Supreme Court New South Wales Medium Neutral Citation: Page v Healthscope Operations Pty Ltd [2016] NSWSC 1608 Hearing dates: 01 November 2016 Date of orders: 16 November 2016 Decision date: 16 November 2016 Jurisdiction: Common Law Before: Wilson J Decision: (1) Separate Questions are answered as follows: Question 1: No Question 2: The answer to Question 1 being in the negative, Question 2 requires no answer. (2) The Amended Statement of Claim filed on 8 July 2016 is dismissed. (3) Costs in favour of the defendant. Catchwords: PRACTICE AND PROCEDURE – motion seeking the determination of separate questions – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) – separate determination agreed by parties CONTRACT – construction of contract – grant of accreditation – whether obligations imposed by By-Laws constitute consideration Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 82 CLR 424 Beaton v McDivitt (1987) 13 NSWLR 162 Le Mans Grand Prix Circuits v Illiadis [1998] 4 VR 661 Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356 Ryan v Textile, Clothing & Footwear Union of Australia [1996] 2 VR 235; (1996) 66 IR 258; (1966) 130 FLR 313 Sklavos v Australasian College of Dermatologists [2016] FCA 179 Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 Category: Principal judgment Parties: David Page (Plaintiff) Healthscope Operations Pty Ltd (Defendant) Representation: Counsel: I Neil SC, with P Moorhouse (Plaintiff) M A Ashhurst SC, with S B Docker (Defendant) Solicitors: Haywards Solicitors (Plaintiff) Lander & Rogers Lawyers (Defendant) File Number(s): 2015/333261 Publication restriction: None Judgment 1. This matter turns upon the determination of whether or not a contract exists between a specialist anaesthetist and the private hospital in which the anaesthetist was and is accredited to practice. 2. The plaintiff is an anaesthetist who claims breach of contract by the defendant, which owns and operates Norwest Private Hospital, a hospital where the plaintiff worked on a regular basis. In broad, the plaintiff's claim is that he was bullied by two nurses at the hospital in 2013 and 2014 and, as a consequence of his complaint about the bullying to hospital management, he lost the opportunity to work on a particular surgery list conducted by another doctor. The plaintiff claims damages in excess of 2.5 million dollars. 3. The plaintiff's amended statement of claim was filed on 8 July 2016. It is disputed by the defendant, which denies either the existence of a contract of the nature pleaded by the plaintiff, or that he was bullied as he claims. 4. Separately from and prior to any further trial of the proceedings to hear and determine the plaintiff's claim for breach of contract and damages, the Court is asked to consider two separate questions, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Rule 28.2 provides: "The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." The Separate Questions 1. On 1 November 2016 the Court made orders for the decision of two questions separately, before any further trial in the proceedings: r 28.2 UCPR. The order was made at the request, and with the consent, of the parties, since it was agreed that determination of those questions would decide whether the plaintiff had a case to bring against the defendant or not. 2. The questions are those formulated by the parties. They are in the following terms: 1. Whether the plaintiff's re-accreditation by the defendant in April 2012 gave rise to a contract between the parties to the effect of the contract pleaded in paragraph 5 of the Amended Statement of Claim? 2. If the answer to (1) is yes, whether the contract included the express terms pleaded in each of sub-paragraphs 6(a) to (g) of the Amended Statement of Claim, or terms to the same effect? Factual Background 1. The plaintiff is a registered medical practitioner who specialises as an anaesthetist. 2. The defendant has owned and operated Norwest Private Hospital ("the Hospital") since September 2009; the plaintiff provided medical services as an anaesthetist at the Hospital for a number of years, having been previously accredited by the defendant to do so. A significant portion of the plaintiff's work at the Hospital was as anaesthetist to a particular surgeon operating at the hospital, Dr David Yee. It is not disputed that the selection of the anaesthetist with whom he would work in surgery was entirely a matter for Dr Yee, and not within the control or influence of the defendant. 3. The plaintiff was re-accredited to provide anaesthetic services at the Hospital from 31 December 2011 for 5 years. The plaintiff asserts that from at least January 2013 he was subjected to bullying behaviour by two members of the nursing staff while working at the Hospital on surgical lists conducted by Dr Yee. A verbal complaint about the conduct of the nursing staff went unaddressed, and the conduct continued. This prompted a written complaint made to Hospital management by the plaintiff. 4. The plaintiff asserts that, although an investigation commissioned by the Hospital confirmed his complaint in part, no steps were taken to prevent the bullying behaviour generally, or to remedy its effect on the plaintiff specifically. The alleged response from the defendant was to cause him to be prevented from working as an anaesthetist on Dr Yee's lists, with this lost opportunity said to give rise to the substantial damages the plaintiff contends for. 5. The defendant's purported failure to adequately respond to the plaintiff's complaints of bullying, he asserts, amounts to a breach of the Re-Accreditation Contract entered into on 31 December 2011. Agreed Facts 1. For the purposes of the Court answering the separate questions the parties agreed on the following facts: "1. The Plaintiff (Dr Page) is and at all material times has been a registered medical practitioner and specialist anaesthetist. 2. Since about 6 September 2009 the Defendant (Healthscope) has owned and operated the hospital known as Norwest Private Hospital at 11 Norbrik Drive, Bella Vista, New South Wales (the Hospital). 3. Between 6 September 2009 and 31 December 2011, Dr Page was accredited for clinical privileges in anaesthetics at the Hospital and provided anaesthetic services at the Hospital. 4. As at December 2011, Healthscope's policies that applied at the Hospital were published by Healthscope to health professionals (including Dr Page) who were accredited to provide medical, including anaesthetic, services at the Hospital, including by means of making them available online to those health professionals who had access to Healthscope's intranet (including Dr Page). 5. On or around 6 December 2011 Dr Page received an email from the Executive Assistant to the General Manager of the Hospital attaching the following documents: a. covering letter dated 6 December 2011; b. application for re-appointment of clinical privileges at the Hospital; and c. Healthscope Limited Hospital By-Laws adopted 28 June 2006. Document 1 is a copy of that email with each of the attached documents. 6. On or around 15 December 2011 Dr Page signed and returned to the Hospital the application for re-appointment of clinical privileges at the Hospital. Document 2 is a copy of that application as signed by Dr Page. 7. On about 10 April 2012 Dr Page received a letter from the General Manager of the Hospital, Deborah Fogarty, informing him that 'your application for re-appointment has been successful and permanent clinical privileges have been granted on a five year basis, this period being from 31st December 2011 until 31st December 2016'. Dr Page signed that letter on 18 April 2012 and returned it to the Hospital at around that time. Document 3 is a copy of that letter as signed by Dr Page. 8. Under the arrangements between Dr Page and the Hospital from 6 September 2009 to date: a. Healthscope has not paid, and is not required to pay, Dr Page for being accredited or for exercising his clinical privileges at the Hospital. Although Dr Page may have been paid for doing other work for the Hospital (eg. on the on-call anaesthetic roster), this would have been under a separate agreement; and b. Dr Page has not paid, and is not required to pay, Healthscope for being accredited or for being granted or exercising his clinical privileges. 9. Following his re-accreditation with effect from 31 December 2011, Dr Page has continued to work as a specialist anaesthetist at the Hospital on a regular basis, save for a period of about 4 months in May 2014 when he took a period of extended leave due to illness. 10. On or around 9 July 2012 Dr Page received an email from Ms Fogarty that attached: a. new Healthscope Limited By-Laws adopted 1 July 2012; and b. a document entitled 'Healthscope Limited Hospital By-Laws - Explanatory Notes'. Document 4 is a copy of that email with each of the attached documents. 11. Up until at least the end of 2014, Healthscope's policies that applied at the Hospital were published by Healthscope to health professionals (including Dr Page) who were accredited to provide medical, including anaesthetic, services at the Hospital, including by means of making them available online to those health professionals who had access to Healthscope's intranet (including Dr Page). 12. The following policies have applied at the Hospital since December 2011, being the versions of the policies referred to in paragraphs 5 and 6 of the Amended Statement of Claim in these proceedings that were applicable during the period from December 2011 up to the date of commencement of these proceedings (12 November 2015). a. Healthscope Group Code of Conduct revised August 2011 – Document 5 is a copy of that policy; b. Healthscope Group Code of Conduct dated 28 July 2014 - Document 6 is a copy of that policy; c. Policy entitled 'Bullying in the Workplace', January 2014 version – Document 7 is a copy of that policy; d. Policy entitled 'Equal Employment Opportunity: Harassment and Discrimination', November 2011 version - Document 8 is a copy of that policy; e. Policy entitled 'Whistleblowers', August 2010 version - Document 9 is a copy of that policy; and f. Policy entitled 'Whistleblowers', March 2015 version - Document 10 is a copy of that policy. In addition, there was an earlier version of the 'Bullying in the Workplace' policy that was operational at all times since December 2011 until the commencement of the policy referred to at sub-paragraph (c). 13. Document 11 is a copy of an email that Dr Page received from Ms Fogarty on 4 December 2014 that attached the policies entitled 'Bullying in the Workplace', January 2014 version (referred to at 11(b) above) and 'Equal Employment Opportunity: Harassment and Discrimination', November 2011 version (referred to at 11(c) above). As copies of those policies are already provided with this statement, further copies have not been included with Document 11. 14. Document 12 is a copy of the letter dated 28 November 2014 that is referred to in Ms Fogarty's email of 4 December 2014. That letter is the written complaint referred to in paragraph 16 of the Amended Statement of Claim. 15. Document 13 is a copy of a letter dated 17 December 2014 from Haywards Solicitors, acting for Dr Page, to Lander & Rogers Lawyers. Lander & Rogers Lawyers were the solicitors engaged by Healthscope to conduct the investigation referred to in paragraph 17 of the Amended Statement of Claim and paragraph 17 of the Defence. 16. Document 14 is a copy of the response from Lander & Rogers Lawyers to Haywards Solicitors dated 18 December 2014. Copies of the documents and policies referred to in point 4 of that letter have not been included within Document 14 (as the relevant documents and policies are already included with this statement), however those documents and policies included each of the following: a. Healthscope Limited By-Laws adopted 1 July 2012 (referred to at 9(a) above); b. Healthscope Group Code of Conduct dated 28 July 2014 (referred to at 11(b) above); c. policy entitled 'Bullying in the Workplace', January 2014 version (referred to at 11(c) above); and d. policy entitled 'Equal Employment Opportunity: Harassment and Discrimination', November 2011 version (referred to at 11(d) above). 17. Document 15 is a copy of an email that Dr Page sent on 29 April 2015 to Ms Julianne Murray, formerly the personal assistant to Ms Fogarty, and by then employed by Morton Wells Pty Limited t/as Anaesthesia Associates (ABN 63 075 490 498). 18. Document 16 is a copy of email that Dr Page received from Ms Fogarty on 18 May 2015. That email attached, inter alia, a copy of the policy entitled 'Whistleblowers', August 2010 version (referred to at 11(e) above), although a copy of that policy has not been included with Document 14 as it is already provided with this statement." Consideration Question 1: Whether the plaintiff's re-accreditation by the defendant in April 2012 gave rise to a contract between the parties to the effect of the contract pleaded in paragraph 5 of the Amended Statement of Claim? 1. The reaccreditation to the plaintiff was for a term of 5 years between 31 December 2011 and 31 December 2016. 2. The parties agree that, on or around 6 December 2011 the plaintiff received an email from the Executive Assistant to the General Manager of the Hospital concerning his reaccreditation to the Hospital. The email attached a covering letter, an application for re-appointment of clinical privileges at the Hospital, and a copy of the Healthscope Limited Hospital By-Laws adopted on 28 June 2006. In July 2012 new By-Laws replaced those that previously existed, and the 2012 By-Laws applied to the plaintiff's accreditation for all of the period of the alleged bullying. 3. The plaintiff signed the application for re-appointment and returned it to the Hospital on 15 December 2011. In April 2012 the General Manager of the Hospital advised the plaintiff that his application for re-appointment was successful and clinical privileges were granted for the 5 year period 2011 – 2016. 4. The grant of clinical privileges does not involve any payment from the Hospital to the plaintiff or from the plaintiff to the Hospital. 5. The question is whether the reaccreditation for the 2011 – 2016 period gave rise to a contract of the nature pleaded by the plaintiff in [5] of the Amended Statement of Claim. That paragraph of the pleadings and particulars is as follows: "5. On or about 18 April 2012, Dr Page and Healthscope entered into a contract for a fixed term from 31 December 2011 to 31 December 2016, under which Dr Page was re‑accredited for clinical privileges in anaesthetics at the Hospital and the parties agreed that in connection with Dr Page's anaesthetist services at the Hospital they would comply with the Healthscope By‑laws (the Re‑accreditation Contract). Particulars (a) The Re-accreditation Contract was partly express and partly implied. (b) The extent that it was express, the Contract was constituted by: (i) The letter from Deborah Fogarty, General Manager of the Hospital, to Dr Page dated 10 April 2012, signed by Dr Page on or about 18 April 2012. (ii) The Healthscope Limited Hospital By‑laws (the By‑Laws) as adopted from time to time. (iii) The Healthscope Group Code of Conduct as varied from time to time. (iv) The policies given effect by the By‑Laws including, relevantly, each one or more of those policies referred to in paragraph 6 below." 1. The plaintiff contends that all of the requirements for a valid contract, as pleaded, were present. 2. The parties are identified as the plaintiff and Healthscope; offer and acceptance is represented by the application for reaccreditation and its grant; whilst mutual consideration is said to exist in the plaintiff's agreement to abide by the By-Laws, and the concomitant obligations imposed on the defendant by their terms. This, it is said, gives rise to mutual accrued rights and benefits in a context where the parties clearly evinced an intention to create contractual arrangements, and be bound by contractual terms. 3. The defendant denies the existence of a contract, submitting that the arrangement between the parties was in the nature of a conditional licence granted by the defendant to allow the plaintiff to enter the Hospital on certain conditions, including compliance with the By-Laws. No obligation was created such that the Hospital was bound to allow the plaintiff to enter the Hospital and provide anaesthetic services. The Documents Said to Constitute the Contract 1. The plaintiff contends that his reaccreditation by the hospital was a contract, expressly constituted by the correspondence surrounding his accreditation, the By-Laws under which the defendant conducted its business, the Codes of Conduct of the defendant, and various policy documents referred to in the Codes. 2. The correspondence concerning reaccreditation was from the General Manager of Norwest Private Hospital dated 6 December 2011, and enclosing an application for re-appointment of clinical privileges, and a copy of the Healthscope By-Laws; the latter being a document produced by Healthscope Limited, rather than a document of the defendant. (The distinction is one without a difference in the plaintiff's argument, but significant in the submission of the defendant. I have proceeded on the basis that there is no practical difference.) 3. The "Accreditation Form – Schedule 6" is a form which a medical specialist must complete to be considered for accreditation (being either initial application or reaccreditation) with nominated hospitals, with a particular "scope of practice". The form allowed an applicant to seek accreditation, or merely "re-credentialling only". The form as completed by the plaintiff on 15 December 2011 sought accreditation in the "accreditation category" of anaesthesia at Norwest Private Hospital and one other private hospital operated by the defendant. Formally, his application was as follows: "I hereby apply for accreditation at the hospital(s) I have specified with the Scope of Practice (clinical privileges) I have also specified." (Ex 1.2) 1. By adding his initials to the form the plaintiff acknowledged receipt of a copy of "the Healthscope Limited Hospital By-Laws", and his agreement to "abide by the By-Laws". (Ex 1.2) 2. The plaintiff subsequently received correspondence from the General Manager indicating that his application for "re-accreditation to Norwest Private Hospital for clinical privileges in Anaesthetics" had been successful, with "permanent clinical privileges" granted to him for 5 years (Ex 1.3). 3. To indicate his acceptance of his reaccreditation the plaintiff was required to sign a duplicate of the letter to "confirm acceptance of my appointment on the conditions set out in the By-Laws". 4. The By-Laws in existence at the time of acceptance of the grant of clinical privileges (Ex 1.1) were subsequently replaced by Healthscope Limited, with effect from 1 July 2012. Since the parties agree there are no relevant or material differences between the two sets of By-Laws, I have referred to those in force at the time of the alleged breach of contract (Ex 1.4) throughout, unless otherwise stated. 5. The By-Laws are said to be for "use in relation to hospitals owned or operated by Healthscope Limited or a Healthscope Company" (Ex 1.4, pp 4). The defendant is a Healthscope company. 6. The Foreward to the 2012 By-Laws refers to "Clinical Governance", and notes that, "the Healthscope Limited Hospital By-Laws are the formal expression of the relationship between the accredited health professionals and the hospital," a relationship said to be based on "mutual recognition of, respect for and support for each other's clinical and commercial objectives" (Ex 1.4, pp 3). An explanatory note to the July 2012 edition of the By-Laws refers to the By-Laws as "the cornerstone of clinical governance in our hospitals". 7. Under a heading "What are these By-Laws", clause 3 states that the By-Laws are intended to assist in understanding some of the policies of the Board of Directors. They are stated to be intended to be used by "both Healthscope Company employees and also by Health Practitioners who are accredited with respect to a Healthscope Hospital" (cl 5). There is no issue that the plaintiff is a health practitioner accredited to practice as an anaesthetist in a Healthscope hospital. 8. The stated purposes of the By-Laws are various, but include (at Ex 1.4, pp 4): "9.3 define the relationship between a Healthscope Hospital and its Accredited Health Practitioners and serve to clarify the mutual prerogatives and obligations of those parties;" 1. The meaning of specific words and phrases are set out, including: "Accreditation means the authorisation of a Health Practitioner to treat patients at a Healthscope Hospital within the Health Practitioner's Scope of Practice in accordance with clause 52 of these By‑Laws. Accreditation Notification means the notification by a General Manager of a Healthscope Hospital to a Health Practitioner that the Health Practitioner is entitled to treat Patients at that hospital within the Scope of Practice specified in that notification in accordance with clause 51 of these By‑Laws. Accredited Health Practitioner means a Health Practitioner who has been authorised to treat patients at a Healthscope Hospital within the Health Practitioner's Scope of Practice as set out in clause 22 of these By‑Laws and whose Accreditation has not lapsed, been suspended or been terminated. Attending Health Practitioner means an Accredited Health Practitioner who provides treatment to a Patient, including but not limited to the Attending Health Practitioner who admitted the Patient. Credentialling means the formal process used to verify the qualifications, experience and professional standing of a Health Professional for the purpose of forming a view about his or her competence, performance and professional suitability to provide safe, high quality health care services in accordance with the needs and capability of a Healthscope Hospital. Credentialling includes both Initial Credentialling and Re‑Credentialling. Initial Credentialling means the review of all previous and relevant education, qualifications, experience, employment, and the review of existing registration under the Health Practitioner Regulation National Law and insurance status. It includes reference checking, with the intention of forming a view on the competence, performance and professional suitability of a Health Practitioner for Accreditation. Re-credentialling means the process of reviewing an application to renew an existing Accreditation of an Accredited Health Practitioner. Re‑credentialling occurs annually. It includes examination and verification of any relevant changes to the status of an Accredited Health Practitioner since the date of any previous declarations to the Healthscope company that owns or operates the Healthscope Hospital where the Health Practitioner is accredited. The intention of Re‑credentialling is to form a view as to the continuing competence, performance and professional suitability of a Health Practitioner for Accreditation." (Ex 1.4, pp 5-7) 1. At clause 13 it is noted that the By-Laws do not communicate every policy of Healthscope Limited, or prevent the Board from taking decisions that would affect the By-Laws. 2. The accreditation of health practitioners occupies clauses 22 – 69; the ending of accreditation clauses 70 – 95; and conditions of accreditation clauses 114 – 125. 3. It is apparent from clause 22 that the practical purpose and effect of accreditation is for an individual health practitioner to be permitted to use the hospital's facilities to treat his or her own patients. Clause 24 provides that a Health Practitioner can use those facilities only with the "continuing authority" of the General Manager of the particular hospital. Accreditation does not give "any right or entitlement to or guarantee of" access to beds at the hospital [for patients], any particular allocation of time in which to operate on patients, or patients to treat (cl 27). 4. Compliance with the By-Laws appears to be a pre-condition to accreditation, since acknowledgement of a willingness to comply is required of applicants: "Every applicant for Accreditation must acknowledge in writing that he or she will comply with and be bound by these By‑Laws." 1. Of the general conditions of accreditation, cl 117 provides: "An Accredited Health Practitioner must comply with: 117.1 these By‑Laws; 117.2 all applicable laws concerning the provision of health care services to patients at private hospitals; 117.3 the policies, rules and procedures of Healthscope Limited; 117.4 the policies, rules and procedures of the Healthscope Hospital(s) in respect of which he or she is accredited; and 117.5 accepted professional and ethical standards and relevant codes of conduct." 1. There is no clause imposing the same obligations on the defendant. 2. The policies, rules and procedures of Healthscope Limited (cl 117.3) are said by the plaintiff to refer to and incorporate a number of policies published by Healthscope Limited from time to time and applicable to the defendant. 3. The Code of Conduct issued in August 2011 (Ex 1.5) and re-issued in June 2014 (Ex 1.6) is one such document. The August 2011 version is prefaced by the "Managing Director's Message" which states: "Our Code outlines how Healthscope expects its employees to behave and conduct business. The term 'employees' also extends to the behaviour of management and to the Board of Directors." (Ex 1.5, pp 3) 1. The language used is of expectation: "how Healthscope expects". 2. The Overview states in part, "Our Code helps you understand how Healthscope expects you – as a Healthscope person – to behave at work […]". It is specifically said not to be a set of "absolute rules", but rather guidelines for the "Healthscope person" to follow. Compliance is mandatory as "part of your employment agreement" (Ex 1.5, pp 4). 3. The Code of Conduct refers to and incorporates a series of specifically named policies, such as the Healthscope Corporate Policy 4.05 Disciplinary Procedures Policy, the Healthscope Corporate Policy .05 Whistleblowers Policy, the Healthscope Corporate Policy 4.23 Equal Employment Opportunity: Harassment and Discrimination, and the Healthscope Corporate Policy 6.16 Bullying in the Workplace. 4. The June 2014 version of the Code of Conduct is a little different, although the language of the Foreword is similarly that of expectation. 5. The Managing Director's Message refers to the conduct of "our directors, managers and employees" as being crucial to the company. It continues: "Our Code outlines how Healthscope expects all people – employed, contracted by, associated with, or acting on behalf of Healthscope – to behave and to conduct business. The term 'employees' also extends to the behaviour of management and to the Board of Directors." (Ex 1.6, pp 3) 1. The 2014 Code similarly referred to and incorporated specific policies, in the same terms as the earlier Code. 2. The section of both Codes entitled "Harassment or Bullying" is in identical terms, as follows: "You have the right to do your work without being harassed or bullied. At the same time, you and your colleagues need to maintain acceptable standards of behaviour both at work and off duty, including at third party functions. You must never take part in: - sexual or other forms of harassment that might humiliate, offend or intimidate another person; or - workplace bullying. We treat these types of misconduct very seriously. Any proven claims of this behaviour may lead to disciplinary action up to and including ending your employment." (Ex 1.5, pp 7; Ex 1.6, pp 7) 1. The individual policies referred to in the Code (being both the Code of August 2011 and of June 2014) form part of Ex. 1 (Ex 1.7, 1.8, 1.9 and 1.10) and Ex. P1. Their content is voluminous and it is not intended to set them out here. It is clear that the status of the various policies derives from the Code of Conduct. Did the Reaccreditation Agreement amount to a Contract? 1. A contract is a promise or a set of promises, the performance of which the law recognizes as an obligation, and the breach of which gives rise to a remedy. The main criterion in determining whether a contract exists is the presence of real consideration, although other factors are also important, including the requirements of certainty and completeness of agreement. Offer and acceptance can be useful, but the existence or, conversely, absence of each is not ultimately conclusive: Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 80–81. 2. The plaintiff asserts that the existence of rights and obligations and their mutuality in the agreement is essential in establishing consideration (T12:23). Those rights and obligations are outlined in the Healthscope Limited Hospital By-Laws. It is submitted that these By-Laws imposed substantial obligations on the plaintiff as a 'health professional' (2006 By-Laws) or 'health practitioner' (2012 By-Laws): "(i) under clauses 48 and 49, to notify the General Manager of the Hospital of an intention to cease treating patients, and to ensure that upon cessation any remaining patients are discharged or referred to the care of an equivalent Health Professional; (ii) under clause 63, to comply with the General Conditions set out in the By-Laws, and any Special Conditions; (iii) under clause 64, to comply with all applicable laws and with Healthscope's and the Hospital's policies, rules and procedures; (iv) under clause 65, to maintain professional malpractice insurance; (v) under clauses 71, 72, certain continuous disclosure obligations; (vi) under clauses 79, to maintain full and accurate records for all patients treated, in the form determined by the Hospital, and as further specified in clauses 81 to 91; (vii) under clauses 80 and 83, to obtain consent for treatments and to maintain a record including pre-anaesthetic evaluation and post-anaesthetic follow-up; and (viii) under clauses 96 to 101, to maintain confidentiality in relation to business information concerning Healthscope and the Hospital, and patient information." 1. Critically, the plaintiff submits, there are also substantial obligations imposed upon the defendant: "(i) under clauses 11 and 18, to create and maintain a Medical Advisory Committee, and to indemnify its members and the members of any sub-committee; (ii) under clauses 29 to 35, to create a Credentials Committee to consider applications for accreditation by reference to criteria set out in the By-Laws (in smaller hospitals the Medical Advisory Committee may act as the Credentials Committee); (iii) under clauses 36 to 37, to take into account any recommendation of the Credential Committee in making accreditation decisions, and to notify an applicant of the accreditation decision; (iv) under clauses 44 to 47, 56 and 60, to comply with an appeals process in relation to accreditation decisions or suspensions of accreditation, including potentially convening an Appeals Committee; and (v) under clauses 96 to 101, to maintain confidentiality in relation to business information concerning Healthscope and the Hospital, patient information, and information supplied by the Health Professional to Healthscope." 1. In light of this, it is contended that each party accrued rights and benefits by means of the obligations undertaken by the other party, thus satisfying the test for the existence of contractual consideration: Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 at 269; (1966) 66 IR 258; 130 FLR 313. 2. The defendant states that the agreement is absent consideration and as such, it cannot constitute a valid contract. No money changed hands between the plaintiff and the defendant, in the traditional sense of consideration; in non-employment cases such as the present, the necessary consideration had been satisfied by a licence fee payable: Sklavos v Australasian College of Dermatologists [2016] FCA 179. Is there Consideration and Intent to Enter a Contract? 1. As the plaintiff submitted, the parties to the agreement can be readily identified, and the language of the accreditation process is consistent with offer and acceptance. To that extent, there is some consistency with what might be expected in a contractual relationship. The existence of real consideration, and evidence of clear intent by both parties to the agreement to enter into a contract, however, is less straightforward. 2. The plaintiff submits that mutual consideration is to be found in the plaintiff's promise to abide by the By-Laws, and in the obligations the By-Laws imposed upon the defendant, as noted in [50] and [51] above. The defendant contends that no consideration moved from Dr Page. 3. It is clear that the relationship between the plaintiff and defendant was not a commercial one, in the sense that no money changed hands between them. When the plaintiff applied for accreditation, or reaccreditation, he paid no fee and did not incur any obligation to do so. When his application for reaccreditation was granted, the grant came with no direct financial reward to either the plaintiff or defendant. 4. In effect, the plaintiff made a promise to abide by requirements as to conduct in exchange for the prospect of being able to enter the Hospital and use its facilities to treat his patients, although always subject to the on-going permission of the General Manager. The question is whether a promise of that nature is in fact real consideration, in circumstances where the promise given by the plaintiff did no more than secure from the defendant the possibility that he could enter and use the Hospital. 5. In Beaton v McDivitt (1987) 13 NSWLR 162 at 168, Kirby P said: "By our law, consideration is an essential requirement for an enforceable contract. Without consideration, a promise is unenforceable at law. The modern theory of consideration has arisen from the notion that a contract is a bargain struck between the parties by an exchange. By that modern theory, consideration must be satisfied in the form of a price in return for the promisor's promise or a quid pro quo. The price can be in the form of an act, forbearance or promise. In Pollock on Contracts, 13th ed, (1950) at 133 Sir Frederick Pollock, in words adopted by Lord Dunedin in Dunlop PneumaticUTyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 at 855, expressed the idea of consideration as the "price in return" in the following way: "An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable."" 1. The plaintiff gave his promise to abide by the By-Laws as the necessary pre-condition to being granted accreditation. By the grant of accreditation, the defendant did no more than allow that the plaintiff could enter the Hospital and use its facilities, if the General Manager permitted such entry and use. I am unable to accept that this was an exchange of mutual consideration, the quid pro quo that the authorities speak of as the giving of one valuable thing for another: Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 456 – 457. 2. The defendant referred the Court to Le Mans Grand Prix Circuits v Iliadis [1998] 4 VR 661. In this case, proceedings were instituted when the plaintiff was injured at the respondent's go-kart track while attending a radio station promotion. The Victorian Court of Appeal had to determine whether a document executed by the plaintiff which, in its terms exempted the respondent from all legal liability, constituted a contract between the parties. The Court held that there was no contract as "the respondent's attendance at the appellant's track, and his participation in the go-kart racing, were not obviously in pursuance or in the course of a commercial dealing or relationship with the appellant" (at 667). 3. The plaintiff referred the Court to the decision of Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356, a case which was said to be factually similar to the present, in that McKechnie J was asked to determine whether there was a contract between a "credentialled" doctor and the private hospital in which the doctor practiced. His Honour found that there was an agreement between the parties, although without giving reasons for his conclusion. He did not, however, conclude that the agreement was as the plaintiff contended for, adopting an analogy more consistent with a licence agreement than with a contract: "Credentialling is the ticket that provides entry to the showground. It does not carry the right to ride any particular attraction. That right must be the subject of a separate agreement" (p 16 at [43]). 1. That decision may be illustrative, but it is not binding on this Court. I did not find it particularly helpful given the absence of any more fulsome account of the basis for the conclusion of the Court than that found at [40] of the judgment. 2. The analogy given in Pisano v Health Solutions (WA) Pty Ltd applies here to the extent that it illustrates a licence agreement: the plaintiff's agreement to abide by the By-Laws was no more than a promise he made to gain conditional access to the showground. The defendant gave no promise or guarantee of anything of value in return for the plaintiff's promise. Indeed, whether the plaintiff could in fact access the showground was still dependent upon the General Manager giving authority for that to occur, authority which was not bought by the tender of any real consideration by the plaintiff. There was no obvious commercial relationship between the plaintiff and defendant. 3. Accreditation gave the plaintiff no rights or entitlements. He had no right to practice within the Hospital; he was not guaranteed any work within the Hospital, or that there would be patients for him to treat; he was not guaranteed the allocation of any particular level of access to theatre time. It was entirely open to the defendant to accredit the plaintiff, but then withhold the General Manager's authority for him to enter and practice within the Hospital. 4. The plaintiff's promise to abide by rules of conduct, the By-Laws, was not given in exchange for any promise of value from the defendant. In short, I am unable to conclude that there was consideration. 5. In the absence of real consideration, there cannot be a contract. 6. That conclusion is supported to a degree by the "aspirational" language of the By-Laws and, more particularly, the Codes of Conduct and policies, and in having regard to the identity of the persons to whom the By-Laws and Codes applied. These features do not point to a conclusion that there was clear intent by the parties to enter a contractual agreement. 7. The character and nature of the documents upon which the plaintiff relies to establish the existence of a contract, notably, the Codes of Conduct and associated policies, do not in my view support the existence of a contract between the plaintiff and defendant. The documents manifestly apply to employees, inclusive of managers and members of the Board of Directors. They do not apply to accredited health professionals present in a Healthscope hospital pursuant to accreditation. 8. In considering whether a contract exists it is important to have regard to the context in which the agreement between the parties was made, and the circumstances surrounding its making. 9. Here, the plaintiff is a doctor providing specialist services to patients in the premises, and utilising the facilities of, the defendant, the operator of a private hospital. The plaintiff exercises his profession and conducts his professional practice entirely independently of the defendant. Whatever the relationship may be between the plaintiff and defendant, it is not one of employee and employer. 10. That is significant because of the character and nature of many of the documents upon which the plaintiff relies to establish the existence of a contract, notably, the Codes of Conduct and associated policies. Those documents apply to employees, including managers and members of the Board of Directors. They do not apply to accredited health professionals present in a Healthscope hospital pursuant to accreditation. 11. This is apparent from the language of the documents overall. A few extracts suffice to demonstrate the point. 12. From the Code of Conduct the statement of "Code Overview and Values" which notes: "You must comply with the Code and the documents that underpin it – this is part of your employment agreement with Healthscope." (Ex 1.5, pp 4) 1. Further, from the section of the Code headed "Your Workplace", and with reference to the Equal Employment Policy: "We treat these types of misconduct [being harassment or bullying] very seriously. Any proven claims of this behaviour may lead to disciplinary action up to and including ending your employment." (Ex 1.5, pp 7) 1. The plaintiff had no employment agreement with Healthscope or the defendant, and he was not an employee of either. He was not obliged to comply with the Code or associated policies as a condition of his employment, and he had no employment that could be ended as a consequence of failure to comply with the Code or a policy. These documents could not apply contractually to the plaintiff, or someone in the position of an accredited health practitioner, in the same way as they were clearly intended to apply to employees. If they were intended to operate contractually beyond the scope of employment, it is reasonable to expect that clear language expressing that intent would have been used. Beyond the scope of employment, the Codes and policies are aspirational; compliance is expected, but not contractually enforceable. 2. The policies use similar language, against the context of employment. An extract from the Bullying policy (Ex 1.5; Ex P1) is a sufficient example. Under the heading "Purpose" is the following: "Bullying in the workplace is inappropriate and unacceptable behaviour and can amount to unlawful discrimination in some cases and creates a risk to health and safety in the workplace. Staff found to have either committed or condoned such behaviour in the workplace will be subject to disciplinary action, which may include termination of employment." 1. The plaintiff, who was not a member of staff, had no employment to terminate. 2. Manifestly, in relation to persons other than employees of Healthscope, the policies are statements of best practice rather than contractual terms. They do not give rise to contractual obligations and could not be seen as an expression of contractual intent as between the plaintiff and defendant. Conclusion 1. Having considered the evidence, I have concluded that the reaccreditation agreement was an agreement in the nature of a conditional license granted by the defendant to the plaintiff, such that the plaintiff was accredited to enter the Hospital and provide therein medical services within his area of expertise, subject to a separate authority from the General Manager so to do. The accreditation did not give rise to a contract, and did not contractually oblige the defendant to enforce the Code of Conduct and associated policies for the plaintiff's benefit. 2. It did not give rise to a contract between the parties to the effect of the contract pleaded in paragraph 5 of the Amended Statement of Claim. 3. Accordingly, Question 1 must be answered No. Question 2: If the answer to (1) is yes, whether the contract included the express terms pleaded in each of sub-paragraphs 6(a) to (g) of the Amended Statement of Claim, or terms to the same effect? 1. This question as posed by the parties only requires an answer if the answer to Question 1 is yes. Having answered Question 1 in the negative, this second question falls away and need not be answered. orders 1. Question 1: The answer to Question 1 is No. 2. Question 2: The answer to Question 1 being in the negative, Question 2 requires no answer. 3. The Amended Statement of Claim filed on 8 July 2016 is dismissed. 4. Costs in favour of the defendant. ********** 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. Decision last updated: 16 November 2016