Robbins v West Gippsland Healthcare Group

[2016] VCC 1265

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-15-00886

THOMAS ROBBINS	Plaintiff
v
WEST GIPPSLAND HEALTHCARE GROUP	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 27, 30, 31 May and 6, 7 June 2016; Written submissions 20, 30 June & 4 July 2016
DATE OF JUDGMENT:	14 July 2016
CASE MAY BE CITED AS:	Robbins v West Gippsland Healthcare Group
MEDIUM NEUTRAL CITATION:	[2016] VCC 1265

REASONS FOR JUDGMENT
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Subject:  CONTRACT

Catchwords:             Employment Law; plaintiff surgeon employed by defendant hospital as consultant under terms of contract which expired in 1999; argument between employee anaesthetist and surgeon over operation protocol; refusal by plaintiff to follow direction of Director of Medical Services to follow anaesthetist’s protocol; also threat by plaintiff to take defamation proceedings against patient over complaint; plaintiff suspended then terminated by defendant; plaintiff sued for breach of contract; whether termination lawful; nature of employment relationship; whether expired contract still operative; whether plaintiff bound by defendant’s code of conduct; whether plaintiff’s behaviour amounted to serious or wilful misconduct.

Legislation Cited:     Health Services Act 1998; Landlord and Tenant Act 1948; Defamation Act 2005

Cases Cited:Hamilton v Porta [1958] VR 247; Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367; Commonwealth Bank of Australia v Barker [2014] HCA 32 at [30], Mackay v Dick (1881) 6 App Cas 251, 263 and Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; North v Television Corporation Ltd (1976) 11 ALR 599; Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 413; Shevill v Builders Licensing Board (1982) 149 CLR 620; Shepherd v Felt and Textiles of Aust Ltd (1931) 45 CLR 359;

Judgment:                Proceeding dismissed.  Costs Reserved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Connors	TF Grundy Lawyers
For the Defendant	Mr M G Rinaldi	Lander & Rogers

HIS HONOUR:

Background

1       Mr Robbins is a native of Glasgow.

2       He obtained his primary medical qualifications (MBBS) from the University of Melbourne in 1963 and has since obtained Fellowships with the Royal Australasian College of Surgeons, the Royal College of Surgeons of Edinburgh and the Royal College of Surgeons of England.  He carries on practice as a plastic surgeon.

3       Since 1977 approximately, Mr Robbins operated as a visiting medical officer (“VMO”) at the Warragul Hospital, which is conducted by West Gippsland Healthcare Group, the defendant in this proceeding.

4       Mr Robbins brings this claim against the defendant arising out of a series of events in early 2014, which entailed, first, his suspension from his appointment as a VMO at the hospital and, ultimately, its termination with effect from May of that year, carrying with it a requirement that he vacate the private consulting rooms on the hospital campus which he had leased from the defendant.

5       Mr Robbins operates at a number of other hospitals, including Beleura Private Hospital, Cornwall Private Hospital, Peninsula Private Hospital and Neerim South Soldiers’ District Memorial Hospital.

6       Mr Robbins customarily undertook a surgical list at Warragul on Mondays. The typical patients in his list were middle-aged to elderly people requiring surgery to remove sun-induced skin lesions.  The more minor of this type of procedures would be carried out in Mr Robbins’ own rooms using local anaesthetic, only.  No anaesthetist would be in attendance.  The surgical list at Warragul consisted of more significant procedures which entailed the use of a combination of sedation and local anaesthetic, with the procedures carried out in-theatre with an anaesthetist in attendance.

7       According to Mr Robbins, his initial appointment as a VMO at Warragul “was all done on a handshake and on a friendly basis”. (Transcript “T” 36, Line(s) “L” 12 & 13)

8       The parties signed an agreement dated 13 February 1996, which was expressed to be between them and Mr Robbins’ company, T H Robbins Pty Ltd (ACN 006485758).  The company agreed to provide Mr Robbins’ services upon the terms set out in the contract.  The contract was expressed to be for a term of three years commencing 1 March 1996. (Court Book “CB” 233-249)

9       That contract, according to its terms, expired by effluxion of time in 1999.  On 19 October 1998, the then Director of Medical Services at Warragul, Dr Brian Cole, wrote to Mr Robbins under the heading “Re VMO Contract”, suggesting that the existing contract structure was straightforward with Mr Robbins being entitled to 100 per cent of the Commonwealth Medical Benefit Scale for relevant procedures.  The letter continued:

“The BOM [Board of Management] would be pleased to continue the present arrangements into the next contract period.

Even though there are five months until your contract falls due, to assist with planning it would be appreciated if you could advise me of your views in the near future.” (CB 28)

10      Mr Robbins was initially doubtful that he had received this letter but, ultimately, I think conceded that he did.  No step seems to have been taken at or around that time to prepare a new or further contract for execution between the parties.

11      A decade and a half later, on 14 December 2012, Mr Weeks, the defendant’s Chief Executive Officer, wrote to Mr Robbins noting that there seemed to be no current contract held by the hospital governing Mr Robbins’ functions as a VMO.  Mr Weeks said:

“If you have any documentation that suggests the above understanding of your current arrangements is incorrect, I would be grateful if you would please advise us and forward a copy to Medical Administration as soon as possible.”

12      He also said:

“We are currently reviewing as a matter of urgency the contract pro-forma to ensure that it complies with statutory and industrial requirements, and will be in touch to discuss a new contract with you as soon as is practical.  In the meantime, existing arrangements will continue.” (CB 28A)

13      No follow-up seems to have occurred and no new written contract was executed.

14      For many years, anaesthetic services at Warragul were provided by Dr Rob Sinnett for Mr Robbins’ procedures.  Dr Sinnett would both administer the sedation to the patients and apply the local anaesthetic.  Local anaesthetic was administered by infiltration which entailed one or more injections of the anaesthetic in the vicinity of the proposed surgical incision.

15      Using the protocol accepted by Dr Sinnett, once both sedation and local anaesthetic had been administered, the patient was presented to Mr Robbins who could proceed directly to incision. 

16      At the end of 2013, Dr Sinnett retired after a long career at Warragul.  Upon his retirement, two new anaesthetists were appointed, one of whom, Dr Thilliaisundaram, was assigned to provide anaesthetic for plastic surgery lists.  Mr Robbins had previously encountered Dr Thilliaisundaram in 2013 when he was acting as a locum for Dr Sinnett.  On that occasion, Dr Thilliaisundaram fell in with the protocol employed by Mr Robbins and Dr Sinnett and he administered both the sedation and local anaesthetic. (T40, L26 - T41, L2)

17      On 20 January 2014, Mr Robbins attended for his first surgical list at Warragul for that year.  Mr Robbins called on Dr Thilliaisundaram to administer both the sedation and local anaesthetic to each of the patients in accordance with Mr Robbins’ usual practice.  According to Mr Robbins, Dr Thilliaisundaram replied “I know I did it before for you, but I’m not doing it now”. (T41, L14-15)  Dr Thilliaisundaram therefore proposed to administer sedation but not the local anaesthetic. 

18      According to Dr Thilliaisundaram, Mr Robbins initially agreed to his proposal, but “walked away, and then came back and said that he wasn’t happy with this change of practice to what he had done in the past”. (T270, L20-22)  According to Dr Thilliaisundaram’s memory of the event, he explained his position as “I wanted to focus on the patient’s vital functions during the provision of sedation and that [viz Mr Robbins] was the best person to know where to infiltrate local anaesthetic because it was for his surgical needs”. (T270, L29 - T271, L1)

19      Surgeon and anaesthetist reached an impasse.  Mr Robbins said, “I spoke with the patients and I operated on them, infiltrating the local anaesthetic myself but without any sedation, and Dr Anand [Thilliaisundaram] sat in the tearoom”. (T43, L1-3)

20      Mr Robbins said that at the conclusion of the list he then went to the office of the hospital’s Director of Medical Services, Dr Elizabeth Mullins.  According to Dr Mullins’ evidence, in 2014 she did not customarily attend the hospital campus on Mondays and was not in attendance on that day.  Around 1.00pm on 20 January, the Director of Nursing, Ms Curtin, rang her advising:

“that there was a contretemps going on between [Dr] Anand [Thilliaisundaram] and Mr Robbins in relation to Anand not doing things that Mr Robbins had expected him to do and had always taken place with Dr Sinnett as his anaesthetist.” (T314, L30 - T315, L4)

21      Mr Robbins said that Dr Mullins told him that he should “follow Dr [Thilliaisundaram’s] demands and do what he said”. (T43, L18-19)  Mr Robbins had told her that what Dr Thilliaisundaram required:

“was not the practice that we had been doing for years, it was not standard practice and it was not the practice that had been done elsewhere, and that I requested a different anaesthetist”. (T43, L8-11)

22      Mr Robbins said that Dr Mullins ruled in favour of the methodology advocated by Dr Thilliaisundaram “immediately”, on the spot. (T43, L28-29)  Dr Mullins said that there were a number of conversations perhaps extending over one day. (T315-316) 

23      Dr Mullins remembered Mr Robbins being very angry and cross.  She said he raised his voice and demanded that she (as the Director of Medical Services) resolve the matter. (T317, L25-29, T318, L7-13)  Dr Mullins said that in directing Mr Robbins to administer the local anaesthetic she was:

“not asking [him] to do anything that he wouldn’t have done in his rooms in terms of putting in local anaesthetic.  This was not a unique skill for an anaesthetist.  He would have put local anaesthetic into skin lesions all the time to remove them in his rooms.” (T318, L25-30)

24      Dr Mullins said she asked Mr Robbins “to please do the right thing by the patients”. (T319, L10-11)  She said “my sense was he was [content to do that]”. (T319, L13)  Dr Mullins said she told Mr Robbins “that they were next due to work together in two weeks and I would speak to both of them and try to resolve the impasse”. (T320, L8-10)

25      Following these conversations, she said she spoke to Dr John Monagle, then Director of Perioperative Services and Anaesthesia at Dandenong Hospital, which is part of the Monash Health Group.  She said Dr Monagle advised her that the position taken by Dr Thilliaisundaram was “reasonable”. (T321, L17-28) 

26      She then had a further conversation with Mr Robbins though could not be sure she mentioned Dr Monagle’s name, but said she had sought expert advice on the point.  Mr Robbins did not respond directly but said something like “mmm”, which Dr Mullins took as an acceptance of what she had put to him. (T322 L5-7)

27      Nevertheless, Mr Robbins wrote to Dr Mullins by letter dated 22 January 2014 [misdated 2013].  He reiterated his position, stating that his requirement that the anaesthetist administer the local anaesthetic accorded with the practice of Dr Sinnett and also the practice of “senior anaesthetists who have teaching appointments at teaching hospitals (Monash, Western General, Eye & Ear, Royal Melbourne, Frankston)”.

28      As to Dr Thilliaisundaram and his approach, Mr Robbins said:

“If this is his practice then I regret to say that it is not possible for me to work with him and I request a change.  Whether the patient is given local anaesthetic with sedation or with general anaesthetic it is for discussion between the Anaesthetist and the Surgeon not a decision to be made by the Anaesthetist alone and with the Anaesthetist last Monday this does not seem to be possible.” (CB 54A-54B)

29      Dr Mullins said she also informed Mr Robbins that it was “her expectation that Anand [Dr Thilliaisundaram] would be looking after the general anaesthesia and that he [Mr Robbins] would do the local anaesthetic into the lesion”. (T323, L9-15)

30      Despite any belief that Dr Mullins might have had that Mr Robbins would accept her direction and carry out the procedures in accordance with Dr Thilliaisundaram’s wishes, she went to work on the day scheduled for Mr Robbins’ next surgical list even although she did not usually attend the hospital campus on Monday. (T327, L4-7)  On that day, the theatre manager rang Dr Mullins advising her that there was a problem with the afternoon patient list. (T327, L17-20)  Dr Mullins said:

“I met Mr Robbins, who was extremely angry.  He had raised his voice.  He did so, I might say, in an area of the theatre where there were patients and other staff involved.  He was very angry that Dr Thilliaisundaram had done what he had done last week [scil a fortnight before].  He told me that anaesthetists were there to serve surgeons and as a surgeon he was telling him what to do and that he should do it.  I explained, and I probably should have at that point moved us into a private room, but I didn’t really realise how loud Mr Robbins’ voice would have been and how the conversation escalated as it did.  I reinforced or reminded him of what we had discussed, that I believed that Anand [Dr Thilliaisundaram] was within his rights to do the anaesthetic as a professional anaesthetist and that he believed that was his obligation to the patients.” (T327, L21 – T328, L4)

31      According to Dr Mullins, “My sense was he was furious that Dr Thilliaisundaram was just not doing what he was told to do”. (T328, L7-9)  Dr Mullins said that Mr Robbins called Dr Thilliaisundaram incompetent and that he “gesticulated”.  She said:

“…he got more and more angry as this encounter took place. … He had a loud voice.  I think he was probably shaking his fist and he was certainly flushed and I was in no doubt what his issue was.  The manager of the operating theatre overheard this conversation and in the end he ushered the two of us out, because clearly other members of staff and in fact patients in that operating theatre could hear what was going on.” (T328, L13-26)

32      Then, Mr Robbins said that what he would do for the rest of the afternoon was not let the patients have a general anaesthetic [sic presumably this was a reference to sedation]. (T329, L7-9) 

33      A patient on a trolley said to Dr Mullins, “I’m very upset about this operation.  I need to have an anaesthetic.  The reason I’ve come to have an anaesthetic is I get very nervous about having these things removed”. (T329, L17-20, 24)

34      Apparently, there was also the consideration of the use of a general anaesthetic. (T330-331)  Mr Robbins said, “Anaesthetists are there to serve surgeons” – according to Dr Mullins. (T331, L12)

35      Mr Robbins refused to countenance a change in his usual practice. (T334, L12)  Dr Mullins said:

“I was also very concerned that there appeared to be – and I use this term carefully – that there was a bit of a threat that he would not use the right anaesthesia for those patients that afternoon, as it were, to prove a point.” (T334, L12-16)

36      Dr Mullins said that this was “absolutely” the impression that she got and it concerned her greatly. (Ibid L17-18)

37      The surgery for the distressed patient was cancelled.

38      Dr Mullins said that the other patients were dealt with in some way though she did not see exactly how. (T334, L26-31 - T335, L1-5)

39      Following these events, Dr Mullins telephoned Dr Thilliaisundaram that evening.  “He was extremely upset”.  He felt that his professional skills were being queried.  He was upset about the way that he was spoken to. (T335, L10-13)

40      In Dr Mullins’ view, these events were “entirely avoidable”, “for in my experience there is rarely an absolute black and white sense of what is going on.  I’ve never known a surgeon to behave like this and certainly over something that to my mind could, as I said, easily have been resolved by Mr Robbins changing his practice to not an extraordinary extent.” (T335, L26 - T336, L1)

41      In the wake of these events, Dr Mullins wrote to Mr Robbins by letter of 4 February 2014 (mistakenly dated 2013).  She began, “I write this note to you with a heavy heart”.  She acknowledged Mr Robbins’ “many decades of service to the West Gippsland Hospital and its community”.  Nevertheless, she said she was “officially sanctioning” Mr Robbins:

“over the unnecessary and unjustifiable cancellation of a patient on 3 January 2014 [sic presumably this should read 3 February].  The cancellation arose because of your refusal to undertake the local anaesthetic infiltration of the patient’s lesions while she was having planned sedation at the request of the anaesthetist when you are quite capable of doing so and deemed local anaesthetic necessary.”

42      She noted that Dr Sinnett had retired:

“and a new consultant anaesthetist is now rostered to your list.  The anaesthetist was quite within his rights to manage the sedated patient as his primary focus while you undertake local anaesthetic infiltration to suit your intended procedures.”

43      She noted that a problem had arisen previously and Mr Robbins had “advised me that you would work co-operatively with the anaesthetist”.  She complained that the patient was very distressed at the thought that no sedation would be provided, so her procedure was cancelled.  The patient had lodged a formal complaint with the Chief Executive Officer.  She continued, “I also understand that you accused the anaesthetist, Dr Anand Thilliaisundaram, of being incompetent in front of the Operating Theatre Manager.”  She said that Mr Robbins’ behaviour was unacceptable and, unless he agreed to undertake his own local anaesthetic when reasonably requested to do so and to work co-operatively with “the anaesthetist assigned to your list, I regret that I will be cancelling your list at WGHG forthwith.  I also require you to apologise for your behaviour to Dr Anand Thilliaisundaram.”  She requested a response to the letter within seven days.  She copied that letter to Chief Executive Officer, Mr Weeks, and to Mr Phil Harris, the hospital’s senior surgeon. (CB 54-55)

44      In light of the terms of her letter written immediately after the event describing her “understanding” that Mr Robbins had called Dr Thilliaisundaram incompetent, she conceded that she probably had not heard this directly but rather had been informed of it by the theatre manager. (T339-340)

45      In a letter, which in the typescript was mistakenly dated 20 August 2012, altered in manuscript to 6 February 2014 (a date stamp appears to indicate the letter was received at the hospital on 11 February), Mr Robbins told Dr Mullins that the problems were caused by the anaesthetist’s failure to adhere to the long-established practice at Warragul Hospital.  He said that he did over 1,000 operations per year, which were carried out in accordance with his protocol.  He referred to a number of anaesthetists whom he said were Fellows of the Anaesthetists College “and who operate in injecting local anaesthetic into the operative area after it has been marked whether the patient is having sedation or general anaesthetic”.  He said he considered that good practice, “because the total patient is monitored and the Anaesthetist can note the total amount of anaesthetic and the type of anaesthetic used”.

46      Mr Robbins said, “I do not recall accusing Dr Thilliaisundaram of being incompetent and I am quite sure I did not.  I may have said he was being cussed, which I believe he is”.  The letter noted itself as having been copied to the various anaesthetists quoted in support of Mr Robbins’ protocol to Mr Philip Harris, the senior surgeon at the hospital, and to the Chief Executive Officer, Mr Weeks, and to the Anaesthetists College. (CB 56-57)

47      Dr Mullins responded in a letter dated 13 February 2014.  At the outset she complained at the letters being copied to:

“a large number of practitioners who are not employed at West Gippsland Healthcare Group.  I presume your intent was to either embarrass or discredit Dr Thilliaisundaram.  This action is unprofessional and regrettable and not consistent with the values of West Gippsland Healthcare Group.  We also reserve the right to seek legal counsel in regards to the rights of Dr Thilliaisundaram.”

48      Dr Thilliaisundaram’s requirements were, according to Dr Mullins, reasonable and reflective of “contemporary professional anaesthetic standards despite any previously established practices”.  She noted that Mr Robbins remained:

“defiant in refusing to address the central issue – the requirement that you work co-operatively with the anaesthetist and acknowledge the decision of the anaesthetist in relation to anaesthetic requirements when operating at West Gippsland Healthcare Group.”

49      She said that she would suspend Mr Robbins’ operating lists “effective immediately”.  She said she would allow “a final opportunity to commit to work collaboratively with all hospital staff, including the anaesthetists”.  She concluded, “I am prepared to arrange a mediation session.  If you would like to participate in such a process, please let me know”.  She urged Mr Robbins to reconsider his attitude. (CB 61A)

50      Mr Robbins responded to the letter which had been sent by facsimile transmission in a response of the same date.  He said the practice of other anaesthetists was “of great relevance”.  He said the matter should be made public.  He said, “I can’t understand why you are supporting an anaesthetist who’s [sic] practice is contrary to established practice”.  He said that he “certainly remained defiant in this central issue”.  He said he required an anaesthetist to work co-operatively with him, including by injecting a local anaesthetic “…It is not so much about the anaesthetic requirements but about the surgical requirements”.

51      He again called for the assignment of an alternative anaesthetist.  He concluded, “I am happy to attend a mediation session but it will depend on who the mediators are”.  He copied the letter to the Chairman of the Hospital Board. (CB 61)

52      Dr Mullins responded with a further letter dated 14 February 2014.  She confirmed Mr Robbins’ suspension, stating that his patients scheduled for 17 February were advised that their surgery had been postponed.  She said she was happy that Mr Robbins would participate in mediation and would discuss arrangements with him.  She invited Mr Robbins to make an appointment to arrange a suitable time. (CB 62)

53      It seems that Mr Robbins and Dr Mullins met on 17 February.  Dr Mullins wrote a letter the following day, 18 February, referring to the meeting.  She reiterated her view:

“that Dr Thilliaisundaram, who is allocated to you, is well within his rights, and professional obligation, to manage the sedation of the patient rather than additionally infiltrating local anaesthetic into the various patient lesions for you as you request.”

54      She continued, “Similarly, the Hospital is within its rights to enforce its policies in relation to sedation as previously advised.  These are matters of patient safety, which require all professionals to observe”.  The matter could be resolved, she said, by Mr Robbins agreeing to administer the local anaesthetic himself and to work collaboratively.  She said:

“You currently undertake this task when sedation is not required so I fail to see why [you] do not do this from now on.  Dr Thilliaisundaram remains the anaesthetist assigned to your list on a Monday afternoon.”

55      She added:

“At your suggestion, I will also seek an opinion from the Australian and New Zealand College of Anaesthetics about the management of sedation and local anaesthesia.  However, regardless of the College’s position, the central issue of you working co-operatively with the anaesthetist (and any theatre staff) remains to be resolved prior to the removal of suspension of your operating licence and reinstatement of your lists.  I am in the process of arranging a suitable mediator to meet with you, Dr Thilliaisundaram and myself.  I will keep you posted in that regard.”

56      She closed by noting that during his suspension it would be inappropriate for Mr Robbins to refer patients to be added to the waiting list. “Patients referred will be advised they will not be accepted onto the list”.

57      As these events were playing out, a separate cloud hung over Mr Robbins’ relationship with the hospital.  Ms Denise Herrick, a retired lady of 81, wrote to the Deputy Director of Nursing at the hospital, Ms K Kinrade, complaining about the conduct of Mr Robbins.  Her letter, dated 21 February 2014, said that the previous year she had noticed a lesion on her nose and was referred to Mr Robbins for surgery.  She said:

“I was not happy with him as a person, he seemed very short-tempered and abrupt and didn’t have a lot of time for me except to say that it had to be removed and he advised me a skin graft would have to be done as well.  I wish I hadn’t gone to him but as a patient I didn’t know any better.  Then I was extremely unhappy with him as a surgeon.”

58      She said following the surgery in October she was “shocked” to discover, upon removal of the plaster from the area of incision, that Mr Robbins “had operated on the wrong part of my nose and the original spot on top of my nose was still there and all I had to show for my troubles was an ugly skin graft on the good part of my nose.”

59      She said that at a subsequent consultation:

“…he told me what he took off was ‘sun damage’ but had not had it tested to make sure there wasn’t anything sinister, I believe he did not do this as he didn’t take anything except a healthy part of my nose.  I am very self-conscious of the skin graft that could have been avoided.”

60      She complained that he rendered a bill for $80 “before he would even look at my face”.  He then said that:

“‘the spot on top of my nose would have to come off’ and when I questioned him about it not been [scil being] done properly in the first place he was quite rude and short with me and told me I would need this spot removed.  I was worried he would do another skin graft.”

61      She said:

“He [then] put the light on my nose and told me it was a stitch left in there.  I told him it could not be a stitch in it as he had not operated on that area of original concern.  Then he scraped the top of my nose and told me he could fix it there and then, I asked if it would hurt and he said `oh well we will do it in the hospital and I will make it a priority’ and I was then booked in for two weeks later but I rang Robin Wright to postpone my surgery with him because I wanted to get a second opinion.  I went to another doctor and she told me that if I was told it should come off then I should have it done.”

62      Ms Herrick was scheduled for her operation on 17 February.  Eventually, her surgery was carried out by Mr Ah-Tye [a general surgeon].  She said, “I was happy not to have to see Mr Robbins”.  She was happy with Mr Ah-Tye, who assured her that no skin graft would be necessary. (CB 65-68)

63      Meanwhile, Mr Robbins wrote to the Chairman of the Hospital Board, Mr Brian Davey, in a letter dated 24 February 2014. (CB 70-71)  He reiterated his view as to what he said was standard practice relative to the administration of local anaesthetic.  He complained that Dr Mullins supported the stand taken by Dr Thilliaisundaram, which was “illogical, unless it is due to Dr Mullins, a relatively new appointment herself, being instrumental in appointing Dr Thilliaisundaram after dismissing previous anaesthetists”.  No evidence emerged in the course of the trial of any anaesthetists having been dismissed either by Dr Mullins or anyone else.

64      Mr Robbins complained as to his suspension, noting that he had asked Dr Mullins to replace Dr Thilliaisundaram as anaesthetist for his surgical session and she had refused to do so.  He concluded, “I am therefore asking the Board to arrange this”.

65      The hospital’s Chief Executive Officer, Mr Weeks, took charge of Ms Herrick’s complaint.  Normally, such a complaint would have been dealt with, if it appeared to be of substance, by the Director of Medical Services, but since Dr Mullins was already dealing with a major issue touching upon Mr Robbins, Mr Weeks thought it appropriate that he should deal with the matter of the patient complaint, separately. (CB 72)

66      Mr Weeks sought a written response from Mr Robbins “at your earliest convenience regarding the issues raised by Mrs Herrick that involve you”. (CB 72)

67      Mr Davey, the Chairman of the Hospital Board, replied to Mr Robbins’ letter of 24 February, noting that management of the hospital was delegated to the Chief Executive Officer and other executive staff.  He said, “The Board does not sit in judgment on clinical issues nor dictate staffing arrangements but ensures good governance processes are followed.”

68      Mr Davey expressed himself “satisfied that the resolution process that has been afforded to you is appropriate and in keeping with the Board’s expectations.  It would seem that the central issue is one of conflict resolution, not patient safety.”  Mr Davey urged Mr Robbins “to participate in the mediation process that I understand has been offered in good faith”.  He closed by saying that the Director of Medical Services had “the full support of the Board in management of this issue”. (CB 73)

69      Mr Davey gave evidence that this “was a letter that was intended not to invite a response”. (T500, L10-11)  Mr Davey felt that for the Board to intervene in the dispute relative to anaesthetics, that this point would have been “to move outside the established processes”. (T499, L20-21)

70      Dr Mullins wrote to Mr Robbins by letter of 4 March 2014 identifying Mr Chris Hicks as the mediator.  She said, that as previously advised:

“…while you remain under suspension, we have asked you not to put patients on West Gippsland Healthcare Group waiting list. The three patients forwarded yesterday whom you have seen privately will be returned to you for other arrangements.” (CB 74)

71      Correspondence ensued to arrange an appropriate date for the mediation.  The mediation was fixed for 14 April 2014.  Despite previous indications that it would involve Dr Thilliaisundaram, in fact, the only parties scheduled to meet were Mr Robbins and Dr Mullins. (CB 77)

72      The mediator, Mr Hicks, sent an email to Dr Mullins at 8.25am on 15 April stating, “I believe that an impasse has been reached and that further mediation (at this point) would not be an efficient use of the parties’ time”.  The mediation had failed. (CB 89)

73      There had been some delay in Mr Robbins receiving Mrs Herrick’s complaint.  It had been mistakenly omitted from Mr Weeks’ initial correspondence.  As a result, in what seems to be yet another wrongly dated letter (dated 17 February 2014 but stamped received at the hospital on 17 March 2014), Mr Robbins said he had just received Ms Herrick’s letter of complaint and said that he had been the subject of no previous complaints as to his work at the hospital.  He denied that there were any problems with the skin graft. 

74      Mr Robbins said:

“With respect to Mrs Herrick saying she has ‘spoken to quite a few people that he has made a mess or a botch of their surgeries and this should not be allowed to happen’ I wish to remind Mrs Herrick that that is a libellous statement and unless she can substantiate it with names she is leaving herself open for a libellous action against her by myself.”

75      The words to which he took objection were taken from Mrs Herrick’s original complaint.

76      Mr Robbins felt that he deserved an apology:

“from Mrs Herrick’s libellous statements and to point out that she asked for and was put on priority for a second operation by me and was cancelled twice after that, once by her and once by Dr Liz Mullins, at both times for which I was scheduled to operate on her.”

77      He added a postscript, “Complainants almost `always’ adulate another surgeon to emphasise their complaint”. (CB 78-79)

78      Mr Robbins sent another letter dated 17 February 2014 addressed to Mrs Herrick, stating:

“I have just received a complaint you made about me to West Gippsland Hospital.  In that complaint you make a number of libellous statements and I wish you to withdraw these otherwise I will have to consider legal redress.” (CB 80)

79      The hospital’s records show a call on 21 March 2014 with Mrs Herrick complaining about the quoted letter of demand from Mr Robbins. (CB 81)

80      Mr Weeks responded to the telephone complaint in a letter dated 24 March 2014 to Mrs Herrick, stating:

“…we were horrified to hear that Mr Robbins had written to you directly with a threat of legal action.  Please be reassured that we support you completely and your right to provide feedback about the treatment you received.  You have nothing to fear nor have you done anything wrong.” (CB 83)

81      Mr Weeks wrote again to Mr Robbins being dissatisfied with the initial answer.  He said, “you have not responded to the central complaint of Mrs Herrick – that the operation you performed was not the operation for which she was initially referred to you.” 

82      Mr Weeks sought specific responses to some four bullet points set out in his letter.  He continued:

“As a separate matter…I was horrified to hear from Mrs Herrick that you had written to her advising her to withdraw comments in her letter of complaint or you will consider ‘legal redress’.”

83      Mr Weeks said that the hospital welcomed and encouraged feedback, “both positive and negative, and endeavour[s] to resolve the issues, not threaten the person raising them”.  He referred Mr Robbins to the `Good Medical Practice: A Code of Conduct for Doctors in Australia’, published by the Medical Board of Australia, observance of which he said was “a condition of your appointment at WGHG”.  He also said that he required an explanation as to the letter to Mrs Herrick.  He warned Mr Robbins not to make further contact with Mrs Herrick.  He said, “We also retain the right to refer your behaviour to the Medical Board/AHPRA should we be dissatisfied with your response.”  He suggested that Mr Robbins send a copy of this correspondence to his “medical defence provider”. (CB 84-85)

84      Mr Robbins responded to Mr Weeks in a letter of 31 March 2014 in which he defended his performance relative to the surgery.  He said, “My behaviour as described by Mrs Herrick is totally not true.  It was Mrs Herrick who was difficult and aggressive”.  Mr Robbins said:

“I have never denied a patient’s right to complain and have her complaint investigated.  However, no patient has a right to slander and libel me and it is not within your authority to prevent me protecting myself.  A person can make a complaint without slander and libel.” (CB 86)

85      Mr Weeks sent a letter to Mr Robbins dated 9 April 2014, noting the response to the criticisms of his surgical performance and stating, “I am far from satisfied with your attitude.  In your first letter you stated you believed she owed you an apology, and in this latest letter you accuse her of being ‘difficult and aggressive’.”  Mr Weeks continued:

“I also fail to understand how you could in any manner believe that she has slandered or libelled you.  She has written to the hospital where you provided consultations and performed the operation expressing her opinion and feedback.  She has exercised a right to lodge a complaint under hospital policies and procedures by which you are also bound.  The letter has not been circulated externally from my office other than for the purpose of dealing with the complaint, nor has Mrs Herrick circulated it more widely that I am aware of.”

86      He reiterated that he was considering referring the matter to the Medical Board of Australia to “let it determine if your behaviour is consistent with the Good Code of Medical Practice”.  He said, “I also reserve the right to consider this issue under hospital policies in relation to your appointment here”. (CB 87)

87      On the same day, Mr Weeks wrote to Mrs Herrick stating, “…be assured that you have nothing to fear from Mr Robbins and should continue to advise us if you have any further contact from Mr Robbins”. (CB 88)

88      Following the abortive mediation, Mr Robbins wrote to Dr Mullins by letter of 16 April 2014 (the stamp indicating it was received by the hospital on 22 April).  Mr Robbins suggested that public patients in the Warragul Hospital undergo cataract surgery in the Neerim South Soldiers’ District Memorial Hospital.  Mr Robbins’ surgical list should be carried out there with him charging the same Medicare fees. (CB 90)

89      Dr Mullins did not consider this a practical solution and it was not accepted by the hospital.

90      Mr Weeks wrote to Mr Robbins by letter dated 16 April, noting that the hospital’s Appointments Committee would be meeting on 24 April at 6.00pm:

“…to review the information we have in relation to your conduct, communication and attitude towards Dr Anand Thilliaisundaram (staff anaesthetist) and Mrs Denice Herrick (an 83 year old WGHG patient); at which stage your position at West Gippsland Healthcare Group will be considered.”

91      The letter included a list of correspondence relative to both.  The letter concluded:

“You have the opportunity to provide the Committee with any additional written material you may wish for them to consider.  Such documentation will be required to arrive at this office by 5pm the day before, April 23 2014.” (CB 91)

92      Mr Robbins responded in a letter dated 17 April 2014 to Mr Weeks, stating:

“I received today the 17^th of April your letter dated 16^th of April.  This gives me only seven days to respond which is not enough time for me as it is Easter.” (CB 94)

93      In preparation for the Appointments Committee meeting, the defendant’s executive assistant transmitted a package of material to the Committee members which included the material referred to in Mr Weeks’ letter to Mr Robbins relative to the patient complaint and the anaesthetics dispute, together with two additional pieces of correspondence from Mr Robbins – one being the suggestion of a surgical list at Neerim South Soldiers’ District Memorial Hospital, the other of which complained of inadequate time to respond.

94      The package included what one might describe as a briefing note, the responsibility for which was shared by Mr Weeks and Dr Mullins.  It described two matters:

(i)        dispute in theatre with anaesthetist;

(ii)       patient complaint.

95       The note concluded, “It is RECOMMENDED that the Appointments Committee  review the Appointment of Mr Tom Robbins”. (CB 98-99)

96      Mr Davey, the Board Chairman, said that he saw the purpose of the briefing note was “to provide an overall perspective of the issues from the CEO’s perspective” and that it was not intended to be an even-handed summary. (T547, L7-12)

97      It was to some extent “a case for the prosecution” and certainly not intended to be a summary of the case for the defence. (Ibid L13-20)

98      Mr Davey said from the Chair he enquired of the members of the Board if they had read and understood the papers.  In the absence of any dissent, the meeting then moved to consider the merits of the matters before it. (T549)

99      The typed Minutes of the Committee’s deliberations note that Dr Mullins advised the Committee that Mr Robbins’ contract was not current and has not been for a number of years.

100     Mr Davey said that it was not his view that this meant that the contract had no further force (T550, L21-25), though this seems to have been the view of Dr Mullins (T376 – T377)

101     Dr Mullins accepted that she recommended to the meeting that Mr Robbins’ appointment be terminated. (T445)

102     Mr Davey had anticipated that the Medical Staff Association representative on the Board might have put up strong support for Mr Robbins and strong opposition towards any move to terminate his appointment.  As matters transpired, they did not. (T539-540)

103     Mr Davey said that had Mr Robbins sought to address the Committee in person, he would have been inclined to allow it subject to the views of the Committee but would probably have necessitated an adjournment of the meeting. (T540-541)

104     According to Mr Davey, all other members of the Committee voted to remove Mr Robbins and Mr Weeks and Dr Mullins spoke to similar effect only after all other members had committed to that view. (T542)

105     Despite being referred to a passage in handwritten Minutes prepared by Mr Weeks which did not appear in the typed version, attributing to Mr Phil Harris (that is, the senior surgeon) the statement, “I support the recommendation of Liz”, Mr Davey adhered to his recollection that Dr Mullins gave no statement of her position in the meeting until all other members except, perhaps Mr Weeks, had spoken. (T543, L22 - T544, L2)

106     Mr Weeks gave a fuller account of what transpired in the Committee meeting than did either Dr Mullins or Mr Davey.  First, as to the briefing, he agreed with Mr Davey that it should not be seen as an attempt to put all sides of the controversy, but, rather, as a statement of his views and those of the Director of Medical Services, Dr Mullins.  He saw the panel as being fully informed by the provision to it of the full written record of the controversy with an additional opportunity for Mr Robbins to put in his own set of contentions which, in the event, he did not do. (T698−T699)  In his examination-in-chief, Mr Weeks elaborated upon the Committee’s meeting, which occupied some 30 minutes from 5.45pm to 6.15pm to be followed at 6.30pm by a scheduled Board meeting.  There does not seem to have been much debate and matters moved to their conclusion adverse to Mr Robbins.  Mr Weeks said, “The only checkpoint along the way, as I mentioned earlier, was Dr Simon enquiring about whether there might be any sort of organic reason that might explain something that would be completely out of character and therefore that we are responding to situations perhaps beyond the control of Mr Robbins”. (T634, L7−16, especially 11−16)  Mr Weeks noted the statement recorded in his handwritten notes and attributed to Mr Phil Harris, the hospital’s senior surgeon, that Mr Robbins’ actions were “unreasonable, inappropriate, unprofessional” and that Mr Harris was “not surprised knowing the personality”. (T614, L27−30)  He also noted the statement by Mr Harris, “It’s an even split re the anaesthetics.” (T615, L1)

107     Mr Weeks sent a letter by facsimile to Mr Robbins dated 28 April 2014, advising:

“The Committee considered the information provided by you in response to the issues previously raised with you, including your letter to me received by facsimile on 17^th April and your letter to Dr Mullins dated 16^th April.

The Committee determined that your behaviour in response to the interactions between you, Dr Liz Mullins and Dr Thilliaisundaram and in relation to your response to the patient complaint by Mrs Herrick, was not in keeping with the standards required of visiting medical staff at West Gippsland Healthcare Group.

It further supported the Director of Medical Services’ decision to report your actions in relation to Mrs Herrick to the Medical Board of Australia.  This is a separate matter to the decision of the Appointment’s Committee and will occur in due course.”

108     Mr Weeks concluded, “the West Gippsland Healthcare Group’s Privileging and Credentialing Committee’s Terms of Reference [states that] “you have right of appeal” as set out in those Terms of Reference.  At paragraph 5 of the Terms of Reference, which extend over some seven closely typed pages, it is stated, under the heading “Appeals Process”:

·The appeal must be lodged within seven days of receipt of the decision. (CB 144-152)

109     There was no appeal. 

110     According to Mr Robbins:

“Well, I was so shocked by the letter and I probably didn’t notice it [the right of appeal] and the way the rest of the letter read initially it was permanent and it was a fait accompli.” (T74, L19-22)

111     Nevertheless, Mr Robbins did write to Mr Weeks seeking the names of the persons on the Committee. (CB 153)

112     Mr Weeks wrote to Mr Robbins on 9 May 2014 (CB 156), noting the absence of any appeal against the decision of the Appointments Committee and stating, “Consequently, you are no longer engaged to work here nor will you have access to the Consulting Rooms on site”.

113     Solicitors acting for Mr Robbins filed the Writ commencing this proceeding against West Gippsland Healthcare Group on 25 February 2015.

114     With Mr Robbins terminated from his position as Visiting Medical Officer and deprived of the use of the consulting room on the Warragul Hospital Campus, he sought to establish another consulting area in the Warragul area so that he could continue to see private patients.  He said that he found this “quite difficult” and impossible. (T80, L8)  He said that general practitioner groups offered him consulting space “but this was not practical because it restricted the referrals from elsewhere”.  He said that he rented rooms in Berwick as a compromise “but this failed, largely because many of the patients are quite elderly and they said they had difficulty driving down there”. (Ibid, L12−20)  Documents were produced relative to the work done by Mr Robbins in Berwick at a clinic known as “Medici”.  By the end of the trial, the parties were agreed that Mr Robbins derived income at the rate of $915 per month by way of mitigation of the losses which he had suffered by reason of being terminated from the Warragul Hospital. (T748, L30−T749, L2)

Claim

115     Mr Robbins’ Statement of Claim said that he was party to “a longstanding agreement entered into by the [parties] between the period on or about 1 November 1999 to 2014” (CB 3), which entailed Mr Robbins providing inpatient medical and surgical services to the defendant hospital and its patients.  Mr Robbins would supply a statement of his services by completing the hospital’s claim forms and would be paid 100 per cent of the scheduled fee under the Medicare Benefits Schedule or the private health insurance benefit, as the case may be.  The hospital was to pay Mr Robbins monthly, and Mr Robbins would be entitled to use the consulting rooms on the hospital’s campus to attend to his own patients, subject to paying rent to the hospital.  This agreement was said to be partly in writing and partly implied.  The written portions were constituted, it was said, by the claim forms and tax invoices, and the agreement was to be implied by the need to give business efficacy to the relationship between the parties, as a matter of law, from the documents referred to, and from the parties’ conduct.

116     It was said the arrangement included an implied term that the hospital would provide reasonable notice if it purported to terminate the arrangement.  This term was said to be implied from the need to give business efficacy to the relationship.

117     In violation of the agreement, it was said that on or about 4 February, the hospital suspended Mr Robbins’ engagement and his access to the consulting suite, and on or about 9 May, it terminated the agreement and the access to the consulting suite.  In doing so, it was said no reasonable motive was provided.  According to the Statement of Claim, reasonable notice was a period of no less than 6 months, which was to be derived from: the length of time for which Mr Robbins had provided services to the hospital, the time required “to bring to an end in an orderly way a relationship which had existed for a reasonable period” (CB 5), the period required to wind up matters and carry out existing commitments to patients, the period necessary to “wind down” doctor/patient relationships, and the period required to give Mr Robbins a reasonable opportunity to enter into alternative arrangements, Mr Robbins’ qualifications, experience and expertise, the level of “monetary award” obtained by Mr Robbins, Mr Robbins’ age, and his intention to continue providing medical and surgical services at the hospital and to continue to use the consulting suites. (CB 5-6)

118     The claim by Mr Robbins for damages was explained by his counsel, Mr Connors, in opening as follows.  According to Mr Robbins’ calculations (during his evidence, Mr Robbins disclosed that the calculations were actually made by his secretary), he derived $76,000 by way of fees for surgery carried out at the hospital upon public patients.  Assuming that a proper period of notice was 3 months, this would equate, on a pro rata basis, to $19,000, or $38,000, based upon a proper notice period of 6 months.  Secondly, in the previous 12-month period, some $125,000 by way of fees was derived with respect to private patients.  Some 3 months’ suspension led to a loss of $31,250 on this annual figure; based upon a six-month notice period, the loss on this score was calculated as $62,500.  According to Mr Connors, Mr Robbins had derived some income in mitigation of his losses in an amount of approximately $49,000, leaving a damages claim of approximately $80,000 (T17, L24).

119     At the conclusion of the evidence, Mr Connors, on behalf of Mr Robbins, confirmed that, despite clause 10(ii), there would be no claim made in relation to private patients for the period 4 February 2014 to the date of Mr Robbins’ termination, and, despite sub-paragraph (iii) of clause 10 of the Statement of Claim, there would be no claim for loss of fees in relation to patients who attended at the consulting suite [on the hospital campus] during the period 4 February to [Mr Robbins’ termination].  Next, he said that, having considered the evidence of Mr Robbins’ income and the mitigation of damages that he undertook following his termination, then, despite clause 11(ii) of the Statement of Claim, there would be no claim made on his behalf relative to fees for private patients during the period from his termination until 9 November 2014.  Under paragraph 11 of the Statement of Claim, this left alive claims on behalf of Mr Robbins for loss of fees in relation to public patients under paragraph (i) and loss of fees in relation to patients who might otherwise have attended at the hospital consulting suites from Mr Robbins’ termination until 9 November 2014. (T747)  Next, Mr Connors said that the parties were agreed that, for the purposes of clause 10(i) of the Statement of Claim, the loss which might be regarded as sustained, relative to fees for public patients whom Mr Robbins might have treated during the period 4 February 2014 to his termination, was $5,632.36 per month.  With respect to the fees which Mr Robbins might have derived in consulting patients in his consulting suite at the hospital from his termination to 9 November 2014, the parties were agreed that the appropriate monthly figure was $3,569.35.

120     The 1996 agreement, as previously noted, included Mr Robbins’ company, TH Robbins Pty Ltd, as a party.  The company was contracted to provide Mr Robbins’ services to the hospital.  It appears that the hospital at all times material paid fees to the company which included a 10% GST component and were paid in accordance with a recipient-generated tax invoice system.  The company paid the expenses of Mr Robbins’ practice and paid the whole of its remaining income to Mr Robbins as fees.  As a result, its taxable income in each year was $0.  Mr Connors considered applying to add the company as an additional plaintiff but ultimately decided not to.

Defence

121     In its Amended Defence, the hospital characterised its relationship with Mr Robbins as being based on an appointment as a Visiting Medical Officer on 1 March 1996, referring to the written contract dated 13 February 1996.  The appointment was said to be subject to legislative requirements, in particular, the Health Services Act 1998, and the hospital’s operational practice, including review of appointment in accordance with the hospital’s Credentialing Policy, the Credentialing Committee’s Terms of Reference and the Medical Appointments Committee’s Terms of Reference.  The arrangement was also said to include implied terms, including terms that Mr Robbins would comply with lawful and reasonable directions issued by the hospital, would perform his duties with care and skill and comply with the hospital’s Vision and Mission Statement - Policy, and would comply with the Medical Board of Australia’s Good Medical Practice:  A Code of Conduct for Doctors in Australia.  The appointment was subject to review in accordance with the Health Services Act, the hospital’s Credentialing Policy, its terms of reference, and the Appointments Committee’s terms of reference.  The hospital denied that there was any implied term requiring reasonable notice to be provided for the termination of the agreement, with that issue being dealt with in clause 8 of the 1996 written agreement.  Next, the hospital denied having imposed any wrongful suspension on Mr Robbins, although it admitted that on or about 13 February 2014, it suspended his appointment based upon “a number of incidents, prior warnings and sanctions of the plaintiff”, referring to counselling of Mr Robbins by the Director of Medical Services on 22 January 2014, relative to “unacceptable conduct towards an anaesthetist, Dr Thilliaisundaram” (CB 21), a requirement to apologise to Dr Thilliaisundaram, and a warning that inappropriate behaviour and a failure to comply with directions would result in the cancellation of employment.  Reference was made to Dr Mullins’ letter of 4 February and Mr Robbins’ response of 6 February, and what was said to be its inappropriate circulation “to a range of individuals external to the defendant and who were not involved in the Anaesthetist Dispute” (CB 22).  The Amended Defence denied the version of the plaintiff’s termination given in the Statement of Claim.  It referred to the hospital’s letter of 9 May 2014, asserting that, prior to that date, the hospital took all reasonable action to resolve the Anaesthetist Dispute, referring to meetings between Mr Robbins and Dr Mullins, Director of Medical Services, and her letter of 18 February 2014.  Next, there was reference to Ms Herrick’s complaint and to Mr Robbins’ letter of 24 February to the Chairman of the Hospital Board, such letter copied to the Minister for Health and other persons.  It referred to Mr Weeks’ calling on Mr Robbins to respond to Ms Herrick’s complaint, and to the Hospital Board Chairman’s response to Mr Robbins’ complaint to the Board.  Next, it was said that Mr Robbins’ response to Ms Herrick’s complaint, apart from denying wrongdoing and saying Ms Herrick owed Mr Robbins an apology, failed to respond to Ms Herrick’s key concern.  Mr Robbins’ letter of 17 March 2014 to Ms Herrick threatening legal action, was said to be in breach of the Code of Conduct.  It was said that, in relation to that threat of legal action, the hospital required Mr Robbins to show cause why his appointment should not be revoked, in a letter of 26 March 2014, and referred to his response of 31 March 2014.  Next, there was reference to the hospital’s letter of 9 April 2014, “regarding [Mr Robbins’] persistent failure to comply with the terms and conditions of his Appointment” (CB 24).  It was noted that the mediation relative to the Anaesthetist Dispute was held but failed to resolve the matter on 14 April and an Appointments Committee was called to conduct a special Appointments meeting to consider Mr Robbins’ conduct, with Mr Robbins being given the opportunity to provide further written material to the Committee.  It referred to the Committee’s determination at its meeting on 24 April to terminate Mr Robbins’ appointment, which was endorsed by the Board on 24 April, with Mr Robbins being advised of a right of appeal, which was not exercised.  In effect, the defence asserts that the termination was valid and necessarily denied that Mr Robbins suffered any loss or damage as a result of any wrongful act or omission on the part of the hospital.

122     Mr Rinaldi explained that the hospital’s case did not entail a contention that the technique advocated by Dr Thilliaisundaram and directed by Dr Mullins was the only proper way of conducting plastic surgery using sedation and local anaesthetic.  Rather, he said that the hospital supported Mr Harris’s view, “…there are two ways to do it.  …  they are both legitimate ways, they are both reasonable ways, they are within the range of different ways you could do it.” (T653, L18−22)

Contract

123     As noted above, the parties are at odds as to the source of the contractual relations between the parties.  The defendant’s position was that the 1996 contract continued to have effect despite its expiry by effluxion of time.  Mr Rinaldi, on behalf of the defendant, submitted that, in the absence of any other written contract and with the parties continuing in their relationship, they thereby implicitly continued the 1996 contract in operation.  In his opening statement, Mr Rinaldi submitted that the 1996 contract continued to apply and it was akin to a holding over of a lease. (T19, L16‒17)  Mr Connors, for the plaintiff, submitted:

“The Appointments Committee was aware that there was no operative contract between the Hospital and Mr Robbins.  In those circumstances where no one involved believed that they were bound by a contract or had any obligations under a Contract there cannot be the legal intention to be bound by a contract or for any contract to continue.  Both parties had in effect repudiated this Contract.  It is submitted that the better view of the terms of the 1996 Contract did not continue as the framework for the legal relationship between the parties.” 

He noted that the defendant in taking its enforcement action, acted on the basis that there was no current contract in force, according to the evidence of Dr Mullins and Mr Weeks.

124     Mr Rinaldi’s metaphor is by no means precise.  In Hamilton v Porta [1958] VR 247, in the context of a contention that consent to an assignment of lease had been unreasonably withheld, Herring CJ had to consider the effect of overholding by a tenant. Having considered the effect of the security of tenure provisions of the Landlord and Tenant Act 1948, his Honour said:

“Before such Acts came into force, the landlord was free to eject the tenant at the end of the term, if he so desired. An inference could therefore be legitimately drawn from his not doing so but on the other hand allowing the tenant to remain in possession, that he for his part was agreeing to the tenant continuing on as such. A clause in the original lease prescribing the terms, that will attach in the event of an overholding, presupposes that from the circumstances of the overholding a new tenancy can properly be inferred, for unless and until there is a new tenancy, the prescribed terms are left as it were in the air with no tenancy to which they can be attached. Without such a new tenancy such a clause therefore will not operate at all.” ([1958] VR 247‒250)

125     According to the authors of Bradbrook, Croft and Hay, Commercial Tenancy Law (Third Edition), the situation described by Herring CJ “must be distinguished from the case where a lessee holds over after the expiration of the lease and pays rent and there is attributed to the parties the intention of creating a new tenancy, often a tenancy from year to year … .”. ([2.4] p56)  There appears to be no presumption relevant to contracts for services equivalent to the presumption at law in favour of a tenancy from year to year.  It is customary in real estate leases to include a clause stating that if, with the consent of the landlord, the tenant remains in possession, the tenant will be regarded as a tenant from month to month upon the same terms as the expired lease, and his tenancy terminable upon one month’s notice which may be given at any time.

126     Putting aside any presumptions as to contracts running from year to year, the fact that the parties allowed the 1996 contract to expire without replacement but continued to tender and receive services in the same way as before implies an arrangement between them that, unless and until a new contract were entered into, they would continue on a short-term rolling basis on the same terms as those set out in the 1996 contract.

127     Mr Connors has pointed out that decision makers on the defendant’s side, such as Chief Executive, Mr Weeks, and Director of Medical Services, Dr Mullins, proceeded upon the footing that the 1996 contract had expired and was of no further effect, either directly or by analogy.  The Board Chairman, Mr Davey, seems to have proceeded upon a different and more cautious view; that is, that the 1996 contract, although expired and incapable of having further primary operation, might continue to operate on some implied basis — see [100] above.

128     I accept the submission of Mr Rinaldi that, generally, Anglo-Australian contract law proceeds upon an objective basis in the same way as the conduct of an over-holding tenant remaining in possession of premises and performing covenants under the expired lease — for instance, by paying rent — with the lessor permitting continued occupancy and accepting the payment of continued rent may lead to the inference of a new tenancy independently of findings as to the subjective intention of those parties.  I believe, objectively, Mr Robbins and the defendant should be regarded as continuing under the terms of the 1996 contract, albeit on an interim basis for the period 1999 until the events that gave rise to this proceeding.

129     The 1996 contract and, therefore, any interim extension of it, dealt with the provision of services.  It was not a contract of service, therefore, as a Visiting Medical Officer, Mr Robbins was an independent contractor and not an employee.  I did not understand either party to contend the opposite.[1]

[1]Neither party sought to make anything of the involvement of Mr Robbins’ company in any of these arrangements.

The impasse

130     At times, it seemed as if the Court was being invited to determine the merits of the different protocols advocated and used respectively by Mr Robbins and Dr Thilliaisundaram for the infiltration of local anaesthetic during plastic surgery under sedation.  As noted above, however, the defendant’s case was not that Dr Thilliaisundaram was right and Mr Robbins was wrong but, rather, that with both protocols being reasonable and acceptable approaches, it was within the authority of Dr Mullins as Director of Medical Services to direct Mr Robbins, in effect, to “fall in” with the requirements of Dr Thilliaisundaram.

131     In her correspondence, Dr Mullins had stated an intention to obtain a Ruling from the Anaesthetist’s College, which was never done.  Again, both Mr Weeks and Dr Mullins made copious references to alleged authoritative statements by Dr John Monagle in support of the protocol advocated by Dr Thilliaisundaram.  If Dr Monagle’s authority were to be invoked, I would have expected him to be called as a witness, which he was not.  Dr Thilliaisundaram gave evidence that, in his experience, his protocol and method was the one now most widely used.  Mr Robbins invoked his experience, both at the Warragul Hospital before the advent of Dr Thilliaisundaram and, in other locations, in favour of his preferred method.  In a broad sense, I believe that Dr Mullins had the authority to give the Ruling which she gave, especially is this so when Mr Robbins conceded that his insistence upon his own method was not a matter of patient safety.  I asked him:

Q:“… you could have done what you were being asked to do without creating any [safety issue]?---

A:I could have had done what was being – I certainly could have done it, yes.  And I would have been prepared to do it, but not on an ongoing basis.” (T42, L24-8).

Later, I put to him:

Q:“It’s not a situation where you could say that patient’s safety was being imperilled?---

A:No, I don’t think so, although the patient’s comfort may be slightly imperilled.” (T48, L13-15)

He explained this by saying Dr Thilliaisundaram’s procedure, “would prolong the whole procedure”.(T48, L20-21)  The following day, Mr Robbins sought to step back from that admission when, in answer to a question from Mr Rinaldi he said, “to a degree it was [that is the patient’s safety was being imperilled] because there’s no coordination between dosages.” (T143, L17-18).  For completeness, I should say, with all respect to Dr Thilliaisundaram, the thought that doing things as Mr Robbins preferred would seriously imperil patient safety by reason of an inability to monitor the patient’s cardiovascular symptom by reason of the “few seconds” it would take, is difficult to credit. (T745, L21)   The result, then, seems to be that either method is, as Mr Hill is recorded as saying at the Appointments Committee Meeting, an acceptable way of doing things.  Clause 7.2 of the 1996 contract states inter alia:

“The practitioner [viz Mr Robbins] undertakes to comply with reasonable directions of the Director of Medical Services.”

Dr Mullins’ directives as to the mode of infiltration of local anaesthetic for plastic surgery under sedation were, in the circumstances, reasonable, given they required adoption of what was, on the evidence before me, a widely accepted protocol.

Suspension

132     Mr Connors submitted, on behalf of Dr Robbins, that there:

“… was no contractual foundation/authority for the suspension [and] that the Defendant hospital in imposing such a suspension was in breach of whatever contractual terms under which Mr Robbins provided his surgical services.”

He referred to Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367. On behalf of the defendant, Mr Rinaldi said that there was no obligation for the hospital to request Mr Robbins to provide his services:

“in the 1996 contract as continued by agreement with the parties or, otherwise arising.  The plaintiff was a VMO who provided his services to a variety of health services on a freelance basis and there was no obligation on the defendant to request or ensure any particular services to be provided by the plaintiff.”

As a result, said Mr Rinadli, the defendant hospital was at liberty to refrain from using Mr Robbins’ service for good reason, or for no reason at all.

133     In the Stegbar case, Finklestein J had to determine whether Stegbar contravened s170MU of the Workplace Relations Act 1996 by locking out some employees without wages over several days. In determining the matter in favour of the applicant union, his Honour said:

“[24] … However, under the common law, in the case of threatened misconduct, an employer has no right to suspend an employee without pay. The employer may dismiss the employee, or it must permit the employee to carry out his duties, albeit otherwise than in performance of his obligations. In Hanley v Pease & PartnersLtd [1915] 1 KB 698 at 705 Lush J said:

‘[a]fter declining to dismiss the workman - after electing to treat the contract as a continuing one - the employers took upon themselves to suspend him for one day; in other words to deprive the workman of his wages for one day, thereby assessing their own damages for the servant's misconduct at the sum which would be represented by one day's wages. They have no possible right to do that. Having elected to treat the contract as continuing it was continuing. They might have had a right to claim damages against their servant, but they could not justify their act in suspending the workman for one day and refusing to let him work and earn wages.’

A right to suspend or stand down an employee without pay may be granted by contract (Warburton v Taff Vale Railway (1902) 18 TLR 420), including by a term implied by custom or usage (Marshall v English Electric Co Ltd [1945] 1 All E R 653) or by statute (Browne v Cmr for Railways (1935) 36 (SR) NSW 21). But no such right has been asserted here.”

Mr Rinaldi submitted that this principle had no application to Mr Robbins because he was not an employee.  I accept that submission.  The essence of the authorities upon which Finklestein J based his statement was that the individuals affected were employees who, otherwise, had an entitlement to be employed and receive a day’s wages on each of the relevant days.  Mr Connors submitted that the 1996 contract , if it applied, did oblige the defendant to provide work for Mr Robbins but identified no written provision to this effect.

134     There is no entitlement to damages arising out of Mr Robbins’ suspension.

Termination

135     Mr Rinaldi submitted that the termination of Mr Robbins’ engagement could be justified on the basis of “serious or wilful misconduct” contrary to Clause 8.1.3 of the 1996 contract as continued, or repudiation of contract.  Mr Connors submitted, on behalf of Mr Robbins:

“In order to validly terminate a contract of this nature summarily there must be a fundamental breach of the contract.  A fundamental breach goes to the heart of a contract such that it cannot continue.  Here there was no fundamental breach regarding the ‘Mexican standoff’ [the impasse over anaesthetic procedures] nor in relation to Mr Robbins’ dealing of the Herrick complaint.  The termination here was not immediate, nor even swift as there was a delay until the mediation was concluded before the process of Termination (referral to the Appointments Committee] was even commenced.”

As to the issue of Ms Herrick’s complaint, Mr Connors said:

“The Defendant hospital proceeded upon the erroneous and fundamentally wrong basis that Mr Robbins was trying to stop a patient complaining rather than [having] a legitimate purpose of trying to protect and preserve from defamatory conduct a reputation built up over 30 years of unblemished service and practice.”

He complained of an unbalanced and biased presentation made to the Appointments Committee.  Mr Connors continued:

“If the Court accepts the submission that neither the anaesthetic impasse nor the Herrick complaint amounts to a fundamental breach of the contract between the hospital and Mr Robbins, then it is submitted that termination of the same can only be effected with reasonable notice being given.”

136     Mr Rinaldi contended that refusal to comply with lawful and reasonable directions by Dr Mullins relative to the anaesthetic issue and threatening Ms Herrick with litigation had a “cumulative effect [which] constitute[d] such a serious breach, such misconduct and a repudiation.”  He said the express obligation in the 1996 contract requiring Mr Robbins to comply with reasonable directions of the Director of Medical Services had been breached, as had the obligation to cooperate in performance of the contract which is implied in contracts generally.  He referred to Commonwealth Bank of Australia v Barker [2014] HCA 32 at [30], Mackay v Dick (1881) 6 App Cas 251, 263 and Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607. He said that this was serious and wilful misconduct in that it was “`conduct so seriously in breach of the contract that by standards of fairness and justice the [principal] should not be bound to continue…’” (North v Television Corporation Ltd (1976) 11 ALR 599, 608-9). He submitted that these principles apply to contractors as well as employees. Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 413.

137     Mr Connors submitted that the direction from Dr Mullins was not reasonable and Mr Robbins was, therefore, entitled to resist it and he did not seek to stop Ms Herrick from complaining to the hospital.  These matters did not constitute serious or wilful misconduct, nor a breach of, or a repudiation of, a continuing contract.

138     Clause 7.1 of the 1996 contract states inter alia:

“The Practitioner hereby undertakes to comply with all Hospital by-laws, policies and circulars relevant to the services provided pursuant to this Agreement.”

The precise reach of any such obligation may be open to doubt.  Does it impose a strict obligation of compliance upon a practitioner with every minor circular issued by the hospital management or any notice that might be affixed to a wall or pillar in the operating theatre queried?  The obligation is ambulatory, that is, it is not confined to documents and policies existing in 1996.  One very important document published since, apparently in 2009 following the introduction of the Health Practitioner Regulation National Law Act 2009 and under s39 of that Act, is Good Medical Practice: A Code of Conduct for Doctors in Australia. Without necessarily acknowledging its link with Clause 7.1 of the contract, Mr Robbins agreed that it was incumbent upon him to comply with the terms of this Code (T92-93, 212). Mr Connors submitted that, absent evidence of the Code’s being drawn to Mr Robbins’ attention, it was not “picked up” by Clause 7.1 of the 1996 contract. Included amongst the requirements of the Code is Clause 3.11 (CB 193) headed “When a complaint is made”. The sub-clause states:

“Patients who are dissatisfied have a right to complain about their care.  When a complaint is made, good medical practice involves:

3.11.1     Acknowledging the patient’s right to complain.

3.11.2     Working with the patient to resolve the issue, where possible.

3.11.3Providing a prompt, open and constructive response, including an explanation and, if appropriate, an apology.

3.11.4Ensuring the complaint does not adversely affect the patient’s care.  In some cases, it may be advisable to refer the patient to another doctor.

3.11.5Complying with relevant complaints law, policies and procedures.”

139     Mr Robbins’ treatment of Ms Herrick’s complaint was at odds with the principles stated in Clause 3.11.  Mr Robbins denied he refused to accept Ms Herrick’s right to complain.  He said, both in his responses to the hospital and in the course of the hearing in this case, that his purpose in writing the letter quoted at paragraph [78] above, was to preclude Ms Herrick from airing her complaint to other patients, or potential patients, not to prevent her complaining to the hospital.  A consideration of the terms of that letter renders this interpretation impossible to accept.  Mr Robbins was referring to Ms Herrick’s complaint to the hospital and said that, in that complaint, she made “a number of libellous statements and I wish you to withdraw these … .”  Both as a matter of law and ordinary language, this is a reference to the criticisms that Ms Herrick made to the hospital of Mr Robbins’ surgical techniques and his bedside manner, in the letter.

140     The Defamation Act 2005 does not define the common law tort of defamation. That tort, however, is constituted by the publication of statements which would bring a plaintiff into hatred, ridicule and contempt. Plainly, criticisms of Mr Robbins’ “bedside manner” and his surgical techniques are defamatory. If these criticisms were well based, the maker of the statements would have available the defence of justification under s25 of the Act. In the circumstances in which a complaint was made, absent malice on the complainant’s part, the defence of qualified privilege would also be available under s30. Whether either of these defences would be available in the present case, the whole of the complaint could be regarded as “libellous” and it was the libellous statements that Mr Robbins demanded Ms Herrick withdraw. A demand to “withdraw” statements contained in a written complaint is scarcely consistent with a demand that the complainant stop sharing her grievances around by word of mouth. Mr Robbins, in all his communications, shows himself to be completely articulate and precise in his use of language; not only does his letter not objectively bear the interpretation he now attributes to it, I do not believe that his present explanation was his true intent when he wrote the letter. Forwarding of the letter was, therefore, a significant breach of the Code of Conduct.

141     Accepting the defendant’s view as to Mr Robbins’ response to the complaint from Ms Herrick, the question remains whether this constitutes “serious misconduct” within the meaning of the 1996 contract.  According to the editors of Macken’s Law of Employment (7^th ed), in the context of employer and employee relations:  “Misconduct is the usual (but not exclusive) ground for summary dismissal.  Misconduct connotes positive and intentional wrongdoing, whereas other grounds for dismissal, such as incompetence and neglect, do not involve intentional misconduct.”  [8.220] 317.  Mr Robbins’ action here was, for the reasons already given, wrongful, and certainly intentional, but was it of such a character as to be described as “serious” misconduct?  With some hesitation I conclude that, while it represented a very significant departure from proper standards of conduct by a Visiting Medical Officer, it did not merit the description of being “serious” misconduct.  As to repudiation, Gibbs CJ has said:

“… [a] contract may be repudiated if one party renounces his liabilities under it – if he evinces an intention no longer to be bound by the contract … or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way .”  (Shevill v Builders Licensing Board (1982) 149 CLR 620, 625-6)

I do not believe that Mr Robbins’ conduct relative to the Herrick complaint is of that character.

142     The defendant’s submission was that the response by Mr Robbins to the Herrick complaint, and his conduct relative to the anaesthetic dispute, could be aggregated so as together to constitute misconduct.  No authority was cited for the ability to aggregate in this way.  I am doubtful that it can be proper to aggregate a contractor’s actions or omissions relative to two disparate matters and to treat the aggregate as an act of misconduct if neither of the two separate matters, in themselves, constituted misconduct.

143     I turn, then, to a separate consideration of Mr Robbins’ conduct relative to the anaesthetic dispute.  For reasons already explained, I accept that Dr Mullins, as Director of Medical Services, had the authority to give the directions which she did.  Infiltration of local anaesthetic is not a matter of specialist expertise either in the field of surgery or of anaesthetics.  Dr Mullins rightly conceded that her authority, as directed, would not extend to giving orders as to the performance of surgery or other specialist procedures to specialist practitioners relative to their fields of expertise.  Here, the direction which she gave was on a non-specialist matter upon the interface of two specialties, namely plastic surgery and anaesthesia.  The need for a director in Dr Mullins’ position to be able to give such a direction to enable surgery and other processes to go forward in the hospital where different practitioners hold different views as to procedure, is obvious enough.  The 1996 contract expressly required Mr Robbins to act in accordance with lawful directions from the Director of Medical Services.  The narrative shows that his refusal to do so was neither fleeting nor isolated; it was maintained over a period of months at two surgical sessions and during a lengthy period of correspondence and deliberation thereafter.  The refusal was aggravated as to its seriousness by the creation of a “scene” at Mr Robbins’ second surgical session at the hospital for 2014.  Mr Robbins denied shouting and Dr Mullins was ultimately unable to say that she heard Mr Robbins shouting, herself.  The theatre manager who she believed told her of the occurrence was not called as a witness.  Nevertheless, the account of the incident indicates that the dispute or impasse occurred in an area relatively close to where at least one patient was waiting in a cubicle.  There were walls in-between but, presumably, there was no front on the cubicle.  It seems the patient became concerned at the unseemly dispute.

144     The defendant was also most critical of Mr Robbins’ action in copying his contentious correspondence with the hospital to a large number of outside practitioners.  There may be room to debate the wisdom or good taste of his actions in this regard, but I do not regard them as relevant to consideration of whether Mr Robbins’ actions in the entire dispute constituted serious misconduct.

145     A vehement and sustained refusal to abide by lawful direction from the Director of Medical Services in the circumstances described, in my view, merits the description of serious misconduct.  The direction of the Director of Medical Services was, for reasons explained, reasonable.  This constitutes grounds for termination of the 1996 contract as extended by the conduct of the parties in accordance with Clause 8.1.3.  Mr Robbins’ actions, relative to the dispute as to anaesthesia, also constitutes a serious breach of the term of the agreement, namely, Clause 7.2 and, therefore, Clause 8.1.4 of the contract also provides a ground for termination.  The defendant, by its action, elected to terminate.  Moreover, Mr Robbins’ conduct in the dispute as to anaesthesia showed that he intended to fulfil his obligation under the contract only in the manner substantially inconsistent with his obligations thereunder and not in any other way and so constituted a repudiation in accordance with the formulation of that concept by Gibbs CJ in Shevill’s case.  The defendant’s subsequent actions indicate an election to accept the repudiation and terminate the contract.  Those involved in making the determination for the defendant did not analyse the situation in this way.  Nevertheless, since the exercise of powers under a contract must be analysed objectively, the fact that they did not have these matters in contemplation then, does not prevent the defendant’s reliance upon them now.  (Shepherd v Felt and Textiles of Aust Ltd (1931) 45 CLR 359).

146     Mr Connors was critical of the briefing note prepared by Dr Mullins and Mr Weeks and of various procedural aspects of the termination.  This is not, however, a situation where any breach of an obligation to accord Natural Justice was included in the plaintiff’s Statement of Claim.  There was cross-examination as to grievance procedures.  The one contained in the 1996 contract in Clause 9 provided for discussions, which did occur in this case, with future steps which needed to be invoked by Mr Robbins and were not.  Another grievance procedure was produced but it was expressed to apply to employees and volunteers, not Visiting Medical Officers.

Consulting Suite

147     There was a separate contract governing the use by Mr Robbins of his consulting suite at the hospital (CB 343B and following).  Termination required one month’s notice.  Whilst the use of the consulting suite is mentioned in the plaintiff’s claim, no relief is sought under this written agreement.

Relief

148     The plaintiff’s claim fails, it must be dismissed.

149     I have heard no submissions on the question of costs and so I will reserve them.

150     The Orders are:

(1)      Proceeding dismissed;

(2)      Costs reserved.