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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWSC 423
Decision Date: 26 April 2021

CaseChat Overview and Summary

In Freeman v Sydney Local Health District, the appellant challenged a decision by the Review Committee under the Health Services Act 1997 (NSW). The dispute centred on the Committee's finding that it had no jurisdiction to review the decision of the Sydney Local Health District to not re-appoint the appellant. The appellant argued that the Committee's decision was a jurisdictional error, as well as an error of law on the face of the record, and that the Committee failed to exercise its duty and jurisdiction. The matter was heard by the NSW Supreme Court.

The primary legal issues before the Court were whether the Review Committee's determination that it had no jurisdiction to review the decision was a jurisdictional error, and whether the statutory interpretation of the term "re-appoint" in the Health Services Act 1997 (NSW) supported the Committee's finding that the subsequent position was not "of the same kind". The Court considered the plain and grammatical meaning of the relevant statutory provisions, as well as the legislative intention and the use of Second Reading Speeches to aid in statutory construction.

The Court found that the Review Committee's decision was indeed a jurisdictional error, as it had failed to exercise its duty and jurisdiction by not considering the appellant's application. The Court also held that the statutory interpretation of "re-appoint" in the Health Services Act 1997 (NSW) did not support the Committee's finding that the subsequent position was not "of the same kind". Consequently, the Court quashed the Review Committee's decision and remitted the matter back to the Committee for further consideration in light of the Court's findings.

Orders