Nicholl Holdings Pty Ltd v Maharaj
[2008] QSC 99
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- Unreported Judgment
- Nicholl Holdings Pty Ltd v Maharaj[2008] QSC 99
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Nicholl Holdings Pty Ltd v Maharaj[2008] QSC 99
Nicholl Holdings Pty Ltd v Maharaj[2008] QSC 99
SUPREME COURT OF QUEENSLAND
PARTIES: | NICHOLL HOLDINGS PTY LTD t/a THE DOCTORS AIRLIE BEACH ACN 063 703 748 SAROJ SHANTA MAHARAJ |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 28 May 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7, 8 and 9 April in Mackay |
JUDGE: | McMeekin J |
ORDERS: | 1. There will be judgment for the plaintiff in the sum of $209.00 |
CATCHWORDS | TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – RESTRAINTS OF TRADE – VALIDITY AND REASONABLENESS – PARTICULAR CASES – EMPLOYMENT – where the defendant contractor was an overseas trained doctor – where the plaintiff employer was subject to government policy in employing overseas trained doctors – whether a signed agreement to restrain the defendant from leaving the plaintiff’s practice and remain in the local area was reasonable – construction of written agreement Medical Practitioners Act 2001(Qld), s 135. Health Insurance Act 1973 (Cth), s 19AB. Amoco Australia Pty Ltd v Rocca Bros Motor engineering Co Pty Ltd (1973) 133 CLR 288 followed Norco Co-Operative Ltd v Parmalat Australia Ltd & Ors [2006] QSC 038 applied Narich Pty Ltd v Commissioner of Payroll Tax (1984) 58 ALJR 30 followed State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 followed |
COUNSEL: | A Moon for the plaintiff K Garner for the defendant |
SOLICITORS: | Robert Nehmer McKee Solicitors for the plaintiff Nicol Robinson Halletts for the defendant |
[1] McMEEKIN J: In this action the plaintiff, Nicholl Holdings Pty Ltd, seeks an injunction and damages against the defendant, Saroj Maharaj, alleging a breach of contractual rights.
Background
[2] The plaintiff conducts medical centres. The defendant is a medical practitioner. She was employed by the plaintiff in its Airlie Beach centre pursuant to a contract that she signed on 6 July 2005.[1] She left that employment on 5 September 2007, the second anniversary of her commencing with the plaintiff. She then commenced working for another practice in the area.
[3] Our society does not have enough medical practitioners to service the needs of the community. This problem is particularly acute in provincial areas and creates difficulty for the plaintiff in obtaining practitioners to staff its medical centres. The solution that the plaintiff adopted was to employ practitioners who trained overseas who, apparently, are more willing to work in these areas.
[4] The defendant obtained her medical qualifications in Fiji. In the parlance of the written agreements in this case and the legislation governing her rights of practise, the defendant is an “overseas trained doctor”. Her right to practise in this country is restricted. She holds a special purpose registration pursuant to s 135 of the Medical Practitioners Act 2001(Qld) which entitles her to practise here in Queensland in “areas of need”. Such areas are presently defined as Rural Remote Metropolitan Areas - classifications 4-7. Airlie Beach is one such location.
[5] An economic reality is that a general practitioner cannot successfully practise without a Medicare Provider number. That enables their patients to access Medicare benefits to defray the costs of their services. The defendant is not entitled as of right to such a number. To obtain such a number the defendant must first obtain an exemption from the provisions of s 19AB of the Health Insurance Act 1973 (Cth) from the relevant Minister. The defendant has the exemption and is entitled to such a number.
[6] Government policies presently in place restrict the number of overseas trained doctors who can hold a Medicare Provider Number and practise at Airlie Beach. Those policies are reflected in the letter from the Department of Health and Ageing which is Exhibit 4. Effectively, unless and until the Airlie Beach area is designated a district of “Workforce Shortage”, no additional exemptions will be granted to permit an overseas trained doctor to access a Medicare Provider Number whilst practising in that area.
[7] The original agreement between the parties is a written document detailing the rights and obligations of each party. It contained no restraint clause. It placed on the plaintiff significant obligations which included but were not restricted to providing “all necessary plant, equipment, apparatus, instruments, fittings, furniture and furnishings as in the opinion of the Company [were] reasonably necessary for the care of its patients”[2] and to keep and write up accounts[3]. The defendant had worked pursuant to the terms of the original agreement for several months prior to 6 March 2006.
[8] One of the practitioners employed by the plaintiff, Dr El-Baky, left the Airlie Beach practise in January 2006. He did not leave the Airlie Beach area but set up at Cannonvale, a nearby settlement. That created difficulties for the plaintiff in finding a replacement. It could not obtain an exemption from the Minister’s delegate and so could not employ another overseas trained doctor.[4]
[9] In order to avoid such difficulties in the future, on the 6th March 2006, the plaintiff had the defendant execute a further agreement entitled “Important Agreement”[5]. The dispute principally centres on that agreement.
[10] The purpose of that agreement was to introduce into the commercial arrangements between the parties a restraint on the defendant’s ability to leave the plaintiff’s practise and still remain in the area the subject of the Minister’s embargo on new exemptions.
[11] The geographical area so affected was never precisely proved. It is described as the “Statistical Local Area” and extends over roughly the Whitsunday Shire as it once was – but not precisely.[6]
Issues
[12] The questions for resolution are:
(a) Did the Plaintiff provide consideration for the “Important Agreement” so as to be binding on the defendant?
(b) If it is so binding:
(i) are the terms of that agreement sufficiently certain so as to be enforceable?
(ii) is that agreement void as being unlawfully in restraint of trade?
(c) If it is not so binding then is the defendant in breach of the original agreement of 6 July 2005 by reason of her failure to give three month’s written notice of termination?
(d) If the defendant is in breach of either agreement what remedies is the plaintiff entitled to?
The Signing of the Important Agreement
[13] On 6 March 2006 the plaintiff by its practice manager, Ms Sharon Abel, presented the defendant with the “Important Agreement”. The defendant read it throughout her working day, in between patients. She signed it at the end of the day. She was induced to do so by a false representation that all doctors in the practise had agreed to sign it.[7]
[14] Two things, at least, emerge from this. Firstly, the plaintiff had no interest in proceeding in what might be thought a normal commercial manner to secure the defendant’s agreement to so important a document. Ms Abel was sent to the practice on a particular day with the express purpose of securing signatures. It was not part of the plan that doctors be given the luxury of contemplating in their own time the significance of what they were being asked to do.
[15] Secondly, the false representation gives some insight into the minds and motivations of those standing behind the plaintiff. It was sufficiently important to them to obtain the defendant’s signature that they were content to mislead her. As well the lie demonstrates that those standing behind the plaintiff had no desire to pay the defendant anything for her promise. It appears that the doctor who had declined to sign the agreement held out for an increase in the percentage he was paid[8] – as well he might for so significant a promise. The plaintiff evidently had no wish to let the defendant know of this.
The Consideration for the Important Agreement
[16] The defendant contends that no consideration was provided by the plaintiff for the “Important Agreement”. It is common ground that no money changed hands.
[17] The plaintiff contends that consideration passed in several ways. First it points to the contractual terms which detail the alleged consideration. Secondly, it relies on conversations it claims occurred in which promises were made to the defendant to induce her to sign the important agreement.
[18] The reliance on the contractual terms does not advance the plaintiff’s case very far – the so called promises, if indeed there is any enforceable obligation contained in any of the items[9], were no more nor less than a repetition of some of the plaintiff’s obligations under the original agreement[10]. A promise to perform an existing duty is, without more, no consideration: Wigan v Edwards (1973) 1 ALR 497 at 512 per Mason J.
[19] Mr Moon, who appeared for the plaintiff, placed greater reliance on oral promises said to have been made to the defendant by Dr Nicholls, and the practice manager Ms Abel. The defendant denied that any promises were made to her.
[20] The promises were said to have been made on two occasions – once by Dr Nicholls on 25 February 2006 and once by Ms Abel in her conversations with the defendant on 6 March, the day of signing of the agreement.
[21] Dr Nicholls said that there were five things he discussed that formed his offer to the defendant – he “effectively guaranteed to employ the doctor well and beyond their existing contract”; all doctors were receiving the same offer and he “believed” that if anyone doctor signed that was likely to encourage others to sign; that if all signed, Dr Nicholls would do everything in his power to “try and get permission” to employ a fourth overseas trained doctor; the plaintiff was happy to finally go ahead with some renovations that had previously been brought up; and that the plaintiff was happy to upgrade the software program used by both the medical practitioners and the clerical staff.[11]
[22] Ms Abel’s claimed conversations did not go beyond that.[12]
[23] It is doubtful that these so-called promises would amount to any benefit to the defendant – she denied there was any benefit to her in any of these things and I believe her. They were all matters that were of considerable benefit to Dr Nicholls and his business. Indeed the renovations had been planned long before and shelved until the plaintiff had more money. The software program was one that Dr Nicholls wanted to introduce through his various centres. The doctors in Cairns refused to change over to the new software despite having the busiest practice – which gives some indication of the view one should take as to the alleged benefit to the defendant. In any case the plaintiff was under the obligation I referred to earlier to provide and maintain facilities, plant and equipment and keep accounts.
[24] More fundamentally however, I accept the defendant’s denial that there were any such conversations. I do so for several reasons. Firstly, she gave her evidence in a very convincing manner. She was a quiet woman, softly spoken, but gave every impression of having given calm and careful deliberation to her evidence. That may be contrasted with Ms Abel. She was most unimpressive in her evidence. She spoke in a tremulous voice through out and seemed most uncertain at times.[13]
[25] Secondly, the plaintiff has the difficulty that the alleged promises that are at the heart of their case and supposedly of benefit to the defendant, and instrumental in winning her consent to this change in arrangements, nowhere appear in the “Important Agreement”. That agreement expressly purports to set out in the section entitled “Valuable Consideration” the benefit to the defendant. Dr Nicholls was plainly alive to the law’s requirements when he drew up the agreement. No explanation for this extraordinary oversight was given.
[26] Thirdly, the plaintiff’s side did not attest to the sort of conversation one might expect would have occurred when the defendant was presented with the agreement – surely the defendant would have said: “Where are the promises you made?”
[27] Fourthly, the absence from the agreement of the alleged promises hardly sits well with Dr Nicholls’ sworn testimony that he left Airlie Beach “on the understanding that I would prepare a document that was faithful to the discussions I’d had with the defendant”.[14] Either he had the discussions and deliberately made sure that the document did not reflect the promises he claims to have made – in which case he should be kept to his written bargain[15] - or there were no such discussions.
[28] Fifthly, the minutes of a staff meeting[16] held on the evening of the day that Dr Nicholls says he spoke to the defendant, and with all other medical practitioners, makes no reference to these promises made to secure the agreement of the doctors. What discussion there was as to renovations seems to have been very general.[17]
[29] Finally, there is the matter I have already touched on - the plaintiff’s witnesses were prepared to lie to the defendant to secure her signature and prepared to lie to conceal from her the important fact that they might be prepared to pay for her agreement. Those who are prepared to lie in a commercial setting in order to secure an advantage can hardly be heard to complain when a court later takes a jaundiced view of their credit on disputed issues of fact. Where there are credit issues between the defendant and the plaintiff’s witnesses I favour the defendant.
[30] I am quite satisfied that the plaintiff wished to win the defendant’s signature to the agreement without committing the plaintiff to any enforceable promise that might impose on it any additional obligation towards the defendant.
[31] There was no consideration for the bargain.
[32] The restraint clause was therefore unenforceable against the defendant.
Validity of Restraint
[33] In case I am later found to be wrong in that finding I will briefly address the issues argued as to the validity of the restraint.
[34] The effect of the restraint clause was to prevent the defendant engaging in any capacity in a business of providing services as a general practitioner in competition with the plaintiff for a period of 12 months after finishing with the plaintiff “within any given area which adversely affects [the plaintiff’s] capacity to replace the overseas trained doctor or the Whitsunday Shire whichever is the lessor (sic) of the two”.[18]
[35] It was not disputed that by practising at Cannonvale within a week or so of leaving the plaintiff the defendant adversely affected the plaintiff’s capacity to employ another overseas trained doctor.
[36] Ms Garner, who appeared for the defendant, submitted that the clause was too vague or uncertain to be enforceable, that it was unreasonably wide, and further that it sought to protect an interest that it was not legitimate to protect.
[37] It is plain that such a clause, if not sufficiently certain in meaning, is unenforceable: Davies v Davies (1887) 36 Ch D 359. The uncertainty was said to be in the area of the restraint. There was no precise definition of the area save that cl 2.13.1.4 provided that “Up to date information about the Statistical Local Area that the [plaintiff’s business] is in, can be obtained from the Department of Health and Aged Care. However for the purposes of this agreement, any part of the Whitsunday Shire – including but not limited to Airlie Beach, Cannonvale, and Proserpine – is assumed to be in area (sic) that may jeopardise [the plaintiff’s] ability to replace the overseas trained doctor once they have left”.
[38] The plaintiff claimed that the legitimate business interest it sought to protect was its ability to recruit overseas trained doctors. The difficulty was that that ability depended on government policy which was quite capable of changing and had changed in the few years prior to the agreement. Hence the lack of definition in the area save that it could be no wider than the Whitsunday Shire itself.
[39] In my view it is unsatisfactory that the area of restraint be unknown to the restrained party or only capable of being found out if the current government policy be discoverable. The actual geographical limits of the Statistical Local Area, which seems to be the current device used by government to define where overseas trained doctors will be allowed to practice, were not identified in the action presumably because they cannot be.
[40] Further it is by no means clear what meaning one should give to “adversely affects”. Is it necessary or sufficient that the defendant’s actions made it a little more difficult, a lot more difficult, or impossible?
[41] Further the clause is not by its terms limited to an area affected by government policy. It is conceivable that the plaintiff’s capacity to replace the defendant could be affected by other factors – the personal animus of an incoming practitioner for example.
[42] Mr Moon sought to support the clause by submitting that at its widest it extended no wider than the Whitsunday Shire. I am not sure that solves the uncertainty point at all. Whilst the courts are slow to find uncertainty of meaning in a commercial document the clause in question here is one restricting a right to employ economic capacity – a right the law is jealous to protect. In my view there is much to be said for the argument that the clause lacks sufficient certainty.
[43] Such a clause is prima facie void and unenforceable. The plaintiff bore the onus of establishing that the restriction was no more than reasonable having regard to the interests of the parties in all the circumstances of the case.[19]
[44] It is evident is that the Whitsunday Shire extends well beyond the boundary of the catchment area of the practice ie patients are not drawn from all four corners of the Shire to Airlie Beach. The plaintiff’s practice comprised 75% itinerant patients – principally backpackers. Proserpine for example is a discrete population centre with its own medical practices but within the Shire. The clause cannot be justified if the interest sought to be protected was its patient base.
[45] A significant difficulty for the plaintiff is that the evidence supporting the reasonableness of the 12 month period was scant. At its highest, a reasonable period would be one needed to find a new overseas trained doctor. Dr Nicholls made plain that he had a number of such doctors, keen to work in the area, and that it should take only 3 to 4 months to complete the necessary paper work.[20] Reliance was placed on the 18 month period that it was said it took to replace Dr El- Baky. But that was plainly well outside the usual time. Indeed Dr Nicholls claimed that the 6 months it took to locate and place the defendant was out of the ordinary.[21]
[46] Other relevant factors include that the plaintiff could and did employ Australian trained doctors in their practice and could employ overseas trained doctors of more than 10 years standing. Neither category required an exemption under s 19AB.[22] As against the plaintiff’s interest in having the longest possible period must be balanced the defendant’s interests – they included a need to pay a mortgage, an inability to drive long distances because of encroaching cataracts, and a wish to keep living in her home in the locality.
[47] In my opinion the period allowed was too long.
[48] Finally Ms Garner submitted that there is real doubt about the interest sought to be protected. Ms Garner suggested that it could be characterised as protecting oneself against the difficulty of replacing an employee in a tight labour market. The scope of the rights that can be legitimately protected are in the nature of proprietary interests – trade secrets, confidential information and goodwill.[23] In my view there is a sufficient proprietary interest here - it is the interest that the plaintiff had in maintaining a sufficient number of doctors in its practice to keep it viable. That plainly reflects on its goodwill. There was some evidence about that – it was suggested that 3 was the minimum number.
Was Written Notice of Termination Required?
[49] It is common ground that the defendant gave no written notice of her intention to leave the practice. The question is whether she was under any obligation to do so.
[50] The relevant clause is cl 4.1 of the original agreement[24] which reads:
“This Agreement commences on the Commencement Date and continues for a period of 2 years, and after that until determined by either party giving to the other 3 months written notice of their intention to terminate this agreement”.
[51] The parties are agreed that the “Commencement Date” is 5 September 2005.
[52] The defendant contends that the agreement terminated on the second anniversary of that date. It was only if either party elected to continue after that date that the notice requirement was in force. The plaintiff contends that it was necessary for the defendant to give written notice of her intention to terminate. On the plaintiff’s construction not only did the contract continue for at least two years but it did not then end unless the requisite notice had been given.
[53] The dispute therefore turns on the proper construction of the agreement. The relevant principles which should be applied in construing written agreements were explained by Chesterman J in Norco Co-Operative Ltd v Parmalat Australia Ltd & Ors [2006] QSC 038 at [11]:
“1. The court must first look at the words of the document which constitutes the contract between the parties. The whole of the document must be considered and a construction should be attempted which will make all clauses operate harmoniously. If the words are plain and unambiguous the court must give effect to them even though the result may appear one sided or even unreasonable. See Australian Broadcasting Commission v Australasian Performing RightAssociation Ltd (1973) 129 CLR 99 at 109.
2. If the language of the contract is ambiguous, or open to two constructions, or if the plain meaning of the clause renders it inconsistent with another, the court should resolve the ambiguity, or reconcile the inconsistency, by adopting a construction which accords with ‘business common sense’ or the commercial purpose of the agreement which appears from its terms and the knowledge, common to the parties, which formed the background to the formation of their agreement. See Australian Broadcasting Commission; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at313-4 per Kirby P.
3. If the words of a contract, while plain and unambiguous, lead to a result which is not only unreasonable but absurd, the court should construe the contract, if necessary by supplying, omitting, or correcting words to avoid the absurdity: Watson v Phipps (1985) 60 ALJR 1 at 3;7 Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25paras [19] and [20]. Before this rule is put into operation it must, I think, be unmistakably clear that the parties cannot have meant what they said was their bargain.”
[54] Ms Garner, who appeared for the defendant, submitted that the natural meaning of the words, and importantly the placing of the comma after the reference to “2 Years”, supported the defendant’s construction.
[55] She also sought support from the subsequent conduct of the plaintiff in tendering to the defendant in May 2007 a further contract,[25] in virtually identical terms, to commence from the second anniversary – an action she submitted that was consistent only with the plaintiff having the view that the contract came to an end on the second anniversary. I am not sure that the inference follows. Even if it does the circumstances in which it is relevant to consider the subsequent conduct of a party in construing the written terms of an agreement are limited: see Australian Energy Limited v Lennard Oil NL[26]; Narich Pty Ltd v Commissioner of Payroll Tax[27]. All that such conduct can possibly establish is the view that the plaintiff then held of the proper construction, which is irrelevant.
[56] Self evidently the purpose of the clause was to enable each party to know where they stood as to the termination date of their respective obligations. To remove doubt written, rather than oral, notice was required. Each had an interest in knowing if the other side wished to terminate. There is no magic in the 2 year period – before and after that each needed to know in good time of the other’s intentions so that alternative arrangements could be made.
[57] There is a deal of force in Ms Garner’s submission as to the effect of the comma – it makes little sense unless its effect was to have the notice requirement apply only to the period after the two years had ended.
[58] However I am reluctant to give too much weight to a comma. I think that the better view is that there are two possible meanings and, applying the second of the principles set out by Chesterman J in Norco, the “business common sense” of the clause required written notice both before and after the two year period. The reference to two years was to ensure that the contractual period was not less than that.
[59] The defendant then is in breach of the contract.
[60] Having so found it is worth recording that it is evident that the defendant made it clear to the plaintiff’s employees – Ms Abel and Ms McIndoe - that she was very unhappy with the arrangements at the medical centre. If it is relevant I have no doubt that she made plain to them her intention to leave in the months of May to July 2007. Her refusal to sign the contract tendered to her in May and her complaints about the centre had left the plaintiff’s employees in no doubt as to her intentions.
[61] I am conscious of her execution of the leave request form on or about 10 July 2007 applicable to the following September[28] on which Mr Moon placed considerable reliance as indicating that no such intention had in fact been formed or communicated. It is not necessarily inconsistent with an avowed intention to leave to keep ones’ options open especially when being pressured to do so by her employers in the context of promised changes to meet her concerns.
[62] I am conscious too of the defendant completing various forms[29] in June and July 2007 to maintain her registration nominating the plaintiff’s medical centre at Airlie Beach as her place of work. Mr Moon suggested that her actions were consistent only with an intention to remain at the centre.[30] That is not right. She had an obligation to maintain her registration. Identifying her place of work on those forms was a requirement of the forms, not an expression of intent by the defendant.
Relief
[63] The damage that the plaintiff suffered as a result of the breach is the income that the plaintiff would have earned had the defendant worked through the notice period. A simple averaging calculation over the defendant’s entire period of employment was performed by an accountant, Mr King, indicating that the loss to the plaintiff was approximately $3,164 per week.[31]
[64] However the plaintiff must bring into account three things - the defendant’s contractual entitlement to take annual leave, whether it is right to assume that patient numbers for the entire practice drop when a doctor leaves by the assumed average - as opposed to the same or similar numbers being redistributed to those working, and the effect of the employment of a Dr Smith from the week ending 15 November 2007.
[65] By cl 7.2 of the original agreement the defendant was entitled to 4 to 6 weeks leave a year. The financial records indicate that she had not taken any leave in the two year period of her contract. She had given the requisite notice.[32]
[66] Given her dissatisfaction and her intent to leave I have no doubt that, if the defendant had understood her true position under the contract and had worked on past the 5th September then she would have taken the maximum leave open to her – 6 weeks. Plainly she was of the view that she ought not to take such leave prior to September 2007 given her intention of leaving the centre.[33] She had behaved honourably towards the plaintiff. Given the notice that she had given orally and the lack of any leave over the two years previous the plaintiff was hardly in a position to complain.[34]
[67] If the premise underlying Mr King’s calculations is right then there should be a drop-off in income for the practice following the defendant’s departure of about $6,625 per week. There are presumably seasonal factors but they were not explored in the evidence. An analysis of the total earnings of the practice with patient numbers broken down to monthly figures was tendered.[35] The average weekly earnings for August 2007[36] – the month before the defendant left - were $27,977. The weekly average for October – the month after the defendant left the practice - was $26,022, a difference of $1,955. The average weekly patient numbers were 599 (October) as against 628 (August). Dr Nicholls gave evidence that a working average gross was $50 per patient[37] – indicating a drop of about $1,450.[38]
[68] In my view the accountant’s approach of taking an average over the whole of the period and assuming that the numbers of patients, and so the amount earned, would drop by that average is inherently unlikely and would need to be supported by close analysis, which wasn’t done here. As Dr Nicholls indicated that the defendant was the lowest earning of the doctors[39] it seems to me appropriate to adopt the more conservative of the figures. The above analysis suggests that the true reduction was much more modest and in the order of $1,450.
[69] The plaintiff contends that I should ignore any impact that Dr Smith may have had on the numbers of patients likely to have been seen by the defendant. I do not think that can be right. Dr Nicholls thought that typically it took three to six weeks for turnover figures to reflect the fact that a new doctor had started.[40] In other words, during that period of time the new doctor would be sharing in the patient numbers generated by the existing medical staff. That is so because the patients were allotted by the practice manager – apparently there was no great sense of loyalty to an existing practitioner.[41] That is consistent with the fact that the plaintiff’s centre attended principally to the transient population in Airlie Beach.[42] I find it difficult to accept that the presence of an additional doctor would necessarily mean that immediately more patients came through the door - as opposed to a similar number being shared by the doctors on duty. Thus with a new doctor in the practice it would be expected that the numbers of patients seen by the defendant would reduce.
[70] How one should reflect these considerations in the calculation of damages is not entirely clear. Had the defendant remained with the centre there would have been 5 doctors in practice[43] sharing the work. Assuming an equal shedding of patients I propose reducing the loss for the period from the week ending 15 November to the week ending 6 December by 25%.
[71] I will allow damages in the sum of $2,200.[44]
Counterclaim
[72] The defendant has brought a set-off and counterclaim in respect of monies owing to her. The plaintiff does not dispute its liability to pay the amount claimed - $2000.
Summary
[73] There will be judgement for the plaintiff in the sum of $200.00
[74] I will allow interest on that sum at 10 per cent pursuant to the Supreme Court Act 1995 which I fix at $9.[45]
[75] I will hear from counsel as to costs. I remark that despite the judgement in its favour the plaintiff has failed on all major issues argued. I am satisfied that the plaintiff’s witnesses attempted to mislead the court on crucial issues. What should have been a straightforward construction argument became a three day trial.
Footnotes
[1] Ex 1
[2] Cl 5.2(b) of Ex 1
[3] Cl 5.2(h) of Ex 1
[4] More accurately it could not employ one with a Medicare Provider Number
[5] Ex 2
[6] See Exs 20 and 21 for the only evidence as to the area
[7] See T 146/40 -147/15
[8] The defendant kept 60% of her earnings – the practitioner who held out obtained a variation to 63%
[9] Se cl 3 – it speaks of providing the defendant with “opportunities” – there was a deal of merit in Ms Garner’s submission that the so called promises were too uncertain to constitute consideration: White v Bluett (1853) 23 LJ Ex 36 where the consideration was said to be the promise of a son not to complain to his father about a distribution of the father’s estate – something that the son had no right to complain about
[10] See cl 5 of Ex 1
[11] T 18/1-20
[12] See T 125/1-127/20. As will be seen I prefer the defendant’s account – see T 174-175
[13] I am mindful of not putting too much weight on appearances (see “Oral v Written Evidence: The Myth of the Impressive Witness” Re (1983) 57 ALJ 679); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 ; 73 ALJR 306 at 330-332 per Kirby J; but Ms Abel’s presentation was quite out of the ordinary and not what I would expect of someone capable of managing several medical centres.
[14] T 23/5
[15] Cf. Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 213 per Macrossan CJ
[16] Ex 15
[17] T 171-172
[18] Cl 4.1 of Ex 2
[19] Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 at 565; Amoco Australia Pty Ltd v Rocca Bros Motor engineering Co Pty Ltd (1973) 133 CLR 288, 305-306, 315-316
[20] T 47/50; 48/10; 52/20-40; 53/10
[21] T 47/50
[22] T 53
[23] See John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995 - Unreported – Supreme Court of New South Wales - Brereton J – 4659/06 [25]-[27]
[24] Ex 1
[25] Ex 19
[26] [1986] 2 Qd R 216 at 239 per Thomas J
[27] (1984) 58 ALJR 30, 32
[28] Ex 22
[29] Exs 25 and 26
[30] See the cross examination at T 193-197
[31] See Ex 18 – there was no evidence indicating how the PIP factor was assigned. The plaintiff merely proved that it was assigned for unspecified reasons from time to time. If it was relevant I would adopt the lower end of the suggested range.
[32] Cl 7.1(l) and Ex 22
[33] T 181/15
[34] As well the doctors requests were usually granted: Ms McIndoe at T 120/40
[35] Ex 11
[36] Assuming a five week period from the week ending 2nd August to week ending 30th August
[37] T 39/10
[38] This analysis is not affected by the consideration mentioned by Dr Nicholls at T 41/30 that when the defendant left another doctor arrived – presumably the reference was to Dr Smith who is shown to have first earned income in the week ending 15 November – see Ex 10
[39] T 42/15
[40] T 41/50
[41] This was one of the defendant’s complaints – eg see T 177/50
[42] See T 201/10
[43] Including the new practitioner Dr Smith
[44] 6/9 to 18/10 – nil; to 15/11 – 4 wks x $1450 = $5800; to 6/12 - 3wks x $1450 x 75% = $3260; Total = $9060 x 40% = $3,712 less consumables of $200 pw x 7 wks = $2,224 – rounded down to allow for the obvious imprecision in the various estimates. I am not persuaded any amount should be allowed for PIP as no evidence was led as to what factors influenced its receipt and no account was taken in the accountant’s approach of the matters I have spoken of (which may or may not be relevant but the onus lay on the plaintiff to establish its loss) .
[45] Taking the loss from 6 December 2007 – 169/365 x $200 x 10%