Downe v Sydney West Area Health Service (No 2) - [2008] NSWSC 159

Reported Decision:
218 FLR 268

New South Wales

Supreme Court

CITATION: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159

HEARING DATE(S): 29 January 2007-2 February 2007, 5 February 2007-9 February 2007, 12 February 2007-16 February 2007, 19 February 2007-23 February 2007, plus subsequent written submissions.

JUDGMENT DATE :
3 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION: i.The defendants' direction to Dr Downe to perform work at Westmead Hospital in a manner inconsistent with the fulfilment by Dr Downe of her duties as Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants;
ii. The defendants' purported continued suspension of Dr Downe from the performance of duties as the Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants;
iii. During the subsistence of the current contract of employment between the plaintiff and the defendants, the defendants, and each of them, their servants or agents, shall refrain from directing the plaintiff to perform or not to perform any work or act, which direction is inconsistent with the performance by Dr Downe of her functions as Director, Neonatal Intensive Care Unit, Nepean Hospital;
iv. The defendants and each of them shall refrain from treating as valid, lawful or binding its or their direction to the plaintiff to work as a Staff Specialist at Westmead Hospital;
v. Each party has liberty to file and serve, within 14 days from the date hereof, a written submission on costs and each party may, within a further 7 days, respond in writing to any such submission;
vi. The parties have liberty within 35 days to approach the Court for any further or consequential order, including any order for damages, for the purpose of giving effect to or clarifying these reasons for judgment or ameliorating any administrative inconvenience arising from these orders;
vii. Order iii above shall be stayed for a period of 14 days from the date hereof;
viii. Otherwise the proceedings are dismissed.

CATCHWORDS: EMPLOYMENT – contract of employment – right to direct not to work – incorporation of disciplinary procedure – "suspension" – implied duties – good faith – relationship with award and statutory rights – injunction – personal service - INDUSTRIAL LAW – unfair contracts for performance of work – contract or arrangement – excludes award and statutory obligations – "remuneration cap" excludes payment under award and liability under statute - TRADE PRACTICES – employment not in "trade or commerce" – not unconscionable - CROWN PRIVILEGE – operation of s 47 of the Interpretation Act – right to suspend or remove – specific overrides general – public employment distinguished from officers with statutory powers or discretions

LEGISLATION CITED: Area Health Services Act 1986
Health Services Act 1997
Industrial Arbitration Act 1940
Industrial Relations Act 1996
Interpretation Act 1987
Police Service Act 1990
Protected Disclosures Act 1994
Public Schools (Scotland) Teachers Act 1882 (UK)
State Authorities Non-Contributory Superannuation Act 1987
State Authorities Superannuation Act 1987
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

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AIME v CSOA (1912) 6 CAR 95
Algar v Middlesex County Council [1945] 2 All ER 243
Ali v Hartley Poynton Ltd [2002] VSC 113; 20 ACLC 1006
AMCOR Ltd v CFMEU [2005] HCA 10; (2005) 222 CLR 241
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd & Ors [2000] FCA 0017; (2000) 169 ALR 344
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BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266
Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539
Blomley v Ryan [1954] HCA 79; (1956) 99 CLR 362
Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144
Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410
C. H. Giles & Co. Ltd. v. Morris [1972] 1 W.L.R. 307
CBA v FSU [2002] FCAFC 193; (2002) 125 FCR 9
Co-op Insurance Society Ltd v Argyll Stores [1998] AC 1
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Collier v Sunday Referee Publishing Company [1940] 2 KB 647
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Commissioner of Police v Ellis (New South Wales Court of Appeal, 2 July 1981, unreported)
Commissioner of Police for NSW v Jeffrey Jarratt [2003] NSWCA 326; (2003) 59 NSWLR 87
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305
De Francesco v Barnum (1890) 45 Ch 430
Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427
Downe v Sydney West Area Health Service [2006] NSWSC 1416
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2005) 221 CLR 309
Energy Resources of Aust Ltd v Commissioner of Taxation [2003] FCA 26
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55
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Goldsworthy v Brickell [1987] Ch 378
GPG (Australia Trading) Pty Ltd v GIO Australia [2001] FCA 1761; (2001) 117 FCR 23
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Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641
Hadley v Baxendale (1854) 9 Exch. 341
Hearne v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64
Hill v C A Parsons & Co Ltd [1972] 1 Ch 305
Holt v Protective Commissioner (1993) 31 NSWLR 227
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41
Irani v Southampton Health Authority [1985] I.C.R. 590
J C Williamson Ltd v Lukey & Mulholland [1931] HCA 15; (1931) 45 CLR 282
Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596; (2002) 56 NSWLR 72
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Johnson v Shrewsbury and Birmingham Railway (1853) De G.M. & G. 914
Mahmud v BCCI [1998] AC 20
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
McCarthy v Windeyer (1925) 26 SR(NSW) 29
McDonald v State Of South Australia [2008] SASC 134
Morton v The Transport Appeal Board & Anor (No 1) [2007] NSWSC 1454; (2007) 168 IR 403
Moshirian v University of New South Wales [2002] FCA 179
Murrell v South East Area Health Service [2006] NSWSC 313
New South Wales v Commonwealth [2006] HCA 52; 81 ALJR 34; 231 ALR 1
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O'Connor v The Argus and Australasian [1957] V.R. 374
O'Rourke v Hearne [2004] HCATrans 248
Patrick v Steele Mains Pty Ltd (1987) 77 ALR 133
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Perkins v Grace Worldwide Australia (1997) 72 IR 186
PKIU v Vista Paper Products [1991] IRCommA 1307 ; [1991] 12 CAR 167
Powell v Brent LBC [1988] I.C.R. 176
Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355
R v Klein; ex parte Harrap [1941] VLR 200
R v Tkacz (2001) 25 WAR 77
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Renard Constructions v Minister for Public Works (1992) 26 NSWLR 234
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Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2007] NSWSC 104; (2007) 69 NSWLR 198
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Shenton v Smith [1895] AC 229
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Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR(NSW) 632
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Wells v Newfoundland [1999] 3 SCR 199
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TEXTS CITED: Handley et al, Estoppel by Conduct and Election, (2006) Lawbook Co
Spry, Equitable Remedies, 7th ed (2007) Lawbook Co

PARTIES:
20188/2006:
Lynette Downe (Plaintiff)
Sydney West Area Health Service (Defendant)
30025/5006:
Lynette Downe (Plaintiff)
Sydney West Area Health Service (First Defendant)
State of New South Wales (Second Defendant)
Director-General of the New South Wales Health Service (Third Defendant)

FILE NUMBER(S): SC 20188/2006; 30025/2006

COUNSEL: J L Trew QC / A E Maroya (Plaintiff)
P M Kite SC / A B Gotting (Defendants)

SOLICITORS: Holman Webb Lawyers (Plaintiff)
Crown Solicitor's Office (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

3 JULY 2008

20188/06 Lynette Downe v Sydney West Area Health Service

30025/06 Lynette Downe v Sydney West Area Health Service & 2 Ors
JUDGMENT

1 HIS HONOUR: Dr Lynette Downe challenges her “suspension” by the defendants from her performance of duty as the Director, Neonatal Intensive Care Unit (“the Unit”) at Nepean Hospital (“the Hospital”) in Penrith. Dr Downe also challenges a direction by the defendants to perform work at Westmead Hospital (“Westmead”) as a Staff Specialist.

2 The defendants acknowledge that Dr Downe has exceptional clinical capacity. That capacity caused the defendants to act in a way, which, according to all of the parties, did not terminate or repudiate Dr Downe’s employment. The defendants seem to want to retain her highly desirable skills. They do not want her to act as Director of the Unit.

3 Dr Downe made application to the Industrial Relations Commission (the Commission) of NSW under s 106 of the Industrial Relations Act 1996 for an order declaring void and/or varying her contract of employment the effect of which, if successful, would be to prevent and/or overcome the suspension and the direction to work at Westmead. She has also applied to the Federal Court of Australia alleging unconscionable conduct in contravention of s 51AA of the Trade Practices Act 1974 (Cth). By cross-vesting orders, both of these proceedings were removed into this Court to be joined with an action, previously commenced by Dr Downe, for breach of contract.

4 There are three defendants: the Sydney West Area Health Service, the State of New South Wales and the Director-General of the New South Wales Health Service. The defendants do not differentiate between their interests or liability and invite the Court to treat them as one. The invitation is accepted; and they will hereinafter be referred to as “the Health Service”, which, except where discrimination between them is necessary or appropriate, will include the predecessors in title thereto.

5 The Health Service defends the proceedings on a number of bases, which raise the following issues:

(A) The circumstances of the appointment of Dr Downe and her employment history with the Health Service: see [6];

(B) The formal complaints made against Dr Downe: see [34];

(C) The Terms of Reference for the inquiry by the Honourable Russell Peterson QC (“the Peterson Inquiry”): see [41];

(D) The decision to suspend for the duration of the investigation: see [49];

(E) The report of the Honourable Russell Peterson QC (“the Peterson Report”) as arbitrator: see [56];

(F) The Oral Evidence and Objective Facts of the Matters Raised in the Complaints: see [77];

(G) The decision to suspend indefinitely: see [215];

(H) The application of s 51AA of the Trade Practices Act to this employment contract: see [227];

(I) Whether, given Dr Downe’s remuneration, s 106 of the Industrial Relations Act has application to her employment arrangement: see [239];

(J) Whether the Interpretation Act 1987 (in combination with the Area Health Services Act 1986) permits the Health Service’s conduct: see [283];

(K) Whether the terms of appointment and employment of Dr Downe include either or both a duty to act in good faith, and/or a duty not to act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between Dr Downe and the Health Service: see [320];

(L) Whether the Health Service’s Disciplinary Procedure is incorporated into the terms and conditions of appointment and employment of Dr Downe and, if so, whether it permits the suspension by the Health Service: see [329];

(M) Whether the Peterson Report bound the Health Service and, if so, whether continuation of the suspension thereafter was a breach of the contract or any other duty/requirement: see [356];

(N) Whether the effect of the variation to the Staff Specialists (State) Award (“the Award”) made on 28 April 2006 was to vary the contract of employment: see [360];

(O) Whether the variation to the Award had an effect on the capacity to enforce the contract: see [360];

(P) Whether Dr Downe acquiesced in her suspension and has either agreed to a variation of the contract to that extent or is otherwise estopped from challenging the suspension: see [384];

(Q) Whether, if s 106 of the Industrial Relations Act be applicable, the arrangement between Dr Downe and the Health Service includes the variation to the Award and whether s 106 may be used to void or vary an arrangement inconsistently with the variation to the Award: see [401];

(R) Whether the contract or arrangement, to the extent that it permits the Health Service’s treatment of Dr Downe, is unfair within the meaning of s 106 of the Industrial Relations Act : see [404];

(S) Whether the Health Service is, pursuant to the contract, required to provide work to Dr Downe or, more accurately, required not to prevent Dr Downe from performing duties: see [410];

(T) Whether the suspension breached the contract of employment: see [410];

(U) Whether, if s 51AA of the Trade Practices Act be applicable, the conduct of the Health Service is unconscionable and therefore in contravention of that provision: see [432];

(V) Whether, if the combined effect of the Interpretation Act and the Area Health Services Act were to permit the challenged suspension, the act of suspending is an abuse of power and/or effected for an improper purpose and therefore void: see [432];

(W) If there be an actionable breach of contract, has damage been suffered: see [439];

(X) If there be an actionable breach of contract, whether orders may be made enforcing the contract, which is a contract for personal service: see [441]; and

(A) Dr Downe’s History and Appointment

6 As earlier stated, Dr Downe’s skill, as a specialist neonatologist, is renowned. She undertook her paediatric training in Victoria and developed her subspecialty in both Australia and Canada. She practised in each and built up a remarkable reputation.

7 Neonatology, originally a sub-speciality of paediatrics, as the name suggests is concerned with the care of the high-risk newborn infant, but also concerned with the high-risk foetus. In the case of the newborn, the infant is always either seriously ill or significantly premature, or both. Neonatology is now a specialty recognised by the Royal Australasian College of Physicians. A Neonatal Intensive Care Unit, as may be obvious, is a unit that offers intensive care for those most seriously at risk. A Neonatal Intensive Care Unit may operate at different levels: levels 3 and 4 being the highest; and the difference between level 4 and level 3 is that a level 4 unit, although a term not often used, offers paediatric cardio surgery. Level 2 care may be offered by paediatricians, without persons who are recognised as having specialty neonatal qualifications, in a nursery other than an Intensive Care Unit.

8 In early 1990, Nepean Hospital offered Level 2 care and the Health Service determined that the level of care should be upgraded and that the Unit should be created.

9 As part of that process, Dr Downe was “headhunted” from Canada, where she was a Neonatal Fellow at McMaster University Medical Centre. Dr Downe had previously been a Neonatal Fellow at Monash Medical Centre Melbourne. An advertisement was published. Its terms relevantly included:

STAFF SPECIALIST – NEONATOLOGIST

NEW POSITION

POSITION No. N380

The Nepean Hospital is a 350 bed acute general hospital and is an affiliated teaching hospital of the University of Sydney. The Hospital is undergoing expansion in both service provision and bed numbers.

By December 1994, The Nepean Hospital will be a 600 bed tertiary referral hospital and a full teaching hospital of the University of Sydney, with its own clinical school training 90 medical undergraduates.

…

A new Level III Neonatal Intensive Care Unit has been funded. Initially, provision has been made for three beds with a fourth to be added in the next financial year. There will possibly be expansion over subsequent years to an eight bed unit.

There is a well-established 26 bed Level II Nursery in operation. The successful applicant will be the Director of the Unit.

There are already five general Paediatricians attached to the Hospital, with resident medical officer and registrar cover….” (Emphasis in the original).

The above advertisement was published, at least, on 15 March 1990 and, in late March or early April 1990, senior medical personnel associated with the Health Service contacted Dr Downe. Applications for the position closed on 30 April 1990.

10 At the time of the advertisement, the Nepean Hospital was under the control of the Wentworth Area Health Service (“WAHS”), which was not, in law, the Crown. Enquiries were directed to Dr Burrows, who was the Director of Medical Services and applications for employment were to be sent to the Chief Executive Officer of WAHS.

11 It seems that Dr Levy, then Head of Department, Paediatrics, spoke with and wrote to Dr Downe and sent to Dr Downe an application form for the position. It seems through the communication with Dr Levy, or through the advertisement, or both, all of the recited information in the advertisement was conveyed to Dr Downe, who contacted Dr Burrows.

12 In the telephone conversation, Dr Burrows informed Dr Downe, on inquiry, that apart from the Unit proposed at Nepean, there were two other nursery units in the WAHS and that these two Level 2 Nurseries at Hawkesbury and Blue Mountains Hospitals were not likely to become Neonatal Intensive Care Units.

13 The last exchange (relating to the two other Nurseries in the WAHS area) was a reference, it seems, to issues raised by the terms of the Application Form for the position. The Application Form, once completed, made reference to Position N380, as had the advertisement. Dr Downe initially completed it in part, with passages subsequently completed by the Health Service (or its predecessors in title). That part of the form that was completed by Dr Downe concludes with a declaration in the following terms:

“I hereby certify that the information set out above is, to the best of my knowledge and belief, true and accurate in every detail. Further, I agree to the following:

1. To undergo a medical examination, if required, to assess my capability for employment;

2. I have read and understood the document entitled “Conditions of Employment”;

3. I understand that I may be required to work in any facility under the jurisdiction of the Board of the Wentworth Area Health Service.”

It was signed by Dr Downe and dated 18 April 1990.

14 There were further discussions of no current relevance and Dr Downe attended an interview in June 1990. The interview obviously went well, but, it seems, there were no discussions concerning terms and conditions of employment.

15 It had become obvious from those conversations, I infer, that Dr Downe was the preferred candidate (if there were others). In order to be readily available for the position and better prepared, Dr Downe returned to Australia and filled two locum positions in Victoria. On 6 August 1990, Dr Downe wrote to Mr Hamilton, then CEO of WAHS, referring to a recent telephone conversation with Dr Levy. This letter is consistent with the understanding, partly conveyed in the advertisement, that Dr Downe would, if she were to fill the position, be the Director of the Unit and her initial task would be its establishment.

16 The abovementioned communication of 6 August predominantly related to the necessary equipment and services for a successful Level 3 Unit. It dealt with: support staff, including an additional neonatologist; registrar cover and administrative staff; alternative consultant cover to allow a minimum roster of 1 in 4 and preferably 1 in 5; return of patients to general paediatric care to be in the discretion of the Unit; 24 hour ancillary medical support, e.g. radiology, haematology and biochemical support; 24 hour bacteriology support; and like support that one would expect. The list was divided into “essential”, “highly desirable”, and “desirable, if possible” categories.

17 The covering letter for the above list mentioned that it had been compiled on the basis that Dr Downe “would be setting up the unit as Director”. In the letter Dr Downe went on to record:

“My feeling over recent weeks is that with the amount of time and commitment that it would entail to set up such a unit, [I] would prefer to be appointed as Director, rather than as the second neonatologist with the possibility of having a Director appointed at an indefinite time in the future who may well be someone with whom [I] would find it difficult to work.”

18 The possibility of appointment to a position other than Director seems to have been a matter discussed. Such an appointment would be inconsistent with the advertisement and, inferentially, the position description for Position No. N380 for which Dr Downe applied. For reasons associated with the actual appointment and its terms, it matters not. The only other conditions discussed were matters mentioned in earlier communication that needed clarification and related to the associated academic position and to annual leave entitlements.

19 On 15 August 1990, Mr Hamilton, CEO of WAHS, replied and formally confirmed approval by the Board of WAHS for Dr Downe’s appointment. It relevantly included the following:

“I confirm the approval of this Board for your appointment as Staff Neonatologist in the capacity of Director, Neonatal Intensive Care Unit.”

20 The letter agreed to the requirements of Dr Downe in her list and required her, once the Director’s position were taken up, to review the proposed utilisation of those additional resources. The 15 August 1990 letter answered the annual leave enquiry and informed Dr Downe of the liaison with the University of Sydney as to the academic position. Mr Hamilton enclosed a report on the construction of the Level 3 Nursery and set out the applicable salary under the relevant award (on some assumptions, which proved ex post facto to be correct). That salary included an “Administrative Allowance in respect to Director” of $2,593 in a total salary of $104,620. The last paragraph of Mr Hamilton’s letter was in the following terms:

“I would appreciate your advice as to your acceptance of appointment as Director, Neonatal Intensive Care Unit, Nepean Hospital in accordance with the above conditions. Your advice as to the date on which you could take up duty in that position would also be appreciated.”

21 On 26 August 1990, Dr Downe replied. The letter, in part, states:

“In reply to your letter of 15.08.90 I am writing to confirm that I accept the appointment as Director, NICU, Nepean Hospital, as offered. I will be available to take up the position at the beginning of November.”

It then discusses temporary accommodation and the desire to purchase a home.

22 On 25 September 1990, Mr Hamilton confirmed the foregoing. He wrote:

“Thank you for your letter of 26 August 1990 regarding your acceptance of the post of Director, NICU, Nepean Hospital.

…

I look forward to your commencing duty with Nepean Hospital and your organisation of Neonatal Intensive Care services offered through the hospital.”

The omitted part of the letter above discussed the accommodation issue and requested contact with Dr Burrows in relation to that matter and the finalisation of a specific commencement date.

23 Prior to accepting the position of Director, (i.e. sometime between June 1990 and 26 August 1990, and most probably just before 15 August 1990) Dr Downe clarified the term of the appointment as Director. In Victoria, where Dr Downe was by that time working, such appointments were for a fixed term: three to five years. Mr Hamilton told Dr Downe that “in New South Wales, these positions are permanent positions; that is, until you retire or choose to relinquish the position.”

24 Mr Hamilton is now, and was at the time of the hearing, deceased. Notwithstanding the lack of corroboration for this conversation, I accept that it occurred in the terms recited or substantially to that effect. Dr Downe was a very impressive witness, whose evidence I accept. She was cross-examined thoroughly and at length. The cross-examination commenced on Day 2 of the hearing and concluded on Day 6. Dr Downe displayed, as one would expect, intelligence and clarity of thought and expression. She was careful, in the evidence she gave, to be accurate and precise. Her demeanour, her willingness to answer directly, without argument, and her willingness to answer in seeming disregard to whether the answer helped or hindered her case leads me to accept her evidence. I add that her evidence was consistent with the view I take of the independent evidence available.

25 From the above circumstances and evidence otherwise adduced, these conclusions must follow:

(a) Dr Downe has exceptionally good clinical and medical skills;

(b) Dr Downe was a desirable appointee to the position;

(c) The position advertised was a Staff Specialist, Position No. N380, being the Director of the proposed Neonatal Intensive Care Unit at Nepean Hospital;

(d) The position offered and accepted was as Director, Neonatal Intensive Care Unit, Nepean Hospital, which position was a particular position within the broader group “Staff Specialist”;

(e) The position was deliberately not a “Neonatologist” simpliciter , i.e. other than Director;

(f) It was a requirement of the position that duties be performed as Director and that Dr Downe live in close proximity to the Hospital; and

26 Dr Downe commenced duties in November 1990 and was, until late 1991, the sole neonatologist at Nepean. She established the Unit, including overseeing purchasing and systems establishment, and oversaw its operations as well as performing the clinical work involved. In late 1991, Dr Coughtrey, another neonatologist, was appointed. I will refer to Dr Coughtrey later in discussing the complaints made against Dr Downe. By June 2004, there were four neonatologists working in the Unit and Dr Downe supervised the other three.

27 The evidence discloses that, notwithstanding Dr Downe’s lack of personnel management experience, the Health Service provided to her little or no training in that area.

28 Further, there was no suggestion that at any stage Dr Downe did not satisfy any Key Performance Indicators (KPIs) set for her. Indeed, it seems the Unit was extremely successful in saving lives and rendering them more useful. From the evidence in these proceedings, it does not seem that any KPIs were set dealing with management of personnel, but, if they were, it seems that they were met, as evidence to the contrary would have been available to the Health Service and highly relevant to the issues of discretion with which the Health Service asked the Court to deal.

29 While it was later revealed that, during Dr Downe’s period of employment prior to 1 July 2004, there were disciplinary issues discussed by staff relating to her, there had been no formal steps taken in relation to her employment as at that date.

30 On 1 July 2004, Dr Downe took long service leave to which she was entitled. She had obtained the consent of the Health Service (as is required by law and is otherwise appropriate). At the time that she went on leave, she was expecting (and no doubt looking forward to) a well-earned break, to return refreshed thereafter. The long service leave was scheduled for two months ending 6 September 2004.

31 Prior to proceeding on long service leave, Dr Downe had undergone a performance appraisal, during which no issues, which were subsequently raised, were ventilated. This was part of a process agreed between the Health Service and the industrial organisation representing Dr Downe (and other staff specialists), The Australian Salaried Medical Officers’ Association (ASMOF).

32 On Thursday 2 September 2004 (during the second last working day of her leave), Dr Downe was notified by telephone that she was to be suspended from her duties, pending an investigation into allegations concerning “bullying and intimidation” of Hospital staff. Despite her request, she was informed of no details of either the content of the allegations or their source. Dr Downe protested that she had not been at the Hospital for two months.

33 On 3 September 2004, the Health Service wrote to Dr Downe confirming the suspension. The letter, over the signature of Mr Graham Jenkins (Deputy Administrator, WAHS) was succinct. It was in the following terms:

Re: Suspension from Duty

Following the receipt of a report concerning alleged inappropriate behaviour by yourself, it has been decided that you are to be suspended from duty on full pay effective from 3 September 2004, pending an investigation. Access arrangements for security and computer network have also been suspended at this time. It would be appreciated if you would return your keys to Security.

As indicated a formal investigation will be undertaken in relation to this matter and dependent on the outcome a disciplinary interview may be held.

It is emphasised that the decision to suspend you from duty does not mean that any decision about the allegations against you has been made, or that they have in any way been prejudged.

You will be advised in due course as to whether we will be proceeding to a disciplinary interview.

Confidentiality should be maintained regarding this matter, which should not be discussed with any persons (including employees of this Area Health Service) except your professional association.

You should not make any public comment in accordance with the Area’s Code of Conduct, which I have attached for your information. Staff have been advised only that you will be continuing on annual leave at this stage.

The Area Health Service will meet the reasonable costs associated with an independent professional counselling service. Alternatively the Area provides a counselling service through the Staff Counsellors, Ms Margot Gook and Ms Beth Wilding who can be contacted on [a telephone number that is not repeated in this judgment].”

(B) The Formal Complaints Against Dr Downe

34 While Dr Downe was absent on long service leave, Dr Mark Tracy was appointed Acting Director of the Unit. Dr Tracy acted in that position from 1 July 2004. He was continuing in that position at the time of the hearing. On and after 17 August 2004, a series of letters were written making formal complaint about Dr Downe and her alleged conduct. The letters, except the letter from Dr Pardey, were written purportedly as “Protected Disclosures”. They were sent by Dr John Pardey (Obstetrician & Gynaecologist, Clinical Director of Women’s and Children’s Health at the Hospital) (17 August 2004), Dr Heather Coughtrey (Neonatologist at the Unit) (19 August 2004), Dr Mark Tracy (Acting Director of the Unit and Neonatologist) (23 August 2004) and Associate Professor Ralph Nanan (Director of Paediatrics) (25 and 26 August 2004). There was also a letter from Dr Tracy, dated 24 August 2004, extolling the virtues of the Unit and the change in attitude therein, since his elevation to the Acting Director’s position.

35 The timing of the letters is beyond coincidence. Common sense dictates that there was discussion between the complainants (or some of them) prior to the complaints being lodged. (I will come to the evidence of the complainants and other witnesses later in these reasons.) This conclusion is reinforced by the existence of an email chain in which Mr Mark Cormack, the then Chief Executive of the Hospital, sent to Mr Geoff Murphy, Workplace Relations Manager of SWAHS, a copy of one of the letters of complaint, being that of Dr Coughtrey. The email chain concludes at 10.14pm on 16 August 2004 (i.e. three days before the date on the letter). It is a necessary inference that Mr Cormack was advising one or more complainants prior to their complaint being formally lodged with him. That advice may not have been as to the content of the complaint. But it included the form of the complaint and it included a request to reduce oral complaints to writing.

36 It is unnecessary to summarise each of the letters of complaint as, following discussions between the Health Service and ASMOF, there was agreement on the terms of the allegations. The terms of that agreement gave rise to part of the Terms of Reference for the Peterson Inquiry. The other aspect of the Terms of Reference related to an issue raised by Dr Downe that, in summary, she believed that she was “the subject of a systematic campaign with the ultimate end being coercing me to resign my position” with the Health Service (letter 28 June 2004, Dr Downe to Mr Mark Cormack, Exhibit P2, page 47).

37 The complaint by Dr Downe of a systematic campaign against her was particularised by the recitation of three allegedly unfounded complaints against her in circumstances where at least one of those complaints had not been brought to her attention. The three allegedly unfounded complaints will be dealt with more fully later in this judgment, but involved a complaint, in each case, of an alleged statement by Dr Downe. The first of them related to a statement the effect of which was that paediatricians were killing babies; the second was the use of the word “slough” in a derogatory sense of paediatricians; and the third was an allegedly offensive remark about a visiting medical officer who was an obstetrician.

38 The letter of complaint of Dr Downe of 28 June 2004 was the catalyst for a matter raised by ASMOF on 6 October 2004. The letter raised a series of matters that were said to give rise to a pattern of victimisation of Dr Downe as a result of her raising genuine concerns about matters of patient safety and medico-legal issues.

39 The subject matter of the complaints about Dr Downe expressed in the letters of complaint by Drs Pardey, Coughtrey and Tracy were, as earlier stated, summarised and formed Part A of the Terms of Reference of the Peterson Inquiry. The complaints of Dr Downe as expressed by ASMOF formed Part B of the Terms of Reference of the Peterson Inquiry.

40 The terms of reference, as one would expect, were the subject of draft and redraft. It should be noted, it seems, that the Honourable Russell Peterson QC had an earlier draft of the Terms of Reference until some time late in the course of the interviews with the persons directly involved. It is an irresistible inference that the Honourable Russell Peterson QC was given that earlier draft by the Health Service. This was corrected during the interview with Dr Downe.

(C) Terms of Reference

As submitted, the Terms of Reference were as follows:

“ Terms of Reference for investigation by the Honourable Mr Russell Peterson QC of allegations made in August 2004 concerning Dr Lyn Downe, as well as matters raised by ASMOF on behalf of Dr Downe in correspondence dated 6 October 2004.

Terms of Reference incorporate variations agreed to between the parties at the meeting held on 21 October, 2004.

1. Investigate the allegations against Dr Lyn Downe set out in section A of the table below and advise whether they are established.

2. Investigate the matters raised by ASMOF on behalf of Dr Downe set out in section B of the table below and advise whether the allegations contained within those matters are established.

Ref	Allegation
1.	In connection with the employment of a 4th staff specialist neonatologist in the NICU in early 2004, it is alleged that the stated intention was to create a 1 in 4 on call roster for all staff neonatologists. This intention was stated in a job advertisement prepared by you and released on 8 may 2004, in the following terms: “ The new appointee would join the current staff of 3 Neonatologists to create a 1 in 4 on-call to the NICU...” In fact the roster was constructed by you in such a way that your on call load diminished to 1 in 7 or 8 whilst the on call load of the others remained little changed at 1 in 3 ½. It is further alleged that you have abused your power as director in relation to the neonatologists’ on call roster by representing that you had the authority of the Women’s & Children’s Health Executive Committee to determine the on call roster for all neonatologists at your absolute discretion and that you said to the other three neonatologists words to the following effect: “Area Executive have said that I have permission to do less on-call.” It is further alleged that in fact, the authority to determine the on call roster was subject to the agreement of all neonatologists.
2.	It is alleged that when dissatisfaction about the 2004 on call roster following the appointment of the 4th staff neonatologist was raised with you by Dr Coughtrey at a meeting of consultants in or around May 2004, you stated to Dr Coughtrey after that meeting in the tutorial room in the NICU that the manager of the Women’s & Children’s Health Division (Maya Drum) had stated that if Dr Coughtrey was not happy with the on calf roster, she could leave.
3.	It is alleged that you initiated the 2004 Neonate Review to discredit Dr Coughtrey and misled her to believe that the review concerned the role of paediatricians in the NICU. In particular it is alleged that in early 2004 at a consultants meeting at which Drs Klimek and Tracy were present, but Dr Coughtrey was not, you stated that you believed that Dr Coughtrey was “impaired” such as to cause serious adverse outcomes for patients, without giving any examples. At a subsequent consultants meeting on 8 June 2004, you advised the consultants that the purpose of the Review was to examine the role of Paediatricians in the NICU and that you didn’t know why the Review was happening and that it was “another waste of money. However, the terms of reference of the Review, prepared by you, included “... concerns relating to practitioners to be documented for actioning”
4.	It is alleged that about 7 years ago, you misinformed Dr Coughtrey about her eligibility for senior staff specialist status. In particular, it is alleged that when Dr Coughtrey enquired of you; about the criteria for eligibility for senior staff specialist status, you replied to her in words to the following effect: “It is only for managers”. It is further alleged that approximately 4 years ago you gave similar advice to Dr Tracy by telling him that senior staff specialist status was “for directors only”. It is further alleged that on 3 October 2003, at a meeting between yourself, Dr Tracy and Mr Sim Mead of ASMOF, Mr Mead said to Dr Tracy words to the following effect: “... you are entitled if you fulfil the criteria ... unless you have done something major wrong.” It is alleged that you then said words to the following effect: “There is no way that I would allow DR Coughtrey to get this recognition. I work much harder than anyone else. This was recompense for that extra work.” When Dr Tracy applied for senior staff specialist status a number of weeks later (which recognition he was granted... as was DR Coughtrey when she applied some weeks ago), it is alleged that you said to Dr Tracy words to the following effect: ”Don't tell Heather Coughtrey about this.”
5.	It is alleged that you discouraged Dr Tracy from involving Dr Coughtrey in research he was conducting, thereby disadvantaging her professionally and detracting from the worth of the research. In particular, it is alleged that on numerous occasions you have, in the presence-of Dr Tracy, referred to Dr Coughtrey as being “lazy”, “stupid” and “a fucking lazy bitch”. When Dr Tracy discussed with you earlier this year his plan to conduct a research project into ventilators used in the NICU on neonates, it is alleged that you said words to the following effect: “If you want Heather in then I’m out. You and your research won’t get my support.” As a consequence of your alleged response to Dr Tracy, it is further alleged that this research project has not commenced, thus disadvantaging Drs Tracy and Coughtrey professionally, as well as future patients of the NICU.
6.	It is alleged that you have spoken of Dr Coughtrey in derogatory and dismissive terms to 3rd parties. In addition to the matters referred to in 5 above, it is alleged that you have referred to Dr Coughtrey in similar terms in recent years, and continue to do so, in the presence of Drs Tracy and Klimek as well as Irene Wong and Jennifer Dawson.
7.	It is alleged that you have, without foundation, sought to solicit from Dr Tracy, statements adverse to Dr Coughtrey, to the effect that she is impaired. This is alleged to have occurred on many occasions over a number of years. On one such occasion, which is referred to in item 3 above, when Dr Coughtrey was on leave, it is alleged that at a consultants meeting at which yourself and Drs Klimek and Tracy were present, you said that you were concerned that Dr Coughtrey was impaired such as to lead serious adverse outcomes, although you gave no examples. Despite protestations by Drs Klimek and Tracy to the effect that they were both unaware of any instances of impaired clinical judgement on the part of Dr Coughtrey, it is alleged that you continued to place pressure on Dr Tracy to acknowledge that an occasional factual error by Dr Coughtrey had occurred during consultant handover.
8.	It is alleged that when Dr Tracy fell ill with Ross River Virus in 2001, you were unsupportive and gave him poor advice. In this regard it is alleged that, despite Dr Tracy’s illness, you took no steps to find a locum to replace him and pressured him to work on a part-time basis, which was not in the interests of Dr Tracy or the patients of the NICU.
9.	It is alleged that you (inappropriately) promoted the use of an inhaled steroid (fluticasone) in the NICU, despite the fact that this drug is not used in any other neonatal unit as it is more potent than budesonide and has more potential for systemic effects. It is further alleged that you have refused to have any discussion with Dr Tracy about this issue despite his concerns based on advice from Dr Peter Cooper, Respiratory Physician at Westmead Children’s Hospital, to use an alternative.
10.	It is alleged that you have abused your power in relation to rostering of duty and leave for neonatologists by rostering them on call both at the beginning and end of periods of leave. For example, you rostered Dr Tracy on-call from 6-12 January, 2003, before he proceeded on leave from 13-31 January, and again, after he returned from leave, he was rostered on-call from 3-9 February, 2003. It is further alleged that you ensure that you do not roster yourself on-call in the period before you proceed on, or return from, leave.
11.	It is alleged that you actively oppose collaboration between the NICU and the-Paediatric department. For example, this year it is alleged that you have resisted the commencement of a research study proposed by Mr James Marceau, a senior neonatal nurse, into the use of sucrose to settle drug-withdrawing babies. Mr Marceau's study was to be part of his Masters-Degree, which Professor Nanan is supervising. It is alleged that you stated to Dr Tracy: “These are our patients... not his (meaning Professor Nanan)”.
12.	It is alleged that you have unjustly berated the head of the paediatric department (Professor Nanan) to Dr Tracy, by saying to Dr Tracy over the past six months things such as: “He (Professor Nanan) is a bastard”.
13.	It is alleged that when Dr Pardey commenced as Head of Women’s & Children’s Health, you refused to meet with him without union presence. It is further alleged that you refused 3-4 requests made by Dr Pardey through your secretary to meet with him.
14.	It is alleged that you stated to a group of staff in a public place that a named VMO obstetrician was “the worst obstetrician in the west of Sydney”.

Ref	Allegation
1.	The apparent failure to undertake an investigation of the incident where a Root Cause Analysis (RCA) was recommended.
2.	The failure by the Area to resolve the issue of the involvement of paediatricians in the NICU despite three independent reviews.
3.	The failure by the Area to assess whether the two complaints (March/April 2004 and July/August 2004) against Dr Downe were vexatious, particularly in the light of point 2 above, as required under Circular 99/45.
4.	The apparent breach of confidentiality in relation to Dr Coughtrey and the relationship of any breach to Allegation 3.
5.	The pressure from Dr Pardey on Dr Downe to provide services to the private hospital and the failure of the Area to address this issue.
6.	The reasons for the failure of the Area to investigate complaints against Dr Pardey by Dr Downe and Dr Tracy in 1999.
7.	The insistence by the Area that Dr Pardey (or Dr Nanan) be involved in Dr Downe’s performance assessment in June 2004.
8.	Whether the above matters amount to unfair or unreasonable treatment and/or victimisation of Dr Downe by the Area or its employees/contractors.”

41 The process of investigation was agreed at a meeting at which were present representatives of the Health Service, ASMOF, Dr Downe, counsel for the parties and the Honourable Russell Peterson QC. The Honourable Russell Peterson QC then interviewed a number of persons, other than Dr Downe, identified in advance as being relevant to the allegations referred. The notes of those interviews were then made available to ASMOF and Dr Downe to enable Dr Downe then to be interviewed, to respond to matters raised in the earlier interviews and otherwise to put the position that she wished.

42 Even though there were complaints by both ASMOF and Dr Downe that there were insufficient particulars of the allegations, the process adopted was agreed on the basis that the notes of the interview would, necessarily, provide the particulars otherwise desired.

43 The Honourable Russell Peterson QC described the investigation as “not designed to be a wide-ranging inquiry seeking any evidence of fault; it was confined to an ascertainment of the facts concerned strictly with the allegations as they were framed, and a commentary upon those facts as found.” (Paragraph 3 of the Peterson Report)

44 Consistent with the attitude of the Heath Service in these proceedings, it was stressed by the Health Service in the Peterson Inquiry: “none of the questions which arise about Dr Downe’s performance concern her clinical skills and their application”. The Peterson Report (paragraph 5) records the Honourable Russell Peterson QC as saying:

“Everything I have heard in that [relating to clinical skill] respect, not recorded in the notes because of strict irrelevance to the issues but nevertheless a repeated feature of the commentary received from the interviewees, supports the view that Dr Downe is an excellent clinician with a devotion to her patients and their parents. The issues are confined to the area of her relationship with other staff, including particularly the neonatologists under her supervision in the NICU.”

45 Paragraph 1 of the Peterson Report comments on the capacity of the NICU (the term used for the Unit) to function if Dr Downe were reinstated into an active position as Director of the Unit. As can be seen from the Terms of Reference set out above, such a finding, recommendation or conclusion is plainly outside the Terms of Reference. Nevertheless, and despite the agreement as to the precise terms to be referred, that comment formed a significant factor in the conduct of the Health Service in continuing the suspension of Dr Downe.

46 The Honourable Russell Peterson QC said:

“I was asked to undertake the task that would otherwise be performed by management, namely to ascertain whether there was any substance to the allegations. However, while the allegations were found to be only partially substantiated, the investigation revealed that the working relationships of staff within the NICU have been imbued, for many years, with a high degree of conflict and animosity. While this involved not only the Director of the NICU, it seems clear that the staff there were not provided with the managerial leadership that one would expect of a Director. The Director’s relationships with others outside the NICU were often affected by similar conflict. These situations, in my view have caused the interviews with persons other than Dr. Downe to frequently involve the expression of personal opinions and allegations of a kind which seem to me to mean, when taken together with the fact of her absence now for some months, that there is no possibility of her returning to the NICU in any capacity. In particular, I am quite unable to see how the three remaining neonatologists would be able to work satisfactorily with, let alone under, Dr. Downe given their participation in the making of the original allegations and their forthrightness in interviews with me. However one might view the particular allegations the subject of this investigation, there remains in some staff a deep-seated animosity towards the Director which I consider is irremovable and, in the event of her return, likely to be destructive of the ability of the NICU to function. I consider the matter is one appropriate for the parties to resolve by finding an agreed solution.”

47 I will deal later in this judgment with the appropriateness of that conclusion and the inconsistency between the procedures, which mandated the Inquiry itself, and a finding that action should occur, of a disciplinary nature, absent allegations of a particular kind. I should add that given the precise and express allegations with which the Inquiry was concerned, Dr Downe and/or ASMOF had no opportunity to address that finding with the Honourable Russell Peterson QC.

48 Moreover, and somewhat more importantly given the task of the Court, the Peterson Inquiry did not seek to test the truthfulness of the allegations or to conduct a full and complete inquiry into all of the circumstances that gave rise to the allegations. For example, there was no cross-examination of any interviewee. Nor was there an investigation of documentation, nor otherwise of the circumstances surrounding the allegations made.

(D) The Decision to Suspend for the Duration of the Investigation

49 As earlier stated, on 1 July 2004, Dr Downe commenced a period of long service leave anticipated to be for a period of two months. Between 17 August 2004 and 23 August 2004, complaints were received, which related to the new roster for neonatologists and the method of its design and implementation (an allegation purportedly relating to abuse of power); an allegation that Dr Downe told Dr Coughtrey that if she did not like the roster she could leave; an allegation that the independent neonatal review by Dr Reynolds (the “Reynolds Inquiry”) was initiated to discredit Dr Coughtrey; an allegation that “seven” years previously, misinformation had been given to Dr Coughtrey about eligibility for senior staff specialist status; an allegation that there was discouragement of Dr Tracy’s attempts to involve Dr Coughtrey in research; an allegation that Dr Downe spoke derogatorily and dismissively of Dr Coughtrey to other persons; an allegation that attempts were made to solicit adverse comments of Dr Coughtrey from Dr Tracy; an allegation of lack of supportiveness of a staff member; an allegation about the over-use of inhaled steroid; another detailed complaint relating to rostering immediately prior to and immediately after periods of leave; lack of collaboration with the paediatric department; unjustifiable berating of the head of the paediatric department; the refusal to meet with Dr Pardey for a period (which was by then a past date); and a statement of a derogatory nature made in relation to an obstetrician.

50 None of the allegations were emergent. Most of them had some significant history. None of them seemed to preclude the performance of work during the course of an investigation. In one case, at least, the decision makers within the Health Service knew that the allegation was false. I will detail the basis of these conclusions in the course of discussing the merits or otherwise of the allegations. It is sufficient, for the present purpose, to note that none of the allegations, including in context the allegation concerning inhaled steroid, directly impacted upon the capacity of the Unit to continue to operate or threatened the life or health of any patient were Dr Downe to continue to perform duties.

51 Nevertheless, the Health Service determined that, pending the investigation of these complaints, Dr Downe ought not perform work in the Unit and purported to “suspend” her, as earlier outlined.

52 Before detailing the findings of the inquiry, it is appropriate to point out that the circumstances leading to the suspension involved a letter to Dr Downe from the Health Service dated 3 September 2004 (see [33] above), which letter required Dr Downe to maintain confidentiality and not discuss the matter with any persons, including fellow employees, which, necessarily, included persons, if any, who would support her version of events.

53 Further, Dr Downe was prohibited from making any public comment and was assured that members of staff “have been advised only that you will be continuing on annual leave at this stage”.

54 The last of those statements is plainly wrong, misleading and possibly deliberately so. In the unlikely event that the statement was intended to refer to past advice, no such advice had been given. If the far more probable construction of the letter, being that it relates to any advice to be given, were adopted, then the description in the first sentence of this paragraph is even more apposite. The staff were informed by “Confidential Memorandum” in the following terms:

“ CONFIDENTIAL MEMORANDUM – TO ALL NICU STAFF

NOT FOR DISTRIBUTION OUTSIDE OF NICU

TO:

FROM:

DATE:

SUBJECT: Dr Lyn Downe

_______________________________________________________________

Please be advised that Dr Lyn Downe will not be required to attend for duty until further notice pending an investigation.

This is a fact-finding investigation with regards to some complaints by staff. The complaints do not relate to Dr Lyn Downe’s clinical standards. The purpose of the investigation is to ascertain facts in regards to the complaints that have been made. It is not a disciplinary process and any further action will depend on the findings of the investigation.

All staff are to maintain the normal standard of professionalism and confidentiality and not to speculate or gossip; to do so may be prejudicial to the process and not in the best interest of NICU or the Hospital.

Mark Cormack”

55 It is plain that members of staff were not informed that Dr Downe was continuing on annual leave. They were informed that complaints had been made. They were not informed of the nature of the complaints, other than that they did not relate to Dr Downe’s clinical standards. They were informed of an investigation into the complaints and that Dr Downe was not required to attend for duty until further notice pending that investigation.

(E) The Peterson Report

56 The Honourable Russell Peterson QC set out his findings on the specific matters referred to him. As previously noted, not in any way as a criticism, the Report did not seek to resolve a number of areas of conflict in versions. The process undertaken by the Honourable Russell Peterson QC did not allow for the resolution of those. Nevertheless, it is clear from the Report that, even without finally resolving conflicts in evidence, the Honourable Russell Peterson QC found that most of the allegations were not substantiated and those areas that were substantiated were minor or inconsequential.

57 In relation to Allegations A1 and A2 (beyond call roster), the allegation related to what the Peterson Report referred to as “misperceptions … that the term 1 in 4 meant only 1 week on call in any 4 weeks.” The Honourable Russell Peterson QC went on to remark that he accepted that “4 persons are incapable over time of covering a seven-day 24 hour roster by a commitment limited to 1 week in 4”, and “that aspect of the allegation cannot be substantiated.”

58 As to the allegation relating to Dr Downe saying to Dr Coughtrey that Ms Drum had stated that if she (Dr Coughtrey) was not happy with the on call roster, she could leave (Allegation A3), the Honourable Russell Peterson QC could not resolve what he considered to be a conflict in the evidence between Dr Downe and Ms Drum. However, the Report notes that Dr Downe “had achieved a not unreasonable outcome by a process strictly inconsistent with the instruction given to her”, assuming that Ms Drum’s version of the conversation was accurate. In those circumstances, the Honourable Russell Peterson QC considered “this allegation is not made out”.

59 In relation to the initiation of the 2004 neonate review (the Reynolds Inquiry), it was alleged against Dr Downe that she initiated the 2004 review and misled Dr Coughtrey to believe that the review concerned the role of paediatricians in the Unit. The Peterson Report holds that “the main parts of this allegation cannot be substantiated”. It also notes: “it is established beyond question that Mr Cormack decided to have the Review and that he and Ms Drum, not Dr Downe, wrote the Terms of Reference.”

60 Allegation A4 deals with advice allegedly given by Dr Downe to Dr Coughtrey in 1994 (described as 7 years earlier) that Dr Coughtrey was not eligible for an award classification of senior staff specialist. There is no suggestion that, if the advice were given, it was knowingly wrong. The other aspect of this allegation is the reaction by Dr Downe to information, provided by ASMOF, some 9 ½ years later than the earlier advice, that there was such an entitlement by senior staff, in this instance Dr Tracy. Dr Downe, it was alleged, opposed Dr Coughtrey getting this recognition and asked Dr Tracy not to tell her. (The full allegation is set out in Item A4 of the Terms of Reference above).

61 With respect to the Honourable Russell Peterson QC, I agree with his statement of fairly obvious problems with this allegation. First, the Report notes that there is no direct conflict between the competing versions, because Dr Downe has no recollection of it. Secondly, the Report notes that a failure of Dr Downe to recollect it does not mean that Dr Downe must have made the observation. Thirdly, the Report notes that the issue concerns an award right and that Dr Coughtrey could easily have checked with her union and the Report questions “why one would so readily accept the word of another one disliked or despised”. Notwithstanding the lack of recollection of Dr Downe, the obvious questions that arise from this allegation caused the Honourable Russell Peterson QC to note that it was “difficult to take a positive view against Dr Downe on this issue at this stage”.

62 As to the balance of allegation A4, namely the allegation of unfair treatment of Dr Coughtrey, the Report notes and implicitly accepts that the entitlement is an entitlement under the award and Dr Downe has no role to play in selecting or approving staff for senior status. No comment is made as to whether the comments, if made, reflected adversely upon Dr Downe’s role as Director of the Unit.

63 Allegation A5, as noted above, dealt with the discouragement by Dr Downe of Dr Tracy seeking to involve Dr Coughtrey in research. The consequence, it is said, of that discouragement is that the research project has not commenced and thereby Drs Tracy and Coughtrey have been disadvantaged professionally, as have future patients. The Honourable Russell Peterson QC reported that it was “difficult to precisely find against Dr Downe” on that issue. He noted that an investigation was required of the volume of research done, by whom and with whom, the protocol and ethics development and the success or likelihood of it. Those aspects were, in the view of the Honourable Russel Peterson QC, not reasonable for present investigation and might resolve themselves one way or the other.

64 Allegations A5, A6 and A12 are summarised by the Honourable Russell Peterson QC as the use of derogatory language. This allegation is one that has support, according to the finding of the Report. The Report recites the denial by Dr Downe of the use of the “F” word but otherwise acceptance by her that derogatory language occurs from time to time in the Unit. It also notes that derogatory language occurred in the absence of Dr Downe and occurred during 2000 when Dr Downe was on study leave. The Report notes, accurately, that “it will be a matter of the weight to be given to any such finding” and the necessary inference from the Report is that while derogatory language was used, it was not considered to be particularly problematic, was not confined to Dr Downe or reactions to her, and would not, of itself, reasonably involve the imposition of disciplinary action.

65 Allegation A7 relates to the soliciting of members of staff of adverse statements relating to Dr Coughtrey. The Report holds that “this allegation has not been shown to have any support”. The Report notes that the Director’s role would necessarily involve, from time to time, unavoidable inquiries into the performance of others. According to the Report, there is no support for a view that any inquiry of that kind reflected a concern that was contrived or was other than bona fide.

66 Allegation A8 involves the lack of support for Dr Tracy when he was ill. The Report concludes: “this aspect is without foundation”. Moreover, after noting that the allegation is somewhat uncertain in its terms, the Report seems to suggest that the allegation itself is contrived.

67 Allegation A9 deals with the overuse of inhaled steroids. This is a clinical issue, to which I will return. Nevertheless the Report notes the supply by Dr Downe of records refuting this allegation and considered “that the answer supplied by Dr Downe is overwhelming. The records seem to speak for themselves in that respect.”

68 Allegation A10 involved the rostering of other neonatologists immediately before and after leave periods and the Report notes that “far from abusing her position to her advantage, Dr Downe in fact accepts a burden at least equal to that for the other neonatologists”.

69 Allegation A11 dealt with collaboration with Paediatrics. The Report considered that Dr Downe effectively answered this allegation. The Report noted that this was an aspect of what seemed to be “an on-going ‘turf war’ over the management of babies” in the Unit.

70 The Report notes that there had been three independent reviews relating to the management of babies in the Unit and Dr Downe’s actions are in pursuit of those recommendations and as such are prone to be misconstrued as a resistance to collaboration. The Report notes, the unarguable proposition, that “there is no possibility of suggesting that her [Dr Downe’s] aims are not in the interests of the babies, as that is the basis of the recommendations”. It further notes what implicitly is a criticism of senior management that “it is difficult to understand why, if the reviews have recommended a particular course of action, now since 1995, there has been a failure to implement the recommendations”.

71 Further the Report notes that there was no evidence brought forward which could demonstrate an actual refusal or failure by Dr Downe to collaborate with Paediatrics and certainly none with any detrimental effects on babies. The Report found nothing of substance in the allegation.

72 Allegation A13 is divided into two parts: the refusal to meet with Dr Pardey; and the allegation that Dr Downe made reference to “the worst obstetrician in the west” (a reference that was not alleged to be about Dr Pardey, but of another). As to the first part, the Report notes that it depends upon competing oral evidence, which cannot be resolved by the Inquiry. Dr Downe denied refusal to attend any such meetings. The allegation however, as summarised, involves Dr Downe’s secretary, who made arrangements for all such meetings, and whose “evidence” before the Peterson Inquiry was very clearly that no attempt was ever made with her to arrange a meeting of the two persons. That allegation (or that part of the allegation) was held to be unsubstantiated with very little possibility of the issue being held against Dr Downe.

73 The second part of Allegation A13 dealing with the statement about “the worst obstetrician in the west” resulted in a finding that there was no evidence produced which could support this allegation. Dr Downe denied the allegation and no other material, apart from the bald assertion, was available.

74 Lastly, having considered all of the factual matters and allegations against Dr Downe, the Peterson Report did not detail findings in relation to Part B of the Terms of Inquiry, the Honourable Russell Peterson QC deciding “that it would be to go beyond what is necessary to investigate further the facts surrounding the allegations made by Dr Downe”. Notwithstanding that approach, the Report notes that the Honourable Russell Peterson QC has “not been persuaded that there is any substance in allegations B1 and B4”. The other allegations, the Report notes, raise matters that are potentially lengthy and involve serious questions and possible offences and the view of the Honourable Russell Peterson QC was that “it is preferable that the parties apply themselves to the task of seeking an amicable solution to the overall problem disclosed in this matter, with the knowledge, however, that these issues remain extant.”

75 It is plain, from the foregoing, that the allegations made against Dr Downe were largely unsubstantiated. Those allegations that could be “substantiated” either involved a clinical assessment of the appropriateness of a greater role of paediatricians in the Unit, contrary to independent reviews, or involved the use of colourful language in which Dr Downe was one of many involved in that practice.

76 Overall it is fair to summarise the effect of the Report as one that holds that no serious complaint against Dr Downe is substantiated. Further, with the possible exception of three of the allegations made by Dr Downe, no investigation was finalised into the matters raised by her. Allegation B2, the Report, by necessary inference, held was substantiated (see [69], [70] and [71] above). In relation to Allegations B1 and B4, the Honourable Russell Peterson QC was not persuaded that there was any substance to the allegations.

(F) The Oral Evidence and Objective Facts of the Matters Raised in the Complaints

77 In dealing with the objective facts surrounding the matters that gave rise to the Peterson Inquiry and therefore the initial (and eventual) suspension, it is necessary to deal briefly with the credit and demeanour of each of the witnesses and then the allegations.

78 I have already commented on the credit and demeanour of Dr Downe in relation to the conversation with Mr Hamilton in or about September 1990 (see [24] above). I reiterate that Dr Downe was a person whose evidence I accept for the reasons set out already and that conclusion applies to all of her evidence and the conflicts that arise in the evidence. I will not, in these general comments, deal with each and every witness, but will deal with the major and/or contentious witnesses.

Dr John Pardey

79 I deal firstly with Dr Pardey. He was an obstetrician and gynaecologist and was the Clinical Director, Women’s and Children’s Health at Nepean Hospital. Ultimately, after cross-examination, there was not a great deal contentious about the evidence of Dr Pardey. The fundamental issue of concern to Dr Pardey involved an issue of competing clinical assessment that did not depend upon the credit of any particular witness. In one aspect only was there a significant, relevant contention of fact and that related to the assertion that Dr Downe refused to meet with Dr Pardey on a number of occasions.

80 To the extent that there is a difference (and I doubt that there is) between the evidence of Dr Pardey and the evidence of Dr Downe on this aspect, I prefer the evidence of Dr Downe. There are two reasons for this. First, Dr Pardey made the assertion in his Affidavit that he had a conversation with Dr Downe. The text of that conversation is given at paragraph 15 of his Affidavit. In cross-examination, in relation to this relatively damning accusation of a refusal by Dr Downe to meet with someone with whom she was working (and may at least in part be answerable), it became clear that not only did Dr Pardey not remember the precise words that were used (which is not unusual and would be understandable), but he agreed that it was possible that the conversation did not occur at all.

81 In cross-examination Dr Pardey concedes that the attempt to arrange the meetings may have or probably would have occurred as between Dr Pardey’s secretary and Dr Downe’s secretary and not by a direct conversation between the two medical practitioners.

82 The willingness to swear to the conversation in precise terms, even though when tested, it was conceded that the conversation, as such, probably never occurred, is consistent with the general demeanour of Dr Pardey. Dr Pardey gave the impression that he considered that giving evidence in the witness box was a performance. He was prepared to reconstruct where there was no memory and embellish answers in a way that gave the impression that he was seeking to defend his own position rather than give evidence of facts that he recalls. The embellishment of his answers was effected in a manner, which sought to make the answers esoteric and it seemed that he did so for the purpose of making his evidence more believable and less open to challenge.

83 Dr Pardey gave evidence that, if Dr Downe were once more to be performing work as the Director of the Unit, he would “put a line through the past”. It would, he said, be difficult to move forward with trust, but he would seek to do that over time.

84 The lack of trust of Dr Downe by Dr Pardey is said to have been on the basis of her criticism of his performance of a caesarean operation in 1999. The obvious difficulty with that issue preventing Dr Pardey working with Dr Downe is that Dr Pardey worked with Dr Downe between 1999 and 2004.

85 There were a number of issues between Dr Pardey and Dr Downe, which the Health Service seeks to use as a reason why, were I otherwise minded to make an order, an order would not be made. Those issues are part of the details of what are said to be personality conflicts that would prevent Dr Downe from working as the Director of the Unit.

86 There are two matters upon which, in relation to Dr Pardey, Dr Downe’s conflicts arise. One of the matters is the complaint made by Dr Pardey relating to the refusal of Dr Downe to allow neonatologists to work in the private hospital, which was in grounds adjacent to Nepean Hospital. The concerns in relation to neonatologists working in the private hospital were concerns expressed by Dr Downe because of the lack of insurance cover for neonatologists when working outside the public hospital system. This is a legitimate concern of Dr Downe and, somewhat ironically, is a concern for the protection of the neonatologists working in the Unit, at least two of whom raised complaints about Dr Downe’s lack of support for other neonatologists in the Unit.

87 The other aspect of contention between the two was in relation to a conversation concerning the provision of an equipment list.

88 To the extent that it is necessary to deal with this issue (and its relevance, if any, is extremely marginal), I accept the version of events given by Dr Downe. I accept that Dr Downe did not refuse to do a list and stated as much. I accept that Dr Downe agreed at an executive meeting to provide an equipment list in the timeframe required by Mr Graham Jenkins and I accept that Dr Pardey insisted upon a more stringent timeline in words that were threatening of Dr Downe’s position to which Dr Downe responded:

“You seem to be suggesting that my position is conditional upon doing this list. I feel intimidated by that implication.”

89 I do not consider that Dr Downe acted in any way unreasonably in that exchange or in a manner that would suggest any difficulty in personal relations.

Professor Jane Gordon

90 Professor Gordon’s role in the events leading up to the suspension of Dr Downe and thereafter is minimal, in any contentious sense. Professor Gordon is the Director of Clinical Operations, Western Cluster, of the Sydney Western Area Health Service and has occupied that position since January 2005. That position includes responsibility for Nepean Hospital and other hospitals in the area. She is a most senior administrator whose background was Area Director of Nursing and Health Service Evaluation. She has been employed at the Health Service since 1997.

91 Professor Gordon took over responsibility for the issues relating to Dr Downe from Mr Cormack and did so in January 2005. She made clear that the direction to work at Westmead, to which earlier reference has been made, is and was a direction inconsistent with Dr Downe working at Nepean at all or as Director. Professor Gordon was not directly responsible for the Unit between 2001 and 2004 but did receive a telephone call from Mr Cormack in early September 2004 to the effect that Dr Downe was to be suspended.

92 When Professor Gordon started with the Health Service in 1997, Dr Spurrett was the Clinical Director of Women’s and Children’s Health and was Dr Downe’s immediate supervisor for administrative purposes. From 1998, Professor Gordon became her immediate supervisor.

93 Professor Gordon gave evidence as to complaints by Dr Downe about other practitioners, and in particular Dr John Smyth. At the meeting to deal with that complaint, Dr Smyth complained about Dr Downe.

94 When Professor Gordon came back to take on responsibility for Nepean Hospital in January 2005, she took over management responsibility for Dr Downe from Mr Cormack.

95 In cross-examination, Professor Gordon expressed the view that the Peterson Report was not in favour of Dr Downe. She was taken to a number of the findings, but took the view that her opinion as to the effect of the Peterson Report was based upon the entire Report and not the substantiation of any, or all, individual complaints. This is a reference to the comments, in paragraph 1 of the Report, which have been extracted above.

96 It should be made clear that, even if one were to accept the capacity of the Report to enter into the matters expressed in paragraph 1 (and I do not), and accept that the findings therein were open on the material before the Inquiry, there is no apportionment of responsibility for the breakdown in personal relationships.

97 Therefore, Professor Gordon’s attitude is to sheet home to Dr Downe responsibility for the personal relationship breakdown to which the Report refers. In doing so, Professor Gordon disadvantages Dr Downe. Yet, there had been no investigation of the merits of that issue and, as will become clearer in the assessment of the facts in this judgment, a very significant part of the personal relationship breakdown has been caused directly by management action, or the lack of action, which, at best, can be described as “inappropriate”. That above-described action or inaction occurred at a management level far more senior than that exercised by Dr Downe and was occurring, in some respects, despite the protestations of Dr Downe.

98 I should, at this point, make clear that the foregoing statement is not a criticism of anything that Professor Gordon has or has not done. The issues with which I will deal later are matters that occurred well before January 2005.

Mr Geoffrey Murphy

99 Mr Murphy is the Workplace Relations Manager and is the human resources specialist who advised and/or was consulted during the course of the issues with and surrounding the suspension of Dr Downe in 2004/2005. His background is in workplace relations and human resources. His involvement in matters of contentiousness was minimal.

100 He was involved, in or about 1997, in a meeting with Mr Daley and Drs Spurrett, Downe, Tracy and Coughtrey from which an agreed resolution of the parties was obtained. That agreement called for: staff meetings every two months between Dr Downe and individual staff specialists; performance appraisals each 12 months (with a 6 monthly review) conducted by Drs Spurrett and Downe; open communications between parties and communication which followed organisational lines of responsibility; a commitment to follow the grievance procedures that were in existence; the following of normal daily courtesy protocols; and research issues being discussed between Drs Spurrett and Downe. This issue was agitated following the review by Ms Agnes McMillan in early 1997 (see D1 tabs 9 and 10).

101 Mr Murphy received the complaints that gave rise to the commissioning of the Peterson Report. The Peterson Report was received by him on 10 February 2005 and sent to ASMOF on 16 February 2005. He testified that he formed the view, from the Report, that there had been a breakdown in the working relationship in the Unit (see paragraph 31 of his Affidavit). He was responsible for and did in fact send letters to Drs Pardey, Tracy and Coughtrey relating to the Report and its findings.

102 He accepted that the grievance procedure (P3 tab 4) and the disciplinary procedure (P1 tab 6) were applicable in relation to any complaint against Dr Downe. He accepted that he received Dr Coughtrey’s complaint from Mr Cormack on 16 August 2004 notwithstanding that the formal letter was dated 19 August 2004 and, it seems, was received again on or about that date.

103 He accepted that the findings of the Peterson Report were overwhelmingly in favour of Dr Downe on the specific complaints against her and that he probably expressed that view to Professor Gordon but was unsure as to whether he told Ms Drum of that view. He accepted that he did not tell Professor Nanan, or Drs Pardey, Tracy or Coughtrey of that view.

104 No other communication occurred in relation to the complaints or arising out of the initial memorandum to staff relating to the suspension of Dr Downe and Mr Murphy accepted that the failure to notify staff of his view was a failure to comply with the requirements of the guidelines relating to Protected Disclosures.

105 His view as to the breakdown in the working relationship in the Unit was informed by the view expressed by Mr Cormack that the other, or some of the other, neonatologists would leave if Dr Downe returned to work. This view was his impression of the effect of a statement by Mr Cormack in a meeting in late August 2004 during which Mr Cormack made clear that in light of the recent serious complaints about Dr Downe he could not have her back in the Unit.

106 Mr Cormack also expressed the view, unaided by advice, that he wanted Dr Downe to be suspended, otherwise, if the tensions were not resolved, the Hospital would lose some of the neonatologists and the whole Neonatal Intensive Care Unit service would be at risk.

107 Mr Graham Jenkins, the relevant Regional Manager of HealthSupport, NSW Health, corroborates the conversation at the meeting in late August 2004. Mr Jenkin’s signature appeared on the letter of suspension of 3 September 2004, but Mr Murphy gave the letter to him to sign, which he did.

108 Mr Murphy, in turn, attests to the fact that the letter represented his understanding of the outcome of the meeting in late August 2004.

Ms Irene Wong

109 Ms Wong was the nursing manager in the Unit and had known Dr Downe for some 15 years. She was an impressive witness who displayed objectivity and reliability and whose demeanour was consistent with those traits.

110 Her affidavit attests to some of the working arrangements within the team that worked in the Unit. There was a handover on each Monday morning from one neonatologist on service to the neonatologist that was to be on service for the ensuing week. Ms Wong noticed “over a period of time” that the relationship between the medical consultants (neonatologists) became disjointed.

111 In particular, Ms Wong gave evidence that there were times, at handover, where there was a radical change in patient management and up to 80% of the management of a particular patient may have been altered. This kind of alteration created stress for the nursing staff because it was necessary to explain the change in treatment to the parents of the patient.

112 It seems that the alterations to patient management were not confined to Dr Downe. Ms Wong commented that the Neonatal Intensive Care Unit was an “inherently stressful environment and disagreements are inevitable” (paragraph [12] of her Affidavit) but that it was necessary, to the extent possible, to seek to work in a team to resolve differences as had occurred in other teams in which Ms Wong had worked. It is not clear whether those other teams were neonatal intensive care units.

113 Ms Wong gave evidence relating to disagreements by Dr Downe with recommendations of other specialists in meetings of the Policy and Procedure Committee (e.g. the delay in the Jaundice Report). Following the Henderson-Smart Report, handover occurred to doctors only, which lessened the tension in the Unit.

114 The reference in the immediately preceding paragraph to the Jaundice Report delay is a reference to a conversation between Dr Downe and Dr Coughtrey in the following terms:

“Dr Downe: Heather, it has taken you such a long time for the jaundice policy!

Dr Coughtrey: I have been trying to find references for the charts.”

115 Following that conversation, Dr Coughtrey said to Ms Wong that she felt “awful the way Lyn spoke to me in front of everyone”. I generally accept the evidence of Ms Wong. She was a truthful and reliable witness. However, I conclude that the above reaction by Dr Coughtrey displays a wholly unreasonable level of sensitivity to a comment made in a management committee, even if the comment by Dr Downe were said critically or angrily.

116 Ms Wong testifies that she “got along well with Dr Downe and the other Staff Specialists.” Ms Wong would expect to continue to do so in the event of Dr Downe’s return, as she has worked closely with her in the past and she has “the highest regard for her [Dr Downe’s] clinical expertise.” Ms Wong notes that, in the absence of Dr Downe, there is more harmony amongst the Staff Specialists in the ward environment, which has reduced her levels of anxiety and stress. Prior to Dr Downe’s absence as Director, Ms Wong often felt stressed and anxious in anticipation of the Monday morning handover.

117 The comment by Ms Wong as to her regard for Dr Downe’s clinical expertise, made in the context of a comment regarding all of the neonatologists, is significant. The same or similar opinion is not expressed about the other neonatologists.

Professor Ralph Nanan

118 Professor Ralph Nanan is the Professor of Paediatrics at Nepean Clinical School, University of Sydney and is currently employed by the University but, between 2002 and 2005, was the Director of Paediatrics at the Hospital and employed by the Health Service.

119 During that time, Professor Nanan had equal standing (peer status) to Dr Downe. His Affidavit attests to an initial friendly relationship, a collegial relationship that lasted for several months. He too attests to the clinical capacity of Dr Downe, describing it as “clinically solid”, making “reasonable clinical decisions based on best evidence”.

120 Differences between Professor Nanan and Dr Downe arose from Dr Downe’s insistence that paediatricians should not staff neonatal intensive care units. These differences were a difference in clinical opinion as between Professor Nanan and Dr Downe. I find that Dr Downe’s clinical opinion was consistent with independent reports commissioned by the Health Service and with the practice that existed in other such units.

121 Professor Nanan describes Dr Downe’s concerns as being essentially about paediatricians and her own staff at the Unit and were mostly in relation to patient care. Notwithstanding his differences with Dr Downe he commented that she “always emphasised the safety and quality aspects of the” Unit.

419 Notwithstanding the “lore” that has developed around the statement in Collier, the judgment does not stand for the principle that an employee can be directed not to perform work on an indefinite basis. Indeed, I do not understand that any authority exists for such a proposition.

420 First, in Collier, the order of the Court was inconsistent with the proposition that one can direct an employee not to work. Secondly, there is a significant and crucial distinction between a duty to provide work and a direction not to perform work that is otherwise available. The employment of a cook would not prevent the employer from dining out. When the employer dines out (or indeed chooses to cook himself or herself) there is, in fact, no work for the cook to perform.

421 There is no suggestion in the circumstances in this case that there is no work for a Director of the Neonatal Intensive Care Unit. On the contrary, the Health Service has appointed an Acting Director. The issue of whether, in the circumstances of an employment situation, an employer is entitled to direct an employee not to perform work will always depend upon the circumstances of the direction, the work that is not to be performed and the terms of the contract of employment.

422 Where one is dealing with a position that is both senior and highly skilled, it is less likely that the terms of the contract of employment import a term that the employer can, indefinitely, require the employee not to perform work.

423 In the current situation there is no express term allowing the employer to give such a direction. While not put in these terms, the submission of the Health Service necessarily involves, therefore, the implication of a contractual term. It seems that the contractual term upon which they rely is a contractual term allowing the employer to give reasonable and lawful directions. But such an implied term is always constrained by the terms of the contract itself. Thus, it would be impermissible for the Health Service to direct Dr Downe to perform duties that were otherwise than in accordance with the contract of employment e.g. as a carpenter or in an unskilled capacity. The question that must arise is whether a direction not to perform work at all for an indefinite period is a reasonable direction and can be implied. In the submission of the Health Service, a direction to perform cleaning work would be prohibited, but a direction to perform no work indefinitely is a reasonable direction.

424 Such a direction does not, in the case of a senior employee, seem reasonable and equitable. It is certainly not necessary for business efficacy, nor obvious, nor capable of clear expression: see Renard Constructions v Minister for Public Works (1992) 26 NSWLR 234 at 256, citing BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337; and Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41.

425 The Court of Appeal in England had occasion to examine a direction not to perform work confined, in those circumstances, to the period of notice given by the employer on termination: William Hill v Tucker [1999] ICR 291. In the course of that judgment Morritt LJ said:

“Given that the question must be resolved by construing the particular contract of employment in the light if its surrounding circumstances, previous cases decided on their own wording and circumstances are of limited value. But in this field the cases do illustrate certain categories and trends which are of assistance. Thus in the case of theatrical engagements, the courts have been ready to find an obligation on the part of the employer to afford the opportunity to the employee to perform the part for which he was engaged. Similarly, engagement for a specific project such as employment on a specific voyage, or in a specific and unique post such as the chief sub-editor of a newspaper, or as the manager of an overseas business, have been treated by the courts as giving rise to an obligation on the part of the employer not to do anything which puts the promised employment out of his power. And where the promised remuneration depends on the employer providing the opportunity to earn it then an obligation to afford the employee so to do is readily implied.

In the case of employees engaged for an indefinite term and a fixed wage or salary the courts have been much more reluctant so to construe the contract as to cast on the employer an obligation over and above the payment of the promised remuneration. Thus the claim for such an obligation was rejected in the cases of a representative salesman and, by implication, of domestic servants.

But as social conditions have changed the courts have increasingly recognised the importance to the employee of the work, not just the pay. Thus … Lord Denning M.R. considered that it was open to a welder to argue that: ‘a man has, by reason of an implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done.’” (At 298-299, authorities omitted.) (Robert Walker LJ and Stewart Smith LJ concurred in the judgment.)

426 The judgment on which the Health Service implicitly relies, i.e. Collier, supra, was a case in which the Court ordered that the chief sub-editor of a newspaper was a specific and unique post and required the employer to provide work and disentitled the employer from giving a direction that work not be performed.

427 In this case, the terms of the contract entered into between Dr Downe and the Health Service (or its predecessors) clearly contemplated the performance of work. Part of the consideration on the part of Dr Downe was, manifestly, that she would have the opportunity to establish and run the Neonatal Intensive Care Unit. She moved from Canada in preparation for occupying the position that she was granted and she was the sole neonatologist working in the Unit until such time as the Unit expanded (implicitly through her efforts). An indication of the importance of performing work can be gleaned from the discussion as to whether or not Dr Downe would accept a position other than Director. It is unarguable that the performance of work and the occupancy of a senior position such as Director were fundamental to the conduct of Dr Downe in applying for, and accepting, the position on offer.

428 In those circumstances, like in the circumstances in Collier, supra, and William Hill, supra, it is implicit in Dr Downe’s contract of employment that she would have the opportunity to exercise her skill as a clinician (and continue to develop those skills and to exercise her duties as a Director).

429 In those circumstances, this contract of employment, does not give rise to an implied right to give a direction that Dr Downe not perform work on other than a basis consistent with the investigation of a complaint. It is unnecessary and inappropriate, in these proceedings, to distinguish those cases that refer to a right to direct an employee not to perform work. Such authority has, as can be seen from the above, always recognised that particular contracts may envisage, implicitly, a right to perform such work as is available. This contract is such a contract.

430 The only additional comment that is necessary in relation to this aspect is that the Health Service did not, in fact, direct Dr Downe not to perform work after 10 February 2005. However, that is a concentration on form rather than substance. The Health Service gave a direction that Dr Downe not perform work for the duration of the investigation. It was incumbent upon the Health Service to inform Dr Downe when she could return to her duties and the conduct of the Health Service expressly or implicitly continued the direction not to perform work beyond the period of investigation.

431 As a consequence I conclude that the “suspension” (being the continued suspension beyond the period necessary to give effect to the investigation) was a breach of the contract of employment and, in that regard, unlawful.

(U) & (V) Remaining Items Other Than the Exercise of Discretion and Damages

432 At [5] above, I set out the issues that the parties submitted were necessary to be decided in order to conclude the matter.

433 The Health Service has undertaken, as part of its role as the model litigant, that, it will abide by (and implement) any declaration made by the Court. Without any criticism, the terms of that undertaking are a little uncertain. The circumstances for its pronouncement were emergent.

434 Nevertheless, as is clear from the foregoing, issues described in sub-paragraphs (u) and (v) do not arise.

435 The parties also requested the Court to determine (and said it was relevant to the issues before the Court) whether Dr Downe’s contract of employment was permanent. By that, the question that was asked, I assume, was whether Dr Downe had tenure. This is a question that arises from the conversation during the period prior to the offer and acceptance of employment between Dr Downe and Mr Hamilton recited at [23] above.

436 It is submitted that the representation of Mr Hamilton, made on behalf of the Health Service (or its predecessors), is binding and forms part of the contract of employment.

437 It is unclear to me how it is said this matter is relevant to any issue that it is necessary for the Court to determine. No party suggests that there has been a termination of employment. No party suggests that any conduct by any other party is repudiatory of the contract of employment. In those circumstances, whether or not the employment is “permanent” (whatever that may mean) is irrelevant. It seems to seek an advisory opinion from the Court and ought not be answered.

438 I should add that none of the cases involving a contract of employment preclude an employer (or an employee) from terminating the contract of employment. Even “permanent” contracts of employment can be terminated. The termination may be in breach of the contract. The termination may give rise to remedies under s 84 of the Industrial Relations Act. The termination may give rise to damages. But none of those are matters before the Court in these proceedings.

(W) Damages

439 The manner in which the matter has been raised and the multitude of issues that have been agitated occasioned the submission that the Court should make minimum orders necessary to give effect to its judgment and thereafter give leave to the parties to approach the Court for any further orders. That seemed to be the approach of each party. No substantial argument occurred on the question of damages and, if any, the assessment thereof. Issues arise as to the application of Addis v Gramophone Co Ltd [1909] AC 488 and whether damages are limited to the loss of wages. Ultimately this turns on issues associated with what the parties contemplated or was reasonably foreseeable by both parties as the probable consequence of the breach. Much has been said, both in academic writings and in judgments, on the operation of the rule in Hadley v Baxendale (1854) 9 Exch. 341 to the contract of employment and its interpretation in Addis. Of course, this case does not concern a termination.

440 In accordance with the request of the parties, I shall grant leave for one or more of the parties to approach the Court in relation to the issue of damages, if any, that may arise as a result of these findings or that a party may wish to pursue. Notification of the desire to make any such application will be required to be made within a short period.

(X) & (Y) Discretion

441 There are two quite distinct aspects of the Health Service submissions that seek to persuade the Court that, as a matter of discretion, the Court ought not make orders.

442 The first is the traditional argument that orders will not be made requiring personal service or having that effect. Traditionally, courts exercising equitable jurisdiction, or granting equitable relief (or orders in the nature thereof) declined to grant specific performance of a contract of service. Historically, it was said that the courts would not assume the burden of constant supervision that inheres in such an order.

443 This involves the two-fold aspect that because supervision would be impractical, equity will not act to make orders that are inherently futile or act in vain: Co-op Insurance Society Ltd v Argyll Stores [1998] AC 1.

444 Further, an order granting specific performance of personal services encourages, perhaps requires, rather than discourages, repeated application to the court because it will be necessary to determine particular orders for compliance, or, rather, determine precisely what compliance means.

445 The general rule was stated in J C Williamson Ltd v Lukey & Mulholland [1931] HCA 15; (1931) 45 CLR 282, in which it was said:

“… no Court of equity would have enforced, specifically or by way of injunction, the right of the respondents to sell sweets in the theatre. Nor would any such Court have enforced the right of the appellant to supervise and control the right of selling sweets in the theatre. The enforcement of either right would have required a continued and effective superintendence of acts and services which would be impossible for any Court.” (Per Starke J at 293.)

At p 292-293, Dixon J said:

“Courts of equity have, no doubt, exercised jurisdiction to enforce contracts specifically and to restrain the breach of contracts which such a Court would specifically enforce and to restrain the breach of negative stipulations in contracts whether in the particular case the Court would or would not specifically enforce the whole contract. But over and over again it is asserted in the books that a Court of equity will not compel one party to perform his part of a contract unless justice can be done as regards the other party. Nor will it as a rule enforce contracts of personal service or any other contract the execution whereof would require continued superintendence by the Court.”

446 Mr Lukey was a sweets vendor who had been granted an exclusive selling agreement by the theatre for so long as he conducted the adjacent shop. The theatre purported to terminate and, as can be seen from the above extracts, the High Court refused relief the effect of which would have been to require the parties to maintain a personal relationship that one of them did not want.

447 Earlier in these reasons for judgment, I remarked that the effect of an award, would not ordinarily be to create a different contract than the one to which the parties had agreed. Whatever be the lawfulness or otherwise of conduct, equity too will not force on unwilling parties (or an unwilling party) a personal relationship of this type: De Francesco v Barnum (1890) 45 Ch 430 at 438.

448 The issue is always one of discretion. However, the balance weighs not only the interests of the parties, but society at large:

Johnson v Shrewsbury and Birmingham Railway

449 The authorities make clear that while the general rule that personal service will not be enforced by specific performance is a matter of discretion, it is nevertheless a matter of very great weight: see Spry, Equitable Remedies, 7th ed (2007) Lawbook Co.

450 Further, an injunction, the effect of which would be the same as specific performance, will involve the same or similar considerations. However, there is no absolute rule and, once the balance is considered (including the general undesirability from the public policy perspective), it is an exercise of discretion.

C. H. Giles & Co. Ltd. v. Morris

451 This question was recently discussed by Barrett J in Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298, where his Honour went through the authorities on this point from [13]-[25]. I adopt, with respect, that analysis.

452 His Honour noted that the theoretical possibility of granting an order for personal service in the context of employment was discused by the Full Federal Court in Gregory v Phillip Morris Ltd (1988) 80 ALR 455. Their Honours declined to make such an order in that case, but did say (at 482):

“We would not wish to give any endorsement to the view that there may never be an order in the nature of specific performance of a contract of employment. But the making of such an order is a matter within the discretion of the court. Where such an order is sought, careful consideration must always be given to the likely consequences of the order. The evidence in the present case suggests that industrial difficulties would occur if Gregory were now to be re-employed. Each of the traditional reasons for denial of specific performance — a loss of confidence between the parties and the problem of supervision of the relationship — applies in this case. In the exercise of the court’s discretion, an order for specific performance ought to be refused.”

453 Consequently, the Court must take into account the ramifications of such an order and look to some “special circumstances” to justify making an order of personal service (see also Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 at 1417-8 per Lord Morris of Borth-y-Gest). Thus for instance, in Hill v C A Parsons & Co Ltd [1972] 1 Ch 305, the applicant sought an injunction, restraining his employer from implementing a notice of termination. The Court of Appeal, in granting the application, noted that exceptional circumstances were present: namely, there was a personal relationship of trust and confidence between employer and employee that remained intact; and the injunctive relief was directed towards nullifying the effect of the termination notice (therefore not falling within the usual case of specific performance).

454 Barrett J, in Gunson supra, went through a number of other authorities on this subject where personal service was refused, which need not be mentioned here. Suffice to say, the cases where personal service has been refused can be distinguished against the circumstances of this case: firstly and most importantly, just as in Francis, there does not seem to be any loss of trust or willingness to work together between Dr Downe and the Health Service; second, this is not a case where the employer has terminated the contract and the employee seeks to overcome that termination; third, in this case, the effect of an order of personal service would be to nullify Dr Downe’s “suspension” and bring the contract back into working order.

455 Moreover, this is not specific performance at all. It is a restraint on a particular direction or two of them. Accordingly, the facts make this case fall within the “exceptional circumstances” to justify making an order of personal service.

456 In the instant case, all the parties contended that there is in existence a contract binding on them and defining their relationship. The difference between them is whether certain directions may be given lawfully.

457 It may well be that the alternative to the Health Service, to the capacity to give those directions, would be that the Health Service not employs Dr Downe, be that then would be a matter for it. Nothing in the orders I am asked to make restrains the Health Service from dismissing.

458 If the Health Service has entered into a contract that does not allow dismissal that is not an issue arising from these orders. If it dismisses regardless, the dismissal is effective and the remedy is damages. It is at that point that equity would not order specific performance to force upon unwilling parties an undesired relationship.

459 If the negative stipulations in this contract could not be enforced by injunction, there would be no means of enforcement. Further the issuing of injunctive relief confined to the directions does not require any supervision.

460 The Health Service is a large public employer with an express disciplinary procedure. Dr Downe is entitled, under her contract, to work and continue to develop her skills. Each of these factors, and the matters otherwise addressed in these reasons, inform the exercise of discretion: see generally Irani v Southampton Health Authority [1985] I.C.R. 590 at 590-591 (Facts), 599, 603; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [78]-[82]; Powell v Brent LBC [1988] I.C.R. 176 at 196, 200; Murrell v South East Area Health Service [2006] NSWSC 313 at [40]-[42].

461 The second aspect of the Health Service submission relates to the general discretionary elements associated with the requirement to have Dr Downe work again as Director of the Unit.

462 Such a discretionary aspect occurs regularly in industrial tribunals. The principle, which is largely common sense, has been expressed thus:

“The issue to be decided is whether, following the experience of the dismissals, and the disputation that has followed, it is reasonable to expect that future co-operation to perform work is impossible. It is essential to distinguish between the relationship required to achieve the performance of work at the required standard and a relationship which involves mutual affection and friendship. In making this determination it is necessary to look at the total scene and to consider the various aspects of the potential relationship in perspective, whatever may be thought about its desirability.

It is certainly not essential to achieve a single unit of happy persons in a work force welded together by a bond of personal friendship where all of the management staff and other employees in the particular plant think alike, agree on everything and create mutual admiration for one another with never a harsh or unkind word being spoken.

PKIU v Vista Paper Products

463 The courts ought take a similar, although perhaps slightly less robust view. The courts will certainly scrutinise the submission on work relationships most carefully, even sceptically: Warren v Mendy [1989] 1 W.L.R. 853 at 860, 867-868.

464 In this instance, these employees worked together for up to 13 years. There were tensions. I accept that some of those tensions were caused by Dr Downe’s style and exacting standards. Each of the medical staff has displayed intelligence and an ultimate goal that is the care of their patients. Because of that, and despite the risk of aggravating tensions, I consider that the problems are not insurmountable. If they were to prove to be, then the Health Service may be required to take other steps. It cannot, however, “suspend” indefinitely.

Conclusion

465 For all of the above reasons, the Court shall make orders limited at this stage to declarations and injunctive relief. The injunctions shall restrain only the two directions given by the Health Service, which directions I have found were unlawful. No other order is immediately necessary. And the Court shall grant liberty to apply.

466 The Court makes the following orders and declarations:

i. The defendants’ direction to Dr Downe to perform work at Westmead Hospital in a manner inconsistent with the fulfilment by Dr Downe of her duties as Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants;

ii. The defendants’ purported continued suspension of Dr Downe from the performance of duties as the Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants;

iii. During the subsistence of the current contract of employment between the plaintiff and the defendants, the defendants, and each of them, their servants or agents, shall refrain from directing the plaintiff to perform or not to perform any work or act, which direction is inconsistent with the performance by Dr Downe of her functions as Director, Neonatal Intensive Care Unit, Nepean Hospital;

iv. The defendants and each of them shall refrain from treating as valid, lawful or binding its or their direction to the plaintiff to work as a Staff Specialist at Westmead Hospital;

v. Each party has liberty to file and serve, within 14 days from the date hereof, a written submission on costs and each party may, within a further 7 days, respond in writing to any such submission;

vi. The parties have liberty within 35 days to approach the Court for any further or consequential order, including any order for damages, for the purpose of giving effect to or clarifying these reasons for judgment or ameliorating any administrative inconvenience arising from these orders;

vii. Order iii above shall be stayed for a period of 14 days from the date hereof;

viii. Otherwise the proceedings are dismissed.

**********

CITATION:	Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159
HEARING DATE(S):	29 January 2007-2 February 2007, 5 February 2007-9 February 2007, 12 February 2007-16 February 2007, 19 February 2007-23 February 2007, plus subsequent written submissions.
JUDGMENT DATE :	3 July 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	i.The defendants' direction to Dr Downe to perform work at Westmead Hospital in a manner inconsistent with the fulfilment by Dr Downe of her duties as Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants; ii. The defendants' purported continued suspension of Dr Downe from the performance of duties as the Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants; iii. During the subsistence of the current contract of employment between the plaintiff and the defendants, the defendants, and each of them, their servants or agents, shall refrain from directing the plaintiff to perform or not to perform any work or act, which direction is inconsistent with the performance by Dr Downe of her functions as Director, Neonatal Intensive Care Unit, Nepean Hospital; iv. The defendants and each of them shall refrain from treating as valid, lawful or binding its or their direction to the plaintiff to work as a Staff Specialist at Westmead Hospital; v. Each party has liberty to file and serve, within 14 days from the date hereof, a written submission on costs and each party may, within a further 7 days, respond in writing to any such submission; vi. The parties have liberty within 35 days to approach the Court for any further or consequential order, including any order for damages, for the purpose of giving effect to or clarifying these reasons for judgment or ameliorating any administrative inconvenience arising from these orders; vii. Order iii above shall be stayed for a period of 14 days from the date hereof; viii. Otherwise the proceedings are dismissed.
CATCHWORDS:	EMPLOYMENT – contract of employment – right to direct not to work – incorporation of disciplinary procedure – "suspension" – implied duties – good faith – relationship with award and statutory rights – injunction – personal service - INDUSTRIAL LAW – unfair contracts for performance of work – contract or arrangement – excludes award and statutory obligations – "remuneration cap" excludes payment under award and liability under statute - TRADE PRACTICES – employment not in "trade or commerce" – not unconscionable - CROWN PRIVILEGE – operation of s 47 of the Interpretation Act – right to suspend or remove – specific overrides general – public employment distinguished from officers with statutory powers or discretions
LEGISLATION CITED:	Area Health Services Act 1986 Health Services Act 1997 Industrial Arbitration Act 1940 Industrial Relations Act 1996 Interpretation Act 1987 Police Service Act 1990 Protected Disclosures Act 1994 Public Schools (Scotland) Teachers Act 1882 (UK) State Authorities Non-Contributory Superannuation Act 1987 State Authorities Superannuation Act 1987 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Addis v Gramophone Co Ltd [1909] AC 488 AIME v CSOA (1912) 6 CAR 95 Algar v Middlesex County Council [1945] 2 All ER 243 Ali v Hartley Poynton Ltd [2002] VSC 113; 20 ACLC 1006 AMCOR Ltd v CFMEU [2005] HCA 10; (2005) 222 CLR 241 Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd & Ors [2000] FCA 0017; (2000) 169 ALR 344 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Blomley v Ryan [1954] HCA 79; (1956) 99 CLR 362 Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 C. H. Giles & Co. Ltd. v. Morris [1972] 1 W.L.R. 307 CBA v FSU [2002] FCAFC 193; (2002) 125 FCR 9 Co-op Insurance Society Ltd v Argyll Stores [1998] AC 1 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 Collier v Sunday Referee Publishing Company [1940] 2 KB 647 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Commissioner of Police v Ellis (New South Wales Court of Appeal, 2 July 1981, unreported) Commissioner of Police for NSW v Jeffrey Jarratt [2003] NSWCA 326; (2003) 59 NSWLR 87 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 De Francesco v Barnum (1890) 45 Ch 430 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 Downe v Sydney West Area Health Service [2006] NSWSC 1416 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2005) 221 CLR 309 Energy Resources of Aust Ltd v Commissioner of Taxation [2003] FCA 26 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411 George v Minister for Education and Youth Affairs (Supreme Court of New South Wales, Smart J, 31 August 1989, unreported) Gilbert v Western Australia [1962] HCA 7; (1962) 107 CLR 494 Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120 Goldsworthy v Brickell [1987] Ch 378 GPG (Australia Trading) Pty Ltd v GIO Australia [2001] FCA 1761; (2001) 117 FCR 23 Gregory v Phillip Morris Ltd (1988) 80 ALR 455 Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 Hadley v Baxendale (1854) 9 Exch. 341 Hearne v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64 Hill v C A Parsons & Co Ltd [1972] 1 Ch 305 Holt v Protective Commissioner (1993) 31 NSWLR 227 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Irani v Southampton Health Authority [1985] I.C.R. 590 J C Williamson Ltd v Lukey & Mulholland [1931] HCA 15; (1931) 45 CLR 282 Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596; (2002) 56 NSWLR 72 Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 Johnson v Shrewsbury and Birmingham Railway (1853) De G.M. & G. 914 Mahmud v BCCI [1998] AC 20 Malloch v Aberdeen Corporation [1971] 1 WLR 1578 McCarthy v Windeyer (1925) 26 SR(NSW) 29 McDonald v State Of South Australia [2008] SASC 134 Morton v The Transport Appeal Board & Anor (No 1) [2007] NSWSC 1454; (2007) 168 IR 403 Moshirian v University of New South Wales [2002] FCA 179 Murrell v South East Area Health Service [2006] NSWSC 313 New South Wales v Commonwealth [2006] HCA 52; 81 ALJR 34; 231 ALR 1 Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 O'Connor v The Argus and Australasian [1957] V.R. 374 O'Rourke v Hearne [2004] HCATrans 248 Patrick v Steele Mains Pty Ltd (1987) 77 ALR 133 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Perkins v Grace Worldwide Australia (1997) 72 IR 186 PKIU v Vista Paper Products [1991] IRCommA 1307 ; [1991] 12 CAR 167 Powell v Brent LBC [1988] I.C.R. 176 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 R v Klein; ex parte Harrap [1941] VLR 200 R v Tkacz (2001) 25 WAR 77 Re Peter J Mair v JE Bartholomew; LM Anderson; JG Smith and BW Fraser [1991] FCA 541; (1991) 104 ALR 537 Renard Constructions v Minister for Public Works (1992) 26 NSWLR 234 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2007] NSWSC 104; (2007) 69 NSWLR 198 Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 V.R. 235 Seamen's Union of Australia v Utah Development Co [1978] HCA 46; (1978) 144 CLR 120 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Shenton v Smith [1895] AC 229 Taske v Occupational & Medical Innovations Ltd [2007] QSC 118 Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR(NSW) 632 True v Amalgamated Collieries of W.A. Ltd [1940] AC 537; (1940) 62 CLR 451 Truth and Sportsman Ltd v Molesworth [1956] A.R. 924 Warren v Mendy [1989] 1 W.L.R. 853 Wells v Newfoundland [1999] 3 SCR 199 William Hill v Tucker [1999] ICR 291
TEXTS CITED:	Handley et al, Estoppel by Conduct and Election, (2006) Lawbook Co Spry, Equitable Remedies, 7th ed (2007) Lawbook Co
PARTIES:	20188/2006: Lynette Downe (Plaintiff) Sydney West Area Health Service (Defendant) 30025/5006: Lynette Downe (Plaintiff) Sydney West Area Health Service (First Defendant) State of New South Wales (Second Defendant) Director-General of the New South Wales Health Service (Third Defendant)
FILE NUMBER(S):	SC 20188/2006; 30025/2006
COUNSEL:	J L Trew QC / A E Maroya (Plaintiff) P M Kite SC / A B Gotting (Defendants)
SOLICITORS:	Holman Webb Lawyers (Plaintiff) Crown Solicitor's Office (Defendants)