Freeman v Sydney Local Health District

[2021] NSWSC 423

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Freeman v Sydney Local Health District [2021] NSWSC 423

Hearing dates:

11 February 2021

Decision date:

26 April 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Judgment for the plaintiff;

(2) Pursuant to the provisions of s 75 of the Supreme Court Act 1970 (NSW), a declaration that the plaintiff possesses a right of appeal from the decision not to appoint him to the position of Visiting Medical Officer, Concord Repatriation General Hospital, being the position with a Requisition ID of REQ141588;

(3) Pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW), the decision of the second defendant of 9 September 2020 is quashed;

(4) Pursuant to the terms of s 65 and s 69 of the Supreme Court Act 1970 (NSW), the Minister refer the appeal of the plaintiff in relation to his non-re-appointment to Position ID REQ141588, being a Visiting Medical Officer, Department of Vascular Surgery, Concord Repatriation General Hospital to a Review Committee;

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

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Review Committee under Health Services Act 1997 (NSW) determined no jurisdiction – jurisdictional error – also error of law on the face of the record – failure to exercise duty and jurisdiction – statutory construction – meaning of “re-appoint” – whether “position” was of the same kind;

STATUTORY INTERPRETATION – Health Services Act 1997 (NSW) – plain and grammatical meaning – legislative intention – use of Second reading Speech – appeal against decision “not to re-appoint” – whether the subsequent position was “of the same kind” – whether re-appointment

Legislation Cited:

Health Services Act 1997 (NSW)

Health Services Regulation 2018 (NSW)

Interpretation Act 1987 (NSW)

Public Hospitals Act 1929 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10

Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 125 FCR 9; [2002] FCAFC 193

Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155

Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74

Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28

Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 241-242; [1976] AAT 1

Will v Brighton [2020] NSWCA 355

Woodgate v St Vincent’s Hospital Sydney Ltd [2001] NSWSC 941

Category:

Principal judgment

Parties:

Dr Anthony Freeman (Plaintiff)
Sydney Local Health District (First Defendant)
The Committee of Review, constituted by Ms Geri Ettinger, Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston (Second Defendant)

Representation:

Counsel:
J L Glissan ESM AM QC / D H Nagle (Plaintiff)
A T Britt / R A McEwen (First Defendant)
Submitting Appearance (Second Defendant)

Solicitors:
Lancaster Law & Mediation (Plaintiff)
Crown Solicitor’s Office (First/Second Defendants)

File Number(s):

2020/287874

 Decision under appeal 

Court or tribunal:

New South Wales Health, Committee of Review

Date of Decision:

9 September 2020

Before:

Ms Geri Ettinger (Chairperson), Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston

Judgment

1. HIS HONOUR: By Summons filed on 6 October 2020, the plaintiff, Dr Anthony Freeman, seeks judicial review of a decision, the effect of which was that the plaintiff had no right of appeal against his non-appointment to a position as a Visiting Medical Officer (hereinafter “VMO”).

2. The decision was purportedly made by the Committee of Review, constituted by Ms Geri Ettinger, Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston, which, in these reasons, will be referred to as “the Committee”. The Committee is the second defendant in the proceedings; the first defendant being Sydney Local Health District (also referred to as the “SLHD”).

3. The orders by way of judicial review that are sought by the plaintiff are that the determination of the Committee made on 9 September 2020 be quashed; a declaration that the Committee’s determination that it did not have jurisdiction to hear the plaintiff’s appeal was an error of law; an order that the matter be remitted to the Committee to be heard and determined according to law; and costs. While the Amended Summons refers to the determination by the Committee that it did not have jurisdiction as an error of law, and in that respect may be correct, it is, if the ground were established, an error of jurisdiction for which, previously, orders in the nature of mandamus would issue.

Background

4. In 2019 the plaintiff was appointed as a VMO in the Department of Vascular Surgery at Concord Hospital. The plaintiff had occupied various roles as a Vascular Surgeon at Concord Repatriation General Hospital (hereinafter “Concord Hospital” or “CRGH”), since at least 2009.

5. The appointment in 2019 as a VMO took effect on 22 November 2019 and was made pursuant to the provisions of ss 76, 78 and 80 of the Health Services Act 1997 (NSW) (hereinafter “the Act”).

6. The appointment made or taken up on 22 November 2019 was for a period of three months and the first defendant advertised for a position to which the plaintiff applied. In late 2019, the plaintiff applied for the position of a Vascular Surgeon in the Department of Vascular Surgery at Concord Hospital and on 10 January 2020 the plaintiff was informed that he was not the preferred candidate.

7. As a result of being informed that he was not to be appointed to the position, the plaintiff sought to appeal his non re-appointment, purportedly pursuant to the provisions of s 105 of the Act. The plaintiff purported to lodge an appeal pursuant to s 106 of the Act on 6 February 2020.

8. The Committee was constituted for the purpose of determining the appeal, purportedly pursuant to the terms of s 108 of the Act. It heard evidence and submissions on 20 and 21 August 2020.

9. On 9 September 2020, the Committee issued a decision in which one of the members of the Committee dissented and the effect of the majority decision, and therefore, it is said, the effect of the Committee’s decision, was that it found that there is no jurisdiction to hear the matter, being the appeal, and it could not proceed to a substantive hearing. The minority or dissenting decision was not that of the Chairperson. The majority of the Committee said:

“Based on the evidence and the legislation we are comfortably satisfied that the decision not to appoint Dr Freeman to the advertised VMO position was not with regard to a re-appointment, but a fresh appointment, within the terms of the legislation. Accordingly, there is no jurisdiction to entertain the purported appeal.” [1]

1. Court Book, Exhibit A, p 41 (Committee Decision at [16]).

10. In determining that there was no right of appeal under the Act, the majority described its task as being to decide whether Dr Freeman had standing to appeal the decision not to appoint him “to the quinquennium VMO position for which he applied”.

Evidence

11. As would be expected in a matter for judicial review, the evidence is uncontentious, except in one regard. A Court Book was filed, compiled by the parties, which contains the Affidavit of Graham Lancaster, dated 6 October 2020.

12. Mr Lancaster is the plaintiff’s solicitor on the record. The Affidavit is gratifyingly short and simply annexes the decision of the Committee, including the dissenting view. The term “decision”, where used in these reasons to refer to the decision of the Committee, is a reference to the decision including the reasons therefor. [2]

    2. Supreme Court Act 1970 (NSW) s 69(4).

13. Otherwise, before the Court, there is an Affidavit of Dr Andrew Hallahan, dated 23 November 2020, filed for the first defendant, the SLHD. The Affidavit purports to provide information on the numbers of Visiting Medical Officers employed by the first defendant and the kinds of appointments that are made, including three-month temporary appointments made under delegation.

14. It is not absolutely clear how, in terms of the record of the proceedings, this material can be admitted. Objection was taken to the admissibility of the material and it was admitted provisionally on the basis that the Court would deal with its admission into evidence in the final judgment.

15. The first defendant seeks to support its admissibility on the basis that it puts the Court in the same position as the specialist tribunal in terms of the Court’s knowledge of the appointment and recruitment process and the kinds of appointments that are made. The error that is alleged is, on proper analysis, a refusal to exercise jurisdiction and, if correct, would be jurisdictional error, as earlier stated, otherwise amenable to mandamus, or orders in the nature of mandamus, pursuant to the terms of ss 65 and 69 of the Supreme Court Act.

16. While there may be error of law on the face of the record, there is an allegation of jurisdictional error, which may permit a party to adduce evidence relevant to the jurisdictional issue and may permit a party to put the Court in to the position, in terms of its state of knowledge, possessed by the decision maker. In relation to the latter aspect, the difficulty in the material in Dr Hallahan’s affidavit, and on which the first defendant seeks to rely, is that it is not suggested in any of this evidence that the information contained in the Affidavit is information that was possessed by any one or all of the members of the Committee.

17. The experience of Dr Hallahan, as significant as that may be, is irrelevant to the knowledge of the members of the Committee, unless it can be said that the members of the Committee were also aware of all of this information. Nevertheless, some of the material may be admissible in determining pre-conditions to the exercise of the Committee’s jurisdiction.

18. Having made that comment, it seems that the material should be admitted for the purpose of establishing primary and well-known facts, but not for the purpose of determining the purpose of appointments and the like. Such a latter purpose, unless established by the legislation and regulations, or shown to be within the knowledge of the members of the Committee, must be confined to the view of the deponent and inadmissible for the purpose of judicial review. Moreover, there are a number of aspects of the Affidavit that purport to swear to the legal position, albeit mostly in areas that are uncontentious. [3]

    3. See, for example, Court Book, Exhibit A, p 63 (Affidavit, Dr Andrew Hallahan, 23 November 2020 at [9]).

19. Similarly, to the extent that the Affidavit of Dr Hallahan purports to suggest that the first defendant is required to do certain things, as distinct from stating the practice of the first defendant, the existence of such a requirement is a matter for the Court, based upon the scheme governing the appointments. Ultimately, Dr Hallahan contrasts long-term and short-term VMO appointments and, although the Court is grateful for the statement of practice, it will not admit the material to prove the “purpose” of such appointments. Apart from any other factor, the facts in this case show at least some of those assertions to be incorrect. [4] Nevertheless, Dr Hallahan was not the subject of cross-examination.

    4. See Court Book, Exhibit A, p 64 (Affidavit, Dr Andrew Hallahan, 23 November 2020 at [11] in which the purpose of temporary appointments is stated in circumstances where the plaintiff was the subject of several short-term temporary appointments over some years prior to 2011).

20. The plaintiff had been a VMO at Concord Hospital since 2009 and continued in that position until November 2011. At that point in time the plaintiff was appointed Associate Professor at Concord Hospital as part of the Sydney University Medical School.

21. As a consequence of the plaintiff’s professorial position, he resigned his VMO role at Concord Hospital. Notwithstanding that resignation, the plaintiff continued his clinical duties at Concord Hospital, as previously, in addition to undertaking both undergraduate and postgraduate teaching. The professorial position carried with it those clinical duties, but as an employee not as a contractor VMO.

22. As earlier stated, in October 2019, after discussions with the first defendant, the plaintiff accepted a short-term “temporary” three-month contract as a VMO, concluding on 20 January 2020. The appointment was as a VMO pursuant to a sessional service contract and for a period of three months.

23. The issue, fundamentally, between the parties is the construction of the term “re-appointment” in the legislative scheme with which the Court will shortly deal. For reasons best known to the parties and possibly the Committee, the position, formally approved, into which the plaintiff was appointed in October 2019 and the position from which the plaintiff purported to appeal were not before the Court at the time that the hearing commenced. Nor, it seems, were they before the Committee, when it made its decision.

24. During the course of the proceedings before the Court, the Court drew the attention of the parties to the absence of the formal authorisation for the position and granted the defendant liberty to provide that material after the conclusion of the hearing and each party was given the opportunity to address that material, if the party so desired, in writing. Each party took advantage of that opportunity.

25. For the record, the material produced as a consequence of that leave, which consists of a Health Briefing Note for Chief Executive, dated 18 November 2019; Visiting Medical Officer - Vascular Surgery (REQ141588) Position Description; Position Structure; formal Position Description; and Advertising Content shall be admitted into evidence and marked Exhibit 2. No original or additional material was tendered in relation to the three-month appointment approval, apart from a reference in Exhibit B.

Legislation

26. As is or may be obvious from the foregoing, the issue between the parties is whether the appointment which was denied to the plaintiff for the longer-term position was or would have been a “re-appointment” and, as such, subject to a right of appeal, which was denied by the decision of the Committee. It is necessary to deal with the legislation and, to some extent, the regulatory framework that governs appointments as a VMO.

27. The scheme of the process for appointment and appeal is governed by the provisions of the Act. Further regulation of the circumstances surrounding the appointment and appeal may depend upon an interpretation of the Health Services Regulation 2018 (NSW) (hereinafter “the Regulations”).

28. The legislation must be read as a whole and construed so as to give effect to the purpose of the legislature and to harmonious goals. Later in these reasons, I will refer to the Second Reading Speech introducing some of the more relevant provisions. Before doing so, it is appropriate to recite some of the provisions of the Act.

“76    Who is a visiting practitioner?

A visiting practitioner is a medical practitioner or dentist who is appointed by a public health organisation (otherwise than as an employee) to practise as a medical practitioner or dentist in accordance with the conditions of appointment at any of its public hospitals or health institutions, or in relation to any health service it provides, specified in the appointment.”

“77    What are the kinds of visiting practitioners?

The kinds of visiting practitioners are—

(a)    visiting practitioners appointed under a service contract (whether as visiting medical officers or honorary medical officers), and

(b)    visiting practitioners appointed otherwise than under a service contract.”

“78    Who is a visiting medical officer?

A visiting medical officer is a medical practitioner appointed under a service contract (whether the practitioner or his or her practice company is a party to the contract) to provide services as a visiting practitioner for monetary remuneration for or on behalf of the public health organisation concerned.”

“80    What is a service contract?

(1)    A service contract is an agreement between—

(a)    a public health organisation and a medical practitioner under which the practitioner is appointed as a visiting practitioner to provide to or on behalf of the public health organisation the medical services that are specified in the agreement, or

(b)    a public health organisation and a practice company under which—

(i)    the medical practitioner who conducts his or her practice by means of the company is appointed as a visiting practitioner, and

(ii)    the company agrees to provide to or on behalf of the public health organisation the medical services, to be performed by the medical practitioner (as a visiting practitioner), that are specified in the agreement.

(2)    Any contract, agreement or other arrangement for the supply of medical services that is entered into as a result of a tendering process is not a service contract.”

“105    Public health organisation to notify visiting practitioners of certain decisions

(1)    If a public health organisation—

(a)    reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or

(b)    does not re-appoint a person as a visiting practitioner, or

(c)    suspends or terminates the appointment of a person as a visiting practitioner,

it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision.

(2)    In this Part, clinical privileges means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals.”

“106    Right of appeal to Minister

(1) A person who is dissatisfied with a decision of a public health organisation referred to in s 105(1) concerning the person may appeal to the Minister against that decision.

(2)    However, a person cannot appeal to the Minister in relation to any of the following decisions—

(a)    a decision by a public health organisation not to re-appoint the person as a visiting practitioner if the organisation has ceased to offer appointments of the kind to which the person seeks re-appointment,

(b)    a decision by a public health organisation reducing the clinical privileges of a person if the decision is based on grounds other than the lack of professional competence of the person,

(c)    a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if—

(i)    the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a minor, and

(ii)    the offence committed involves sexual activity or sexual touching or a sexual act with, or in relation to the minor,

(d)    a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a patient or client of the practitioner that is committed during the course of his or her practice as a medical practitioner or dentist (whether as a visiting practitioner or otherwise).

(3)    For the purposes of this section, a failure of a public health organisation to re-appoint a person as a visiting practitioner on or before his or her appointment expires is taken to be a decision not to re-appoint the person.”

“108    Constitution of Committee of Review

(1)    On receipt of a notice under s 107, the Minister must appoint a Committee of Review to determine the appeal.

(2)    A Committee of Review is to be constituted by—

(a)    an Australian lawyer of at least 7 years standing (who is also to be appointed as the Chairperson of the Committee), and

(b)    if the appellant is a medical practitioner—1 person nominated by the Association who is a medical practitioner, and

(c)    if the appellant is a dentist—1 person nominated by the Australian Dental Association, New South Wales Branch who is a dentist, and

(c1)    a person appointed by the Minister who—

(i)    in the Minister’s opinion, is conversant with the interests of patients as consumers of health services provided by the public health system, and

(ii)    is not, and has never been, a medical practitioner or a dentist, and

(d)    1 other person appointed in accordance with subs (4).

(3)    A person must not be appointed under subs (2)(b) or (c) unless the Minister is satisfied that the person nominated is sufficiently experienced in the administration of health services within the public health system to warrant being appointed.

(4)    A person may be appointed under subs (2)(d) only if—

(a)    the Minister is satisfied that the person appointed is sufficiently experienced in the administration of health services within the public health system to warrant being appointed, and

(b)    if the decision being appealed relates to a lack of professional standards or competence—the person appointed is a medical practitioner (if the appellant is a medical practitioner) or a dentist (if the appellant is a dentist).

(5)    If the Association or the Australian Dental Association, New South Wales Branch fails to nominate a person for appointment to the Committee within such time as may be notified by the Minister, the Minister may nominate a person who is eligible to be nominated by either Association under subs (2).

(6)    A decision of the Minister as to whether a Committee should be constituted as provided by subs (4) is final.”

“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.”

29. Within the Regulations, the following provisions are said to be relevant:

“5    Applications for appointment as visiting practitioners

(1)    A public health organisation that decides to make available an appointment as a visiting practitioner must advertise the availability of the appointment in at least one of the following--

(a)    a newspaper circulating generally in New South Wales,

(b)    an employment website affiliated with such a newspaper,

Note— The employment website is affiliated with the Sydney Morning Herald and the employment website is affiliated with The Daily Telegraph.

(c)    the NSW Health website used for the purpose of advertising employment positions in the NSW Health service.

Note— The current NSW Health jobs website address is public health organisation may, in addition, advertise the availability in other ways.

(2)    An application for appointment as a visiting practitioner is to be made in writing to the public health organisation concerned and is to include—

(a)    a statement setting out, in a manner that satisfies the public health organisation, the clinical privileges sought by the applicant, and

(b)    an authority for the medical and dental appointments advisory Committee of the public health organisation to obtain information as to the applicant’s past performance as a medical practitioner or dentist, as the case may be.

(3)    On receipt of the application, the public health organisation is to refer the application to the advisory Committee for advice.

(4)    Subclauses (1)-(3) do not apply—

(a)    to an appointment as a visiting practitioner that is to be held as part of the duties of a person who is to be or has been appointed to a teaching position at a tertiary institution, or

(b)    to an appointment as a visiting practitioner that is to be held by a person for a period of not more than 6 months, or

(c)    to any appointment as a visiting practitioner, to the extent that the Health Secretary determines that the provisions of those subclauses are not to apply.

(5)    A determination under subclause (4)(c)—

(a)    may be made in respect of a particular appointment or in respect of appointments of any specified kind or description, and

(b)    must be made in writing.”

“6    Appointment and conditions to be in written agreement

(1)    A person is to be appointed as a visiting practitioner to a public health organisation by written agreement between the person and the public health organisation.

(2)    The written agreement must specify the conditions to which the appointment is subject, including the clinical privileges of the visiting practitioner.

(3)    However, the written agreement does not need to include any conditions prescribed by or under the Act.”

“7    Term of appointment

(1)    The period for which a person may be appointed as a visiting practitioner is such period (not exceeding 5 years) as the public health organisation determines.

(2)    A person is, if otherwise qualified, eligible for re-appointment from time to time.

(3)    Despite subclause (1), a person may be appointed as a visiting practitioner for the duration of the person’s appointment to a teaching position at a tertiary institution (or for such lesser period as the public health organisation may determine) if the public health organisation has first obtained the advice of the medical and dental appointments advisory Committee about the length of the appointment.

(4)    Despite subclause (1), a person may be appointed as a visiting practitioner for a period exceeding 5 years, but not exceeding 10 years, if the Health Secretary, in the particular circumstances of the case, approves the additional period of appointment.”

30. Over and above the foregoing provisions of the Act and Regulations, the material before the Court, and before the Committee, included a Policy Directive [5] which deals with the appointment of visiting practitioners within the public health system. Part 8 of the Policy Directive deals with temporary appointments of less than six months.

    5. Court Book, Exhibit A, p 199 and following.

31. Clause 8.1 of the Policy Directive deals with temporary appointments not exceeding one week and is, necessarily, not directly relevant to either the position held by the plaintiff or the position for which he applied. Clause 8.2 deals with a position of a duration of over one week but less than three months. Relevantly, it is in the following terms:

“For any temporary appointment beyond one week, but less than three months with an extension for one further single three-month period is available, critical actions 1.1 to 1.14 of the Critical Actions Compliance Declaration (Appendix 1) must be completed, and signed by the Chief Executive authorised decision maker.”

32. Appendix 1 – Critical Actions Compliance Declaration deals, in clauses 1.1 – 1.14, with the information and decision-making necessary for the purposes of such an appointment. Beyond clause 1.14 in Appendix 1 are clauses 1.15 – 1.17 which require all members of the selection panel to have access to the entire written application, CV and supporting documentation of each applicant under consideration; for specialist positions, the selection panel must include a medical practitioner from the specialty; and the convener of the selection panel has completed recruitment and selection training.

33. Nevertheless, clauses 1.1 – 1.14 require a Working With Children Check; verification of registration; professional indemnity cover; an internal check with the NSW Health Internal Service Check Register; two reference checks, or one if the appointment is less than three months; a specialist in the relevant specialty being involved in determining the clinical privileges/scope of practice where appointment is not for more than three months; confirmation that the applicant is eligible to practice as a medical specialist; written details of all other current medical appointments and a signed standard consent form with employment related checks; original documentation or original certified copy of any additional qualifications over and above those necessary to gain registration, memberships, certificates etc. used to support the claim for the position; verbal references were checked and responses to the specified questions recorded in writing; written references to be directly confirmed and written responses addressed to specified questions; and information sought from the Health Care Complaints Commission and/or Australian Medical/Dental Board.

34. The Policy Directive deals, at Pt 15 with the terms of appointment for visiting practitioners and notes that visiting practitioners can be appointed or re-appointed for any specified period not exceeding five years, as may be determined by the public health organisation. Clause 15.2 notes that visiting practitioners are eligible for, but not entitled to, re-appointment and refers to Section 3.1.2 of the Policy Directive. Clause 15.2 notes that it is not obligatory to interview visiting practitioners who are not being re-appointed without advertising. It provides in the following terms:

“Persons applying for advertised vacancies may be new applicants or existing appointees, and the application process is the same in both cases.

Visiting practitioners must be informed that past performance will be taken into account, and be asked to complete the required authorities for these checks to occur.

….

Where existing visiting practitioners are being re-appointed, the critical actions at Appendix 1 must be completed, with the following proviso:

Where the Medical and Dental Appointments Advisory Committee (MDAAC) and / or any of its subcommittees considers that it is not necessary to repeat a particular critical action(s) during the reappointment process, and the action is not currently required in the NSW Health Policy PD2016_047, ….

In these circumstances, the resulting recommendation to the Chief Executive or authorised decision maker must identify any critical actions not completed and the reasons.

On re-appointment, the Visiting Practitioner must have a Working with Children Check clearance that has been verified with the Office of the Children’s Guardian…”

35. The foregoing reference to Section 3.1.2 is a reference to that part of the Policy Directive that deals with advertising requirements. It is appropriate to recite the provisions of 3.1.1 and 3.1.2, which are in the following terms:

“3.1.1    Short-term Temporary Appointments

Temporary appointments of visiting practitioners can be made without the need to advertise the vacancy where the appointment is for a period not exceeding three months, which can be extended for one further single three-month period.

3.1.2    Reappointment

For VMOs and VDOs only, advertising of positions is not required in circumstances where:

The role and responsibilities for the VMO / VDO remains largely unchanged since their original appointment, and

There has been a Level 2 review of the VMO / VDO in the penultimate year of the term of their appointment, and

The performance has been found to be such as to warrant renewal without advertising, and

The public health organisation has decided that it is appropriate to appoint a specialist VMO / VDO with an existing appointment; for a further term ….”

Other documentary evidence

36. Apart from the material in the Court Book, some of which is not evidence, other documentary material was tendered. I have already referred to the Affidavits of Mr Lancaster and Dr Hallahan each of which is contained in the Court Book.

37. The Court Book also contains the Summons; the first defendant’s response; the written submissions of the parties; an agreed schedule of legislative provisions; an agreed chronology; the plaintiff’s objections to evidence; and the Public Hospitals (Visiting Medical Officers - Sessional Contracts) Determination 2014. [6] The relevance of the Determination was, and remains, not immediately apparent.

    6. The Court Book was marked Exhibit A in the proceedings, although some of the material is plainly not evidence and such was noted and admitted provisionally in relation to the Affidavit of Dr Andrew Hallahan.

38. Apart from the Court Book, the plaintiff tendered the letter on the letterhead of the SLHD, dated 21 October 2019, which is the Letter of Appointment of the plaintiff to the position that commenced on 21 October 2019 and concluded on 20 January 2020, being a period of exactly three months. [7] Exhibit B also contains a letter of Acceptance to the Terms and Conditions of Appointment; a Model Health Declaration Form; Visiting Medical Officer Sessional Service Contract and schedules thereto; a professional indemnity agreement between the plaintiff and the first defendant and the schedule thereto; and an alternative professional indemnity arrangement and schedules thereto. I do not consider that the documents other than the letter of appointment itself and the contract are of significance in the determination of the issues in the proceedings.

    7. Letter of 21 October 2019 is Exhibit B in the proceedings.

39. Even the letter of appointment is relevant only to the extent that it formalises that which, in some respects, is otherwise agreed. The letter is headed “Appointment to position of Temporary Visiting Medical Officer, Department of Vascular Surgery Concord Repatriation General Hospital”. It refers to the approval of the Chief Executive of the SLHD for such an appointment.

40. The position is described in Exhibit B as “Temporary Visiting Medical Officer” in the Department of “Vascular Surgery” and the nominated facility is Concord Repatriation General Hospital. As earlier stated, the duration is specified as 21 October 2019 – 20 January 2020 and the clinical privileges are described as “Clinical Privileges in Vascular Surgery within the delineated role of Concord Repatriation General Hospital”.

41. The letter of appointment describes the plaintiff as being “employed pursuant to s 116 of the Health Services Act in the SLHD within the NSW Health Service by the Government of NSW”. Yet s 116 of the Act applies to “employment” of staff not the engagement of independent contractors. [8]

    8. Paragraph (b) of the Preamble to the Contract into which SLHD and the plaintiff entered recites that the plaintiff was to provide services as an independent contractor.

42. The first defendant tendered what purports to be the advertisement for the position to which the plaintiff was not appointed. [9] The advertisement describes Employment Type as “Sessional”; the Position Classification as “Visiting Medical Officer”; and the Requisition ID as “REQ141588”.

    9. Exhibit 1 in the proceedings.

43. The SLHD, through the advertisement, represents that it “is seeking an experienced Visiting Medical Officer (VMO) to join [its] team at Concord Repatriation General Hospital!” There are two other aspects of the advertisement that require mention. First, the first defendant, the SLHD, expressed the expectation that:

“The successful applicant should have demonstrated experience in open Vascular Surgery techniques; endovascular experience in complicated aortic pathology including thoracic aortic aneurysms and dissections using fenestrated, branched and T branched devices; and technical experience in thrombolysis techniques for arterial and venous pathologies”.

44. Secondly, the advertisement states the purpose of the position in the following terms:

“The purpose of the VMO is to provide clinical management and treatment of patients in the Department of Vascular Surgery at Concord Hospital. This care will be provided within the scope of practice granted by the SLHD Medical and Dental Appointments Advisory Committee.”

45. Over and above the foregoing is the material provided pursuant to the leave granted to the defendant and the Second Reading Speech for the introduction of some of the provisions of the Act to which reference has been made. The Health Briefing Note for Chief Executive is the request for and grant of approval for the advertising and recruitment of the position for which the plaintiff applied and which he was denied.

46. The Briefing Note bears reciting and is in the following terms:

“TITLE

Request for approval of advertising and recruitment of position of Visiting Medical Officer, Department of Vascular Surgery, Concord Hospital.

IMPACT OF RECOMMENDATION

ON PATIENTS: Reduction of waiting list time. Need to maintain service and patient care, manage waiting list and support on-call roster for Vascular Surgery Department at Concord Hospital

ON REGIONAL NEW SOUTH WALES: N/A

ON FINANCES: Cost approx. neutral. Cost Centre – Vascular Support Medical (458011). Cessation of Clinical Academic appointment. Replaced by sessional VMO appointment.

KEY ISSUES – including any other impacts

Dr Anthony Freeman was a Clinical Academic, Associate Professor of Surgery University of Sydney, and is Head of the Vascular Surgery Department at Concord Hospital. He has changed his employment arrangement with the University of Sydney to a clinical affiliation, whilst continuing his CRCH Vascular Surgery clinical commitment as Head of Department.

In order to maintain effective operations of the Vascular Surgery Department, it is proposed to create an additional ongoing Quinquennial position of VMO in Vascular Surgery to replace the clinical/surgical component of the Clinical Academic duties formally undertaken by Dr Freeman in that role.

Following approval, request is to be submitted to Recruitment Unit to activate a notification of vacancy for advertisement in the SLHD Recruitment and Onboarding System (ROB).

RECOMMENDATION

That approval is granted by the Chief Executive for creation of an additional Quinquennial position of Visiting Medical Officer in the Department of Vascular Surgery at Concord Hospital; and advertising and recruitment to the position be activated as soon as possible, for appointment for remainder of the Quinquennium until 31 December 2023.”

47. The document is authored by Ms Irene Graham, Senior Medical Coordinator, CRGH, whose telephone number is provided and it is dated 18 November 2019. I note, without current comment, that this was after the appointment of Dr Freeman to the three-month position commencing 21 October 2019, but it seems before Dr Freeman commenced activities under the three-month contract on 22 November 2019.

48. The recommendation was approved by Dr Kashmira De Silva, DMS CRGH on 20 November 2019 and by Dr Genevieve Wallace, General Manager CRGH with a copy to Dr Kim Hill, Executive Director Medical Services SLHD (acting) on 20 November 2019 and by Dr Teresa Anderson, Chief Executive, SLHD, on 21 November 2019. The Visiting Medical Officer - Vascular Surgery for position 458011, being REQ141588, is attached to the Briefing Note which has been substantially recited above.

49. Further, attached to the Briefing Note for Requisition ID REQ141588 is the Position Structure. It is described as a “New Position” of a Visiting Medical Officer in Vascular Surgery or, more accurately, 253521 Vascular Surgeon, which is the ANZSCO classification. It is a one full-time equivalent; there is one person to be hired; it has a neutral cost (presumably because Dr Freeman was already engaged prior to the being appointed to the VMO position or prior to the longer-term position taking effect); and it is otherwise unnecessary to recite the contents of that document.

50. There is a Position Description, which it is largely unnecessary to recite, and a document titled Advertising Content which, in its final form, was admitted as Exhibit 1 in the proceedings, each of which is attached as part of the approval process. Each of the documents described the closing date for applications to be 6 December 2019.

51. Two aspects of Exhibit B have not been referred to and should be. The Sessional Service Contract, which is part of Exhibit B, includes a term of the contract, which prescribes that the duration of the contract is to be:

“...for the period from 21 October 2019 – 20 January 2020 (being a period not exceeding five (5) years), unless … a longer term (not exceeding ten years) has been approved by the Director General in accordance with clause 7(4) of the Regulation”.

52. As at 21 October 2019, reg 7(4) of the Regulations provided that a visiting practitioner may, despite the terms of subclause (1), be appointed for a period exceeding five years, but not exceeding ten years, if the Health Secretary approves the additional period of appointment. The foregoing is recited in the regulations above, but is noted at this point because the Sessional Service Contract between the plaintiff and the defendant expressly includes the capacity for the appointment to be able to be extended by the Director-General in the particular circumstances of the case.

53. Lastly, in terms of documentary material, reference should be made to the Second Reading Speech of the Health Services Bill, by the then Deputy Premier, Minister for Health and Minister for Aboriginal Affairs, Dr Refshauge, on Wednesday, 12 November 1997. The Bill was read a first time and then immediately read a second time, during the course of which Dr Refshauge referred, expressly, to certain relevant aspects of the Act, which was then in the process of promulgation.

54. The Second Reading Speech includes the following passage:

“Honourable members will be aware that, notwithstanding their independent status, visiting practitioners who have been terminated, suspended or not reappointed have enjoyed a statutory right of appeal to committees of review, established under the Public Hospitals Act. Whilst part 4 of chapter 8 of the bill retains this right of appeal, it streamlines the appeal provisions and alters the constitution of a Committee of review to improve its independence and mix of skills and experience. It also qualifies the appeal rights in respect of non-reappointment and reduction in clinical privileges to ensure consistency with the principle of selection on merit of visiting staff in the health system, and the service planning imperatives of the system. This statutory right of appeal has also been removed where the termination or non-reappointment of a visiting practitioner is as a consequence of the practitioner being convicted of a serious sexual offence against a child or young person under 18 years of age.” [10]

10. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1997 at 1610.

55. As can be seen from the foregoing extract of the Second Reading Speech, the then Minister referred to the appeal provisions under the Public Hospitals Act 1929 (NSW), which was repealed with the promulgation of the Act, effective 1 July 1998. Under the Public Hospitals Act, there were appeal provisions in Pt 6B, allowing for an appeal in four categories of cases, only two of which, for present purposes, require summary.

56. Those two categories are where a board (the relevant decision-making institution) appointed or re-appointed a person as a visiting practitioner subject to conditions; or decides not to re-appoint a person as a visiting practitioner. In those two categories of decisions, the person is required to be notified,[11] and, once notified, the person may request reasons for the decision. [12]

    11. Public Hospitals Act 1929 s 33H(1)(a) and (b).

    12. Public Hospitals Act 1929 s 33H(2).

57. In circumstances where, pursuant to the Public Hospitals Act, a person appointed subject to conditions, or not re-appointed as a visiting practitioner, sought reasons, that person was entitled to the reasons for decision within a further seven days from the date of the receipt of that request[13] and, upon receipt of the reasons for decision, if dissatisfied with that decision, was entitled to appeal to the Minister. [14] Upon such an appeal to the Minister, the Minister was required to appoint a Committee to hear and determine the appeal.

    13. Public Hospitals Act 1929 s 33H(3).

    14. Public Hospitals Act 1929 s 33I.

58. A reading of the Public Hospitals Act 1929 discloses the predecessor provisions for the most relevant provisions of the Health Services Act, with which the Court is currently concerned. In the current Act there are express provisions limiting the rights of appeal in circumstances where a visiting practitioner has been convicted of serious sex or violence offences, as mentioned in the Second Reading Speech. An appeal under the Public Hospitals Act did not exempt, expressly, the situation where the employing organisation had ceased to offer appointments of that kind. [15]

Submissions of the Parties

15. Cf. the Health Services Act 1997 s 106(2)(a).

Plaintiff’s Submissions

59. The plaintiff submits that the plaintiff has a long history of service to the SLHD at Concord Hospital. He had been a VMO at Concord Hospital from 2009 until November 2011, at which point he was appointed Associate Professor at Concord Hospital as part of the Sydney University Medical School and resigned his VMO role at Concord Hospital. He continued his clinical duties at Concord Hospital, as previously, in addition to undertaking both undergraduate and postgraduate teaching.

60. In mid-2019, after discussions with the first defendant, he accepted a short-term three-month contract as a VMO, according to the submissions, commencing on 22 November 2019. However, the material before the Court establishes that the position commenced on 21 October 2019 and, subject to the express reservation as to an extension of the term, the last day of service under that temporary appointment was to have been 20 January 2020.

61. The plaintiff points out that the appointment was as a VMO, pursuant to a Sessional Service Contract, for a period of three months. While in that position, the plaintiff applied for the position advertised being the position approved for the remainder of the quinquennium, concluding 31 December 2023.

62. The plaintiff submits that the majority of the Committee failed to consider or to address the primary problem before it, being the meaning of the expression “re-appointed person as a visiting practitioner”, which led it into error, being jurisdictional error and error of law on the face of the record. The Committee, on this submission, considered the expression in the context of the position to which the appointment was to be made, being as a visiting practitioner, referring to the period of the appointment and the difference between the short-term, three-month duration, and the long-term, quinquennial appointment.

63. The plaintiff’s position was that all applicants, who are applying to be appointed as a visiting practitioner for the first time, or after a hiatus, were in a position where no appeal was permitted. On the other hand, a visiting practitioner who is “in situ” [16] had a right of appeal pursuant to the Act and Regulations.

    16. Court Book, Exhibit A, p 17 (Plaintiff’s Written Submissions at [26]).

64. The plaintiff submits that the Act provides persons in the position of the plaintiff with a right of appeal, where there has been a failure to re-appoint him to the position of a visiting practitioner. The visiting practitioner relates to duties and obligations of the position, not the period of appointment.

Defendant’s Submissions

65. The first defendant submits that the term “re-appoint”, where used in s 105(1)(b) of the Act imports that the position held by the visiting practitioner is a position of the same kind and that term should be read into the provisions in s 105(1)(b) and, as a consequence, qualifies the right of appeal granted by s 106(1) of the Act.

66. The grant of a right to appeal against a decision not to be re-appointed is, expressly, qualified by the terms of s 106(2) of the Act, which denies the right of appeal if the employing organisation “has ceased to offer appointments of the kind” to which the person seeks re-appointment.

67. The first defendant submits that the question of whether the two VMO positions are of the same kind, such that a person is complaining of a failure not to be re-appointed, is jurisdictional. The first defendant submits that it is a “jurisdictional fact”.

68. Certainly, if there be a right of appeal and the Committee has decided there is no right of appeal, the error is jurisdictional. It is not clear that the determination that two positions are “of the same kind” is “the jurisdictional fact” that determines such a question. Having made that comment, the Court, as presently constituted, accepts that it is for the Court to determine, for itself, whether an appeal exists, including any statutory preconditions for the existence of that appeal.

69. The first defendant summarises the two issues that divide the parties as:

1. “the proper construction of the word ‘re-appoint’ in s 106 (sic) of the Act; and

2. whether, having regard to that construction, the decision in respect of the plaintiff is a decision to ‘not re-appoint’ him.”

70. The reference to the use of the word re-appoint in s 106 is, presumably a reference to the use of the term “re-appoint” in s 105(1)(b) of the Act. The grant of a right of appeal in s 106(1) does not refer to the term “re-appoint”, but, rather, refers to a decision under s 105(1) of the Act. The term “re-appoint” is used in s 106, but only in the exception to the right of appeal in s 106(2)(a) of the Act.

71. Essentially, the first defendant accepts that the dispute between the parties is a “narrow one”. This is a submission first made by the plaintiff.

72. The Court is not necessarily in agreement with that proposition. The controversy or primary dispute between the parties is quite fundamental, although its resolution depends upon the construction of the relevant provisions of the Act and is, in that sense, narrow.

73. The first defendant, unlike its summary of the position of the plaintiff, submits that, in determining whether an appointment was a “re-appointment”, regard must be had to whether the two appointments are “of the same kind”. The question is not answered simply by a comparison of the duties and obligations and a determination that the duties and obligations are the same. [17]

    17. Court Book, Exhibit A, p 30 (Written Submissions of the first defendant at [37] and [38]).

74. The first defendant refers to the “ordinary language” and refers to the definition in the Cambridge Dictionary that the term “re-appoint” means “to decide officially that someone should continue in a particular job”. [18] Lastly, the first defendant submits that the term “re-appoint” carries with it a connotation of appointment to the same position or role for a second or subsequent period. The first defendant relies upon the comment of Young CJ in Eq in Woodgate v St Vincent’s Hospital Sydney Ltd [19] in which Young CJ in Eq commented that “[r]e-appoint is just a shorthand way of saying ‘appoint again’.”[20]

    18. Court Book, Exhibit A, p 30 (Written Submissions of the first defendant at [39]).

    19. Woodgate v St Vincent’s Hospital Sydney Ltd [2001] NSWSC 941.

    20. Woodgate, supra, at [19].

75. The first defendant submits that the plaintiff does not identify anything in the text or context of the Act to justify dismissing the variety of other factors, that is other than duties and obligations, that would “as a matter of common sense and ordinary language”, be relevant to whether failure to appoint was a failure to re-appoint. The first defendant then submits that such other matters would include the type of contract under which the person was engaged; their position within the organisational hierarchy; whether the position was for a term or ongoing; and the duration or term of the appointment.

76. The latter two aspects, referred to as a matter of “common sense”, are merely restating the issue before the Court. The position that a person occupied within an organisational hierarchy affects a person’s duties and obligations and does not qualify the submission of the plaintiff.

77. The type of contract under which the person was engaged may, or may not, involve the position being a different one. First, if the position moved from an independent contractor to an employee, one can well imagine that it would be a different position, but, at the same time, if that were the situation, the duties and obligations of the worker would not be the same. An independent contractor does not have the duty to obey all reasonable directions of the employer, to name but one of the vast array of obligations and duties that alter as between independent contractors and employees.

78. Lastly, the first defendant relies upon Dr Hallahan’s evidence establishing the distinction in practice between short-term VMOs and longer-term VMOs, without defining what short-term and longer-term means and without disclosing the regulatory framework that gives rise to such a distinction. The first defendant also submits that there are few if any indicators in the Act as to what distinctions are relevant in differentiating between positions.

79. The first defendant submits that, although there are no express distinctions in the Act between VMO positions on the basis of duration, textual indicators, including the inclusive language of the chapeau to s 81 of the Act, support the proposition that a variety of different factors will be relevant to whether two positions are “of the same kind”. [21] The difficulty with reliance on s 81 of the Act is that it expressly refers to “kinds of service contracts”, not positions.

    21. Court Book, Exhibit A, p 32 (Written Submissions of the first defendant at [46]-[47]).

80. The first defendant relies upon the decision of the Committee below to demonstrate that there were differences in the two positions in question in these proceedings, but concedes that the duties and obligations attached to each position were the same. The differences, on the analysis of the Committee, which is supported by the first defendant, is the duration of the appointment and the implications of that duration on the process of appointment.

81. The reference to the implications of the duration in the process of appointment relates to the requirement to advertise. The effect, on the submission of the first defendant, of such a requirement to advertise is on the necessity to engage in merit-based appointments. [22]

    22. Court Book, Exhibit A, p 34 (Written Submissions of the plaintiff at [52] and in particular the reference to cl 5(1)-(3) of the Regulations).

82. The plaintiff submits that the engagement process for longer-term appointments is far more rigorous and detailed, compared with temporary appointments. Thus, a short-term appointment will not require the same rigour as an appointment that is for a period longer than three months. As a consequence, the first defendant submits that the Committee did not err in finding that it did not have jurisdiction to entertain the plaintiff’s purported appeal as it did not relate to a “re-appointment”.

The Committee’s Decision

83. As earlier stated, the decision of the Committee was by majority, with Dr Denis Smith dissenting from the conclusion reached by the other members of the Committee. The majority determination commences with a summary of its findings and then expands on the issues in detail. The majority consisted of Ms Geri Ettinger (Chairperson), Dr Malcolm Stuart and Mr Adam Johnston.

84. One can assume that the summary recites those matters that were important in the consideration of the majority. The summary recites Dr Freeman’s history including his appointment as Associate Professor of Surgery at Sydney Medical School and appointment to the Concord Clinical School (Sydney University Medical School) as a 0.5 full-time equivalent clinical academic. It also recites that there was some dissatisfaction with Dr Freeman meeting his academic requirements and, “in particular related to research output and record-keeping”. The relevance of that latter aspect escapes me.

85. Nevertheless, it may give background to the proposal by Prof Fiona Blyth, recounted in the summary, head of Concord Clinical School and, it seems, Dr Freeman’s supervisor, that Dr Freeman be subject to an Active Monitoring Plan.

86. The majority summarises that, as an alternative, Dr Freeman considered returning to an appointment as a VMO at Concord and had discussions about that possibility with Dr Genevieve Wallace, General Manager of Concord. Dr Freeman alleges that, as part of the agreed plan, according to the majority’s summary, Dr Freeman would resign from the University, the SHLD would withdraw the funding for his Associate Professorship and fund the Vascular VMO position at Concord Hospital.

87. Further, the summary recounts Dr Freeman’s evidence that:

“…the Vascular VMO position was created … for [Dr Freeman] to apply for, as part of a process in a broader plan of reorganisation that would involve [Dr Freeman] resigning from the Clinical Academic Position that [Dr Freeman] had held for many years.”

88. The Court comments that, if all of that be true, there may well be issues associated with Dr Freeman acting to his detriment on the basis of a representation by or on behalf of the SHLD and/or Concord Hospital. Such is not an issue with which the Court is required, currently, to deal.

89. The summary recites those persons who gave evidence before the Committee and notes that the Director of Medical Services, Dr De Silva, did not give evidence, but that the majority was not prepared to draw any “adverse inferences” as a consequence of the failure to adduce evidence from her.

90. The summary recounts Dr Freeman’s evidence that he had been assured that he would be provided with a temporary VMO position and that a permanent role would be offered to him subsequently and, further, that he would be upgraded to a senior VMO. The last mentioned matter was not a matter before the Committee, but, in fact, occurred.

91. The summary recites that the duties remained unchanged throughout the period.

88. The Committee then recites that the position was offered for a period of three months (in fact, the contract of service dates from 21 October 2019 and is for a period of three months) but, according to Dr Freeman, the appointment was delayed and commenced on 22 November 2019. It does not seem obvious how one would know that, in circumstances where the duties performed by Dr Freeman remained constant throughout the period.

89. Nevertheless, the summary recounts that on 19 November 2019, the VMO position for the remainder of the quinquennium was advertised; Dr Freeman applied for the position; was interviewed; and was not selected. On 10 January 2020, a notice was sent by Dr De Silva and received by Dr Freeman, relevantly, in the following terms:

“I advise that the interview subcommittee, after reviewing your resume detailing your qualification, your experience, written responses to selection criteria, interview responses and references concluded that you were not the preferred applicant for the Visiting Medical Officer position advertised.”

94. Dr Freeman had expressed, apparently, dissatisfaction with the constitution of the Interview Panel, not only after the result was known, on the basis of perceived conflicts of interest. The majority considered this was not part of their consideration. The majority described its function in the following terms:

“[14]    Our task is to decide on the evidence, and application of the Health Services Act 1997, (the Act), and its attendant Regulations, whether Dr Freeman has standing to appeal the decision not to appoint him to the quinquennium VMO position for which he applied, and was interviewed. Further, whether this Committee has jurisdiction to hear his appeal pursuant to section 105 & 106 of the Act.”

95. The summary then concludes that Dr Freeman cannot appeal against the decision not to appoint him. The majority decision then refers to the evidence before the Committee.

96. The evidence before the Committee included two Affidavits sworn by Dr Freeman, dated 15 April 2020 and 6 May 2020. It also included sworn evidence from Dr Wallace and Ms Finocchiaro. The Committee also took into account written material from Dr De Silva, even though she was not called to give evidence.

97. The majority summarise the evidence before it to a similar effect as that which is described in the summary. As a matter of detail, it should be noted that the majority decision refers to correspondence from Ms Irene Graham, Senior Medical Support Officer, of 25 September 2019, to the effect that his employment conversion was being arranged and was expected to be presented at the October 29 MDAAC meeting “with the temp change in status effective from 21 October 2019 to 20 April 2020”.

98. Notwithstanding that, it is clear from the answers from Dr Freeman in cross-examination that he was “always aware he would have to apply for the advertised quinquennium VMO position”. Nothing in this application detracts from that understanding.

99. The summary of the evidence by the majority also summarises the denial by Dr Wallace of the terms of the representations, which Dr Freeman asserted.

100. Reference was also made in the summary of evidence to hand written notes by Dr De Silva to the effect that Dr Freeman’s position was Head of Department and noting hours of work of 376 hours, which, it seems, the majority accepted, as did Dr Freeman, could not be achieved in the three-month initial appointment to which the contract was said to relate. Dr Freeman and his counsel both referred to the note as evidence of a longer-term VMO appointment in quinquennium terms.

101. The majority decision then summarises the submissions of the parties and, at [44] and following, deals with the deliberations. Under the heading of “Committee’s Deliberations”, the majority referred to the terms of the appeal and recited ss 105 and 106 of the Health Services Act.

102. The Committee refers to the only subsection relevant to Dr Freeman’s appeal, being s 105(1)(b), and refers to the requirement to give notice in writing to the person of its decision within 14 days of the decision. The majority then notes, at [49]:

“The relevant subsection in section 106 is subsection 106(1) of the Act, which states that a person who is dissatisfied with a decision of a public health organisation referred to in section 105(1) concerning the person, may appeal to the Minister against that decision. That is what Dr Freeman has done. He has appealed the decision of the SLHD/Concord, (the relevant public health organisation), not to appoint him as a VMO for the remainder of the quinquenniam to 2023, to the Minister. (The exclusions in s 106 of the Act are not relevant, and do not apply here).”

103. The majority decision then refers to the relevant part being the concept of “reappointment” under s 105(1)(b) of the Act and that it is their task to determine whether they have jurisdiction to hear the appeal. The Committee then summarises ss 76, 78 and 83 of the Act. The majority states that they are “mindful” that Dr Freeman had been a VMO at Concord since 2009 until November 2011 at which point in time, notwithstanding Dr Freeman’s continuation in the role, he had resigned his appointment as a VMO.

104. The deliberations then referred to the representations said to be acted upon as a “stepping stone to a permanent appointment under the broader plan”. The majority then notes that Dr Freeman was not a visiting practitioner between 2011 and 2019, during which time his functions at Concord were in a different capacity.

105. The majority notes that the contract under which Dr Freeman was appointed as a VMO at Concord Hospital did not require the position to be advertised. Nor was he required to apply. On the other hand, the quinquennium contract had to be publicly advertised, pursuant to cl 5 of the Regulations.

106. The majority then refers to the contract not having included the word “temporary” and the dispute between the parties before the Committee as to whether the letter containing the contract and offer was an integral part of the contract or a separate document. The majority took the view that whether it was, or not, was not of assistance in determining jurisdiction. The Committee nevertheless notes that the use of the word “temporary” in the letter to Dr Freeman and the acceptance to the terms and conditions of appointment document is neither consistent with the language of the contract nor with the legislation and “therefore inaccurate in its detail”. [23]

     23. Court Book, Exhibit A, p 48 (Decision at [65]).

107. The Committee majority, after referring to the oral evidence of Dr Freeman, took the view that there was a conflict in the evidence given by Dr Freeman and the other witnesses. It does not seem to me that, for the purposes of the Court, whether there was a conflict is particularly relevant. However, the Court understands the conflict as to whether certain representations were made, but does not understand that there was a conflict as to Dr Freeman’s expectations.

108. Dr Freeman’s evidence was that it was represented to him that he would be appointed, but he had always understood that the quinquennium position would be the subject of advertising and it was possible that he would not be appointed. Whether or not the representation and the expectation were correct seems irrelevant in the determination of the jurisdiction of the Committee.

109. It may be relevant if there were proceedings based upon some detriment suffered as a consequence of representations that were not fulfilled. But that is not the issue before the Court. Nor was it the issue before the Committee.

110. The majority then refers to the submissions made on behalf of the SLHD and in particular reliance upon the judgment of Young CJ in Eq in Woodgate, supra. The Committee then concludes in the following terms:

“In coming to a decision regarding ‘re-appointment’, we preferred the argument put by Mr Britt [counsel for SLHD], that the appointment of Dr Freeman to the three month VMO contract, (no advertisement, no application, no interview), could not be compared with the quinquennium VMO contract. The fact that Dr Freeman was not the preferred applicant for the longer term advertised position, meant he was not appointed to the VMO position for the remainder of the quinquennium.

We accepted [sic] that the application for the quinquennium VMO position was a fresh application, as a result of the position being publicly advertised, and that Dr Freeman was not appointed to it following an interview by the Interview Panel. That he had reservations about the constitution of the Interview Panel, and its questions to him during the interview, cannot be considered as part of this discussion.”

111. The majority then discusses the judgment of the Court in Woodgate, supra. The majority noted the submission of counsel that it was made clear to the applicant in the circumstances being dealt with by Young CJ in Eq that accepting a temporary position gave no advance status for a permanent position or appointment.

112. The Committee also noted the distinction in the case of Dr Freeman and noted that “from the documentation there were serious signs to Dr Freeman that he would be appointed to the quinquennium VMO position.” However, correctly in my view, the Committee took the view that the representations of appointment to the quinquennium VMO position could not establish jurisdiction.

113. The structure of the dissenting decision is in similar form to that of the majority. Dr Smith, the dissenting member of the Committee, agrees with the recitation of the Committee’s task set out in the majority decision and comments that the Committee must first determine if it has jurisdiction. The conclusion at which the dissenting decision arrives is that the decision was a decision “to not re-appoint”. [24]

     24. Court Book, Exhibit A, p 51 (Dissenting Decision at [4]).

114. The dissenting decision accepted the summary of evidence by the majority and referred, very briefly, to the submissions of the parties and, in particular, the standing of the judgment in Woodgate. The dissenting Committee member recited that the submission of the SLHD was that the Committee was not bound by the judgment in Woodgate; it was persuasive only. I hasten to add that such a submission is consistent with the submission made on behalf of the defendant in these proceedings before the Court.

115. The dissenting Committee member then set out the grounds of appeal; the provisions of ss 105 and 106 of the Act; and took the view that the only relevant provisions were the terms of s 105(1)(b) of the Act, which is the same view taken by the majority.

116. Fundamentally the dissenting decision considered as unimportant the status of Dr Freeman and the change in the status as between 2009 and 2019. Instead, the dissenting decision remarks that the important matter is that, notwithstanding the change in contract type, Dr Freeman “continued his clinical, teaching and administrative duties at Concord Hospital”.

117. The dissenting decision takes the same view as the majority decision in a number of aspects including the relevance of the use of the term “temporary” in the letter of 21 October 2019 and the document entitled “Acceptance to the Terms and Conditions of Appointment”. The dissenting decision then remarks that, throughout the submissions before the Committee, words such as “temporary” and “permanent” were used. The dissenting judgment remarks:

“These descriptors are not to be found in the Act, the Regulation, or Associated NSW Health policies, and were the basis of many misconstrued arguments in [sic] before the Committee.”

118. Correctly, the dissenting decision remarks that the issue is whether Dr Freeman was not re-appointed as a visiting medical practitioner following the conclusion of the term of this VMO. The dissenting decision referred to the argument put on behalf of the SLHD reliant upon the terms of cl 5 of the Regulations that there was a difference between appointments made under cl 5(4)(b) and those appointed under cl 5(1)-(3), referring to the former as “temporary”.

119. The dissenting decision rejects that nomenclature and that taxonomy. The dissenting decision remarks that there is nothing in the Act or the Regulation to support such a difference. The dissenting decision remarks that cl 5(4)(b) is not used to create a different class of visiting medical practitioner. Rather, it is used to facilitate a more speedy appointment process.

120. The dissenting member then refers to the absence of differences in the VMO sessional service contract, regardless of the length or term of appointment and finally agrees with the majority that the application for the longer term quinquennium VMO position was a new application, but every application for a position is a new application and remarks that such a circumstance “is no different to the situation that occurs when every visiting medical practitioner in NSW must make a new application when the term of the contract expires, and the positions are publicly advertised.”

121. The dissenting decision then comments on the judgment of Young CJ in Eq in Woodgate and ultimately concludes:

“[51]    The position advertised was for a VMO with similar duties and responsibilities as the one to which Dr Freeman was appointed in 2019. Dr Freeman applied for the position and was not appointed.

…

[53]    Dr Freeman was a visiting medical practitioner with a sessional service contract, albeit a short-term contract, with similar duties and responsibilities as the position advertised.

[54]    Whatever the length of a visiting medical practitioner’s contract or the method by which they are appointed, the legislation simply treats them all as visiting medical practitioners.

[55]    Apart from the term [which must be understood as referring to the duration], the duties and responsibilities of the position advertised and the one completed were so similar as to render them the same.

[56]    The decision not to reappoint Dr Freeman following the advertisement and interview, was a non re-appointment, rather than non-appointment to a new position as in the Woodgate [sic] matter, because of the similarity of duties and responsibilities to the position already held.” [25]

25. Court Book, Exhibit A, p 59 (Dissenting Decision at [51], [53]-[56]).

Consideration

122. There are a couple of misdescriptions during the course of the submissions by the parties that require noting. First, the first defendant relies upon the fundamentally different nature between an appointment for five years and an appointment for three months.

123. The position into which the plaintiff was not appointed was not a position for five years. It was a position, as is made clear from the terms of the Health Briefing Note that could not have commenced before 21 January 2020 and was to conclude on 31 December 2023, i.e. for a period of less than four years. I assume, although there is no evidence before the Court to this effect, that the quinquennium was a fixed time that commenced on 1 January 2019.

124. The second aspect that needs comment, in relation to the implicit or underlying assumption in the decision of the Committee and in the submissions of the parties, is that the existence of the appeal to the Committee, if it were to exist, somehow affects negatively the process of merit-based appointments. As was ultimately conceded by the first defendant in the course of the proceedings before the Court, the existence of a review or appeal in which the Committee stands in the shoes of the employer and deals with the appointment afresh has no deleterious effect on the purpose of the legislature in adopting a process which is appointment on the basis of merit.

125. On the contrary, the existence of an appeal has only one effect in that respect. That effect is that the appeal or review process eliminates or minimises the possibility of inappropriate subjective factors influencing the decision as to which one, of a number of candidates, should be appointed.

126. Thus, the original appointment may be influenced by the proposition that a person has worked with some or all of the members of the appointment or selection committee and that working relationship may have led to inappropriate factors being considered in the appointment process. As a consequence, the effect of a review is that such subjective factors are minimised, if not eliminated, but the Review Committee must still base its decision on merit.

127. The third aspect that needs comment is the reference to different requirements for appointment. Further, comment will be made later in these reasons as to some of these assumptions and submissions, but, for present purposes, assuming that the appointment for a period of three months did not require advertising, nor as rigorous a selection process, while an appointment for over three years does require a more rigorous selection process and does require advertising, the fact that a VMO is currently occupying a position that is for a three-month period, has no impact upon whether the three-year appointment is advertised; is rigorously assessed; or is based upon the merit of the candidates.

128. Each of the parties submits that the Committee was required to determine whether there was an appeal and was required to do so on the basis of whether the appointment to the longer term position was a “re-appointment”, or, more accurately, would have been a “re-appointment”, if the plaintiff were to have been appointed to it. The Court, as presently constituted, will decide the foregoing question on the basis that the parties have agitated, but I am not sure that accurately sets out the basis for the jurisdiction of the Committee.

129. Before dealing with the provisions of the Act, it is necessary to recite the somewhat trite proposition that it is always the function of a committee or tribunal to determine for itself the authority that it is exercising and the tasks that it must perform. When it does decide its authority, that decision has no legal effect beyond determining that which the tribunal, in this case the Committee, proceeds to undertake or declines to undertake, as the case may be. The task was succinctly described in the following passage:

“… neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body.

…

An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court’s judgment and not the administrative body’s opinion which defines the extent of (as well as the constitutional support for) its statutory authority.

…

An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board’s function of forming an opinion upon the question.”[26]

26. Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 241-242; [1976] AAT 1 (Brennan J [as the Chief Justice then was], then a member of the Federal Court of Australia and President of the Administrative Appeals Tribunal).

130. On one view of the legislative scheme, the jurisdiction of the Committee is dependent upon the appointment of the Committee of Review by the Minister under s 108(1) of the Act. Under that provision, recited above, the Minister must appoint a Committee of Review to determine the appeal on receipt of a notice under s 107 of the Act. A notice under s 107 is the document that the appellant gives to the Minister “of the grounds of the appellant’s appeal”[27] and must be made, relevantly, within one month of the appellant being notified of the decision not to re-appoint. [28]

     27. Health Services Act 1997 s 107(1).

     28. Ibid s 107(2)(a).

131. As is clear from the foregoing recitation of the provisions, the appeal, once filed, is a hearing de novo of the appointment process. [29] However, as stated, the appeal is made to the Minister. [30] If the Minister were to consider that there is no right of appeal, the Minister would not be entitled or required to appoint a Committee of Review.

     29. Ibid ss 112 and 113.

     30. Ibid s 106(1).

132. It would seem that the jurisdictional pre-condition on the determination of the appeal by the Committee is the appointment of the Committee by the Minister and the reference to that Committee of the “appeal”. It is the reference by the Minister that confers jurisdiction on the Committee.

133. The Minister’s power or jurisdiction to appoint a Committee depends upon the Minister’s receipt of a notice under s 107(1), which, in turn, requires, ultimately, a failure to re-appoint under s 105(1) of the Act. The reference in Re Adams and the Tax Agents’ Board, supra, [31] to the effect that a tribunal was entitled to determine, for itself, its own jurisdiction and the operation of the legislation, including its constitutional validity, has a different application in the case of the Committee.

     31. Cited authoritatively in a number of judgments of the Federal Court of Australia and of the Court of Appeal in New South Wales and elsewhere.

134. If, as is the case in the Majority Decision, the Committee were to determine that there was no appeal, then, as a matter of statutory construction, the Minister had no power or jurisdiction to appoint the Committee. In other words, the effect of the Majority Decision is that the Committee, which has made the decision, was invalidly appointed.

135. The alternative construction is that the Minister does not determine whether a valid appeal has been lodged and merely appoints the Committee on the receipt of the notice under s 107(1) of the Act and the Committee’s function includes the task of determining whether an appeal has been lodged. This is an available construction and would probably be more convenient, in many respects, although it seems somewhat inconsistent with the function of the Committee which is statutorily defined as being “to determine the appeal”. [32]

     32. Health Services Act 1997 s 108(1).

136. As earlier stated, the parties have agitated the proceedings on the basis that the Committee was required to determine whether it was a re-appointment. The Court will determine the issues between the parties on that basis.

137. My preferred construction of the Act is otherwise, but it is unnecessary to come to a final conclusion in that respect. If the Court were to conclude that there was no re-appointment, then, on the preferred construction, the Minister would not have been able to appoint a Committee. If, on the other hand, the Court were of the view that there would have been a re-appointment, which the plaintiff has been denied, then the Minister was required to appoint a Committee and the Committee has failed to exercise jurisdiction.

138. Fundamentally the issue before the Court turns on the construction of the statute. The approach taken to the construction of a statute is well rehearsed.

139. The statute must be read as a whole and the relevant terms construed in the context of the statute as a whole. The Court’s function, in so doing, is to examine the text of the legislation to determine the intention of the legislature objectively.

140. Such a process involves the construction of the statute and any subordinate legislation on the basis of the words used in each to ascertain the purpose of the legislation and the objective intention of the legislature, bearing in mind that the legislation is to be construed on the basis of giving effect to the legislature’s purpose and on the basis of achieving harmonious goals. [33] The legislature has, in provisions of the Interpretation Act 1987 (NSW), provided legislative support for that approach. [34]

     33. Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28; Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135 at [34]-[39].

     34. Interpretation Act 1987 s 33.

141. Further the legislature, through the Interpretation Act, has permitted consideration of extrinsic material for the purpose of ascertaining or confirming the meaning of a provision used in a statute. The extrinsic material, which the Court is entitled to consider, includes the Second Reading Speech, to which, in these proceedings, reference has already been made. [35]

     35. Ibid ss 34(1) and 34(2)(f).

142. Nevertheless, the ordinary and grammatical meaning of the provisions to be construed is that which is considered first and it is that ordinary and grammatical meaning from which the intention of the legislature is ordinarily gleaned. Primarily, the ordinary and grammatical meaning of provisions will correspond with the legislative intention and will be the meaning adopted in the construction of a statute. [36]

     36. Project Blue Sky, supra at [78] (McHugh, Gummow, Kirby and Hayne JJ).

143. As stated, each of the terms of a statute should be construed on the basis that will best give effect to the purpose and language of the provisions, while maintaining the unity of all the statutory provisions. [37]

     37. Project Blue Sky, supra at [70]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ).

144. There are two aspects that should also be noted. A definition is “no more than an aid to construction of the statute”. [38] The meaning of a definition will necessarily turn on the context in which it appears, considered as a whole. The approach was explained succinctly in the following passage:

“… [T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. … To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. … [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.”[39]

38. Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635; [1966] HCA 74.

39. Kelly v The Queen (2004) 218 CLR 216 at 253; [2004] HCA 12 at [103] (McHugh J); see also Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [39] and the cases cited therein.

145. The primary purpose of all rules of statutory construction is the ascertainment of the intention of the legislature in the promulgation of the legislation. When dealing with subordinate legislation, which is part of the process involved in these proceedings, it is legitimate to have regard to the fact that subordinate legislation is less carefully drafted and less keenly scrutinised than primary legislation. [40]

     40. Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [44] (Leeming JA, with whom Bathurst CJ and McColl JA agreed).

146. Further, whatever be the legislative history or extrinsic materials relevant to the promulgation of the regulatory scheme, such material must give way to the meaning of the text as part of the construction of the whole of the regime. [41]

     41. Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519; [2012] HCA 55 at [39].

147. Since, in these proceedings, the first defendant relies upon a dictionary definition to evidence the ordinary meaning of the words, some comment should be made on the use of dictionary definitions in the construction of a statute. The Court of Appeal, recently, said:

“… both the primary judge, and this Court, were taken to dictionary definitions of ‘pest’ and ‘exterminate’. This course was sought to be justified on the basis that these were ordinary words which should bear their ordinary meanings; those ordinary meanings are found in dictionaries. Even were both propositions true, it is doubtful whether any member of the legal profession with a sound grasp of the English language would find assistance in a dictionary in understanding the ordinary meaning of these terms. However, the dictionary meanings were not merely a distraction, reference to them was conducive to error. That was so, because (i) it removed attention from the statutory context, and (ii) it led, predictably, to identification of a range of possible meanings, with one party proposing a broader meaning and the other a narrower meaning. The dictionary itself was, inevitably, unable to assist in determining which meaning was appropriate in the present case.”[42]

42. Will v Brighton [2020] NSWCA 355 at [111] (Basten JA).

148. With those comments in mind, it is next necessary to comment on the judgment of Young CJ in Eq in Woodgate, supra. Before doing so, it is appropriate to reiterate that the appointment of Dr Freeman as a VMO under the three month contract had a number of aspects which bear on a distinction between the situation appertaining to Dr Freeman and that appertaining in Woodgate.

149. First, the contract of service is not framed or suggested, in the contract itself, as “temporary”. The contract envisages circumstances in which the appointment will extend for a significant period but less than 10 years. As unlikely as that may be, given the rarity of appointments under cl 7(4) of the Regulations, the contract envisages the possibility of such an appointment.

150. As a consequence, it cannot be said that the contract is confined to a “temporary” or three-month duration. Notwithstanding the absence of any mention of temporary duration in the contract, it does specify a primary duration of only three months and the accompanying letter, together with the understanding of the contracting parties, identified that the appointment was for three months.

151. An extension under cl 7(4) of the Regulations would have been quite extraordinary. Apart from the foregoing, the circumstances of the advertising of the longer term position was not part of a process in which there was a spill of all positions and current appointments were regarded as “locum” appointments. Each of the three-month appointment and the longer term appointment were part of the one quinquennium and were for the same position, but for the duration.

152. It is necessary to deal more fully with the judgment of Young CJ in Eq in Woodgate, supra. It is possible, although it is unnecessary to make any finding in this regard, that his Honour may have been misled, at least in relation to his thinking, by Counsel’s reference to the positions as “temporary” and “permanent”. The reasons for judgment make clear, albeit somewhat indirectly, that the series of temporary appointments were for periods up to five months and the position, described by his Honour as “permanent”, was for a period of three years. [43]

     43. See Woodgate, supra, at [2]-[6].

153. The position and contract relating to the “temporary” appointments and with which Young CJ in Eq was dealing, made clear that: it was a temporary appointment; should not be considered to provide any advantage or right to the appointee should a staff specialist or VMO appointment before it was advertised and recruited; it is aimed at supporting the Department and its current caseload. As earlier stated, it was described in the contract pertaining to the temporary position as a “locum” position.

154. His Honour dealt with use of the word “locum” and construed it to mean “in place of some other person rather than meaning that the person appointed has some status by himself or herself”. [44] I accept that meaning, and note that the word is not used in relation to any position with which the Court is dealing in these proceedings.

     44. Woodgate, supra, at [22].

155. One can imagine a number of situations in which a “locum” would be appointed. The term is used often to refer to pharmacists, doctors and other professionals.

156. If a VMO went on leave, for example, annual holidays; long service leave; maternity leave or parental leave; or sick leave, the appointment of a locum to take the place of the “permanent” appointee would not be unusual. In those circumstances, when the “permanent appointee” returned from leave; or sick leave, there would be no subsequent appointment; the “permanent appointee” would simply continue the appointment previously held. As a consequence, the position of “re-appointment” would never arise.

157. In Woodgate, supra, the term “locum” was used somewhat unusually, but not incorrectly. It referred to a situation where there was a spill of all relevant positions at the hospital and temporary appointments were made to deal with the current caseload, without any indication that a more permanent position would ever be offered or approved. In this case, the “three-month” appointment was always part of a process for continuation of the position for as long as there was financial approval and was, quite intentionally, designed to continue the caseload of Dr Freeman undertaken in his academic position.

158. That with which his Honour was dealing was clearly a “temporary” position, not on account of the duration of the position, but on account of the very description of the position itself. No party suggests the Court, as presently constituted, is bound by the judgment in Woodgate.

159. The Court notes that, in the circumstances with which the Court is now dealing, the three-month appointment was predicated on the basis of there would be an appointment for a longer-term thereafter. The terms of the contract and appointment were not, by their nature, “temporary”.

160. It is necessary to examine the provisions of the Act, which have been recited above. The term “visiting practitioner” is defined in s 76 of the Act. It is clear that the defined term does not seek to differentiate between permanent and temporary appointees. Nor does it differentiate between visiting practitioners that are appointed for a shorter time and those that are appointed for a longer period.

161. The only kinds of visiting practitioners to which the Act refers are, on the one hand, those under a service contract, and, on the other hand, those on otherwise than under a service contract. Further, a “visiting medical officer” is defined in s 78 of the Act as a practitioner appointed under a service contract to provide defined services. Thus, VMOs do not separate into those appointed under a service contract and those not under a service contract. VMOs are always under a service contract. [45]

     45. Health Services Act 1997 s 78

162. It is unnecessary to drill down into the meaning of the term “service contract”. It is sufficient, for present purposes, to note that the definition of service contract, for the purpose of defining visiting practitioners and a VMO, does not differentiate between those appointed for any particular duration, whether it be for three months or five years. [46]

     46. Health Services Act 1997 s 80.

163. The most relevant provisions are those contained in ss 105 and 106, each of which are recited above. The terms of s 105(1)(b) refer to a decision in which a public health organisation (in this case the SLHD) “does not reappoint … as a visiting practitioner”. The plain meaning is unqualified.

164. It would have been extremely easy for the legislature to define the decision as “not re-appointing to a position held as a visiting practitioner”, but it does not. The terms of s 105(1)(b) reflect the terms of s 33H(1)(b) of the Public Hospitals Act1929 (NSW), which it replaced.

165. Further, it would have been very easy for the legislature to craft the paragraph in a manner which reflects the submission of the defendant by referring to “a position of the same kind”. The legislature has not.

166. The difficulty with reading s 105(1)(b) in the terms suggested by the first defendant is that it significantly affects the utility of the provisions of s 106(2)(a).

167. Once the position is reached where a public health organisation does not re-appoint a particular person as a visiting practitioner, then the provisions of s 106(1) operate so that, if the person is dissatisfied with such a decision, the person may appeal to the Minister against that decision. Again, neither s 105(1) nor s 106(1) limits the decision or the right of appeal to a particular kind of position or to the same kind of position or to a particular kind of visiting practitioner.

168. Further, the qualification to the right to appeal that is contained in s 106(2)(a) is a qualification that denies an appeal in circumstances where the decision-making organisation “has ceased to offer appointments of the kind to which the person seeks re-appointment”. This is a significantly narrower qualification than that suggested as being implied by the terms of s 106(1) or, s 105(1)(b) of the Act. There may be positions of a kind offered by the decision-making organisation, without the decision-making organisation “ceasing to offer appointments of that kind”. Further, it is “appointments” of that kind that must cease, not “positions”.

169. To utilise a fairly obvious example to anyone who is familiar with hospital organisations, let us assume there are seven VMO positions in orthopaedics and the SLHD decides to reduce the number of positions from seven to five. All seven of the appointees apply for that position, albeit that the position is slightly different in terms of its duties and obligations. The organisation would not have “ceased to offer appointments of the kind”, even though it had reduced the number of appointments to be made and s 106(2)(a) would not operate to deny a right of appeal.

170. Taking an even more obvious circumstance, assume, for present purposes, that neonatology is a subspecialty of paediatrics. Further, assume a hospital operates a Neonatal Intensive Care (“NIC”) Unit at the most sophisticated level.

171. Further again, assume that the hospital decides, for operational reasons, to reduce the level of sophistication of the NIC Unit. Instead of five neonatologists, each of which is engaged as a VMO, it decides to staff the NIC Unit with two neonatologists and three paediatricians.

172. The positions are advertised. Each of the current five neonatologists apply for all five positions. Two are appointed as neonatologists and the other three are not appointed.

173. Each of the other three could certainly appeal the appointment of the two neonatologists. That is so, even though one of the neonatologist’s positions is as director of the NIC Unit and the other as the deputy director of the NIC Unit. The reason an appeal could be processed is that the health organisation had not “ceased to offer appointments of the kind” to which the other neonatologists sought to be re-appointed.

174. On the other hand, if the submission of SLHD is correct and the only re-appointment for which there is a right of appeal is a re-appointment to a position of the same kind, there would be no appeal. In other words, destroying s 106(1) of the Act in a way that confines the right of appeal to a position “of the same kind” would render s 106(2)(a) otiose.

148. There are more obvious reasons why the submission to qualify the right of appeal in s 106(1) ought not to be accepted. The first defendant relies upon the provisions of the Regulations that differentiate between a position of three months and a position longer than three months.

149. While the Court makes no criticism, there is some inconsistency in the phraseology. The advertising requirement in cl 5(1) through to cl 5(3) apply to appointments, inter alia, that are to be held for “more than six months”.

150. Part 15 of the Policy Directive deals with appointments. Interestingly cl 15.2, recited above, differentiates between “new applicants” or “existing appointees”. It does not differentiate in terms of the manner in which the application process alters between existing appointees of one class as distinct from existing employees of another class.

151. Further, cl 3.1.1 deals with a temporary appointment for a period “not exceeding three months” but confines any extension to one further single three-month period. As a consequence, the Guidelines do not apply to a “three-month appointment”, which by definition is “not more than three months”. A person could be appointed to three appointments each of which is three months in duration.

152. There seems to be some inconsistency in identifying the duration, in that, from time to time, the Policy Directive refers to less than three months [47] and on other occasions “not more than three months”, but the “temporary” position occupied by the plaintiff was not “less than three months” – it was exactly three months - as a consequence of which cl 1.15 through to 1.17[48] are required to be completed and that includes: the availability of the written application: CV; because it is a specialist position, a member of the selection panel from the specialty; and a convenor of the selection panel that has completed recruitment and selection training.

     47. See cl 8.2.

     48. Summarised at [29] above.

153. But the differences, whether or not “less than three months” includes an appointment for exactly three months, are relevantly immaterial. Reading the Guidelines and the Regulations together, a “temporary” appointment of six months would be required to have completed the Critical Actions Compliance Declaration (Appendix 1). Moreover it would still not need to be advertised. [49]

     49. Regulations cl 5(4)(b).

154. In other words, adopting the submission of the SLHD, treating the duration of an appointment as a factor that would allow for a position not to be “of the same kind” and confining appeals to re-appointment to a position of the same kind, would introduce a level of complexity and uncertainty that is not, it would seem, consistent with the harmonious operation of the Act, the Regulations and the Guidelines.

155. There are more fundamental reasons why such an implication should not be adopted. If the SLHD submission is correct, then an appeal against non-re-appointment would arise if the positions are “of the same kind”, but would not arise if the positions are not “of the same kind”.

156. The SLHD submits that whether a position is of the same kind requires a determination or evaluation of the position bearing in mind the duration of the position as a factor. As stated above, this introduces a level of uncertainty that is not expressed in the Act. Bearing in mind duration as a factor, the SLHD submits that a three-month position is a position of a very different kind to a position for just under four years. The SLHD does not specify at what point in time the positions become the same.

157. Nevertheless, assume the approval was granted and the SLHD advertised, or did not advertise, but appointed, for a further three-month position. The submission of SLHD would necessitate a finding that the non-re-appointment to a further three-month position could be the subject of appeal, because it is the same kind of position, but the non-re-appointment to the three-and-a-half year position could not be appealed. The right of appeal does not depend on whether the subsequent position has been advertised.

158. Moreover, if the three-month position is not a position “of the same kind” as a four-year position, then a VMO who holds a current four-year position could not appeal a non-appointment to a three-month position, which the SLHD determined would be the duration of future appointments.

159. Of course, it may be, if the position is not “of the same kind” then a decision by the SLHD not to offer three or four-year appointments, but, rather, to offer only six-month appointments, would then be covered by the provisions of s 106(2)(a), because the SLHD has “ceased to offer appointments of the kind” to which the person seeks re-appointment.

160. Reading the Act as a whole, such an operation should not be the outcome of the construction of the Act. I turn then to the mischief to which these provisions are directed.

161. The first and most obvious comment is that the Act grants an appeal against non-reappointment as a visiting practitioner. The qualification for which the SLHD agitates introduces an unnecessary complexity that is not expressed in the Act. More importantly, a right of appeal does not give any current VMO, or visiting practitioner, any preference for appointment. It only grants a right to have another person appointed reconsidered independently.

162. It is clear from the Second Reading Speech and a reading of the Act as a whole that the legislature is seeking to facilitate appointment on merit. The existence of a right of appeal by the plaintiff against his non-re-appointment to the same position for the remainder of the quinquennium does not detract from appointment on the basis of merit. On the contrary, it facilitates it.

163. The purpose of a right of appeal is to overcome any suggestion of inappropriate subjective elements being used in a manner that is inconsistent with an appointment on merit. The current situation is a perfect example.

164. The plaintiff says that certain members of the Selection Committee were inappropriate to be on the Committee because of past dealings and/or bias or the perception of it. An appeal to a Review Committee ensures or limits the use of inappropriate subjective elements in the selection process. The process is then conducted solely on the basis of merit.

165. Of course, people may differ as to their view as to merit, but that is not an issue that qualifies the foregoing. An interpretation of the Act that grants a right of appeal, notwithstanding a significant difference in the duration of two positions, facilitates merit appointments and prevents or limits appointments on factors other than merit. As that is the purpose of the promulgation of these sections and part of the purpose of the Act, it should be adopted as a construction that reflects the intention of the legislature.

166. Over and above the foregoing, it is clear from the terms of Exhibit 2, [50] the Approval Decision, that the position held by the plaintiff for a period of three months and the position advertised for a period of just under four years were the same position. The plaintiff’s occupation of the position and duties to be performed is part of the reasoning process for the approval and the description of the positions.

     50. See [25] of these Reasons, infra.

167. Lastly, while not directly relevant, the provisions of s 106(3) of the Act tend to support the proposition that the right of appeal is not “for the same position” or for the “same kind of position” as it defines a decision not to re-appoint a person to include a failure to “re-appoint a person … on or before his or her appointment expires”. Thus, another position of VMO in Vascular Surgery could be subject to application and, if not appointed, an appeal.

168. Another matter needs attention. The Committee decided the question posited to it by the Minister. The Court has already commented on whether that process was open under the Act.

169. Assuming, for present purposes, that the process was countenanced by the provisions of the Act, then the provisions of s 111(2) of the Act would seem to apply. The terms of s 111(2) of the Act provide that the decision of the Chairperson of the Committee, “on any question of law or procedure” that arises before a Committee, is to be taken to be the decision of the Committee. It is unclear, given that provision, why there was a decision of the Committee as a whole, including a dissenting opinion.

170. Even if the Court were in error in the foregoing analysis, there is another reason the plaintiff should succeed. The SLHD has not defined or sought to define the term “position”, except by reference to Woodgate. Accepting for this purpose only, the view expressed by Young CJ in Eq that to “reappoint” is to “appoint again”,[51] then the plaintiff has not been “appointed again” as a VMO.

     51. Woodgate, supra, at [19].

171. Even accepting the Cambridge Dictionary definition on which SLHD relied, the analysis is similar. The SLHD submits that the factor of duration negates the finding that the VMO would be “continuing in a particular job”. [52]

     52. See above at [74].

172. It is, on the SLHD submission, not the same job. There is no suggestion of that in the legislation; nor in the Regulations. Whether a position or job is “the same” has been, in slightly different contexts, the subject of significant authority.

173. Whether a job or position is the same does not depend on an alteration in the employer’s identity. [53] Further, a position or job, in a similar context to the circumstances in these proceedings, has been held to be an aggregation of the duties and responsibilities. In other words, “positions” or “job” has traditionally been defined by the work performed. [54]

     53. Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10.

     54. Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 125 FCR 9; [2002] FCAFC 193 at [24] – [28].

174. Given that, at least in part, these provisions facilitate security of engagement and non-dismissal/re-appointment on other than the ground of merit, some broad analogy or comfort may be taken from the jurisdiction relating to entitlement to redundancy [55] and reinstatement. In the latter area, the High Court has accepted the Federal Court view in Commonwealth Bank of Australia v Finance Sector Union of Australia, supra, and noted that a broad meaning should be given to the terms “reappoint” and “position”. [56]

     55. See Amcor Limited, supra.

     56. Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22.

175. Here the work to be performed and the responsibilities of the position, together with the obligations of the parties, are identical. The “position” is the same and the plaintiff should succeed even if “of the same kind” is an implied qualification to the term “position”, which, in turn, the SLHD submits should quality the term “re-appoint” in s 105(1)(b) of the Act and qualify or limit the right of appeal conferred by s 106(1) of the Act.

176. The submission of SLHD that the longer-term position was a “new appointment”, and/or advertised, does not assist its position. Every appointment longer than six months is advertised. And every such appointment is a new appointment, to be decided on the basis of merit. Whoever is appointed, ultimately, to the advertised position will need to re-apply for any position offered for the next quinquennium.

177. For the foregoing reasons, judicial review should result in orders that make clear that there was a right of appeal by the plaintiff, Dr Freeman, against the decision of the Selection Committee not to “re-appoint” Dr Freeman to the position offered for the remainder of the quinquennium. Necessarily, the foregoing does not determine the merits of Dr Freeman’s application. Nor does it determine that Dr Freeman is the candidate, who, on the basis of merit, should have been or should be appointed to the position. That is a matter for the Committee, presumably differently constituted, to determine. The constitution of the Committee is not a matter on which any of the parties sought orders and will not be part of the orders granted.

178. The Court makes the following orders:

1. Judgment for the plaintiff;

2. Pursuant to the provisions of s 75 of the Supreme Court Act 1970 (NSW), a declaration that the plaintiff possesses a right of appeal from the decision not to appoint him to the position of Visiting Medical Officer, Concord Repatriation General Hospital, being the position with a Requisition ID of REQ141588;

3. Pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW), the decision of the second defendant of 9 September 2020 is quashed;

4. Pursuant to the terms of s 65 and s 69 of the Supreme Court Act 1970 (NSW), the Minister refer the appeal of the plaintiff in relation to his non-re-appointment to Position ID REQ141588, being a Visiting Medical Officer, Department of Vascular Surgery, Concord Repatriation General Hospital to a Review Committee;

5. The first defendant pay the plaintiff’s costs of and incidental to these proceedings.

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Endnotes

Decision last updated: 26 April 2021