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Fetherston v Peninsula Health (No. 2)

Fetherston v Peninsula Health (No. 2)

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FEDERAL COURT OF AUSTRALIA
Fetherson v Peninsula Health (No. 2) [2004] FCA 594
COSTS – whether case under Disability Discrimination Act a no costs matter – exercise of judicial discretion – whether public interest factors weighed against order of costs in favour of successful respondents – High Court decision handed down after proceeding commenced – whether public interest factors applicable – conduct of respondents – costs of excessive photocopying
Disability Discrimination Act 1992 (Cth)
Fetherston v Peninsula Health [2004] FCA 485 cited
Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1 discussed
Tadawan v State of South [2001] FMCA 25 at [62] not followed
Ball v Morgan [2001] FMCA 127 at [83] applied
Physical Disability Council of New South Wales v Sydney City Council [1999] FCA 815 applied
Tate v Rafin [2000] FCA 1582 at [71] applied
Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477 applied
Latudis v Casey (1990) 170 CLR 534 at 557 applied
Ruddock v Vadarlis (No.2) (2001) 115 FCR 229 distinguished
Purvis v New South Wales Department of Education and Training (2002) 117 FCR 237 cited
DR GRAHAM JOHN FETHERSTON V PENINSULA HEALTH & ORS (No 2)
NO. V 391 OF 2002
HEEREY J
11 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V391 OF 2002

BETWEEN:

DR GRAHAM JOHN FETHERSTON
APPLICANT

AND:

PENINSULA HEALTH
FIRST RESPONDENT

DR JOHN BOTHA
SECOND RESPONDENT

ASSOCIATE PROFESSOR DAVID LANGTON
THIRD RESPONDENT

DR PETER BRADFORD
FOURTH RESPONDENT

MR MICHAEL DAWSON-SMITH
FIFTH RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

11 MAY 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The stay on the order for costs made on 23 April 2004 is revoked.

The applicant pay the costs of the respondents’ submissions, except for the costs of the photocopies supplied on 10 May 2004.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V391 OF 2002

BETWEEN:

DR GRAHAM JOHN FETHERSTON
APPLICANT

AND:

PENINSULA HEALTH'
FIRST RESPONDENT

DR JOHN BOTHA
SECOND RESPONDENT

ASSOCIATE PROFESSOR DAVID LANGTON
THIRD RESPONDENT

DR PETER BRADFORD
FOURTH RESPONDENT

MR MICHAEL DAWSON-SMITH
FIFTH RESPONDENT

JUDGE:

HEEREY J

DATE:

11 MAY 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 23 April 2004 I handed down a judgment which dismissed an application brought by the applicant Dr Graham John Fetherston seeking relief under the Disability Discrimination Act 1992 (Cth) in respect of the termination of his employment as Deputy Director Intensive Care Unit at the Frankston Hospital: Fetherston v Peninsula Health [2004] FCA 485.
Although the judgment included an order that Dr Fetherston pay the respondents’ costs, I accepted the submission of counsel for Dr Fetherston that the costs order be stayed to enable him to consider the judgment and, if thought appropriate, make submissions as to costs.
Subsequently counsel filed written submissions and counsel for the respondents filed answering submissions. The respective contentions have been fully raised in counsel’s submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 594
Decision Date: 11 MAY 2004

CaseChat Overview and Summary

The case of Fetherston v Peninsula Health (No. 2) involved a dispute between Dr. Fetherston, the applicant, and Peninsula Health, the respondent. The crux of the matter revolved around Dr. Fetherston's employment status and the obligations of Peninsula Health towards him. The High Court was tasked with examining the judicial decisions that impacted the case and the conduct of Peninsula Health in handling the concerns about Dr. Fetherston's visual capacity.

The primary legal issues the court had to address included the binding nature of the High Court's decision in Purvis, which had been handed down prior to the initiation of the current proceeding. Additionally, the court needed to evaluate the conduct of Peninsula Health in managing the concerns raised by staff regarding Dr. Fetherston's visual capacity and whether it warranted any criticism or consequences.

The court determined that the High Court's decision in Purvis was binding on the court and stood in the way of Dr. Fetherston's application. Despite dissenting judgments, the majority decision was upheld. Furthermore, the court found no merit in the complaints regarding Peninsula Health's conduct, as it was deemed reasonable and fair to assess Dr. Fetherston's visual capacity through an independent expert. The court concluded that Peninsula Health's actions were justified given their obligations to their patients. Consequently, the stay on the order for costs was revoked, and Dr. Fetherston was ordered to pay the costs of the respondents' submissions, except for the costs associated with the photocopies provided.

This decision underscores the importance of adhering to judicial precedents and the necessity for healthcare institutions to balance their obligations towards their employees and patients. The court's ruling highlighted the reasonable steps taken by Peninsula Health and the lack of grounds for any criticism of their conduct.

Orders

Orders of the court

1. The stay on the order for costs made on 23 April 2004 is revoked.

2. The applicant pay the costs of the respondents’ submissions, except for the costs of the photocopies supplied on 10 May 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J (dissent)

The question of divided judicial opinion leads me to the next point.The High Court’s decision in Purvis Although the decision of the High Court in Purvis was handed down a few months before the hearing, the High Court confirmed the decision of the Full Court of the Federal Court (Purvis v New South Wales Department of Education and Training (2002) 117 FCR 237) handed down on 24 April 2002, that is several months before the present proceeding was initiated. There was thus clear authority, binding on a single judge of this Court, which stood in the way of the application when it was commenced. The fact that there were dissenting judgments when the case was finally decided by the High Court is not to the point.Conduct of the respondent In counsel’s submission it was said that the various complaints raised about Dr Fetherston by staff at the Frankston Hospital had not been put to him, that where those concerns were set out in witness statements they were “imprecise, ephemeral and difficult to evaluate” and, furthermore, that the conduct of Dr Langton in “seeking to impose” upon Dr Fetherston the ophthalmic review of Dr Galbraith “gave rise to further controversy and inflamed the situation”. There is no substance in these complaints. It would have been quite unwise, and indeed unfair to Dr Fetherston, for those in authority at the Frankston Hospital to establish some kind of quasi-judicial process in relation to the concerns expressed about him. The sensible course was to have his current visual capacity assessed by an independent expert. And it should not be forgotten this was only a part of the course of action proposed – as well the advice was sought of Dr Wyatt, an occupational physician, with the express objective of seeing if there was some way in which Dr Fetherston’s position at the hospital could be continued, notwithstanding his health difficulties. In human terms, this whole matter has been disastrous for Dr Fetherston and sympathy for his predicament is natural. But equally it has to be recognised that the respondents had serious obligations to patients in their care. I do not think their conduct can be criticised, still less does it found a basis for depriving them of costs. There will be an order that the stay on the order of costs is revoked and that Dr Fetherston pay the costs of the respondents’ submissions, subject to the following exception. The respondents’ solicitors sent to my Associate photocopies of nine decisions, totalling some 199 pages. There was no request for these to be supplied. They even included Purvis itself, a photocopy of which had been provided at the earlier hearing. It would be quite unfair to impose the cost of these photocopies on Dr Fetherston. I hope the solicitors for the respondent, a highly reputable firm, will not impose the cost on their clients.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V391 OF 2002

BETWEEN:	DR GRAHAM JOHN FETHERSTON APPLICANT
AND:	PENINSULA HEALTH FIRST RESPONDENT DR JOHN BOTHA SECOND RESPONDENT ASSOCIATE PROFESSOR DAVID LANGTON THIRD RESPONDENT DR PETER BRADFORD FOURTH RESPONDENT MR MICHAEL DAWSON-SMITH FIFTH RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	11 MAY 2004
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	11 MAY 2004
PLACE:	MELBOURNE