Australian Salaried Medical Officers Federation (NSW) v State of New South Wales [2023] NSWSC 637

Supreme Court New South Wales

Medium Neutral Citation: Australian Salaried Medical Officers Federation (NSW) v State of New South Wales [2023] NSWSC 637 Hearing dates: 07 June 2023 Date of orders: 07 June 2023 Decision date: 07 June 2023 Jurisdiction: Common Law Before: Garling J Decision: See [43] Catchwords: CIVIL PROCEDURE — hearings — consolidation of proceedings — claims made by 54 separate doctors concerning payments due to them for unpaid, un-rostered overtime and unpaid compensation for meal breaks which could not be taken — where one proceeding concerning 20 of those doctors commenced in 2021 — where three further proceedings concerning the other doctors each commenced in 2022 — whether to consolidate proceedings — whether consolidation would be pragmatically the most efficient course consistent with the requirements of fairness — consolidation ordered Legislation Cited: Civil Procedure Act 2005 Cases Cited: Ghose v CX Reinsurance Company Limited [2010] NSWSC 110 Texts Cited: Public Hospital Medical Officers (State) Awards Category: Procedural rulings Parties: Australian Salaried Medical Officers' Federation (New South Wales) (P) State of New South Wales (D) Representation: Counsel: C Doust / R Kumar (P) R Lancaster SC / C Gleeson (D)

Solicitors: Hall Payne (P) Minter Ellison (D) File Number(s): 2021/335846; 2022/114583; 2022/148391; 2022/379420 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

Proceedings Generally 1. The Australian Salaried Medical Officers' Federation (New South Wales), ("ASMOF"), has commenced four separate sets of proceedings against the State of New South Wales ("the State") ("the four proceedings"). The first proceeding was commenced in 2021 ("the 2021 proceeding"). Three further proceedings were commenced in 2022 ("the 2022 proceedings"). 2. The 2021 proceeding claims that NSW Health contravened the applicable Public Hospital Medical Officers (State) Awards and underpaid various nominated medical practitioners. This proceeding is one in which ASMOF brings the claim on its own behalf for a civil penalty and declaration of contraventions of the awards, and on behalf of 20 specified junior doctors for underpayment. 3. The 2022 proceedings are brought on behalf of respectively 14, 15 and five individual doctors. 4. There are, in total, claims being made in the four proceedings on behalf of 54 identified junior doctors. 5. The claims cover differing periods and involve a time range from 2016 through to and including 2022. Each of the "individual claims" (a phrase I use to describe the claims of the doctors on whose behalf ASMOF has brought proceedings), cover various periods and various departments within public hospitals and often more than one public hospital. The claims touch upon two subject matters, namely, payments due to the doctors for unpaid, un-rostered overtime and unpaid compensation for meal breaks which could not be taken. 6. The four Statements of Claim, except for the details contained in a schedule about the individual doctors, are in identical terms. The same industrial awards are relied upon. The specific provisions of those awards are identified in the same way in the pleadings, and the contraventions which are alleged are against similar provisions, although bearing different characteristics respectively for each individual nominated doctor. 7. In the course of the pleadings, it is pleaded that the various contraventions arose during a defined period known as "the relevant period". That relevant period is defined in the same way in each Statement of Claim. It means the period of time for the relevant conduct and events occurring in the six‑year period prior to the commencement of proceedings. Obviously, the starting point of time for that relevant period will be different. However, that difference is unlikely to be material because the contraventions which are relied upon will run from the first day of the period of the 2021 proceedings until the last day of the proceedings last filed.