Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159

Reported Decision : 218 FLR 268

New South Wales Supreme Court

CITATION : Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159

HEARING DATE(S) : 29 January 2007-2 February 2007, 5 February 2007-9 February 2007, 12 February 2007-16 February 2007, 19 February 2007-23 February 2007, plus subsequent written submissions.

JUDGMENT DATE : 3 July 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

i.The defendants' direction to Dr Downe to perform work at Westmead Hospital in a manner inconsistent with the fulfilment by Dr Downe of her duties as Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants; ii. The defendants' purported continued suspension of Dr Downe from the performance of duties as the Director of the Neonatal Intensive Care Unit at Nepean Hospital is unlawful as a breach of the contract of employment between Dr Downe and the defendants; iii. During the subsistence of the current contract of employment between the plaintiff and the defendants, the defendants, and each of them, their servants or agents, shall refrain from directing the plaintiff to perform or not to perform any work or act, which direction is inconsistent with the performance by Dr Downe of her functions as Director, Neonatal Intensive Care Unit, Nepean Hospital; DECISION : iv. The defendants and each of them shall refrain from treating as valid, lawful or binding its or their direction to the plaintiff to work as a Staff Specialist at Westmead Hospital; v. Each party has liberty to file and serve, within 14 days from the date hereof, a written submission on costs and each party may, within a further 7 days, respond in writing to any such submission; vi. The parties have liberty within 35 days to approach the Court for any further or consequential order, including any order for damages, for the purpose of giving effect to or clarifying these reasons for judgment or ameliorating any administrative inconvenience arising from these orders; vii. Order iii above shall be stayed for a period of 14 days from the date hereof; viii. Otherwise the proceedings are dismissed.