Lorang v Mater Misericordiae Hospital Ltd

[1995] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney           No S102 of 1994

B e t w e e n -

HENRI FRANS FREDERIK LORANG

Applicant

and

MATER MISERICORDIAE HOSPITAL LIMITED

First Respondent

EQUAL OPPORTUNITY TRIBUNAL

Second Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 2.25 PM

Copyright in the High Court of Australia

MR S.J. GAGELER:   If the Court pleases, I appear for the applicant in this matter.  (instructed by Tress Cocks & Maddox).

MR W.H. NICHOLAS, QC: If the Court pleases, I appear with my learned friend, MS P.R. NASH, for the first respondent.  (instructed by Hunt & Hunt) 

MASON CJ:   There is no appearance for the second respondent, but the Deputy Registrar has been informed by the Crown Solicitor’s Office that the Equal Opportunity Tribunal does not wish to be represented at the hearing and will submit to any order of the Court, save as to cost.  Mr Gageler.

MR GAGELER:   If the Court pleases, this case raises a short point of statutory interpretation.  The point is, what does it mean to retire an employee from employment contrary to section 49ZV of the Anti-Discrimination Act of New South Wales in a statutory context where employment is defined to mean work under a contract for services, where the meaning of retirement is said to vary according to the particular circumstances and where the particular statutory prohibition is against retirement on the ground of age.

The ratio of the majority decision of the Court of Appeal appears at page 55 of the application book between lines 12 and 22.  What is there said in the judgment of Mr Justice Clarke, with whom Chief Justice Gleeson agreed is:

What is clear in the section is that in order for the provisions of s49ZV to be attracted there must be an existing employment, whether in the strict sense or a contract for services, from which the person to whom the section refers, for instance, retires the employee.  By way of emphasis, one could hardly retire an employee from an employment which is not in existence.  Whether the term ‘employment’ is understood in the narrow or wider sense it necessarily involves an agreement under which an identified employer employs an identified employee.  The section is clearly dealing with conduct which affects, or may affect, an existing status as an employee under a contract under employment.

Conversely the section has nothing to say about a possible future contract of employment or future contracts of employment.

Now what is there being said, in effect, is that for the section to apply there must be conduct which affects a particular existing contract of employment.  Now if that is right, then to terminate a contract of employment on the ground of a person’s age is a breach of the section.  To refuse to renew a contract on the ground of a person’s age is not a breach of the section, even though section 49ZU(4) specifically says that:

the meaning of retirement may vary according to the particular circumstances.

If that is right, then it means that the prohibition in section 49ZV can have no practical application to a vast number of people whose work is on a casual basis.  That is because it would not prohibit an employer from simply not re-employing a worker from one occasion to the next.  For example, a person who had worked for 20 years cleaning offices, stacking grocery shelves, mowing lawns at a particular place and who turns 50, 55 or 60, could be told with impunity, “You are too old, do not come back next week”. 

Now, as a matter of ordinary language, in my submission, if one asks the person in the street what has happened, the answer would be that person has been retired from employment.  According, however, to the majority of the Court of Appeal, there would be no breach of section 49ZV if any contract between the employer and the particular casual worker was only one which existed from week to week.  Now the decision of the Court of Appeal ‑ ‑ ‑

BRENNAN J:   If that is the point you wish to agitate, is this a suitable vehicle for it because here the relevant contracts are ones with patients, are they not?

MR GAGELER:   Yes, it is, and I am about to move to another point that elaborates that. 

BRENNAN J:    On the first point.

MR GAGELER:    Your Honour, yes, it is a suitable vehicle because it raises precisely the issue upon which the Court of Appeal decided the matter; that is, the ratio of the decision of the Court of Appeal goes to the precise point that I have just elaborated.  There is no issue, so far as I understand, between the applicant and the respondent but that the respondent is a person to whom section 49ZV can apply; that is section 49ZV is not limited to the relationship between the employer, however defined, and the employee, however defined, but casts an obligation on any person who may stand outside that relationship, not to retire a person from employment.  So it encapsulates the scenario that I have just addressed but it goes beyond that scenario and deals with third parties who may have influence over the ability of the employee, as defined, to work. 

Going on to the next point, your Honours, the decision of the Court of Appeal also means that the section can have no practical application to the multitude of people whose work consists of a series of short term contracts for services.  Those people include not only doctors, accountants, taxi drivers, tradesmen of all descriptions.  At any point in time it will be a matter of chance whether a person like that is engaged in a particular contract for services.

In paragraph 13 of my written submissions I give the example of a taxi driver who hires a taxi from its owner on a daily basis and is told by the owner to stop driving when he turns 65.  If that occurs at a point in the day when the taxi is engaged, then according to the reasoning of the Court of Appeal, that would be a breach of the section.  If it occurs at the end of the day, or at a point in the day when the taxi is empty, there would be no breach of the section.

Your Honours, if that is right, then in my submission it would be an extraordinary result, given that the legislature here in section 4(1) has specifically defined “employment” to include work under a contract for services and has specifically defined “services” to include services relating to transport or travel as well as services relating to any profession or trade and also, as I emphasise again, given that the legislature in section 49ZU(4) has specifically given a flexible meaning to retirement.

BRENNAN J:   Take your case of the taxi driver who hires a taxi from its owner.

MR GAGELER:   Yes.

BRENNAN J:   The owner would have no right to tell him to stop driving whilst he was driving a fare.  He has hired the cab.  He is in no relationship of employment.

MR GAGELER:   Your Honour, the taxi driver hires the cab from the taxi owner; the taxi owner, at the end of the day we will say, says, “You may not use my cab any more because you are too old.  I do not want you driving”.

BRENNAN J:   Or I am not going to renew your lease of my cab.

MR GAGELER:   Exactly, exactly.  The question is, what is the effect - maybe not the statutory question but may I ask - what is the effect on the taxi driver?  The effect on the taxi driver is that the employment of that taxi driver ‑ ‑ ‑

BRENNAN J:   By whom?

MR GAGELER:   By the persons who he takes in the taxi from time to time, is terminated.  He is no longer able to engage in work of that character.  Your Honour, that really ‑ ‑ ‑

BRENNAN J:   You are equating employment with work then?

MR GAGELER:   Entirely, your Honour, because that is what the statute, in my submission, says.  The construction which is involved, according to my submission, is simply this:  you look at section 4(1) and it says:

“employment” includes work under a contract for services.

By virtue of section 8(b) of the Interpretation Act, the singular includes the plural and that is nothing more than a statement of the ordinary principle of interpretation.  There is no difficulty in reading the definition of “employment” in section 4(1) as employment includes work under contracts for services.

The term “employee” is not a defined expression.  The only defined expression is “employment”.  “Employee” is simply a cognate word and can be put to one side.   An employee is simply a person who is in employment.  Now the emphasis of the definition of employment, in my submission, is work.  Employment includes work under a contract for services.

BRENNAN J:   So that the barrister’s wife says to him, “Really John, you are past it,” is guilty of an offence.

MR GAGELER:   No, there is no offence created by this Act, your Honour.

BRENNAN J:   Well, he is guilty of a breach of the section.

MR GAGELER:   That would be so, your Honour, whether or not my construction is adopted.  That is, if I can take someone who is undoubtedly in an employment relationship and who is a public servant, for example, undoubtedly covered by this, and whose wife says, “Really John, you are past it.  You should retire”, potentially, your Honour, it could be said to fall within the section.

So the answer is yes, your Honour, but I do not need to get into that to deal with my argument.  It is an argument perhaps against the entire application of the section in any circumstances, even those where it uncontroversially applies.

TOOHEY J:   Mr Gageler, is the term “retire” defined anywhere?

MR GAGELER:   Section 49ZU(4) refers to retirement in a way, your Honour, which I call in aid, because it says:

In the operation of this Part in relation to the retirement of an employee or class of employees, the meaning of retirement may vary according to the particular circumstances.

That is why, in my submission, your Honour, it is extraordinary to say, as the Court of Appeal is really saying in this case, that there can only be retirement where there is a termination of an existing contract.  That is what they are saying.

TOOHEY J:   I was wondering whether the consequences that you suggest that flow from the Court of Appeal’s decision necessarily do flow, particularly in the standard sort of contract of service provision.

MR GAGELER:   What I say appears to accord with what his Honour Justice Kirby saw as the consequence of the decision of the majority.  But as a matter of logic, if the passage that I have read to your Honours stands as the ratio of this case binding upon the Tribunal and all courts in New South Wales, this passage lays down the law, not just for people in the position of Dr Lorang, but also for the people in the position of casual employment to which I initially referred.  That is, there must be a particular existing contract of employment.  Unless you can find that, and you find it has been terminated or there is conduct seeking to have that contract terminated, then there is no breach of the section.

TOOHEY J:   I rather thought you were putting it on a wider basis than casual employment in suggesting that in the case, say, of a weekly hiring, at the end of week one and before the beginning of week two, one could identify that period, the employer could say to the employee, “I do not propose to re-engage you” and that this decision would have a consequence that such action would not be in breach of the Act.

MR GAGELER:   Yes.

TOOHEY J:   I do not know, you may well be right, but  I wonder whether in fact that sort of consequence does flow inevitably from the decision in this case.

MR GAGELER:   Your Honours, the passage that I have read encapsulates the reasoning both of the majority of the Court of Appeal and of the judge at first instance, that is there must be a particular existing contract of employment.  Now, if the contract of employment is only for a week, that is it is terminated at the end of the week and by habit it is renewed, but in legal terms it is only a contract that goes from one week and then a new contract is made the next week, the non‑renewal of that contract - that is one contract having terminated and another contract not being brought into existence - would not be contrary to this section according to that reasoning.

BRENNAN J:   Mr Gageler, what do you say about this Act conveying a contrary intention to that of the Acts Interpretation Act with respect to contract of services and contracts of services?

MR GAGELER:   Interestingly, your Honour, the particular provision of the Acts Interpretation Act, section 8(b) to which I have referred, does not say “Subject to the contrary intention”.  It is simply stating a general rule.  But accepting, for the purpose of answering your Honour’s question on a second level, that it may be capable of being overcome by a contrary intention in the Acts Interpretation Act, it would be a surprising result, in my submission, to find a contrary intention here, given that the definition that we are concerned with is:

“employment” includes work under a contract for services.

Then the word “services” is defined to include the sorts of things that habitually involve short term contracts.  So there are:

(c)  services relating to transport or travel;

(d)  services of any profession or trade;

which, in their nature, are short term services, your Honour. 

BRENNAN J:   Maybe.

MR GAGELER:   Generally they would be, so far as tradesmen are concerned.  A contract for services of a tradesman normally involves asking an electrician to come around or a boilermaker to do a particular job; that sort of thing.  It is different and more expansive than simply a contract of service of a tradesman which would, of course, generally not be short term.

Beyond that, your Honour, you can ask in the context of Part 4E of the Act, in particular, what is it that the legislature is trying to achieve.  And what it is trying to achieve, in my submission, as set out in the second reading speech that Justice Kirby quoted at some length here, is to allow people to remain at work and not be subjected to compulsory retirement on the grounds of their age.  The emphasis of the legislature - and one can see it in the definition of “employment” - is on being able to work.

TOOHEY J:   I am still a bit troubled by the breadth of the consequences that you suggest flow from this decision and I appreciate the force of what you are saying about the generality in which Justice Clarke has expressed himself, but this was a case which turned very much on its own facts, did it not, in so far as there was no contract between the hospital and the practitioner?

The hospital provided facilities for which the practitioner made no payment and the practitioner was not called upon to account to the hospital in respect of any fees received.  To what extent is that at the heart of the Court of Appeal’s decision.

MR GAGELER:   Not at all, in my submission, not at all.  Because what is found, all of that - the issues that may or may not arise from that scenario, in my submission, on analysis they really do not emerge as issues at all because of the clarity with which section 49ZV is expressed, that is any person who causes an employee to retire from employment - they are all assumed in my favour at the top of page 55.  The ratio of the case is on that much broader basis and ‑ ‑ ‑

TOOHEY J:   What did you mean, Mr Gageler, when you said having regard to the breadth of - or the reference to any person?  .....49ZB, are you?

MR GAGELER:   I think your Honour’s concern arises out of any conduct of the hospital here standing outside the relationship of employee and employer, however defined, that is, the employment of Dr Lorang is not employment that he has vis-a-vis his patients from time to time.  I thought that your Honours concern was that here there was the conduct of a third party which affects the relationship of Dr Lorang with his patients from time to time.  In my submission, if I am correct in my construction of the word “employment”, there is no difficulty in seeing the conduct of that third party as being the conduct of a person which is declared unlawful under section 49ZB.

TOOHEY J:   But it is only unlawful if that person retires an employee from employment.

MR GAGELER:   Yes.

TOOHEY J:   Well it may be that on the facts of the case the person has not retired the employee from employment.  Somebody else has done something which may impede the ability of the employee to engage in future employment.

MR GAGELER:   Yes.

TOOHEY J:   That is why I perhaps seem to be over stressing the facts of this case.  Maybe the judgment of the Court of Appeal has to be read very much against the peculiar circumstances here.

MR GAGELER:   Your Honour, it is unlikely, given the nature of this case, that the Court of Appeal’s decision will be so read.  It is very explicit and very clear and it is on that wider basis and it will be binding on the Tribunal.  Given the nature of the people that I have identified as falling within this class of affected people, that is, tradesmen and others, it is unlikely that another case will come along that will successfully go through the gamut of the Tribunal, a judge at first instance and then the Court of Appeal to have what is a very clear, explicit statement overturned and explained by reference to its specific facts.

Your Honours I see I have a read light.  There is probably more I could say but ‑ ‑ ‑

MASON CJ:   Is there anything else you wish to put, having regard to the fact that the red light is showing even more strongly than usual?

MR GAGELER:   No, I think it would simply be a matter of elaboration, your Honour.  No, I think there is no new point.

MASON CJ:   Thank you, Mr Gageler.  Mr Nicholas.

MR NICHOLAS:   Your Honours, we would, with respect, have very little to add to what we have put in our notes, your Honours.

MASON CJ:   What do you say about this last point that has emerged, that even if the prospects of the proposed appeal succeeding might not be described as impressive, none the less a real difficulty may have arisen by reason of the Court of Appeal expressing itself in terms of the construction of the provision in a way that goes too far and in a way that will, as it were, ensure that for the future cases that might well be within the purview of the legislation are considered to fall outside it.

MR NICHOLAS:   Your Honour, we say that on analysis of their judgment, with respect, it does not go as far as has been put.  What we say ‑ ‑ ‑

MASON CJ:   Well now, can you demonstrate that to us.

MR NICHOLAS:   I will try to do that, your Honour.  May I bring you to page 55, it is Mr Justice Clarke’s judgment.  My friend has read, I think, from line 13 or 14, the paragraph beginning “What is clear”, and I think his submissions have principally addressed to that statement.  His Honour, though, at line 21, goes on to say this:

Conversely the section has nothing to say about a possible future contract of employment or future contracts of employment.  Nothing in it renders unlawful conduct which impedes, or may impede, the entry by a person into a future contract of employment.

Your Honours, what we would say about that is particularly anchored to the situation in this case where, if one understands the circumstances in which Dr Lorang was appointed to the hospital, he was accredited to perform anaesthetics at the hospital if and when a patient engaged him to do so.  They were the particular facts recognised by and accepted by my friend and, indeed, dealt with by His Honour Mr Justice Clarke in evidence at pages 52 and 53.  And he sets out on those pages from the undisputed evidence the matters relating to Dr Lorang’s particular situation, the effect of his accreditation and matters going to the circumstances in which he availed himself of the facilities of the hospital from time to time.

And so we say, your Honours, that it really is a situation which is clearly directed to the peculiar set of facts that confronted the Court. And it is nevertheless - perhaps in better answer to your Honour the Chief Justice - on the construction of the legislation, correct, we would respectfully say, to put, as his Honour did, that this parcel of legislation is not directed to hypothetical situations because, with respect, it is inoperable otherwise directed to actual situations and an actual situation did not exist in the circumstances of this case.

We would get some support for that,, in addition to just simply the plain language of the provisions, your Honour, by reference to 49ZU(4).  My friend has taken you to that to indicate that the legislature intends that the meaning of retirement may vary according to the particular circumstances.  So that plainly is intended to have some flexible operation.

It does not say the same thing in relation to employment and employment is given no flexibility beyond perhaps the extended definition to which you have already been taken.  So we say, your Honours, that it is deliberate in order to enable these provisions to work in practice, that it is directed to a situation which can be identified and dealt with, by which conduct of the kind contemplated by 49ZV can be measured and determined.

TOOHEY J:   If the section applies to the ordinary contract for services on a weekly or other periodic basis, so that at the end of any period of employment the employer can say to the employee, “I do not propose to re-engage you”, then the section really is pretty useless, is it not?

MR NICHOLAS:   Well, your Honour, we would say ‑ ‑ ‑

TOOHEY J:   I was not saying that that is the result but it is the troubling implications of the way in which the Court of Appeal’s judgment is couched.  If it can be read as referring to the particular fact situation here and the anticipation of future employment, then it is an entirely different picture.

MR NICHOLAS:   Your Honours, the way both the Chief Justice and Mr Justice Clarke dealt with it was on the basis of the agreed assumptions and concessions as to the particular situation that they were dealing with.  So we got rid of any factual situation which would suggest that the application of the by-law resulted in the cessation of a particular employment activity as that term is usually understood.

We would say, with great respect, that there is nothing in the legislation which would warrant a departure from the ordinary understanding of that term.  Indeed, as one makes ones way through these various provisions, it is quite plain that it is directed to an actual rather than a hypothetical situation.  One goes through, for example, compulsory retirement from employment on the ground of age; that we would suggest describes the situation which part 4E is intended to deal with, and then you have various examples as the provisions of the Act come into effect, all of which, we say, make it very plain that it is addressing interference with an actual situation.

Thus we say, with respect, Mr Justice Clarke was correct when he made the observation that I have taken you to at page 55 that the section really has nothing to say about future contract of employment and so on.

TOOHEY J:   Well it depends, really, how you read that sentence.  Whether you mean future contracts of employment in the sense that no relationship of employer and employee has ever existed or has recently existed or whether you apply it to a contract for the periodic engagement of an employee ‑ ‑ ‑

MR NICHOLAS:   Well then, your Honour, I think on the preceding pages his Honour really does address the situation that I think that you have been putting to me and I have been slow to appreciate, that he is not directing himself to the situation of the weekly

contract as terminated and so on.  It is quite plain ‑ ‑ ‑

TOOHEY J:   We may not be.  It is just the language lends itself to that possible construction.

MR NICHOLAS:   I understand that, but when one reads the preceding pages - and I can take you to them if your Honour wishes - it is quite plain that he is directing himself to the situation that Dr Lorang was in as an accredited person in that hospital and the way that hospital worked.  What it did, as the evidence may explain, was provide him with an opportunity from which he could service patients to whom he rendered bills and who engaged him.

Your Honours, we would say that there is no question which warrants the grant of leave, even on the assumption that there was error on the part of the Court.  We say there was none.  It involves the construction of a New South Wales statute, its application to a particular set of facts, the circumstances in which this doctor undertook his work at this hospital.  Those are our submissions, your Honour.

MASON CJ:   Thank you, Mr Nicholas.  Yes, Mr Gageler.

MR GAGELER:   Mr Nicholas mentioned the hypothetical circumstances of Dr Lorang.  There was nothing hypothetical about his particular circumstances.  The evidence before the Tribunal was that about 25 per cent of his income came from the circumstance of his appointment at this hospital.  In the judgment of Mr Justice Kirby, his Honour pointed out that the termination of his appointment had a “devastating effect” on his real ability to perform his vocation.  So far as the question arises as to ‑ ‑ ‑

BRENNAN J:   That means that a withdrawal of any benefit that is being conferred on a person which allows him to work falls within the section.

MR GAGELER:   No.

BRENNAN J:   Does it not?

MR GAGELER:   No, I do not need to go that far.  If a person, through some arrangement, has a particular ability at a particular place to work and the ability to work at that place is withdrawn in a substantive way, terminated ‑ ‑ ‑

BRENNAN J:   Well, you call it ability to work, but really it is a privilege which is extended to that person by the person who owns the place.

MR GAGELER:   Oh yes.

BRENNAN J:   But it really turns chronological disadvantage into a real boon, does it not?

MR GAGELER:   I do not understand your Honour’s point.  Are you suggesting that people who are older are better off?

BRENNAN J:   That is right.

MR GAGELER:   No, not at all, because what is prohibited is retirement on the ground of age and if Dr Lorang was not able to perform his duties, even if that be because of his age, if he was incapable of properly performing his duties, then his employment could be terminated because he was incapable of performing his duties.  But simply to assume that a person who is 65 or even 70, your Honour, for that matter, is unable any longer to properly perform their duties is, unless it is constitutionally mandated, an unfair assumption.

BRENNAN J:   In this Court, you are pushing at an open door when you are making that submission.

MR GAGELER:   Yes.  Your Honour, so far as what the decision of the Court of Appeal actually means, I have read your Honours the clear statement in Justice Clarke’s judgment.  That was a restatement of what his Honour Justice Hulme said at first instance.  In Chief Justice Gleeson’s judgment, on the first page at page 27, lines 12 and 13, he agrees generally with Justice Clarke and then at page 29, lines 5 to 9, restates Justice Clarke’s conclusions, in my submission, in a way which is equally clear, that is:

It is accepted by counsel for the appellant that the appellant has not been forced by the respondent’s conduct to fail to perform or complete any subsisting contract to provide services.  Assuming such a contract to be a contract of employment for the purposes of the Act, no such employment of the appellant was brought to an end by the conduct of the respondent.

There, his Honour is assuming again a particular existing contract of employment.  Then in the judgment of the dissenting judge, Justice Kirby, his Honour says this at page 48, line 2:

The very narrow construction which Hulme J favoured -

which is the same construction as the majority favoured, I interpolate those words:

excludes from the protective ambit of the Act people whose “employment” involves a series of individual contracts for the provision of services, such as a taxi driver, a regular specialised tradesman or a specialist anaesthetist -

I thought I would get through the application without having to say that word -

appointed by a hospital board.

So that reading the judgment as a whole, reading the explanation in the dissenting judgment, there can be no doubt that the majority stands in that way.

MASON CJ:   Thank you, Mr Gagelar.

MR GAGELER:   Your Honours, my friend would have me draw your Honours’ attention to page 29, lines 9 to 15.  I think I read lines 4 to 8.

MASON CJ:   Without endorsing all that the majority in the Court of Appeal has said about existing employment and future contracts of employment, and notwithstanding the able argument presented by Mr Gageler for the applicant, we are not persuaded that the prospects of success of the proposed appeal are sufficient to warrant the grant of special leave to appeal.  The appeal is therefore refused.

MR NICHOLAS:   I ask for costs, your Honour.

MR GAGELER:   I do not oppose that.

MASON CJ:   You do not oppose that.  The application is refused with costs.

AT 3.04 PM THE MATTER WAS CONCLUDED