Industrial Relations Commission of New South Wales in Court Session CITATION : Dr Rosemary Swift v St Vincent's Hospital Sydney Ltd [2001] NSWIRComm 121 APPLICANT Dr Rosemary Swift PARTIES : RESPONDENT St Vincent's Hospital Sydney Ltd FILE NUMBER: IRC 2984 of 2001 CORAM: Marks J CATCHWORDS : Unfair contract - Appointment of Visiting Medical Practitioner - Finding of fact on discrete issue LEGISLATION CITED : Industrial Relations Act 1996 s 106 HEARING DATES: 05/24/2001; 05/25/2001 DATE OF JUDGMENT: 05/30/2001 APPLICANT Mr P J Newall of counsel SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr J V Murphy of counsel SOLICITORS Bartier Perry JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 30 May 2001 Matter No IRC 2984 of 2001 DR ROSEMARY SWIFT v ST VINCENT'S HOSPITAL SYDNEY LIMITED Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT ON FACTUAL ISSUE 1 These are proceedings commenced under s 106 of the Industrial Relations Act 1996 ("the Act"). The applicant Dr Rosemary Swift holds a position as a Visiting Medical Practitioner with the respondent St Vincent's Hospital, Sydney. This appointment is necessary to enable Dr Swift to treat patients within her specialty as a plastic surgeon at the hospital. She asserts that her appointment also affects her ability to train registrars and overseas post-graduate trainees in plastic surgery and to undertake research and other projects in this area. 2 The applicant's appointment as a Visiting Medical Practitioner expires on 30 June 2001, together with the appointment of a large number of other medical practitioners within their various areas of specialty. 3 The respondent forwarded to the applicant application forms inviting her to apply for reappointment after 30 June 2001. A dispute has arisen between the parties as to whether or not the applicant did submit an application form within a time deadline specified by the respondent. In any event, the respondent gave the applicant a further deadline in which to submit an application which expired. The respondent has declined to accept the applicant's application for reappointment and the applicant has commenced proceedings under s 106 of the Act asserting relevant unfairness on the part of the respondent in terms of her contract or arrangement with it and seeking, in effect, variation so as to require the respondent to accept her application for reappointment which was lodged by her on 6 April 2001 so that the application can be dealt with in terms of merit. 4 The summons under s 106 was filed on 1 May 2001. The matter was said to be urgent by both parties because the respondent has four visiting medical practitioner positions available in plastic surgery and currently more applications than positions. Accordingly, these proceedings need to be finalised to enable the applications to be processed. 5 On 15 May 2001 I heard a notice of motion for an expedited hearing which I granted that day. Mandatory conciliation was conducted under s 109 of the Act on 17 May 2001, which did not resolve the proceedings. 6 The parties agreed that the litigation of the matter would proceed in stages. The first stage involved the determination as to whether the Court was satisfied that the applicant did in fact lodge an application for appointment within the time stipulated namely 22 March 2001. If so satisfied, the respondent said that it would grant the applicant an interview. This judgment is confined to a determination of this factual issue. 7 Affidavit material was filed by both parties and oral evidence was given in support by a number of witnesses. 8 The applicant said that she received an application for reappointment from the respondent by letter under the hand of Dr Charles Blok, Director of Medical Services dated 27 February 2001. That letter enclosed application forms and other material in an information package and stated that applications closed on Thursday 22 March 2001. The applicant said that she received that letter and the attached documentation in the mail at her rooms in Macquarie Street Sydney in the same post as a letter dated 27 February 2001 from Dr David Caminer Chairman of the Department of Plastic Surgery at the respondent hospital. That letter complained about a number of matters involving the applicant including lack of attendance at weekly Monday morning Grand Ward Rounds and business meetings and a failure to give registrars adequate hands-on operating experience as primary surgeons. 9 The applicant at all times until 15 May 2001 maintained that on the weekend of the 3rd or 4th of March 2001 she lodged the completed application form and enclosed documentation with the respondent by leaving it in an envelope at the front desk of St Vincent's Private Hospital. In the same envelope she also inserted her application for reappointment as a Visiting Medical Practitioner at St Vincent's Private Hospital. The envelope was left behind the barrier of the front desk and placed into the hands of the person sitting there whose identity she does not know. 10 The respondent raises no point in the proceedings that the envelope was left at St Vincent's Private Hospital rather than the respondent public hospital in terms of effective service of the application for reappointment. The respondent claims never to have received the application. 11 The applicant states that she assumed that her application for reappointment had been lodged appropriately and was being dealt with. 12 In order to understand the evidence which is discussed in the following narration, it is important to understand that it was the respondent's case that the applicant did not and could not have received the application for reappointment form in the post by Friday 2 March to enable her to complete it over the 3rd or 4th of March and lodge it that weekend at the private hospital. After the applicant became aware that the respondent had evidence to this effect, she asserted for the first time that the application may have been lodged at the private hospital over the following weekend. The respondent alleged this was something which she had invented to overcome any suggestion that her original assertion was false. Furthermore, the respondent relied on certain inconsistencies in evidence adduced by the applicant all of which pointed to the fact that the applicant could not be believed when she stated that she had lodged an application for reappointment with the respondent via the private hospital. 13 The first area of inconsistency in the applicant's evidence consisted of the circumstances in which the applicant became aware that the respondent had not received her application for reappointment. Lyn Strauss an administrative officer employed by the respondent telephoned the applicant's rooms on 2 April 2001 and had a discussion with the applicant's secretary Ms Stevenson who had started working with the applicant on 1 March 2001. Ms Strauss said that she had conversations with Ms Stevenson over the 2nd and 3rd of April in which Ms Stevenson is alleged to have said, after consulting the applicant, that the applicant did not receive the application and asked that another one be forwarded to her. Ms Stevenson in her evidence did not recollect telling Ms Strauss that the first application had not been received. She said that when she spoke to the applicant concerning Ms Strauss' query the applicant had merely said that she did not know what Ms Strauss was talking about and "just get them to send me another one". It was on this basis that she asked for another copy to be forwarded. Ms Stevenson puts her conversations with Ms Strauss as occurring on either the 2nd or 3rd of April. The applicant asserts that the conversations occurred on 3 April at a time when she was working in her rooms and was very busy. She said on that afternoon she saw 26 patients. 14 Having reviewed the evidence I am not prepared to make any finding that the applicant, through her secretary Ms Stevenson said that she had not received the first application. Even though Ms Strauss (whose evidence I generally accept) made a diary note that the applicant's secretary said that she had not received the first package, this is also explicable in terms of the fact that the applicant's secretary had no knowledge at all of the matter (because the applicant opens her own mail) and the message that was relayed was apparently done so in haste after a brief conversation between Ms Stevenson and the applicant at a time that the applicant was busy. The notes taken by Ms Strauss are consistent with Ms Stevenson having returned her call with the information conveyed on 3 April 2001, which is consistent also with the applicant conducting a busy practice in her rooms that afternoon. 15 As I have previously stated, the applicant received another set of forms probably on 3 April 2001 which were forwarded by courier. However the applicant opens her own correspondence and did not open that particular letter for a couple of days. It was only then that she discovered that a further time limit which had been imposed with the new application form namely 5pm on Wednesday 4 April 2001 had expired. 16 Since then and until 15 May 2001 the applicant maintained in correspondence, in telephone conversations with a number of people and in correspondence initiated by her solicitors that she had in fact delivered the original application for reappointment at St Vincent's Private Hospital on the 3rd or 4th of March 2001. 17 Evidence was adduced on behalf of the respondent from Cheree Skewes an executive assistant to Dr Denise Robinson, the Executive Director of the respondent. She said that a large number of visiting medical practitioner application forms were prepared by her and another person commencing just before lunchtime on 28 February 2001. She had prepared about 120 letters which she had left on Dr Blok's desk at about 3pm on Wednesday 28 February for him to sign. He had not signed them by 5pm that day. She had not finished preparing envelopes for those letters by 5pm that day. On Thursday 1 March she was asked by Dr Blok to amend all of the letters to provide for a closing date of 22 March 2001. She put the amended letters on Dr Blok's desk on 1 March. She was then asked to contact St Vincent's Private Hospital and obtain an application form for that organisation. She was given all of the signed corrected letters shortly after lunch on the Thursday and then commenced collating the letters and the addressed envelopes. By Thursday afternoon she had put together a number of packages and took 20 of them to the mailroom no earlier than about 4pm that day. There was no one in the mailroom at the time. She made up another 7 or 8 packages that day and took them to the mailroom. She noticed that the 20 packs which she had earlier put there were still in a mailbox for posting. This was shortly before 5pm that day. She completed the remainder of the mail packages by mid morning the following day, Friday 2 March. 18 Affidavit evidence of Franco Sbrana and William Delforce, both of whom are employed by the respondent, and which was directed to the handling of mail within the respondent's organisation is to the effect that the mail is franked at about 2pm every day before being taken to the Darlinghurst Post Office between 2pm and 3pm. 19 Both parties accepted for the purpose of the proceedings that any mail posted on the afternoon of the Friday at Darlinghurst Post Office would not be delivered to the applicant's Macquarie Street rooms that day. 20 In an affidavit sworn 21 May 2001 the applicant said that whilst her best recollection is that she handed in the first application on the weekend of the 3rd and 4th of March "it is quite possible that I handed it in on the weekend of the 10th and 11th of March. It is possible that I saw my patients at St Vincent's Private Hospital at the time I handed in the first application." The applicant was cross examined extensively about this matter, but her evidence does not elucidate the situation, other then to confirm the applicant's view that she always thought that she had handed the letter in on 3 March rather than the following week. 21 I should also state that Dr Denise Robinson, the Executive Director of the respondent who gave evidence was adamant that she had a telephone discussion with the applicant on the afternoon of 5 April 2001 in which the applicant stated that she had received the mail out on 22 February. Such conversation was denied by the applicant. In any event the 22 February clearly pre-dated the date of the letter soliciting the application. 22 The applicant forwarded to St Vincent's Private Hospital a copy of her original application for reappointment with that organisation because it, too, had gone astray. In a letter of 13 April 2001 addressed to St Vincent's Private Hospital she purported to enclose a copy of the forms which were originally sent. Attached to the form was a letter from United Medical Protection as evidence of current indemnity cover. That letter was dated 7 March 2001 which, of course, post-dated the date of the application namely 3 March 2001. The applicant in oral evidence explained that when forwarding what purported to be a copy of the original application for reappointment to St Vincent's Private Hospital she attached the most recent documentation with respect to her medical indemnity insurance. I do not consider that these matters have any great significance. 23 There is also some inconsistency in the evidence led by the respondent. Despite the evidence of Ms Skewes that leads to the conclusion that the material was posted to the applicant on 2 March, a letter from Ms Strauss to the applicant dated 3 April 2001 enclosing a further application package states "our records indicate that this package was posted to you at the correct address on 1 March 2001." CONSIDERATION 24 It is now necessary to determine the particular discrete issue, namely whether I am satisfied on the balance of probabilities that the applicant did apply for reappointment on or before 22 March 2001. 25 Despite the letter written by Ms Strauss indicating that the package was posted at the correct address on 1 March 2001, it seems to me that the evidence of Ms Skewes when coupled with the additional evidence to which I have referred demonstrates that it is more likely than not that the applicant did not receive the application form from the respondent until after 2 March. Accordingly, it is more likely than not that she could not have left the envelope at the private hospital during the following weekend. 26 Accordingly, is it more likely than not that the applicant lodged the application form at the private hospital on the following weekend? 27 Up until 15 May 2001 the applicant was always adamant that she had lodged the application on either 3 or 4 March 2001. I can readily appreciate that she may have been mistaken in this belief if her evidence was to the effect that she had lodged the application at St Vincent's Private Hospital shortly after receiving it. This would render less relevant the date of actual receipt. However the applicant states that she received the application in the same mail as the letter from Dr Caminer dated 27 February 2001 to which I have earlier referred. The receipt of such a letter is more likely to be remembered, because it is highly critical of the applicant and might, arguably, impact upon her reappointment. This makes it less likely that the applicant has failed to recollect accurately the date upon which she received the application for reappointment. She clearly places it as having been received in the same post as the letter of Dr Caminer. There is no suggestion from the applicant that the letter of 27 February 2001 was received other than in the ordinary course of the post. 28 In these circumstances I am not satisfied that the applicant did lodge the application at the private hospital on the following weekend namely the 10 and 11 March. It is her clear recollection that she did so immediately following receipt of the application for reappointment and she clearly dates that receipt as having occurred contemporaneously with receipt of the letter from Dr Caminer. 29 For all of these reasons I am not satisfied on the basis of the evidence that on the balance of probabilities the applicant did lodge her application for reappointment within the time stipulated and in the manner and circumstances which she has sought to assert. 30 I ask the parties to confer with a view to arranging a timetable for the hearing of the balance of the proceedings. ________________ 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.