copy of this letter and the Job and Person Specification which you are asked to sign and return by 30th June 1998, as acceptance of this appointment ...”

1. At the bottom of this letter, the following appears:

   “I, Mr John Abbott, accept the offer of appointment to the position of Assistant Director, Cranio Facial Research in the Division of Paediatric Surgery for 17.5 hours (5 sessions) per week under the terms set out above.”

2. There is then provision for the signature of the plaintiff and the dating of his signature.  On 23 June 1998 the plaintiff signed this statement.  I find that the plaintiff was employed under a contract of employment for a fixed term commencing on 1 July 1998 and concluding on 30 June 2001.  This is consistent with what had occurred previously.  Even if I am wrong in making the findings I have in relation to the period from, say November 1990 to June 1998 (or part thereof), there is in June 1998 a clear and express agreement between the plaintiff and the defendant that the plaintiff’s employment from 1 July 1998 is pursuant to a fixed term contract of three years.  I reject any suggestion that it is a case of the defendant attempting to unilaterally vary terms of an existing contract.  By signing the defendant’s letter the plaintiff agreed to the terms and conditions contained therein.

3. On 21 February 2001, Mr A Sutherland the Chief (Medical) of the Division of Paediatric Surgery of the defendant wrote to the plaintiff.  Again, this letter is important and I set it out in full.

   “Dear Doctor Abbott

   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.

   In line with Clause 9 Hours, of the SA Visiting Medical Specialist Agreement, these positions will be advertised and filled on an hourly basis.  Remuneration for undertaking additional management duties will be by means of a small unit or large unit Schedule 1 (B) Managerial Allowance as per the SA Visiting Medical Specialist Agreement.

   Please note that conditions of all appointments for the next triennium will be a requirement to sign the revised job and person specification and to participate in an annual performance review process.

   As soon as I am able to do so, I will advise you of the number and nature of the Visiting Medical Specialist vacancies available for the next triennium.  All Visiting Medical Specialist vacancies were advertised in the Saturday Advertiser of the 10 February 2001.  Applications for positions will close on 23 February 2001.”

4. The reference in the letter to the Visiting Medical Specialists Agreement is an error.  That agreement only applies to persons registered with the Medical Board of South Australia.  The plaintiff was registered with the Dental Board of South Australia, not the Medical Board.

5. Sometime before receiving this letter, Mr Mullen, who was the Business Manager of the Division of Paediatric Surgery of the defendant, told the plaintiff that he need not apply for any position of employment, thereby (according to the plaintiff) reinforcing his understanding “of the permanent nature of the position he occupied”.  The plaintiff sought to rely on this statement in the same way as he sought to rely on the certificate dated 18 November 1991, the letter dated 12 November 1992, the statement made by Ms Stone in March 1998 and Mr Mullen’s statement.  For the reasons I have given in relation to those pieces of evidence, I do not think Mr Mullen’s statement advances the plaintiff’s case.

6. On 22 February 2001 the plaintiff completed a form entitled “(Senior) Visiting Medical/Dental Specialist and Dental Officer Application Form” and lodged that form with the defendant.  The plaintiff applied for the position of Assistant Director of the Cranio-Facial Research Unit and again sought employment for 17.5 hours per week.  The referees nominated in the plaintiff’s application included Mr David and Professor Tasman Brown.  The plaintiff said that at the time he lodged this application he spoke with Ms Stone who advised him that there was no need for him to lodge the application.  The plaintiff sought to rely on this statement in the same way as he sought to rely on the certificate dated 18 November 1991, the letter dated 12 November 1992, the statement made by Ms Stone in March 1998 and Mr Mullen’s statement.  For the reasons I have given in relation to those pieces of evidence, I do not think Ms Stone’s statement advances the plaintiff’s case.  By memorandum dated 2 April 2001, Mr David advised staff under his control, including the plaintiff, that he would in the case of each staff member be conducting a performance review.  By letter dated 9 April 2001 from Mr Mullen to the staff, including the plaintiff, certain aspects of Mr David’s memorandum were clarified.

7. In his first affidavit, the plaintiff gave a good deal of evidence about his relationship with Mr David in late 2000 and early to mid 2001, and the reasons for the deterioration in that relationship.  I do not propose to set out the details of that evidence.  I agree with the defendant’s submission that although it may be relevant to the grounds upon which judicial review is sought, it is largely irrelevant to the issue of the nature of the contract of employment, and in particular, whether the contract of employment was for a fixed period or a period of indefinite duration.

8. On 11 May 2001 the plaintiff wrote to the defendant and advised the defendant that he no longer wished to be a member of the Institute of Cranio-Facial Studies and he wished to resign from his position on the Board.

9. On 15 June 2001, there was a telephone conversation between Mr David and the plaintiff.  Mr David said to the plaintiff:

   “As you may be aware I have just been reappointed Head of the Cranio-Facial Unit – I have decided to change the research focus and as a consequence your appointment will not be renewed.  Out of fairness to you I am extending your current appointment to September 30.  Goodbye – have a good trip.”

10. On 22 June 2001, the defendant wrote to the plaintiff in the following terms:

    “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 1 October 2001.  It is my understanding that research positions will be readvertised during this period.

    A contract of employment confirming the offer of the locum appointment will be forwarded to you in the coming week.”

11. The defendant did not send to the plaintiff a contract of employment confirming the offer of the locum appointment as foreshadowed in the letter.

12. In the last week of September 2001 the plaintiff had a meeting with Ms Leigh.  The plaintiff told Ms Leigh that he considered that he was a permanent employee of the defendant.  Ms Leigh went through the plaintiff’s file and said that there was nothing which confirmed that assertion.

13. The plaintiff ceased working for the defendant on 30 September 2001.

14. Thereafter, the plaintiff instructed solicitors, and his solicitors wrote to the defendant on 30 November 2001.  The letter complains about the non-renewal of the plaintiff’s contract of employment with the defendant and sets out details of the plaintiff’s conversation with Mr David and refers to the defendant’s letter dated 22 June 2001.  The assertion is made in the letter from the plaintiff’s solicitors that the plaintiff had recently suffered a bereavement, namely, the death of his father and that this circumstance had caused him to delay seeking advice concerning the non-renewal of his contract.  The defendant responded to the letter from the plaintiff’s solicitors by letter dated 6 December 2001.  The plaintiff’s solicitors wrote to the defendant again on 7 December 2001.  As I have said, this action was commenced two weeks later.

15. It is appropriate at this point to mention two factual matters which the plaintiff said supported his case that after October 1990 he was a permanent employee of the defendant.  First, he pointed to the fact that other than the advertisement in 1987, his position as Assistant Director Cranio-Facial Research Unit was never advertised.  I do not see how this fact leads to the inevitable conclusion that the plaintiff was a permanent employee.  It may have been assumed that the plaintiff’s fixed term contract would be renewed or extended.  As a fact it does not outweigh the matters which have led me to the contrary conclusions set out below.

16. Secondly, the plaintiff attempted to prove that his position was financed by a special grant from the State Government either directly or through the South Australian Health Commission.  There are two difficulties with this submission.  First, although there may have been a grant initially, the evidence is not sufficiently clear for me to find as a matter of fact that the grant continued throughout the greater part of the plaintiff’s contract of employment.  Secondly, it is not clear to me why, even if the plaintiff’s position was the subject of a grant in the sense of being financed by it, that fact should lead to the conclusion that he was told he was a permanent employee.  In any event, this particular matter does not outweigh the matters which have led me to the contrary conclusions set out below.  I mention one final related matter.  The plaintiff said that he made the various applications because he believed his position was funded by a special grant.  The link between the two was never made clear.  In any event, the plaintiff’s uncommunicated reasons for doing something are not to be taken into account.

    Resolution of the Issues

17. 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.

18. That leaves for consideration the plaintiff’s argument that even if he was employed under a contract for a fixed term up until 30 June 2001, he continued to work after 30 June 2001 and a new contract came into existence.  The plaintiff argues that the defendant’s decision to impose a three month limit on his further employment was part of a decision which is void ab initio.  Therefore, the new contract which came into existence was a contract of indefinite duration which was only terminable on reasonable notice.  Reasonable notice was not given.  Therefore the plaintiff’s contract was wrongfully terminated by the defendant.  I do not accept this argument.

19. The defendant argued that it is important to characterise properly the decision which is to be quashed.  The decision to be quashed is a decision not to renew the contract (or enter into a new contract) for a period of longer than three months.  That would leave standing the decision to extend the contract for a period of three months.  At the end of that period the plaintiff’s contract of employment came to an end.  There was no termination of the contract by the defendant.  The plaintiff’s employment came to an end by agreement (Victoria v Commonwealth 1996 187 CLR 416 at 520; D’Ortenzio v Telstra (1997) 78 IR 468). Although I agree with the conclusion of this argument, I would analyse the issue a little differently. The critical question is not whether the decision is void or voidable or whether I quash all or part of the decision, but rather what was the agreement between the parties with respect to the plaintiff’s employment between 1 July 2001 and 30 September 2001. The fact is the plaintiff did work for the defendant during that period. Quashing the decision does not mean that the Court should ignore or put to one side the facts. The essential question concerns the nature of the agreement between the parties. 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.

20. The defendant submitted that in the exercise of my discretion whether to grant relief, I should take into account the fact that an alternative remedy was available to the plaintiff, namely, an action under s 106 of the Industrial and Employee Relations Act 1994.  This is not a case where it is suggested that the statute creates a right and provides the exclusive means for the enforcement of the right (Twist v Randwick Municipal Council (1976) 136 CLR 106 per Barwick CJ and Mason J). In light of the fact that s 106(2) refers to the bringing of proceedings under the Act or another law such an argument could not succeed. This is a case in which the defendant argues that in the exercise of my discretion a factor against granting relief is the fact that the plaintiff could have instituted proceedings in the Industrial Relations Commission of South Australia. The plaintiff’s counsel accepted that the plaintiff could have taken proceedings under s 106. As I understand it, judicial review remedies are occasionally refused because it is thought that relief should have, or should be, pursued through other processes. On the arguments presented to me, it is not clear that the two processes (ie., these proceedings and an application under s 106 of the Industrial and Employee Relations Act 1994) would be equally efficacious from the plaintiff’s point of view and I do not treat as a factor against the granting of relief the fact that an application could have been made under s 106.

    Conclusions

21. The plaintiff is entitled to an order that the decision of the defendant be quashed.  I will hear the parties as to whether the form of the order should be in terms of paragraph 1 of the Summons or some other form.  I decline to make orders in terms of the orders sought in paragraphs 2, 3 and 4 of the Summons.

22. I will hear the parties as to whether any other orders should be made, including orders as to costs.