Price v Friebe[2024] QSC 157

SUPREME COURT OF QUEENSLAND

Matters of introduction

Nature of this proceeding

1. [1]
   This proceeding arises out of the conduct of specialist obstetric practices at North West Private Hospital (“the hospital”), which is operated by Ramsay Health Care (“Ramsay”).  There are facility rules published by Ramsay which are applicable to the management and operation of the hospital (“the Facility Rules”).
2. [2]
   A patient requiring specialist obstetric care is admitted to the hospital under the care of their obstetrician. At times, during the patient’s admission, the patient’s obstetrician may not be at, and able to attend, the hospital and yet the patient may still require obstetric care. To deal with that type of contingency, another obstetrician may, from time to time, provide what is colloquially known as “cover” for the patient’s obstetrician. The term “cover” contemplates any occasion where an obstetrician stands in for, and looks after the patients of, another obstetrician in circumstances where that obstetrician is unavailable.^[1]  
3. [3]
   One way in which cover is arranged and provided is pursuant to a roster.^[2]  A roster may broadly be described as an arrangement amongst a group of obstetricians in which each roster member agrees in advance to be available at specified times to provide obstetric services to the patients of other roster members. The member providing cover under the roster at any specified time is colloquially referred to as being “rostered on” or as being “on-call”. A roster is typically prepared months in advance and published in the relevant hospital ward. 
4. [4]
   During the period from in or around January 2014 until on or about 14 June 2021, the plaintiff (“Dr Price”) had been a member of a group of obstetricians at the hospital (“group A”) which operated a roster.  At the time of the material events leading up to June 2021, the first defendant (“Dr Friebe”) and the second defendant (“Dr Kerridge”) were the other members of group A. The roster operated by group A applied to weekends and weeknights and was reciprocal in the sense that, when rostered on, each member would provide cover to the other members of the group. Drs Price and Friebe had “an unwritten expectation” that they would also “cover each other’s practice” when they separately took holidays.^[3]
5. [5]
   From in or around 2018 until in or around June 2021, another group of obstetricians at the hospital (“group B”), operated another reciprocal roster which applied to weekends and holidays. At the material times, the members of group B were, relevantly, the third defendant (“Dr Sheahan”), the fourth defendant (“Dr Bajra”), the fifth defendant (“Dr Kretowicz”), the sixth defendant (“Dr Kho”) and a Dr Bob Watson. Dr Watson would retire on or about 30 June 2021.
6. [6]
   In or about June 2021, a new group of obstetricians at the hospital formed, comprised of the defendants (“the new group”). Dr Price was not invited to be a member of the new group and he was subsequently not included in rosters published by the new group. He contends that the circumstances in which the new group formed were unlawful because they involved a restrictive trade practice, cartel conduct, and were otherwise unconscionable.
7. [7]
   The trial was conducted according to the pleadings. The parties agreed a list of issues in dispute which cross referenced the pleadings. In my consideration of the issues, it has been convenient to place the various issues into groups.
8. [8]
   By way of overview, as to the cartel conduct case, Dr Price alleged that, in forming the new group, the defendants made an arrangement, or arrived at an understanding, that contained “a cartel provision” within the meaning of that term as contained in s 45AD(1) of the Competition and Consumer Act 2010 (Cth) (“the CCA”), as applied by ss 4(1), 5 and 6 of the Competition Policy Reform (Queensland) Act 1996 (Qld) (“the Competition Act”).  A provision of a contract, arrangement or understanding will be regarded as a cartel provision if it relevantly satisfies the conditions identified in s 45AD(1) of the CCA. In the present case, the relevant conditions which fell to be satisfied were a purpose condition (as contained in s 45AD(3)(iii)) and a competition condition (as contained in s 45AD(4)). The purpose condition required the provision to have the purpose of directly or indirectly preventing, restricting or limiting the supply, or likely supply, of services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding. The competition condition required that at least two parties to the alleged arrangement or understanding were or were likely to be, or but for the alleged arrangement or understanding would be or would be likely to be, in competition with each other in relation to the supply of the services.
9. [9]
   In pleading his cartel conduct case, Dr Price referenced a concept of “on-call services” which he defined^[4] as comprising:

1. “(i)
   an agreement in advance between two or more obstetricians to ensure that one of those obstetricians would be available, during a pre-determined period when another of them was not rostered to work or was otherwise unavailable, to provide [specialist obstetric services] to that other obstetrician’s patients, in the event that they were required (generally called ‘Covering’, or providing ‘Cover’ to, that other obstetrician); and

2. the provision of [specialist obstetric services] by one obstetrician to the patient of another, if and when required, during the period in which the first obstetrician was ‘Covering’ the second (‘On-Call Patient Services’).”

10. [10]
    In these reasons I have used the expression “on-call services” in the sense that expression was defined by paragraph 7(c) of Dr Price’s pleading. That definition was the subject of an order of Boddice J dated 16 August 2022 pursuant to which Dr Price’s solicitors were ordered to write to the defendants’ solicitors stating whether the pleaded definition of on-call services was “concerned only with demand amongst obstetricians for services to be provided by one to the other, without any corresponding reciprocal obligation for the second obstetrician to provide services to the first”. Pursuant to that order, by a letter dated 29 September 2022 to the defendants’ solicitors, the plaintiff’s solicitors relevantly provided this further explanation of the pleaded definition of on-call services:

“We confirm that paragraph 7(c)(i) is not concerned ‘only with demand amongst obstetricians for services to be provided by one to the other, without any corresponding reciprocal obligation for the second obstetrician to provide services to the first’.

Paragraph 7(c)(i) encapsulates demand by an obstetrician (say, Obstetrician A) for any form of agreement, reached in advance, which is designed to ensure that another obstetrician will be available to attend to the patients of Obstetrician A during a pre-determined period.

In some cases, that demand might be met by an agreement which imposes reciprocal obligations on two or more obstetricians to provide services to each other (for example, a typical On-Call Roster).

In other cases, the demand might be met by an agreement pursuant to which Obstetrician B provides services to Obstetrician A, but Obstetrician A is not required to provide services to Obstetrician B.

In other cases still, an obstetrician may meet this demand through a combination of different types of arrangements, or change which types of arrangements they participate in over the course of their career (be that through preference or necessity).

The Plaintiff does not dispute that particular obstetricians may have preferences for which type of agreement is used to satisfy the demand pleaded in paragraph 7(c)(i), or that different types of agreements might be more or less effective / achievable depending on the circumstances which obtain at a particular time. This is the case with all demand in all markets. Indeed, his case is that On-Call Rosters are generally the best (and, in some cases, the only viable) solution for meeting the demand for coverage.

Regardless of precisely how it is satisfied, however, the fundamental nature of what is being demanded remains the same — being reliable coverage by another obstetrician in circumstances where the first obstetrician is required to ensure their patients have access to treatment and care at all times, but it is neither practicable nor desirable for that obstetrician to make themselves personally available to their patients at all hours, without break, on an ongoing basis.

The Plaintiff’s case is that, given the particular facts at hand (which include, notably, that the Defendants represent six of the eight obstetricians practising at the Hospital), there was no sustainable or realistic way for him to meet this demand once he was denied reliable cover by the Defendants.” (emphasis in original)

11. [11]
    By the end of the trial, Dr Price’s submissions acknowledged that on-call services were generally referred to in practice simply as “cover”.^[5]
12. [12]
    Dr Price alleged that in around April 2021, the defendants made an arrangement or arrived at an understanding (described by his pleading as “the New Group Arrangement”) which contained provisions to the effect that:

    1. Drs Friebe and Kerridge would join group B, so as to form the new group;
    2. the members of the new group would publish new, or supplementary, group rosters to reflect the addition of Drs Friebe and Kerridge to group B’s preexisting arrangements;
    3. from at least September 2021, the defendants would provide on-call services to each other in accordance with the new group rosters; and
    4. Dr Price would not be invited to join the new group or included in any group rosters published by the new group.
13. [13]
    Dr Price described the particular provision to the effect that he would not be invited to join the new group or included in any group rosters published by the new group as “the Exclusionary Provision”. He alleged that the Exclusionary Provision had the purpose of directly or indirectly preventing, restricting or limiting the supply or likely supply of on-call services by each of the defendants to him. That allegation was advanced in the context where Dr Price separately alleged that there was “demand” amongst obstetricians at the hospital for the supply of on-call services and that each of the defendants were, or but for the New Group Arrangement, would have been, in competition with each other in relation to the supply of on-call services to other obstetricians.^[6] From in or about April 2021, the defendants were alleged to have given effect to the Exclusionary Provision.
14. [14]
    Dr Price separately alleged that the defendants’ conduct was unconscionable.
15. [15]
    The defendants’ cartel conduct, or alternatively their unconscionable conduct, was alleged by Dr Price to have ultimately caused him to cease practice at the hospital.

The Statutory Framework for Dr Price’s claims

16. [16]
    The parties accepted that this Court had jurisdiction to hear and determine Dr Price’s claims.^[7]
17. [17]
    The Exclusionary Provision was alleged to be a cartel provision within the meaning of s 45AD of the CCA. Sections 45AJ and 45AK of the CCA concern corporations making and giving effect to contracts, arrangements or understandings which contain a cartel provision. Sections 5 and 6 of the Competition Act provides that the “Competition Code text” as in force from time to time (“the Competition Code”) applies as a law of Queensland. Section 4(1) of the Competition Act provides to the effect that the Competition Code text consists of the Schedule version of Part IV of the CCA which relevantly includes ss 45AD, 45AJ and 45AK, modified to include references to persons who are not corporations and other provisions of the CCA relevant to the application of those sections.^[8] The defendants were alleged to have contravened ss 45AJ and 45AK by variously making the New Group Arrangement and giving effect to the Exclusionary Provision.
18. [18]
    Section 21 of Schedule 2 to the CCA, being the Australian Consumer Law (“the ACL”), relevantly provides to the effect that a person must not in trade or commerce engage in unconscionable conduct in connection with the supply, or possible supply, of services. The effect of ss 16 and 17 of the Fair Trading Act 1989 (Qld) (“the Fair Trading Act”) is that the “Australian Consumer Law text” (which is defined to include Schedule 2 to the CCA) (“the Qld ACL”), applies as a law of Queensland.  Dr Price alleges that he was in a position of situational disadvantage and vulnerability in relation to the defendants, acting collectively, and that their conduct towards him was unconscionable within the meaning of s 21(1) of the ACL.

The witnesses

19. [19]
    Dr Price and each of the defendants were called as witnesses. Their evidence in chief was essentially by way of affidavit. It may be observed that significant parts of their respective affidavits were not challenged in cross-examination. Another obstetrician, Dr Anastasios Stamatiou, provided an affidavit but was not required for cross-examination.
20. [20]
    Ms Ellen Whittaker was the director of clinical services at the hospital from in or about 2006 until 9 December 2022. She was also a member of the Executive Management Committee of the hospital which had the role of advising the hospital’s Chief Executive Officer on operational and strategic matters. As the Director of Clinical Services, her primary responsibility was clinical governance. Ms Whittaker was called as a witness and her evidence in chief was essentially by way of affidavit.
21. [21]
    Two independent expert obstetricians gave evidence, Dr William Milford and Dr Douglas Keeping. They provided separate expert reports and a joint report. They were each called as witnesses at the trial. As will become apparent from these reasons, around 23 April 2021, in the midst of the events in question, Dr Kretowicz sought advice from Dr Keeping, whom she regarded as a very senior and experienced obstetrician, as to how the members of group B might deal with what Dr Kretowicz described as an escalating situation with Dr Price. Dr Keeping provided oral advice to Dr Kretowicz at this time (“the Keeping Oral Advice”). By reason of having been involved in the material events to this extent, Dr Keeping was potentially a relevant witness of fact and conceivably could have given evidence of circumstances evidencing Dr Kretowicz’s subjective purpose at the relevant time. It was also tolerably clear from the substance of the Keeping Oral Advice, that Dr Price had been regarded as having acted inappropriately or contrary to collegiate expectations. It was not in dispute that Dr Keeping was a well-respected and experienced doctor. However, his involvement in the material events in the manner, I have outlined, led me to conclude that he was not a truly independent expert. I have given his evidence minimal weight to the extent that it differed in any material respect from the evidence of Dr Milford.
22. [22]
    Mr Elia Lytras provided an independent forensic accountant’s report addressed to quantum issues.^[9] He had been instructed by Dr Price’s lawyers Mr Joseph Box, an independent forensic accountant was instructed by the defendant’s lawyers and provided a report. Messrs Lytras and Box had participated in a joint conference and provided a joint report. Ultimately the defendants did not call Mr Box as a witness. His report was not tendered and an amended version of the joint report was tendered by consent.
23. [23]
    The events of 2021 involved significant conflict in the professional lives of the parties and led to solicitors’ correspondence and, ultimately, this litigation. The events, and the ensuing litigation, undoubtedly caused stress for each of the parties and contributed to differing levels of animosity as between Dr Price and the various defendants. Given that context, in giving evidence, it would have been difficult for each witness to remain perfectly detached from their own perceptions and feelings about the relevant events. That is not a criticism but rather, provides some explanation for why recollections, in some respects, placed different interpretations and emphasis upon certain events.
24. [24]
    It is important to recognise that this litigation did not involve the determination of any real issue concerned with the professional qualifications and competency of any party. The litigation was conducted on the basis that Dr Price was a skilled and competent obstetrician. To the extent that some of the evidence in the case involved reference to Dr Price’s views about Dr Bajra, it should be noted that those views were merely Dr Price’s personal opinions.
25. [25]
    Dr Sheahan was an impressive witness. He had taken diary notes of material conversations and presented as a witness who was intent on giving evidence limited to his actual recollection. Drs Kho and Kretowicz were also impressive witnesses. They each had peripheral involvement in the formation of the new group. They had no history of animosity with Dr Price and gave clear and credible evidence about their respective involvement in, and recollection of, material events. Dr Kretowicz was thoughtful and considered when she was responding to questions which required her to express her personal views and understandings. Dr Bajra appeared to struggle with her recollection of events. She had a clear memory of some conversations but a less than clear memory of others.^[10]  Ultimately, I found her to be a witness who did her best to provide a faithful account of her recollection of events.
26. [26]
    There were some discrete aspects of the evidence of Drs Price, Friebe and Kerridge which were not satisfactory. Dr Price, at times, gave answers in cross-examination which were flippant and deflective.^[11] Dr Friebe was less than frank about the extent to which he had consulted with Dr Kerridge in the lead up to their joinder of the new group.^[12] In my assessment, he was unreasonably reluctant to admit that he and Dr Kerridge actively discussed amongst themselves the prospect of joining the new group and he had separately discussed the issue with Dr Sheahan, without having brought Dr Price into his confidence. Dr Kerridge gave evidence that was in some significant parts emotional and argumentative.^[13] Ultimately, despite these unsatisfactory aspects, I formed the view that Drs Price, Friebe and Kerridge each generally endeavoured to be true to their respective affirmations and oaths. 
27. [27]
    To the extent that, in any specific instance, I have preferred the evidence of one witness over that of another, rejected evidence or found that evidence was not credible, I have given my reasons for those findings as and when they appear.

Context in which the events of 2020 and 2021 occurred

The work of an obstetrician in private practice

28. [28]
    Obstetric practice includes engaging in consultations with patients during their pregnancy, reviewing patients in hospital after their admission, usually post-natal, and may also involve dealing with emergency presentations of patients experiencing complications during their pregnancy or post-natal course.^[14] Managing childbirth is an important part of an obstetrician’s practice and is attended by inherent uncertainty.^[15] Unscheduled births can account for a significant percentage of a private obstetrician’s practice.
29. [29]
    Private obstetric care can require the provision of afterhours care, with minimal notice, and at times for prolonged periods of time.^[16] In that respect, the professional life of a private obstetrician tends to be more unpredictable than other medical specialties.^[17] In a usual case, a patient’s initial appointment with an obstetrician will occur at the six to ten week mark of a pregnancy, from which time the obstetrician is only able to generally predict when the birth will occur.^[18] A patient normally engages a private obstetrician in the expectation that the obstetrician will be available at the time of the birth,^[19] by which time a professional relationship between the obstetrician and the patient will ordinarily have been well established.^[20] In acknowledgement of this expectation, a private obstetrician usually plans holiday leave, some seven to eight months into the future so that a patient can be told when the obstetrician will be on leave.^[21]
30. [30]
    As the expenses, in particular insurance premiums, associated with the conduct of a private obstetrics practice are significant,^[22] there is a minimum number of births per month that most obstetricians need to undertake to achieve an economically viable practice.^[23] Typically, at least 10 deliveries per month are required to make a private obstetrician’s practice financially viable.^[24]

Cover arrangements in private obstetric practice

31. [31]
    In the 1960’s, a private obstetrician tended to work alone without any structured cover arrangements.^[25] By the 1970’s and 1980’s, private obstetricians started to provide ad hoc cover to each other but without the structure of established rosters.^[26] Roster groups became fashionable in the 1990’s and, during the last 10 to 15 years, larger roster groups became the norm.^[27] The growth of roster groups reflected contemporary desires on the part of obstetricians to enjoy better lifestyles and engage in specialist work in addition to obstetrics.^[28] Roster groups are essentially collegiate and informal.^[29] One aspect of that collegiality is respect for the obstetrician who is rostered on at a particular time. If an obstetrician is rostered on, respect is given to that obstetrician to control the care and treatment of the patient of the obstetrician for whom cover is being provided.^[30] Another aspect of that collegiality is that the covering obstetrician should demonstrate appropriate respect towards the trust that already exists between the patient and the obstetrician for whom cover is being provided.^[31]
32. [32]
    Ordinarily, the arrangement or agreement which underpins the roster is not formally documented^[32]. The size and composition of a roster may be affected by various considerations, including patient safety considerations, the need to provide high quality clinical care and the need to manage fatigue of the participating obstetricians.^[33]
33. [33]
    Rosters can provide for reciprocal cover or one way cover. Reciprocal cover refers to “a group of doctors form[ing] a roster through informal or collegiate agreement…Whoever is on call treats the patients of all group members while on call, so members treat each other’s patients”.^[34] One way cover may be provided in the context of a roster but also refers to cover where a practitioner is not a member of an on-call group for whatever reason but, out of respect for that obstetrician’s lifestyle and concern for that obstetrician’s patients, members of a roster will cover that obstetrician’s patients without the obstetrician forming part of the roster.^[35] One way cover is unusual but can actually benefit the primary obstetrician who will usually still receive the larger portion of the birth fee.^[36] In the experience of Drs Keeping and Milford “most people are kind enough to offer one way cover, it just might require some discussion about finances”.^[37]
34. [34]
    A further atypical arrangement amongst private obstetricians may involve a fixed roster, quarantined leave and salaried remuneration.^[38] Those kinds of arrangements are designed to service the needs of patients who desire private care in a hospital with a specialist but who do not place value upon continuity of care from a single obstetrician.^[39]

The history of rosters at the hospital

35. [35]
    At or about the end of 1999, there was one obstetrics roster group at the hospital which included Dr Price, Dr Sheahan, Dr Darcy-Evans, Dr Watson, Dr Titiz and Dr Howland. The roster provided for weekend cover. In or about 2000, Dr Kretowicz started working in private practice at the hospital and worked there without cover of any kind for approximately three or four years.^[40] During that time she developed a busy practice.^[41] In the early 2000’s she asked Dr Price to join the roster group at the hospital but her request was declined.^[42] In or around 2005, Dr Kretowicz moved her practice to the Mater Hospital. She eventually moved her practice back to the hospital in or around 2010 when her further requests to join the existing cover group at the hospital were denied by Dr Price.^[43]
36. [36]
    Dr Friebe commenced working at the hospital in or about August 2010. At that time there was one roster at the hospital, comprised of six obstetricians, which provided for reciprocal weekend cover. Dr Friebe initially worked at the hospital for a period of six months without being part of the roster. Eventually he was invited to join, and joined, the roster at the hospital.
37. [37]
    In or around 2012, some tensions developed within that roster. There was an acrimonious meeting including at least Drs Howland, Sheahan and Price in which Dr Price was rebuked by the others for allegedly having made negative comments to patients about the quality of their care received from obstetricians in the roster.^[44] Following that meeting, Dr Price and Dr Friebe formed a two person weekend roster and maintained that roster for around 18 months.
38. [38]
    In or about June 2012, Dr Bajra called Dr Friebe and asked to join his and Dr Price’s roster group. The request was denied by Dr Friebe who said words to the effect that “he and Dr Price had decided to just stay with a one in two roster”.^[45] Dr Michaela Hock later joined the hospital, and the two person weekend roster became a three person weekend roster. Dr Kerridge joined that roster group in or about 2014 which became known as group A. From 1 August 2014, Dr Kerridge conducted her practice from one of the rooms owned by Dr Price. Dr Hock retired in 2019 and the group A roster returned to a three person roster. Dr Friebe prepared or managed the roster for group A.
39. [39]
    Following the split of the roster in or around 2012, the remaining members of the former roster formed a new group which became known as group B. Dr Bajra joined that group in or around July 2012.^[46] That roster group provided cover to Dr Kretowicz on weekends or holidays without her being required to provide reciprocal cover to the roster’s members. That one way cover involved Dr Kretowicz being provided with cover “for any weekends or holidays [she] wanted”.^[47] In around early 2018, Dr Darcy-Evans started to experience some health problems and asked Dr Kretowicz to cover the weekends on which he was rostered for the group. Dr Kretowicz began to provide cover on those weekends to the members of group B but without being a member of the group.^[48] In or about 2019, Dr Kretowicz was invited to join group B.^[49] From in or around that time, group B comprised Dr Sheahan, Dr Bajra, Dr Kretowicz, Dr Kho and Dr Watson. Dr Sheahan prepared or managed the roster for group B.
40. [40]
    Dr Stamatiou practiced as an obstetrician at the hospital from January 2019. He also practiced at the Wesley Hospital and the Mater Mothers Private Hospital. He briefly agreed to provide cover to group A on three weekends in August and October 2020. In or about September 2020 he decided that he would not join any roster group at the hospital. He ceased obstetrics practice in March 2022. When he wished to take holidays or needed to travel to attend conferences during 2021 and 2022, he would ask other obstetricians at the hospital to provide cover for him during those periods. He was provided with one way cover during those periods.^[50] During the period from 24 June 2021 until 28 June 2021, Dr Price provided cover to Dr Stamatiou and during the period from 28 June 2021 until 5 July 2021, Dr Kretowicz provided cover to Dr Stamatiou.^[51]
41. [41]
    Dr Hyytinen commenced practice as an obstetrician at the hospital in or around 2019.^[52] She has never been part of a roster group. Dr Price observed that Dr Hyttinen “really wanted nothing to do with any obstetricians at our hospital”.^[53] Dr Kho observed that Dr Hyytinen had been the busiest obstetrician at the hospital and had a practice which was “busier and busier as the years go by”.^[54]

The Facility Rules

42. [42]
    The Facility Rules apply to all facilities operated by Ramsay in Australia, including the hospital.^[55] The Facility Rules apply to large hospitals, rural clinics and day procedure centres.^[56] For the purpose of the Facility Rules, Dr Price and each of the defendants were, relevantly, “specialist practitioners”, “medical practitioners” and “accredited health professionals”. As to the latter matter, the Facility Rules refer to a concept of “accreditation”.
43. [43]
    The process by which a medical specialist becomes accredited at the hospital involves the following steps:^[57]

    1. the practitioner submits a completed application to the hospital’s CEO;
    2. the CEO assesses the application and, if satisfied that the practitioner is suitably qualified, refers the application to the hospital’s medical advisory committee;
    3. the medical advisory committee reviews the applicants’ credentials, qualifications, experience, fitness and character and then makes a recommendation to the CEO;
    4. the CEO then submits the recommendations of the hospital’s medical advisory committee, together with his or her own recommendation, to Ramsay Health’s central credentialing committee;
    5. the central credentialing committee considers the material and makes a recommendation to Ramsay Health’s Australian Risk Management Committee; and
    6. the Australian Risk Management Committee makes a decision and advises the CEO.
44. [44]
    To be accredited, an obstetrician usually must nominate another obstetrician as the “last point of call” or emergency person to be called in the event the obstetrician is not available.^[58] However, the emergency person is very much to be regarded as “the last point of call”, as a hospital will generally first call the obstetrician nominated as being “on-call” by a roster or an obstetrician nominated as “covering” for the obstetrician.^[59] A roster will notify the hospital who to call if the treating obstetrician is unavailable,^[60] however such notifications are also provided in circumstances of one off cover or one way cover.^[61]
45. [45]
    The Facility Rules include the following material provisions:

“What are these Facility Rules?

1 This document sets out the current Facility Rules that apply to all hospitals and day procedure centres operated by Ramsay Health Care in Australia. These Facility Rules:

1.1 implement the policies and set out the expectations of the Board of Ramsay Health Care;

1.2 are intended to inform those who will be affected by and required to comply with the Facility Rules; and

…

The purposes of these Facility Rules

6 These Facility Rules have these purposes:

6.1 to maintain and improve safety and quality of clinical care across all Facilities;

6.2 to endeavour to ensure consistency of safety and quality clinical care across all Facilities;

6.3 to define the relationship between Ramsay Health Care and its Accredited Health Professionals;

6.4 to set out the expectations and obligations of Accredited Health Professionals; and

6.5 to assist in compliance with relevant laws and standards.

7 It is a condition of accepting Accreditation, and of ongoing Accreditation, that the Accredited Health Professional understands and agrees that:

7.1 these Facility Rules set out processes and procedures available to the Accredited Health Professional with respect to all matters relating to and impacting upon Accreditation; and

7.2 no additional procedural fairness or natural justice principles will be incorporated or implied, other than processes and procedures that have been explicitly set out in these Facility Rules.

Compliance with these Facility Rules

8 Accredited Health Professionals and relevant Ramsay Health Care staff are required to comply with these Facility Rules.

…

Suspension of Accreditation

118 The Facility Chief Executive Officer or Chief Operating Officer may, by notice in writing, suspend the Accreditation of an Accredited Practitioner (in part or in full and on whatever terms) if in the opinion of the Facility Chief Executive Officer or Chief Operating Officer:

…

118.4 the Accredited Practitioner has breached a condition of Accreditation or otherwise failed to comply with these Facility Rules;             

…”

46. [46]
    Schedule 1 to the Facility Rules is headed “General Conditions of Accreditation” and includes the following material provisions:

“Schedule 1 - General Conditions of Accreditation

261Accredited Health Professionals must:

Compliance

261.1 comply with…these Facility Rules, policies and procedures established by the Facility and Ramsay Health Care;

261.2 comply with directions of the Facility Chief Executive Officer and ARMC;^[62]

…

Availability

261.33be available or deputise an appropriately qualified Accredited Health Professional for emergency calls to the Accredited Health Professional’s patients;

261.34 participate in formal on call arrangements as required by the Facility,^[63] be available when on call by telephone or as required to attend the Facility within a clinically acceptable time frame;

…

Safety and Quality

…

261.45 report to the Facility incidents, complications, adverse events and complaints in accordance with the Facility policy and procedures and where required by the Facility Chief Executive Officer will assist with incident management, investigation and reviews (including root cause analysis and other systems reviews), complaints management and open disclosure;”

47. [47]
    Schedule 2 to the Facility Rules is headed “Conditions associated with Accreditation Classifications” and includes the following material provisions:

“262Specialist Practitioners, Generalist Practitioners, Consulting Practitioners (where applicable) and Dentists:

262.1 must only admit and Treat patients within their authorised Scope of Clinical Practice/Accreditation Classification/conditions of Accreditation;

262.2 must accept that they are at all times responsible for the clinical care of patients admitted (or otherwise) under their care and must ensure that they are available to Treat those patients at all times, or failing that, that other arrangements as permitted by the Facility Rules are put in place to ensure the continuity of treatment and care for those patients;

262.3 must not admit patients without an arrangement in place for another Accredited Practitioner of an appropriate Accreditation Classification and Scope of Clinical Practice to be available for emergency calls to the Accredited Health Professional’s patients in the event that they are unavailable or unable to be contacted;”

The relevance and impacts of fatigue upon obstetric work

48. [48]
    Fatigue and its effects were relevant to an agreed issue in the proceeding, namely, the extent to which it would have been possible for Dr Price to maintain his obstetrics practice at the hospital, in compliance with the Facility Rules, despite not being part of a group roster arrangement with the defendants.^[64]
49. [49]
    Dr Milford was the lead author of a Royal Australian and New Zealand College of Obstetricians and Gynaecologists paper entitled “Fatigue Risk Management in Obstetric and Gynaecological Practice”, which had been most recently updated in May 2022. He had been instructed by Dr Price’s lawyers to answer a series of questions in relation to how obstetric surgeons manage fatigue and stress and the implications of stress and fatigue for the management of an obstetrician’s practice. One of the questions was, “[i]n your experience, what role, if any, do on-call rosters play in the management of stress and/or fatigue amongst obstetric surgeons?”. Dr Milford was not asked to provide an opinion upon the reasonableness of Dr Price’s decision to cease practice.^[65] He emphasised that he had only been asked about fatigue and the potential effects of fatigue on practitioners generally.^[66]
50. [50]
    Dr Milford provided the following definition, and broad statement about, fatigue:^[67]

“Fatigue is the subjective feeling of the need to sleep, an increased physiological drive to fall asleep and a decreased state of alertness. It has been demonstrated to impact upon both cognitive and psychomotor performance. Fatigue is an implicit part of medical practice, especially obstetric practice, where work outside of normal hours is commonplace. Managing fatigue is the practice of reducing the impact of fatigue upon patient safety and clinician wellbeing. It is therefore crucial that clinicians manage fatigue such that there is no impact on their wellbeing or upon patient safety.” (footnotes omitted)

51. [51]
    Dr Milford considered that the effects of fatigue are not well understood.^[68] He admitted that his opinions about the impacts of fatigue were necessarily expressed at a level of generality.^[69] Dr Milford relevantly opined:^[70]

“The state of the scientific literature is such that even with perfect information from that person about their subjective feeling of fatigue, it is impossible to draw conclusions that:

1. substantiate that feeling in some objective way; or

2. identify cause an [sic] effect with sufficient certainty to permit someone to act on it.”

52. [52]
    Dr Milford considered that fatigue can affect cognitive performance, motor performance and mood in variable quantities depending on the particular individual.^[71] Age and the quality of sleep are recognised factors which can affect fatigue in an individual.^[72] Whilst fatigue becomes more difficult to deal with as a doctor ages, that negative effect is counter balanced by an older doctor tending to be more experienced.^[73] That is, whilst there are biological reasons why an older specialist might become more easily fatigued and tired, the greater experience of the older specialist tends to weigh against the risk of mistakes being made by the more experienced specialist.^[74] Older specialists also tend to be more able to recognise when they are too fatigued to work.^[75]
53. [53]
    Dr Milford distinguished between acute fatigue and another kind of fatigue which he described as “burn out”.^[76] Acute fatigue contemplated extreme situations, such as where a practitioner may not have slept for three nights and that could give rise to concerns about clinical errors and adverse outcomes.^[77] Burn out was more concerned with long periods of high intensity work with no adequate holidays or breaks.^[78] Both Drs Milford and Keeping agreed that whilst it is theoretically possible for an obstetrician’s fatigue to have an adverse outcome for a patient, there are multiple safeguards built within most hospital systems which are intended to guard against errors and failures in the treatment of patients.^[79] In this regard, the following exchange occurred during the course of Dr Milford’s cross-examination:^[80]

“[Counsel] So if I adopt the figures we’ve just discussed about an average month and take a midpoint of 15 deliveries per month - so between 10 and 20 deliveries per month, and I’m talking about an obstetrician of Dr Price’s experience.  So you can assume 25 years practice in obstetrics, and please assume that this notional person is diligent about taking rest breaks when they can between work and diligently trying to get enough sleep when they can and we’re dealing with around five unscheduled births per month.  Do you expect it’s likely that a person in that particular circumstance would be at risk of adverse clinical outcomes outside the normal range of clinical performance? ---

[Dr Milford] So I think - in two parts, I think it’s unlikely but not impossible because you do not need many events to go against you such that you would end up with doing consecutive nights doing a significant amount of work.  So I think it’s unlikely but still possible that you could be - be fatigued.  I think that the chance of adverse events from that is small, largely because of how hospitals are set-up and run, not necessarily due to anything to do with the practitioner.

[Counsel] And is one of those elements that a doctor who finds themselves overwhelmed by work can ordinarily ask a colleague for help so that they can rest?---

[Dr Milford] That may be one, but it’s the simple nature of the health system with which you work with either health care professionals, and together, that means that the system is safe because there is a degree of checking and overlap between those clinicians.”

54. [54]
    Drs Milford and Keeping accepted that better fatigue management is a benefit of a larger on-call group but is not necessarily one of the motivations for the formation of the groups.^[81] Dr Keeping observed that “it is harder to remain motivated to continuing practising obstetrics without the all-inclusive backup offered by a cover roster”.^[82]
55. [55]
    The joint report expressed this conclusion:^[83]

“In our view, while it is possible to practice alone, we would not want to be practicing alone for long. You want to have some freedom from work, and the stress of carrying your phone around at all times in case of an emergency would weigh on you. Dr Keeping sees this as being largely a desire to keep a good lifestyle outside of work to maintain your motivation at work. Dr Milford sees this as largely being a fatigue management tool.”

56. [56]
    I make the following findings about fatigue:

    1. Fatigue can affect cognitive and motor performance, and because of the nature of their work, obstetricians are susceptible to experiencing, and suffering from, fatigue.
    2. It is theoretically possible that an obstetrician’s fatigue might lead to an adverse outcome for a patient. However, that possibility is unlikely to eventuate because of the multiple safeguards built within hospital systems which are intended to guard against errors and failures in the treatment of patients.
    3. An obstetrician’s fatigue is more easily managed if the obstetrician is participating in a larger roster group.
    4. Whilst fatigue becomes more difficult to manage as a doctor ages, that difficulty is counter balanced by an older obstetrician tending to be more experienced and better able to recognise the effects of fatigue.
    5. As a consequence of the structure and certainty provided by a large roster, there is less chance of an obstetrician who is part of such a roster suffering burn out from long periods of high intensity work with no adequate holidays or breaks.
    6. It is possible for an obstetrician to practice alone but it is not preferable because of the risk of suffering fatigue, particularly burn out, and being part of a roster is a means of managing the risk of suffering burn out.

Relationships between Dr Price and the defendants in the lead up to the formation of the new group

57. [57]
    Dr Price commenced practice as an obstetrician and gynaecologist in April 1996. From 11 April 1996, he had conducted a successful obstetrics practice at the hospital.
58. [58]
    From the commencement of his practice at the hospital in or about August 2010, Dr Friebe rented a room from Dr Price. He also used the services of a practice management company^[84] which provided administrative services required to run his practice. Although he was Dr Price’s tenant, Dr Friebe referred to “[b]eing in the same rooms”^[85] and as having “shared rooms” with Dr Price. They shared a “close working relationship”^[86] which involved working “very closely together”^[87] and a “fairly intensive kind of patient sharing situation”.^[88] Dr Friebe explained that situation relevantly as follows:^[89]

“…the unwritten expectation was when I was away on holidays or Dr Price was away on holidays, we would cover each other’s practice - practice exclusively. So he would see all of my patients [sic] needed seeing while I was away, as opposed to a weekend cover, when it was only going to be one every couple of weeks.”

59. [59]
    The relationship between Drs Friebe and Price appears to have been a stable and enduring professional relationship for some ten years.^[90] From in or about 2020, Dr Friebe gradually decided that he should leave Dr Price’s rooms. He eventually moved to new rooms on 1 April 2021. I find that Dr Friebe’s decision that he should leave Dr Price’s rooms was fundamentally driven by his desire to “run [his] own show” from his own rooms.^[91] He had been unhappy about some aspects of the administration or management of his practice from his existing rooms.^[92] The prospect of moving to his own rooms meant that he would be able to control the running and operation of those new rooms.^[93] It may be observed that by in or about 2020, Dr Friebe was well aware of instances of conflict and discord in Dr Price’s dealings with other doctors.^[94] He had also been receiving complaints from some of his patients to the effect that Dr Price was rude and abrupt.^[95] However, Dr Friebe did not regard these complaints from patients as being “a big deal”.^[96] The complaints from patients and the fractious nature of Dr Price’s relationships with some other obstetricians did not provide the impetus for Dr Friebe’s decision that he should move rooms. His decision to move rooms was not a decision to leave group A. Despite having formed a desire to move rooms, throughout 2020 and until his decision to join the new group, Dr Friebe remained a member of group A. Dr Friebe regarded, and still regards, Dr Price as a competent obstetrician.^[97] 
60. [60]
    In the lead up to the events of 2021, Dr Price tended to see Dr Kretowicz rarely but they would exchange text messages in a professional context.^[98] Dr Kretowicz had never had any conflict with Dr Price at a personal or clinical level.^[99] Her dealings with him at a professional level were cordial.^[100] She regarded Dr Price as “a very good doctor”.^[101] Numerous complaints had been made to her by other obstetricians about Dr Price.^[102] Dr Price was said to have provided cover to other obstetricians and, whilst providing that cover, made negative comments to the patient about the patients’ care.^[103] Dr Kretowicz regarded those complaints as scuttlebutt and had not formed a view about whether they were valid.^[104] Dr Price had never criticised Dr Kretowicz to any of her patients.^[105] During the course of morbidity and mortality meetings, Dr Kretowicz observed Dr Price on occasion to behave in a manner which she be regarded as “judgmental”.^[106] She believed those meetings were intended to provide “a collegiate atmosphere and environment for discussion about adverse outcomes and complications”.^[107] She observed that Dr Price engaged in “a certain pattern of behaviour during meetings”.^[108] Whilst she had not formed any positive view as to whether the complaints made by others about Dr Price were valid, based on her own observations of him, she was wary of him.^[109] She explained her state of mind as, having witnessed a certain pattern of behaviour, “it would be only human for me to form an opinion … that that might happen to me”.^[110]
61. [61]
    Dr Sheahan had worked at the hospital since in or about 2000. Drs Price and Sheahan had been members of the initial roster group at the hospital. From in or around 2011, Dr Sheahan had limited interactions with Dr Price which tended to involve occasionally seeing each other at the hospital and chatting in the tearoom. Dr Sheahan regarded Dr Price as a skilled surgeon. They were not friends and had something of a strained personal history. Dr Sheahan regarded Dr Price as having “behaved towards [him] unpleasantly, on a number of occasions over a number of years”.^[111] He had a strong preference that Dr Price should not treat his patients because he regarded Dr Price as a difficult and manipulative person.^[112]
62. [62]
    Prior to October 2020, Dr Price had very little to do with Dr Kho and had seen her on limited occasions during hospital meetings.^[113] Dr Price and Dr Kho had different operating days and did not tend to have personal interactions at the hospital.^[114] They would see each other at hospital meetings^[115] but rarely spoke socially.^[116] Dr Kho had never treated any of Dr Price’s patients and he had never treated any of her patients.^[117] Dr Price had never asked Dr Kho to cover his patients.^[118] Dr Price considered that Dr Kho “[didn’t] have any issue with [him]”.^[119] Dr Kho regarded Dr Price as a good surgeon but had observed him to engage in what she considered to be “belittling and undermining behaviour” at meetings.^[120] She gave evidence in chief that whilst she had always been willing to cover Dr Price’s patients if asked, she had “never wanted, Dr Price to treat any of [her] patients”.^[121] Her evidence in this regard was not challenged in cross-examination.
63. [63]
    Despite having been in a roster with Dr Kerridge for some years, Dr Price had no social interactions with her.^[122] Their communications were essentially limited to text messages for patient handovers.^[123] Whilst Dr Kerridge formed part of group A, she rarely, if ever, spoke to Dr Price.^[124] They were not friends.^[125]Their relationship was affected by “constant animosity”.^[126] Dr Kerridge described group A as a “non-harmonious” group.^[127] I accept her description as factually accurate. I find that, from in or about July 2015, there existed lingering antipathy between Drs Price and Kerridge which was largely attributable to the circumstances in which Dr Kerridge had been required by Dr Price to leave his rooms. Dr Price had hand delivered a lawyer’s letter to Dr Kerridge,^[128] which advised her that her licence to occupy one of Dr Price’s rooms had been terminated and she was required to vacate possession within two months. Dr Kerridge then engaged a lawyer to provide her with advice.^[129] Dr Kerridge described these events as “a low-point of my life”.^[130] At the time, she had been qualified as an obstetrician for approximately one year and, as a result of being required to leave Dr Price’s rooms, had no staff, no equipment and no premises from which to conduct her practice.^[131] 
64. [64]
    Dr Bajra had no social relationship with Dr Price and dealt with him on a limited basis in their professional dealings.^[132] They did not provide cover for each other’s patients.^[133] Drs Price and Bajra would on occasion have operating lists at the same time and Dr Bajra interpreted Dr Price’s conduct towards her on those occasions as being rude.^[134]
65. [65]
    Dr Price had assisted Dr Bajra in relation to complications which occurred during surgical procedures undertaken by Dr Bajra on 21 November 2012 and 18 August 2013. On 22 August 2013, Dr Price sent an email to Ms Whittaker in which he noted that he had “politely suggested” to Dr Bajra that “requiring the regular assistance of other consultants is inconsistent with a scope of practice listing Complex Pelvic Surgery and High Risk Obstetrics”.^[135] The email also noted that Dr Price had suggested to Dr Bajra that she might review the scope of her practice “in order to safeguard themselves [sic] and patients”.^[136] Dr Price sent a further email to Ms Whittaker on 22 August 2013.
66. [66]
    On 15 November 2016, Dr Price sent an email to Mr Murphy, the CEO of the hospital in which he relevantly expressed concerns about Dr Bajra’s level of experience, training and competence and expressed his belief that Dr Bajra required supervision for certain types of procedures. By an email sent on 16 November 2016, Mr Murphy responded to Dr Price to the effect that Dr Bajra had undertaken and successfully completed further training and undertook relevant annual skills courses. Mr Murphy confirmed in his email that Dr Bajra was deemed competent and adequately experienced to undertake the subject procedures and enjoyed the confidence of the hospital.
67. [67]
    Dr Price apparently became concerned that his emails had been shown to Dr Bajra. There was a meeting between Dr Price, Mr Murphy and Ms Whittaker in which Dr Price expressed concerns that his emails had been confidential and sent in his capacity as an obstetric representative on the hospital’s Medical Advisory Committee. Dr Price expressed the view that it had been inappropriate to mention his name, or any details of his emails, to Dr Bajra.
68. [68]
    Dr Price sent a further email to Mr Murphy and Ms Whittaker on 22 November 2016 which relevantly stated in relation to Dr Bajra:

“ … The additional personal opinions I hold in regards her surgical ability are, in fact, a separate issue and were not relevant to whether she has undergone additional training, as recommended in the college guidelines, in the intervening period. … Unfortunately, as a result of your decision to reveal my email to [Dr Bajra], Credentialling and Scope of Practice is now no longer the only issue. I believe I am now at risk of accusations of Bullying, Sexism and perhaps even Racism or Restraint of Trade from [Dr Bajra], perhaps encouraged by others. I have already noticed an increase in ‘car park conversations’ amongst colleagues and I believe this incident will, at the very least, be used to pressure the executive to have me removed from the [Medical Advisory Committee] in the new year. I am sure [Dr Bajra] will be reluctant to ever ask for my assistance again”.^[137]

69. [69]
    I infer that the “additional personal opinions I hold in regards her surgical ability”, referenced in the email, were opinions held by Dr Price and meant that he did not have sufficient regard for Dr Bajra’s professional expertise to allow her to cover for him and look after his patients.^[138] Dr Price appears to have maintained those opinions over a significant period of time. By a letter dated 3 March 2021 to the Medical Advisory Committee, Dr Price relevantly said:

“I am aware that Dr Bajra has undergone some retraining/supervised surgery since 2016. Despite this additional training, her patients continue to suffer major injuries with an apparent frequency more than the other Gynaecologists at this hospital.

I will remind you of my emails of 22^nd August 2013 and 15^th November 2016 in which I outlined my concerns regarding Dr Bajra’s surgical competency. I wrote ‘I am concerned the hospital is now facilitating this clinician in performing surgery that is outside their demonstrated skill set, and the hospital is now placing patients at potential risk.’ These concerns remain.”^[139]

The events of 2020 and 2021

An amalgamation proposal in 2020

70. [70]
    In about the first half of 2020, following the retirement of Dr Hock, the members of group A discussed the future of their roster. Prior to Dr Hock’s retirement, group A had been comprised of four members which had meant that the members would typically work “one weekend in four”.^[140] Following Dr Hock’s retirement, a one weekend in three rotation ensued and, whenever a member was on holidays, the rotation reduced to one weekend in two.^[141] At or around this time, the members of group A knew that group B was reducing in size due to the impending retirement of Dr Watson.^[142] In their discussions, the members of group A resolved to approach the members of group B proposing an amalgamation of the two rosters.^[143]
71. [71]
    During a telephone call in or about April 2020, Dr Price said to Dr Kretowicz words to the effect that as group A was shrinking, groups A and B should consider the possibility of amalgamating. Dr Price asked Dr Kretowicz to speak to Dr Sheahan “about it”.^[144] Dr Kretowicz indicated that she would raise the matter with Dr Sheahan, which she did.^[145] Dr Sheahan expressed some reluctance to amalgamate, and Dr Kretowicz did not get back to Dr Price.^[146]
72. [72]
    During a further telephone conversation in or about June 2020, Dr Price mentioned to Dr Kreotwicz that he was looking to recruit a fourth person to group A.^[147] At that time, Dr Kretowicz indicated to Dr Price that she would stick with group B as the larger group was working well for her.^[148] Dr Kretowicz suggested that Dr Price contact Dr Stamatiou as a potential group member.^[149]
73. [73]
    On 14 October 2020, Dr Price sent Dr Kretowicz a text which read:

“Any word on amalgamation [sic]. Kerridge was apparently going to write a letter but neither JF^[150] or I have heard anything from her”.

74. [74]
    This text message is consistent with Drs Price and Kerridge having rarely spoken to each other, their communications being essentially limited to information about patient handovers.
75. [75]
    Eventually, Dr Kerridge drafted a letter which she provided to Dr Friebe, for him to show to Dr Price. The members of group A signed that letter which was dated 18 October 2020 and addressed to Dr Sheahan (“the 18 October letter”). 
76. [76]
    The 18 October letter was in the following terms:^[151]

“Dear Terry,

As a crazy 2020 draws to a close we are writing as your obstetric colleagues and fellow Ramsay specialists to ask you to consider a request that we believe has been a long time coming and is in the best interests of us all. If COVID-19 has taught us anything, surely it is that together we are better.

It is with regards to this that we appeal to you now. We would like to propose that as a new year begins in 2021, so may a new obstetric on-call team arrangement. It would be our preference that we join our two teams together in a collaborative arrangement to become one team, with view to sharing weeknight and weekend oncall. This would not necessitate any change to our individual clinical preferences or practices, nor would it alter our individual billing systems, patient care, schedule of visits, surgical lists or practice management. It would simply mean we work together as one team of professionals on the North West after hours obstetric oncall roster.

We believe this would facilitate a transition to a more cohesive, safe and functional obstetric service for our patients, and for Ramsay as an organisation, with the added bonus of an opportunity for improved work/life balance for us as individuals. Additionally, this system provides us all with a bit of padding in the roster should any personal family or health emergencies arise. Surely, this is essential. There will be more flexibility to provide safe and adequate cover and in addition to short term benefits for us all, this collegial support will surely promote improved job satisfaction and longevity in our chosen, yet sometimes arduous and unpredictable, careers.

We understand the finer details of this system will need to be more fully determined, however, at this stage we would simply appreciate your response to this via email so that we can forward plan. Please reply to: [email protected] simply with your agreement or reservations, regarding this plan to amalgamate our two teams on the after hours roster. We sincerely hope that you will see the merits of this plan and move forward with us to make 2021 a whole lot better than the year that has been.

Kind regards

Dr Kate Kerridge, Dr Jamie Friebe, Dr Christopher Price”.

77. [77]
    Dr Sheahan caused a letter dated 20 October 2020 (“the 20 October letter”) to be sent to the members of group A as follows:^[152]

“Dear Dr Kerridge, Dr Friebe and Dr Price.

Many thanks for your suggestion of a group amalgamation. We have a very harmonious after-hours group whose numbers are well suited to our current workload. The current model has been modified over the last few years to one that suits us all very well.

At present we are not planning additions to our current group numbers but would plan to review this next year and hopefully we would be able to accommodate extra places in our after-hours roster. In the meantime, we are very happy to provide cover for your group where possible in the event of a need during emergencies or any other events which your structure may have difficulty in accommodating. This is in an effort to harmonise and improve the working atmosphere in the Obstetrics and Gynaecology Department at [the hospital].

With all the best wishes.

Dr Nam Bajra, Dr EE Min Kho, Dr Eva Kretowicz, Dr Terry Sheahan, Dr Bob Watson”.

78. [78]
    Dr Sheahan prepared the 20 October letter. He recalled that he was involved in conversations^[153] or “corridor discussions” with other members of group B about how group B should respond to the 18 October letter. There was however no meeting, as such, of group B to discuss the proposed content of the 20 October letter.

79. [79]
    Dr Kretowicz recalled being told by Dr Sheahan that the other members of group B had decided not to amalgamate and that she had said to him that she was “fine with that”.^[154] The contemporaneous evidence suggests that this conversation occurred after the 20 October letter had been sent. In that regard, the following text messages were exchanged between Drs Price and Kretowicz on 20 October 2020:

    1. at 4.37pm, Dr Price to Dr Kretowicz, “That was a very fast very flat … No”;
    2. at 4.49 pm, Dr Kretowicz to Dr Price, “Who from?”;
    3. at 4.49 pm, Dr Price to Dr Kretowicz, “Apparently all of you”;
    4. at 4.52 pm, Dr Kretowicz to Dr Price, “Ok. I thought we were yet to discuss the proposal. We were meeting later in the week. I might have to wait till then to see what happened”;
    5. at 4.52 pm, Dr Price to Dr Kretowicz, “When I get home I will send you your response”;
    6. At 4.53 pm, Dr Kretowicz to Dr Price, “Ok thank you. Happy to talk if you want to talk”;
    7. At 5.35 pm Dr Price sent a screenshot of the 20 October letter to Dr Kretowicz.

80. [80]
    The terms of the 20 October letter did not suggest that group B had reached any final decision, or reached a consensus, about the prospect of future amalgamation. Rather, the 20 October letter was directed to current circumstances, which included the continuing involvement of Dr Watson in group B. In cross-examination, it was positively put to Dr Sheahan, and he accepted, that the 20 October letter reflected the collective position of the members of group B.^[155] In cross-examination, it was not suggested to Dr Sheahan, or to Drs Bajra, Kho or Kretowicz, that any aspect of the 20 October letter was contrived, untrue or disingenuous.
81. [81]
    The members of group B had arranged to meet on Thursday, 22 October 2020 at 5.30pm in Dr Watson’s office to further discuss the prospect of amalgamation (“the 22 October meeting”).^[156] By then, the following text messages had been exchanged amongst the members of group B on 21 October 2020:

    1. at 4.29 pm, Dr Watson to the other members of group B, “Hi all. If you had to choose whether to merge or not- would you chose [sic] Merge. Please text YES. If you would prefer not to merge - Please text NO. If there is a clear opinion against merging then we won’t have to have a meeting tomorrow”;
    2. at 4.33 pm, Dr Kretowicz to the other members of group B, “Can we still talk about this ? I think my view point might be different because I have had historically less interactions with the other side and therefore less bad experience. Considering that I will go with the flow Eva”;
    3. at 4.34 pm, Dr Sheahan to the other members of group B, “We need to discuss this”.
82. [82]
    There was no contemporaneous note made of the discussion at the 22 October meeting. Dr Sheahan had no real recollection of the 22 October meeting.^[157] Dr Bajra recalled the 22 October meeting being “very quick”,^[158] “reasonably hurried”^[159] and as lasting “only…five minutes”.^[160] She gave confused evidence about its timing, as if it had preceded the sending of the 20 October letter.^[161] Dr Bajra ultimately conceded that her recollection of timing may have been incorrect.^[162] She recalled discussion to the effect that group A was not collegiate and group B was a “very happy” group.^[163] Dr Kretowicz recalled a short meeting in which the subjects discussed were amalgamation and providing ad hoc cover to the members of group A.^[164] Under cross-examination, she recalled that there was discussion about all individual members of group A and “how we felt about them being on the roster”.^[165] Dr Kretowicz recalled that group B resolved not to amalgamate but that she, Dr Sheahan and Dr Kho agreed that they would offer to provide ad hoc cover to the members of group A.^[166] Dr Kho recalled a meeting of around twenty minutes during which there was a discussion to the effect that the existing size of group B provided the members with comfortable cover. She could not recall the timing of the meeting.^[167] She recalled discussion about concerns held by some members of group B in relation to Dr Price’s behaviour towards them.^[168] She recalled discussion to the effect that Dr Bajra had fallen out with Dr Price, Dr Sheahan had received a letter of complaint from Dr Price and Dr Watson had a bad history with Dr Price.^[169] She could not recall any complaints or concerns being expressed about the behaviour of Drs Kerridge or Friebe.^[170] Dr Kho recalled thinking at the time that although she had not had much to do with Dr Price, “… the concerns the other members had about Dr Price were fair enough and I did not really want Dr Price treating my patients”.^[171] Dr Kho recalled that “the main reason for rejecting the [amalgamation] proposal was that no one wanted Dr Price to treat their patients (but my view was not as strong as some others)”.^[172]
83. [83]
    Having considered the evidence outlined at paragraphs 70 to 82 above, I make the following findings:

    1. as at the time of the 20 October letter, group B was properly described as a very harmonious group;
    2. as at the time of the 20 October letter, the existing size of the membership of group B was well suited to the respective workloads of the members of group B;
    3. at the time of the 20 October letter, the members of group B had not reached a consensus about whether they should, in the future, amalgamate with group A;
    4. a meeting of group B was convened on 22 October 2021, at which the prospect of amalgamation was discussed;
    5. the 22 October meeting was relatively short and informal;
    6. the discussions at the 22 October meeting confirmed that the existing size of group B provided comfortable cover for its members;
    7. the discussions at the 22 October meeting included discussion about how the members of group B regarded the members of group A;
    8. in those discussions, some members of group B (namely Drs Bajra, Sheahan and Watson) expressed strong opposition to Dr Price treating their patients and Dr Kho expressed a preference that Dr Price did not treat her patients;
    9. the outcome of the 22 October meeting was that the amalgamation proposal was not supported by group B but at least Drs Sheahan and Kretowicz expressed a preparedness to provide one way cover to the members of group A.
84. [84]
    Dr Price recalled having had a conversation with Dr Friebe in “mid to late October 2020” in which he discussed with Dr Friebe “the possibility of further negotiations with the members of group B about a possible amalgamation”.^[173] Dr Price recalled that Dr Friebe asked him to “refrain from taking an active role” in those negotiations “due to the history of animosity between some members of group B and me”.^[174] Dr Friebe recalled that he had been disappointed to receive, but had “accepted” the 20 October letter.^[175] He said that he did not have any other conversation with Dr Price, Dr Kerridge or the other defendants about rosters for a number of months.^[176] On this discrete issue, I prefer Dr Friebe’s evidence and reject Dr Price’s evidence about a conversation with Dr Friebe in mid to late October 2020. I find it unlikely that, after receiving the 20 October letter, Drs Price and Friebe had any discussion about “the possibility of future negotiations”. The 20 October letter had made it clear that the members of group B regarded their current roster as being one that “suits us all very well”. The 20 October letter had also made it clear that group B would review the position in the following year when (after the retirement of Dr Watson) it might be possible to accommodate extra places in their roster. The 20 October letter had also made it clear that the members of group B were offering to provide cover in respect of any “events which your structure may have difficulty in accommodating”. Dr Friebe had accepted the position as communicated by the 20 October letter. Dr Price, from his text message to Dr Kretowicz sent on 20 October 2020, apparently regarded the 20 October 2020 letter as “a very fast, very flat … no”.

One way cover provided to group A in late 2020 and early 2021

85. [85]
    Shortly after the 22 October meeting, Dr Sheahan approached Dr Friebe in the corridors of the hospital and told him that Drs Sheahan and Kretowicz were prepared to offer to provide one way, weekend cover to the members of group A.^[177] Dr Kretowicz had no direct involvement in the making of the offer.^[178] Dr Friebe recalled that the offer “came out of the blue”^[179] and involved no reciprocation from group A.^[180]  The provision of this one way cover was regarded by Dr Friebe as “very easy and informal”^[181] and “a very convenient arrangement.”^[182] Dr Friebe described the effect of that cover as akin to being in a “one in five roster”.^[183] Drs Sheahan and Kretowicz provided one way weekend cover to group A from around Christmas 2020 until June 2021.^[184] Dr Kretowicz covered group A during Christmas^[185] and Dr Sheahan covered group A during Easter.^[186]
86. [86]
    In March 2021, Dr Sheahan agreed to provide one way cover to group B during the Labour Day long weekend. His agreement to provide this cover is evidenced by the following text exchange between Drs Friebe and Sheahan:^[187]

    1. On 10 March at 9.27 am, Dr Friebe, “Good morning Terry. I am cobbling together a roster for Kate Chris and I for May-August at the moment. I see you are on for the labour day long weekend at the beginning of May. It looks like you’re doing the Monday too? If so are you happy to cover us for the 4 days also?? I appreciate it’s a big ask, if it’s a bit much that’s fine, I’ll roster one of us to do the Monday holiday. Let me know? Thanks mate, Jamie”;
    2. On 11 March at 7.30 am, Dr Sheahan, “Hi Jamie No problem I can do until 6 pm Monday night Cheers Terry”.
87. [87]
    Relying upon the evidence outlined at paragraphs 85 and 86 above, I find that from in or about December 2020, Drs Sheahan and Kretowicz provided one way weekend cover and one way cover over certain public holidays to group A and the provision of that cover was both convenient and significantly beneficial for the members of group A.

Drs Friebe and Kerridge join group B

88. [88]
    In March 2021, Dr Friebe was advised that new rooms were available for rent at the hospital and, on 1 April 2021, he moved into those rooms. By this time, Dr Watson had retired from group B.
89. [89]
    During the morning of Saturday, 10 April 2021, Dr Bajra and Dr Kerridge were on-call for their respective rosters at the hospital. The pair had a discussion. Dr Bajra’s recollection of the discussion was limited to her having made a “very short, friendly comment” to the effect that she was happy to help out Dr Friebe and Kerridge if they needed help.^[188] Dr Kerridge recalled that the pair talked about how much they disliked performing ward rounds and lamented that if they were part of a larger group they would not be “wrecking [their] weekends”.^[189] Dr Kerridge recalled that Dr Bajra said to Dr Kerridge words to the effect that group B would like to work with Drs Kerridge and Friebe but she did not think that anyone would want to be on a roster with Dr Price.^[190]
90. [90]
    Later on 10 April 2021, Drs Kerridge and Friebe exchanged the following texts:

    1. from Dr Kerridge at 13.22, “I just spoke to Nam,^[191] who is oncall for the other group this weekend. She said the whole lot of the other group want to join with you and me, but absolutely none of them will allow CP^[192] to see their patients (for obvious reasons – ie he’s a malicious asshole). Not sure where to from here, but I assume Terry^[193] will be chatting to you about this soon. No love lost between CP and I if this were to happen – a 1:5 and nothing to do with him ever … sounds like a win win to me”;
    2. from Dr Friebe at 14.18, “Not surprised about that. I totally agree with your sentiments. I’ll wait and see what Terry comes up with.…”.
91. [91]
    I prefer Dr Kerridge’s evidence as to the substance of the discussion between Drs Bajra and Kerridge at the hospital on 10 April 2021. Her text message sent later that day is more consistent with some discussion having occurred between Drs Bajra and Kerridge as to whether Dr Price would be accepted on to a roster with the members of group B. The text exchange between Drs Kerridge and Friebe also supports a finding, which I make, that as of 10 April 2021 Drs Friebe and Kerridge regarded Dr Price as a malicious colleague.
92. [92]
    In early to mid-April 2021, Dr Friebe regarded Dr Sheahan as something of a spokesperson for group B.^[194] At around this time, Drs Friebe and Sheahan had several short, informal discussions about the prospect of Dr Friebe joining group B.^[195] Dr Sheahan described those discussions as “corridor consults”.^[196] Under cross-examination, Dr Sheahan explained that as a result of those discussions, he understood that “they were, again, wanting to join us”.^[197] Dr Sheahan’s reference to “they” was apparently to the members of group A. Dr Sheahan said that he “mentioned this” to Drs Kretowicz, Kho and Bajra and it became clear to him that Dr Bajra would not be happy working with Dr Price.^[198]
93. [93]
    As to the matter being “mentioned” by Dr Sheahan:

    1. Dr Bajra gave evidence to this effect:^[199]

“I have a vague memory from around that time … of me, Dr Sheahan, Dr Kho and Dr Kretowicz speaking about whether Dr Friebe or Dr Kerridge should join us. The effect was that the questions were separate, that is ‘what about Jamie?’ What about Kate?’ I am not sure whether this was a discussion between all four of us or a series of separate conversations. There was no mention of Dr Price at all. I must have said that I agreed because Drs Friebe and Kerridge later joined our group, but I cannot remember the words used”.

2. Dr Kretowicz recalled that at around this time she was not consulted by, or involved in any discussion with, any member of group B in relation to the changes in the membership of group B;^[200]
3. Dr Kho recalled that Dr Bajra had telephoned her in April 2021 and told her that “Dr Friebe and Kerridge were joining our group” and “Dr Price was not being invited to join”.^[201] Dr Kho gave this evidence:^[202]

“[Dr Bajra] did not say why Dr Price was not being invited, but that was ‘understood’ in the sense that it was obvious to me that he was not being invited to join our group because I thought he was incapable of being a supportive colleague. Dr Bajra did not need to say that to me out loud”.

94. [94]
    At this time, Dr Sheahan understood that group B “sort of had a policy that everyone’s got to be in agreement before a new member joins up”.^[203] In cross examination, Dr Kho gave evidence of an ”unspoken agreement”^[204] that any decision about whether someone was to be invited to join group B was a decision that had to be supported by all members of the group.^[205] She explained the rationale for that approach to decision making as follows:^[206]

“… we have to interact with them for handovers and things, and we have to be comfortable working with them. So if any of our group are not comfortable working with that particular doctor, then it doesn’t work to be included in the roster”.

95. [95]
    In terms of the evidence outlined at paragraphs 92 to 94, I have placed limited weight upon the evidence of Dr Bajra, which was vague and speculative. Dr Sheahan’s evidence in chief did not deal with any consultation or meeting with his group B colleagues in or about April 2021 to discuss the prospect of any of Drs Price, Friebe and/or Kerridge joining group B. His evidence under cross-examination on this matter was brief.  There is no reason to doubt the clear evidence of Drs Kho and Kretowicz given by way of evidence in chief and in respect of which they were not cross-examined.
96. [96]
    I find that in early to mid-April 2021, Drs Friebe and Sheahan had several informal discussions regarding the prospect of the two groups amalgamating. I find that the catalyst for those informal discussions was the interaction between Drs Bajra and Kerridge on the morning of Saturday, 10 April 2021 in which Drs Bajra and Kerridge had expressed a mutual desire to be part of a larger group. I find that in the initial informal discussions between Drs Friebe and Sheahan, Dr Friebe proposed amalgamation of the two rosters. I find that to the extent that any real discussions then ensued amongst the members of group B as to whether group A, or any of its members, should join with group B, those discussions were limited to Drs Sheahan and Bajra. As a result of those discussions, Dr Sheahan confirmed what he effectively already knew, namely that Dr Bajra was not prepared to have Dr Price join their roster group but was not opposed to Drs Friebe and Kerridge. From Dr Sheahan’s perspective, Dr Bajra’s opposition to Dr Price was a significant consideration. Dr Sheahan’s state of mind was that Dr Price would not be invited to join group B unless all of its members were content for Dr Price to be invited. Dr Sheahan left it to Dr Bajra to raise with Dr Kho whether Dr Kho was happy for Drs Friebe and Kerridge to join the group. Dr Kho was told by Dr Bajra in terms akin to a fait accompli that Drs Friebe and Kerridge would be joining group B. Dr Kretowicz was not consulted at this time by Dr Sheahan, or any other member of group B, as to whether group A or any of its members should join with group B. The matter was not raised with Dr Kretowicz, as she had previously expressed the position that she would “go with the flow” and, in any event, at that time, was known by Dr Sheahan to be providing regular one way cover to group A.
97. [97]
    On 13 April 2021, Drs Friebe and Sheahan had a conversation. Dr Sheahan made a file note of the conversation as he had a practice of making a file note of important conversations which he considered could have later consequences.^[207] At the time of the conversation he expected that Dr Price would not be happy if Dr Friebe left group A and he considered that Dr Price had a long history of conflict with other obstetricians.^[208] Dr Sheahan’s file note indicates that the conversation occurred on the phone. Dr Friebe recalled that the conversation occurred during a meeting at Dr Sheahan’s room. As to that specific difference, I prefer the evidence constituted by the file note.
98. [98]
    The file note taken by Dr Sheahan relevantly reads as follows:

“D/W Dr Friebe (Phone)

We are happy to do an A/H roster with Jamie & Kate ie He and Kate are happy to join us

Co-operative group. No criticising one another’s management based on mutual respect and support.

Maybe [code of] conduct

Do a trial for six months or so

Jaime to do midweek rosters

TS to weekend public holiday rosters

Grandfathering for doctors who cease obstetrics just do gynaecology

Jaime will talk to Kate

Trial 6 months.”

99. [99]
    Dr Sheahan accepted in cross-examination that during the conversation he advised Dr Friebe that Drs Friebe and Kerridge were invited to join group B but Dr Price would not be invited.^[209] Dr Sheahan accepted that he would have said something to the effect that it was not possible to have a cohesive group with Dr Price.^[210] Dr Sheahan recalled that he said words to the effect that Dr Price was “a difficult character”.^[211] He gave evidence in cross-examination that he was “very careful” not to say to Dr Friebe that he, Dr Sheahan, personally did not want Dr Price to join group B. He was apparently concerned that Dr Price would “target” him.^[212] Dr Sheahan appears to have been particularly concerned about the prospect of being drawn into personal conflict with Dr Price.
100. [100]
     Dr Friebe recalled that, during the conversation:^[213]

“Dr Sheahan said that they were going to invite me and Dr Kerridge to join their roster but were not going to invite Dr Price. He said there were a number of people who did not feel comfortable working with Dr Price and Dr Sheahan expected Dr Price could make his own group with Dr Hyytinen and Dr Stamatiou since they worked on their own”.

101. [101]
     Dr Friebe recalled that he asked Dr Sheahan whether he was sure that Dr Price was not to be invited and said words to the effect that Dr Price would not “like or accept this”.^[214] According to Dr Friebe, Dr Sheahan responded by saying words to the following effect:^[215]

“We need to have a cohesive group and unfortunately that can’t happen with Chris.”

102. [102]
     Dr Friebe recalled saying to Dr Sheahan words to the effect:^[216]

“I am going to act in my own interests here. You deal with Kate as a separate individual to me. I will not influence her at all.”

103. [103]
     Following his 13 April conversation with Dr Sheahan, Dr Friebe discussed the matter with his family. His daughters were 13 and 10 at the time. He discussed with his family, the prospect of being in a one in six roster and having more time to be at home and on holidays. His family preferred for him to move to a larger roster. One of Dr Friebe’s daughters suffered from a recently diagnosed chronic medical condition. Dr Friebe also had a medical condition which could be more easily managed on a larger roster. After discussing the matter with his family, Dr Friebe decided to leave group A.
104. [104]
     Dr Friebe gave the following evidence in chief:^[217]

“… I rang Dr Kerridge to tell her I was going to join the other group and I was going to meet with Dr Price. I did not ask her what she was going to do, and she did not tell me, but I thought it was obvious she would then change groups because I knew how Dr Kerridge thought about Dr Price and Dr Sheahan had told me he was approaching Dr Kerridge as well”.

105. [105]
     The evidence was unclear as to when and how Dr Kerridge became aware that she was being invited to join the new group. Dr Kerridge recalled “Dr Friebe said to me that Dr Sheahan had asked us to join their group, or perhaps Dr Sheahan asked me directly.”^[218] Dr Sheahan recalled “I believe I spoke to Dr Kerridge about joining our group on one occasion, but cannot remember when that discussion was”.^[219] Having considered the evidence, it would appear to be more likely, and I find, that Dr Friebe advised Dr Kerridge of the offer to join the new group. In that regard, Dr Sheahan’s file note of the 13 April 2021 conversation notes “Jamie will talk to Kate”.
106. [106]
     On the morning of 15 April 2021, Dr Friebe met with Dr Bajra in her rooms. He had arranged the meeting because he wanted to discuss a letter of complaint concerning Dr Bajra dated 25 February 2021 which he had sent to the hospitals’ Medical Advisory Committee.^[220] That letter had referenced “[t]he frequency and severity of complications experienced by patients who have surgery under Dr Bajra”, which appeared to be “well beyond what would be considered reasonable and acceptable for a competent Obstetrician and Gynaecologist”.^[221] The purpose of this meeting was to enable Dr Friebe to “clear the air” with Dr Bajra.^[222] Dr Friebe recalled that Dr Bajra explained to him “that those episodes had been dealt with … and … she was comfortable and she was confident moving forward with her practice”.^[223] He recalled that during that conversation Dr Bajra let him know how badly Dr Price had treated her and why she did not want to be on a roster with him.^[224]
107. [107]
     Later that morning the following texts were exchanged between Drs Friebe and Kerridge:

     1. at 8.43am Dr Friebe “Spoke with NB.^[225] Can you give me a call when free please?”;
     2. at 8.47 am, Dr Kerridge, “No worries. Probably after 3pm today if that’s ok. In one word … was your interaction good or bad?”;
     3. at 8.52 am, Dr Friebe “Good. She was very gracious. I left feeling quite sorry for her actually and some of the mental anguish CP^[226] has put her through. I’ll try you after 3”;
     4. at 9.07 am, Dr Kerridge, “That’s great. This might be one of the best things we do …”.
108. [108]
     Later on 15 April 2021, Dr Friebe had a conversation with Dr Sheahan. Dr Sheahan again took a file note of the conversation which relevantly reads as follows:

“D/W Dr Friebe.

He phoned me.

He and Kate^[227] are happy to join.

He will speak to Dr Price and arrange that he and Kate can cover CP until September

He wants the roster of six to start in September.

He is aware that Dr Hyytinen and Dr Stamatiou could help CP with cover and other doctors in our roster group could help him with cover.”

109. [109]
     Having regard to the content of Dr Sheahan’s 15 April 2021 file note, it seems unlikely that during their conversation on 13 April 2021, Dr Sheahan said to Dr Friebe words to the effect that Dr Sheahan expected that Dr Price could make his own group with Dr Hyytinen and Dr Stamatiou. Dr Sheahan refuted the suggestion that he had made this statement on 13 April 2021.^[228] The 15 April 2021 file note suggests that Dr Friebe raised with Dr Sheahan the prospect that Dr Hyytinen and Dr Stamatiou could help Dr Price with cover.
110. [110]
     At around midday on 15 April 2021, Dr Friebe went to see Dr Price to inform him that he would be joining group B. Dr Price recalled Dr Friebe having informed him that he had accepted an invitation to join group B and that he “couldn’t do a one in two”.^[229] Dr Friebe stated that he would continue to honour the existing group A roster arrangements until the end of August 2021.^[230] Dr Friebe’s recollection of what was said was not materially different.^[231] Dr Friebe recalled Dr Price asking him “ … what’s going to happen with me?” and Dr Friebe having said that Dr Price would need to speak to the group B members. Dr Friebe said in cross-examination that, “I wasn’t there to advocate or speak for anybody else. I was there to speak on my own terms”.^[232]
111. [111]
     Following the meeting, Drs Friebe and Kerridge exchanged the following texts:^[233]

     1. at 12.37 pm, Dr Friebe, “It’s done. Over to you”;
     2. at 12.39 pm, Dr Kerridge, “Copy”;
     3. at 12.44 pm, Dr Kerridge, “Email launched”;
     4. at 12.45 pm, Dr Friebe, “I’d let Terry know you are in too, so it’s all kosher”;
     5. at 12.50 pm, Dr Kerridge, “Thanks. Better make it official”;
     6. at 12.53 pm, Dr Kerridge, “Did he say anything to you? Or just ok”;
     7. at 12.54 pm, Dr Friebe, “Tried to pump me for info a bit, he got nothing”;
     8. at 12.54 pm, Dr Kerridge “So, we wait”;
     9. at 13.00, Dr Friebe “Yeah, we wait, the bullshit is still coming”.
112. [112]
     The “email launched” was a reference to Dr Kerridge’s email to Dr Price sent at 12:44pm,^[234] in the following terms:

“Dear Chris,

Further to our collaborative correspondence regarding the possible amalgamation of obstetric oncall teams (entered into late 2020), I am writing to advise you that I have now been officially invited to join the oncall roster with the other obstetric team at North West Private Hospital. I have accepted their offer.

Nevertheless, I intend to honour our current obstetric oncall roster/arrangements until the end of our published roster, in August 2021. New arrangements will accordingly be in place as of September 2021.

Kind regards,

Dr Kate Kerridge”.

113. [113]
     Dr Kerridge said that her use of the language “email launched” reflected what she was feeling at the time. She relevantly gave this evidence:^[235]

“… personally, it felt like ‘woah’. So this is not, ‘Sent. It’s launched’. This is at the end of a long battle. Personally, … this is actually a battle and this is how it’s felt and this has been a case of survival for me in the last seven years that I have remained with my head down and kept quiet on a roster with [Dr Price], terrified of him all this time. So to write this email was a big thing for me, because … I was scared of him.”

114. [114]
     Shortly after during the afternoon of 15 April 2021, the following texts were exchanged between Drs Price and Friebe:^[236]

     1. at 2.08pm, Dr Price, “So I can get my head around all this, when does this take effect, when does the existing roster end”;
     2. Dr Friebe, “The final roster which I have sent out will end on 31/08/2021 … After that my involvement at least will cease”;
     3. Dr Price, “With the roster making?”;
     4. Dr Friebe, “With the roster and all my on call commitments to our group of 3”.
115. [115]
     Later at about 5:10pm on 15 April 2021, Dr Price phoned Dr Sheahan. Again, Dr Sheahan took a file note of the conversation which reads as follows:^[237]

116. [116]
     Dr Price made no mention of this conversation in his evidence. Consistent with his concern about not being drawn into personal conflict with Dr Price, Dr Sheahan recalled that during this conversation he was conscious not to say anything to Dr Price that Dr Price “could distort to use against me”.^[238] Dr Sheahan said that at the time of this conversation he believed that if Dr Price wanted one way cover from anyone in the new group, he could ask for it. Dr Sheahan provided this further explanation:^[239]

“I had already been providing one-way cover to Dr Price’s group for months, so I thought he must have known at least Dr Kretowicz and I were willing to provide one-way cover to him.

I therefore did not think it necessary to explicitly offer him one way cover”.

117. [117]
     At the time of the conversation, Dr Sheahan also believed that Dr Price would be able to obtain after hours cover from Drs Hyytinen or Stamatiou.^[240]
118. [118]
     At around 5:15pm on 15 April 2021, Drs Price and Kretowicz exchanged texts,^[241] and then had a telephone conversation. The text exchanges were as follows:

     1. at 5.15pm, Dr Price, “Ok. So it seems I have been cut loose and decisions about my future have been made but no one wants to speak with me about it. Would you be willing to speak with me so I know why. TS says he is not at liberty to say;
     2. at 6.06pm, Dr Kretowicz, “Hi Chris. I am at the gym so I missed your call. Can I call you back later. Eva”;
     3. at 6.06pm, Dr Price, “Yes pls”;
     4. at 6.06pm, Dr Kretowicz, “About 7”;
     5. at 6.06pm, Dr Price, “Sure”;
     6. at 6.08pm, Dr Kretowicz, “Have a big dilemma. Giant crisis at north west with groups breaking etc. Doesn’t affect me but sticky situation. I need to talk to you. After the gym”;
     7. at 6.10pm, Dr Price, “Indeed”.
119. [119]
     The text from Dr Kretowicz at 6.08pm was meant to be sent to Dr Kretowicz’s daughter who was a lawyer but was mistakenly sent by her to Dr Price.
120. [120]
     As to the conversation which followed the text exchange, Dr Kretowicz provided this recollection:^[242]

“I telephoned Dr Price later that evening. I asked him to fill me in on what was happening. At the time of the call, I still had no idea about any movements within the group other than what I could figure our [sic] from what Dr Price had told me in his text messages above..

Dr Price said to me that he was uninvited and was left out and he asked me to speak to Dr Sheahan and the rest of the group to ask if he could be included in our on call cover group.”

121. [121]
     Dr Price recalled the conversation as follows:^[243]

“I … asked Dr Kretowicz about joining the [new group], and Dr Kretowicz said to me words to the effect of, ‘I don’t know anything about this issue’, ‘I am happy to work with you’, and ‘I just go along with the group’s decisions’”.

122. [122]
     Later that evening, Dr Price sent emails to each of the group B members asking that he be included in the new group. The emails were in the following terms:^[244]

“Dear Colleagues

I spoke with Dr Friebe today and I was advised that he has accepted your invitation to join your on call group, as of the end of August 2021. I understand that Dr Kerridge has also accepted the same invitation. I subsequently contacted Dr Sheahan to ask whether I would be afforded the same invitation. Dr Sheahan stated that “it was not for him to say”.

Having not been privy to discussions regarding amalgamation of our on-call groups, I would like to formally request that I be included in future rosters beyond August 2021.

Kindest regards

Dr Christopher Price”.

123. [123]
     Dr Price recalled that during the night of 15 April 2021, Dr Kho told him in a telephone conversation that she was happy to work with him moving forward.^[245]
124. [124]
     I make the following findings in relation to the events of 13 and 15 April 2021. There was a telephone conversation on 13 April 2021 in which Dr Sheahan advised Dr Friebe that Drs Friebe and Kerridge were invited to join group B. That invitation was expressed on the basis that it was to be a “trial for six months or so” for the purpose of determining whether the new group would be cooperative and able to operate on the basis of mutual respect and support for all its members. During the conversation, Dr Sheahan advised Dr Friebe that Dr Price would not be invited to join the new group. Dr Sheahan, acting as the effective leader and spokesperson for group B, had decided not to invite Dr Price to the new group based on his knowledge that Dr Bajra was opposed to Dr Price joining the new group, his belief that Dr Price was a difficult character and that it would not be possible to have a cohesive group with Dr Price. Dr Friebe accepted the invitation after having discussed the matter with his family and forming the view that, having regard to his own medical condition and his daughter’s chronic medical condition, membership of a larger group would benefit his family life. Dr Friebe advised Dr Kerridge of his decision. Dr Kerridge decided to accept the invitation to join the new group because she had a long standing difficult personal relationship with Dr Price and the prospect of a larger group and not having any reciprocal obligations with Dr Price, suited her personally. On 15 April 2021, Dr Friebe telephoned Dr Sheahan and accepted the invitation to join the new group on behalf of himself and Dr Kerridge. In accepting the invitation, Dr Friebe explained to Dr Sheahan that he and Dr Kerridge would continue to cover Dr Price until September. Dr Friebe also advised Dr Sheahan of his belief that Drs Hyytinen and Stamatiou and some doctors in the new group could help Dr Price with cover going forward. Dr Friebe orally advised Dr Price of his decision when they met in Dr Price’s rooms. Dr Kerridge advised Dr Price of her decision by email. By the evening of 15 April 2021, Dr Price had been separately told by Drs Kretowicz and Kho that they were happy to work with him going forward and, by that, they each meant that they were prepared to provide him with one way cover in the future to support him in the future conduct of his practice.
125. [125]
     Dr Friebe sought to emphasise, in his evidence in chief and under cross-examination, that in his dealings with Dr Sheahan regarding the prospect of joining group B, he acted separately from, and independently of, Dr Kerridge. As I have earlier outlined, he was at pains to emphasise that he said to Dr Sheahan words to the effect “you deal with Kate as a separate individual to me”. He related having informed Dr Kerridge of his decision to join group B in terms that he “did not ask her what she was going to do, and she did not tell me”. Under cross-examination, at various points, he said that he did not recall speaking with Dr Kerridge directly about joining group B.^[246] He said at one point under cross-examination that, at the time of his meeting with Dr Price on 15 April, he had not spoken with Dr Kerridge about whether she had been invited to join group B.^[247] He also said in answer to a question in cross-examination, “I hadn’t spoken with her. Whether she had or she hadn’t, I didn’t know”.^[248] I reject these parts of Dr Friebe’s evidence. I found these parts of his evidence to be self-serving, highly improbable and contradicted by contemporaneous documents. As to that latter matter, Dr Sheahan’s file note of 13 April 2021 noted that “Jamie will talk to Kate”. Dr Sheahan’s file note of 15 April 2021 records Dr Friebe having told Dr Sheahan that “[h]e and Kate are happy to join”. The text exchange between Drs Friebe and Kerridge on 15 April 2021 strongly indicates that Drs Friebe and Kerridge knew how each was proposing to act in relation to Dr Price during the course of that day. Dr Friebe’s text relevantly says at one point, “over to you”. Dr Friebe obviously already knew that Dr Kerridge would be advising Dr Price that she was joining the new group. I accept Dr Price’s evidence that during their meeting on 15 April 2021, Dr Friebe advised him that he “couldn’t do a one in two”. That statement by Dr Friebe reveals the understanding on his part that if he declined the invitation to join the new group, he would be in a two person roster with Dr Price.
126. [126]
     On 16 April 2021 at 8.14am, Dr Friebe sent an email to Dr Sheahan in the following terms:^[249]

“Hi Terry,

I had a thought as to a reply to Dr Price’s request to the group. I would suggest a polite but firm reply, and short and succinct. The more you give Chris to work with the more trouble he will make.

Anyway here is my suggestion.

Dear Chris,

Thank you for your email dated 15/4/2021. The opinions of the group have been canvassed with regards to your request to join the on call group, and we must politely decline your request to join.

Dr Friebe and Dr Kerridge are two of the busiest obstetricians at North West Private Hospital, and admitting them to our group will greatly increase the workload and clinical responsibilities for the solo Consultant on call for the weekend for this new group.

In the interests of patient safety, management of doctor fatigue, and providing high quality clinical care, it is the unanimous decision to leave the size of the group at 6 people.

May we suggest approaching Dr Suvi Hytinnen to look at starting a smaller group on call arrangement with her?

Yours Sincerely

Etc etc.

I think this is a fairly benign reason Terry, but it can’t be argued with. My advice would be to make sure everyone is on the same page with this, and it is to be the party line if you want to use it as the major reason for not joining with Chris too. Chris may try to divide and conquer, and contact people individually to see if everyone feels the same and if we are all saying the same thing, he won’t be able to rebut our reasoning.

Anyway, it’s just a suggestion, don’t mind if you don’t want to use it.

Cheers

Jamie”

127. [127]
     Dr Friebe addressed this email in his evidence in chief as follows:^[250]

“My intention in writing that draft email was (1) to spare Dr Price’s feelings because I felt sorry for him, (2) to help Dr Sheahan because I believed he would struggle with the inevitable conflict and (3) to give a diplomatic answer that would not hurt Dr Price’s feelings and try to smooth the waters.

I knew that the explanation offered in the draft email was not the real reason Dr Price was not being invited to join the larger group. To me it was like telling a child their terrible painting is good. I did not want to say to Dr Price that he was a terrible person and nobody liked him. I thought it would be better to give a clinical justification for him not being invited.

I accept the logic behind my email wasn’t true. In reality, there would be no problem with any of us covering our whole group plus also Dr Price on a one-way arrangement. Even if you are covering seven doctors’ patients including your own, there might not be very much to do. Adding one doctor was not a big deal.”

128. [128]
     Under cross-examination, Dr Friebe provided the further explanation of his email:^[251]

“Dr Price had made it clear to me that Dr Sheahan that didn’t do well with conflict. Dr Sheahan told me at our meeting he would speak with Dr Price, and I was concerned about Dr Sheahan being able to do that in an open and forthright manner. I was also - I was concerned for Dr Price, and I didn’t feel comfortable with any of this, at this stage. And I really just wanted to try and make this as - as nice and as gentle for Dr Price as I could. My understanding was that decisions had been made that didn’t involve me; I’d made my personal decision what I was going to do. And I think I was just - I was just trying to help. I was just trying to keep the peace, which is what I’d been doing for about a year.”

129. [129]
     Dr Friebe accepted under cross-examination that by this email he was suggesting to Dr Sheahan that he should say something to Dr Price that Dr Friebe knew was untrue.^[252] He accepted that in his affidavit he had sought to justify why he was suggesting that something should be written to Dr Price which was effectively dishonest.^[253] The following exchanged then occurred in cross-examination:^[254]

130. [130]
     I reject this evidence from Dr Friebe. I find that following the telephone conversation between Drs Sheahan and Friebe on 13 April 2021, Drs Friebe and Kerridge consulted with each other about the offer to join the new group, kept each other informed about their decision making and how and when they would communicate their decisions to Dr Price. It was perfectly understandable that they would consult with each other, and keep each other informed, about their respective decision making. They were colleagues and friends embarking upon a significant step in their professional relationship. They were aware that Dr Price, their colleague whom they regarded as malicious, would be dismayed by their decisions and they no doubt each felt some trepidation about how he would react when advised of their decisions. Whilst they coordinated their decisions and how they were communicated to Dr Price, that mere coordination, did not amount to collusion, which carries with it a connotation of secretive conduct for a wrongful purpose.
131. [131]
     The email drafted by Dr Friebe was never sent by Dr Sheahan.
132. [132]
     At 10.59am on 16 April 2021, Dr Price emailed Dr Kerridge in reply to her email sent on 15 April 2021 at 12.44pm:^[255]

“I appreciate the notice.

Since it appears I’ll have no cover from Sept 1^st, I may as well ask now if, when you are on for the weekend for everyone, would you consider covering me?”

133. [133]
     I find that Dr Price’s email of 15 April 2021 was a request by him for Dr Kerridge to provide him with one way cover when she was rostered on for weekends with the new group.
134. [134]
     Dr Kerridge then sent a text to Dr Friebe at 11.52am in these terms:^[256]

“Chris emailed me to ask if I would consider covering him on my oncall weekends from September onwards

I was thinking of saying yes??

What do you think?”

135. [135]
     Dr Kerridge recalled having telephoned Dr Friebe shortly after her text to him, and asking him whether she should agree to giving Dr Price one way cover. Her unchallenged recollection of that conversation was as follows:^[257]

“… Dr Friebe responded to me to the effect that he was happy to give Dr Price cover but that what I did was up to me, that I had been through a lot with Dr Price but it was up to me to do what I wanted, and in view of all of the stress Dr Price had caused me, to carefully consider if I wanted to open myself and my family up to ongoing stress”.

136. [136]
     I find that as of 16 April 2021, Dr Kerridge remained open minded as to whether she would provide Dr Price with the requested one way cover after September 2021.
137. [137]
     During the afternoon of 16 April 2021, Dr Price attempted to call Dr Kretowicz. He then sent her a text in these terms:^[258]

“Hi Eva

I rang Min^[259]

She said she had no idea but just goes along with the group

So

That means either u r happy for Nam^[260] and TS^[261] to make the decision for u to ruin my livelihood or u both need to step up

This is unprofessional and simply spiteful

I haven’t slept. I haven’t eaten and I cannot believe anyone would so casually decide to shaft a colleague over - what??

No one has said anything to me

The betrayal is monumental”.

138. [138]
     At 7.35pm on 16 April 2021, Dr Friebe received a text from Dr Price’s wife, Dr Kirsten Price, in the following terms:^[262]

“Just to let you know.

If my husband commits suicide I’m going to hold you fully responsible.”

139. [139]
     Dr Friebe regarded the text as “unfair, distressing and extremely damaging”.^[263] He described the text as a “… crime that had been committed towards [him]”.^[264] Dr Friebe relevantly texted a response, “I don’t deserve threats like that when I am offering to continue my support and weekend cover”.
140. [140]
     At 7.57pm, Dr Friebe sent a text to Dr Kerridge which referenced Dr Kirsten Price’s text and noted “I told you this would get ugly”.^[265]
141. [141]
     Dr Friebe telephoned Dr Sheahan about the text from Dr Price’s wife. Dr Sheahan encouraged Dr Friebe to call Dr Price. Dr Friebe then rang Dr Price but did not receive an answer. Dr Friebe left a voicemail “telling Dr Price what his wife had said, checking whether he was ok and suggesting that he ask for help if he needed it”.^[266]
142. [142]
     At 8.23pm, Dr Kretowicz sent a text to Dr Price in the following terms:^[267]

“Hi Chris. I am very disappointed that the situation has gotten to this stage. I understand how distressed you must feel but at the same time I feel that individual conversations are not likely to be helpful. The messages are likely to be conflicting and inconsistent as there are so many people involved in this process. My suggestion is to have a meeting initially within our group to clarify a few things and from then on move to the next option which would be further discussions possible involving all parties. I M not sure how this will be received by the group I can only try. Eva”.

143. [143]
     Dr Price replied to Dr Kretowicz by text at 8.31pm:

“Ty for trying

Essentially, how we feel about each other personally is irrelevant if the cover is appropriate and the service to patients remains high as we won’t be in labour ward fighting

So long as we communicate and can be civil and professional, it should all be as it is

Yesterday was a big surprise to me as I would never threaten a colleagues livelihood with such casual disregard.

Ty for being the only person to enquire as to my disposition”.

144. [144]
     On 17 April 2021 the following text exchange occurred between Drs Price and Friebe commencing at 7.15am:^[268]

     1. Dr Price, “K^[269] had my ph last night as she was concerned about me I was not aware of her txt to u until this morning Not in the frame of mind to discuss anything this weekend and will prob turn ph off again”;
     2. Dr Friebe, “your mental health is important Chris, and my offer stands if you need to reach out to me or if I can help you then I am here for you any time. Your wife’s text to me last night was unfair, distressing and extremely damaging. Once you are in a better frame of mind and more resilient I would like to speak with you about it and implications moving forward. I have blocked Kirsten’s number also so she can’t send me anything further”;
     3. Dr Price, “The implication that I may be punished in the workplace because of a reactionary txt from my wife doesn’t show much regard for my mental health Jamie. ‘unfair, distressing and extremely damaging’ Sums up where I have been since Thursday but I can tell you the hole dug for me was pretty fucking deep and I don’t want to discuss it with you just yet and not by txt. Pretty sure you are not the victim here. And K apologises unreservedly for the txt”;
     4. Dr Friebe, “There is no implication of punishment from my point of view, that is your perception. I think emotions are a bit too high for anything much at the moment, so I will leave things to cool for a bit”.
145. [145]
     Dr Friebe telephoned Dr Kerridge and discussed with her the nature of the text messages he had received from Dr Price and his wife.^[270] At this point Dr Kerridge formed a view that Dr Price’s behaviour “seemed to be escalating” and she considered that the most prudent course for her involved not responding to his text messages.^[271] In the result, Dr Kerridge did not respond to Dr Price’s email sent on 15 April 2021 which had requested one way cover from her in the future.
146. [146]
     Later during the day, Dr Kretowicz texted to Dr Sheahan a link to an ACCC article titled “Competing fairly in professional services”. Dr Kretowicz’s daughter was a lawyer. Around 15 or 16 April 2021, Dr Kretowicz had spoken to her daughter about the events unfolding at the hospital. Dr Kretowicz was at pains to stress that she was not a lawyer and “[didn’t] understand law”.^[272] In her discussion with her daughter, it appears that the ACCC was mentioned and I infer that there was some reference to cartel conduct.^[273] Dr Kretowicz recalled that in the discussion, she had asked her daughter if there was something that Dr Kretowicz could read to help her understand how the “ACCC would see us as in terms of cartel provisions”.^[274] Following that discussion, Dr Kretowicz’s daughter had sent her a link to the ACCC article.^[275] Dr Kretowicz recalled that following the discussion, she had been trying to establish whether or not a group of obstetricians would fall within the legal definition of a cartel.^[276] She recalled that having taken “a very general look at the document”,^[277] her basic understanding was that “a collegiate arrangement between a group of independently functioning professionals would not fall under the provisions of a cartel”.^[278] Dr Kretowicz added “[t]hat’s how I understood it, very basically, without taking any further legal advice.”^[279] I accept Dr Kretowicz’s evidence about these events and her understanding and mindset at the time.
147. [147]
     On 19 April 2021 at 3.29pm, Dr Friebe sent an email to Dr Price which was in the following terms:^[280]

“Subject: Olive branch?

Hi Chris,

I do not want hostilities between us. I’m happy to sit down and speak with you anytime about trying to move forward with this situation if you are interested.

I don’t think text message communication to be a good idea at the moment in light of emotions being high.

If you want to try and work this out, please get in touch.

Jamie”

148. [148]
     Dr Friebe said that he sent this email because he was concerned about Dr Price. Dr Friebe relevantly gave this evidence:

“I did not think it was clear [Dr Price] was going to miss out. ... I thought that once everyone cooled down and thought about it, we would be able to work something out.

I wanted to help him and thought that others, particularly Dr Sheahan and Dr Kretowicz, would give him one way cover. Dr Kerridge had worked with Dr Price for years, so I presumed she might. I did not think that Dr Kho had a particular problem with Dr Price. Any issue between Dr Bajra and Dr Price could be managed, especially since they both agreed about the other not treating their patients.”^[281]

149. [149]
     I accept Dr Friebe’s evidence about his thinking at this time. I find that as far as he was concerned, at this particular point in time, it was likely that Drs Friebe, Sheahan, Kretowicz and Kho would provide one way cover to Dr Price, and it remained possible that Dr Kerridge would also provide such cover.
150. [150]
     Dr Price did not respond to Dr Friebe’s email.
151. [151]
     Dr Kretowicz gave evidence that “[b]ased on my text messages with Dr Sheahan”, a meeting about Dr Price’s email of 15 April 2021 “must have occurred on 21 April 2021”.^[282] The relevant text which formed the basis for this recollection reads “Hi Terry. Can you give me a call when convenient before the meeting tonight. Eva”.^[283] Dr Kretowicz recalled a meeting in Dr Sheahan’s rooms at which “each person expressed their view about whether they wanted Dr Price to join the group”.^[284] Dr Kretowicz recalled the attendees as being herself, Dr Kerridge, Dr Bajra, Dr Watson, Dr Kho and Dr Sheahan. She recalled that Drs Kerridge, Bajra and Watson were against Dr Price joining the group, Dr Kho and Dr Sheahan were less opposed, and Dr Kretowicz was neutral.^[285] Dr Kho had no recollection of doing anything, or speaking to anyone, about Dr Price’s 15 April email.^[286] Dr Kho gave no evidence about a meeting on 21 April 2021. Dr Sheahan could not recall any such meeting.^[287] Drs Friebe and Kerridge gave no evidence about a meeting on 21 April or around this time. Dr Bajra recalled a meeting in her affidavit “about correspondence from Dr Price, whenever it was”.^[288] She accepted that her recollection was not clear.^[289] She placed Dr Friebe at the meeting but made no mention of Drs Kho or Watson being present. Dr Bajra recalled saying at the meeting words to the effect that she did not want to be on a roster with Dr Price and she would cover her own patients if he joined the new roster.^[290] She recalled a “theme of the discussion” as being that “having Dr Price on a reciprocal roster was not a safe thing to do – not safe for the doctor and not safe for the patient – and [would] lead to patient complaints”.^[291] Dr Bajra had a clear memory of at least Drs Sheahan and Friebe saying that they would be prepared to provide one way cover to Dr Price.^[292]
152. [152]
     Having regard to the weight of the evidence, I am not satisfied that a meeting, as described by Drs Kretowicz or Bajra, occurred on 21 April 2021. The evidence of Drs Kho, Sheahan, Friebe and Kerridge did not support a finding that any such meeting occurred. Dr Kretowicz’s evidence was based upon a text message which had requested Dr Sheahan to call her “before the meeting tonight”. There was no evidence that Dr Sheahan had in fact called Dr Kretowicz later that day and there was no written record of the meeting having in fact occurred. Dr Bajra’s evidence was less than clear and recalled a meeting “whenever it was”. To the extent that Dr Bajra clearly recalled a discussion, it appeared to me to be more likely that the discussion she recalled occurred at a later meeting on 17 May 2021.
153. [153]
     On 23 April 2021, Dr Price sent a letter to each of the defendants (“the 23 April 2021 letter”) in the following terms:^[293]

“Re: Future on-call rostering

Following last weeks announcement of the formation of a new combined on-call group, commencing 1^st September 2021, I have written to [the members of group B] regarding my inclusion in this new arrangement. To date I have not received a reply.

I now formally request to join the newly formed roster either from cessation of my current roster ending 31^st August 2021 or earlier.

Could you please notify me of your decision, in writing, by close of business 30^th April, 2021.

Yours sincerely

Dr Christopher Price”

154. [154]
     In cross examination, Dr Price accepted that he was “complaining in this litigation” that he had not been included in a reciprocal roster.^[294] The following exchange occurred:^[295]

“Counsel: And a reciprocal roster is one where you would look after Dr Bajra’s patients while you were covering for her; that’s right?

Dr Price: Yes

Counsel: And she would reciprocally cover your patients while she was the on-call doctor?

Dr Price: I would not allow her to look after my patients.

Counsel: Okay. So, you don’t actually want to be in a reciprocal cover arrangement with Dr Bajra do you?

Dr Price: I would like to be in a reciprocal roster in the group and if Dr Bajra’s happy for me to look after her patients, I will

….

Counsel: And was that your state of mind Dr Price, in the middle of 2021…?

Dr Price: I would have to say yes

Counsel: So it was the same in 2021 that you would not want Dr Bajra to cover your patients if you were admitted into a reciprocal on-call roster with the defendants?

Dr Price: Yes, I would have asked one of the other doctors to cross-cover on those occasions”.

155. [155]
     Having regard to this evidence, I find that, in making his request to join the new group, Dr Price was seeking to join a reciprocal roster on the basis that he was not prepared to be in a reciprocal cover relationship with Dr Bajra. His intention was that, on the occasions when Dr Bajra was rostered on to provide cover, he would not accept cover from her and he intended to ask other doctors within the group to provide separate cover to him if he required cover when Dr Bajra was rostered on.
156. [156]
     In response to her having received the 23 April 2021 letter, Dr Kretowicz telephoned Dr Sheahan and said to him words to the effect that “Dr Price was getting desperate, that he was taking things very personally, that he is not going to stop, and that I was worried he might do something to himself or this might result in a legal letter”.^[296] She recalled that Dr Sheahan advised her that Dr Price would not be joining the new group.^[297] Dr Sheahan recalled that he told one or more of the other obstetricians who were members of group B that he thought it was better not to respond to the 23 April 2021 letter. He recalled that his plan was “to do nothing, and if asked I expect I would have told the others I planned to do nothing”.^[298] Dr Sheahan expanded upon that evidence in cross-examination:^[299]

“My concern was that, in responding to Dr Price, that he might use it - anything we wrote – against him. And because of that concern, … I think a couple of us phoned our insurer, to say, ‘Is it better to not respond or not?’ And the advice was, it would be safer to not do anything… and I recall they said, if we received a legal letter again, not to respond and to fire it straight it back to them”.

157. [157]
     Around this time, Dr Kretowicz remained worried about Dr Price’s mental health and that he was taking things very personally and might escalate matters.^[300] She contacted Dr Keeping whom she regarded as a very senior and experienced obstetrician and asked his advice. She recalled that Dr Keeping then provided oral advice in the following terms:^[301]

“I can tell you that this is going to get nasty so what you should do, you have two options. One option is to do what you did, say go and get lost, too much has happened, you are an arsehole. That is my preferred option. The other option is you go and buy a bottle or [sic] red wine or two or a carton of beer, sit Chris down in a restaurant, and say ‘Mate, you are an absolute arsehole, you have hurt a lot of people, we will take you on for six months and if you don’t behave you are out, that is final.” (“the Keeping Oral Advice”)

158. [158]
     Dr Kretowicz recalled that she passed on the substance of the Keeping Oral Advice to Dr Sheahan. Dr Kretowicz recalled that she said to Dr Sheahan that “we should think about this again and have a meeting with the group, then sit down with Dr Price and tell him how we feel about him and why”.^[302] She recalled that Dr Sheahan did not agree to that suggestion and advised Dr Kretowicz that there was too much history and too much bad behaviour by Dr Price towards other doctors within the group which meant that those doctors were “not prepared to have Dr Price on the roster”.^[303]
159. [159]
     On a date that is not entirely clear,^[304] but which appears to have been after the 23 April 2021 letter (noting that 23 April 2021 was a Friday) and before 30 April 2021, the following text exchange occurred between Drs Kerridge and Friebe:

     1. at 6.17pm, Dr Kerridge, “…Everything CP^[305] touches of mine, and that I touch of his between now and September is giving me anxiety…he’s going to take someone down, one way or another. Terry^[306] called me on Friday and asked if we wanted to join their roster earlier. Ie start covering each other’s weekends from now…”;
     2. at 6.40 pm, Dr Friebe, “I’m sitting tight until the 30^th, when no one replies to his letter, I expect CP^[307] to leave our roster so he thinks he got the last word. Terry^[308] has been on to me also, I think he doesn’t want to do the one in four until we join…”;
     3. at 6.46 pm, Dr Kerridge, “This is quite terrifying. It’s like wolf creek, but in a medical setting”.
160. [160]
     The 23 April 2021 letter came and went without a response. As of 30 April 2021, Dr Sheahan was still providing one way cover to Dr Price.^[309]
161. [161]
     As at in or about early May 2021, Dr Sheahan and Dr Kretowicz were still providing cover to Dr Price.^[310] On 7 May 2021, Dr Kretowicz sent a text message to Dr Sheahan in which she relevantly noted, “… I just got a message from Jamie with handover He mentioned they are joining our roster from September. So I guess it’s all going ahead”.^[311]
162. [162]
     I make the following findings as to the relevant state of affairs as at 14 May 2021. By this time, Dr Sheahan, as the effective leader of group B, had firmly resolved in his own mind that Dr Price would not be invited to join the new group because of the strained relationships between Dr Price and Dr Bajra and, I would add, between Dr Price and himself. As a result of that history, Dr Sheahan believed that the addition of Dr Price to the new group would not contribute to a cooperative group based upon mutual respect and support. At this time, Drs Sheahan and Kretowicz were still providing one way cover to Dr Price. Dr Sheahan was prepared to continue to provide one way cover to Dr Price beyond the formation of the new group. I accept Dr Sheahan’s evidence that, as he had been providing one way cover to Dr Price for some period of months, Dr Price must have known that Dr Sheahan remained prepared to provide one way cover to Dr Price if he asked for such cover in the future.^[312] Dr Kretowicz remained prepared to continue to provide one way cover to Dr Price and was concerned to try and have the new group work out some kind of arrangement with Dr Price. Drs Friebe and Kerridge were still providing cover to Dr Price as part of group A’s roster. By his “olive branch” email, Dr Friebe had made it clear to Dr Price that Dr Friebe was prepared to sit down with Dr Price and work out a way forward for Dr Price to receive adequate cover. After receiving the 23 April 2021 letter, some members of group B took advice from their insurers. Dr Sheahan received advice from his insurer that the most prudent course involved not responding to the 23 April 2021 letter. Dr Sheahan followed that advice and passed it on to some, if not all, of the members of group B.
163. [163]
     Dr Price engaged lawyers. On 14 May 2021, a letter from Dr Price’s lawyers [“the 14 May legal letter”] was hand delivered to each of the defendants.
164. [164]
     The 14 May legal letter was a lengthy letter which materially conveyed the following contentions:

     1. the CCA’s anti-competitive conduct provisions applied to medical professionals practising in Queensland;
     2. the CCA prohibited “cartel conduct” which included competitors engaging in conduct that had the direct or indirect purpose of preventing restricting or limiting the supply or likely supply of goods or services to persons or classes of persons by any or all of the parties to the contract arrangement or understanding or the capacity or likely capacity of any or all of the parties to the contract arrangement or understanding to supply services;
     3. the defendants and each of the other accredited obstetricians at the hospital were likely to be deemed to be “competitors” for the purposes of the CCA’s anti-competitive conduct prohibitions;
     4. the CCA’s prohibition on cartel conduct gave rise to strict liability and, if prosecuted by the Australian Competition & Consumer Commission (“ACCC”), could result in pecuniary penalties of up to $10 million and a range of other remedies, including injunctions and orders for the payment of damages;
     5. the ACL prohibited a person in trade or commerce in connection with the supply or possible supply of goods or services, engaging in conduct that was unconscionable;
     6. by reason of rules 261.334, 261.34, 262.1, 262.2 and 262.3 of the Facility Rules, it was necessary for an obstetrician to be part of a roster with at least some of the other accredited obstetricians, failing which an obstetrician would be unable to continue to practice at the hospital;
     7. Dr Price had been excluded from the new roster as a result of deliberate and collusive conduct between the defendants;
     8. the exclusion evidenced a purpose of “preventing restricting or limiting the supply or likely supply” of on-call services to Dr Price by the members of the new group thereby “(due to the application of [the Facility Rules]) preventing him from continuing to practice obstetrics at the [hospital]”;
     9. the defendants’ conduct was prohibited cartel conduct and/or unconscionable conduct in breach of the CCA and/or ACL;
     10. Dr Price required the defendants to invite him to join the new group on non-prejudicial terms by no later than the close of business on 21 May 2021; and
     11. Dr Price reserved the right to initiate court proceedings against the defendants without further notice if he was not invited to join the new group.
165. [165]
     Dr Kho sent a text to Drs Sheahan, Kretowicz and Bajra shortly after she received the 14 May legal letter. Dr Kho’s text inquired, “Did u all get the letter”. Dr Sheahan replied, “As expected!”. Dr Kho replied, “Not sure if we need to do anything ?”. Dr Sheahan replied, “No urgency Let’s talk next week”. Dr Kho replied, “Ok”. Later during the afternoon of 14 May 2021, Dr Kretowicz forwarded the link to the ACCC article to Drs Sheahan, Bajra and Kho. She texted Drs Sheahan, Kho and Bajra shortly after forwarding the link to the article stating, “this is precisely what I thought will [sic] happen”. She explained, and I accepted, that what she had expected was a legal letter from Dr Price.
166. [166]
     On 17 May 2021 at 1.52 pm, Dr Kretowicz sent a text to the members of the new group asking for a meeting to be convened and noted in her text that, “This is important to discuss”.^[313] A number of text messages were then exchanged during the course of that afternoon which were consistent with a meeting having been organised for approximately 5pm that day.^[314] Dr Kretowicz could not recall whether the meeting occurred.^[315] Dr Bajra recalled a meeting in her rooms attended by all members of the new group except Dr Kerridge. Dr Bajra recalled a discussion to the effect that, “… there was nothing wrong with what we had done, that we were not trying to stop Dr Price from practising, that this was just about professionals working together with mutual trust, and we hadn’t colluded”.^[316]   Dr Kho believed there was a meeting and recalled the effect of the discussion at the meeting as being that there was no need to respond to the 14 May legal letter because Dr Price’s claims were “not valid”.^[317] Dr Friebe had no recollection of any meeting.^[318] Dr Kerridge gave no evidence about such a meeting. She regarded legal letters as “gameplay” and as not warranting a response. She could not remember having had “any conversation with Dr Sheahan about Dr Price’s legal letter”.^[319] Dr Sheahan had a general recollection of discussions about the 14 May legal letter with some of the members of group B. He recalled saying to at least some of the members that Dr Price’s sending of the 14 May legal letter was “an offensive way to behave” and that “we had made the right call in not having him join our roster group”.^[320]
167. [167]
     I find that the weight of the evidence supports a finding, which I make, that there was a meeting on 17 May 2021 at approximately 5pm attended by Drs Kretowicz, Bajra, Kho, Friebe and Sheahan. At that meeting, the 14 May legal letter was discussed and there was a consensus amongst the attendees that they had done nothing wrong and that the allegations contained in the 14 May legal letter were unjustified. I find that at this meeting, during the discussions it became clear that at least Drs Sheahan and Friebe were prepared to provide one way cover to Dr Price going forward. I also find that it was during this meeting, that Dr Bajra said words to the effect that she did not want to be on a roster with Dr Price and she would cover her own patients if he joined the new roster.^[321] 
168. [168]
     On 20 May 2021, Dr Friebe telephoned Dr Price’s receptionist to arrange a meeting with Dr Price. Dr Friebe gave evidence that his intention at this time was, despite all that had happened, “to appeal to Dr Price’s better nature to drop the threats of legal action, and work with me to try and build some bridges with his colleagues, to atone for some prior insults and hurt towards his colleagues and try and make some sort of arrangement to help him moving forward”.^[322] Later that day at 3pm, Dr Kirsten Price entered Dr Friebe’s rooms whilst he was in the middle of a clinical consulting session. Dr Kirsten Price returned a clothing item that had previously been donated by Dr Friebe’s wife for a charitable purpose. Dr Kirsten Price said in the vicinity of the receptionist desk to Dr Friebe, “[t]hank your wife for her generosity and charity, it’s far more than I can say for you”.^[323] Dr Friebe regarded that behaviour as embarrassing and intolerable and as a result of that behaviour he said that he cancelled his meeting with Dr Price later that day. I accept Dr Friebe’s evidence about his intentions and thought processes on 20 May 2021.
169. [169]
     On 21 May 2021 commencing at 9.49am, Dr Kho and Dr Friebe exchanged the following texts:

     1. Dr Kho, “How did it go”;
     2. Dr Friebe, “His wife came into my rooms in the middle of a session yesterday and hurled some insults at me, so I cancelled the meeting. I can’t help him, we’re done”;
     3. Dr Kho, “Omg! Hope u r ok. Good on u on trying [sic]”;
     4. Dr Friebe, “I think I’ve done all I can, he’s on his own now”.
170. [170]
     I find that as of the morning of 20 May 2021, Dr Friebe remained prepared to offer to provide one way cover to Dr Price going forward as part of an arrangement to help Dr Price to continue to conduct his practice into the future. I infer from the texts between Dr Kho and Dr Friebe on 21 May 2021, that the meeting on 17 May 2021 included some discussion about Dr Friebe’s intention to make contact with Dr Price to offer an arrangement to help him moving forward. As a result of the interactions between Dr Kirsten Price and Dr Friebe at 3pm on the afternoon of 20 May 2021, Dr Friebe decided to not make any offer of future support to Dr Price going forward.
171. [171]
     As a result of receiving the 14 May legal letter, it would appear that at least Drs Sheahan and Friebe took legal advice.^[324]
172. [172]
     The sending and receipt of the 14 May legal letter was a significant event.
173. [173]
     Dr Sheahan relevantly gave this evidence in chief:^[325]

“I believe that letter worsened the situation. I believe from my conversations (again, brief informal corridor discussions which I cannot remember the specifics about) that the letter made everyone angry with Dr Price and less interested in speaking with Dr Price.”

174. [174]
     Dr Kretowicz relevantly gave this evidence in chief:^[326]

“I was disappointed and upset to receive the letter. I did not think that it would help. If the legal letter was intended to encourage us to have Dr Price join our cover group, the letter had the opposite effect. It would have been much better if he came and spoke to us rather than engage lawyers to threaten us.”

175. [175]
     On 7 June 2021, lawyers acting for some of the defendants sent a response to the 14 May legal letter.
176. [176]
     On 9 June 2021, Dr Friebe sent an email to Dr Price in the following terms:^[327]

“Dear Dr Price,

In light of recent events, including your threatened legal action against me per your lawyer’s letter dated 14 May 2021 and 3 June 2021, and continuing harassment by your wife, I have decided to cease my involvement in the on-call roster arrangement between you, Dr Kerridge and I, effective 6.00 am Monday 14/6/2021.

Yours Sincerely.

Dr Jamie Friebe”.

177. [177]
     On the same day after sending that email, Dr Friebe emailed Ms Kim Pickering, the midwife director at the hospital in the following terms:^[328]

“Subject: New on call arrangements

Hi Kim,

As discussed this morning, in light of Dr Price’s escalating legal action against all of the Obstetric VMOs at [the hospital], Dr Kerridge and myself have decided to cease our on call arrangement with him as of 0600 on Monday 14/6/2021.

Moving forward, Dr Kerridge and I will cover each other’s patients on an alternating weeknight basis from 0600 Monday-0600 Friday, weekends will be as per the larger group roster.

I will do a roster for Dr Kerridge and my weeknights which I will place on labour ward in the plastic pocket where our previous roster has been as of Monday morning.

I hope the change over is seamless and easy for the midwives.

Kind regards

Dr Jamie Friebe”.

178. [178]
     On 9 June 2021, Dr Kerridge sent an email to Dr Price in the following terms:^[329]

“Dear Chris,

I am writing to advise you that as of Monday June 14^th, 2021 I will be revising my oncall arrangements and will no longer be participating in the current oncall arrangement.

Regards,

Dr Kate Kerridge”.

179. [179]
     I find that by the 14 May legal letter, Dr Price levelled very serious allegations against each of the defendants to the effect that they had engaged in cartel and/or unconscionable conduct and threatened to commence legal proceedings against each of them without further notice if he was not invited to join the new group on or before 21 May 2021. The service of the 14 May legal letter caused some of the defendants, quite reasonably and foreseeably, to obtain legal advice. The 14 May legal letter was a threatening demand and, from the point of its delivery, the battle drums of this litigation had sounded. From this point in time, to the extent that the defendants did not respond to, or further deal with, Dr Price, their conduct is explicable by reference to the strident threat of imminent litigation conveyed by the 14 May legal letter.
180. [180]
     On the weekends of 26 and 27 June 2021, Dr Friebe honoured a preexisting commitment to Dr Price by providing him with one way weekend cover so that Dr Price might attend an interstate conference.^[330]

Dr Price ceases obstetrics practice at the hospital

181. [181]
     On 15 June 2021, Dr Price sent an email to Dr Friebe in the following terms:^[331]

“Dear Dr Friebe,

I acknowledge receipt of your email dated 9 June 2021 in which you state that, rather than honouring your previous undertaking to continue with the current roster until 31 August 2021, you will withdraw from this roster as of 6.00 am Monday 14/6/2021.

It goes without saying that I am disappointed by your decision and, in particular, that you and Dr Kerridge have once again coordinated this action.

I would like to point out that I felt I had no option but to seek legal advice as, despite repeated requests to engage with me, I was consistently ghosted by you and other members of the newly amalgamated roster.

As you will appreciate, due to the collective actions of you and the other members of the amalgamated roster, I now have no option but to cease Obstetric practice. I had no plans to retire from Obstetrics at this time, but the provision of my level of service to patients is not sustainable in the long term without recourse to an on-call roster system.

After taking time to consider my situation, I have decided to fulfil my obligations to my current Obstetric patients however, as a result of your most recent email, I have ceased taking new obstetric patients from Monday, 14 June 2021.

Your actions have had and will continue to have clear and significant financial implications for my family and necessitate changes to my practices in Brisbane and on the Sunshine Coast. It is likely I will be forced to close that practice.

My preference would of course have been to be able to continue my practice rather than being forced out in this manner.

In regard to your characterisation of my wife’s conduct, this is at the very least a gross exaggeration and misrepresentation of events. Regardless, it has no relevance in this natter.

Regards

Dr Price”.

182. [182]
     Dr Price sent an email which contained similar substantive content to Dr Kerridge.^[332]
183. [183]
     I accept that Dr Price had intended to continue in full time obstetrics practice at the hospital until the age of 65.^[333] In his evidence in chief, he referred to his unsuccessful attempts “to persuade the members of the [new group] to include [him] in their Roster arrangements”.^[334] In that context, Dr Price recalled:^[335]

“During that period, I made it clear in conversations with the Defendants that I considered I would be unable to safely maintain my practice at its then current level without access to the Cover that would be provided by participation in a Roster.”

184. [184]
     Dr Price had made a contention to that effect in his emails of 15 June 2021 to Drs Friebe and Dr Kerridge.
185. [185]
     Dr Sheahan strongly refuted that there had been any such discussion between himself and Dr Price. Dr Sheahan relevantly said:^[336]

“If Dr Price had said to me that he could not continue to practice without being on a cover roster, I would have remembered that because the complaint would have seemed so out of place with reality. I expect I would have suggested to him to just ask for one-way cover when he needed it, like he already received.”

186. [186]
     At some point in the period between April and June 2021, Dr Price formed the view that he “would not be able to continue to run” his obstetrics practice at the hospital “without access to the [new group] roster”.^[337] He considered that the only options available to him to continue his obstetrics practice at the hospital were to remain on-call himself at all times, to attempt to secure locums or “to reach a Cover or Roster arrangement with the only other obstetrician (Dr Hyytinen) practising at the Hospital who was not part of the [new group]”.^[338] Dr Price subsequently met with Dr Hyytinen who advised him that she did not wish to be on a roster with anyone at the hospital.^[339]
187. [187]
     Dr Price formed the view that it was not commercially viable for him to rely upon locums to conduct his obstetrics practice.^[340] He did not consider it feasible for him to remain on-call by himself. He relevantly gave this evidence in chief:^[341]

“I considered the risk of operating my practice without regular, reliable, consistent on-call support was too great, as I would not be able to effectively manage fatigue risks”.

188. [188]
     The following exchange occurred during Dr Price’s cross-examination:^[342]

189. [189]
     Dr Kho gave evidence that, with one way cover, it is usual for the obstetrician requiring the cover to request the provision of that cover from another obstetrician. As she observed “It’s usually the one that requires … cover approach[es] the one that is willing to cover. Not the other way around”.^[343] That evidence was consistent with the evidence of Dr Kretowicz who explained, in a coherent and persuasive way, that an obstetrician who is not included in a roster has other options for cover. Dr Kretowicz relevantly said of the process of seeking one way cover:^[344]

“… it is very important … to understand that when that happens – and I can give myself as an example- it is up to the person seeking cover to then approach individuals or groups, or however they might see fit,  to actually discuss that. And this is really the key part of this process where that wasn’t done. And as the animosity was building by letters with formal requests. I request, I formally request, I then demand through a legal letter. The wall became too high to jump over … for us.”

190. [190]
     Ms Whittaker recalled a conversation in mid-June 2021 with Dr Price, during which Dr Price had said words to the effect, “I do not consider that I can continue to run my obstetrics practice safely without being on a roster it would be too high risk... I’m going to have to wind down my practice”.^[345] Ms Whittaker responded to the effect, “I agree with you Chris. I also think that would be too great a risk”.^[346] She explained in her evidence that she considered that running a busy private obstetrics practice was not sustainable without on-call support.^[347] In her evidence, she expressed the opinion that for Dr Price to continue his practice without being part of a roster would create an unacceptable risk for his own health and safety, as well as for his patients and the hospital.^[348] Ms Whittaker was not cross-examined about this conversation or the opinion she expressed in her evidence in chief.
191. [191]
     Dr Price ceased to take any new obstetric patients from in or around 14 June 2021. He referred his more complex existing cases to the Mater Hospital and continued with the remainder of his existing patients until his last patient gave birth on 11 January 2022.
192. [192]
     I make the following findings in relation to Dr Price’s cessation of his practice at the hospital. Dr Price’s email of 15 April 2021 requested that he “be included in future rosters beyond August 2021”. On 19 April 2021, Dr Friebe had emailed Dr Price relevantly advising that Dr Friebe was “happy to sit down and speak with you anytime about trying to move forward with this situation if you are interested”. Rather than speak with Dr Friebe about a way forward, on 23 April 2021, Dr Price repeated his request “to join the newly formed roster”. The 14 May legal letter demanded that he be included in the new roster on non-prejudicial terms. The delivery of the 14 May legal letter significantly damaged any type of professional, collegiate relationships that might have existed as between Dr Price and each of the defendants. With the 14 May legal letter having been delivered, and its content not withdrawn, the defendants could not be expected to continue with, or engage in, voluntary, collegiate, professional relationships with Dr Price under the spectre of imminent litigation. At all material times between on or about 15 April 2021 and the service of the 14 May legal letter, Drs Sheahan, Friebe, Kho and Kretowicz had been prepared to extend one way cover to Dr Price to support his practice following the formation of the new group. It is more likely than not that Dr Kerridge would have provided similar cover to Dr Price. As at 16 April 2021, Dr Price knew that the provision of one way cover had utility and would be beneficial to his practice. His email to Dr Kerridge at 10.59am on 16 April 2021 requesting the continuation of one way cover evidences that mindset. Later that evening he texted Dr Kretowicz and relevantly said “how we feel about each other personally is irrelevant if the cover is appropriate”.^[349] To that time he had been told by Drs Kretowicz and Kho that they were happy to work with him going forward and he was continuing to receive one way cover from Dr Sheahan. One way cover arrangements are usually requested and organised by the obstetrician who requires the cover. Apart from his email to Dr Kerridge on 16 April 2021, Dr Price made no request for one way cover. He ceased practice at the hospital without having explored or sought to put in place one way cover arrangements. He chose instead to insist upon being included in a reciprocal roster relationship. Had Dr Price made appropriate requests for one way cover, he would have been provided with such cover by Drs Sheahan, Friebe, Kretowicz, Kho and Kerridge. The on-call support required to sustain Dr Price’s obstetrics practice at the hospital could have been provided in the form of one-way cover from Drs Sheahan, Friebe, Kretowicz, Kho and Kerridge. Had he requested one way cover, he would have had five obstetricians prepared to provide him with cover. That cover would have facilitated Dr Price regularly having weekends off.^[350] The provision of one way cover was not an arrangement as “tidy”^[351] as the provision of cover with a roster but it was an arrangement which would have protected him against acute fatigue and burn out fatigue.
193. [193]
     Dr Price gave the following evidence in relation to the events following the cessation of his practice:^[352]

“Between June 2021 and January 2022, I continued my Hospital Obstetric Practice with existing patients (other than the complex patients I had referred away as described above) until my last patient gave birth on 11 January 2022.

In the 6 months between my commencing to refuse new patients until the last patient gave birth, I was in effect on-call 24 hours a day, 7 days a week and had to remain within 30 minutes’ travel time of the Hospital. Due to this, I was unable to service Sunshine Coast Practice effectively with a commensurate drop in income.

I attempted to revitalise it in early 2022 with some limited success. However, I found that the revenue I could generate from this practice did not justify the time and overhead costs, so in early October 2021 I began to wind up this practice and I closed the practice and mothballed all the equipment on 25th November 2022.

In order to continue to generate income during 2022, I commenced offering my services as an obstetrics locum via an agency, Vanguard Health. Currently, this involves my flying to Gladstone and being there for Friday, Saturday and Sunday, during which time I am on call. However, the income I can generate from locum work is considerably less than I was able to earn from my Hospital Practice. Currently, I am earning approximately $100,000 per annum for this role. It comes at considerable personal cost, as I am required to be in Gladstone (and therefore away from my family) most weekends. Nonetheless, I intend to continue this role until July 2023.

I have considered whether I could establish a new private obstetrics practice at another hospital, assuming I am able to find a position at such a hospital and become part of a Roster there. However, I do not consider this to be viable for a number of reasons. In particular:

1. there is no guarantee that there will be sufficient demand (particularly having regard to declining patient numbers, as discussed above).

2. I would need to reduce my availability for gynaecology patients at my current location, potentially reducing income derived from that source. I have a robust gynaecological practice but and would most likely need to give up theatre access at my hospital to accommodate obstetric patients in another hospital.

3. it is not the case that I could simply set up at a new hospital and patients would come.  … I would … have needed to establish new relationships with referring GPs in the applicable catchment area, establish a reputation amongst local residents, and effectively compete with the established practitioners in that area who had already built and developed those relationships. This was something much easier for me to do when I was younger. When first setting up my Hospital Practice, I had more energy and free time during the day to present myself to GPs and I could work longer hours (which meant I could always say ‘yes’ to new patients). It would be considerably more difficult for me to try to do this at 59 years of age, suddenly changing hospitals after 25 years;

4. I would have needed to sell up my house and move to an area proximate to the new hospital, to ensure that I remained within 30 minutes of it in case of emergencies; and

5. based on my experience of setting up and operating my Hospital Practice, I estimated that, realistically, the process of establishing a new practice would likely take a minimum of 4 to 5 years — taking me up, or very close, to an age where I might not be able to maintain whatever practice I had managed to establish.”

194. [194]
     The cross-examination of Dr Price in relation to these parts of his evidence was very limited and provided no sufficient reason for not accepting Dr Price’s evidence about these matters. I accept these parts of Dr Price’s evidence.

Consideration of agreed issues in dispute

First Group of Issues: The proper construction of the Facility Rules, particularly in terms of cover arrangements for obstetricians; Were group rosters the primary means by which obstetricians at the hospital secured and arranged access to on-call services and secured compliance with the Facility Rules?; Could Dr Price have maintained his obstetrics practice at the hospital in compliance with the Facility Rules despite not being part of a group roster with the defendants?

195. [195]
     Dr Price alleged that “by operation of” clauses 8, 9, 118.4, 125.3, 261.1, 261.33, 262.2 and 262.3 of the Facility Rules “all obstetricians practising at the Hospital were required, at all times, to either be available to provide [specialist obstetric services] to their patients or have in place adequate access to On-Call Services of other, appropriately qualified, obstetricians, capable of providing [specialist obstetric services] in their absence, if required”.^[353]
196. [196]
     I approach the task of construction of the Facility Rules by reference to the following principles. The fundamental principles for interpreting private legal documents are the same regardless of the type of document.^[354] The fundamental aim of construing a private legal document is to determine and give effect to the intention of its makers as expressed in the document. The intention which the parties have expressed is to be ascertained by giving meaning to the language of the document and not by enquiring as to what the parties meant to say.^[355] The interpretative task is fundamentally objective, the relevant meaning that conveyed to a reasonable person in the position of the document’s makers.
197. [197]
     The following matters were common ground:

     1. there is, and was, no rule contained within the Facility Rules which expressly or specifically required an obstetrician to participate in any form of on-call roster;^[356]
     2. the only specific form of arrangement expressly required by the Facility Rules was the nomination of an emergency contact. The requirement to nominate an emergency contact was imposed by rule 262.3.^[357] An emergency contact does not provide “cover” but rather is simply nominated for accreditation purposes. There was no suggestion that the formation of the new group meant that Dr Price was not able to nominate an emergency contact.
     3. arrangements as between obstetricians at the hospital with respect to providing cover to one another were voluntary;^[358]
     4. there is, and was, no system in place at the hospital whereby one obstetrician could require another obstetrician to provide cover.^[359]
198. [198]
     In his closing submissions. Dr Price clarified his case as being to this effect:^[360]

1. “(a)
   as a matter of fact and practice, on-call rosters were the primary means by which obstetricians at the [h]ospital secured compliance with their obligations under the Facility Rules (and, in particular, with rule 262.2); and

2. that being the case, as a result of his exclusion from the [new group], the only means available to Dr Price for otherwise securing compliance with his obligation to provide continuity of care for his patients were ones which were impracticable, uncommercial, or would expose his patients to an unacceptable level of risk from practitioner fatigue.”

199. [199]
     Rules 262.2 provided to the effect that obstetricians must accept that they are at all times responsible for the clinical care of patients admitted under their care and must ensure that they are available to treat those patients at all times, or failing that, that “other arrangements as permitted by the Facility Rules are put in place to ensure the continuity of treatment and care for those patients”. Dr Price’s case as it was clarified appeared to be that rule 262.2, properly construed, and/or as applied in practice by the hospital, required an obstetrician to be part of a roster group.
200. [200]
     A primary purpose of the Facility Rules was to maintain and improve safety and the quality of clinical care across all Ramsay Health facilities including the hospital.^[361] Accredited health professionals were required to comply with the Facility Rules^[362] and any directions of the hospital’s Chief Executive Officer.^[363] Specialist Practitioners were required to be available to treat their patients at all times or have in place other arrangements as permitted by the Facility Rules which would ensure continuity of treatment and care for their patients.^[364] An accredited health professional was required “to participate in formal on call arrangements as required by [the hospital]”^[365] and to “be available when on call or as required to attend the [hospital] within a clinically acceptable time frame”.^[366]
201. [201]
     Dr Price’s pleadings did not identify any document issued by the hospital which required obstetricians to be part of an on-call roster group. The weight of the evidence supports a finding, which I make, that there was no such document. The Facility Rules contemplated that “formal on call arrangements” might be required by the hospital but otherwise acknowledged the general concept of a specialist being “on call”.  I construe the expression in rule 262.2 “other arrangements as permitted by the Facility Rules” as being broad enough to extend beyond formal rosters to circumstances in which a specialist was on-call by arrangement with another specialist. That broader interpretation is consistent with the primary purpose of the Facility Rules.
202. [202]
     In her role as director of clinical services, Ms Whittaker monitored how accredited specialists were complying with the requirements of the Facility Rules.^[367] Ms Whittaker recalled that if she became aware that an accredited specialist was getting busier, and believed the specialist was at risk of suffering from fatigue, she would discuss that matter with the CEO and one or both of them would then have a discussion with the relevant practitioner. She recalled the effect of those discussions being that either the CEO or herself would say words to the effect of, “as your practice is building, we now expect that you’ll arrange cover”.^[368] Ms Whittaker’s recollection was not challenged in cross-examination.

203. [203]
     Ms Whittaker recalled that there was generally a period of grace allowed for newly accredited obstetricians but they were actively encouraged by the hospital to join existing rosters, as in the longer term this was regarded as the best option to appropriately manage fatigue and ensure patient safety.^[369] Ms Whittaker explained that “a period of grace” was measured by the progress of the volume of the practice of the obstetrician.^[370] The period depended on the amount of time it took “for their deliveries to increase to a number where it was considered that perhaps [the obstetrician] should join a call group”.^[371]

204. [204]
     Ms Whittaker recalled two occasions during her 16 year tenure as the Director of Clinical Services when she had been involved in a discussion with an obstetrician about whether “it was a requirement of their accreditation that he or she be part of an on-call cover group”.^[372] One discussion was in or about 2011 or 2012 and the other was in 2022.^[373] The first discussion in 2011 or 2012 had involved the hospital’s CEO, Ms Whittaker and Dr Kretowicz. Ms Whittaker recalled that the meeting had involved Dr Kretowicz introducing herself to the hospital’s CEO and at the end of that discussion, the hospital’s CEO had said words to the effect, “[y]ou’re not part of a call group. As your practice grows, … it will be considered safe practice … if you belong to and join a call group”.^[374] Ms Whittaker accepted that following that conversation, the hospital took no steps to assist Dr Kretowicz to join an on-call group.^[375] In cross-examination, it was not suggested to Ms Whittaker that this conversation had not occurred. Rather, the cross-examination sought to elicit details about the conversation.^[376] Dr Kretowicz had deposed in her affidavit that she had never had such a conversation with Ms Whittaker or with any other employee or representative of the hospital.^[377] Dr Kretowicz’s evidence was also not challenged in cross-examination. I prefer the evidence of Dr Kretowicz and find that no such discussion occurred. There was no contemporaneous note made of the meeting which was said to have occurred over a decade before the trial. Given that the alleged discussion specifically concerned Dr Kretowicz’s practice, it is reasonable to expect that, had it occurred, Dr Kretowicz would have had recalled the discussion.

205. [205]
     Ms Whittaker recalled a second conversation in 2022 involving Dr Hyttinen which occurred “after the meeting in 2022”.^[378] That conversation had included the hospital’s CEO, Mr Murphy who had said words to the effect, “[y]ou’ve been given a period now where now, you know, there wasn’t any pressure to be on a call group, but now your practice has grown so that grace period has shifted”.^[379] On 22 February 2022 there had been a meeting of the obstetrics, paediatric and gynaecology committee. At the time of that meeting, Dr Hyttinen was the only obstetrician practicing at the hospital without being a member of a roster group.^[380] She was then delivering about 23 babies per month.^[381] At that meeting, concerns were expressed about Dr Hyttinen having routinely started inductions late into the day which placed pressure on paediatricians and anaesthetists.^[382] The complaints, as recalled by Ms Whittaker, related to Dr Hyttinen being too busy in the sense of having too many patients.^[383]

206. [206]
     There was a further meeting of that committee on 24 May 2022 at which one of the topics was “practice guidelines”.^[384] The minutes of that meeting relevantly record:^[385]

“Following on from concerns raised at last month’s meeting regarding organisational risk management for all the resource groups involved in Obstetric deliveries at North West e.g. anaesthetics, paediatrics and midwives. In conjunction with Ramsay Clinical Governance Unit these Obstetric Service guidelines have been developed

…

3.Fatigue Management

Recognising he [sic] RANCOG paper of fatigue management the decision has been made that Obstetric bookings by each O&G, by month, will not exceed 23.”

207. [207]
     On 25 March 2022, Ms Whittaker sent an email to Drs Friebe and Sheahan in the following material terms:^[386]

“I have been working with our Clinical Governance Unit to put together these Service Guidelines which should assist us to cover off on some of the current concerns that have been raised by the Anaesthetic (and Paediatric groups).

This is what I wanted to meet with you both to gather your feedback …

• Deliveries booked per month

Where the O&G does not belong to an on-call group the number of deliveries booked for any one month will not exceed 23”.

208. [208]
     Ms Whittaker explained that her reference to an “on-call group” had been to “[a] situation where the obstetrician has one or more people covering them on-call either through the week or on the weekend”.^[387] She gave evidence in cross-examination that, in sending this email, she was seeking the opinion of Drs Sheahan and Friebe who had raised concerns about Dr Hyttinen. She recalled that they agreed with the email.^[388] Ms Whittaker indicated that her own view was that deliveries should be limited to five babies per month by an obstetrician who did not have “support in their practice”.^[389] By support she meant “[h]aving someone else available to care for the patient if the practitioner could not be available to be involved in the delivery”.^[390] In cross-examination she candidly accepted that her view was “not in line” with specialists involved in the hospital’s Clinical Governance Unit,^[391] which included lawyers and specialist obstetricians.^[392]
209. [209]
     The defendants gave evidence to the effect that the hospital had, variously, not required them to be on a roster,^[393] taken no interest in their cover arrangements^[394] and only required them to nominate an emergency contact.^[395] That substantial body of evidence was consistent with the statement contained in the joint expert report to the effect that private hospitals tend to be “very hands-off in managing private obstetricians”.^[396]
210. [210]
     On 28 March 2022, the hospital’s CEO, Mr Murphy, sent an email to Dr Sheahan in the following terms:^[397]

“Dear Terry,

North West Private Hospital does not operate the on call rosters.

The on call rosters are a local arrangement between participating AMP’s (Accredited Medical Practitioners).

North West Private and other hospitals within Ramsay do not compel individual AMP’s to participate in on call rosters.

Individual AMP’s may elect to cover their own practice if they are not part of a formal on call team arrangement, noting that they have a nominated an appropriately qualified AMP as their emergency contact.

Regards,

Chris”.

211. [211]
     I accept Ms Whittaker’s evidence about the effect of the discussion between Mr Murphy and Dr Hyttinen which occurred after “the meeting in 2022”.^[398] The effect of that conversation, at its highest, was that Mr Murphy was encouraging Dr Hyttinen to join an on-call group.^[399] However, I find that Mr Murphy’s email of 28 March 2022 provides the best evidence of the hospital’s approach to rosters which relevantly may be outlined as follows:

     1. the hospital did not operate the rosters;
     2. the rosters are private arrangements between obstetricians;
     3. the hospital did not compel obstetricians to participate in rosters;
     4. individual obstetricians (like Dr Hyttinen) were entitled to cover their own practice so long as they nominated an emergency contact.
212. [212]
     As a matter of practice, having regard to the evidence of Ms Whittaker, in circumstances where an obstetrician was not available to treat a patient, the hospital regarded there to be sufficient compliance with rule 262.2 if the obstetrician had arranged for another obstetrician to provide cover. It did not matter whether that cover was provided in the context of a roster. It may be accepted that participation in rosters was the usual way that obstetricians ensured compliance with rule 262.2 but that was not the only way.  Dr Price could have maintained his obstetrics practice at the hospital in compliance with the Facility Rules despite not being part of a roster, so long as he arranged cover for the periods when he was not available to treat a patient.

Second Group of Issues: Did the conduct of the defendants occur in “trade or commerce”; Was there demand amongst obstetricians at the hospital for the supply of on-call services to each other?; Were each of the defendants in competition with each other or likely to be in competition with each other, or but for the New Group Arrangement in competition with each other or likely to be in competition with each other in relation to the supply of on-call services to other obstetricians?

213. [213]
     Section 4 of the CCA provides that “trade or commerce” means “trade or commerce within Australia or between Australia and places outside Australia”. Conduct is to be regarded as “in trade or commerce” if it “can be construed as … conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character”.^[400] The words “in trade or commerce” refer to “the central conception” of trade or commerce and not to “the immense field of activities” in which persons “may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business”.^[401] The terms “trade and commerce” are not restricted to dealings or communications which can properly be described as being at arm’s length in the sense that they are within open markets between strangers or have a dominant objective of profit making.^[402] The defendants did not dispute that in conducting their obstetric practices they were engaged in trade or commerce. The provision of on-call services occurred during the conduct of those practices.
214. [214]
     The defendants alleged that there was “no market” for the supply of cover services.^[403] There was no expert evidence called in relation to the existence of a market. A market ordinarily contemplates concepts of supply and demand. Dr Price alleged a “demand” amongst obstetricians at the hospital for the supply of on-call services to each other. It can be observed that the pleaded definition of “on-call services” was not limited to agreements made in the context of, or constituting, a reciprocal roster or to specialist obstetric services provided in the context of such a roster. There was no real dispute that from time-to-time obstetricians practising at the hospital required the provision of on-call services from other obstetricians. In that very basic sense, it may be accepted that there was demand for the provision of such services. However, just because there was demand for such services, did not necessarily mean that the demand existed in a competitive environment.
215. [215]
     An agreed issue in dispute was whether the defendants were “in competition with each other or likely to be in competition with each other, or but for the New Group Arrangement in competition with each other or likely to be in competition with each other in relation to the supply of on-call services to other obstetricians”. The defence to the amended statement of claim at one point admitted that “the Defendants were in competition with one another in relation to the supply of obstetrics services to other obstetricians within the Hospital”.^[404] The subject matter of that admission was not entirely clear. What was patently clear was that the defendants denied that Dr Price and the defendants were in competition with each other in relation to the supply of on-call services.^[405] That denial was made on the grounds that, inter alia, Dr Price and the defendants were not in competition with each other, or rivals in relation to, the provision of cover services because cover services were voluntary reciprocal arrangements entered into from time to time.
216. [216]
     In Australian Competition and Consumer Commission v Olex Australia Pty Ltd,^[406] Beach J relevantly observed:

“To be competitors, parties must be rivals or constrain each other in respect of the relevant acquisition or supply of goods or services. Parties constrain each other if they supply substitutable goods or services to the same class of customers or if they would do so given a sufficient price incentive.”

217. [217]
     It has been observed that “the essence of competition is rivalrous behaviour in the course of which the matching of supply with demand occurs”.^[407] Competition and likely competition requires looking at actual and potential dynamics.^[408] Whether parties are in competition with each other is a question of fact, to be answered having regard to commercial reality and the context in which the suggested competition occurs.^[409]
218. [218]
     It was not put to any of the witnesses that obstetricians were in competition with each other in respect of the provision of cover, provided as part of a roster or otherwise. I find as a matter of fact that the obstetricians at the hospital were not in competition with each other in respect of the provision of on-call services. I make that finding by reference to the following evidence:

     1. The provision of cover was clearly regarded as a collegiate service. The joint report of Drs Keeping and Milford spoke of, most obstetricians being “kind enough to offer one way cover”.^[410]  The 18 October letter which proposed amalgamation of the roster groups was couched in terms of “a proposal” that “together we are better”. That proposal was rejected by the 20 October letter which contained an offer of one way cover which was made “in an effort to harmonise and improve the working atmosphere” at the hospital. When requests for one way cover were made, they were couched in terms of a favour or indulgence. An exemplar is Dr Friebe’s text to Dr Sheahan on 10 March 2021, “… are you happy to cover us for the 4 days also ?? I appreciate it’s a big ask, if it’s a bit much that’s fine”.^[411] 
     2. Standard rates were charged for the provision of cover. The demand for cover did not lead to competitive pricing. The usual billing arrangements for group B, and subsequently the new group, were that the “owning” obstetrician would charge the patient for any procedures performed but would pay the covering obstetrician $1,000 (excl. GST) per delivery, around $40 (excl. GST) for out of hours consultations and a portion of a surgical fee if other procedures were performed, with the fee varying based on the procedure.^[412] The standard rates charged by covering obstetricians in group A were $800 (incl. GST) per delivery and $35 (incl. GST) for an outpatient consultation out of hours.^[413] Those standard rates were paid to Drs Kerridge and Sheahan when they provided one way cover to the members of group A.^[414]
     3. There was no evidence of any rivalry or competition amongst obstetricians to provide cover, as part of a roster or otherwise.
219. [219]
     Dr Price did not prove the competition condition.

Third Group of Issues: In or about April 2021, did the defendants make the New Group Arrangement?; Did each of the defendants give effect to the Exclusionary Provision?; Did the Exclusionary Provision have the purpose of directly or indirectly preventing, restricting or limiting the supply or likely supply of on-call services to Dr Price by the defendants?

220. [220]
     The terms “arrangement” and “understanding” were considered in detail in the following passage of the judgment of Gray J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd:^[415]

“The word ‘arrangement’ is less clearly understood, and more susceptible of elasticity as to its meaning.  In general, it appears to connote a consensual dealing lacking some of the essential elements that would otherwise make it a contract.  For instance, a dealing that would otherwise be a contract may be described as an ‘arrangement’ if the parties to it intended not to create a legally binding relationship, but only to give expression to their intentions as to the obligations that each felt morally bound to adhere to in relation to what was to pass between them, or to be carried out by them.  Of course, an arrangement might be a broader concept than this, because it is a term the boundaries of which have not been fixed in the traditional understanding of lawyers.  The Oxford English Dictionary gives as the apparently appropriate meaning of the word ‘arrangement’ ‘a settlement of mutual relations or claims between parties; an adjustment of disputed or debatable matters; a settlement by agreement’, or alternatively, ‘disposition of measures for the accomplishment of a purpose; preparations for successful performance’.  The ordinary understanding of what amounts to an ‘arrangement’ makes it difficult to envisage that an arrangement could come about without express negotiations between the parties, although there have been suggestions that an arrangement can be tacit.  See Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 301–302 per Fisher J, with whom Brennan and Deane JJ agreed, referred to by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 24 in the context of s 45(2) of the Trade Practices Act. At the very least, there must be some express communication between the parties, although what is said may not amount to offer and acceptance for the purposes of the law of contract. The need for express communication is also suggested by the use of the verb ‘make’ in conjunction with both ‘contract’ and ‘arrangement’ in s 45(2)(a) of the Trade Practices Act. It is hard to see how two parties could ‘make’ an ‘arrangement’ without doing so expressly, at least as to the substance of the arrangement, even if the acceptance by one party of what the other has communicated is implicit in some act, rather than expressed in words.

The word ‘understanding’ is obviously intended to connote a less precise dealing than either a contract or arrangement. This is so because of the meaning of the word ‘understanding’ itself, and because, in the terms of s 45(2)(a), the parties to it may ‘arrive at’ it instead of making it. Once again, the Oxford English Dictionary supplies an appropriate definition: ‘a mutual arrangement or agreement of an informal but more or less explicit nature.’  It is the informal and less explicit nature of an understanding that led Smithers J to describe the concept of an understanding as ‘broad and flexible’ in L Grollo & Company Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81 at 89.

However broad and flexible an understanding might be, for the purposes of s 45(2)(a) of the Trade Practices Act it must be a consensual dealing between parties. Like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court. Unlike an arrangement, it can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds. In Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 24 FLR 286 at 291, Smithers J (with whom Evatt J agreed) referred to what Diplock LJ said in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727 at 746 in relation to English legislation in terms different from s 45(2) of the Trade Practices Act, and said:

by parity of reasoning it would follow that the existence of an arrangement of the kind contemplated in s 45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement.

It seems to me also that an understanding must involve the meeting of two or more minds.  Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act.

Similarly, in Grollo 34 FLR at 89, Smithers J said as to an understanding that:

It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct.

This view as to what is necessary for the formation of an understanding has been followed on many occasions. It is unnecessary to set out all of the authorities in which it has been referred to. I accept the correctness of what Smithers J said without hesitation. It is important, however, not to confuse what is required for the formation of an understanding within the meaning of s 45(2)(a) of the Trade Practices Act with what is required to be the content of an arrangement or understanding for the purposes of s 45(2)(a). Counsel for the ACCC were inclined to rely on authorities describing the formation of an understanding, when attempting to persuade the Court as to the required content.”

221. [221]
     An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it notwithstanding their adoption of it.^[416] The existence of an arrangement or understanding is often inferred from conduct.^[417] The meeting of the minds may be approved by independent facts and from inferences drawn from primary facts including evidence of joint action by the parties in relation to relevant matters and evidence that the conduct of the parties exhibits “a concurrence of time, character, direction and result”.^[418]
222. [222]
     The purpose of conduct is the end sought to be accomplished by the conduct.^[419] In News Ltd v South Sydney District Rugby League Football Club Ltd (“News Ltd”),^[420] Gleeson CJ said:

“The distinction between purpose and effect is significant. In a case such as the present, it is the subjective purpose … that is to say, the end they had in view, that is to be determined. Purpose is to be distinguished from motive. The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end … The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose …” (footnotes omitted)

223. [223]
     By reference to the facts of that case, the Chief Justice went on to observe:^[421]

“The purpose of the fourteen team term was the objective, in relation to the nature of their business arrangements, that News and ARL sought to achieve; not the reason why they sought to achieve that objective. They may have had different, and multiple, reasons for their conduct. The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose. In other cases, it may be difficult, or even impossible, to determine the purpose (of a kind relevant to the operation of the Act) of a provision in a written contract merely by reading the document.”

224. [224]
     In News Ltd,^[422] McHugh J relevantly said:

“… in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd [No 1],^[423] the Full Court of the Federal Court … acknowledged that there would necessarily be some difficulty in establishing a single subjective purpose given that there will be two or more parties to the contract, arrangement or understanding.”

225. [225]
     McHugh J went on to observe that “[i]f the parties have different subjective purposes or have never turned their minds to the purpose of the provision, neither s 4D nor s 4F would have any operation”.^[424]
226. [226]
     In News Ltd, Gummow J relevantly said:^[425]

“Moreover, as Toohey J pointed out in Hughes,^[426] the application of a subjective test does not exclude a consideration of the circumstances surrounding the reaching of the understanding.  By considering the surrounding circumstances, the court will be using objective considerations to determine whether the parties held the subjective purpose they claim.”

227. [227]
     Callinan J observed that “[t]he ‘purpose’ of the provision of the contract, arrangement or understanding to which s 4D directs attention is the parties’ subjective reason for its inclusion of the provision in the contract, arrangement or understanding”.^[427]
228. [228]
     Pursuant to s 4F(1)(a) of the CCA, a provision is to be treated as having had a particular purpose if it was included in the relevant arrangement or understanding for that purpose and the purpose was a “substantial purpose”. A substantial purpose is one which was “considerable or large” or “real and not imaginary”.^[428] It is important to note that not all of the parties to the relevant arrangement or understanding need to have subjectively held the prescribed purpose. In that sense, the prohibition against cartel conduct “does not discriminate in its reach between those who have sought the inclusion of the impugned provision and those who have merely acquiesced in its inclusion”.^[429] Any inquiry in relation to the subjective purposes of the parties is relevant to determining the substantial purpose for the inclusion of the provision. There is no requirement that for a cartel provision to have been “aimed at” or as having “targeted” a particular person. The parties to the relevant arrangement or understanding need not have had a subjective goal of inflicting damage or harm on a person.^[430]
229. [229]
     The New Group Arrangement was alleged to have been made in or about April 2021 by Drs Friebe, Kerridge, Sheahan, Bajra, Kretowicz and Kho. On or about 13 April 2021, Dr Sheahan, after having consulted with Dr Bajra, formed the view that Drs Friebe and Kerridge would be invited to join group B, but that Dr Price would not be invited to join the new group. Dr Sheahan was the relevant person who framed the invitation to Drs Friebe and Kerridge. Drs Kretowicz and Kho were not involved in the decision-making process. They were eventually advised of the decision and abided by the decision. The invitation to Drs Friebe and Kerridge was expressed on the basis that a decision had been made by group B and that, relevantly, Dr Price would not be being invited to join the new group. Drs Friebe and Kerridge accepted the invitation to join the new group on that basis. Those facts are sufficient to establish at least an understanding as between Drs Friebe, Kerridge, Sheahan, Bajra, Kretowicz and Kho that the new group was to form and that Dr Price would not be invited to be one of its members. Dr Price was not invited to join the new group and was not included in its published rosters. In that sense, effect was given to the First Exclusionary Provision, as it was styled by Dr Price’s pleading.
230. [230]
     The relevant issue then becomes what was the substantial purpose of including within the understanding the provision or stipulation that Dr Price would not be invited to join the new group. As Callinan J observed in News Ltd,^[431] this inquiry directs attention to the parties’ subjective reasons for including the provision in the understanding. Dr Price alleged that the purpose was to directly or indirectly prevent, restrict or limit the supply or likely supply of on-call services to him by the defendants. That pleaded purpose was not put to any of the defendants in cross-examination. The allegation of a purpose to directly or indirectly prevent, restrict or limit the supply or likely supply of on-call services to Dr Price was a serious allegation. When determining whether the evidence was sufficient to establish that serious allegation, the Court is entitled to take into account the lack of any cross examination on the issue.^[432] There was a substantial body of evidence given by way of evidence in chief from the various defendants to the effect that they had never discussed refusing one way cover to Dr Price should he have asked for such cover and did not intend to limit or restrict the supply of cover to him.^[433] I accept that evidence.
231. [231]
     The circumstances surrounding the reaching of the understanding may be set out as follows:

     1. Group B was a very harmonious group;
     2. The roster conducted by group B was reciprocal;
     3. At a time when Dr Watson had not yet retired, group B rejected a proposal by group A to amalgamate on the basis that the existing number of members of group B was well suited to the current workloads of the members of group B;
     4. That rejection had been accompanied by an offer to provide one way cover to group A in an effort to harmonise and improve the working atmosphere at the hospital;
     5. Dr Watson had since retired, meaning that the membership of group B had reduced and its members were now being required to be on-call more often;
     6. Drs Bajra and Kerridge had expressed a desire to be part of a larger group;
     7. Drs Sheahan and Friebe discussed the prospect of amalgamating the two groups.
     8. Dr Sheahan knew that Dr Bajra would not support Dr Price joining the roster;
     9. Dr Sheahan knew that if Dr Price joined the roster, Dr Bajra would not provide cover to, or accept cover from, Dr Price;
     10. Dr Sheahan himself would not accept cover from Dr Price because he had personal difficulties with Dr Price and regarded him as a difficult personality who was manipulative;
     11. Dr Sheahan knew that Dr Price had been and was receiving one way cover and was likely to continue to receive such cover going forwards.
232. [232]
     Dr Sheahan was the spokesperson and relevant decision maker for group B. He decided to make the offer to Drs Friebe and Kerridge in the terms which he did. I find that the purpose of including the stipulation that Dr Price was not to be invited was to ensure that the roster was a genuinely reciprocal, larger roster, which was cohesive and harmonious. That was the end sought to be achieved by Dr Sheahan’s inclusion of the stipulation that Dr Price not be invited. The motives of the various defendants for seeking a genuinely reciprocal, cohesive and harmonious larger roster may be set out as follows. Dr Bajra wanted to work less weekends. Dr Kerridge wanted to work less weekends and not be in a reciprocal relationship with Dr Price. Dr Friebe wanted to be in a larger group for family reasons. Dr Sheahan wanted a larger group based on mutual respect. Drs Kretowicz and Kho had no relevant motives. The understanding did not have any purpose, substantial or otherwise, of restricting or limiting the supply of on-call services to Dr Price.
233. [233]
     Dr Price has failed to establish the purpose condition. 
234. [234]
     It follows from my reasoning that the cartel conduct  case has not been established.

Fourth Group of Issues: Did the conduct of the defendants occur in “trade or commerce” in connection with the supply or possible supply of on-call services to other obstetricians within the meaning of s 21(1) of the ACL?; Was Dr Price in a position of situational disadvantage and vulnerability in relation to the conduct of the defendants (acting collectively)?; Did Dr Price make arrangements for his practice upon the expectation that group roster would continue in the same or substantially the same form?; Was the defendants’ conduct unconscionable within the meaning of s 21(1) of the ACL?

235. [235]
     Section 21 of the ACL relevantly provides:

1. “(1)
   A person must not, in trade or commerce, in connection with:

1. the supply or possible supply of goods or services to a person; or

2. the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

…

3. For the purpose of determining whether a person has contravened subsection (1):

1. the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

2. the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

4. It is the intention of the Parliament that:

1. this section is not limited by the unwritten law relating to unconscionable conduct; and

2. this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

3. in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

1. the terms of the contract; and

2. the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.”

236. [236]
     Section 22 sets out a non-exhaustive list of factors to which the court may have regard for the purpose of determining whether a party has contravened s 21. Relevantly, those include inequality of bargaining power and whether unfair tactics have been used by the party alleged to have engaged in unconscionable conduct.
237. [237]
     Conduct will be regarded as unconscionable for the purpose of s 21(1) where it “objectively answers the description of being against conscience”.^[434] It is necessary to have regard to all of the circumstances in which the alleged offending conduct has occurred. Community values more generally are relevant.^[435] Importantly, this section does not prohibit the legitimate pursuit of self-interest.^[436] It has been observed that the conduct must be “so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience”.^[437]
238. [238]
     Dr Price’s written closing submissions summarise the conduct said to establish unconscionable conduct as follows:

     1. the approach to amalgamate the two groups in October 2020 and the rejection of that;
     2. Dr Friebe’s suggestion that Dr Price not take an active role in further discussions with group B;
     3. the agreement in 2021 between the defendants to form the new roster which consisted of all the members of groups A and B except Dr Price;
     4. the publication of rosters consistent with the New Group Arrangement;
     5. the failure of the defendants, or any of them, to respond to Dr Price’s entreaties to be included in the new group;
     6. Dr Sheahan’s dodging Dr Price’s questions about why he was being excluded from the new group;
     7. Dr Kretowicz’s statements that she did not know anything about the issue and that she merely went along with group decisions;
     8. failure to respond to the letters sent by Dr Price on 23 April 2021 again requesting inclusion; and
     9. publication of rosters giving effect to the First Exclusionary Provision.
239. [239]
     The new group was intended to be a genuinely reciprocal, larger roster, which was cohesive and harmonious. An important reason for its formation was that its members could have more time away from work. There was nothing unconscionable about the defendants’ pursuit of self interest in that regard. The formation and operation of a functional, reciprocal obstetrics roster group involves consensual relationships characterised by mutual trust and confidence. Dr Price sought to impose himself into such a relationship in circumstances where he did not enjoy the mutual trust and confidence of the group members and was not proposing to accept reciprocal cover from Dr Bajra. Dr Price’s inclusion in the new group would have meant that Drs Bajra, Kho and Sheahan did not accept cover from Dr Price and Dr Price did not accept cover from Dr Bajra. The inclusion of Dr Price in the new group would have impaired its functionality at a practical level and transformed the roster from a reciprocal roster to a roster which was, in significant respects, non-reciprocal. That feature of itself would have damaged an important precept of the new group, namely that the group was to be co-operative and based on mutual respect and support. Dr Price was not liked or respected at a personal level by Drs Sheahan, Bajra, Kerridge and Friebe. Their desire not to be involved in a reciprocal, professional working relationship with Dr Price could not be said to involve conduct “so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience”. That is particularly the case once it is appreciated that Drs Friebe, Sheahan, Kretowicz, and Kerridge remained prepared to offer Dr Price one way cover to support his continued practice of obstetrics.
240. [240]
     Dr Price failed to establish the unconscionable conduct case. 

Fifth Group of Issues: Was Dr Price’s decision to cease practicing obstetrics at the hospital from in or around January 2022 caused by the defendants’ conduct?; The quantum of Dr Price’s loss and damage; But for the conduct of the defendants, for how long would Dr Price have continued practicing obstetrics at the hospital?; Did Dr Price mitigate his loss

241. [241]
     Dr Price sought damages under s 82 of the CCA. He was required to prove the causal requirement that his loss was sustained “by” the contravention.^[438] In respect of the unconscionable conduct claim, s 236 of the ACL provides a right to damages suffered “because of a breach of s 21. The causation requirement to recover damages for breach of s 21 is the same as the requirement imposed under s 82 of the CCA. In Norcast S.ar.L v Bradken Ltd (No 2),^[439] Gordon J observed:

“In order to recover damages, Norcast must establish that it suffered loss or damage ‘because of’ Bradken’s or Castle Harlan’s conduct in breach of s 18 of the ACL: s 236 of the ACL. The use of the words ‘because of’, as with the use of the word ‘by’ in s 82 of the TPA, should be understood to import the traditional notion of causation as a question of fact to be determined by reference to commonsense and experience into which policy considerations and value judgments necessarily enter: Wardley Australia Limited v Western Australia (1992) 175 CLR 514; March v E & MH Stramare Pty Limited (1991) 171 CLR 506. It is not always necessary to establish reliance in order to prove causation: Janssen-Gilag Pty Limited v Pfizer Pty Ltd (1992) 37 FCR 526 at 529-530 cited in Marks v GIO at 528 and SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116 at [211].”

242. [242]
     Dr Price bore the onus of proving that he had suffered loss or damage by the defendants’ conduct. Whether Dr Price suffered loss “by” or “because of” the defendants’ conduct required taking up the common law practical commonsense concept of causation.^[440] Dr Price’s onus was to establish that the defendants’ conduct played a part in his loss or damage. The relevant question is whether the conduct was a cause of (in the sense of having materially contributed to) his loss.^[441] In March v E & MH Stramare Pty Ltd,^[442] Mason CJ observed that legal questions of causation “are asked and answered with a view to allocating legal responsibility, very often on the basis of fault”. The legal approach to causation involves matters “of both logic and common sense”.^[443]
243. [243]
     For the purposes of the question of causation, Dr Price focused upon the defendants’ conduct in not having invited him to join the new group. That was a constrained and artificial characterisation of the defendants’ conduct. Whilst the defendants’ conduct included not extending an invitation to Dr Price to join the new group, a significant part of their conduct involved a preparedness to work through the ensuing situation with Dr Price and to extend him cover to enable him to continue with his practice. As a matter of personal preference, Dr Price found it more convenient to insist upon admission to a reciprocal roster group. Dr Price insisted upon that outcome notwithstanding that he was not prepared to be part of a truly reciprocal roster because he was not prepared to allow his patients to receive reciprocal care from Dr Bajra. Dr Price admitted that it would possibly have been sufficient for him to have certainty of practice if he had “struck an arrangement with [his] colleagues, being the six defendants, that when each of them was on call for that group, at least some of them would also provide [him] with one way cover”.^[444] Dr Price never pursued such an arrangement. Adopting a commonsense approach, and having due regard to logical and rational considerations, Dr Price’s decision to cease obstetric practice is properly characterised as a voluntary decision made by reference to his personal preference that he would only continue in practice as a participant in a reciprocal roster group. The defendants’ conduct was not in any material sense a cause of Dr Price’s personal preference and nor did that conduct logically dictate that Dr Price was required to cease practice. I find that the defendants’ conduct did not materially contribute to, and was not a cause of, Dr Price’s alleged loss.
244. [244]
     In the event that Dr Price had otherwise established the elements of his causes of action, he was entitled to be compensated for any damage sustained by him. In assessing his loss and damage, the Court is required to “do its best to quantify the loss even if a degree of speculation and guess work is involved”.^[445] Loss or damage includes economic, financial loss as well as consequential loss which is a direct result of the impugned conduct.^[446]
245. [245]
     In Williams v Pisano,^[447] the NSW Court of Appeal observed:

“In many cases, the measure of damages in tort is the appropriate guide in determining an award of damages under s 236. However, in assessing damages, it is not necessary to choose between the measure of damages in deceit or other torts and contract. The central requirement under s 236 is to establish a causal connection between the loss claimed and the contravening conduct. Once such a causal connection is found to exist, the principles in relation to remedies in contract, tort or equity, such remedies will usually be of considerable assistance by way of analogy. However, the recoverable amount should not be limited by drawing an analogy with such remedies and, in particular cases, general principles for assessing damages may have to give way to solutions better adapted to give the injured claimant an amount that will most fairly compensate for the wrong suffered.”

246. [246]
     Section 82 required Dr Price to mitigate his loss. In Finucane v New South Wales Egg Corporation,^[448] Lockhart J held:

“There is an obligation upon the applicant under s 82 to take reasonable steps to mitigate his loss consequent upon the respondent's conduct, and the applicant cannot recover damages for losses which he could reasonably have avoided: Brown v Jam Factory Pty Ltd (1981) 35 ALR 79 at 88; 53 FLR 340 at 351 per Fox J.”

247. [247]
     In Sherson & Associates Pty Ltd v Bailey,^[449] Heydon JA summarised the relevant principles as follows:

“A plaintiff ‘cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself’: Driver v War Services Homes Commissioner (1923) 44 ALT 130 at 134 per Irvine CJ (emphasis added). A plaintiff cannot recover damages for losses ‘which he would not have incurred had he acted reasonably in the ordinary course of his business’: TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 162 per Priestley JA (emphasis added). Subject to the criterion of reasonableness, the plaintiff ‘is completely free to act as he judges to be in his best interests’: The Soholt [1983] 1 Lloyd’s Rep 605 at 608 per Sir John Donaldson MR (emphasis added). ‘The word “reasonable” has in law the prima facie meaning of reasonable in regard to those existing circumstances of which the actor, called on to act reasonably, knows or ought to know’: In re a Solicitor [1945] KB 368 at 371 per Scott, Lawrence and Morton LJJ; see also Adams v Eta Foods Ltd (1987) 78 ALR 611 at 621 per Gummow J.”

248. [248]
     If, contrary to the finding I have already made, the defendants’ conduct caused Dr Price’s decision to cease practice, I find that he acted reasonably as he judged to be in his best interests in his subsequent work endeavours and efforts to replace what he considered to be lost income. I accept that it had always been important to Dr Price as an obstetrician to live in very close proximity to his rooms and the hospital at which he worked. It was not unreasonable for him to not pursue potential opportunities to establish an obstetric practice at hospitals significantly removed from his place of residence.
249. [249]
     The defendants made submissions to the effect that Dr Price had made minimal attempts to replace his income and failed to properly articulate the income which he had earned either directly or through related entities.^[450] I reject those submissions. I accept that the efforts of which Dr Price took following his decision to wind down his obstetric practice to replace his income were genuine and reasonable efforts. I accept that his efforts to generate income from locum work produced considerably less income than he was able to earn from practicing as an obstetrician at the hospital. I accept that his decision, from early October 2021, to wind down his Sunshine Coast practice was reasonable.
250. [250]
     Mr Lytras prepared his report with the objective of attempting to place Dr Price in the financial position he would reasonably have been in, if not for the defendants’ conduct. He adopted what he described as a “simple calculation equation” involving “lost income minus costs saved”. The period of time the subject of the calculation was from 14 June 2021 until mid-January 2027 being the date when Dr Price claimed that he would have ceased obstetric practice at the hospital in the usual course without the defendants’ conduct having occurred.
251. [251]
     The material assumptions relevant to the assessment of quantum made by Mr Lytras may be relevantly set out as follows:

     1. Dr Price ceased taking new obstetric patients at the hospital on 14 June 2021 and ceased providing obstetric services entirely on 11 January 2022.
     2. Given that Dr Price intended to retire within approximately five years’ time, it was not feasible for him to commence practice at another hospital as it takes years to establish and build an obstetrics practice.
     3. Dr Price’s Sunshine Coast practice was nominal compared to his practice at the hospital and limited to the provision of gynaecological services.
     4. The Sunshine Coast practice suffered as a result of Dr Price having to be located in Brisbane fulltime whilst he was winding up his obstetric practice at the hospital without any cover.
     5. The closure of Dr Price’s obstetrics practice would limit the acquisition of new clients in Dr Price’s gynaecological practice.
252. [252]
     There was very limited cross-examination of Mr Lytras. Having read Mr Lytras’ report and considered his oral evidence, I formed the view that he had undertaken a thorough and considered analysis and that the opinions he expressed in his report were entirely reasonable. I accept Mr Lytras’ calculations as contained in the amended joint report.^[451]
253. [253]
     The opinions expressed by Mr Lytras did not reflect or account for extra income received as a result of Dr Price having worked in Gladstone from October 2022 after the preparation of Dr Lytras’ report.^[452] As to that work in Gladstone, I make the following findings:

     1. the work commenced in October 2022;^[453]
     2. from October 2022 until around early January 2023 he worked “almost every weekend”;^[454]
     3. after that, he worked three out of four weekends until June 2023;
     4. Dr Price estimates that, in the six months from October 2022, he worked in Gladstone “24 out of 37 weekends”;^[455]
     5. since June 2023, he has worked every second weekend;
     6. he intended to finish that work on the 25th of December 2023;^[456] and
     7. he earned $9,000 per weekend.^[457]
254. [254]
     Having regard to that evidence, I find that Dr Price replaced income of $297,000 in the 2023 financial year and a total of $117,000 in the 2024 financial year.
255. [255]
     I consider that it is appropriate to adjust Mr Lytras’ calculations as set out in the redacted joint report as follows:

     1. Reducing the 2023 loss figure from $485,606 to $188,606.
     2. Reducing the 2024 loss figure from $477,369 to $360,369.
     3. Reducing the total loss before discount, from $2,379,655 to $1,965,658.
256. [256]
     I accept Mr Lytras’ opinions as expressed at paragraph 54(e) of the joint report. I consider it appropriate to adopt a discount rate in respect of future loss amounts relating to contingencies and have adopted a rate of 5 percent. Putting aside any questions of interest, had Dr Price otherwise been successful in establishing the elements of his causes of action, I would have assessed the loss or damage suffered by him at $1,577,444.45.

Orders

1. Judgment for the defendants.
2. I will hear the parties as to costs.