TOOMEY v POWER [1993] NSWCA 271

TOOMEY v POWER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and CRIPPS JJA 25 May 1993, 18 August 1993

[1993] NSWCA 271

GREAT — jurisdiction to determine appeals — whether respondent was employed "dn the service of the Crown" — respondent employed by United Dental Hospital of Sydney — body did "not represent the Crown". HELD: The respondent was, for the purposes of GREAT, "in the service of the Crown" although employed by a body which has a separate legal personality from the Crown.

Mounsey and Anor v Findlay, Court of Appeal, 18 August 1993, unreported. Priestley JA I agree with Clarke JA.

Clarke JA The respondent, Mr Power, was employed by the United Dental Hospitalof Sydney. In 1989 he applied for a position of Senior Dental Technician, Partial Denture Section, at that hospital. He was not successful and a decision was made to appoint the appellant, Mr Toomey, to the position. On 16 August 1989 the respondent lodged a notice of appeal to the Government and Related Employees' Appeal Tribunal ("the Tribunal') against that decision.

Upon his appeal coming on for hearing the appellant (who was the respondent to that appeal) submitted that the Tribunal lacked jurisdiction because the respondent was not an employee within the meaning of para(e) of subs4(1) of the Government and Related Employees' Appeal Act 1980 ("the GREAT Act"). The submission raised the issue whether the respondent was "employed in the service of the Crown" within the meaning of s4(1)(e) of the GREAT Act. The Tribunal found that the respondent was employed in the service of the Gown and therefore held that it had jurisdiction.

This conclusion has been challenged in this Court. The appeal was heard at the same time as the appeal in Mounsey and Anor v Findlay and it is, I think, true to say that all the argument concerned the other matter. Counsel for the appellant indicated to the court that there was some doubt whether it was necessary to consider the Area Health Services Act 1986 or the Public Hospitals Act 1929 in order to resolve this case but added that there was no need to decide that question as the result would be the same in either event. This concession was accepted by counsel for the respondent and the hearing proceeded upon the basis that the decision in the matter of Mounsey and Anor v Findlay would resolve this appeal also. In these circumstances it is unnecessary to say any more than that pursuant to s22A of the Public Hospitals Act the Board of Directors of an incorporated public hospital is subjected to the control and direction of the Minister except in a respect which is expressed in precisely the same terms as s14 of the Area Hospitals Act. Further, by subs2 of s22A it is provided that an incorporated hospital does not represent the Crown. In addition s40BA of the Public Hospitals Act is, relevantly, in substantially identical terms with s26 of the Area Hospitals Act.