Dr David Amos v Western New South Wales Local Health District [2016] NSWSC 1162

Supreme Court New South Wales

Medium Neutral Citation: Dr David Amos v Western New South Wales Local Health District [2016] NSWSC 1162 Hearing dates: 27 and 28 July 2016 Date of orders: 23 August 2016 Decision date: 23 August 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the Plaintiff can seek review of the decision made on 4 March 2016 to issue him a warning be extended up to and including 5 July 2016; (2) The proceedings be otherwise dismissed; (3) With effect from 5pm on Friday, 27 August 2016 the parties be relieved from further compliance with the undertakings given to the Court on 28 July 2016; (4) The Plaintiff pay the First Defendant's costs of the proceedings; and (5) There be no order as to the Second Defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – visiting medical officer received Warning Letter – subject of adverse findings in report – consideration of suspension – possible report under s 99A of Health Services Act 1997 – status of visiting medical officer – whether position created under or regulated by statute – issue of Warning Letter – whether amenable to judicial review – whether step taken under and for purposes of Health Services Act 1977 – whether apt to affect interest of visiting medical officer – HELD – no obligation to afford natural justice in relation to Warning Letter – external expert engaged to provide report – whether report is step taken under and for purposes of Health Services Act – whether report apt to affect interest of plaintiff – HELD – no obligation to afford procedural fairness prior to making report – suspension decision – whether injunction should issue to restrain suspension – whether plaintiff demonstrated sufficient likelihood that breach of natural justice will occur – HELD – likelihood of breach not established – summons dismissed Legislation Cited: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Government Information (Public Access) Act 2009 (NSW) Health Services Act 1977 (NSW) Migration Act 1958 (Cth) Public Hospitals Act 1929 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ackroyd v Whitehouse (1985) 2 NSWLR 239 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 Attorney-General (UK) v Nottingham Corporation [1904] 1 Ch 673 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Cornall v AB (A Solicitor) [1995] 1 VR 372 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations and Anor (2011) 195 FCR 318 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 441 Jones v Dunkel (1959) 101 CLR 298 Karimbla Properties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 Kioa v West (1985) 159 CLR 550 Macksville & District Hospital v Maze (1987) 10 NSWLR 708 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection & Anor v SZSSJ & Anor [2016] HCA 29 Minister for Immigration and Ethnic Affairs v Taveli & Ors (1990) 23 FCR 162 Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 R v Panel on Take-Overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815; 1 All ER 564 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 State of Victoria v Masters Builders' Association of Victoria [1995] 2 VR 121 The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5th ed 2013) at [3.180]. Category: Principal judgment Parties: Dr David Amos (Plaintiff) Western New South Wales Local Health District (First Defendant) Chief Executive, Western NSW Local Health District Claim (Second Defendant) Representation: Counsel: Ms M Allars SC (Plaintiff) Ms K M Richardson with Mr T Hackett (Defendant)