Industrial Relations Commission of New South Wales in Court Session CITATION : Schwartz v Central Sydney Area Health Service & Anor [2002] NSWIRComm 79 APPLICANT Dr Liliana Schwartz PARTIES : FIRST RESPONDENT Central Sydney Area Health Service SECOND RESPONDENT Professor John Hilton FILE NUMBER: IRC 2600 of 1999 CORAM: Marks J CATCHWORDS : Unfair contract - Representation about promotion was promissory - Impact on promotion of provisions of industrial instruments and conditional registration as a medical practitioner - Application of principles of estoppel in determinating whether a contract unfair - Whether withdrawal of some duties created unfairness - Denial of procedural fairness held not to create unfairness in all the circumstances - Assessment of competency of applicant to perform certain duties - Whether allegations of discrimination justified finding of an unfair contract - Whether respondents acted unreasonably in approach to assessment of applicant's medical qualifications - Whether failure to pay medical specialist staff rates when performing work of a specialist created an unfair contract - Principles for determination of whether contract unfair under s 106(2). LEGISLATION CITED : Industrial Relations Act 1996 s105 s106 Anti Discrimination 1977 The Commonwealth v Verwayen (1990) 170 CLR 394 Briginshaw v Briginshaw (1938) 60 CLR 336 O'Connor v The Argus and Australasian Ltd (1957) VR 374 Federated Insurance Co of Aust Ltd v Sabine Ltd (1920) SALR 284 The Commissioner of Taxation v Sara Lee Household & Bodycare (Aust) Pty Ltd (2000) HCA 35 CASES CITED : Tallerman v Nathan's Merchandise (Vic) Pty Ltd (1956-57) 98 CLR 93 Baker v National Distribution Services Ltd (1993) 50 IR 254 Byrne v Australian Airlines Ltd (1995) 185CLR 410 Reich v Client Server Professionals of Australia Pty Ltd (2000) NSWIRComm 143 Origin Energy Ltd v Smith (2001) NSWIRComm 308 Bates v Finance Australia Pty Ltd (2002) NSWIRComm 42 HEARING DATES: 08/06/2001; 08/07/2001; 08/08/2001; 08/09/2001; 08/10/2001; 11/15/2001; 11/16/2001; 03/25/2002 DATE OF JUDGMENT: 05/16/2002 APPLICANT Mr A Moses of counsel SOLICITORS Michael Harmer & Associates LEGAL REPRESENTATIVES: RESPONDENTS Mr M J Kimber SC and Ms E A Collins of counsel SOLICITORS Minter Ellison JUDGMENT: INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 16 May 2002 Matter No IRC 2600 of 1999 DR LILIANA SCHWARTZ v CENTRAL SYDNEY AREA HEALTH SERVICE & ANOR Application under s106 of the Industrial Relations Act 1996 JUDGMENT 1 In these proceedings the applicant Liliana Schwartz claims certain relief under s 106 of the Industrial Relations Act 1996 ("the Act") against the first respondent Central Sydney Area Health Service and the second respondent John Hilton. The applicant who has specialist overseas qualifications from Israel became employed as a forensic pathologist in the division of Forensic Pathology operated by Royal Prince Alfred Hospital. This occurred in January 1989 when she was appointed to the position of Registrar, Fourth Year. She alleged that prior to her appointment she was informed that if her performance was appropriate she would be appointed to a position of staff specialist after twelve months. She applied for a position of staff specialist in February 1990, but has not been appointed to that position. On 1 January 1995 the applicant was appointed a Career Medical Officer Grade I, Fourth Year with the first respondent which, by that stage, operated what is now called the Institute of Forensic Medicine. The second respondent has been the Director of that Institute since 1991. 2 Section 105 and 106 of the Act are as follows: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. 3 The applicant alleges that the contract between her and the first respondent was and, in the alternative, became unfair by reason of the failure of the first respondent to appoint her to a staff specialist position. She seeks consequential orders which would have the effect, in general terms, of compensating her for loss of remuneration she would have earned as a staff specialist. 4 I shall discuss the relief claimed later in these reasons for judgment. However the summary which I have set out above will enable some understanding of the context in which this litigation was conducted, and some understanding of the more detailed factual narration which follows. 5 The applicant was born on 23 July 1950. In July 1975 she received a Diploma of Doctor of Medicine from the University of Buenos Aires. In March 1977 she became a registered medical practitioner in Israel. Between April 1977 and July 1984 she worked as a medical officer in the Institute of Pathology at Shiba Medical Centre in Israel. On 9 September 1987 she was registered as an expert in the field of Anatomical Pathology in Israel. 6 The applicant applied for conditional registration with the New South Wales Medical Board which was granted to her on 16 January 1989. She made that application in conjunction with an application to become employed at the Division of Forensic Medicine. The Medical Board certificate, which was necessary to allow the applicant to practice medicine in New South Wales was issued subject to the following conditions: "To undertake post-graduate tuition in forensic medicine at the Division of Forensic Medicine under the supervision of Dr G Oettle, not claim rebates or remuneration through the Health Insurance Commission or levy any fee for service." The certificate expired on 17 January 1990. The applicant became employed as a senior registrar in Forensic Pathology with the Division of Forensic Medicine in January 1989. The Acting Director of the Division was then Dr G Oettle. The applicant alleged that at the time of her appointment Dr Oettle said to her: "You will be appointed to the position of staff specialist after twelve months if your performance is good." 7 The applicant revealed her understanding of what had been said to her by Dr Oettle in a letter to Mr Peter Read, General Manager of Royal Prince Alfred Hospital dated 25 June 1997. The letter was written in order to register a complaint about her failure to be appointed as a staff specialist. Relevantly, for the purpose of considering the applicant's understanding of what had occurred historically the letter said: "In November 1988 I applied to work at the Institute of Forensic Medicine. I was interviewed by Professor Harper and Dr Oettle (the then Acting Director of the Institute). I negotiated the terms of my employment with Dr Oettle and we agreed that even though I held appropriate specialist qualifications from Israel, the standard of those qualifications was unknown. He agreed that I would work for a period of one year as a Registrar Year IV and if the standard of my work proved to be satisfactory, I would be appointed as a staff specialist after one year. He went on to explain that Dr Duflou would be arriving from South Africa and would start working at the Institute at almost the same time I would start. He went on to explain that standards in South Africa are known and accepted as such, Dr Duflou would start immediately, as a staff specialist. Given the circumstances I thought Dr Oettle was fair and we agreed to the conditions as stated above. After the year had elapsed I approached Dr Oettle about being appointed as a staff specialist. He agreed that my standard of work and knowledge was satisfactory and stated what he believed to be the procedure required for my appointment as a staff specialist." 8 In December 1989 the applicant had a conversation with Dr Oettle concerning her appointment to a staff specialist position. On 28 December 1989 Dr Oettle wrote to Mr John Boyd who was then the Executive Officer for Diagnostic Services at Royal Prince Alfred Hospital. The letter stated that the applicant had been employed as a senior registrar and referred to her post-graduate qualification in Anatomical Pathology from Israel. The letter said "Since she has joined us she has exhibited a high standard of expertise and is in effect working as a staff specialist with all that this entails, including rostered duties as first on-call, management of routine cases and special cases including homicides. I feel that Dr Schwartz shows a high degree of knowledge and proficiency and I have no hesitation in recommending that she be upgraded to the status of Staff Specialist in the Division of Forensic Medicine as soon as possible." 9 During the course of cross-examination the applicant was shown Dr Oettle's letter to Mr Boyd of 28 December 1989. There followed the following evidence: "Q. And that is a letter that he sent consistent with what he told you he was going to do, that after the 12 months of his assessment of you he says in the last four lines, "I feel that Dr Schwartz now shows a high degree of knowledge and efficiency and I have no hesitation in recommending she be upgraded to the status of staff specialist in the division of forensic medicine as soon as possible? A. Yes Q. So he was recommending appointment? A. Yes Q. And you accept that was all he could do, was recommend that you be appointed as a specialist. You accept that, don't you? A. I accepted that he was recommending and that - yes, of course. Q. Because your employer at that time was either the Royal Prince Alfred Hospital or the Department of Health, wasn't it. You weren't employed by Dr Oettle? A. Royal Prince Alfred Hospital. Q. And you understood, did you not that if you applied for a position as a specialist that another person, other people might apply as well and there would be a number of applicants for that position. You understood that, didn't you? A. Yes. Q. And so there would have to be a selection process to decide who got the position? A. Yes. Q. And if that was so Dr Oettle couldn't deliver the successful candidate, could he, on his own? A. I understood that he would be on the panel and the recommendation from the director would be very forceful. Q. So he made that recommendation and if you turn over to the next document which is tab 20 in volume 1, there is the original advertisement that you applied in response to - ? A. Yes I did. Q. - to a staff specialist? A. Yes I did. Q. If you have a look at that position which is towards the left-hand side on the bottom, staff specialist forensic pathologist. It says, "Medical practitioner registered in New South Wales or eligible for registration in New South Wales, a post graduate qualification in pathology, the FRCPA or acceptable equivalent." Do you see that? A. Yes. Q. So when you applied in February 1990 you knew that you either had to have the FRCPA or an acceptable equivalent qualification, correct? A. That's correct. Q. So …. by February 1990 at the very latest you knew that either your Israel qualification had to be recognised or alternatively you have to have the FRCPA, you knew that, didn't you? A. Or be an equivalent. Q. The Israel qualification being treated as an equivalent and if it wasn't you had to have the FRCPA? A. That's correct. Q. So you put in an application for that position, correct? A. Correct." 10 There then followed in cross examination evidence by the applicant to the effect that she understood and anticipated that her qualifications would be accepted as being comparable to an FRCPA. 11 On 15 February 1990 there appeared in the Sydney Morning Herald an advertisement for a position as a Staff Specialist - Forensic Pathologist at the Institute. The advertisement appeared under the heading "Central Sydney Health Service." It stated that applicants must either be registered as a medical practitioner in New South Wales or eligible for registration. The advertisement also stated that it was essential that the applicant have a post graduate qualification in pathology being "FRCPA or acceptable equivalent." By letter dated 5 March 1990 the applicant applied for appointment to that position, and was the only applicant. 12 An industrial award made by the Industrial Relations Commission of New South Wales applied at that time to medical specialists within the New South Wales public health system and in particular to the position of staff specialist for which the applicant had applied. Relevantly, a specialist was defined in clause 2 of the award being the Medical Officers Hospital Specialists (State) 1978 Award, as follows: "Specialist means a person appointed as such by a hospital who - (a) holds a medical qualification registrable in New South Wales; and (b) After full registration has spent not less than 5 years in the practice of medicine in a hospital or a state hospital of New South Wales or in a department in the Faculty of Medicine in the University of Sydney or in the Faculty of Medicine in the University of New South Wales or in the Institute of Clinical Pathology & Medical Research or in any other institution, whether in New South Wales, deemed by the employing hospital to be an equivalent standing; and (c) has spent not less than three years in supervised specialist training and/or experience; and (d) has obtained an appropriate higher medical qualification in his speciality acceptable to the employing hospital". 13 A circular issued by the Department of Health, NSW on 30 May 1990 dealt with persons applying for positions with Area Health Services Regions and Hospitals who had overseas qualifications. Such persons were said to be "responsible" to provide documentary evidence that these qualifications were acceptable in accordance with the requirements of the relevant award. The circular said that applicants who fail to present documentary evidence should not be employed in a position calling for specific qualifications until they produced documentation from the appropriate Authority said to be the "National Office of Overseas Skills Recognition". The circular concluded, in this respect, that "overseas medical specialities may be verified by reference to the National Specialist Qualifications Advisory Committee of Australia publication available from Australian Government Bookshop." There was reference to the exercise of caution with respect to some specialities in particular areas which, for present purposes, are not relevant. Accordingly, the Department of Health required all hospitals including the respondent to require the applicant to obtain documentary evidence that her specialist qualifications were verified in the manner set out. 14 Mr Boyd wrote to the National Specialist Qualification Advisory Committee of Australia ("NSQAC") enclosing the applicant's curriculum vitae. Mr Boyd referred to "a severe shortage of forensic pathologists in Australia" and asked that that Committee review the applicant's qualifications. By letter dated 29 June 1990 the Executive Secretary of NSQAC replied indicating that that Committee did not assess the qualifications of individual doctors but provided advice on qualifications and branches of medicine to registering or recognising bodies so as to provide a level of uniformity. The letter said that the qualifications of an individual might be assessed by the Specialist Recognition Advisory Committee in the relevant State. That recognition was for the purpose of the Health Insurance Act. The letter also suggested an approach to the Royal College of Pathologists to assess the applicant's qualifications. 15 Mr Boyd responded to Dr J Duflou of the Division of Forensic Medicine by letter dated 24 July 1990 suggesting that the Specialist Recognition Advisory Committee ("SRAC") and the Royal College of Pathologists should be approached. Dr Duflou wrote to SRAC on 23 August 1990 stating that the applicant needed to apply for specialist recognition. His letter said in part: "Dr Schwartz, as shown in the enclosed curriculum vitae, has been employed at the Division of Forensic Medicine since January 1989, during which time her responsibilities and duties have been equivalent to those of a specialist Forensic Pathologist. Dr Schwartz has been performing those duties satisfactorily in all respects, and it is the opinion of the Division that she should be recognised as a specialist Forensic Pathologist." Dr Duflou signed that letter as Deputy Director. 16 The Chairman of SRAC wrote to the Royal College of Pathologists on 5 October 1990 requesting advice as to the adequacy of the applicant's training in terms of recognition as a specialist in forensic pathology. 17 In the interim, on 5 October 1990 Dr Duflou as Deputy Director of the Division of Forensic Medicine wrote again to Mr Boyd seeking to have the applicant's classification upgraded to senior registrar in Forensic Medicine, back-dated to 16 January 1990. The letter said that the applicant had been working as a registrar or specialist for well in excess of four years. Dr Duflou said "I would like to reiterate that during the time that Dr Schwartz has worked at the Division of Forensic Medicine her work has been of a high standard, and almost since her arrival at the Division she has performed the same duties as the Staff Specialists." 18 On 11 October 1990 the Royal College of Pathologists of Australasia recognised the applicant's period of training in anatomical and forensic pathology as sufficient to warrant her recognition as a specialist in Forensic Pathology. Accordingly, on 30 October 1990 SRAC recommended to the Federal Minister - Department of Community Services and Health that the applicant be recognised as a specialist of the sectional speciality of Forensic Pathology with effect from 27 August 1990. 19 The applicant said that in December 1990 she sent a copy of the recognition afforded to her by SRAC to the New South Wales Medical Board seeking that conditions imposed on her registration be lifted, but she received no reply. 20 Professor John Hilton, the second respondent commenced appointment as the Director of the Institute of Forensic Medicine in March 1991. Professor Hilton is a qualified forensic pathologist and is an Associate Professor in the Department of Pathology at the University of Sydney. The principal function of the Institute is to conduct autopsies and prepare reports for the Coroner and other courts concerning the cause and manner of death. The cases handled by the Institute vary from uncontroversial routine situations to complex controversial matters including suspected homicides. The staff are required to conduct autopsies, prepare reports and assist the police and the Coroner as well as giving evidence in criminal cases. 21 Professor Hilton said that upon his appointment he realised that the Division of Forensic Medicine, as the Institute was then known had been poorly managed and administered. Professor Hilton set about remedying what he saw as a large number of defects. Included within these defects was a lack of careful supervision of registrars. In his evidence in these proceedings Professor Hilton was careful to point out that the position of a registrar is that of a medical practitioner in training. As such registrars are given cases of a more routine nature to deal with. They are exposed to more complicated cases including homicides under close supervision of a specialist in order to advance their training and to assist them in completing their examinations so as to be recognised as a specialist. These are examinations conducted by the Royal College of Pathologists of Australasia ("RCPA") leading to the awarding of a Fellowship. 22 Professor Hilton introduced a number of changes to the procedures of the Institute including a requirement that reports to coroners be counter-signed by a staff specialist. This was to "ensure a high standard of work in reports prepared by the Institute and to ensure that a supervisor takes some responsibility for the report, as well as the person who prepared it." 23 Professor Hilton also supported a system pursuant to which all medical staff who were available met at 12 noon each day to discuss their case load and to discuss particular cases with which they were dealing. This was to be an informal forum to encourage discussion, and in the case of supervisors, learning by those being supervised. 24 It was the evidence of Professor Hilton that when he joined the Institute he was concerned about the lack of supervision that had been accorded to the applicant, and was concerned about her competency as a forensic pathologist. 25 Professor Hilton came to reach an understanding about the applicant over a period of time. He recognised what he said were limitations in connection with her command of English together with "a deficiency in her knowledge and skill which was greater that I would expect from someone with her experience." He considered her to be "a pleasant, hard-working colleague who made a useful contribution to the Institute as a registrar." He was adamant that she was not performing and could not perform the work of a specialist either in terms of innate competency and ability or in terms of an ability to supervise others. 26 The applicant said that she approached Professor Hilton in about March 1991, giving him a copy of the recognition letter issued by the Department of Community Services and Health and asking to be appointed a staff specialist. She alleged that Professor Hilton dismissed that recognition as "not being worth the paper it is written on" and advising her that the only way she would be appointed a specialist was by passing the Fellowship examination conducted by the College. The applicant also alleged that Professor Hilton said to her "a foreigner like you should be happy to have a job at all". 27 Professor Hilton has no recollection of the approach of the applicant at that time nor of making any of the statements attributed to him. However he said that is was more likely than not that he would have advised the applicant of the necessity to pass the College Fellowship exam. He particularly denied having made any reference to a foreigner because Professor Hilton himself was born and qualified initially in Scotland. 28 There was a further reason why Professor Hilton was of the view that he could not have acceded to the applicant's request at that stage. This was because her qualifications did not permit her to be appointed a specialist in accordance with the provisions of the industrial award. At that stage NASQAC did not recognise the Israeli qualification held by the applicant. Accordingly, the applicant could not be employed as a specialist under the award. That situation prevailed until a new industrial instrument came into effect in 1995. 29 Between 1992 and 1994 the applicant said that she approached Professor Hilton several times to be promoted to a staff specialist. She was always advised that she needed to pass the Fellowship examination. 30 Professor Hilton arranged for the applicant to be re-graded to a Career Medical Officer in January 1995 and she has had a subsequent promotion within that grade. Professor Hilton said that he arranged the re-grading for three reasons. The first was that as the registrar's position was a trainee position, to leave the applicant in that position for an indefinite period would block a training position for someone else. Secondly that grade would give the applicant a secure position and, as he described it, "tenure". Thirdly that grade attracted a higher salary than registrar and Professor Hilton wished to assist the applicant. He said that it was his desire to assist the applicant, including by way of financial assistance that led him to support her upgrading within the Career Medical Officer position. 31 The applicant did attempt the Fellowship exams in 1992, 1994, 1996, 1997 and 1999. She failed on each occasion. The applicant acknowledged that it was unusual to be given more than two opportunities to undertake that exam and further acknowledged the support of Professor Hilton's assistance in enabling her to re-sit the exam. 32 Consequent upon the repeal of the Medical Practitioners Act 1938 and the enactment of the Medical Practice Act which was to come into effect on 1 March 1993 the New South Wales Medical Board wrote to the applicant on 12 February 1993 requesting certain information so that her registration status of a conditionally registered doctor could be determined under the new Act. By letter dated 17 February 1993 the applicant wrote to the Board providing the information required. She referred to her application to the Royal College of Pathologists of Australasia to complete the final examination in anatomical pathology, slanted to forensic medicine. Under a heading "Future Plans" the applicant included the following: "To complete the examination of the College and work as a consultant in the field of Forensic Medicine." By letter dated 23 April 1993 the applicant was advised that her registration would continue under the following conditions: "To work as a registrar at the Institute of Forensic Medicine. Locum positions outside the Institute are not permitted." That letter continued: "The Committee expects you to continue training towards the Fellowship of the RCPA. If you seek to change your employment in any way, you are required to seek the approval of the Board in advance." The certificate issued on 7 April 1993 imposed upon registration the following conditions: "To work as a registrar at the Institute of Forensic Medicine. Locum positions outside the Institute are not permitted." 33 Certainly, as at that date it was a condition of the applicant's registration as a medical practitioner in New South Wales that she work as a registrar at the Institute of Forensic Medicine. 34 On 3 April 1990 the Royal College of Pathologists of Australasia received an application form "for initial registration and approval of training programme" completed by the applicant. It should be noted that this application was completed whilst processes were in place to recognise the applicant's Israeli qualifications and prior to Professor Hilton being appointed to the respondent. It was the evidence of the applicant that the only reason why she undertook examinations with the RCPA was because she had been misled by Professor Hilton to the effect that she would require a Fellowship in order to be appointed as a staff specialist. That evidence must be incorrect. 35 In May 1995 the provisions of the industrial award previously referred to were replaced by the Central Sydney Area Health Service Staff Specialists' Enterprise Agreement. That agreement contained a new definition of specialist in the following terms: "Specialist means a person appointed as such by the Area who - (a) holds a medical qualification that is registrable in New South Wales; (b) after full registration has spent not less than five years in the practice of medicine in a private or public hospital, in New South Wales or in any other environment, whether in New South Wales or elsewhere, deemed by the Area to be of equivalent standing; and (c) inclusive within the period described in (b) above has spent not less than three years in supervised specialist training and/or experience; and (i) has obtained an appropriate medical qualification recognised by the National Specialist Qualifications Advisory Committee or its equivalent from time to time and such higher medical qualification in his/her specialty is acceptable to the Medical Appointments & Credentials Advisory Committee of the Area Health Service and the Area Board; or (ii) if the qualifications are not recognised by the National Specialist Qualifications Advisory Committee, then the person has obtained an appropriate higher medical qualification in his/her specialty acceptable to the Medical Appointments & Credentials Advisory Committee of the Area Health Service and the Area Board; Staff Specialists who are paid pursuant to the Award, immediately before the commencement of the Agreement and whose medical qualification is not currently recognised by the National Association of Specialist Qualifications and Accreditation Committee or its equivalent from time to time, will continue to be recognised as Staff Specialists for the purpose of this agreement". 36 Professor Hilton wrote a supervisors report in connection with the applicant's enrolment for the Fellowship exam. The report which is dated July 1996 said, in part, "Dr Schwartz is a team player. She is not suited either by intellect or personality to solo independent practice. She is a caring, pleasant, conscientious, hard-working junior colleague. She freely admits to her lack of communication skills and commonsense - the first she has tried to improve without success, the second is not amenable to correction. She has worked very hard at her professional training to date and is not likely to benefit from continuing in the full training programme." The applicant wrote an accompanying commentary disagreeing with the assessment made by Professor Hilton. 37 On 11 November 1996 the New South Wale Medical Board afforded the applicant conditional registration to work "only as a Forensic Pathologist in positions approved by the Board." I consider that it was only from that date that the applicant could have worked as a staff specialist, and then only if approved by the Board. 38 Thereafter, the applicant vigorously pursued her claim that she be appointed a staff specialist. She complained in writing to Professor Hilton about the necessity for her to be supervised by a staff specialist and about an alleged lack of cooperation in making a variety of cases available to her so that she could complete a "case book" for the purpose of her Fellowship exam. She engaged in correspondence with the RCPA, the General Manager of Royal Prince Alfred Hospital, the New South Wales Medical Board, NASQAC and her local member of Parliament. She also involved the Australian Salaried Medical Officers Federation (NSW) in making representations on her behalf. 39 By letter dated 5 December 1997 the first respondent advised the applicant that it had endorsed a recommendation from the Area Medical Appointments Advisory Committee that her Israeli qualification was sufficient to meet the requirements of the definition of Specialist in the enterprise agreement. This had the effect of recognising the Israeli qualifications as enabling the applicant to be appointed a staff specialist in Forensic Pathology. However, I should point out that the evidence in the proceedings was to the effect that this would not ipso facto entitle the applicant to be appointed a staff specialist. It would still be necessary for such a position to be vacant and for the applicant to be appointed on merit. 40 Certain allegations were made on behalf of the applicant alleging discriminatory practices on the part of the first and second respondents against her. These were not ultimately pursued through any official channels, and I shall refer to them later. 41 The examiner's comments in connection with the applicant's attempt to sit the Fellowship examination in 1997 were received into evidence. Professor Douglas Henderson, Chief Examiner in Anatomical Pathology on behalf of the panel of examiners in forensic pathology concluded the examiner's report in the following way: "The examiners concluded that Dr Schwartz's factual knowledge was adequate in many areas, although there were clearly some areas in which her factual knowledge was below the standard expected. Of far greater significance was the demonstrated lack of ability to integrate observations in such a way as to arrive at the appropriate interpretation and conclusion. This intellectual process is critical for the practice of forensic pathology and remained a substantive weakness of this candidate. In interpreting information, she tended to give a very limited range of differential diagnoses, often omitting the correct diagnosis and being highly resistance (sic) to changing her opinion when the factual basis for her opinion was shown to be incorrect. The examiners concluded the candidate had not yet achieved a level of knowledge, the skill and experience to be a consistently safe forensic pathologist operating independently at consultant level." 42 The applicant replied in writing to these comments, asserting her competence and rejecting many of the comments made. 43 A position for staff specialist became vacant in January 1998. The applicant applied for that position as did Dr Alan Cala. Dr Cala was considered unanimously by the selection panel of four doctors (including Professor Hilton) to be the better candidate and the applicant was unsuccessful. 44 The applicant made a number of allegations during the course of the proceedings about discriminatory practices by Professor Hilton and others, asserting that she had been vilified and had been the subject of discriminatory conduct, that she had not been assigned to a range of cases which enabled her to properly prepare for the Fellowship exams, that she had been given less complex work and therefore "deskilled" and complaining about favourable treatment allegedly given to other medical practitioners. 45 In his evidence Professor Hilton carefully and meticulously dealt with each of these allegations and, I am persuaded, has demonstrated that save for one exception there is no merit in them. I accept the evidence of Professor Hilton unreservedly. He impresses me as having approached these proceedings and the applicant's case in a thoughtful, insightful, objective and truthful manner. There are many instances where his evidence conflicts with that of the applicant. The applicant tended, in my opinion, to exaggerate her situation and to demonstrate a lack of understanding of and insight about her own position and her relative circumstances within the context of her employment milieu. 46 Evidence was given on behalf of the applicant by Dr Duflou. I have already set out extracts from Dr Duflou's correspondence in 1990 which prima facie supported the applicant's contention that at that stage she was performing satisfactorily the duties associated with that of a staff specialist. In the course of giving his evidence Dr Duflou said that the representations which he made in that correspondence were incorrect. He attempted to justify the fact that they were incorrect by saying that they were written in hope of what the applicant might achieve rather than reflecting the fact of the situation. 47 Dr Duflou was also cross-examined at some length concerning an incident which occurred in February 1999, the details of which it is not necessary to relate here. It is clear from the evidence given in the proceedings that Dr Duflou behaved in an inappropriate and inexcusable manner towards the applicant. He was told by Professor Hilton that he had done so. In his evidence Professor Hilton said that he suggested to Dr Duflou that he apologise to the applicant. Dr Duflou did not do so and said that he did not recall Professor Hilton having suggested that he should apologise. Whilst conceding that his conduct on that occasion was inappropriate Dr Duflou said that he saw no reason to apologise because a letter of apology had been written to the applicant by Dr Horvath on behalf of the first respondent. 48 In his evidence Dr Duflou sought to be particularly critical of the applicant, her competency and her ability. In support of this contention there was produced to this Court a copy of a letter which Dr Duflou had written to Mr J Abernethy the State Coroner dated 7 April 2000 concerning a particular death. That death had occurred in 1994. The letter from Dr Duflou said that he had "recently reviewed this case" and had come to the conclusion that advice provided by the applicant "both in her report to you and in her verbal testimony at an inquest are incorrect." Dr Duflou then went on in the letter to attempt to support this proposition. The Coroner wrote to the applicant asking for her comments and the applicant duly responded. The documentation had been viewed by Professor Hilton, who had also been approached by the Coroner. Professor Hilton dealt with the controversy in his evidence by saying that both pathologists had expressed opinions and that either opinion was capable of being expressed in the circumstances surrounding the particular matter. It was his view that the opinion expressed by the applicant did not require to be qualified or changed. It transpired that Dr Duflou had taken it upon himself in connection with the preparation of the respondents case in these proceedings to extract 68 cases in which the applicant had been involved over the years. This was the only case out of the 68 cases in which he took any specific action and that consisted of writing direct to the Coroner six years after the completion of the autopsy process in circumstances which would not have assisted the Coroner or thrown any doubt as to whether the death was suspicious or not. I conclude, as is obvious, that Dr Duflou wrote the letter solely for the purpose of the proceedings and not because of any genuine concern to have the particular coronial inquiry reopened. 49 There was evidence also that in connection with the preparation of the proceedings Dr Duflou obtained a file direct from the Clerk of the Coroner's Court, no doubt using his position as then Acting Director of the Institute. 50 In all the circumstances I am not prepared to accept any of the evidence of Dr Duflou given in these proceedings. He has conceded, even on his version, that he has mislead two organisations in connection with representations made by him as to the applicant's competence and expertise and, in any event, he has certainly mislead the applicant as to her circumstances and situation. His evidence is coloured by the lengths to which he has gone in order to paint a particular picture of the applicant for the purpose of these proceedings. I make no comment as to the propriety of Dr Duflou's conduct in connection with his contact with the Coroner, although this may be a matter to be pursued by others outside these proceedings. 51 Evidence was given for the respondents by Dr Paul Botterill. Dr Botterill is a senior staff specialist employed in the Institute of Forensic Medicine. He carried out post-graduate work for about eighteen weeks between the period January 1989 to January 1991 as a registrar in the Division of Forensic Medicine. During this time he completed his examinations for the Fellowship of the RCPA. He joined the Institute in January 1994 as a staff specialist and in 1998 was appointed a senior specialist. 52 Dr Botterill gave evidence about his work as a registrar and the work of registrars generally at the Institute. He compared the duties and responsibilities with those of a staff specialist. 53 It was Dr Botterill's opinion that the applicant did not demonstrate an all-round ability and competence to perform work at a staff specialist level. He described a number of areas to support this opinion. The first was her lack of competence in completing the Fellowship exam. Another was the applicant's "concreteness of thinking" and her unwillingness to consider alternative hypotheses in formulating opinions. Dr Botterill has been engaged over a period of time in supervising the applicant and this was part of the normal interaction between professional staff which takes place at the Institute. There were a number of occasions on which Dr Botterill disagreed with analyses undertaken by the applicant which he started to realise "was not so much due to a difference of professional opinion, but because her view was simply wrong and not properly thought out." He was critical of her unwillingness to accept a different point of view, commenting "All pathologists make mistakes from time to time and all pathologists need to be corrected and need to be able to accept correction." Dr Botterill gave some particular instances where the applicant had failed to demonstrate expertise, in particular a lecture given on ballistics and gunshots wounds in 1999. There were other specific examples given in Dr Botterill's affidavit evidence. 54 Dr Botterill concluded: "In the last few years, it has become increasingly difficult to raise issues with Dr Schwartz. This makes a genuine supervisory process almost impossible. Eventually, and particularly in the last year, to avoid confrontations with Dr Schwartz I have become reluctant to raise with her the shortcomings that I identified in her work. .… In my opinion, Dr Schwartz's appointment to the position of a Specialist would compromise the standards of the Institute." 55 I accept the opinion of Dr Botterill as having been given in a considered and objective manner. 56 Evidence was given by Dr Michael Curtis, a Consultant Forensic Pathologist who now resides in Belfast. He was a Visiting Fellow to the Institute of Forensic Medicine during the period 13 January 1999 to 6 August 1999. My understanding of his evidence was that he performed all of the duties normally undertaken by a specialist pathologist employed by the Institute. Dr Curtis said that he had an opportunity to observe the work of the applicant. He noted that she was pleasant, a technically competent pathologist who was able to undertake dissections in a competent manner, and that she was well read in the discipline of forensic medicine. However it was the evidence of Dr Curtis that the applicant "was unable to arrive at considered conclusions from the evidence available to her." He could recall two specific examples where this had occurred only but said that those examples were indicative of a general impression which he had gained from observing the applicant, most particularly in the manner in which she made presentations about her work and her conclusions to staff meetings. Dr Curtis said that "on many occasions she has displayed difficulty with the interpretation of pathological findings and the subject certification of the cause of death." In coming to this conclusion Dr Curtis made allowance for difficulties which the applicant had with her use and understanding of the English language. He said that "I believe that even without these difficulties she does not have the capability to perform at the level of a specialist." 57 Professor Michael Bilous is a Senior Staff Specialist and a Clinical Associate Professor at Westmead Hospital. Since 1994 he has been the Director of Tissue Pathology at that hospital. In either late 1995 or early 1996 he was contacted by Professor Hilton and asked to take the applicant on secondment to enable her to improve her work in diagnostic histopathology. This was one of the areas in which she had failed her RCPA examinations. The applicant worked on secondment for about one month with Professor Bilous and he supervised her work. He said that "it became apparent to me that Dr Schwartz had difficulty with some of the pathology diagnostic terms and classifications systems used in pathology practice and in communicating these. I recall that Dr Schwartz made a number of errors in the diagnoses she gave from the slides. I cannot recall any specific examples but the errors were sufficiently regular and were at a level that I consider would cause her to fail her Part II RCPA examination." Professor Bilous advised Professor Hilton that the applicant would need more training in diagnostic pathology and improvement in her communication skills. 58 Evidence was given about the methodology and processes concerning the examinations conducted by the RCPA by Professor Douglas Henderson, Professor of Anatomical Pathology at the Flinders University and Flinders Medical Centre, South Australia. Professor Henderson was the chief examiner in anatomical pathology for the College from 1994 until November 1999. The evidence of Professor Henderson dealt comprehensively with the examination system utilised by the College and the conduct of the examinations, in particular the Part II examination in forensic pathology. The examination for that subject comprises a three hour written essay-type examination and an examination based on a case book detailing ten coronial post mortem examinations which the candidate has handled personally. In addition there is a practical examination dealing with pathology slides and other forensic material and an oral examination of 40 to 45 minutes "designed to test and examine the observational, deductive and interpretative skills of the candidate, including the expression of opinion on issues of forensic pathology (as in courts of law)." 59 The evidence of Professor Henderson also dealt comprehensively with the applicant's performance when she attempted each of the examinations. Professor Henderson sat in on all or part of the oral examinations undertaken by the applicant in 1996, 1997 and 1999. He was satisfied that the process was "fair and impartial, with no discernible difference in either content or process from one candidate to another." Professor Henderson detailed mistakes made by the applicant which resulted in her failing the examinations. He said that it was his perception that the applicant was treated "with great courtesy in the examinations, so that the examiners tried to support her and guide her in her answers, giving her extra time to formulate her opinions." Professor Henderson thought that the applicant was unable to express herself clearly in English and that her answers "were often rambling and - to me - confusing." He said also that "it appeared to me that she was reluctant to accept alternative explanations for her deductions, creating an impression of some inflexibility." It was the evidence of Professor Henderson that a specialist forensic pathologist must be able to formulate written reports and give verbal testimony in a clear and non-confusing manner. He also thought that "inappropriate dogmatism and inflexibility can also detract from the process of justice and can result in a miscarriage of justice, with wrongful conviction and imprisonment." 60 Professor Henderson annexed to his affidavit extracts from the reports of examiners who assessed the applicant. 61 In 1996 Professor Stephen Cordner, Professor of Forensic Medicine at Monash University and the Director of the Victorian Institute of Forensic Medicine gave the following report of an oral examination of the applicant: "Dr Schwartz demonstrated some serious mistakes and gaps in the knowledge base required of a practising specialist forensic pathologist. For example: 1. She failed to recognize a shot gun wound to the chest, describing it more in terms of stab type injury. This was despite her attention being drawn to quite typical "petal" marks on the wound margin (from the wad). Difficulty with this meant we could not progress to talk about the significance of other abrasions surrounding the wound. 2. She did not know the definition of the Sudden Infant Death Syndrome, phrasing it in general terms relating to babies between 3 and 6 months of age. This is despite working in a department headed by the Convenor of the Pathology Working Group of the SIDS Global Task Force. This is basic day to day knowledge expected of a not very advanced Anatomical Pathology Registrar. 3. Her discussion of aspects of mechanical asphyxia was significantly flawed. She did not know about the pressures required to obstruct veins and arteries in the neck other than in very general terms. She was not able to discuss meaningfully the time taken to produce florid petechiae in strangulation. The latter particularly is a fundamental issue in trials for murder and manslaughter as it is partly on the basis of the duration of the assault that the court makes its judgement about the accused's intention. This is often the critical issue at trial. 4. Dr Schwartz regarded the presence of 11-nor-9 THC in blood, as evidence of intoxication with cannabis and that it was only present for a short time. In fact it is detectable for over a week following ingestion and cannot be said to mean that the individual was under the influence of cannabis. Dr Schwartz handled some of the issues raised in the oral examination in a satisfactory manner eg. the taking of temperature in a sexual assault death, the autopsy procedures in a strangulation death. Gaps in knowledge and mistakes are of greater concern when the candidate does not seem to appreciate that s/he is on shaky ground. This seemed to be the case with Dr Schwartz. Such gaps and mistakes can have profound consequences. Both examiners felt that Dr Schwartz would have difficulty in providing a satisfactory service to the courts. Neither examiner felt on the material covered, that Dr Schwartz could be employed to work in an unsupervised capacity in either of their institutions. Both examiners felt that she clearly failed the oral examination." 62 Professor Henderson gave the following report in 1997: "Dr Schwartz was granted an exemption from the written component of the examination; on the basis of an acceptable performance in the practical component, she was invited to the oral examination. The unanimous conclusion of the examiners at the oral examination held in Sydney was that the performance in the oral component be graded as a fail. The oral examination for Dr Schwartz did not differ substantially in range and scope from the pattern of the oral examinations for other candidates on the day. In addition, given the candidate's position that English was not her native language, this was taken into account and Dr Schwartz was also allowed increased time margins to deliver her answers. The following six main topics were covered during the course of the oral examination: § Professional ethics § Examination of skeletal remains § Gunshot wound to the head § Child abuse § Petechiae § Bomb scene Professional ethics Dr Schwartz' general understanding of the principles of professional ethics in relation to the practice of forensic pathology appeared to be sound, particularly in regard to the adversarial court processes and the expected behaviour of a forensic pathologist. However, in relation to the practice of defence-based pathology, the candidate did not discuss the option of refusing to act for the defence if the pathologist is denied access to the prosecution pathologist. This is a relatively controversial area in relation to ethical standards in forensic pathology. However, it is one that has received widespread acceptance amongst practising forensic pathologists within Australia. Regardless of personal view point in relation to this matter, it is an important issue to be aware of and to have a logically argued view about. Examination of skeletal remains In relation to the questions regarding skeletal remains, there were a number of inaccurate observations regarding the material displayed in the photographs including misidentification of a long bone and general uncertainty regarding many of the features displayed in the material. Despite this, the most serious concern the examiners had was the candidate's inflexibility regarding interpretation of the observations. The photographs demonstrated portions of skeletal remains in various states and the candidate was asked to provide an explanation for this. The only explanation given by the candidate was that the two types of remains could not have come from the same person. Even when prompted, the candidate's interpretation did not change. When the candidate was informed that the remains had come from the same person and was asked how could this be explained, she stated that the information must be wrong. The inability to provide alternative explanations, together with a high level of dogmatism and inflexibility regarding the candidate's opinion, was of considerable concern to the examiners. Gunshot wound to the head The initial descriptions of the photographic material by the candidate were poor at first but improved considerably on prompting by the examiners. The general approach to examining the wound displayed in the photograph was adequate, but the candidate appeared to have some difficulty in making decisions regarding the nature of the wound. In particular, she jumped to a variety of inappropriate conclusions and implausible interpretations until guided to the salient features of the injury in the photograph, when she correctly identified the injury as a contact gunshot wound. The examiners felt that in relation to this issue, Dr Schwartz showed a general lack of integration of observations with deductions. Child abuse The general description of injuries and their interpretation was adequate. However, the candidate was vague in relation to the spectrum of other injuries that might be found and concentrated on issues of scene examination rather than the issues that were raised by the appearance of the injuries. In particular, there was a lack of knowledge in relation to resuscitation injuries. The matter of drowning arose within this question and whist descriptions of "wet drowning" were good, descriptions in relation to so-called "dry drowning" were generally poor. Petechiae General matters of pathophysiology and interpretation in relation to petechiae were covered well by Dr Schwartz in dealing with this question area. Bomb scene The candidate gave a very poor description of the scene depicted in the photographs and repeatedly jumped to conclusions that could not be supported from the pictorial material provided. Even when directed to key features that suggested the correct diagnosis, the candidate failed to recognise their significance and appeared reluctant to modify her initial erroneous assumptions. In general, she appeared unable to integrate the observations that she made regarding the photographs to allow for a meaningful interpretation of them. CONCLUSION The examiners concluded that Dr Schwartz' factual knowledge was adequate in many areas, although there were clearly some areas in which her factual knowledge was below the standard expected. Of far greater significance was the demonstrated lack of ability to integrate observations in such a way as to arrive at the appropriate interpretation and conclusions. This intellectual process is critical for the practice of forensic pathology and remained a substantive weakness of this candidate. In interpreting information, she tended to give a very limited range of differential diagnoses, often omitting the correct diagnosis and being highly resistant to changing her opinion when the factual basis for her opinion was shown to be incorrect. The examiners concluded the candidate had not yet achieved a level of knowledge, skill and experience to be a consistently safe forensic pathologist operating independently at consultant level." 63 Evidence was given by Mr Terry Clout, the Deputy Chief Executive Officer and Director Health Services Operations of the Illawarra Health Service. Mr Clout had been employed in the New South Wales Department of Health from February 1984 until mid-1989 as a senior industrial officer. During that period he was responsible for the categorisation of staff covered by industrial awards including staff specialists engaged in the New South Wales Public Health system. The relevant award was the Salaried Staff Specialists (State) Award. Mr Clout said that in order to determine whether a practitioner had the necessary qualifications to be appointed a specialist, reference was made to a booklet published by NASQAC. If the qualification was listed in that publication and was therefore acceptable for Medicare purposes it was accepted by the Department as being a qualification to enable appointment and payment of a medical practitioner as a specialist. There were only two exceptions to this practice. The first related to the fact that it could take up to five years for NASQAC to approve a qualification. If it was in an advance stage of being considered by NASQAC, the Department of Health would recognise the qualification as sufficient for appointment as a specialist. This exception related to particular qualifications, not particular individuals. Two examples given of this area of exception dealt with qualifications for emergency physicians and palliative care. The other exception recognised by the Department was the case of a person who was already being paid as a staff specialist but who did not have qualifications accepted by NASQAC. 64 Mr Clout said that the Department adopted the NASQAC system as a matter of policy because there was no other definitive pronouncement which could be looked at and used nationally. 65 Dr Gregory Stewart is the Director of Health Services of the first respondent. He is the senior medical administrator and his responsibilities include the oversight and advice on appointment of senior medical practitioners. He is a member of the Medical and Dental Appointments Advisory Committee ("MDAAC") of the first respondent which makes recommendations to its Board in relation to the appointment of senior medical practitioners, including staff specialists. Dr Stewart outlined the procedure for appointing staff specialists. It has not changed in the period 1990 to 2001. The procedure is conditional upon a vacancy occurring in an established staff specialist position or the creation of a new position. In either case advertisements are placed, a selection panel is convened and applicants with relevant qualifications are interviewed and considered on merit. 66 It follows that if an applicant for a position in 1990 did not have qualifications which were recognised by NASQAC, that person would have been automatically culled and not granted an interview. 67 Dr Stewart gave evidence concerning an industrial dispute filed in the Industrial Relations Commission of New South Wales in July 1997 by the Australian Salaried Medical Officer's Federation (NSW) ("ASMOF") against the respondent. The dispute notified was the refusal of the respondent to appoint the applicant as a staff specialist. As a result of that notification Dr Stewart met with the applicant and a representative of ASMOF in August 1997. It was agreed that the applicant would submit an application to be re-graded as a staff specialist to the MAAC. Two days later the applicant's husband wrote to Dr Stewart saying that it was "highly unlikely" that the applicant would send a formal application to MAAC. This was because her post-graduate qualifications "have been assessed under the appropriate machinery set up by Legislations of the NSW Parliament and of the Commonwealth Parliament. Their decision is final and not subject to review by Central Sydney Area Health Service or any Committee of it." Dr Stewart referred this letter to the industrial officer handling the matter with ASMOF pointing out that "it is most disappointing that an agreement reached at the meeting concerning an application by Dr Schwartz to MAAC has apparently been revoked. The essential issue, and one which I believe I made perfectly clear at the meeting, is that Dr Schwartz's specialist qualifications for the purpose of employment as a Staff Specialist under the Medical Officers - Hospitals Specialists (State) Award and subsequent Enterprise Agreement, have never been considered by the appropriate committee. As you are aware, this is the Medical Appointments Advisory Committee ("MAAC") of CSAHS." On 13 October 1997 ASMOF made application on behalf of the applicant to MAAC for the applicant's specialist qualifications to be recognised by it. Dr Stewart sought Professor Hilton's views about the matter. In November 1997 a sub-committee met and resolved to recommend recognition of the applicant's Israeli qualifications as being sufficient to meet the requirements of clause 2(d)(ii) of the enterprise agreement, but noted that prior to 1995 when that agreement was made the applicant's qualifications would not have been recognised because to that time a medical practitioner had to have a qualification recognised by NASQAC. On 3 December 1997 the Board of the first respondent met and endorsed that recommendation and the applicant was advised a few days later. On 27 January 1998 a representative of ASMOF asked Dr Stewart at a meeting to appoint the applicant as a specialist. He was advised that although the applicant's overseas qualifications for appointment to staff specialist had been recognised she was now free to apply for any staff specialist position in forensic pathology which was advertised. The representative was also told that a recognised qualification "does not entitle her to automatic reclassification to staff specialist." 68 By letter dated 11 May 1998 addressed to the Secretary of the MAAC the applicant requested that it reconsider the recommendations by the sub-committee which referred to the non-recognition of her post-graduate qualifications prior to 1995. By letter dated 16 June 1998 Dr Horvath, the Chief Executive Officer of the first respondent declined to reconsider the matter. There followed further correspondence in the matter from the applicant's husband and eventually a complaint to the Anti-Discrimination Board of New South Wales which the applicant later decided not to pursue. 69 Dr Stewart was cross-examined concerning some evidence which had been given by Professor Hilton. Professor Hilton was of the view that a fellowship of the RCPA or its equivalent was a requirement for appointment as a staff specialist, save for limited exceptions. Professor Hilton had agreed that the requirement of a fellowship was not contained in any policy of the New South Wales Department of Health or of any policy formulated by the first respondent. Dr Stewart was of the opinion that whether or not such a qualification was necessary was a matter for assessment by the first respondent in terms of any conditions which it wished to impose in connection with the appointment of an applicant to any particular position. He said that the assessment of qualifications rested overall with the first respondent and that it was not appropriate for any one person to say what those qualifications should be. It was necessary for the appointment process to be followed and for the application to be assessed in terms of those overall processes. Certainly after 1995 there was no impediment to the applicant being appointed as a staff specialist because she was not a fellow of the RCPA or its equivalent. After 1997 the committee recommendation which was endorsed by the Board of the first respondent allowed the applicant to apply for any specialist position on merit. 70 Dr Oettle did not give evidence in the proceedings. No explanation for this was proffered by the applicant. However the respondents gave evidence of attempts to have Dr Oettle give evidence through a solicitor Emma Black employed by their solicitors Minter Ellison. Ms Black deposed that she had been required by her supervising partner Mr Jolly to try and contact Dr Oettle. She made telephone contact with him on 10 February 2000 when she agreed to send certain documents to a postal address. As a result of further conversations which occurred in March and April 2000 Ms Black prepared a statement which she forwarded to Dr Oettle. Despite promises to look at it Dr Oettle did not respond to any further telephone calls which were made in May 2000. No attempt appears to have been made by the respondents' solicitors to make contact with Dr Oettle after May 2000 and there is no evidence of any attempt to issue a summons requiring his attendance at Court for the purpose of giving evidence in the proceedings. I do not regard the evidence of Ms Black as providing a satisfactory explanation for the failure of the respondents to call Dr Oettle to give evidence in the proceedings. THE DETERMINATION OF UNFAIRNESS 71 It is a trite observation that a pre-condition for the exercise of any power under s 106 is a finding that the relevant contract is unfair. A helpful discussion as to the approach of the predecessor tribunals to this Court to the determination of whether a contract etc is unfair is contained within the joint judgment of Fisher CJ and Hungerford J in the Industrial Court of New South Wales Full Court in Baker v National Distribution Services Ltd (1993) 50 IR 254. At 271 their Honours said: "The test of unfairness within the meaning of s 88F of the Industrial Arbitration Act, and hence s 275 of the present Act, has received much attention by the Court and by the previous Industrial Commission over very many years, but, in our review of the cases, the approach stated by Sheldon J in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 over 26 years ago has endured; his Honour commented (at 374) that unfairness of a contract or arrangement was to be determined according to "the common sense approach characteristic of the ordinary juryman ….It is a plain matter of morals not law." His Honour cautioned, however, (at 374,375) that the section's "massive power makes it imperative that it should be exercised with proper restraint … it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. … the discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes." Those words by his Honour echoed what had been said earlier by Beattie J in Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 at 89 that it was a matter of deciding "in each particular case by the application of the tribunal's common sense and sense of justice whether a particular transaction is unfair, harsh and unconscionable". The nature of the unfairness attracted by s 88F was considered later by the Industrial Commission in Court Session (Perrignon and Dey JJ, Cahill J dissenting) in A & M Thompson Pty Ltd v Total Australia Limited [1980] 2 NSWLR 1 at 13 as follows: "It has been said that fairness is determined by the commonsense approach of a juryman and that it is a moral and not a legal issue ( Davies' case). Whether this be so or not, it does seem that in distinguishing between what is fair and what is not fair the Judge must apply standards which appear to him to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement. In doing so he would always have to bear in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement." (at 271-2). 72 It is my understanding that in determining whether there is unfair conduct for the purpose of proceedings brought under s 106 and especially under sub s(2), the Court is required to exercise a value judgment reflecting contemporary community values. The contemporary values may be derived from the commonsense approach characteristic of the ordinary, reasonable, hypothetical "standard" member of the community. Such a person will be neither an employer nor an employee, must be careful to weigh up the competing interests of the applicant as an employee and the respondent as an employer and those interests must be accommodated and viewed objectively and balanced within the context of the factual matrix which applies to them. Such a process will accommodate the reasonable requirements and understanding of an applicant as an employee and the reasonable requirements and understanding of a respondent as an employer in the context of the needs of the employer to undertake its activities in an efficient, effective and competent manner. 73 Of course the identification of contemporary community values is not without its own difficulties. Some insight as to the difficulties involved may be gained from the discussion by Professor John Braithwaite in the article entitled "Symposium on Community Values in Law" published in vol.17 of the Sydney Law Review at 351. Professor Braithwaite draws on a body of literature to make a distinction between community attitudes and community values, the former not necessarily assisting a court in determining a matter, the latter having much greater relevance. An obvious example of an attitudinal matter is the debate concerning abortion. The corollary and underlying value against which such debate is conducted is "respect for human life, health, freedom of choice". 74 Not only is it important to apply contemporary community values in determining whether there is the requisite unfairness, but it is also important to apply those values in an appropriate manner. It is my understanding that in determining whether there is any relevant unfairness it is only necessary that there be a finding in the circumstances of these proceedings that there was unfair conduct on the part of the respondent. It is not necessary that this conduct be related in any way to any terms of the underlying contract of employment or to any provisions of any arrangement or related condition or collateral arrangement. So much flows from the decision of the majority of the Full Bench of this Court in Reich v Client Server Professionals of Australia Pty Ltd [2000] NSWIRComm 143. The majority of the Bench (Wright J President, Walton J Vice President and Hungerford J) in a joint judgment said: In other words, it seems to us, in finding a contract (contract or arrangement, or any related condition or collateral arrangement) to be unfair, that may be supported because it became an unfair contract due to the conduct of a party at the time of the termination of the contract which enabled a finding that a contract which could or did so operate was relevantly unfair. It would then be open to declare the contract void or to make an order varying its terms in an appropriate way, with as to either form of relief a consequential order for the payment of money considered to be just in the circumstances. We have to say we find nothing surprising in that reasoning in terms of the operation of s 106 and, indeed, if it were otherwise then the whole jurisprudence developed in relation to the unfair contracts provisions in the industrial legislation over more than three decades would be effectively negated. Indeed, as to the conduct of parties, s 106(2) not only recognises such development in the cases but emphasises it by express statutory provision. (para 24) 75 This reasoning was repeated in the course of the joint judgment. For example at para 27 their Honours said in part: "….to us it seems an utterly arid exercise in semantics to find conduct as part of the operation of a contract to be unfair but not thereby to find also the contract to be unfair because such unfair conduct was not permitted by the otherwise fair contract - we think it should be stated as plainly as it may be, and as we think the authorities and s 106(2) do, that a contract may be found to be unfair because of any conduct of the parties." At para 28 their Honours said: A contract whereby a person performs work in an industry (including as here a contract of employment as a species thereof) has as an inherent feature the behaviour or conduct of the parties for the contract to be able to operate. It is difficult, we think, in conceptual terms to separate the contract itself from the conduct of the parties in performing it. As Priestley JA, with whom Kirby P and Meagher JA agreed, observed in Rothmans Distribution Services Ltd v Full Court of the Industrial Court of New South Wales [1994] 53 IR 157 at 160, "how the terms of the contract operated in practice … necessarily means looking at … conduct … and to conclude that a contract which could so operate was unfair". What a contract of employment does is set the terms and conditions to govern the employment relationship; the contractual relationship is another term which may be readily used to describe it. If a party in the course of operation of the employment relationship were to act in contravention of the contract of employment, particularly by committing a fundamental breach thereof, then that may only mean that the contract otherwise was unfair in so allowing or not preventing such unfair conduct or, indeed, in failing to make appropriate provision in the event occurring. In any of those situations, we think it clear that s 106 could be called in aid by the aggrieved party to obtain relief. We repeat, the section should not be construed to the contrary and as would protect the wrongdoer. (para 28) 76 It is also necessary to make reference to the minority judgment of Glynn and Schmidt JJ in Reich. When referring to conduct as distinct from the terms and conditions of the contract their Honours said (at para 169) "Section 106(2) is concerned with conduct of the parties which reveals how it is that the contract in question is unfair, either when entered or subsequently. It has not, however done away with the need for a relevant finding of unfairness, so far as the contract in question is concerned." 77 Their Honours then proceeded to amplify these comments at paras 170 to 176: 170 Section 106 does not give the Court power to make any orders if the contract in question is not demonstrated on the evidence to be unfair, as defined. That is what the section is concerned with. The conduct of parties to the contract is a relevant consideration, directed however to the determination of whether, and how, the contract rather than the conduct is, in the words of s105: (a) unfair, harsh or unconscionable, or (b) against the public interest, or (c) provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) designed to, or does, avoid the provisions of an industrial instrument 171 It is the 'contract or arrangement, or any related condition or collateral arrangement' identified in the initiating summons which at the end of the day must be the subject of the relevant findings. This approach has often been stated by this Court, most recently perhaps in Bush Boake, in the context of the enactment of s109A of the Act, which is concerned with claims concerning unfair dismissal. It was there observed by the Full Court at p35: 'What emerges from the above authorities, we think, is the now settled view that s.106 (as with the previous s.88F of the 1940 Act and s.275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case.' 172 It follows that where a complaint brought under s106 alleges that there has been unfair conduct which throws light upon the unfairness of a particular contract or arrangement, consideration must be given as to whether or not on the evidence, the contract falls within the statutory definition in s105. If the only complaint advanced in a case brought however, is that the conduct was unfair, it is difficult to see how a case under s106 could be made out, unless the particular conduct itself formed a part of an arrangement which is attacked under the section. No such case was sought to be established here. 173 Had the legislature intended that unfair conduct of itself would be sufficient to warrant the grant of relief under s106(5) of the Act, it is to be expected that the section would have said so expressly. It does not. Section 106(1) is concerned with unfair contracts, which are defined in the way in which we have already noted. Section 106(2) permits regard to be had to conduct and the other matters specified, in determining whether the contract in question is unfair. Section 106(2) does not, however, alter the need for a relevant finding, on the basis of evidence advanced, that the contract is one which falls within the definition of unfair contract. The decision in Dun is not authority for such a proposition. 174 The conclusion that a finding of unfair conduct is not sufficient for relief to flow under s106 is also supported by s106(5), which provides: '(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.' 175 The language of this provision is similar to that of s88F of the Industrial Arbitration Act 1940, considered by the High Court in Brown v Rezitis (1971) 127 CLR 157. Barwick CJ observed as to the power to grant relief, at p165: 'The problem is to ascertain the limitation by construction of the section. It seems to me that the expression "in connection with" the contract or arrangement varied or avoided provides the necessary limitation as to the nature of the orders for payment of money which can be made and as to the person against whom they may be made. The draftsmanship of the section is inadequate: but I think the expressed intention as to this limitation can be derived from the sub-section read as a whole. Whilst it can be said that the expression "in connection with" is of wide import, it does emphasize the need for a close connection between the order made and the contract or arrangement varied or avoided. In my opinion, the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connection with the making, variation or avoidance of the contract or arrangement which has been varied or avoided. It may in truth be limited to a power to make an order for payment of money which has in fact a real connection with the making, variation or avoidance of the contract or arrangement. However, in either case it will, of course, include power to make an order for payment of money which has been paid or which was payable under the contract arrangements themselves. But, in my opinion, the power will not be limited to the making of such orders. It will extend to ordering the payment of money where the order on the larger view of the jurisdiction given by the sub-section could be considered to be appropriate to effect wholly or partially the restitution of the parties to their former position upon the variation or avoidance of the contract or arrangement.' 176 It follows that the relief which s106(5) contemplates, is relief flowing from the contract found unfair on the evidence and not merely any unfair conduct, which may or may not demonstrate the unfairness of the contract under review. 78 The question of "conduct" was the subject of later brief reference by a Full Bench of this Court in Origin Energy Ltd v Smith (2001) NSWIRComm 308. The Full Bench was dealing with an application for leave to appeal from a decision of the trial judge given under s 106 of the Act. Leave to appeal was refused and the appeal was dismissed. In the course of their decision the Bench (Wright J, President, Walton J, Vice President and Boland J) said (at paras 19 and 20): 19 We would add one final observation. It was undoubtedly open to her Honour to deal with the matter in the way she did; that is as a "conduct" case. It may be that she had little alternative to doing so in view of the way in which the respondent framed his case. Nevertheless applicants, in framing their proceedings, and judges in hearing and deciding them, should not overlook the consideration that s 106 is directed to the fairness, etc of contracts and arrangements and with the fairness, etc of their terms, either in themselves as to what they actually provide or fail to provide. There is nothing in the Full Bench judgment in Reich that should lead to any different approach. It would have been preferable for the case before her Honour to have been framed and dealt with in that way. 20 Although conduct of a party which renders a contract or arrangement unfair or otherwise actionable under s 106 of the Industrial Relations Act may well provide jurisdiction for relief under that provision, the primary focus of the exercise of the Court's jurisdiction should be, where relevant and available, the contract or arrangement and its respective terms or omitted terms as to the effect thereon of the impugned conduct. This approach will usually lead to orders (where orders are made) more certainly well-founded jurisdictionally and will be less likely to result in appeals which, whilst superficially thought to be available, upon examination on appeal are soon shown to lack substance. 79 During the course of submissions in these proceedings Mr Moses counsel for the applicant said that these observations made by their Honours did not sit comfortably with the judgment of the majority in Reich, but in any event were obiter. Mr Kimber SC, who with Miss Collins appeared for the respondents in his submissions stated that the observations in Origin Energy were intended to explain the manner in which the proper approach to conduct cases as described by the majority judgment in Reich should operate. The difficulty that I have in accepting this submission is that the observations made in Origin Energy appear closer to and more consistent with the minority judgment in Reich than that of the majority. So much was submitted by Mr Moses. 80 Mr Moses also referred me to a judgment of Peterson J in this Court in Bates v Finance Australia Pty Ltd (2002) NSWIRComm 42. At para 71 Peterson J applied the majority judgment in Reich when referring to conduct as accommodating "any conduct of the parties". 81 I have already referred to the process which is involved in determining whether a contract or arrangement etc or conduct is unfair. In the context of this process it is important to observe that there will be many cases where there is no absolute defining boundary which delineates what is fair from what is unfair. Often a range of conduct or activities may be said to fall within the limits of what is assessed to be fair, and, by corollary not unfair. This is because of the lack of absolute and scientifically determined criteria which differentiate the concepts of what is unfair. 82 The assessment which is to be made judged by the standard of the ordinary, reasonable, hypothetical "standard" member of the community is not capable of precise analysis and delineation. There will be a variety of opinions held by such a person. The exercise of a value judgment in these circumstances is obviously made more difficult, but it is a difficulty which is not confined to judges of this Court. By way of analogy, evaluations of what is "reasonable" are made daily by judges in all courts determining claims based on breach of duty of care in negligence, and those brought under certain provisions of the Trade Practices legislation. 83 It must be also be observed that the determinative process by which a judge ascertains whether the relevant unfairness exists cannot be undertaken in a factual vacuum. There has to be a contextual framework within which the value judgment may be made, as with any judgment. I am unable to ascertain how a value judgment can be made concerning conduct of persons without considering as a potentially important contextual matter the circumstances of any relationship between them. Where the parties are employer and employee, in many, but not necessarily all, cases the fact of employment and the circumstances surrounding the employment situation will be important contextual matters. In the case of conduct, there may be circumstances where it is appropriate to consider that conduct without having regard in any way to the fact that the parties involved in the proceedings are employer and employee. Examples would include allegations of brutality and vilification. Here, fundamental community values would be involved without necessarily, as a matter of logic, having regard to the employment relationship. However there will be many cases where the fact that there is an employment relationship and the circumstances of that relationship will be critical contextual factors in determining whether the relevant or requisite unfairness exists. In many cases, the consensual nature of the relationship will impact on the circumstances of that relationship. It is quite clear that employment is based on contract, rather than status. (See for example the decision of the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410.) Once circumstances arise which necessitate the contractual basis of the relationship being taken into account in the exercise of a value judgment leading up to a determination of whether conduct is unfair, difficulties emerge in applying in an absolute sense all of the observations of the majority judgment in Reich about the place that conduct per se plays in s 106(2). No doubt it was considerations of this kind which led to the observations of the Full Bench in Origin Energy, to which I have previously referred. As the Full Bench pointed out in Origin, the contract itself assumes significance because the power to award the payment of money is consequential upon the principal relief available under s 106, namely orders declaring the contract void or varying it. That is, there must be an appropriate and relevant nexus between the declaration that a contract is unfair, the avoidance or variation of the contract and the awarding of monetary compensation. 84 As I am obviously bound by the decision of the majority in Reich I approach these proceedings on that basis. That is, any conduct of either respondent which, in all the circumstances, may be characterized as unfair would prima facie attract jurisdiction and power to make orders under s 106. It is not necessary that that unfairness be related to any particular contractual term. THE ISSUES IN THE PROCEEDINGS 85 The applicant and the respondents formulated their statements of the issues in the proceedings in slightly different ways, but to the same effect. I shall deal with each of them in turn. 1. The representation/promise made by Dr Oettle. 86 The controversy with respect to this issue was whether the statement allegedly made by Dr Oettle that the applicant would be appointed a staff specialist in 12 months subject to good performance was promissory in nature so that the failure of the first respondent to appoint her to that position at the expiry of the 12 months was unfair and would entitle the applicant to relief under s 106 of the Act. 87 I have previously referred to the fact that Dr Oettle was not called by the respondent to give evidence about this issue. Accordingly, the only evidence is that which was given by the applicant. I accept that Dr Oettle made the statement attributed to him by the applicant. Certainly, there is evidence that Dr Oettle took steps at the expiry of 12 months to have the applicant appointed a staff specialist. There is no suggestion that Dr Oettle who was, at that time, the director of the relevant department of the first respondent was of the view that the applicant's performance did not merit her appointment as a staff specialist. Indeed, letters in support of her appointment to that position written by Dr Oettle and by Dr Duflou asserted that the applicant's performance was sufficient to justify her appointment as a staff specialist. 88 The applicant, through her counsel, submitted that the representation made by Dr Oettle could be considered as the adoption of an obligation to appoint the applicant to that position at the termination of the 12 months period and it was unconscionable for the first respondent to have failed to honour the representation. In support of this submission Mr Moses relied by way of analogy on the doctrine of estoppel as propounded in cases such as The Commonwealth v Verwayen (1990) 170 CLR 394. It was asserted on behalf of the applicant that what was said by Dr Oettle was a representation of fact namely that the applicant would be appointed to the position (subject to satisfactory performance) and that that representation had been material in influencing the applicant to accept her appointment as a registrar and that her position was altered to her detriment by having so accepted that position and having failed to be promoted. 89 However the respondents rely on the applicant's then state of mind as reflected in her evidence given under cross examination which I have extracted at para 9 above. It was said that the applicant understood that all that Dr Oettle could do was recommend her appointment, that it would be necessary for her to be selected as part of a selection process and, most importantly, it would be necessary for her qualifications for the position to be accepted. Indeed, the efforts of Drs Oettle and Duflou were directed principally to establishing the applicant's qualifications for some considerable period. The evidence is that the applicant was aware in a general sense of the processes being undertaken and there is no evidence that she did not acquiesce in these processes as being an appropriate task to be undertaken. There was no evidence about what the applicant understood concerning the conditions of her registration to practice medicine in New South Wales as imposed by the Board. 90 The respondents rely also on the advertisement for the position of staff specialist which appeared in March 1990 and with respect to which the applicant made application. I have already referred to the terms of that advertisement, but quite clearly it required, relevantly for the applicant, that she establish qualifications equivalent to a FRCPA. The applicant made no complaint that there was any unfairness associated with this requirement to establish her qualifications in terms of a breach of any promise that Dr Oettle had made. It was said by the respondents that the applicant did not raise any question of any "breach of promise" until she had commenced these proceedings in 1999. Although SRAC recommended on 30 October 1990 that the applicant be recognised as a specialist in forensic pathology and, presumably, the applicant was advised some short time thereafter, there is no evidence that the applicant approached Dr Oettle with this information. Indeed the evidence was that she first presented it to Professor Hilton in 1991, although a copy of the recognition had been forwarded by her in December 1990 to the New South Wales Medical Board. Furthermore, it seems that the applicant did not assert that her recognition by SRAC would impact upon her conditional registration with the Medical Board until 1996. 91 Such evidence that exists about what was said by Dr Oettle to the applicant has been put in the briefest of terms. Prima facie it is promissory in nature to be implemented on satisfaction of a condition precedent being satisfactory performance over the twelve months period. However, the applicant explained during the course of her evidence her understanding of what was said to her by Dr Oettle which detracts from the appropriateness of characterising the representation made by Dr Oettle as being promissory in nature. That is, as conceded by the applicant, the contract of employment was negotiated against the background of appointment to a staff specialist position being conditional not only on satisfactory performance but also on the establishment of the recognition of the applicant's qualifications, the availability of a vacancy to a staff specialist position and the ability to win that position in the event that there was competition for it. These are the conclusions which I have come to based on the evidence. 2. Was the failure of the first respondent to appoint the applicant as a staff specialist in 1990 unfair? 92 There was debate between counsel for each of the parties as to the substance and application of the law concerning both common law and equitable estoppel. These proceedings are concerned with concepts of unfairness. This is to be determined by the exercise of a value judgment reflecting contemporary community standards. Whilst the exercise of that value judgment must be carried out in a proper and appropriate manner having regard to all relevant factual circumstances, this Court is not constrained by the application of such principles as have been developed by the courts in the area of common law and equitable estoppel. Nevertheless, there are features of the estoppel principles which, by dint of common sense, are appropriate to take into account in determining whether a contract or agreement is unfair for the purposes of considering relief under s 106 of the Act. Whilst there are many areas of controversy surrounding the formulation of the principles of estoppel it is clear that the representation or promise relied upon must be established in clear and unequivocal terms and the claimant must have relied on the representation or adopted a course of action or inaction resulting in some disadvantage or detriment of a significant kind. In addition there must be some injustice, unconscionability or unconscientious circumstances in allowing the representation to be breached or otherwise not observed. 93 Some understanding of the complexities concerning the estoppel concept and principles can be gathered from the following observations of Mason CJ in Verwayen at 409: "That brings me to estoppel, a label which covers a complex array of rules spanning various categories. There are the divisions between common law and equitable estoppel, between estoppel by conduct and estoppel by representation, and the distinction between present and future facts. There are titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence. Yet all of these categories and distinctions are intended to serve the same fundamental purpose, namely 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted' Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR at 419, per Brennan J. See also per Mason CJ and Wilson J at 404; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR at 674-675." 94 I have already referred to the requirement of unconscientious conduct. In Verwayen, Deane J made the following observations with respect to this aspect, which bear repeating in the context of the attempt to refer to the doctrine of estoppel by way of analogy in these proceedings (at 440-1): "Unconscientious Conduct The doctrine of estoppel by conduct is founded upon good conscience. Its rationale is not that it is right and expedient to save persons from the consequences of their own mistake. It is that it is right and expedient to save them from being victimised by other people (cf. Allcard v Skinner (1887) 36 Ch D 145 at 182). The notion of unconscionability is better described than defined (see per Mahoney JA, Antonovic v Volker (1986) 7 NSWLR 151 at 165; Taylors Fashions Ltd v Liverpool Trustees Co (1982) 1 QB at 151-152; and generally, per Cooke P, Nichols v Jessup (1986) 1 NZLR 226 at 227-229). As Lord Scarman pointed out in National Westminster Bank Plc v Morgan (1985) AC 686 at p 709, definition 'is a poor instrument when used to determine whether a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case'. The most that can be said is that 'unconscionable' should be understood in the sense of referring to what one party 'ought not, in conscience, as between [the parties], to be allowed' to do (see Story, Commentaries on Equity Jurisprudence , 2nd Eng.ed. (1892), par 1219; Thompson v Palmer (1933) 49 CLR at 537). In this as in other areas of equity-related doctrine, conduct which is 'unconscionable' will commonly involve the use of or insistence upon legal entitlement to take advantage of another's special vulnerability or misadventure (cf Stern v McArthur (1988) 165 CLR 489 at 526-527) in a way that is unreasonable and oppressive to an extent that affronts ordinary minimum standards of fair dealing. That being so, the question whether conduct is or is not unconscionable in the circumstances of a particular case involves a 'real process of consideration and judgment' (cf Harry v Kreutziger (1978) 95 DLR (3d) 231 at 240) in which the ordinary processes of legal reasoning by induction and deduction from settled rules and decided cases are applicable but are likely to be inadequate to exclude an element of value judgment in a borderline case such as the present." 95 Whilst the various members of the High Court of Australia differed as to the appropriate relief which ought to be granted in the circumstances of those proceedings, there appears to be consensus that, as Deane J put it "equitable relief must be moulded to do justice between the parties and to prevent a doctrine based on good conscience from being made an instrument of injustice or oppression. That being so, it should be accepted that the prima facie entitlement to relief based on the assumed state of affairs must, under a doctrine which is of general application in a system where equity prevails, be qualified if it appears that that relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party." (442) 96 Finally, whilst dealing with Verwayen I should take the opportunity of reproducing part of the summary of the content and operation of the general doctrine of estoppel by conduct as formulated by Deane J. The following extract is from pages 444-5 of his Honour's judgment: "2. The central principle of the doctrine is that the law will now permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 5. The assumption may be of fact or law, present of future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct)." 97 As I have previously observed it is not appropriate to substitute the application of the principles of the doctrine of estoppel for a determination of whether there is, in the circumstances of these proceedings, any requisite unfairness. Nevertheless, some guidance can be obtained from the formulation of principles which have developed over a period of time and which are intended to create justice, and hence fairness, between parties in circumstances where there has been conduct of a particular kind including representations made as to factual situations. In determining what is just between the parties it is not accidental that the courts have developed requirements of disadvantage or detriment and of some injustice, unconscionability or unconscientious conduct if non-compliance with a representation is not to be permitted. 98 A difficulty which the applicant faces in these proceedings is that there is simply no evidence that in accepting the offer of employment made by Dr Oettle she suffered any detriment of any kind, even assuming that the acceptance of the position was based on, influenced by or induced by a representation by Dr Oettle that she would be appointed a staff specialist in 12 months subject to performance. There is no suggestion that there was any alternative position available to the applicant at the time that she commenced employment with the first respondent; on the contrary the applicant appears to have negotiated conditional registration with the Medical Board solely on the basis of employment by the first respondent and supervision by Dr Oettle. I rely also on the ready acquiescence by the applicant in the steps taken by Drs Oettle and Duflou in securing recognition of her qualifications as a prerequisite to any appointment being made to a staff specialist position. 99 One of the many difficulties which pervades the factual circumstances giving rise to these proceedings is the fact that, in all probability, if Dr Oettle had remained the director of the first respondent and the applicant's qualifications had been recognised by the first respondent as being acceptable, the applicant may have been appointed to the vacant staff specialist position which existed in 1990. This is because the documentation to which I have referred demonstrates that both Dr Oettle and Dr Duflou then strongly supported the applicant's appointment to a staff specialist position. These observations are, of course, subject to the controversy surrounding the applicant's then conditional registration by the Medical Board, by reason of the conditions imposed and the need for her qualifications to have been established for the purposes of the industrial award. 100 The review of the evidence which I have previously set out confirms that the first respondent sought to comply with the directive of the Department of Health in having the applicant's medical qualifications in her specialty recognised as being acceptable by making early contact with NSQAC. However NSQAC apparently misunderstood the letter from Mr Boyd because it assumed that what was being sought was the recognition of the applicant as a specialist. Perhaps I should not be overly critical of NSQAC because the letter from Mr Boyd concluded "can you inform me at your earliest convenience whether her qualifications are recognised by your committees." In any event the reply from NSQAC which I have summarised in para 14 deflected the attention of everyone to seeking recognition of the applicant's status as a specialist forensic pathologist rather than the pursuit of the correct question, namely whether the Israeli qualification should be recognised as such. Perhaps, if the applicant had approached the first respondent in October 1990 with details of the recognition afforded her as a specialist in forensic pathology by SRAC, this recognition may have been accepted by the first respondent as satisfying the requirement contained in the definition of specialist in the industrial award. 101 However no such approach was made until after Dr Oettle had relinquished his position and Professor Hilton had been appointed. 102 The matter is further complicated because there is no evidence as to what occurred subsequently in relation to the vacancy for the staff specialist position in 1990. Furthermore, over-arching all of this is the status of the applicant's conditional registration by the Medical Board. 103 At that time the applicant's conditional registration as a medical practitioner was given under the Medical Practitioners Act 1938. Part 3 of that Act dealt with registration and qualifications. Section 15 of the Act was entitled "Full Entitlement to Registration" and, in essence, dealt with entitlement to registration as a medical practitioner of persons who were the holder of a degree in medicine from a university in Australia having a school of medicine accredited for the time being by the Australian Medical Council. Section 16 which occurred under the heading "Limited Entitlement to Registration" entitled a person to registration who satisfied the Medical Board that he or she was a graduate of a medical school outside New South Wales and nevertheless should be exempted from any requirement to sit for an examination organised by the Australian Medical Council ordinarily required of graduates. In such cases, and subject to the detailed provisions, a person was entitled to registration upon such conditions, if any, as the Board imposed. The applicant's registration was therefore conditional registration granted under s 16(c)(ii) of that Act. 104 Section 21 enables registration by the Board subject to the imposition of conditions. By s 23B(3) a registered medical practitioner to whom a condition is imposed on registration "shall not practice medicine in contravention of the conditions." 105 My reading of the definition of "specialist" in the relevant industrial award, which I have set out earlier in para 12 is that a person is not eligible for appointment until that person has full registration and has otherwise complied with the requirements set out in the definition. This is not a matter which appears to have been raised by either respondent with the applicant, perhaps because, her qualifications having not been recognised until after Professor Hilton was appointed director and Professor Hilton refusing to support her appointment as a staff specialist, there was no need to direct attention to this matter. On the other hand, the definition of specialist contained in the current industrial instrument also refers to full registration and this aspect has never been raised by any party in terms of the unsuccessful application for appointment which the applicant made in 1998. 106 Mr Moses submitted that the conditional registration of the applicant did not preclude her appointment as a staff specialist in February 1990. That is, the requirement to undertake post-graduate tuition of Dr Oettle was not incompatible with the appointment as a staff specialist. 107 Assuming that this submission is correct, it would produce something of an incongruous result; namely the appointment of a person to a staff specialist position who was nevertheless required to carry out her work under the direct supervision of a named person. Such circumstances would be inconsistent with the position of a forensic pathologist staff specialist, as described in the evidence as being a person who is able to undertake all of his or her duties with no supervision, albeit in consultation where necessary with colleagues and who is expected to supervise others. Any finding of unfairness has to accommodate the totality of the circumstances of the relationship between the applicant and the first respondent and in particular the fact that there is a contract of employment. Any such finding must take into account the position of both parties. Whilst one party may justly complain that his or her situation is unfair, an objective assessment of the situation may not lead to a determination that in considering the overall interests of both parties the requisite unfairness exists. In my opinion the result contended for by the applicant namely that she should have been appointed a staff specialist whilst conditionally registered with conditions requiring ongoing supervision and post-graduate training, would create relevant unfairness to the respondent as an employer and as a party bound by the industrial award. Such unfairness would, in my opinion, outweigh the feeling of unfairness experienced by the applicant. I am fortified in this conclusion by the fact that there is no evidence of any detriment having been suffered by the applicant arising out of the representations made by Dr Oettle, and the failure to appoint her in 1990. There is no evidence that she forewent appointment to or the ability to apply for any other position by reason of these representations. I refer also to the conditional nature of these representations as understood by the applicant. 108 Accordingly, I do not find the failure of the first respondent to appoint the applicant as a staff specialist in 1990 was unfair. 3. The work performed by the applicant between 1989 and 1994. 109 It was the applicant's case that during this period she performed the work of a staff specialist - forensic pathologist yet was paid as a registrar in lieu of remuneration payable under the Medical Officers - Hospital Specialists (State) Award 1994, Central Sydney Area Health Service Staff Specialists Wage Agreement and the Salaried Senior Medical Practitioners (State) Award. This state of affairs was asserted to create relevant unfairness in the contract of employment requiring remedy by the awarding of compensation by reference to the difference in remuneration payable under the relevant industrial instruments and that which the applicant earned. The respondents denied that the applicant performed the work of a staff specialist during this period and that there was any relevant unfairness. In any event, the applicant was entitled to payment of overtime rates of pay with respect to much of the work performed by her during this period, whereas no overtime was payable in the case of staff specialists. Accordingly it was submitted that any difference in remuneration may have been more apparent than real. 110 In her evidence the applicant said that she performed the work of a staff specialist during this period but conceded that apart from making an application to be appointed a staff specialist in 1990 she made no other claim for any additional remuneration. 111 Professor Hilton gave evidence that during the period 1991, when he commenced with the first respondent and 1994 the applicant "performed the majority of the duties of a staff specialist ….". 112 It will be remembered that both Drs Oettle and Duflou wrote letters in support of the applicant's application for appointment to a staff specialist position in 1990 in which they indicated that the applicant was performing work equivalent to that of a specialist forensic pathologist. 113 The evidence indicates that the applicant did in fact perform from time to time the duties which were performed at that stage by a staff specialist including being part of an "on-call" roster, the conducting of examinations in difficult cases, the supervision of registrars, the giving of expert evidence, assisting in the training of medical students and technicians, and working without supervision. 114 The respondents countered by asserting that even if the applicant had performed the duties of a staff specialist and had undertaken the responsibilities of a staff specialist this was not necessarily indicative of a contract which was, in all the circumstances, unfair. Firstly it was quite clear that the applicant was not a staff specialist for the purposes of the relevant award because she had not been appointed to such a position and she lacked qualifications which were during this period recognised by the employer pursuant to the award. Secondly, the fact that an employee performs work of a certain kind, particularly in a professional setting, does not necessarily mean that as a matter of fairness that person ought to be paid at a higher rate. An analogy was drawn in the case of the legal profession of a senior employed solicitor performing work which might otherwise be performed by a partner with equal competence. 115 I accept the submissions made by the respondents that the applicant is not entitled to base this aspect of her claim on underpayment of award wages. The award which covered her during the relevant time was the Public Hospitals (Medical Officers) Award. Staff specialists were covered by the Medical Officers - Hospital Specialists (State) Award 1978. That award did not apply to the applicant because she did not fall within the definition of specialist contained within the award. 116 In considering whether the circumstances of the applicant's employment created any relevant unfairness it is necessary to take into account the ability of Professor Hilton to discharge his duties as Director of the Institute and to enable the Institute to perform its public service in a proper and appropriate manner. Professor Hilton exercised a value judgment with respect to the applicant's competency and capability as a forensic pathologist. The totality of the evidence including that of Professor Hilton, Drs Botterill and Curtis and Professor Bilous as well as the evidence of the various examiners to which I have previously referred is to the effect that Professor Hilton did not conduct himself either personally or as Director of the Institute in an unreasonable and unfair manner in the exercise of that value judgment. Although it is clear from the evidence that Professor Hilton was incorrect in insisting that the applicant hold a Fellowship of the RCPA before being entitled to be considered as a staff specialist, this did not preclude the applicant from applying unsuccessfully in 1998 for appointment to a vacant position. Accordingly I do not find any relevant unfairness in connection with these issues. 117 In determining whether there is overall unfairness for the purposes of s 106 it is necessary to take into account the totality of the circumstances. There were differential rates of remuneration under each of the awards. For example as at 12 December 1989 the annual salary for a specialist's first year of service was $60,012. The annual salary under the Public Hospitals (Medical Officers) Award for the classification Registrar 4th Year of service as at 14 December 1989 was $42,321. However under the latter award the applicant was entitled to payment of overtime whereas no overtime is payable to staff specialists under the former award. No evidence was led in the proceedings as to the resultant impact upon the applicant of the failure to pay her under the specialists' award when compared to the award under which she was paid and it is therefore impossible to determine whether there was any unfairness because of the extent of any payment differential involved. 118 The totality of the evidence is to the effect that there is a difference between the work performed by a staff specialist and that performed by a registrar. Until at least some little time after Professor Hilton took up office, the line was somewhat blurred and in effect there may not have been a great deal of difference between the duties and work performed by Dr Schwartz as a registrar and that performed by staff specialists. However, at some time prior to 1994 Professor Hilton took steps to formalise the distinction between the two functions and, certainly, by 1994 the applicant's duties had changed. 119 There is no question of the first respondent having connived to exploit the applicant by paying her wages at registrar rates for the performance of specialist services. On the contrary Drs Oettle and Duflou actively encouraged the applicant's appointment to the position of staff specialist. Neither did Professor Hilton exploit the applicant's position in any way. To the contrary he was not satisfied that she could perform the role of a staff specialist and withdrew certain duties from her. 120 On balance and having regard to the totality of the circumstances of the applicant's employment I am not persuaded that the fact that she may have performed duties of the same kind and to the same extent as a staff specialist during the period 1989 to 1994 created any relevant unfairness. In theory, if not in practice, the applicant was required by the terms of her registration to undertake post-graduate tuition and to work under supervision and specifically under the supervision of Dr Oettle. If Dr Oettle failed to supervise the applicant which is impliedly alleged by the applicant because she asserts that she did not work under supervision, this does not of itself render the contract or arrangement unfair. Indeed, it is an essential ingredient of the applicant's case overall that she did not require supervision because she ought to have been appointed a staff specialist in any event. I am unable to find unfairness merely because of the fact that the applicant performed, as I have found, the work of a staff specialist in a general sense between 1989 and 1994 without having regard to all of the other circumstances of the applicant's employment by the first respondent. 4. Changes to the applicant's duties in 1994 and following. 121 Professor Hilton removed the applicant from the supervising roster in December 1993. It was not the result of an isolated incident but the result of a view which had evolved since 1991 that it was not appropriate that the applicant ought to supervise other registrars. One of the principal reasons was her failure to pass the College examination in 1992. Professor Hilton conceded that he did not consult with the applicant before taking this course and did not counsel her about it. In 1994 Professor Hilton removed Dr Schwartz from the duty pathologist roster initially because she was preparing in August 1994 to sit for her College examination. The applicant was not reappointed to this roster following her failure in the 1994 examination. At that stage the applicant had failed the examination twice and Professor Hilton thought that these circumstances would put both the applicant and the Institute "in a difficult position in the higher courts." 122 Professor Hilton said that he was also concerned to a lesser degree about the applicant's command of English as well as what he described as a lack of common sense namely "an inability to make reasoned and sensible deductions from …. observations" from time to time. In this latter regard Professor Hilton said that he was unable to recall any specific instance. 123 Professor Hilton denied that he had failed to discuss these matters with the applicant. 124 The applicant also claimed that unfairness was created by an alleged misrepresentation by Professor Hilton that the applicant had to become a Fellow of the RCPA before being considered for appointment as a staff specialist which misrepresentation induced her to accept appointment to the lesser position of Career Medical Officer, Grade I, Fourth Year. 125 For reasons which I have already referred to, as at 1994 the applicant's registration as a medical practitioner precluded her from being appointed a staff specialist and the relevant industrial instrument also precluded this from occurring. Accordingly, even if it were a misrepresentation to suggest that the applicant needed to become a Fellow of the RCPA, this did not affect the applicant in any way. The appointment to the position of Career Medical Officer was, in fact, a promotion within the first respondent's hierarchical structure so that also could not be regarded as creating any relevant unfairness. In addition there is no suggestion, as the respondents assert, that the applicant complained about her appointment as a Career Medical Officer. 126 In addition, the applicant's submissions were directed to the applicant's current employment circumstances. The evidence established that Professor Hilton had instituted an arrangement whereby "difficult cases" were not referred to the applicant. In precluding the applicant from participating in difficult cases from 1996 onwards it is said that the respondents have detrimentally affected the applicant's career prospects and that this has in turn affected her ability to pass the College examinations. It is said also that the supervision which is given to the applicant detracts from her career prospects and is unfair. For reasons which I have previously set out I do not find that Professor Hilton acted unfairly in the work which he allocated to the applicant from 1996, based on his assessment of her competence and expertise. 127 The applicant submitted that the respondents' approach was inconsistent with that adopted in connection with a number of other specialists. I do not need to deal in detail with these allegations. There is no suggestion that the circumstances which applied to the applicant applied in all respects and with equal force to the circumstances of the specialists referred to. In particular one of the specialists, Dr Bradhurst had held that position since 1971 and has retained a classification of staff specialist even though he failed the College examination, having sat for it on one occasion only. In the case of Dr Rasenen, he was appointed a specialist on condition of passing the College Fellowship examination, which he subsequently did. There is even less substance with respect to the other specialists whose circumstances the applicant relied on in the context of this submission. 5. Denial of procedural fairness and a lack of transparency in the decision making process. 128 The applicant asserted that the respondents had not adopted any protocol or process by which the applicant was informed of the difficulties which confronted her in securing appointment as a staff specialist, and was not informed, warned, counselled or given training in connection with those deficiencies identified by the respondents. 129 I accept that Professor Hilton did not consult with the applicant when he took away some of her duties including the duty roster, supervision of others and the like. However the applicant did not otherwise suffer any detriment in the sense that she retained her then classification and accompanying remuneration and conditions. I do not accept that the applicant was thenceforth unaware of what was happening to her and was unaware of the attitude of Professor Hilton to her then current position and to her prospects of advancement. She knew at all relevant times that Professor Hilton required her to attain the College Fellowship before he would consider supporting her appointment as a staff specialist and she knew also that her duties had been altered. 130 The applicant submitted that overall there was a lack of procedural fairness and that her contract of employment should be varied by this Court so that she be given a statement of duties, that she be given reasons prior to any duties being removed from her and substantiating material and a reasonable opportunity to respond to any concerns raised concerning her performance as well as a period of at least three months in which to improve her performance prior to any duties being taken away from her. 131 Assuming that I uphold the applicant's submissions that there was procedural unfairness which translated into a finding of unfairness, any variation of the contract of employment to accommodate unfairness at the time that the applicant's duties changed in 1994 would not be of any material assistance to the applicant in light of the subsequent history of her employment with the first respondent. There is nothing to suggest that even if Professor Hilton had shared with the applicant all of his concerns about the applicant and had furnished such material as substantiated those concerns and even if she had been given a reasonable opportunity to respond and three months in which to improve that there would have been any material change to the benefit of the applicant. As Professor Hilton's concern emanated substantially from the applicant's failure to pass the 1994 College examinations a three months period for improvement would not have assisted the applicant. Indeed, there is no suggestion that the applicant has subsequently improved in a manner which would support her appointment as a staff specialist to date in the eyes of Professor Hilton, which would support any payment or the accrual of any other tangible benefit to the applicant under the provisions of s 106. In addition, the applicant has persistently refused to acknowledge any deficiencies noted by others. She argued strenuously against the conclusions of her examiners and against the assessment of her shortcomings made by Professor Hilton. 132 Accordingly, in the exercise of the discretion which reposes in this Court under s 106, I do not propose to make any finding of unfairness with respect to this particular issue. I will, however, take this matter into account in determining whether there is any overall unfairness in all the circumstances of the applicant's employment by the first respondent, a matter with which I shall deal later in these reasons for judgment. 6. Is the applicant competent and able to carry out the duties of a staff specialist? 133 It was fundamental to the applicant's case that she was both competent and able to carry out the duties of a staff specialist. 134 In his submissions Mr Moses asserted that the Court needed to be satisfied on a proper basis that the applicant was not competent or able to discharge these duties. He referred to the requirement of "reasonable satisfaction" to be found in cases such as Briginshaw v Briginshaw (1938) 60 CLR 336. The respondent's submission was that it was for the applicant to establish that she was competent and able to perform these duties and that in this sense she bore the onus of satisfying the Court that this had been established. 135 Obviously, this Court is not in a position itself to assess the applicant's competencies and qualities as a forensic pathologist. It can only examine and deal with such evidence about these matters as has been given and make a determination accordingly. 136 There can be no doubt that both Dr Oettle and Dr Duflou assessed the applicant as being competent to perform the duties of a staff specialist. I have already referred to the written evidence concerning these matters. There can be no doubt however that once appointed as Director, Professor Hilton took a contrary view. The evidence about the applicant's competency and ability must necessarily tread a fine line because no one has doubted her ability to perform at the level of Career Medical Officer, and the controversy relates only to the more senior position. As the evidence transpired, these matters of degree related to performance at the higher levels of the applicant's expertise and specialty and did not go to her basic skills. 137 Evidence was given by Professor Hilton of a number of inadequacies with respect to specific matters; however his recollection of specific matters was somewhat limited. I do not say this by way of criticism of Professor Hilton's ability to recollect each and every incident, but I do accept that Professor Hilton formed an impression concerning the applicant's competencies and ability by reference to a number of discrete incidents. His evidence ranged over matters such as clarification concerning the applicant's reports to coroners, some asserted gaps in basic knowledge, an inability to reason effectively and the like. Particular incidents were referred to in the evidence of Drs Botterill, Bilous and Curtis. Dr Duflou also gave evidence about his opinion of the applicant's competency and ability, but for reasons already given I propose to disregard his evidence about these matters. 138 The applicant attacked the evidence of these persons as being generalised, vague and limited overall to a few specific occasions. Submissions made on her behalf emphasised that Professor Hilton relied overall on the fact that the applicant did not hold a FRCPA, especially when competing with another applicant for a position who held that degree. However, I am not satisfied that Professor Hilton blindly applied the lack of such a degree as of itself justifying a failure to be appointed to a staff specialist position in competition with another person. Professor Hilton gave the following evidence: "Q. But you took the view, didn't you, in 1994 that it would have been virtually impossible for Dr Schwartz to be accepted in an application for the position as staff specialist without a fellowship of the College? A. Assuming that she in competition with someone who had the fellowship, I would think it would be very very difficult. Q. For her to be appointed a staff specialist? A. For her to be successful. Q. In 1994? A. Yes, in 1994. Q. In the year 2001? A. I think she has now got her registration back. The bar has been removed, but again in competition with someone who did have an Australian, the appropriate Australian professional qualification, I think the lack of her having that qualification, especially if the reasons were explored, would have some weight against successful possible application." 139 I have earlier referred to the examination process and methodology utilised by the Royal College of Pathologists Australasia. See in particular paras 58 and 59. I have also set out in some detail the examiners' reports of the applicant's various examinations. See in particular paras 59 to 62 inclusive. There is no evidence which would allow me to conclude that the processes and methodology utilised by the College were not fair and did not apply fairly to the applicant. I am not prepared to conclude that the examiner's comments which were made available to Professor Hilton should not have influenced him in assessing the applicant's competency and ability and in advising her that they would impact upon any application she made for appointment to a staff specialist position. 140 Of course, overriding all of the debate in this area is the question as to whether or not in the exercise of the discretion of this Court the respondents should be compelled to appoint the applicant to the position of staff specialist on the basis of the representation made to her by Dr Oettle in 1989 or whether such appointment should only be made in the case of a vacancy in that position. Furthermore should the first respondent be denied the right to appoint the applicant in the event of a "better" candidate also applying for any vacant position? That is should the first respondent be precluded from appointing the best possible person to the position, assuming that there was a vacant position and there was competition for it? 141 In written submissions made on her behalf the applicant attacked the requirement imposed by Professor Hilton that the applicant's autopsy reports (in common with other pathologists on the staff of the first respondent) be counter-signed. It was suggested that the counter-signature system is "cursory" and that the implementation of such a procedure is "demeaning and without proper grounds." The respondents countered by asserting firstly that the question of supervision was ultimately a matter for management prerogative and this Court has "no proper role to play" in deciding the nature and extent of appropriate supervision. I agree with the respondents' submission. Forensic pathologists employed by the first respondent carry out a most responsible and fundamental task in connection with the administration of the judicial system in New South Wales. It is a matter for the second respondent as to the protocols and procedures which the first respondent is to utilise in an endeavour to enhance the quality of the work of the first respondent. 142 The respondents emphasised also that the applicant applied in February 1998 for appointment to a staff specialist position. She participated in the selection process but was unsuccessful, it having been determined that another applicant was more meritorious. 143 When the applicant applied for this position by letter dated 9 February 1998 she thanked Professor Hilton for pointing out the advertisement for a staff specialist which had been published on 31 January 1998. The application was lodged on the condition that she was not to be seen to be waiving her existing rights to be appointed as a staff specialist retroactively in connection with her application made in 1990. Professor Hilton accepted this condition which prompted the applicant to submit a detailed application on 10 February 1998. By letter dated 31 march 1998 the applicant asked Professor Hilton to draw to the attention of the selection panel the fact that she was to be judged from her work in practice and asked that no adverse conclusion be drawn from the fact that she had failed the FRCPA examinations. The decision of the selection committee was made on 7 April 1998. The reason given for not recommending the applicant for appointment is that she "does not completely fulfil the essential and desirable criteria." 144 In cross examination the applicant was asked whether she would apply for a staff specialist position if it became available at the present time. She said she would only apply under specific conditions which, as I understood her evidence, went to the same issues that applied in connection with the 1998 application namely that it would not prejudice her claim that she should have been appointed to a staff specialist position in 1990. 145 Having regard to all the evidence and in particular to the matters set out above I am unable to make any finding concerning the applicant's competence and ability to carry out the duties of a staff specialist which is contrary to the conclusion reached by Professor Hilton. I accept the evidence of Professor Hilton and decline to make any finding of any unfair conduct in connection with the failure of Professor Hilton to regard the applicant as competent to perform the work and carry out the duties of a staff specialist. 7. Whether the respondents discriminated against the applicant in the assessment of her qualifications. 146 The written submissions made on behalf of the applicant alleged indirect and direct racial discrimination by the respondents against the applicant within the provisions of the Anti Discrimination Act 1977. The allegations focus on the applicant's overseas qualifications, that those qualifications were gained from a non-English speaking country and that the respondents required qualifications which, ultimately, were more likely to be gained by someone from an English speaking country. The respondents protested that these were matters which were not raised within the summons for relief filed by the applicant in these proceedings. The summons clearly raises for consideration by way of an issue whether the respondents should in fairness have accepted the applicant's qualifications as entitling her to be appointed a staff specialist. There is, however, no mention made in the summons of any allegation of discriminatory conduct for the purpose of the anti discrimination legislation. Paragraph 33 of the summons alleges that the contract of employment or arrangement between the applicant and the respondents was unfair etc. in that: (o) It permitted the respondents to impose an arbitrary and discriminative approach to the assessment of her classification and, accordingly, her salary entitlement." 147 I do not understand this allegation to raise any issue concerning breach of the anti discrimination legislation. 148 In his opening Mr Moses referred to discrimination and harassment of the applicant and as to whether the respondents condoned or acquiesced in this activity. As Mr Moses elaborated, these issues went to circumstances where two doctors made derogatory remarks about the applicant, which were the subject of intervention by Professor Hilton, details of which I have previously referred to. Mr Moses then proceeded by again referring to discrimination in these terms: "The next issue is whether the respondents have been, we say, biased or have discriminated against the applicant by insisting on two issues, firstly an undue level of supervision given her experience as a forensic pathologist and secondly the insisting of her autopsy reports to become so; and whether the respondents were justified in demoting the applicant from substantive duties of staff specialist. This relates to when the decision was taken by Professor Hilton that she ought not hold such a post unless duly qualified." I do not regard the discriminatory conduct alleged against the respondents in this context as raising any issue with respect to the anti discrimination legislation. 149 The discriminatory conduct relied upon by the applicant relates to the failure of the respondents to recognise the applicant's Israeli qualifications as enabling her to be appointed as a staff specialist in 1990 and by requiring the applicant to hold a qualification approved by NSQAC before considering her for appointment to that position. In addition the allegation goes to the requirement imposed by Professor Hilton that the applicant obtain a Fellowship of RCPA before he considered her as being suitable for appointment to that position. As I have previously pointed out the requirement to seek NSQAC recognition was imposed on the respondents by its requirement to comply with the provisions of the then prevailing industrial instrument and I cannot see how these circumstances would create any situation which could be characterised as either direct or indirect discrimination for the purposes of any anti discrimination legislation. Secondly, the requirement that the applicant obtain Fellowship of the RCPA was directed to and related to her competency and ability to be appointed as a staff specialist and was not in any way, as I understand the evidence, the result of a refusal of either respondent to recognise the applicant's Israeli qualifications because of the applicant's colour, nationality, descent, ethnic, ethno-religious or national origin. 150 For these reasons, stated shortly, I do not agree that any breach of any anti discrimination legislation has been demonstrated. 8. Was the conduct of the respondents reasonable in using NSQAC to assess the applicant's qualifications. 151 Prior to the enterprise agreement made in May 1995 the industrial award described in para 12 applied. By reason of the matters discussed in para 13 the respondents asserted that they were required by the Department of Health to limit their consideration of what were "appropriate higher medical qualifications in (the) specialty" to one recognised by NSQAC. The applicant submitted that it was unreasonable and, hence, unfair for the respondents to have utilised only qualifications recognised by NSQAC. It was said that "no evidence was adduced about any attempts made (by the respondents) to have the policy altered because it was unfair and/or discriminatory towards doctors who were born in foreign countries with foreign qualifications from a non English speaking country." In addition the policy of the Department of Health was said to be discriminatory within the Anti Discrimination Act 1977. Furthermore the representation made by Dr Oettle should have been honoured. The applicant pointed to evidence given by Mr Clout that persons had been appointed to positions as a staff specialist in circumstances where they were not qualified. However that evidence was limited to circumstances of employees of long standing either remaining in an existing position or being recognised as a specialist on transfer to another hospital within the health system. It was said on behalf of the applicant that the respondents should have taken account that both the SRAC and RCPA had recognised the applicant as a specialist in forensic pathology by December 1990. 152 In essence the applicant submitted that it was improper of the respondents to utilise the determination of the Department of Health that an appropriate higher medical qualification is that which is verified by NSQAC. Presumably the first respondent should have made its own enquiries as to whether the applicant had obtained an appropriate "higher medical qualification" in her specialty and as to whether that was acceptable to the first respondent. Presumably, an enquiry properly made as to the applicant's Israeli qualifications would have necessitated an examination of those qualifications and what was involved in securing them. Whilst there was no evidence led as to what would have been involved in the making of any necessary enquiries and the conducting of any necessary examination of the qualifications, I would not regard it as reasonable to require the first respondent to have conducted such an examination and I do not regard it as unfair that the respondent relied upon the verification by NSQAC, having been directed to that source by the Department of Health. In determining what is fair and, hence, not unfair, it is necessary to focus on the totality of the arrangement or contract, as the case may be, and have regard to the particular circumstances of the parties as well as the general circumstances applying to the totality of the situation. Any assertions of unfairness must be tested having regard to all of these circumstances. Those circumstances include any burden which might unnecessarily be undertaken by a hospital or other medical institution in determining what are acceptable and higher medical qualifications. The ability to have regard to an Australian authority which, prima facie, is able to bring to bear some considered opinion about a matter seems sensibly and reasonably to be an appropriate situation when the alternative is to make individual enquiries to test a situation which is outside Australia and would no doubt involve the expenditure of time and resources. 153 In order to succeed in such a submission, it would be necessary for the applicant to demonstrate that the respondents had acted so unreasonably in following directions made by the Department of Health and in failing to make representations to the Department to change the directions that the resultant situation tainted the first respondent's relationship with the applicant to the extent that it became unfair. To the extent that the applicant had been given a position with the first respondent and the first respondent was pursuing as directed the question of the applicant's qualifications, I am not prepared to characterise this conduct of the first respondent whether by commission or omission as being unfair in all the circumstances. 9. Participation in the discrimination and harassment of the applicant. 154 Some evidence was led during the proceedings about references to the applicant's foreign qualifications, her accent and her Jewish background. There was evidence in particular of inappropriate behaviour by Drs Duflou and Rodrigez. Dr Duflou refused to apologise for his conduct, which was judged by Professor Hilton to be inappropriate and about which Professor Hilton made complaint to him. 155 The applicant complains that neither the first respondent nor Professor Hilton took appropriate and proper steps to redress this conduct. 156 I am not satisfied that Professor Hilton was himself personally guilty of harassing or discriminating against the applicant. Dr Rodrigez did not give evidence in the proceedings. Dr Duflou did give evidence, and I have already made comment that I found his evidence unconvincing. I express some incredulity at the refusal of Dr Duflou to proffer an apology relying on one which had been forwarded by the Chief Executive Officer of the first respondent as being sufficient. I accept that neither respondent condoned this conduct and, in the circumstances, I do not characterise the conduct of either respondent as creating any relevant unfairness for the purpose of these proceedings. The evidence is that Drs Duflou and Rodrigez did not act with the connivance or approval of the respondents, and in the circumstances the respondents should not be tainted by their conduct. There is no evidence that the respondents' conduct towards the applicant adversely affected her in any way by reason of the conduct of Drs Duflou and Rodrigez. 10. Overall Unfairness 157 Thus far, I have dealt with a number of discrete issues, as formulated by the parties. In each case I have concluded that there is no relevant unfairness. However, it is necessary in my view to also consider the totality of the circumstances in determining whether unfairness has been demonstrated. In a case where a number of discrete issues have been considered, any one or more of which may be held to be unfair, it may be necessary to evaluate the totality of the circumstances according due weight to particular matters to determine whether on balance any unfairness exists. No such situation applies to these proceedings. Whilst there are situations where the applicant may consider from her point of view alone that she has been treated unfairly, an approach which involves balancing the needs and circumstances of the respondents dictates in each case and hence overall that no requisite unfairness can be demonstrated, such as would entitle the applicant to relief under s 106. DELAY 158 The respondents submitted that there has been an almost ten year delay between the time at which the applicant applied in 1990 to be appointed a staff specialist and the commencement of these proceedings. This has impacted, it is said, on the recollection of witnesses and the respondents have been prejudiced in the preparation of their cases. 159 Although the applicant failed to commence proceedings in a timely fashion, her case has been advanced over the years by means of a great deal of correspondence and written submissions including complaints to many authorities. Accordingly, the witnesses have had access to detailed documentation. The respondents have not pointed to any particular prejudice, but rather prejudice in a general sense. I decline to find against the applicant on this basis. THE RELIEF SOUGHT IN THE PROCEEDINGS 160 Conditional upon a finding of unfairness, the applicant sought that the contract and/or arrangement between herself and the first respondent should be varied in the following manner: "(a) The Respondents shall accord to the Applicant a classification and salary commensurate with her skill, ability, training and experience; (b) the Respondents shall accord to the Applicant a classification and salary commensurate with her duties; (c) the Respondents shall appoint the Applicant to a position of Staff Specialist - Forensic Pathologist backdated to such time as to this Honourable Commission appears fit or just; (d) the First Respondent shall provide to the Applicant the entitlement, benefits and salary of the position of Staff Specialist - Forensic Pathologist backdated to such time as to this Honourable Commission appears fit or just; (e) the Second Respondent shall not be permitted to unlawfully interfere with the Applicant's contract of employment; (f) the Second Respondent shall not require the Applicant to obtain a qualification which is not reasonably necessary for appointment to the position of Staff Specialist - Forensic Pathologist; (g) the Respondents shall not be permitted to arbitrarily and unreasonably withdraw from the Applicant opportunities to perform duties which the Applicant has demonstrated that she is capable of performing, and for which she is suited by reason of skill, ability, training and experience; (h) the Respondents shall not arbitrarily and unreasonably restrict the Applicant's opportunities to advance her career; (i) the Respondents shall not be permitted to withdraw benefits and opportunities associated with the Applicant's contract of employment without unreasonable cause; (j) the Respondents shall not be permitted to subject the Applicant to conditions in her employment which are less favourable than previously enjoyed by the Applicant without reasonable cause and proper authority to do so; (k) the Respondents shall not be permitted to deny to the Applicant access to skilled tasks necessary to establish and/or maintain her high level of skills; (l) the Respondents shall not subject the Applicant to unequal treatment, harassment and/or discrimination in the workplace; (m) the Respondents will, in their dealings with the Applicant, treat the Applicant in a fair and equitable manner and not subject the Applicant to any unequal treatment in the workplace; (n) the Respondents shall not conduct themselves in a manner likely to destroy the relationship of mutual trust and confidence between the parties; (o) the Respondents shall not act in a one sided manner contrary to the legitimate expectations and understandings of the Applicant, in circumstances where to do so would damage or detrimentally affect the career interests of the Applicant." 161 The respondents submitted that the principal variations sought required the first respondent to appoint the applicant to a position of staff specialist - forensic pathologist. This, it was said, would not amount to a variation of the existing contract of employment, but the creation of a new contract. 162 In support of this proposition the respondents relied on a number of authorities including O'Connor v The Argus and Australasian Ltd (1957) VR 374, Federated Insurance Co of Aust Ltd v Sabine Ltd (1920) SALR 284 and The Commissioner of Taxation v Sara Lee Household & Bodycare (Aust) Pty Ltd (2000) HCA 35, the joint judgment of Gleeson CJ, Gaudron , McHugh and Hayne JJ in the High Court of Australia esp. para 22-24. 163 In view of the decision to which I have come that there is no unfairness in the failure of the first respondent to have appointed the applicant to the position of staff specialist, it is not necessary that I consider this matter further. However I mention it for completeness because, if it had become relevant, the respondents submitted that there was no power in this Court to create a new contract between the parties. The power is limited by s 106 to the variation or avoidance of a contract, and the power to create a new contract is expressly precluded. For completeness, also, I refer to the judgment of Taylor J in the High Court of Australia in Tallerman v Nathan's Merchandise (Vic) Pty Ltd (1956-57) 98 CLR 93, particularly the judgment of Taylor J at 144, part of which was cited with approval in Sara Lee. CONCLUSION AND ORDERS 164 I conclude that the applicant's case must fail. She has failed to prove the existence of an unfair contract within s 106 of the Act. I do not find that there is any unfair contract to which either respondent is a party, even by reference to s 106(2). 165 Normally costs would follow the event. The parties asked that I reserve costs, and I shall do so. 166 The summons is dismissed. Costs are reserved. I grant liberty to apply with respect to costs. __________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.