Pisano v Health Solutions (WA) Pty Ltd - [2014] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PISANO -v- HEALTH SOLUTIONS (WA) PTY LTD [2014] WASC 356

CORAM: McKECHNIE J

HEARD: 12 AUGUST 2014

DELIVERED : 26 SEPTEMBER 2014

FILE NO/S: CIV 1213 of 2013

BETWEEN: GIGLIETTO PISANO
Plaintiff
AND
HEALTH SOLUTIONS (WA) PTY LTD
Defendant

FILE NO/S :CIV 2930 of 2013

BETWEEN :GIGLIETTO PISANO
Plaintiff
AND
RAMSAY HEALTH CARE AUSTRALIA PTY LTD
Defendant

Catchwords:

Formation of contract between medical specialist and health campus - Effect of being a credentialled practitioner - Whether credentialling gives rise to a contract for payment of services and use of facilities - Implication of terms into agreement

Legislation:

Nil

Result:

Plaintiff's claims dismissed

Category: B

Representation:

CIV 1213 of 2013

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr M L Bennett

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: DLA Piper Australia

CIV 2930 of 2013

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr P J Hannan

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: DLA Piper Australia

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd XIVth (1988) 18 NSWLR 540
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20; (1977) 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council [2001] 53 NSWLR 153; (2001) NSWCA 61
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
McKECHNIE J:

How this matter comes to court

The plaintiff, Dr Pisano, is an orthopaedic surgeon who was accredited and accorded clinical privileges at Peel Health Campus. The defendants at various times were the managers of Peel Health Campus. Health Solutions (WA) Pty Ltd sold the business to Ramsay Health Care Pty Ltd in April 2013. For convenience I will refer to the Peel Health Campus as if it was the relevant entity.
However, before that date Peel Health Campus had stopped referring public patients to Dr Pisano or making theatres available to him in which to perform surgery.
Dr Pisano sued Peel Health Campus for a continuation of the rights which he says are enjoyed by him under a combination of letters and bylaws.
On 24 February 2014 a registrar ordered a trial of a preliminary issue of paragraphs 1, 2, 3, 5, 6, 7 and 8 of Dr Pisano's statement of claim.
Although the defence contains qualified admissions or non‑admissions of these paragraphs, for the purpose of trial of the preliminary issue, I accept the assertions of fact in the statement of claim as correct. They are, in any event, relatively uncontroversial.
The real matter in issue between the parties is whether a decision made on or about 28 February 2012 to reappoint the plaintiff as a credentialled practitioner with clinical privileges amounts to an agreement and what is the content of any such agreement.
Counsel for Dr Pisano summarised the issues:
3.1There was an agreement made between the plaintiff and the defendant on or about 28 February 2012 whereby the plaintiff was reappointed as a Credentialled Practitioner with Clinical Privileges as a specialist Practitioner in the fields of adult and paediatric orthopaedics for a term of 3 years expiring on 1 March 2015 ('the Agreement')
3.2Was it an implied term of that agreement or alternatively was it reasonably to be inferred from that agreement that the plaintiff's Clinical Privileges were unlimited in respect of his rights to provide specialist services to both public patients and private patients.
3.3Was it a further implied term of the Agreement or alternatively was it reasonably to be inferred from that Agreement that the defendant trading as Peel Health Campus ('the Hospital') would pay the plaintiff in accordance with its surgical schedule of fees payable by the Hospital to Credentialled Practitioners from time to time.

The trial

The trial took place on 12 August 2014 and proceeded by way of an agreed statement of facts and an agreed bundle of documents.

The statement of agreed facts

The written statement of agreed facts dated 11 August 2014 was subject to some comments from the defendant, Health Solutions (WA) Pty Ltd, and consequent amendment by Mr McGowan at the trial. I have deleted the matters the subject of those concessions.
1.The plaintiff is a medical practitioner registered pursuant to the Health Practitioners Regulations (National Law) as a specialist in the speciality field of orthopaedic surgery
2.The Honourable Antony Kevin Royston Prince as Minister for Health of State of Western Australia acting for or on behalf of the State of Western Australia (State) and Health Solutions Pty Ltd (Operator) signed a document entitled 'Peel Health Campus Health Services Agreement' dated 18 June 1997 (Peel Health Campus Services Agreement)
3.Health Solutions (WA) Pty Ltd operated Peel Health Campus from around 18 June 1997 to around May 2013 pursuant to the Peel Health Campus Services Agreement
4.Schedule 11 to the Peel Health Campus Services Agreement contained Peel Health Campus By‑Laws dated 30 October 1996 (Initial By‑Laws)
…
6.Version 2 of the Peel Health Campus By‑Laws are dated 1 March 2005 (By‑Laws Version 2)
7.On 17 September 2009 the plaintiff made a written agreement with Health Solutions (WA) Pty Ltd for the provision of medical services (2009 Agreement)
8.Included as a schedule to the 2009 Agreement was a document entitled 'Surgical schedule of fees' (Surgical Schedule of Fees)
9.As at 17 September 2009 the plaintiff was a Credentialed '[Credentialled] Practitioner' (as defined in the By‑Laws Version 2) in the category of specialist practitioner, orthopaedic surgeon
10.Version 3 of the Peel Health Campus By‑Laws is dated 16 June 2011 (By‑Laws Version 3)
11.Between 17 September 2009 and 28 February 2012 the plaintiff provided medical services to public patients at Peel Health Campus
12.Between 17 September 2009 and 28 February 2012 the plaintiff invoiced Health Solutions (WA) Pty Ltd for medical services provided by the plaintiff to public patients at Peel Health Campus
13.Between 17 September 2009 and 28 February 2012 Health Solutions (WA) Pty Ltd paid the plaintiff for medical services provided by the plaintiff to public patients at Peel Health Campus
14Health Solutions (WA) Pty Ltd by its CEO Justin Walter signed a letter addressed to the plaintiff dated 30 November 2011
…
16.Health Solutions (WA) Pty Ltd by its CEO Justin Walter signed a letter addressed to the plaintiff dated 21 December 2011
…
18.On or about 7 February 2012 the plaintiff lodged with Health Solutions (WA) Pty Ltd a medical staff accreditation form for reappointment as a 'Credentialed [Credentialled] Practitioner' (as defined in the Bylaws) in the medical speciality of orthopaedic surgery
19.Health Solutions (WA) Pty Ltd's director of medical services Aled Williams issued a memorandum to all ED medical staff at Peel Health Campus dated 21 February 2012
…
21.Health Solutions (WA) Pty Ltd by its practice manager Samantha Larmour signed a letter addressed to the plaintiff dated 28 February 2012
…
23.The plaintiff treated private patients at Peel Health Campus at a fortnightly Tuesday afternoon theatre session for a period of approximately one year from the end of the 2009 Agreement on 28 February 2012 until 12 February 2013
24.Health Solutions (WA) Pty Ltd by its CEO Justin Walter on 7 March 2012 signed a letter addressed to Carmelo Chiricosta dated 7 March 2012
25.Health Solutions (WA) Pty Ltd by its director of medical services Aled Williams on 27 November 2012 signed a letter addressed to the plaintiff
26.Health Solutions (WA) Pty Ltd ceased making any theatre session at Peel Health Campus available to the plaintiff as of 12 February 2013
27.In about April 2013 Health Solutions (WA) Pty Ltd, Ramsay Health Care Australia Pty Ltd, Jonathan Alfred Fogarty, and Mark Hilton Stowell made the assets sale agreement (Assets Sale Agreement).
To flesh out the bare bones of the statement of agreed facts it is convenient to set out the background to the dispute between Dr Pisano and Peel Health Campus.
Dr Pisano is registered under the Health Practitioner Regulation National Law (WA) Regulations 2010 as a specialist in the field of orthopaedic surgery. On 17 September 2009 Dr Pisano entered into a written agreement with Peel Health Campus for the provision of medical services (the 2009 Agreement). Dr Pisano was appointed as a Credentialled Practitioner under the Peel Health Campus By‑laws Version 2.0 in the category of specialist practitioner orthopaedic surgeon.
The 2009 Agreement incorporated a Surgical Schedule of Fees, the payment of medical services provided by Dr Pisano to public patients at Peel Health Campus. Dr Pisano invoiced Peel Health Campus for medical services provided to public patients at Peel Health Campus between 17 September 2009 and 28 February 2012. Health Solutions paid the plaintiff for medical services provided by the plaintiff to public patients at Peel Health Campus.
On 30 November 2011 Mr Justin Walter wrote to Dr Pisano (exhibit 6) advising that the 2009 Agreement would not be extended beyond 28 February 2012. Dr Pisano would not be required to provide any orthopaedic surgical services to public patients at Peel Health Campus beyond that date.
In the same letter Mr Walter invited Dr Pisano to nominate theatre sessions in respect of any private patients admitted to Peel Health Campus after 28 February 2012.
On 21 December 2011 Mr Walter wrote to Dr Pisano (exhibit 7) advising that Dr Pisano would maintain the Tuesday pm theatre list at Peel Health Campus for Dr Pisano's private patients.
As at 31 January 2012 Dr Pisano had some 51 public wait‑list patients allocated to him awaiting surgery.
On 7 February 2012 Dr Pisano lodged a medical staff accreditation form for reappointment as a Credentialled Practitioner with Peel Health Campus (exhibit 8). This document is one of the three documents essential to Dr Pisano's case.
On 28 February 2012, by email and letter, Peel Health Campus stated that Dr Pisano was recredentialled as an accredited specialist practitioner orthopaedic surgeon for a credentialling term of three years expiring on 1 March 2015. This document together with the Bylaws Version 2.0 (exhibit 5) form the other two essential documents to Dr Pisano's case.
Unknown to Dr Pisano at the time, the Director of Medical Services at Peel Health Campus, Dr Williams, issued a memorandum to all ED medical staff dated 21 February 2012 stating that as of 28 February 2012 Dr Pisano was no longer able to accept public patients into Peel Health Campus and that no more public patients should be referred to him between the date of the memorandum and 28 February 2012. He was able to have private patients referred (exhibit 10).
Dr Pisano continued to provide a service to his private patients during 2012 but on 27 November 2012 was advised by Dr Williams that the fortnightly Tuesday session allocated to him would be allocated to another surgeon after 12 February 2013. From that date he has not operated further at the campus (exhibit 11).

The three documents relied on by the plaintiff

(a) The Peel Health Campus By-Laws (exhibit 5)

These are the relevant clauses of a far more extensive document, the Peel Health Campus By‑Laws Part A:
1.DEFINITIONS AND INTERPRETATION
'Credentialled Practitioner' means a Medical practitioner or Dentist appointed or employed by the Hospital and granted Clinical Privileges. Appointment as a Credentialled Practitioner (includes all visiting and salaried Medical Practitioners) under these By-Laws is a pre‑requisite to practice at the Hospital.
…
'Clinical Privileges' means the specific medical services, surgical or dental procedures permitted to be undertaken by practitioners.
…
'Medical Council' means the medical council of practitioners who have been granted Clinical Privileges at the Hospital.
…
18.TERMS AND CONDITIONS OF APPOINTMENT
Appointment of a Credentialled Practitioner shall be conditional on the practitioner:
(a)complying with the provisions of the Act, and with the by‑laws, rules, policies and procedures of the Hospital;
(b)attending patients subject to the limits of any conditions imposed by the Board;
(c)taking all reasonable steps to ensure that adequate Hospital medical records (including appropriate discharge summaries within a clinically appropriate time) are maintained for all patients under their care in accordance with statutory and the Australian Council of Healthcare Standards requirements and contractual obligations of the Hospital either with the State or any other health fund or organisation and any other data reasonably required by the Hospital to enable it to collect revenue are satisfied;
(d)observing all reasonable requests made by the Hospital with regard to personal conduct in the Hospital and with regard to the provision of services within the Hospital;
(e)adhering to the generally accepted ethics of professional practice both in relation to colleagues and to patients under his/her care (including confidentiality);
(f)observing the general conditions of clinical practice applicable to the Hospital;
(g)maintaining an adequate level of professional indemnity membership;
(h)furnishing annually to the Hospital, evidence of professional indemnity membership;
(i)advising the Hospital should professional registration be revoked or professional indemnity membership not be renewed, or his or her appointment at any other hospital or day procedure centre alters in any way;
(j)participating in any clinical quality assurance program approved by the Medical Advisory Committee; and
(k)adhering to the rules of medical practice established by the Hospital from time to time;
(l)participating in formal on-call arrangements as required by the Hospital or by any contract;
(m)never representing in any way that they represent Health Solutions or the Hospital in any circumstances, including the use of Hospital letterhead, unless with express written permission of the Chief Executive Officer;
(n)being available, or deputising an appropriately qualified Accredited Practitioner for emergency call to the Accredited Practitioners patients;
(o)seeking the approval of the Credentials Committee in regard to any new or amended use of technology or procedures to treat patients;
(p)utilising any allocation of operating theatre time to take account of the Hospital requirements for efficiency and staffing allocation; and
(q)completion of appropriate consent procedures and completion of consent forms for all procedures requiring consent.

(b) Dr Pisano's medical staff accreditation form 7 February 2012 (exhibit 8)

The accreditation form (exhibit 8) is a Peel Health Campus form filled out in handwriting by Dr Pisano and dated 7/2/12.
Under the heading 'Term of accreditation/clinical priveleges [sic]' Dr Pisano had affirmed three years. The form then contained uncontentious personal and professional details, which had been completed by Dr Pisano, and then continues under a heading 'Scope of practice/clinical privileges please tick'. There follow a range of specialities. Dr Pisano has affirmed orthopaedic and two subcategories: Adult and Paediatric. Under 'paediatric' he has put (Selected cases principally trauma).
Other matters are included which are not relevant. Dr Pisano affirmed each clause of the agreement and signed the document.

AGREEMENT

The hospital expects all practitioners to comply with the Medical Board of the Western Australia Policy Medical Practitioners and Blood Borne Viruses. A medical practitioner who is aware that he/she is infected with a blood borne virus should not undertake exposure prone procedures. In the opinion of the Medical Board to do so would prima facie constitute unsatisfactory professional conduct in the terms of the Medical Act 1894.

I understand and abide by this Standard □ Yes

As a practitioner you have access to information relating to the company's business, the patients, employees and agents of the hospital. The hospital seeks to preserve the secrecy of this confidential information and the duty of the hospital to meet WA and Commonwealth statutory obligations in protecting the privacy of patient information.

i) A practitioner shall maintain the secrecy of the confidential information and shall prevent its unauthorised disclosure to or use by any other person, firm or company;

ii) A practitioner shall not use the confidential information for any purpose other than for the benefit of the patient or hospital during or after his or her appointment by the hospital;

iii) A practitioner shall not remove confidential business, patient, employee or agents information from the premises of the hospital without the consent of the hospital in accordance with written procedure and legislation;

iv) A practitioner shall return any or all confidential information to the hospital immediately upon being requested so to do;

v) A practitioner will adhere to hospital policies in the handling of patient information.

I understand and agree to abide by these confidentiality principles □ Yes

I authorise the hospital to include my details in the Directory which may be distributed to general practitioners in the area □ Yes

I undertake to notify the Hospital if my clinical privileges are changed at any other hospital or day procedure centre □ Yes

I authorise the Hospital, its officers and the Credentials Committee to seek information as to past experience, performance and current fitness □ Yes

I agree to provide to the Hospital up to date evidence of current medical indemnity insurance and Medical Board of WA registration □ Yes

I agree to participate in the Hospital's clinical activities □ Yes

I agree to confine my practice within the Hospital to the clinical area/s applied for □ Yes

I declare that the statements contained in this application are correct.

In applying for appointment I agree to abide by the By‑Laws of this Hospital and in on‑call roster arrangements and any terms and conditions which are attached to my appointment

□ Yes

I authorise the Credentialing and Scope of Practice Committee to verify with relevant individuals, external organisations and nominated referees the validity of all claims made, including explicit consent for the organisation to verify my declaration regarding health status, professional registration history and criminal record □ Yes

The minutes of the meeting of the Credentialling Committee on 8 February 2012 (exhibit 9) records under Item 6.1:
Re-Credentially-Dr Pisano.
Discussion: Dr Pisano has submitted paperwork for recredentialling. DMS confirmed that Dr Pisano's credentialing status remains valid.
Action Needed: No further action required.

(c) The notification of successful re‑credentialling (exhibit 11)

Dr Pisano's successful application was notified to him on 28 February 2012 by letter attached to an email (exhibit 11):
Dear Gig
Re: Credentialing at Peel Health Campus
Thank you for submitting the relevant documents in support of continuing your credentialing status at Peel Health Campus, further to clause 13.1 of Peel Health Campus' By-Laws (By-Laws).
I am pleased to confirm that you have been re-credentialed as follows:
Scope of Practice - Accredited Specialist Practitioner, Orthopaedic Surgeon (further to By-Law 10(a))
Credentialing Term - 3 years
Credentialing Expiry Date - 01 March 2015
I would like to take this opportunity to remind you that within the term of your credentialing, it is your responsibility to provide the hospital with updated copies of your Medical Board Registration and your medical indemnity upon annual renewal, further to clause 18(h) of the By-Laws.

Dr Pisano's contention

Dr Pisano focuses on the acceptance by the Board of his credentials as an orthopaedic surgeon. He argues that the notice was unqualified in its terms except as to the period over which it applied: a three year period expiring on 1 March 2015. Dr Pisano submits that the Board makes the final decision as to acceptance of a credentialled practitioner. It is submitted that the application necessarily involved an application for relevant clinical privileges to discharge the professional tasks associated with the application. Dr Pisano therefore argues that it is not necessary there should be an additional separate contract entered into between him and Peel Health Campus as the appointment and grant of clinical procedures necessarily completes the basis of a contract between Dr Pisano and the defendant. Dr Pisano says that persons other than the Board limited his practice to carry on as he had before 28 February 2012 and constituted a breach of contract because it was outside the scope and not with the authority of the Board. It was at all times open to the Board in granting Dr Pisano's application for reappointment to have limited the scope of his practice or his clinical privileges. The fact that the Board did not do so means that Dr Pisano is entitled to the relief sought. He seeks a declaration that there is an agreement in terms of the reamended statement of claim.
Mr Bennett, on behalf of Health Solutions, contends that if an agreement is to be found involving mutual promises, the reappointment of Dr Pisano as a credentialled practitioner involved only mutual promises to comply with the By‑Laws. The expressed terms of such an agreement beyond the By‑Laws was for the appointment as a specialist practitioner in the field of orthopaedics for a term of three years expiring on 1 March 2015. It is argued that no other term is to be implied or inferred into the Agreement.
In effect, the credentialling of a practitioner is simply a precondition to a contract of services between the practitioner and Peel Health Campus. The By‑Laws were a precondition to the Agreement between the State and Health Solutions to conduct Peel Health Campus as a private hospital. In the Agreement, Health Solutions covenants with the State that the By‑Laws would be complied with. By‑Laws Version 3.0 are the operative By‑Laws.
It is significant that the Credentialling Committee in assessing an application makes recommendation to the Medical Advisory Committee which is then required to also satisfy itself as to 'the professional capabilities and knowledge, current fitness and confidence held in the applicant'. A recommendation is then made to the Board whose determination is final.
Attention is drawn to By‑Law 18(b) undertaking to utilise any allocation of operating theatre time. This suggests that the allocation of theatre time is a matter entirely for Peel Health Campus.
Mr Bennett's submissions are summarised:
51.The structure and content of the By-Laws plainly presuppose that the By-Laws do not attempt to 'cover the field' of relationships between the hospital and medical practitioners. The various provisions of the By‑Laws contemplate the existence of contracts of employment (by reference to salaried practitioners) or other appointments. These make it abundantly plain that the function of the By‑Laws is to create a professional structure that assesses the qualifications and training of medical practitioners desiring to carry on any form of practice within the hospital. This is consistent with the common and ordinary meaning of the word 'credential' that is defined in the Oxford English Dictionary to mean 'evidence of a person's achievements or trustworthiness, usually in the form of certificates, references etc'.
The objective intent of the parties revealed in the factual context is the paramount consideration: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd XIVth (1988) 18 NSWLR 540, 550; Brambles Holdings Ltd v Bathurst City Council [2001] 53 NSWLR 153; (2001) NSWCA 61.
Health Solutions concedes:
59.HSWA accepts that it is likely that the objective intention of the parties was that the act of credentialing did carry with it some force or immediate effect. It satisfied the pre-requisite to practising at the Hospital. It gave rise to limited rights of appeal and contained generally the covenants entitling the Hospital in certain circumstances (for example the doctor being de‑registered) refusing him the ability to practice at the hospital. Beyond that it does no more. It does not attempt to deal with the manner of practice, the extent of practice or the terms and conditions of practice. Those implications are not necessary so as to give rise to any question of business efficacy.
Applying BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20; (1977) 180 CLR 266, adopted in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, that the terms should not be implied.
Counsel draws attention to the credentialling giving a right to practice in a certain area. It does not give unqualified rights to patients - public or private. It was a fulfilment of the prerequisite to practice but does not attempt to deal with the nature of the practice.

Ramsay Health Care's submissions

Ramsay Health Care adopts a slightly different approach to Health Solutions and argues that there was no contract. In essence, Ramsay Health Care argues that the contract is uncertain and that the arrangement is not a final agreement. As to whether there is an agreement, Ramsay Health Care argues that it is not supported by the three documents, there is no evidence that either party intended to make a concluded contract, or that they succeeded in doing so. No essential terms had been reached and Ramsay Health Care, through Mr Hannan, asks:
When would Dr Pisano provide orthopaedic services? How long would he provide them for? What was the extent or limit of the orthopaedic services? What was the payment that would be made to him in exchange for the provision of the services?
Any implied consideration under the By‑Laws given by Dr Pisano is illusory because Health Solutions had a discretion whether or not to provide him with work or theatre access. Significantly they did not provide him with public patient work or allow him the use of the operating theatre.
Ramsay Health Care also denies that there should be any implication of terms into the Agreement if such an agreement is found.

Disposition

Contrary to the submissions of Mr Hannan, the three documents relied on by Dr Pisano did create an agreement between he and Peel Health Campus.
That agreement cannot be categorised as Dr Pisano would have it. Nor can the terms for which he contends be implied into it.
The process of re‑credentialling is essentially to establish Dr Pisano's status as a person available to be considered for the provision of orthopaedic services. By accepting his application Peel Health Campus entered into an agreement with Dr Pisano. But the extent of that agreement was simply to grant clinical privileges. Peel Health Campus has not moved to alter Dr Pisano's status as a credentialled practitioner. Such an act might be a breach of the agreement.
I am generally dubious of homespun analogies but on this occasion the example given by Mr Bennett is apt. I accept Mr Bennett's analogy: Credentialling is the ticket that provides entry to the showground. It does not carry the right to ride any particular attraction. That right must be the subject of a separate agreement.
The By‑laws clearly contemplate further arrangements will be made, for example cl 18(p). The definition of clinical privileges is permissive - the medical practitioner is permitted to undertake specialist functions. No requirement arises under the By‑laws to do so.
The definition of credentialled practitioner makes plain that appointment as such is a prerequisite to practice. This contemplates that there will be another agreement governing the actual practice, patients, payment and the like.
Any allocation of operating theatre time suggests that is a matter for Peel Health Campus. There may be no allocation of operating theatre time.
The credentialling process did not, as asserted by Dr Pisano, specify the scope of the work agreed between Dr Pisano and Peel Health Campus. Rather, it specified the scope of practice. This is not a semantic difference but one of substance.
Nor did the credentialling process identify the makeup of the clinical practice, whether private or public patients or a combination.
Mr McGowan valiantly tried to deflect attention away from the agreements and arrangements that were in place prior to 2012. Of course they do not assist in objectively construing the agreement and the implied terms for which Dr Pisano contends.
But they are examples why the re‑credentialling agreement deals only with that topic, no other.
The credentialling agreement goes no further than to bind the parties to comply with the By‑laws. The By‑laws do not expressly or impliedly go further to grant unlimited rights of practice or deal with payment at all.
Dr Pisano is trying to make the credentialling agreement do the same work as the 2009 contract for delivery of and payment for medical services. That contract came to its natural end.
The work cannot be done through the device of implication of terms into the credentialling agreement. Dr Pisano cannot satisfy four of the five conditions specified in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council, the fifth not being relevant for present purposes.
The answers to the questions posed are:
3.1Yes.
3.2No.
3.3No.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PISANO -v- HEALTH SOLUTIONS (WA) PTY LTD [2014] WASC 356 (S)

CORAM: McKECHNIE J

HEARD: 26 SEPTEMBER 2014 AND ON THE PAPERS

DELIVERED : 6 NOVEMBER 2014

FILE NO/S: CIV 1213 of 2013

BETWEEN: GIGLIETTO PISANO
Plaintiff
AND
HEALTH SOLUTIONS (WA) PTY LTD
Defendant

FILE NO/S :CIV 2930 of 2013

BETWEEN :GIGLIETTO PISANO
Plaintiff
AND
RAMSAY HEALTH CARE AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice and procedure - Defendants successful on preliminary point - Whether entitled to judgment - Whether entitled to costs

Legislation:

Nil

Result:

Judgment for the defendants with costs

Category: B

Representation:

CIV 1213 of 2013

Counsel:

Plaintiff: Mr C P Stokes
Defendant: Mr M L Bennett

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: DLA Piper Australia

CIV 2930 of 2013

Counsel:

Plaintiff: Mr C P Stokes
Defendant: Mr P J Hannan

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: DLA Piper Australia

Case(s) referred to in judgment(s):

Nil

McKECHNIE J: The answers to the issues as summarised by counsel for Mr Pisano [7] means that he has effectively lost the action. The terms upon which Mr Pisano sets store were not accepted as implied into the agreement.
The attempt to seek a declaration and remit the action for trial is pointless.
At the trial counsel for the plaintiff, Mr McGowan, acknowledged that if my findings were against the plaintiff the matter would come to an end. This was a fair and proper concession. When my reasons were delivered, Mr Stokes submitted that the plaintiff was partially successful and partially unsuccessful in relation to the issue of implied terms.
However, the plaintiff failed to establish that the terms contended by him formed part of any contract.
The agreement which I found to exist was one which Health Solutions did not really dispute, although Ramsey Health Care did.
Without the implied terms it does not give the plaintiff any claim for the pleaded injunction or damages.
The action must be dismissed and judgment entered for the defendants.

Costs

Consistent with his contention for a declaration and remitter for trial, Mr Stokes argued that costs should be in the cause.
Even if I was remitting the matter I would not make such an order.
The normal result is that costs follow the event. The event in question is Mr Pisano's effective loss on the issue he advanced. Health Solutions succeeded in the argument it advanced. Whilst Ramsey Health Care's arguments were not accepted, it is effectively a winning party. Its interests were not identical to Health Solutions and it was proper that it was separately represented.
Although unsuccessful, Ramsay Health Care's submissions were fairly arguable. They did not occupy much time.

Result

The plaintiff's actions are dismissed and judgment entered for the defendants with costs.