Freeman v Sydney Local Health District [2021] NSWSC 423

Supreme Court New South Wales

Medium Neutral Citation: Freeman v Sydney Local Health District [2021] NSWSC 423 Hearing dates: 11 February 2021 Decision date: 26 April 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the plaintiff; (2) Pursuant to the provisions of s 75 of the Supreme Court Act 1970 (NSW), a declaration that the plaintiff possesses a right of appeal from the decision not to appoint him to the position of Visiting Medical Officer, Concord Repatriation General Hospital, being the position with a Requisition ID of REQ141588; (3) Pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW), the decision of the second defendant of 9 September 2020 is quashed; (4) Pursuant to the terms of s 65 and s 69 of the Supreme Court Act 1970 (NSW), the Minister refer the appeal of the plaintiff in relation to his non-re-appointment to Position ID REQ141588, being a Visiting Medical Officer, Department of Vascular Surgery, Concord Repatriation General Hospital to a Review Committee; (5) The first defendant pay the plaintiff's costs of and incidental to these proceedings. Catchwords: ADMINISTRATIVE LAW – Judicial Review – Review Committee under Health Services Act 1997 (NSW) determined no jurisdiction – jurisdictional error – also error of law on the face of the record – failure to exercise duty and jurisdiction – statutory construction – meaning of "re-appoint" – whether "position" was of the same kind; STATUTORY INTERPRETATION – Health Services Act 1997 (NSW) – plain and grammatical meaning – legislative intention – use of Second reading Speech – appeal against decision "not to re-appoint" – whether the subsequent position was "of the same kind" – whether re-appointment Legislation Cited: Health Services Act 1997 (NSW) Health Services Regulation 2018 (NSW) Interpretation Act 1987 (NSW) Public Hospitals Act 1929 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 125 FCR 9; [2002] FCAFC 193 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28 Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 241-242; [1976] AAT 1 Will v Brighton [2020] NSWCA 355 Woodgate v St Vincent's Hospital Sydney Ltd [2001] NSWSC 941 Category: Principal judgment Parties: Dr Anthony Freeman (Plaintiff) Sydney Local Health District (First Defendant) The Committee of Review, constituted by Ms Geri Ettinger, Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston (Second Defendant) Representation: Counsel: J L Glissan ESM AM QC / D H Nagle (Plaintiff) A T Britt / R A McEwen (First Defendant) Submitting Appearance (Second Defendant)