Leslie v P Cusick & A Cusick t/as Rosemont Endoscopy Centre [2003] NSWIRComm 39

Leslie v P Cusick & A Cusick t/as Rosemont Endoscopy Centre [2003] NSWIRComm 39

The overall relationship between Dr Leslie and REC was more than a professional procedurist/sedationist association terminable at will. It included regular sedationist work organised by REC, accreditation as a VMO, duties as Director of Anaesthetic Services, responsibility to the medical director, training and accreditation work, assistance with theatre design, and an arrangement to give four weeks' notice of leave. Dr Cusick, as owner/operator and medical director, terminated that overall arrangement on 24 or 25 October 1999. Although Dr Leslie acted unreasonably in leaving for East Timor on very short notice despite knowing REC strongly objected, the summary termination was unfair...

Jurisdiction
Australia
Judgment Date
21 February 2003
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Final Judgment After Hearing
Outcome
The Court declared the overall arrangement to be an unfair contract, varied it to require one month's notice of termination by the principals of REC, declined to make any monetary orders, and ordered the respondents to pay the applicant's costs.
Legal Topics
['unfair Contract Under Ss 105 and 106 of the Industrial Relations Act 1996' 'medical Practitioner Working as a Sedationist at a Licensed Endoscopy Centre' 'visiting Medical Officer Arrangement' 'termination of Work Arrangement' 'notice of Termination' 'mitigation of Loss' 'costs']
['industrial Relations' 'contract Law' 'unfair Contracts'] ['unfair Contract Under Ss 105 and 106 of the Industrial Relations Act 1996' 'medical Practitioner Working as a Sedationist at a Licensed Endoscopy Centre' 'visiting Medical Officer Arrangement' 'termination of Work Arrangement' 'notice of Termination' 'mitigation of Loss' 'costs']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the relationship between Dr Leslie and the respondents was a contract or arrangement whereby work was performed in an industry within ss 105 and 106 of the Industrial Relations Act 1996.' 'Whether the relevant arrangement was merely a professional procedurist/sedationist relationship terminable at will or a broader arrangement with the Rosemont Endoscopy Centre.' 'Whether the summary termination of the overall arrangement after Dr Leslie went to East Timor was unfair.' 'What relief, if any, should be granted, including notice, monetary orders and costs.' 'Whether mitigation of loss should be taken into account.']

Ratio Decidendi

The overall relationship between Dr Leslie and REC was more than a professional procedurist/sedationist association terminable at will. It included regular sedationist work organised by REC, accreditation as a VMO, duties as Director of Anaesthetic Services, responsibility to the medical director, training and accreditation work, assistance with theatre design, and an arrangement to give four weeks' notice of leave. Dr Cusick, as owner/operator and medical director, terminated that overall arrangement on 24 or 25 October 1999. Although Dr Leslie acted unreasonably in leaving for East Timor on very short notice despite knowing REC strongly objected, the summary termination was unfair...

Court Disposition

The Court declared the overall arrangement to be an unfair contract, varied it to require one month's notice of termination by the principals of REC, declined to make any monetary orders, and ordered the respondents to pay the applicant's costs.

Orders

  • ['The Court declares that the contract between the applicant and the respondents which is described in this judgment as "the overall arrangement" is an unfair contract within the meaning of s 105 of the Industrial Relations Act 1996.' "The overall arrangement between the applicant and the respondent is varied from...