HWL Ebsworth has successfully defended six obstetricians against a $2.4M lost income claim by a fellow obstetrician who alleged that his exclusion from a weekend cover roster forced him to cease his obstetrics practice at a Brisbane hospital.
The plaintiff, Dr Price, alleged that by forming a new group for reciprocal weekend cover arrangements which did not include him the defendants engaged in cartel conduct within the meaning of section 45AD(1) of the Competition and Consumer Act 2010 (Cth) or unconscionable conduct in contravention of section 21 of the Australian Consumer Law, and that this ultimately caused Dr Price to cease his obstetrics practice at the hospital.
The defendant obstetricians were represented by Bill Hickey (Partner) and Lee Deutzmann (Special Counsel) of HWL Ebsworth Lawyers’ Brisbane office and by Matthew Jones KC.
The decision
Judgment was delivered on 26 July 2024 following a seven day trial in the Supreme Court of Queensland in October and November 2023. In deciding the case in favour of the defendants His Honour Justice Kelly stated “The new group was intended to be a reciprocal, larger roster, which was cohesive and harmonious and 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.” (at [239])
In dismissing the cartel conduct claim the Court was not satisfied that the defendant obstetricians had the purpose of restricting or limiting the supply of on-call services to Dr Price when they decided to not invite Dr Price to join their cover roster. Justice Kelly found that “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… ” (at [239])
His Honour was also not persuaded that the defendants’ conduct was unconscionable, stating in relation to those defendants who did not get along with Dr Price that “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 [a number of the defendants] remained prepared to offer Dr Price one way cover to support his continued practice of obstetrics.” (at [239])
Justice Kelly similarly did not accept that Dr Price ceasing his obstetrics practice was the logical consequence of his exclusion from the group roster: “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.” (at [243])
The reasons for decision are available in full here: Price v Friebe & Ors [2024] QSC 157
Implications
Medical practitioners and other industry stakeholders will recognise the significance of the Court’s findings regarding cover arrangements and roster groups. In addition to those extracted above, His Honour’s reasons for decision included findings that the obstetricians at the hospital were not “in competition” with each other in respect of the provision of on-call services but rather that the provision of cover was a collegiate service, and that the hospital’s Facility Rules did not require obstetricians to be part of a roster arrangement but rather, only required them to have another obstetrician available to provide cover for any period of unavailability. In those circumstances, claims of this kind must fail.
This article was written by Katharine Philp, Partner, and Lee Deutzmann, Special Counsel.
