Freeman v South Western Sydney Local Health District

[2022] NSWSC 1642

Supreme Court

New South Wales

Medium Neutral Citation:

Freeman v South Western Sydney Local Health District [2022] NSWSC 1642

Hearing dates:

23 March 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Judgment for the first defendant;

(2) Proceedings dismissed;

(3) The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings.

Catchwords:

ADMINISTRATIVE LAW – judicial review of administrative tribunal deciding appeal against termination of a VMO Contract, being independent contract – alleged denial of procedural fairness – issues opened up – reasonable opportunity to prepare and present case – issues raising in termination letter – also raised in affidavits – no objection or adjournment sought when put in cross-examination – alleged misunderstanding of nature of appeal – no error disclosed – no irrelevant considerations and all mandatory considerations utilised – while some may consider decision unfair in light of capacity of VMO to act in accordance with own judgment, determination of breakdown in confidence not “legally unreasonable”

Legislation Cited:

Health Services Act 1997 (NSW), ss 77,78, 80, 81, 82, 83, 89, 96, 105, 106, 107, 108, 110, 111, 112

Public Hospitals Act 1929 (NSW)

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117

Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2002) 96 ALJR 89; [2022] HCA 1

Freeman v Sydney Local Health District [2021] NSWSC 423

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Macksville & District Hospital v Mayze (1987) 10 NSWLR 708

Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning [2022] NSWSC 1176

Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Building Workers’ Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; [1988] HCA 4

Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 323

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34

Category:

Principal judgment

Parties:

Anthony Freeman (Plaintiff)
South Western Sydney Local Health District (First Defendant)
The New South Wales Health Committee of Review (Second Defendant)

Representation:

Counsel:
J Glissan QC / D Nagle / G Diggins (Plaintiff)
H Younan SC / A Britt (First Defendant)
Submitting Appearance (Second Defendant)

Solicitors:
Lancaster Law & Mediation (Plaintiff)
Landers & Rogers (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2021/00215249

 Decision under appeal 

Court or tribunal:

New South Wales Health Committee of Review

Date of Decision:

13 May 2021

Before:

Joanne Muller, Associate Professor Ian Rewell, Robert Farrugia and Associate Professor Peter Thursby

Judgment

1. HIS HONOUR: By Summons, filed 28 July 2021, the plaintiff, Dr Anthony Freeman, seeks orders quashing the determination of the second defendant, the New South Wales Health Committee of Review of 13 May 2021 constituted by Joanne Muller, Associate Professor Ian Rewell, Robert Farrugia and Associate Professor Peter Thursby (hereinafter “the Review Committee”). The determination of the second defendant was to dismiss an appeal brought by the plaintiff against the decision of the first defendant, being the South Western Sydney Local Health District, to terminate the plaintiff’s appointment as a Visiting Medical Officer (hereinafter “VMO”).

2. Ancillary orders are sought remitting the controversy to the second defendant, or a differently constituted Committee, to hear and determine an appeal according to law, and for the first defendant to pay the costs of the proceedings.

Factual and Procedural History

3. I have already identified the parties. The plaintiff, Dr Anthony Freeman, was appointed as a VMO by the first defendant in or about 2009 and this appointment was renewed for a period of five years on and from 1 January 2019. As is obvious, the plaintiff is a medical practitioner and was engaged as a VMO as a “Specialist Surgeon – Senior – Vascular Surgery” and the appointment included clinical privileges at Liverpool Hospital, Bankstown-Lidcombe Hospital and Camden and Campbelltown Hospitals, with admitting rights at the first two-mentioned hospitals.

4. Earlier in his history, the plaintiff was the subject of an investigation into his conduct and performance as a VMO at Bankstown Hospital. The investigation commenced on or about 28 April 2016.

5. There was compiled a published report arising from the aforesaid investigation, which dealt with time in attendance at Bankstown-Lidcombe Hospital. On 6 June 2017, Ms Amanda Larkin, Chief Executive of the first defendant, wrote to the plaintiff outlining matters of concern and informing the plaintiff that she was giving consideration to the termination of the plaintiff’s appointment. On 19 June 2017, Ms Larkin issued the plaintiff with a formal warning.

6. On 24 December 2018, the first defendant re-appointed the plaintiff as a VMO with clinical privileges under a Sessional Service Contract for the quinquennium commencing 1 January 2019.

7. On or about 24 December 2018, the plaintiff was re-appointed as a VMO. The Contract is concise and refers to a number of documents, some of the terms of which are incorporated in the Contract. The lack of specificity in the Contract was a circumstance noted by the Review Committee.

8. The last reappointment was for the period 1 January 2019 until 31 December 2023. Relevantly, the Contract expressly provided that it could be terminated in accordance with cl 16 of the Public Hospitals (Visiting Medical Officers – Sessional Contracts) Determination 2014 (hereinafter “the Determination”).

9. The Determination is awarded by an Arbitrator appointed by the Minister for Industrial Relations on application of either the Association (the Australian Medical Association (NSW) Limited) or the Minister for Health. [1] An appeal lies from the appointed Arbitrator’s Determination to a Full Bench of the Industrial Relations Commission of NSW. [2]

   1. Health Services Act, s 89.

   2. Health Services Act, s 96.

10. By operation of s 76 of the Act, a visiting practitioner, which includes a VMO, is a person other than an employee, appointed by a public health organisation to practise as a medical practitioner in accordance with the conditional appointment at a public hospital. One of the kinds of visiting practitioners is defined as a visiting medical officer, which is a medical practitioner appointed under a service contract. [3]

    3. Health Services Act, ss 77 and 78.

11. Relevantly, a service contract is defined, as one would expect, as a contract between a visiting medical practitioner and the Local Health District (the first defendant), and, in this case, is a sessional contract, pursuant to the terms of s 81(b) of the Act. [4] The terms of the contract between the plaintiff and the first defendant expressly provide that the contract is a contract under the provisions of s 80(1)(a) of the Act. [5] Further, the contract describes that it is a sessional contract pursuant to the terms of s 83 of the Act. [6]

    4. Health Services Act, ss 80, 81, 82, and 83.

    5. Court Book, Tab 15, pp 668-669; Visiting Medical Officer Sessional Service Contract, cl 4.

    6. Court Book, Tab 15, p 669; Visiting Medical Officer Sessional Service Contract, cl 5.

12. The Contract, by operation of cl 3 thereof, expressly incorporates the terms of the Determination, a link to which is provided in the Contract. The clinical privileges are set out in Sch 1 of the Contract which are in the following terms:

“Clinical Privileges in Vascular Surgery, including open vascular and endovascular surgery, within the delineated role of Liverpool Hospital. Admitting rights.

Clinical Privileges in Vascular Surgery within the delineated roles of Camden & Campbelltown Hospitals. No admitting rights.

Clinical Privileges in Vascular Surgery within the delineated role of Bankstown – Lidcombe Hospital. Admitting rights.”

13. Schedule 2 to the Contract sets out what are said to be the services that the VMO is required to provide during the course of the contract. There are provisions dealing with ordinary hours, the remuneration for such ordinary hours, compliance with NSW health policies, requirements on call and general conditions.

14. The Contract is subjected to the provisions of the Determination. There is no express provision in the Contract itself permitting termination of the contract prior to 31 December 2023, but there is express reference to the ability to terminate in accordance with cl 16 of the Determination.

15. Clause 16 of the Determination is in the following terms:

“16.    TERMINATION OF SESSIONAL CONTRACT

(1)    A sessional contract shall be terminated:

(a)    upon the expiry of the period for which it was made or on such earlier date as may be agreed between the visiting medical officer and the public health organisation;

(b)    by three months’ notice in writing given by either the visiting medical officer or the public health organisation (or a shorter period of notice if agreed between the visiting medical officer and the public organisation);

(c)    by four weeks’ notice in writing given by the visiting medical officer if dissatisfied with a decision as to the fixation of ordinary hours by the public health organisation pursuant to clause 5(6) of this Determination following an annual review, provided that the notice of termination is given within seven days of the officer receiving notification in writing of the decision;

(d)    if the visiting medical officer ceases to be registered as a medical practitioner;

(e)    if a condition is placed on the visiting medical officer's registration as a medical practitioner which substantially precludes the officer from providing services under the sessional contract;

(f)    if the visiting medical officer becomes permanently mentally or physically incapable of rendering services under the sessional contract;

(g)    if the visiting medical officer commits serious and wilful misconduct; or

(h)    if the visiting medical officer’s appointment is terminated by operation of any Act or regulation.

(2)    On the termination of a sessional contract, any amount due and payable to the visiting medical officer pursuant to the sessional contract shall be paid at the time of such termination or as soon thereafter as reasonably practicable.” [7]

7. Court Book, Tab 15, p 763.

16. As can be seen from the foregoing, there are a number of methods by which the sessional contract may be terminated. First, it expires at the end of the period for which it was made or otherwise by agreement.

17. Secondly, it may be terminated by the VMO on four weeks’ notice, if the VMO is dissatisfied with a decision relating to hours. Thirdly, there are obvious termination provisions if the VMO ceases to be a registered medical practitioner or has conditions placed upon his registration which substantially precludes the provision of the service for which the Contract provides. There are also provisions for termination if the VMO becomes physically or mentally incapacitated.

18. The two most relevant provisions are that the sessional Contract may be terminated by either party giving three months’ notice in writing or may be terminated if the VMO commits serious and wilful misconduct. Thus, under the terms of the Contract, the Contract can be terminated, without cause, on three months’ notice and immediately for serious and wilful misconduct.

19. There were two operations of relevance to the conduct of the first defendant and the findings of the Review Committee. On 17 June 2019, there was an operation on JR. On 28 February 2020, there was an operation on patient WM.

20. On 9 March 2020, Dr Peter Thompson, then the Director of Medical Services, Liverpool Hospital, completed a risk assessment on the operation that was performed on patient WM. For present purposes, although more detail will be provided later in these reasons, it is sufficient to note that the plaintiff did not attend the operation on WM.

First Suspension and Appeal

21. As a consequence of the risk assessment by Dr Thompson, the plaintiff was notified of the suspension of his appointment (hereinafter “the First Suspension Decision”) on 23 March 2020. On 1 June 2020, a formal letter setting out allegations in relation to the care of patients JR and WM issued.

22. On 9 April 2020, the plaintiff appealed against the First Suspension Decision by lodging a Notice of Appeal with the Review Committee.

23. On 4 August 2020, the Review Committee published reasons dealing with the First Suspension and reinstated the plaintiff on an amended Contract of Engagement, which was executed on 3 September 2020.

Termination and Second Appeal

24. On 3 September 2020, the Chief Executive of the first defendant, Ms Larkin, notified the plaintiff, by letter, of proposed adverse findings and required him to show cause as to why his appointment should not be terminated (the “Show Cause Letter”). On 25 September 2020, the plaintiff responded to the Show Cause Letter and purported to “show cause”.

25. On 21 October 2020, the first defendant sent the plaintiff a further letter notifying him of the termination of his appointment with three months’ notice (hereinafter “the Termination Letter”). The Termination Letter contained allegations against the plaintiff in regard to the two operations to which reference has already been made.

26. First, the Termination Letter alleged that, on 7 June 2019, the plaintiff failed properly to discuss with and/or to instruct the surgery team or attend the theatre during the surgery of the patient JR for whom he was the responsible consultant. Secondly, the Termination Letter alleged that, on 28 February 2020, the plaintiff was not in attendance for the surgery of the patient WM and, his non-attendance was a failure to comply with a lawful direction and a failure to provide adequate supervision to trainee registrars.

27. The Termination Letter further stated:

“Accordingly, for the reasons set out at Schedule 2 (enclosed), I have determined to terminate your employment as a VMO in accordance with clause 16(1)(b) of the Determination. Termination of your appointment will become effective three months from the date of receipt of this letter.” [8]

8. Court Book, Tab 14, p 732.

28. The Chief Executive, on behalf of the first defendant, expressly relied on cl 16(1)(b) of the Determination, which is termination of the Contract on notice and otherwise than for cause.

29. Four days later, on 25 October 2020, the plaintiff was notified that there was a suspension of his appointment for the duration of the notice period (hereinafter “the Second Suspension Decision”).

30. On 27 October 2020, the plaintiff appealed against the Second Suspension Decision and Termination Letter by lodging a Notice of Appeal to the Review Committee (hereinafter referred to, respectively, as “the Second Appeal” and “the Second Notice of Appeal”).

31. On 13 May 2021, the Review Committee published its reasons for its decision in relation to the Second Appeal, which reasons and determination is the subject of the current proceedings before the Court.

32. In the Second Appeal, the Review Committee (constituted in the same way as the Review Committee for the First Appeal) made the following comments:

• With respect to its functions, the Review Committee noted that it was entitled to make a de novo decision; that it was not bound by the grounds of the appeal; and, that it determines the outcome in accordance with the relevant legislative provisions on the evidence before it. ^[9]

• The lack of documented protocols relating to VMO requirements did not support the plaintiff, as the obligations on a VMO are “situation dependent”. ^[10] The Review Committee found that this ground of appeal demonstrated that the plaintiff lacked judgement and/or lacked an understanding of his obligations. ^[11]

• The Risk Assessment of 11 April 2021 ^[12] conducted by the Review Committee in accordance with the relevant policies and/or guidelines affirmed the view regarding the plaintiff’s termination. ^[13]

  9. Court Book, Tab 3, p 62-106; Reasons for Decision on the Second Appeal at [112].

  10. Ibid, at [115].

  11. Ibid, at [115].

  12. Court Book, Tab 3, p 89-103; Annexure 1 - Information Sheet 9 Risk Assessment Template completed by the Committee, p 28-42.

  13. Court Book, Tab 3, p 62-106; Reasons for Decision on the Second Appeal at [120]-[121].

33. The Review Committee acknowledged that the respondent/first defendant’s investigation process was “clumsy, slow and incomplete” and that it failed to follow up with the plaintiff the concerns that it had regarding the plaintiff’s performance and/or work. ^[14] The Review Committee noted the significant number of medical practitioners under the respondent’s responsibility and determined that the Review Committee’s priority was to ensure that persons in the trusted position of a VMO were engaged in appropriate behaviour,^[15] which the plaintiff was not, and demonstrated he did not modify his behaviour after censure. ^[16]

    14. Ibid, at [113].

    15. Ibid, at [113].

    16. Ibid, at [122].

Reasons for Second Appeal Decision

34. The Review Committee, as already stated, issued reasons for decision on 13 May 2021. The Review Committee is appointed by a Delegate of the Minister of Health and deals with the appeal pursuant to the terms of s 106 of the Health Services Act 1997 (NSW).

35. As has been stated, the Second Appeal was against the decision of the first defendant, the South Western Sydney Local Health District, to terminate the plaintiff. Such a decision is prescribed in s 105(1)(c) of the Health Services Act as one which requires notice in writing to the affected person.

36. By the terms of s 106 of the Health Services Act the dissatisfied person may appeal against the decision to the Minister and, on receipt of a Notice of Appeal within the time allowed, the Minister must appoint the Review Committee under ss 107 and 108 of the Health Services Act. The Review Committee has all of the powers and immunities of a Royal Commissioner.

37. Except on a question of law, a decision of the majority of the Review Committee is the decision of the Committee. The Review Committee is entitled to make orders in respect of the matter, being any orders that could be made by the Local Health District or original decision-maker and the decision of the Review Committee is taken to be the final decision of the public health organisation.

38. As a consequence of the foregoing, and as remarked by the Review Committee, the appeal is by way of “review” and the Review Committee is standing in the shoes of the decision-maker. It is necessary to emphasise that the appeal is against the original decision, not the reasons for it.

39. The appeal is a hearing de novo of the controversy or matter, which, in the circumstances, requires the Review Committee to decide afresh whether the Local Health District should terminate the plaintiff. It is open to the Review Committee to determine that the concerns raised were not established or that, if established, the concerns did not warrant termination. But the appeal decision is not confined by the statute to the reasons of the original decision-maker.

34. After referring to the process by which the plaintiff was terminated and the chronology of events which the Court has summarised above, the Review Committee dealt with the Health Services Act, the regularity of the appointment of the Committee and the circumstance that the Review Committee proceeded by way of a de novo hearing. The Review Committee stressed the significance of a community representative on the Committee. Further, the Review Committee referred to the remarks in the Second Reading Speech of the Health Services Act relating to the community expectation of safe and proper care from the health system in New South Wales.

35. The decision of the Review Committee then dealt with the terms of the plaintiff’s engagement and extracted the provisions of cl 16(1) of the Public Hospitals (Visiting Medical Officers – Sessional Contracts) Determination 2014, which deals with termination of a sessional contract, being the kind of contract under which the plaintiff was engaged.

36. In remarking that the arrangement between a VMO and a Local Health District was one of independent contract, as distinct from employment, and that the terms of the contract are brief, the Review Committee refers to the incorporation by reference in the contract to the foregoing Determination, the NSW Health Code of Conduct [PD2015_049] and other NSW Health Policy directives applicable to a VMO.

37. The Review Committee recited some of the requirements in the Determination on a VMO. It also recited extracts of the NSW Health Code of Conduct and some of the Standards of Clinical Practice published by the Royal Australasian College of Surgeons (RACS) of which the plaintiff was a member.

38. It is unnecessary to recite those extracts. It is, however, noteworthy that the requirements in the Determination included: participation in the teaching and training of postgraduate medical officers as may be required by the public health organisation; participation in the roster and, when participating, to be “readily contactable at all times and be able and prepared to attend the hospital concerned within a reasonable period of time”; and, professional responsibility for the proper clinical management and treatment of public patients in the doctor’s care.

39. Similarly, the NSW Health Code of Conduct required a VMO to “comply with all lawful and reasonable directions; to comply with all policies and procedures of NSW Health.” The RACS Code of Conduct prescribed a number of expected professional requirements, which, amongst other requirements, included the promotion of a cohesive team approach; acting in the best interest of patients; responding in a timely manner to requests from other clinicians for advice or opinion and responding as a priority to requests for help in the operating theatre; participation in the emergency management of a patient when requested, if reasonably able to do so and when refusal might adversely affect the outcome of the patient; ensuring that operation safety practices for patients and theatre staff are adhered to; and, prioritising intervention on the basis of clinical need.

40. Given the issue between the parties as to supervision, it is appropriate to extract from the Review Committee’s reasons a passage dealing with the RACS Standards for Supervision. That passage is in the following terms:

“The Royal Australian College of Surgeons publishes a ‘Standards for Supervision’ document. There was evidence before the Committee of the Appellant’s significant involvement in the training of junior medical staff employed by the Respondent. The introduction of the Standards for Supervision document states that the Surgical Education and Training (SET) program relies on the RACS Fellows to make the significant pro bono commitment to offer their time and expertise to train independent surgical consultants of the future to ensure continued world class standards of healthcare are provided to the Australian and New Zealand communities. The document refers to the importance of situated learning, work-based learning, transfer of learning and notes that ‘responding to feedback assists trainees to attain professional behaviours.’ The training program seeks to ‘facilitate trainees to become competent surgeons who provide consistently safe and effective surgical care of the highest standard’. The eight principal responsibilities that are the core to clinical supervision and trainee support includes the tasks of being a ‘role models professional behaviour at all times’ and ‘ensuring patient safety’.”

47. While the following extract is a little self-serving, it is, by definition, a statement of fact, dealing with the professional capacity of the Review Committee. It is in the following terms:

“The Committee has the experience and expertise to comfortably state that there is a fundamental expectation that a VMO will possess the appropriate judgment to ensure they attend their lists and provide supervision to junior medical staff appropriately. Further, the Committee is of the view that the safe delivery of health services within the public health system in New South Wales depends upon the judgment of all employees, particularly those in autonomous roles such as a VMO. It is essential that the LHD is able to repose trust in its VMOs. It is fundamental to the relationship.”

48. The Review Committee did not summarise, separately, the submissions of either the respondent or appellant before it. The respondent filed written submissions to the Review Committee on 1 March 2021 and, in reply, on 18 March 2021. The appellant filed written submissions to the Review Committee on 15 March 2021. The procedure for the appeal is a matter for the Review Committee, but it seems that the Review Committee applied the procedure generally applicable in relation to proceedings challenging the termination of employment, namely, that it was for the Local Health District to justify the termination and to raise the concerns, which, in turn, could be answered by the individual, in this case, the plaintiff.

49. The Review Committee, in the Second Appeal Decision, referred, expressly, to the principles set out in its decision of 4 August 2020, dealing with the First Appeal. The terms of those principles, as set out in the First Appeal Decision, are in the following terms:

“It is important to note that this Committee of Review is now constituted with a member that satisfies the requirements of s108(2)(c1). This brings the interests of health consumers clearly into focus for this Committee. By way of a general statement as to the expectations of this Committee (noting these are derived from a number of sources such as NSW Health documents) – Patients (and their families/carers) are entitled to expect:

1.    The decision to admit the patient considers the patient’s current experience of their illness/condition and identifies the need for surgical intervention as the next treatment option. The patient is admitted in a clinically indicated timeframe;

2.    The patient and their family are listened to by the treating team (team being taken in the broadest sense that is, administrative, nursing, medical and allied health personnel) and at all times are treated in a manner consistent with respecting the dignity and rights of the patient;

3.    The concerns of patients and their families, if they exist, are noted and addressed in a timely manner by the treating team;

4.    Patients are provided with sufficient information regarding the proposed procedure, any relevant options if applicable, attendant risks, advice as to who will perform the procedure and timing of the procedure in order that they can provide informed consent;

5.    Appropriately qualified personnel perform the procedure and are assisted in providing pre, intra and post procedure care by other health professionals in accordance with accepted professional standards and the policies of the hospital/organisation;

6.   After the procedure appropriate follow-up and after care is organised ad provided;

7.    In the event of post-operative complications, these are explained to the patient and their family by the treating team, any questions are answered honestly and the appropriate course of action to manage the complication is outlined and implemented with the agreement of the patient (or next of kin depending on the issue); and

8.    In the event of a clinical incident resulting in an adverse outcome for the patient, open disclosure is provided in a timely manner, the incident is investigated and feedback is provided to the patient and/or family. Steps are taken by the hospital/organisation to prevent a recurrence of the same incident with another patient and family if this is at all possible.”[17]

17. Court Book, Volume 4, p 70; Review Committee, Reasons for Decision, 4 August 2020, at [125].

50. In its reasons for decision for the Second Appeal, the Review Committee came to the following conclusion:

“The Committee is of the view that the Appellant did not consistently act to support the Respondent in delivering safe patient care; in particular his attendance at the hospital and his supervision of junior medical staff were not to the standard required to fulfil the obligations of his VMO contract. This can be illustrated by his conduct in two matters – Patient JR in June 2019, and Patient WM in February 2020. While this is sufficient in and of itself, the Committee also accepts that the Respondent has lost confidence in the Appellant and that position is unlikely to resolve in the near future. Having regard to all the circumstances the Appellant’s appointment should remain terminated.”^[18]

18. Court Book, Volume 1, p 70; Review Committee, Reasons for Decision, 13 May 2021, at [38].

51. The Review Committee then dealt with the issues associated with patient JR. It is unnecessary to recite all of the issues associated with the patient. It is, however, necessary to recite that the patient was, and was known to be, a Jehovah’s Witness and had instructed that she was not to receive blood products in any form, including reinfusion of her own blood. The surgery was undertaken by two registrars, supervised by the vascular surgery unit fellow, Dr Ahmad. Dr Ahmad was a fellow of the Royal College of Surgeons of England, but was still classified as a trainee and the two registrars were both trainees. As a consequence, each of the surgeons in the team were experienced, but were not consultants or VMOs.

52. When the clamps were removed, the patient showed signs of haemodynamic instability. The clamps were replaced, and the anaesthetist addressed the instability. Contact was made with the plaintiff, who attended to the operating theatre.

53. There was an issue before the Review Committee as to the time taken to return. The surgical team estimated it was about 15-20 minutes. The plaintiff submitted that the findings should be that the time taken to attend the theatre was about 10 minutes. The Committee noted:

“Whether it was 10 minutes or less, does not alleviate the Committee’s concerns arising from this matter. It is the fact that the [plaintiff] was not present (or even immediately present) in the circumstances of this matter that is of concern to the Committee as it demonstrates a lack of professional judgement required of a VMO.

Some of the evidence the Committee has considered in reaching the view that the [plaintiff] did not exercise appropriate professional judgement in relation to the surgery on JR includes:

• Patient JR had a number of significant co-morbidity risk factors

• Patient JR was 47 years of age

• Patient JR had directed restrictions on the use of blood products consistent with her faith

• the Appellant planned to be offsite and to leave the surgery to registrars under the supervision of Dr Ahmad

• while Dr Singla knew he would be the primary operating surgeon for the procedures he had expected the Appellant would be available during the surgery (although the Appellant may not have been scrubbed)

• the Appellant had not provided specific instructions to Dr Singla regarding performing surgery on a patient of the Jehovah’s Witness faith – including steps to measure blood loss as accurately as possible

• the Appellant had not discussed Patient JR with Dr Bookum or Dr Ahmad prior to the surgery

• the Appellant assumed Dr Ahmad would supervise the registrars

• although both Drs Singla and Bookum had performed femoro-popliteal bypass surgery before they had not operated on a patient of the Jehovah’s Witness faith previously

• Dr Bookum was provided with information about the surgery by Dr Singla during the ‘team time out’ immediately prior to the surgery commencing and the implications of blood loss in such a patient was not specifically discussed

• Dr Singla did not have a clear recollection of whether he knew Patient JR was of the Jehovah’s Witness faith prior to the surgery

• the Appellant had not discussed the possibility of a reperfusion injury with Dr Singla that led to two possible causes of the shock the patient experienced when the vascular clamps were removed

• Dr Ahmad was not aware that Patient JR was a member of the Jehovah’s Witness faith until part way through the surgery when complications occurred (after the removal of the clamps) and there was discussion regarding why a transfusion could not be administered

• the Appellant not accompanying the registrars when they spoke to the relatives of Patient JR to inform them of the poor outcome of the surgery, and then a few days later, to inform them of her demise.” ^[19]

  19. Court Book, Volume 1, p 71; Review Committee, Reasons for Decision, 13 May 2021, at [46]–[47].

54. Because of the absence of the plaintiff, Dr Ahmad, by default, was the most senior medical practitioner. Dr Ahmad was unaware that the patient was a Jehovah’s Witness until partway through the surgery. Dr Ahmad gave evidence in which she stated that, were she aware of the limitations on treatment with blood prior to the surgery, she would have “been absolutely militant” about minimising blood loss.

55. Dr Ahmad expected that the plaintiff would be present or, if he were not present, would discuss the case with her and request her to provide supervision prior to the commencement of the procedure. The Review Committee accepted the evidence of Dr Ahmad. They did so, in part, comparing the procedure adopted by the plaintiff when compared with the procedure undertaken when Dr Ahmad operated on patients of two other VMOs.

56. The patient JR was a patient on the elective list of the plaintiff, and the Review Committee came to the view that the “risk to patient safety was not addressed by the [plaintiff] in any apparent manner”. It found:

“[the plaintiff] had the opportunity to be present for the surgery. He had the opportunity to ensure the operating surgeons were involved in the planning. As he planned to be absent, he should have ensured they were aware of the risk factors and provided guidance as to their management.

The Committee considers the [plaintiff] did not exercise appropriate clinical judgement at a level required for a VMO to fulfil contractual obligations owed to the [first defendant] by absenting himself from the surgery.” ^[20]

20. Court Book, Volume 1, p 72; Review Committee, Reasons for Decision, 13 May 2021, at [50]-[51].

57. The Review Committee, apart from taking the view that the plaintiff should have attended the surgery, noted that, if he were not to be present at the surgery — because he considered that the other more junior medical practitioners could competently perform the task — he, nevertheless, should have made proper arrangements relating to the risk factors and care of the patient before absenting himself. The Review Committee’s primary position was that the plaintiff should have been present for the procedure.

58. In arriving at that decision, the Review Committee took account of the evidence of Drs Sun, Vernier, Bookum, Harris and Iliopoulos, each of whom described the procedure on the patient as “high risk”. Further, the Review Committee, utilising its own expertise as a tribunal, was of the view that this was a “relatively high-risk procedure”.

59. The Review Committee rejected the plaintiff’s submission to it that the operation was the subject of “appropriate discussions”. The Review Committee gave its reasons for rejecting that submission.

60. Further again, the Review Committee formed the opinion that the management of patient JR demonstrated “flawed decision-making on the part of the [plaintiff] with respect to supervision and delegation.” In the view formed by the Review Committee the judgement exercised by the plaintiff was “well below what is expected of a senior medical practitioner, in particular, one holding a VMO appointment with all the obligations this entails.”

61. In dealing with the submission of the plaintiff to the Review Committee, the Committee rejected any reliance by the plaintiff on the comments of Dr Oliver — given that they occurred prior to the letter of 6 January 2017 — detailing the requirements on the plaintiff as to attendance and supervision. Further, the Review Committee did not accept that the comments of Dr Oliver were a condonation of the plaintiff’s absence in this particular matter.

62. The Reasons for Decision of the Review Committee in the Second Appeal then dealt with the issues surrounding the treatment of patient WM. Some of the issues, if not all of them, relating to the treatment of Patient WM on 28 January 2020, were the subject of comments in the Reasons for Decision in the First Appeal. In the matters before the Review Committee in the Second Appeal, additional evidence was adduced.

63. The Review Committee expressed the view that the additional evidence did not materially change the facts and circumstances of the surgery on WM as detailed in the First Appeal Decision. The patient WM was referred to the ED (Emergency Department) at Liverpool Hospital by the plaintiff in order for WM to be admitted for surgery the following day.

64. The plaintiff organised for the patient WM to be scheduled for surgery on 28 February 2020 and to be admitted when, on 27 February 2020, WM attended at the Emergency Department. The plaintiff had operated on WM previously and the registrar, in accordance with the instruction, placed WM onto an emergency list, because the elective list for 28 February 2020 had closed.

65. The Review Committee considered that the question upon which the parties concentrated as to whether WM was in the “elective” list or in the “emergency” list was unimportant and/or immaterial insofar as the obligations of the plaintiff to the patient were concerned. The Review Committee noted that the plaintiff attended Friday operating lists for a period after the first defendant issued “directions”.

66. On the afternoon of 28 February 2020, when WM’s operation occurred, the plaintiff did not attend, nor undertake, the surgery. Complications arose during the course of the surgery which had the effect of a necessary change to procedure.

67. Once it was realised that the original plan for the surgery was unable to be implemented, a decision was made by the team to contact the plaintiff, who was unable to be contacted. The details of the telephone communications and messages is set out in the reasons for decision of the Review Committee, but the timing of the communications was seen by the Review Committee as irrelevant to the consideration of the issues before it.

68. The Review Committee noted:

• at the time that the plaintiff first spoke to those in the operating theatre relating to the change in procedure, the altered surgical procedure had progressed significantly;

• the plaintiff, at the time of the first communication, was satisfied with the alteration procedure;

• the plaintiff offered to attend the hospital during the call; and

• it was thought unnecessary for the plaintiff to attend as the expected procedure had already been abandoned and the procedure altered to a more complex and extensive operation. [21]

  21. Court Book, Volume 1 of 6, p 75-76; Second Appeal Decision at [73].

69. The Review Committee concluded that the plaintiff’s conduct in relation to the operation of WM demonstrated that the plaintiff failed to provide clinical management at an appropriate standard. In doing so, the Committee concluded that the plaintiff failed to provide appropriate care to WM; failed adequately to communicate to the operating team and/or provide a handover of adequate standard; failed to supervise junior medical staff to an acceptable level; and, failed to provide appropriate handover to the consultant who had agreed to cover the operations for the plaintiff on account of his “family commitment”. Further, the Review Committee concluded that the plaintiff’s failures caused the Local Health District to fail to meet its obligations towards the patient and junior medical staff. [22]

    22. Court Book, Volume 1, p 77; Second Appeal Decision, 13 May 2021, at [75].

70. In reaching the foregoing conclusion the Review Committee took into account the following evidence:

• “Dr Ahmad was not aware of the admission of Patient WM until Dr Yang informed her during the course of the day on 28 February 2020

• initially Dr Ahmad thought the Appellant would supervise Dr Yang performing Patient WM’s surgery

• it was only later in the day that the Appellant informed Dr Ahmad he was leaving in the afternoon and that Dr Farmer (who was operating at another hospital that day) was covering for him

• Dr Yang expected the Appellant to be at the hospital for the surgery – he considered that the surgery may have proceeded in another theatre in parallel with the other surgery on the list during the usual operating hours for that day

• Dr Yang only became aware that the Appellant would not be in the hospital at the time of Patient WM’s surgery shortly before the operation commenced – about an hour before the Appellant was due to depart

• there was little discussion between Dr Yang and the Appellant prior to the surgery – Dr Yang saw the angiogram scans but did not discuss these with the Appellant

• Dr Ahmad was not involved in the formulation of the operation plan for Patient WM prior to the surgery

• Dr Ahmad was informed by the Appellant that Dr Yang was to perform a femoral endarterectomy (and states she was not told anything else about the surgery)

• the Appellant did not ask Dr Ahmad to supervise Dr Yang

• Dr Ahmad felt obliged to assist Dr Yang with the surgery as he was an unaccredited registrar who she considered not to have the capability to undertake this surgery without supervision

• Dr Yang found the surgery more complex than a standard endarterectomy

• Dr Yang found the surgery was more complex than he had anticipated and when the initial plan failed, he felt ‘lost’

• Dr Ahmad had not performed this procedure exactly in this way before

• Dr Affan (another registrar) was called in to assist with the surgery when complications presented themselves

• based on Patient WM’s angiogram, Dr Spiers (the attending anaesthetist for the surgery) considered that the surgery was going to be difficult and technically challenging. He expected there would be blood loss and the surgery would be lengthy. He noted Patient WM’s prior vascular surgery which suggested that ‘perhaps’ the consultant ‘should have been’ present.

• Dr Farmer was concerned that he had not received a handover from the Appellant for a patient that was having surgery whilst he was covering for the Appellant.

• Drs Farmer and Ahmad thought the Patient WM case was difficult or more complex because there had been recent surgery on an adjacent artery

• Prof Iliopoulos (head of the vascular surgery unit at Liverpool Hospital) listed a number of factors that rendered this particular surgery of moderate complexity and expressed the view that it would not be appropriate for the consultant to have left the hospital during the surgery

• Prof Iliopoulos expressed the view that the preferred course of action would have been for the Patient WM surgery to have been moved earlier on the list and an elective case cancelled – but failing that a handover to Dr Farmer was a ‘reasonable’, although not ideal, solution

• The Appellant knew Patient WM was scheduled for surgery on 28 February 2020 and knew of his commitments that day.”[23]

  23. Court Book, Volume 1, p 76; Second Appeal Decision, 13 May 2021, at [74].

71. The Review Committee considered that the failures were serious, and the seriousness of the failure was not qualified by the fact that, as a fact or circumstance, there were no long-term adverse outcomes. In doing so, the Review Committee summarised the effect of the evidence adduced by Dr Farmer (the covering consultant) that he was unaware that an operation was occurring and had not been informed by the plaintiff of that fact, and of Dr Grigg — about whose evidence the Review Committee had “valid concerns” — on the failure to communicate adequately and properly to supervise the operating team.

72. The Review Committee made clear that there was no mandatory provision that a consultant, such as the plaintiff, was required to be present for every moment of surgery on all patients admitted under the consultant’s name. There is no inconsistency between the underlying flexibility accepted by the Review Committee and the obligation to supervise junior staff adequately, on the finding and the view expressed by the Review Committee. If a consultant is to be absent and such absence, on the consultant’s best judgement, is appropriate, then the consultant is required to put in place measures to ensure patient and staff safety.

73. The Review Committee Decision then dealt with the loss of confidence by the Local Health District in the plaintiff. [24] The Review Committee accepted the evidence of the Chief Executive of the first defendant that she had lost confidence in the plaintiff.

    24. Court Book, Volume 1, p 80-84; Second Appeal Decision, 31 May 2021, at [91]-[110].

74. The Committee gave reasons for that acceptance, being the evidence was well tested under cross-examination; the lack of likelihood that the plaintiff would be able to regain the confidence of the Chief Executive; and the absence of any room for remediation. The Committee referred to tension with other Executives, including Dr Harris, the then Director of Medical Services at Liverpool Hospital.

75. The Committee further relied upon the pattern of conduct of the plaintiff and the circumstance that the change in behaviour, in response to the direction or indication by the Local Health District, was short-lived. The Committee referred, in that respect, to the chain of communications commencing with the letter of 6 January 2017 and recited passages of the letter.

76. The Committee took the view that the plaintiff was on notice as early as 2017 of the concerns of the Local Health District, and the more recent conduct was of the same kind as that for which the Local Health District had expressed concern on earlier occasions. The Review Committee excluded from its consideration any reliance on the practice of the plaintiff of running two operation lists simultaneously at different hospitals. It seems that the Review Committee excluded any reliance upon that conduct because the conduct seems to have been condoned.

77. The Review Committee then traced the exchanges following the letter of 6 January 2017 and concluded that the directions and/or conditions imposed by the Local Health District were reiterated and the plaintiff was reminded of his obligations. The Review Committee decision referred expressly to the letter from the Chief Executive of 19 June 2017.

78. The Second Appeal Decision noted that the plaintiff was reappointed as a VMO in 2018 and expressed the view that such reappointment did not qualify or expunge the warnings provided by the Chief Executive prior to that point. In 2018, the Review Committee noted, there was an external investigation which concluded that no misconduct had occurred and was not, from the perspective of the plaintiff, a report involving an adverse outcome.

79. During a Performance Review Panel hearing of the Medical Council of NSW, the plaintiff agreed to take “professional responsibility for the proper clinical management and treatment of patients under [his] care in the hospital and presenting to the emergency department with vascular problems when [he is] on call”. After referring to the cross-examination of the plaintiff during the Second Appeal proceedings, the Committee expressed the view that it considered the plaintiff’s lack of insight into his own conduct contributed to their conclusion that there could be no remediation in the loss of confidence of the Local Health District in the plaintiff.

80. In conclusion on the subject matter, the Review Committee expressed the following:

“[A]t some stage in early 2019 [the plaintiff] commenced to leave the operating theatre on a Friday afternoon. At least on some of these afternoons the [plaintiff] attended patients in his private rooms which are located very close to Liverpool Hospital while his list continued. The list continued with the junior medical officers performing the surgery, albeit trainee medical officers of particularly high seniority.

This is an example of the [plaintiff] reverting to previous conduct despite steps taken by the [first defendant] to rectify. It is inconsistent with the expectations stated in the 2017 correspondence from the [local health district] and contrary to the terms of the engagement of a VMO.

The Committee finds that the [plaintiff’s] failure to attend Liverpool Hospital during 2019 was a significant breach of the trust placed in the [plaintiff] by the [first defendant] and seen in the context of previous communications from the [first defendant] demonstrates a lack of professional insight and judgement.” [25]

25. Court Book, Volume 1, p 83-84; Second Appeal Decision, 31 May 2021, at [108]-[110].

81. In its conclusion, the Review Committee reiterated that its approach to the appeal was by reference to the function of the Committee, which was to exercise the powers of the Local Health District de novo. Consequently, the Committee took the view that it was not bound by the grounds of the appeal raised by the plaintiff, nor exercising that which may be referred to as a “strict industrial jurisdiction”.

82. The Review Committee observed that the Local Health District did not seem to follow up on directions, instructions or guidance that it had provided to the plaintiff. The investigation processes initiated by the Local Health District were described by the Review Committee as “clumsy, slow and incomplete”.

83. The Review Committee also noted that, notwithstanding the Level One and Level Two performance reviews, the Local Health District renewed the plaintiff’s VMO contract without raising their concerns as barriers to continued engagement.

84. The Review Committee formed the view that it was not their role to make findings in this regard. However, the Review Committee expressed a view that, even if it were appropriate to consider the conduct of the plaintiff against the incomplete and/or inconsistent processes adopted by the Local Health District, “it would not allow a person in the trusted professional position of a VMO to revert to behaviour that has previously drawn censure”.

85. Further, the Review Committee referred to the reliance by the plaintiff on lack of documented policy and contract arrangement detailing attendance requirements of a VMO as reinforcing the Review Committee’s concern as to the plaintiff’s lack of judgement generally; lack of understanding of his obligations as a VMO; the plaintiff’s ability to reflect when corrected; and the plaintiff’s ability to make constructive changes to his practice.

86. The Review Committee reiterated its view that the obligations on a VMO are unable to be defined by rigid requirements. It remarked:

“[115]   The Committee’s view remains as stated in the earlier decision, that the obligations on a VMO are not able to be defined by ‘hard and fast rules’ as it is situation dependant. The well-established and documented framework of policies, procedures, codes, guidelines etc. provides comprehensive parameters and reflection point for consultants. It is a matter of ‘it should be obvious’ (refer [40] [plaintiff’s] submissions 15 March 2021) as to when a VMO is expected to be in attendance. There is not, and cannot be, a written list that specifies when it is ‘obvious’ that a VMO must be in attendance. This is the inevitable outcome of application of the basic obligation of a duty of care for patients placed upon medical practitioners guided by numerous documents such as codes, contractual requirements and guidelines. These have to be applied to the individual circumstances of each and every patient encounter.”[26]

26. Court Book, Volume 1, p 84; Second Appeal Decision, 31 May 2021, at [115].

87. The Review Committee expressed the view that the acceptance, from time-to-time, of the practices of the plaintiff and the re-appointment of the plaintiff did not condone the conduct, and that the doctrine of “condonation” “does not have a place in” its consideration. The Review Committee then discussed the judgment of the then Industrial Relations Commission of New South Wales. [27] The Review Committee distinguished the aforementioned judgment on the basis outlined in its reasons. [28]

    27. Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 (Walton VP; Hungerford J; Bishop C).

    28. Court Book, Volume 1, p 85; Second Appeal Decision, 31 May 2021, at [117].

88. The Review Committee rejected the submission of the plaintiff that he had been terminated on the basis of hearsay and inuendo and stated:

“The [plaintiff] is expected to work at an autonomous level and have the ability to self-regulate. He should not, in the view of the Committee, need to have constant supervision from the [first defendant]. The [first defendant] communicated with the [plaintiff] on an individual basis. On many occasions – both directly and through his lawyer.”[29]

29. Court Book, Volume 1, p 86; Second Appeal Decision, 31 May 2021, at [118].

89. After again reiterating the seniority of the position of a VMO, the Review Committee referred to its earlier Risk Assessment and said:

“The Committee has undertaken Risk Assessment (for reference dated 11 April 2021) in accordance with the relevant policies and guidelines of the Ministry of Health …. The rating outcome of ‘E’ – extreme – requires escalation to the Chief Executive of the Secretary of the [Ministry of Health] and action to reduce the level of risk. The Committee is charged with undertaking this risk management.”[30]

30. Court Book, Volume 1, p 86; Second Appeal Decision, 31 May 2021, at [120].

90. The Review Committee, as a consequence of its analysis, confirmed the view that the plaintiff’s appointment should be terminated as the only appropriate course of action to reduce the risk posed by the plaintiff. It reiterated that the plaintiff had not demonstrated an ability to integrate compliance with the obligation of a VMO in the context of a large hospital.

91. Nor, the Committee found, had the plaintiff demonstrated an ability to rectify failures in his practice when concerns had been raised with him. Any changes that occurred were, on the findings of the Review Committee, short-lived.

92. After expressing disappointment that the plaintiff had not altered his mode of practice over any sustained period and the waste of what was described by the Review Committee as a “significant investment” in the VMO, the Review Committee concluded that the plaintiff should not be restored to a VMO position and that there were no conditions that could sufficiently mitigate the risk at the current time, nor the balance of the plaintiff’s appointment term. The Review Committee dismissed the appeal.

Jurisdiction of the Court

93. While the plaintiff has not specified the remedy or remedies sought, prayer 1 in the summons seeks judicial review and the primary order is for the quashing of the determination of the second defendant, the Review Committee, of 13 May 2021. Necessarily, the jurisdiction of the Court to make such an order is to issue orders in the nature of certiorari, pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW). The provisions of s 69 of the Supreme Court Act, while eliminating the technical difficulties associated with the issuing of a writ, continue the restrictions on the jurisdiction of the Court to issue certiorari.

94. In the current circumstances, there is no privative clause in the relevant legislation. The Review Committee is a “tribunal” within the meaning of s 69(3) and is therefore governed by the terms of s 69(4) of the Supreme Court Act.

95. The plaintiff is entitled to rely upon the reasons for decision as part of the record for the purpose of the grant of orders in the nature of certiorari. Nevertheless, the plaintiff is required to establish error of law on the face of the record or jurisdictional error. The face of the record, for that purpose, includes the reasons for the ultimate decision of the Review Committee. ^[31]

    31. Supreme Court Act, s 69 (4).

96. The inherent jurisdiction of the Court to issue orders in the nature of certiorari was the subject of extensive comment by the Court, as presently constituted, in Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning. ^[32] I adhere to the discussion in those reasons on the history of certiorari and the limitations on the Court issuing orders in the nature of certiorari.

    32. Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning [2022] NSWSC 1176.

97. I also refer to the High Court’s many admonitions that, on judicial review, courts should not elide or fail to distinguish between judicial review for error of law or jurisdiction and the merits of the administrative decision that is reposed in the administrative decision-maker. I also reiterate that the Court, on judicial review, is not concerned with “looseness of language” nor “unhappy phrasing”. Nor, in the exercise of its judicial review functions, should the Court be examining the reasons of the decision-maker in a manner such that they are “construed minutely and finely with an eye keenly attuned to the perceptions of error.”^[33]

    33. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6 at [30], citing with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456.

Grounds of Review

98. The Summons sets out background facts and/or circumstances, but the kernel of the plaintiff’s grounds of review may be summarised in the following way:

Ground 1: the second defendant did not confine its consideration of the appeal to the matters identified in the termination letter and, in doing so, denied the plaintiff procedural fairness;

Ground 2: in the alternative, the second defendant erred in the exercise of its jurisdiction by misapprehending its functions in the appeal;

Ground 3: the second defendant denied the plaintiff procedural fairness by failing to have regard to relevant matters, including, but not limited to, the fairness of the investigation into the plaintiff’s conduct and the lack of documented protocols in relation to the role fulfilled by the plaintiff;

Ground 4: the second defendant erred in redetermining issues determined in a previous appeal, without notice to the plaintiff and without hearing from the plaintiff, thereby denying the plaintiff procedural fairness;

Ground 5: the Review Committee erred by having regard and placing weight on irrelevant matters.

99. During the course of the plaintiff’s submissions, the plaintiff raised two further grounds or, more accurately, particulars of grounds, and abandoned some of the grounds raised in the initial Summons. The two further grounds or particulars were that the Review Committee had erred:

• because it committed an error by redetermining matters decided in the First Notice of Appeal in a manner adverse to the plaintiff, and without prior notice to him;

• the Committee failed to consider the relevant matters of the lack of contractual terms for a VMO and the plaintiff’s conduct upon resumption of his duties as a VMO.

100. As can be seen from the earlier-mentioned grounds of appeal, these issues are really arguments and/or particulars of grounds otherwise raised.

Submissions

Plaintiff’s Submissions

101. The following summary of the plaintiff’s submissions is not intended to be a recitation of every argument raised. Rather, it is a summary of the proposition upon which the plaintiff relies.

102. The plaintiff has submitted that, in relation to Ground 1 (failing to confine the appeal to the matters identified in the Termination Letter) that the first and second defendants initially agreed that the scope of the appeal was confined to the allegations contained in the Termination Letter with other material considered only by way of background. [34] The plaintiff submits that the first defendant only agitated additional allegations during its cross-examination of the plaintiff. The plaintiff submits that this was at the conclusion of evidence otherwise adduced by the first defendant and that it was then “too late” for the plaintiff to be heard.

     34. Plaintiff’s Outline of Submissions, at [10]-[11], [25], relying on Transcript, pp 336-345.

103. Because the appeal turned on allegations made as part of the investigation into the plaintiff, the Second Appeal Decision was a decision made outside of the parameters to which the parties had initially agreed, and on which basis the plaintiff limited its evidence. [35]

     35. Plaintiff’s Outline of Submissions, at [23].

104. When the Review Committee accepted the submission of the first defendant that all material may be considered by it on appeal, it denied procedural fairness to the plaintiff and jurisdictional error occurred. In particular, the plaintiff submitted that the Review Committee took into account incorrect or unproven allegations, of which the plaintiff had not had an opportunity to answer. [36]

     36. Second Appeal Decision, at [35] and [113] and Plaintiff’s Outline of Submissions, at [55]-[58].

105. The effect of the foregoing process resulted in the Review Committee, taking into account only matters that were adverse to the plaintiff, and not any response to them.

106. As to Ground 2 of the Summons, the plaintiff submitted to the Court that the Review Committee redetermined earlier matters in evidence before it. Those matters were issues with which the Review Committee dealt in the First Appeal. Further, the redetermination of those matters occurred in circumstances where the appellant was not heard on them and was not notified that the Review Committee intended to take that course. [37]

     37. Second Appeal Decision, at [21]-[125] and Plaintiff’s Outline of Submissions, at [76].

107. Further, the plaintiff submitted that the course adopted was both inconsistent with the nature of the appeal being considered by the Review Committee and inconsistent with the manner in which the parties (and the Review Committee) had agreed that the appeal should proceed. In that regard, there is an overlap between this ground and Ground 1. Indeed, many of the grounds, if not all of them, overlap.

108. The plaintiff also submitted that the lack of rules or requirements that have been mandated regarding the obligations of a VMO resulted in procedural unfairness to the plaintiff. The plaintiff, as a consequence of the lack of rules and/or express requirements, was unable to engage in submissions before the Review Committee with what his role should be, should have been and was. Because of that incapacity, the Review Committee did not hear the plaintiff about a critical matter.

109. The plaintiff submitted that, once he was reinstated in August 2020, and was not further censured by the first defendant, the previous investigations and complaints were of little or no consequence. The plaintiff submitted that the Review Committee did not appropriately consider that aspect. Instead, the Review Committee considered the previous investigations and complaints as determinative. [38]

     38. Second Appeal Decision, at [111] and Plaintiff’s Outline of Submissions, at [71]-[75].

110. Referring, in particular, to the Reasons of the Second Appeal, [39] the plaintiff submitted that the Review Committee took into consideration irrelevant matters and that the taking into account of irrelevant matters resulted in the decision being reached in circumstances of jurisdictional error.

     39. Second Appeal Decision, at [93]-[110].

111. Over and above the foregoing, the plaintiff submitted, in reply, that the Review Committee is not conferred the same powers as a Royal Commission and does not have an unfettered discretion in dealing with an appeal under the Health Services Act. The plaintiff submits that the Health Services Act requires that the appeal hearing be limited to the decision under appeal and, specifically, the reasons for that decision, as adumbrated by the initial decision-maker.

112. Further, the plaintiff submits that he was not on notice that it was necessary for him to challenge the proposition that the letter of 6 January 2017 was not a “direction” to the plaintiff. This, on the plaintiff’s submissions, also breached the rules of procedural fairness and vitiated the conclusion of the Review Committee that there was a pattern of conduct by the plaintiff that he had failed to rectify.

First Defendant’s Submissions

113. As is obvious from the foregoing, the first defendant opposes the relief sought by the plaintiff in his Summons and denies that the grounds in that Summons give rise to error of law or error of jurisdiction or are otherwise incorrect. Taking the same approach to the submissions of the first defendant, as the Court has taken to the plaintiff’s submission, they can be summarised very briefly.

114. As to the jurisdiction of the Review Committee, the first defendant submitted that the nature of the appeal was such that the appeal was a hearing de novo. As a consequence, the Review Committee can substitute its own decision for that of the initial decision-maker.

115. Further, the Review Committee is entitled (or required) to make such orders as it considers proper, as defined by the Health Services Act regarding the matter being appealed. The matter appealed is, in the current circumstance, the decision of the Local Health District to terminate the plaintiff’s contract. The combination of the circumstances that it is a hearing de novo, and the jurisdiction and/or power to make such orders as the Review Committee considers appropriate, results in the proposition that the Review Committee was not limited by the decision of the first defendant or the material before it.

116. As a matter of fact, the first defendant submits that the plaintiff had sufficient opportunity to respond to the additional allegations raised in cross-examination of the plaintiff. Those issues related to the issues raised in the letter of 6 January 2017. These issues form part of the initial allegations in the termination letter and were referred to in the Review Committee’s Reasons for the First Appeal.

117. In those circumstances, the plaintiff should have been aware that the Review Committee may take into account the matters raised. Even more to the point is that this material was included in the exchange of evidence prior to the hearing.

118. The first defendant submits that the complaint about redetermination of issues raised in the First Appeal is misplaced. First, the first defendant has submitted that the plaintiff has failed to specify those matters that have been redetermined, in accordance with its submission.

119. Secondly, the plaintiff had knowledge of the allegations raised in the First Appeal. Thirdly, the First Appeal was limited to the question of whether, based upon allegations that were currently being investigated or about to be investigated, the suspension of the plaintiff was warranted. Lastly, in relation to this aspect, the defendant submits that the plaintiff’s ground is an argument as to the weight that the Review Committee had to these “background matters”, which, in effect, is a submission relating to the merits of the decision and not its jurisdiction.

120. The first defendant submits, in relation to that aspect of the application for judicial review, that the complaint that the Review Committee denied the plaintiff an ability to engage in the determination of his role — as it is and as it should be — because of the lack of a consistent set of rules or requirements, is an invitation for the Court to embark upon a merit review. The first defendant further submits that the Review Committee relied on that which it held was “clear expectations” of a VMO, which expectations were expressed to the plaintiff in the letter of 6 January 2017. That letter negated any claim by the plaintiff that there were no contractual parameters for the role of VMO. The defendant submitted that the plaintiff had a reasonable opportunity, if he chose, to respond to all relevant matters.

121. The defendant submits, again, as to the failure to take into account the reinstatement and/or lack of parameters in his role, that this seeks merits review and does not establish, even if it were true, jurisdictional error. In essence, this submission is to the effect that the Review Committee, which acknowledged his reinstatement and the lack of prescribed requirement, did not give that factor sufficient weight in determining whether to terminate the contract. Because the Review Committee expressly took into account the foregoing aspects, the complaint can only be as to the weight to be given to the factor.

122. Lastly, in terms of the ground of appeal, the first defendant has submitted that the provisions of the Health Services Act do not confine the exercise of the discretion of the Review Committee. As a consequence, the Review Committee is entitled to take into account any matter which the decision-maker may legitimately consider. The first defendant submits that the plaintiff has failed to establish that any of the matters considered by the Review Committee were outside the scope of its jurisdiction and, in the sense required for jurisdictional error, irrelevant.

Nature of the Appeal

123. As is obvious from the foregoing, the Local Health District terminated the appointment of the plaintiff as a visiting practitioner. As a consequence, the decision of the Local Health District was a decision to which the terms of s 105(1)(c) of the Health Services Act applies.

124. The Local Health District was required to give notice of the decision within 14 days of the making of the decision and, by operation of s 106 of the Health Services Act, the plaintiff, being a person dissatisfied with the decision to which s 105(1) applies, is given the right to appeal to the Minister. Once an appeal has been lodged, as was the circumstance when the Second Notice of Appeal was lodged, the Minister is required to appoint the Review Committee (however constituted) to determine the appeal. [40]

     40. Health Services Act, s 108(1).

125. By operation of s 107(1) of the Health Services Act, a person who has appealed must give notice to the Minister of the grounds of the appeal. In the proceedings before the Review Committee, each party was represented by an Australian legal practitioner. [41]

     41. Health Services Act, s 110.

126. The Committee is given, for the purposes of any appeal, “the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner”, which latter statute applies to any witness appearing before the Committee. [42] Nevertheless, as the plaintiff submits, the Review Committee does not have an “unfettered discretion. Its jurisdiction is to hear and determine an appeal against the decision to terminate the Contract. In so doing, it is bound by the rules of procedural fairness.

     42. Health Services Act, s 111.

127. It is appropriate to set out the terms of s 112 of the Health Services Act, which is in the following terms:

“112    DETERMINATION OF APPEAL

(1)    Subject to this Part and the regulations, a Committee must determine the appeal and may make such orders with respect to the matter being appealed as the Committee considers proper.

(1A)    Following its determination of an appeal, if a Committee considers on reasonable grounds that--

(a)    serious concerns exist in relation to the performance or competence of the appellant, or

(b)    the appellant has engaged in conduct that may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW), or

(c)    the appellant may have an impairment under the Health Practitioner Regulation National Law (NSW),

the Chairperson of the Committee may refer the matter to the Medical Council of New South Wales (in the case of a medical practitioner) or the Dental Council of New South Wales (in the case of a dentist) to be dealt with as a complaint under Part 8 of the Health Practitioner Regulation National Law (NSW).

(2)    If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners' appointments is to be made available to the appellant.

(3)    The Chairperson of the Committee is to notify the Minister in writing of any order of the Committee made under this section.

(4)    In this section--

‘relevant position’ means any position as a visiting practitioner of the public health organisation that is of the kind to which the appellant seeks re-appointment.”[43]

43. Health Services Act, s 112.

128. The jurisdiction of the Review Committee is granted by the Health Services Act and its procedure depends upon the proper construction of that statute.

129. No issue has arisen in the course of the proceedings before the Court on the principles in construing the statute. However, it is necessary to reiterate that the Court construes the statute from the words of the statute itself. The terms of the statute allow the Court to determine the purpose of the statute and, in construing the statute, the legislative purpose evidenced by the terms of the statute should be achieved.

130. The statute is to be read as a whole. Further, the statute should be construed in a manner that gives rise to harmonious goals. [44]

     44. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] and [78] (McHugh, Gummow, Kirby and Hayne JJ).

131. In determining the nature of the appeal, the Court must construe the terms of the statute. The terms of the predecessor statute to the Health Services Act[45] are, for present purposes, in almost identical terms.

     45. Public Hospitals Act 1929 (NSW).

132. There are differences, but they do not affect the determination of the jurisdiction of the Review Committee. In Macksville & District Hospital v Mayze,[46] the Court of Appeal discussed the nature of the appeal under the then Public Hospitals Act in relation to a decision to terminate.

     46. Macksville & District Hospital v Mayze (1987) 10 NSWLR 708.

133. As already stated, in this regard, there is no material difference in the language of the statutes. In the course of his dissenting judgment, Kirby P discussed the nature of the appeal and determined that the appeal was a hearing de novo. [47] The circumstance that the reasons for judgment support a dissenting view does not detract from the authoritative nature of the discussion and determination, which, on this issue, was the view expressed by the majority.

     47. Ibid, at 715 (Kirby P).

134. There have been many taxonomies seeking to define the nature of appeals that exist and the jurisdiction that is granted in relation to it. This is an appeal from an administrative decision-maker to an administrative tribunal established ad hoc by the Minister.

135. As already stated, the nature of the appeal depends upon the statutory instrument that establishes it and that controls it. I accept that the nature of the appeal in these circumstances is a hearing de novo and that a proper construction of the statute, including the powers provided to the Review Committee, and the nature of the members of the Review Committee, points irrefragably in that direction.

136. In Lacey v Attorney-General (Qld),[48] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said:

“[57]    Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:

1.    Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.

2.    Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.

3.    Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.”[49] (Footnotes omitted.)

48. Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10.

49. Ibid, at [57].

137. The above taxonomy was, expressly, qualified by the necessity to examine the statute in each situation. Further, the High Court made clear that the taxonomy was not exhaustive. In particular, the foregoing taxonomy excludes, it seems, appeals from a decision-maker to an administrative tribunal with the same powers.

138. Nevertheless, the Review Committee is hearing the matter afresh; may consider the material before the original decision-maker and must consider any additional material tendered; and may exercise all of the powers of the original decision-maker.

139. In those circumstances, those powers may be exercised regardless of whether the original decision-maker was in error. In that sense a hearing de novo contrasts markedly with an appeal by way of rehearing or, even more so, a strict appeal. [50] Sir Frederick Jordan CJ, when including administrative appeals to administrative bodies, referred to six varieties of appeal. [51]

     50. See, generally, Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34.;

     51. Ex parte Australian Sporting Club Ltd; re Dash (1947) SR (NSW) 283 (Jordan CJ).

140. In Coal & Allied [52] , the High Court referred to the nature of different appeals. One of those discussions is particularly informative and is in the following terms:

“[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

164. The first defendant, when opening before the Review Committee made clear that the first defendant could terminate the Contract with three months’ notice without reason. In its context, this was intended to differentiate the termination effected and a termination for an act or acts of serious and wilful misconduct. [66] The opening then continued in the following terms:

“Ms Larkin, in her correspondence, sets out reasons as to why the Local Health District terminated the [plaintiff’s] VMO contract. It is not suggested that they are serious and wilful misconduct because that was not how the contract was terminated. Speaking plainly, we don’t have to demonstrate that they are misconduct but they are the reasons for the termination.” [67]

66. Court Book, Tab 29, pp 1299-1300; Tcpt in the Second Appeal, 6 January 2021, pp 336-337.

67. Court Book, Tab 29, p 1300; Tcpt in the Second Appeal, 6 January 2021, p 337.

184. The plaintiff, before the Court, relies upon the foregoing, as part of the material that he says confined the matters before the Review Committee to the reasons utilised by the Chief Executive. Of itself, the foregoing comment does not confine the reasons that may be utilised by the Review Committee.

185. Moreover, immediately following the comment — after referring to evidence of the plaintiff before the Review Committee relating to prejudiced opinions being held by or expressed by senior colleagues or a few of them — the first defendant opened on the basis that the statements by the plaintiff could, in and of themselves, allow the Review Committee to “determine that the relationship between the Local Health District and the [plaintiff] have [sic] broken down irretrievably.” [68]

     68. Ibid, p 337(30).

186. Then, the opening by the first defendant is to the following effect:

“To the extent that findings were made in the first proceedings [a reference to the First Appeal], we concede you’re not bound by those findings because there’s different evidence here. But as a general rule, to the extent that findings were made, unless there’s additional evidence dealing with those matters, the Committee should adopt the same findings, but as I said, it’s not cast in stone. Different matters may arise here, different evidence here, one would need to be satisfied that the evidence is somehow different now in order to reverse the findings that were made, albeit that they of a slightly different nature given the context of these proceedings.” [69]

69. Ibid, p 337ff.

187. Again, the first defendant, in its opening was making clear that the material relating to the findings in the First Appeal, and the findings themselves, were relevant and that the Review Committee could, if it were minded so to do, alter its findings on the basis of different evidence or because of the different context.

188. Counsel for the plaintiff, appearing before the Review Committee, asserts that the plaintiff “was not sacked for misconduct”. On one view, this is a misstatement. The plaintiff was not sacked for “serious and wilful” misconduct.

189. Counsel then makes clear that there was a disciplinary investigation into misconduct and then asserts that “misconduct is not pressed by the [first defendant]. The outcome of that investigation was that misconduct was not established.” [70]

     70. Court Book, Tab 29, p 1302; Tcpt in the Second Appeal, 6 January 2021, p 339.

190. The plaintiff’s counsel then makes the following opening submission:

“True it is that the Committee can make a determination under its own head of steam, as it were, but this appeal, which is still a review of the initial decision where you redetermine the matter, has to have leaps and bounds [sic] and in that regard, the allegations that we find in this letter, 21 October 2020, have to give some structured to this hearing. But they’re not pressed as findings of misconduct and that’s very important because if you’re going to sanction someone there has to be misconduct first.

The allegations that you’re about to see, or you may have already seen, are different to what was traversed in terms of allegations at the first hearing. In some ways the allegations have become far more generalised and that’s because the allegations that were put at the first hearing could not have been sustained to the relevant standard. That in some ways is a diversion because one looks at the allegations here.” [71]

71. Ibid.

191. Notwithstanding the use of the term “leaps and bounds”, it is clear that counsel was suggesting that there were limitations to the matters to be considered by the Review Committee and upon which the Review Committee could rely in determining the appeal. Counsel then referred to the allegation in the Letter of Termination, referring first to the procedure on the patient who was a Jehovah Witness and referred to the fact that the patient had refused blood and the allegation that the plaintiff did not initiate discussions with the surgical team regarding potential complications should they arise intraoperatively; the plaintiff was not present in theatre for the duration of the surgery; and on being requested to return during the surgery, the plaintiff took 20 to 30 minutes to arrive at the operating theatre.

192. The opening of counsel, also referred to the allegation on the other operating procedure that, once more, the plaintiff was not in attendance for the patient’s surgery; that there was a failure to comply with a prior lawful and reasonable direction to be present at the entire duration of the theatre list; and, the failure to attend, amounted to a failure to provide adequate supervision to train Registrars.

193. Counsel then asserts that these are not allegations of “misconduct”. Counsel maintained the plaintiff was not here “to meet a misconduct case”. Nevertheless, the factual allegations are the allegations said to found the termination of the plaintiff’s Contract.

194. The opening by the plaintiff’s counsel then referred to the status and training of Dr Ahmad, who was a fully-trained surgeon in the UK and, it was said, did not require the detailed supervision that a junior or unqualified trainee surgeon would. Counsel then referred to the timing of the plaintiff’s attendance on request and the fact that it was performed by the team, led by Dr Ahmad and, when he arrived, supervised and confirmed by the plaintiff.

195. Further, the plaintiff’s opening made clear that the hours of work of the plaintiff were at least as long as was ordinarily required (albeit commencing and concluding slightly earlier than might ordinarily be the practice) and the reasonableness of the decision to leave the surgery to Dr Ahmad, who worked within her level of competence in each of the operations.

196. Ultimately, the submission of the plaintiff was that the plaintiff was overseeing a “busy elective list”, rather than performing one operation at a time. As a consequence, instead of working on one operation for three hours, the health system was completing four or five cases instead. The opening submission by counsel for the plaintiff was that this sort of practice for surgery is one that is needed by the health system and the people of New South Wales.

197. Before the calling of any witness, counsel for the first defendant asked for a short adjournment for the purpose of clarifying the case that the first defendant was required to meet and determining “the bound” of the appeal. On resumption, the Committee dealt with the difference between the parties as to the matters in contest in the appeal and said:

“We had a discussion in relation to the manner in which both parties have framed the appeal and we are content to continue on the basis as counsel have outlined. If there is anything in relation to earlier matters it may be that it goes to credit or something like that, but the focus is very squarely on the appeal and the points made by both counsel them with reference to the letter of the 21st of October.” [72]

72. Court Book, Tab 29, p 13308; Tcpt in the Second Appeal, 6 January 2021, p 345(6-11).

198. As is clear from the foregoing extract, counsel for the first respondent was plainly and expressly relying upon a breakdown in the relationship between the first defendant and the plaintiff. Further, counsel for the plaintiff was relying on (and the Letter of Termination from the Chief Executive relied upon) the allegations of a failure to supervise properly and adequately more junior clinical staff and to attend surgery and/or to attend surgery in a timely manner.

199. The Review Committee concluded that the relationship between the plaintiff and the first defendant had broken down irretrievably. That was an issue upon which the first defendant opened, to which opening the Review Committee referred, together with the opening by counsel for the plaintiff, in its ruling as to parameters of the matters it would consider.

200. While the finding as to the future of the relationship between the plaintiff and the first defendant was based upon the allegations that were also the subject of findings in the First Appeal, the Determination of the Review Committee was not that the allegations amounted to misconduct, but that the failure to adhere to “directions” of the Chief Executive and the re-emergence of the past practice of non-attendance at surgery had caused the Chief Executive (and other senior clinicians) not to have confidence in the judgement of the plaintiff.

201. In that regard, there was no denial of procedural fairness. The issues were plainly opened up and the plaintiff should reasonably have understood that the issue of confidence by the Chief Executive and other senior staff in the plaintiff’s judgement as to supervision and attendance was a matter to be decided by the Review Committee.

202. The difficulty with the foregoing, is whether the formation of that opinion by the Chief Executive and/or the Review Committee was reasonable and dealt properly with the material before them.

203. In this area the Court must be mindful of the warnings issued by the High Court not to elide judicial review and a review of the merits. The principles that underpin judicial review confine the review to issues of law, rather than issues of “fairness”. In Attorney-General (NSW) v Quin,[73] Brennan J, as his Honour then was, said:

“[17]    All the members of the Court of Appeal were of opinion that the respondent's entitlement to have his application considered according to law, pursuant to the declaration made on 24 June 1987, was unaffected by his refusal to make a further application for appointment in response to the later advertisements. In this Court the Solicitor-General accepted the correctness of the Court of Appeal's decision upon this point and did not press the contrary view.

[18]    The point of departure between the majority and Mahoney J.A. was that the majority considered that inherent in the decision in Macrae was the proposition that the Attorney-General had placed all former magistrates in a special position whereby their applications were not to be considered in competition with other applicants; each was to be considered on his or her own merits and without regard to the merit of applicants who were not former magistrates. On the other hand, Mahoney J.A. thought that no such proposition was embedded in the judgments in Macrae. In his Honour's view, the three judgments in that case identified the issue as one of procedural unfairness and granted relief in that respect. His Honour's view of the judgments in Macrae is, in my opinion, correct: see per Kirby P. at pp 271, 273-274, 283; per Mahoney J.A. at pp 285-287; per Priestley J.A. at pp 304, 307-309.

[19]    The respondent's contention that the decision in Macrae went beyond the issue of procedural unfairness is partly based on the references in the judgments of the Court of Appeal to the plaintiffs' legitimate expectations. The plaintiffs did not argue in Macrae, nor does the respondent argue in the present case, that the plaintiffs had a legal right, or even a legitimate expectation, that they would be appointed to the Local Courts. It seems that what they asserted then, and what the respondent now asserts, is that they had a legitimate expectation that the Attorney-General, in considering whether or not to recommend their appointment, would accord them procedural fairness, that is, the opportunity to answer material which was adverse to them. It was that legitimate expectation, no more and no less, that attracted the duty to accord procedural fairness. Thus, Kirby P. held that the plaintiffs had a legitimate expectation, before the Attorney-General made a decision that they, alone of all their colleagues, would not be recommended for appointment, that they would have an opportunity of being acquainted with and of answering the adverse materials drawn to the attention of the Attorney: see at p 281. Similarly, Mahoney J.A. concluded (at pp 285-286) that the legitimate expectations of the plaintiffs would involve two things: that each would have the right to put his or her case in respect of such material; and that each would have the right to know of such material as was to be relied upon against him or her. Priestley J.A. concluded (at p 308) that the plaintiffs had legitimate expectations which would be affected by the Attorney-General's recommendation. His Honour seems to have thought that the plaintiffs' applications were more akin to renewal than to original applications. Indeed, he seems to have thought that ‘the substance of what was happening was removal’ rather than original application or renewal: see at pp 305-306. However that may be, I do not read their Honours' references to legitimate expectations as amounting to any more than findings that attracted the duty of procedural fairness. I do not read the references as importing a duty to consider the plaintiffs' applications apart from and independently of applications by other applicants. Their Honours' reservation of the making of the second declaration sought indicates that this question had not been resolved by the reasons for judgment.”[74]

73. Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21.

74. Ibid, at CLR 35-36, [17]-[19] (Brennan J).

204. In the course of his reasons for judgment, Brennan J made clear that if a court embarked upon the determination of “unfairness” in its opinion of the merits of an administrative decision, the court would be assuming the jurisdiction to the very thing which is to be done by the repository of the administrative power, being “choosing among the courses of action upon which reasonable minds might differ”[75] .

     75. Ibid, at CLR 37, [21] (Brennan J).

205. Notwithstanding the foregoing, where a party presents a clearly articulated argument, it is necessary for a tribunal, in this case the Review Committee, to deal with the argument. [76]

     76. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26 at [24] and [25] (Gummow and Callinan JJ, with whom on this issue Hayne J agreed, and, in separately expressed reasons, Kirby J).

206. Further, the plaintiff relies, as is stated above, on “legal unreasonableness”. On the question of “legal unreasonable” of conduct or decision-making, the Court needs to be particularly vigilant to ensure that the separation between the function of the Court, on judicial review, and the function of the administrative decision-maker are not elided.

207. The requirement of reasonableness is part of the natural justice provisions which require not only a reasonable opportunity to prepare and to present a party’s case, but a hearing by an independent and unbiased tribunal reaching a reasonable outcome. It is the requirement that decisions be not unreasonable that underpins the judgment of the Kings Bench in Wednesbury. [77] In Minister For Aboriginal Affairs v Peko-Wallsend Ltd, [78] Mason J (as his Honour then was) said:

“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499, at p 507; (1976) 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990). I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England.” [79]

77. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

78. Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

79. Peko-Wallsend, supra, at CLR 40-41.

208. The above citation is one of the classic statements on judicial review and the use of unreasonableness, and was accepted and applied by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [80] in which Gummow J said:

“[126]    Finally, it may be that the basis of ‘Wednesbury unreasonableness’ is found in the proposition adopted by Brennan J in Kruger v The Commonwealth that ‘when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised’. The result, as identified by the late Professor de Smith, is that ‘an authority failing to comply with this obligation acts unlawfully or ultra vires’. Further, the decision of the authority in question may be tantamount to a refusal to exercise its discretion. If the matter be looked at in that way, then there appears more readily a footing for judicial review by way of prohibition or mandamus or injunctive relief under s 75(v) of the Constitution in an appropriate case.” (Footnotes omitted.)

80. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [126] (Gummow J); [1999] HCA 21.

209. The plurality judgment in Minister for Immigration and Citizenship v Li [81] confirmed the approach of Gummow J recited above and — after referring to the reasons for judgment or Mason J in Peko-Wallsend, supra — referred to the diversity of results in the application of the test of “manifest unreasonableness”. The plurality reiterated that the approach taken was similar to the approach taken by the High Court in dealing with appeals from discretionary judgments. The plurality said:

“[75]    In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that ‘guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion’. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.” [82] (Footnotes omitted.)

81. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Hayne, Kiefel and Bell JJ).

82. Minister for Immigration and Citizenship v Li, supra, at CLR 366, [75] (Hayne, Kiefel and Bell JJ).

210. These issues were also addressed in the judgment of Gageler J in Li, in which his Honour dealt with the appropriateness of different results occurring as a result of the application of the test of manifest unreasonableness. His Honour said:

“[105]   It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason’. Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.

[106]   The label ‘Wednesbury unreasonableness’ indicates ‘the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion’. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken ‘attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground’. [83] (Footnotes omitted.)

[107]   Potential for legitimate disagreement in the judicial application of the standard of Wednesbury unreasonableness is inevitable, as it would be in the judicial application of any other standard:

"A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work."

[108]   Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.” (References omitted)

83. Ibid, at CLR 375, [105]-[106] (Gageler J).

211. It is clear that a decision of an administrative tribunal must not be unreasonable. Nevertheless, as the foregoing passages make clear, judicial officers might exercise a discretion differently from the manner in which the administrative decision-maker has exercised it. Judicial officers, or some of them, may consider the decision “unfair”. However, it is not the unfairness of the decision that excites the capacity of the Court to intervene on judicial review.

212. While some may consider that the result of the Chief Executive’s Decision is unfair, and the result of the Decision of the Review Committee is unfair — in that it deprives the health system of a competent and proficient clinician, whose judgment on the capacity of more junior staff to undertake the operation without direct supervision, was an exercise of his judgement in circumstances where his appointment as a VMO entitled him to make such a judgment, and the result of the exercise of his judgment did not harm or disadvantage any patient — the exercise of the decision-making power cannot be said to be legally unreasonable in the sense used in the foregoing passages.

213. It is necessary to deal with a little more specificity to the grounds of appeal, bearing in mind the foregoing comments.

Grounds 1 and 4

214. I begin by dealing with the plaintiff’s submissions that he was denied procedural fairness. As has been earlier stated, the Review Committee was not confined to the grounds for its decision by the grounds relied upon by the Chief Executive or in the Termination Letter. As long as the plaintiff was not denied procedural fairness by virtue of a lack of notice of the issues upon review, the Review Committee was at large as to the issues it could consider.

215. First, in this respect, the opening by the first defendant put the plaintiff on notice of the “lack of confidence” issue. Secondly, the issue of the “directions” in the warning letter were expressly raised in opening by the first defendant.

216. Thirdly, the “directions” were not used as directions by the Review Committee from which it found “misconduct” or a breach. They were used to show the ongoing concerns and the lack of judgment by the plaintiff in not altering his practice over a sustained period in order to address these expressed concerns. The Review Committee expressed the view that there was no mandated requirement that a VMO was to attend every surgery, or all of the surgery being performed.

217. If, as is alleged, the plaintiff were unaware of the allegations of fact sought to be relied on by the first defendant, it was not as a result of any breach of the rules of procedural fairness. Each allegation put to the plaintiff in cross-examination had been the subject of affidavit evidence filed and served well before any witness was called.

218. Further, if, notwithstanding the foregoing, counsel for the plaintiff were unaware that these facts were to be relied upon, when they were raised in cross-examination of the plaintiff, counsel could have then either objected or requested an adjournment and the recalling of earlier witnesses. There is no suggestion that if an adjournment was sought on that basis, it would have been refused, or even opposed. [84]

     84. Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 323.

219. As the first respondent submitted, the plaintiff had full notice that the matters raised in the letter of 6 January 2017: they form part of the initial allegations in the Termination Letter; were the subject of reference in the First Appeal Decision; and were included in the evidentiary material for the Second Appeal. There was no denial of natural justice. The issues were “opened up”.

220. In undertaking its function, the Review Committee did not re-evaluate the conduct that was previously examined in the First Appeal. The Review Committee had regard to that conduct, the reactions of the Chief Executive, the “directions” issued and the short-lived alteration in practice by the plaintiff. In so doing, the Review Committee utilised the overall conduct as evidencing a lack of judgment and grounding a basis for the lack of confidence of the first defendant in the plaintiff.

221. For my own part, I would not have come to that conclusion. The “judgment” of the plaintiff as to the attendance was shown to be correct. No adverse result was effected by the decision not to attend. However, the communication of matters to the locum VMO and the operating staff was deficient, and my different view does not render the conclusions of the Review Committee legally unreasonable. Nor did it involve a denial of procedural fairness.

222. As a consequence, Grounds 1 and 4 must fail as a basis for quashing the decision under review.

Ground 2

223. As to Ground 2, the Review Committee determined correctly that it was hearing an appeal against the termination of the plaintiff’s contract. In so doing, the Review Committee was determining afresh the power to terminate on the basis of the material before it. There was no error, and Ground 2 fails.

Ground 3

224. The failure, if there were a failure, to take into account relevant considerations was not a failure to have regard to mandatory factors. Nor did the Review Committee fail to deal with the factors raised by the plaintiff.

225. The submission of the plaintiff, on a number of aspects, was that the Review Committee did not give “appropriate” consideration to certain factors, for example, the reinstatement and renewal of the appointment and the conduct of the plaintiff thereafter. The terms of the Second Appeal Decision are replete with references to those matters. It would be unimaginable to suggest that they were not considered.

226. If the submission refers to whether the Committee consideration was “appropriate” or gave the factor appropriate weight, such matters are not error of law or jurisdiction and go fundamentally to the merits of the decision from an administrative perspective. They do not form a basis for judicial review.

227. As already stated, the Review Committee utilised the earlier conduct that was subject to examination in the First Appeal as part of the matrix of conduct that gave rise to a reasonable basis, in the Committee’s view, for the breakdown in confidence and the view that the plaintiff would not alter his practice for anything other than a short period.

228. Further, the Review Committee expressly had regard to the extent and terms of the Contract and the lack of “lack of rules and requirements” . In the Committee’s view it demonstrated the need for judgment of the plaintiff and for the Chief Executive and first defendant to have confidence in that judgement.

229. The alleged unfairness of the investigation was raised by the plaintiff. The findings of the investigations were not used by the Review Committee to conclude misconduct. The Review Committee conducted its own Review, which is annexed to its reasons and to which earlier reference has been given. The Committee was entitled to undertake that task.

230. Ground 3, and additional grounds summarised at [99] above, also fail.

Ground 5

231. No non-probative matter was utilised such as to render the Second Appeal Decision lacking jurisdiction or based on an error of law. As a consequence, Ground 5 also fails.

Orders

232. For these reasons, the Court makes the following orders:

1. Judgment for the first defendant;

2. Proceedings dismissed;

3. The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings.

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Endnotes

Decision last updated: 02 December 2022