Windsor v Sydney Medical Service Co-operative Ltd (No. 4) [2012] FCA 58 (9 February 2012)

Last Updated: 9 February 2012

FEDERAL COURT OF AUSTRALIA

Windsor v Sydney Medical Service Co-operative Ltd (No. 4) [2012] FCA 58

Citation:		Windsor v Sydney Medical Service Co-operative Ltd (No. 4) [2012] FCA 58
Parties:		GINA NICOLE WINDSOR v SYDNEY MEDICAL SERVICE CO-OPERATIVE LIMITED
File number:		NSD 291 of 2007
Judge:		EDMONDS J
Date of judgment:		9 February 2012
Catchwords:		CONTRACT – alleged breaches of agreements to provide medical services to patients of general practitioner members of medical deputising service – whether agreements entered into on terms and conditions alleged – whether agreements entered into at all. Held: No agreements of the kind alleged entered into – no alleged breach of agreement entered into – application dismissed.
Date of hearing:	18, 19, 20, 21, 27, 28 and 29 April 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	84
Counsel for the Applicant:	Mr G Blake SC with Mr B Ilkovski
Solicitor for the Applicant:	Auslegal
Counsel for the Respondent:	Mr DAC Robertson
Solicitor for the Respondent:	Unsworth Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 291 of 2007

BETWEEN:	GINA NICOLE WINDSOR Applicant
AND:	SYDNEY MEDICAL SERVICE CO-OPERATIVE LIMITED Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	9 FEBRUARY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.
   

Note: Entry of orders is dealt with in Rule 39.32 the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 291 of 2007

BETWEEN:	GINA NICOLE WINDSOR Applicant
AND:	SYDNEY MEDICAL SERVICE CO-OPERATIVE LIMITED Respondent

JUDGE:	EDMONDS J
DATE:	9 FEBRUARY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

OVERVIEW

1. The applicant (“Dr Windsor”) is a medical practitioner who, in the period from 13 January 2001 to 23 December 2006, consulted with patients referred to her by the respondent (“SMS”). SMS is a medical deputising service and offers after hours medical services to patients of general practitioners who are subscribing members of SMS.
2. In this proceeding Dr Windsor claims that SMS breached an agreement that she allegedly made with SMS on or about 8 January 2001 and varied on 10 January 2001 (“the agreement”) or, alternatively, on 10 January 2001 (“the alternative agreement”) about how she would perform and be paid for consultations with patients referred to her by SMS. Dr Windsor claims that SMS’ breaches of the agreement or alternative agreement has caused her to suffer loss and damage.
3. I have come to the conclusion that Dr Windsor’s claims have no foundation in fact or law. Indeed, I am of the view that the proceeding should never have been commenced and prosecuted in the way it was. I have also formed the view that Dr Windsor was not responsible for this. She appeared to me to be a reluctant litigant. Had the matter been left to her, I very much doubt that the proceeding would have gone ahead. But it is clear from the procedural background to this case, the affidavit and oral evidence from both sides and the active involvement of Dr Windsor’s husband, Mr Neil Windsor (“Mr Windsor”), in all dealings between Dr Windsor and SMS at all times from before Dr Windsor commenced to provide her services until she ceased providing those services, that Mr Windsor was the driving force behind this proceeding. It is not necessary to explore the reasons for this although, as I have observed below, perhaps Mr Windsor had more to gain than Dr Windsor. The evidence establishes that at no time during her six years with SMS was one penny paid by SMS to Dr Windsor; everything was paid to either Mr Windsor or to companies under his ownership and control; and there is no evidence to suggest that Dr Windsor was paid an income for such services either by Mr Windsor or any of his relevant companies. I will have more to say about this matter later in these Reasons.

PROCEDURAL BACKGROUND

4. This proceeding was commenced by application dated and filed 28 February 2007, together with a statement of claim dated and filed the same date, wherein Dr Windsor pleaded that SMS breached the fundamental terms or conditions of an agreement whereunder Dr Windsor, a registered medical practitioner, was to provide after hours medical services as a locum to patients of SMS’ general practitioner members.
5. SMS is a co-operative registered under the Co-operatives Act 1922 (NSW). Its members are all general medical practitioners. At all material times, its only business has been to provide a medical deputising service within the Sydney Metropolitan Area offering after hours medical service to patients of its general practitioner members. In the course of its business, it “engages” medical practitioners, known as “locums”, to provide the after hours medical service through “home visits”.
6. In the original statement of claim, the agreement referred to in [1] above is alleged to have been made during conversations and meetings, on or about 13 December 2000 and 8 and 9 January 2001, between Mr Tim Muldoon (“Mr Muldoon”) acting on behalf of SMS and Mr Windsor acting on Dr Windsor’s behalf. A number of pleaded breaches of that agreement were particularised in the statement of claim over the period from 13 January 2001 to 24 December 2006 when it is pleaded that Dr Windsor terminated the said agreement and ceased providing her services as a locum to patients of SMS’ general practitioner members.
7. In the originating process, Dr Windsor invoked the jurisdiction of the Court under the Trade Practices Act 1974 (Cth) alleging SMS had made representations in breach of s 52 of that Act and claiming damages, not only for breach of contract but pursuant to ss 82 and 87 of that Act, in excess of $9.3 million.
8. The original statement of claim was struck out by order made on 17 March 2008.
9. Some eight months later, by an amended statement of claim dated 18 November 2008 and filed 1 December 2008, Dr Windsor pleaded that on or about 8 January 2001, she and SMS entered into the agreement for her to provide medical services on behalf of SMS and that on 10 January 2001, she and SMS entered into an agreement to vary the agreement in a number of respects. Dr Windsor further pleaded that in the period from 13 January 2001 until 23 December 2006, SMS committed a number of breaches of the agreement; and that, as a result of those breaches and Dr Windsor’s termination of the agreement, Dr Windsor had suffered unquantified loss and damage. The claims under the Trade Practices Act had disappeared.
10. Some eleven months later, by a further amended statement of claim dated and filed 16 October 2009, Dr Windsor quantified her claims for loss and damage at $3,840,572.20 or, in the alternative, at least $2,732,628.71.
11. By a fourth further amended statement of claim (“FFASC”) filed in Court, with leave, on 28 April 2011 (six days into the hearing) Dr Windsor pleaded, in the alternative to the agreement, that she and SMS entered into the alternative agreement on 10 January 2001 for the provision of her medical services and that, in the period from 13 January 2001 until 23 December 2006, SMS committed a number of breaches of the agreement or the alternative agreement; and that as a result of those breaches and Dr Windsor’s termination of the agreement or the alternative agreement, she has suffered loss and damage which she re-quantified from that in the further amended statement of claim.
12. It is readily apparent that by the time the case came on for hearing on 18 April 2011, “a lot of water had passed under the bridge”, and Dr Windsor’s case had taken on a very different shape and form from that commenced on 28 February 2007. The “moving feast” continued after the hearing commenced.
13. After the hearing, Dr Windsor sought to file, subject to leave being granted, a fifth further amended statement of claim again re-quantifying her claim for loss and damage. As I am not prepared to grant that leave, it is unnecessary to detail this re-quantification.

THE PLEADINGS

14. It is useful, at this early stage, to summarise the pleadings in the FFASC and my conclusions on each. I will then detail the evidence relevant to each and my findings based on that evidence in support of my conclusions.
15. Dr Windsor pleaded (at FFASC [5]) that on or about 8 January 2001 she and SMS entered into an agreement for SMS to provide her with patient introduction services and certain management and advisory services. The agreement was said to be partly written, partly oral and partly implied. Particulars were provided in support. Dr Windsor pleaded the express terms of this agreement (at FFASC [6]) and the implied terms (at FFASC [7]) and provided particulars of the implied terms.
16. Dr Windsor pleaded that the express terms at FFASC [6] included (at (d)) that SMS would provide Dr Windsor with the following shifts:

(i) Saturday 4 pm – 1 am 9 hours

(ii) Monday 1 am – 8 am 7 hours

(iii) Tuesday 1 am – 8 am 7 hours

(iv) Wednesday 1 am – 8 am 7 hours

(v) Thursday 1 am – 8 am 7 hours

(vi) Friday 1 pm – 8 am 7 hours

17. Dr Windsor pleaded that the express terms at FFASC [6] included (at (d1)) that, in the alternative, SMS would provide Dr Windsor with the following shifts:

(i) Saturday 4 pm – 1 am 9 hours

(ii) Tuesday 1 am – 8 am 7 hours

(iii) Wednesday 1 am – 8 am 7 hours

(iv) Thursday 1 am – 8 am 7 hours

(v) Friday 1 am – 8 am 7 hours

(vi) Saturday 1 am – 8 am 7 hours

This alternative was introduced into the FFASC to accommodate Mr Windsor’s evidence in cross-examination referred to in [50] below.

18. I have concluded that no agreement was entered into between Dr Windsor and SMS on or about 8 January 2001, let alone an agreement on the terms pleaded, or on the alternative terms pleaded.
19. Dr Windsor pleaded (at FFASC [8]) that on 10 January 2001 she and SMS entered into an agreement to vary the agreement alleged to have been entered into between them on or about 8 January 2001.
20. Dr Windsor pleaded at FFASC [9] that the agreement as varied included the express term referred to in [16] above as from March 2001 and the express term that in the period up to March 2001 SMS would provide Dr Windsor with the following shifts:

(i) Tuesday 7 pm – 1 am 6 hours

(ii) Thursday 1 am – 8 am 7 hours

(iii) Friday 7 pm – 1 am 6 hours

(iv) Saturday 12 pm – 1 am 13 hours

(v) Monday 1 am – 8 am 7 hours

21. As I have concluded (at [18] above) that there was no anterior agreement entered into on or about 8 January 2001, the pleading at FFASC [8] fails.
22. Dr Windsor pleaded (at FFASC [10A]) that, in the alternative, on 10 January 2001 she and SMS entered into an agreement for SMS to provide her with patient introduction services and certain management and advisory services. The alternative agreement was said to be partly written, partly oral and partly implied. Particulars were provided in support. Dr Windsor pleaded the express terms of this alternative agreement (at FFASC [10B]) and that on its proper construction the express terms and the implied terms were essential terms of the alternative agreement or, alternatively, were terms whose breach by SMS would be serious enough to entitle Dr Windsor to terminate the alternative agreement (at FFASC [10C]).
23. Dr Windsor pleaded that the express terms at FFASC [10B] included the express term referred to in [17] above as from March 2001 and the express term that in the period up to March 2001 SMS would provide Dr Windsor with the shifts referred to in [20] above.
24. I have concluded that no alternative agreement was entered into between Dr Windsor and SMS on or about 10 January 2001, let alone an alternative agreement on the terms pleaded.
25. In the face of the conclusions at [18], [21] and [24] the balance of the pleadings in the FFASC as to Dr Windsor’s performance of the alleged agreement referred to in [15] and [19] above or the alleged alternative agreement referred to in [22] above; SMS’ alleged breaches of those agreements; Dr Windsor’s alleged termination of those agreements; and Dr Windsor’s alleged losses in respect of such breaches and termination, have no foundation. It follows that the proceeding must be dismissed.

THE EVIDENCE

26. It became apparent, quite early in the piece, that there were significant conflicts in the evidence that was going to be given by Dr Windsor and, in particular, Mr Windsor, on the one hand, and by Mr Muldoon, on behalf of SMS, on the other, going to such matters as to whether meetings took place between or among them, both before and after 13 January 2001 (when Dr Windsor first provided her medical services to patients referred to her by SMS); if those meetings took place, when they took place and, most importantly, what was said at those meetings. Issues of credit would inevitably arise and for that reason, on 24 September 2010, I ordered that all evidence in so far as it deals with conversations which are alleged to have taken place on or before 13 January 2001 between Dr Windsor or Mr Windsor, on the one part, and Mr Muldoon, on behalf of SMS, on the other part, or in the presence of all three of them, were to be given orally.
27. Insofar as their versions of events or their versions of what was said at meetings differ, I clearly prefer the evidence of Mr Muldoon.
28. Mr Muldoon, now retired, was a Certified Practising Accountant by profession. He was employed by SMS as its most senior executive officer for 30 years. He retired from his employment with SMS in February 2003. Mr Muldoon affirmed three affidavits which were read save for certain objections, which I upheld, and save for those parts of the affidavits the subject of my order of 24 September 2010. Mr Muldoon was cross-examined for most of day six of the hearing. Mr Muldoon greatly impressed me as a witness. He answered questions which were put to him in a manner which displayed an independent recollection of matters and events which he could recall while at the same time conceding his inability to respond to matters and events which he could not recall; he did not speculate or surmise. His responses were unhesitating and firm and he was not shaken or deterred when a contrary or alternative version of those matters or events was put to him. His responses were expressed with clarity and through an economic use of language. He answered each question that was put to him, not some other question that was not asked of him. In this regard, the contrast with Mr Windsor was stark. Mr Muldoon’s evidence of meetings and conversations with Mr Windsor, in particular, and, to the extent that he had them, with Dr Windsor, was very much at odds with their evidence; however, I have no hesitation or doubt in accepting his evidence in preference to their evidence. I will have something to say about Mr Windsor’s evidence, but I totally agree with submissions on behalf of SMS that the version of the significant conversations attested to by Mr Muldoon is inherently more likely than that attested to by Mr Windsor and, insofar as she does so, Dr Windsor: it is consistent with a number of contemporaneous documents; and it is also consistent with the events which followed including, in particular, the conduct of Dr Windsor and Mr Windsor in relation to SMS, and vice versa, both in the short term and over the longer term of the duration of Dr Windsor’s engagement by SMS.
29. I have grave reservations concerning the veracity of much of the evidence given by Mr Windsor and, in a number of important respects, I just do not believe him. In these latter cases, I indicate why I am of that view. In the course of cross-examination, it was put to Mr Windsor that, in relation to matters and events the subject of my order of 24 September 2010, he had memorised the unread content of his affidavit of 21 May 2009 (Ex 3) dealing with those matters and events and regurgitated them in response to questions put to him in chief, rather than recalled them from independent recollection. He denied this, but I do not believe him. The verbosity of his answers and a comparison of his oral testimony with the unread content of Ex 3 suggests otherwise.
30. The difficulty I had with Dr Windsor’s evidence was not its veracity, although I had the clear impression that she was extremely careful not to say anything that might cut across Mr Windsor’s evidence by continually saying she did not understand the simplest of questions, but her lack of recollection of events and conversations critical to her case. I put this down to three matters: first, that she was not present at the meeting that Mr Windsor had with Mr Muldoon on 8 January 2001; second, when she was present at the meeting that was held with Mr Muldoon on 10 January 2001, it was Mr Windsor who “actually talked to” Mr Muldoon (T56/32) (Mr Windsor subsequently confirmed this in response to questions I put to him (T216/25)); and third, her apparent lack of enthusiasm for the prosecution of the proceeding.

Relevant Pre-8 January 2001 Events

31. Dr Windsor gave evidence in chief that the first occasion on which she met Mr Muldoon was early August 2000 at his office in Randwick (T54/27). She could not recall the specific date. Her evidence was that in response to Mr Muldoon’s question (T 56/20):

“What shifts would you want to get?”

She said:

“I would like to continue my hospital job as well. ... I like to get two midnight shifts.”

Her evidence was that Mr Muldoon –

“[D]idn’t exactly say that he was going to give me the job, but, asked me to leave my information and that ended up like that.”

32. Mr Muldoon was quite firm that Dr Windsor first came to see him on 24 July 2000 (T397/12; T433/16). According to Mr Muldoon, the conversation went like this (T397/41 – T398/33):

Mr Muldoon: “What shifts do you want to do?”

Dr Windsor: “Two shifts ... I will need a driver ... My husband cannot drive me.”

Mr Muldoon: “Where are you working?”

Dr Windsor: “I work at Royal North Shore Hospital.”

Mr Muldoon: “Are you doing shift work or day work?”

Dr Windsor: “I’m doing day shifts that start at 8 am.”

Mr Muldoon: “Well, how can you do – finish with the Sydney Medical Service at 8 am and be at Royal North Shore at 8 am?”

Mr Muldoon: “When do you finish this roster at Royal North Shore Hospital?”

Dr Windsor: “On 15 January.”

Mr Muldoon: “If you are free to work after that, or want to work after that, what sort of shifts would you want?”

Dr Windsor: “I would like a 4 pm to 1 am shift on Saturday, Sunday to Monday 1 am to 8 am, and any other night of the week from 7 pm till 1 am.”

Mr Muldoon: “Nearer the date I will get in contact with you.”

33. Mr Muldoon substantially confirmed this evidence in cross-examination (T435/19 – T436/5) although he denied that the two shifts Dr Windsor originally asked for were midnight shifts (T435/46).

The 8 January 2001 Meeting

34. It is common ground that Mr Windsor had a meeting with Mr Muldoon on Monday, 8 January 2001. It is also common ground that Dr Windsor did not attend this meeting.
35. Any suggestion that Mr Windsor, on behalf of Dr Windsor, and Mr Muldoon, on behalf of SMS, entered into an agreement on that date for the provision of Dr Windsor’s services to patients of SMS’ general practitioner members on the terms pleaded, even on Mr Windsor’s version of events and conversations between he and Mr Muldoon, is fanciful.
36. According to Mr Windsor, the conversation went like this (T198/47):

Mr Muldoon: “I want your wife to do a Saturday shift for me.”

Mr Windsor: “Is that all?”

Mr Muldoon: “As long as your wife [does] a Saturday shift for me then you can choose the other shifts, any shifts, you like.”

For reasons which I will come to, I do not believe Mr Muldoon said this.

37. According to Mr Windsor, the conversation continued (T199/22):

Mr Windsor: “She would like to - or we would like to take the rest of the shifts in as midnight shifts, the night shifts, 1 am shifts.”

Mr Muldoon: “Those consecutive midnight shifts you can take it as Dr Windsor’s other shifts other than Saturday shift, she [wants] to do.”

Mr Windsor: “That would be good.”

Again, for reasons which I will come to, I do not believe Mr Muldoon said what Mr Windsor alleges he said.

38. According to Mr Windsor, the conversation continued (T200/45):

Mr Muldoon: “Before Gina can start, Gina has to come for an induction. That means she has to know a lot of things before she could start the first shift.”

Mr Windsor: “When can she start?”

Mr Muldoon: “She can start on ... Saturday, 13 January.”

39. According to Mr Muldoon, he spoke to Mr Windsor shortly before 8 January 2001 and said (T401/38) that there were shifts available and could he bring Dr Windsor in and we would organise a roster for her. Mr Windsor said he would.
40. According to Mr Muldoon, he met with Mr Windsor on 8 January at the Randwick premises of SMS. The conversation went as follows (T402/17):

Mr Muldoon: “I have the Saturday available ... the 13th - available ... If Gina does that and is happy with it, she can have her pick next week of what shifts are available.”

Mr Windsor: “Can a locum get five midnight to dawn shifts?”

Mr Muldoon: “A locum can get any number of shifts they want by seniority when they become available.”

And:

“Well, you have got to bring Dr Windsor in to see me, and I will go through that with her.”

Mr Windsor: “I can organise it for you.”

Mr Muldoon: “No, it has got to be with Dr Windsor.”

41. Mr Muldoon emphatically denied (T402/36) that he said to Mr Windsor that as long as Dr Windsor does the Saturday shift, she can choose any other shift she wants. Mr Muldoon’s evidence was that his response was limited to:

“[T]he available shifts in the coming weeks.”

Mr Muldoon’s evidence was that:

“Dr Windsor had indicated to me that she wanted three shifts, and from memory there were five shifts available. She could have first choice.”

42. Mr Muldoon was cross-examined as to what was said at his meeting with Mr Windsor on 8 January 2001. Initially, this cross-examination proceeded by reference to a letter dated 9 January 2001 that was faxed by Mr Windsor to Mr Muldoon that day. So much was common ground. The letter is reproduced at [45] below. It was put to Mr Muldoon that he had no doubt that item 2 was discussed at the meeting on 8 January. Item 2 read:

“Commencement: Dr Windsor will commence work at 4 pm Sat 13 Jan 2001.”

Mr Muldoon responded (T447/24):

“I told Neil Windsor that Dr Windsor could work a Saturday shift. I did not tell him what time the shift was, and it did not start at 4 pm. She started at midday.”

43. A little later, the transcript of Mr Muldoon’s cross-examination reads (T 450/1):

“And that meeting started off with him saying to you - I suggest he had come to negotiate with you?---No. That I said this?

Yes?---No. I already knew what Dr Windsor wanted. When I phoned for Dr Windsor, I was phoning on the assumption that she wanted three shifts, which I had marked on the roster. If she had wanted five midnight-to-dawn shifts, I wouldn’t have phoned her, if it was on her application form.

And I suggest that, at that meeting, you told - at the beginning of the meeting - that you wanted Dr Windsor to do a Saturday shift for you?---That is correct.

And you said that as long as she did the Saturday shift for you, she could choose the other shifts - any other shifts that she wanted?---Yes, and that was - there was five shifts available and she wanted three; no trouble.”

And at line 30:

“And I suggest there’s - there were - the discussions continued about shifts and you told Mr Windsor that Dr Windsor, after the Saturday shift, could do a Sunday shift and then shifts from five shifts from Tuesday morning through to Saturday early morning, the non-dawn shifts?---Not at all. At that time, at that discussion with Dr Windsor - with Neil Windsor, I only had the - I was only offering the Saturday shift. My practice was to have a locum do one or two shifts and see how they went on the road. If references were no good - many good doctors did not like to do house calls in the middle of the night to people they didn’t know and some excellent doctors other than just didn’t like the work and the only way they could find out was to do a shift and not get upset about it. So I left it open for them as possible, not to feel embarrassed if they didn’t want to do the work.”

44. A little later the transcript reads (T 451/8):

“And you told him, ‘it was difficult to find locums so that when I find a locum and assign the locum a regular shift, the locum can have the shift as long as they want’---Yes.

And when they continue to work those locums, I continue to work ... offer them more shifts?---Yes.

And you said to him that you were from the old school and that you offered shifts to locums based on seniority?---Yes, and I also said to him the secret of running a roster in a deputising service was viability. The deputising service with one locum goes off has gone. Two locums, it has got a chance if one goes off. And he just took that piece that went by seniority and ignored the rest.

Well I suggest to you, Mr Muldoon that there was no discussion about viability of shifts. Do you agree with that?---No, there definitely was. He wanted to know as much about how a deputising service ran as he wanted to know about how the locum operated on the service.

And you told him that the senior locum, if they wanted a shift, would have the first chance to accept the shift or reject the shift if they didn’t want it?---By seniority, providing it didn’t affect the viability of the roster.”

The 9th January 2001 Letter

45. On the day following his meeting with Mr Muldoon, Mr Windsor sent Mr Muldoon a letter, by facsimile transmission, a copy of which is reproduced below:

46. Mr Windsor’s evidence was that the handwriting on the letter was his and that it was written the following day, 10 January, when he and Dr Windsor met with Mr Muldoon (T 202/35).
47. Mr Muldoon received this letter on the morning of 10 January shortly before his scheduled meeting with Mr Windsor and Dr Windsor which had been fixed for 10 am that day as a result of Mr Windsor’s telephone conversation with Mr Muldoon on 9 January referred to in the first paragraph of the letter.
48. InterNEOn Corporation Pty Ltd (“InterNEOn”) was a company owned and controlled by Mr Windsor. By its terms, the letter purports to be no more than a summary of the points discussed between Mr Windsor and Mr Muldoon the previous day. As a result of questions I put to Mr Windsor it became apparent that there was no such thing as an InterNEOn Healthcare Division of InterNEOn; it was, Mr Windsor conceded, a figment of his imagination, something he dreamt up; and he designed the letterhead that way for the purpose of sending the letter to Mr Muldoon (T215-6). Mr Windsor also conceded, contrary to the opening paragraph of his letter, that the material that appears at “1. ABN:”, in particular that “Dr Windsor’s service will be provided through InterNEOn Corporation Pty Ltd, ACN 007 316 584”, was not discussed with Mr Muldoon the previous day (T258).
49. More fundamental to my belief that, in a number of important respects, Mr Windsor was not telling the truth, was his evidence in cross-examination as to the content of “3. Weekly Timetable:” in the 9 January letter and, in particular, to the last sentence:

“Please note that the day corresponds to the actual day at the start of the shift.”

It was put to Mr Windsor (T246/40) that where the schedule says “MON 1:00AM - 8:00AM” that means, having regard to the last sentence, a shift starting on Monday at 1 am and going to 8 am. He said:

“No...My clarification there does not correctly address what I wanted to say. It applies to Saturday correctly, but for other days, it does not.”

50. The transcript at T247/12 to T250/45 reads:

“HIS HONOUR: So just so I understand this, Mr Windsor, are you saying that where it says ‘Monday 1 am - 8 am’---?---Yes.

---that really is, on an actual day basis, Tuesday 1 am?---Correct. Yes, your Honour. It would have been---

And the same applies to each other day specified there?---It applies to Monday, Tuesday, Wednesday, Thursday, and Friday. Yes, all of them.

So they are actually not Monday, Tuesday, Wednesday, Thursday, Friday, but Tuesday, Wednesday, Thursday, Friday, Saturday?---Correct.

When did you become aware that what you said immediately underneath that was not correct?---When I was reading it now, I realised that I put a sentence to clarify this part, but it did not clearly clarify what I wanted to say.

So it was just now, was it, that you realised?---I realised it now, yes, that there was an error in this letter.

You never realised it before?---No, I did not.

Yes.

MR ROBERTSON: I suggest to you, Mr Windsor, that that is again a complete fabrication?---No.

That what you meant when this letter was exactly what it says that is, that the day corresponds to the actual day at the start of the shift?---No.

In 2001, you had had no previous experience with SMS - in January 2001?---No.

You had not been involved in scheduling shifts or assisting your wife in scheduling her diary to deal with the shifts that she was going to perform?---No.

So I suggest to you, Mr Windsor, that the - that in January 2001, you had no reason to adopt an idiosyncratic method of reference to shifts?---I had.

I suggest to you that until January 2001, you were fully - that your immediate thought when you thought of a Monday shift was one commencing at Monday 1 am, and you had no reason to use an idiosyncratic reference, which was that a Monday 1 am to 7 am shift actually meant Tuesday 1 am to 7 am?---No.

Now, can you - and what do you say your reason was for that?---During my conversation with Mr Muldoon, Mr Muldoon referred to a concept of shift date when he says to a date, what I meant was shift date, and that’s the reason why I put in these terms. If I may look at that other document in tab 6 or something, where Mr Muldoon describes shifts - may I?

You are talking about tab 6?---Where he had a document where - description of shifts, tab---

Tab 6?---Yes. And he mentioned the same thing, Monday to Friday - sorry, he mentioned Monday to Friday 7 pm to 1 am, and---

Yes. That’s perfectly logical, isn’t it, Mr Windsor? Starts on Monday, 7 pm?---That’s right, it starts on Monday, finish at 1 am on the following day, but he simply says, ‘Monday to Friday, 7 pm to 1 am.’

Yes?---And he referred to - when you say a particular day - and then the dawn shift of that day, then he clarified to me, ‘When I say “Monday dawn shift”, means that it is, in fact, the one that - starting after the midnight.’

Mr Windsor, you are making this up as you go along, aren’t you?---I am not.

Look, Mr Windsor, you were looking for this document because you thought it would help you, didn’t you?---No.

You did. You thought this document was going to assist you with your explanation of what Mr Muldoon had said to you?---I recalled Monday to Friday, but I thought that this midnight shift also had something - notation like---

Yes. You thought this document would help you so you sought to refer to it?---Correct.

And it doesn’t help you, does it, Mr Windsor?---No, it doesn’t.

No, because you are just making it up as you go along?---No.

Because you had no recollection of Mr Muldoon referring to this document and explaining to you that when he referred to Monday dawn shift, he meant one starting at 1 am on Tuesday?---No.

And the proposition that Mr Muldoon said that does not appear anywhere in your affidavit, does it?---No.

And that would have been a very important thing to have put in your affidavit, wouldn’t it?---Yes.

Because the identification of the shifts that you say Mr Muldoon agreed to give you was absolutely fundamental to your case?---No.

I see. The identification of the shifts Mr Muldoon agreed to give you is not fundamental to your wife’s case, I should say. Is that what you say, it’s not fundamental?---To that question the answer is yes.

It is fundamental?---Yes.

So Mr Muldoon telling you that when he referred to a Monday dawn shift, he meant from 1 am Tuesday, was absolutely critical and fundamental to your wife’s case?---Yes.

So it would have been one of the most important things for you to include in your affidavit?---It is, yes.

But you didn’t?---I can’t recall how exactly that is written in the affidavit, but it is an important thing.

I suggest to you that there is no mention of that in your affidavit. Do you wish to look at your affidavit to see if it’s there? If the witness could be given his affidavit?---No, Mr Muldoon did not - there is nothing here which clarifies the difference between the calendar date and the shift date.

Thank you. Now, can you turn back to tab 7?---Yes.

Is there anything on that page which records Mr Muldoon saying anything to that effect, that is, that the shift day is the day before? In other words, that a Monday shift commences on 1 am Tuesday?---No.

That was your wish list. That was the shifts you wanted your wife to work?---No.

And the list recorded there does not reflect the content of your letter, does it, on either version of your---?---This list that I have written here is what I have written there, but my writing there is not consistent.

It is not the list that you have incorporated into your letter of 9 January either on the basis that Tuesday 1 am to 8 am actually means Wednesday 1 am to 8 am, or on the basis that Tuesday 1 am to 8 am means Tuesday 1 am to 8 am. It doesn’t reflect your letter of 9 January on either basis, does it?---When I wrote this one Mr Muldoon clarified - had clarified what it meant, so I did not have - I haven’t written that here, but I knew what - what these things mean - these notations mean.

So you’re saying that when you wrote that - you wrote that there before Mr Muldoon clarified what it meant?---No, Mr Muldoon clarified before I wrote it.

Yes. And you wrote that down, you say, and you then went away from that meeting and wrote your letter of 9 January?---My conversation - I took these notes at the meeting and I wrote the letter at home.

Yes?---Yes.

And what you say - I suggest to you, Mr Windsor, that you did not write that part of the note at the meeting?---Wrong.

But on your version of events you did write that at that meeting, but assuming you did you then went home and wrote out - and typed up a letter which incorporated a different set of shifts?---Yes.

So I suggest to you that the shifts on your letter were not discussed in the meeting on your version of events?---I knew what I was writing in the letter and I used this information and my recollection of the previous day to write it.

If you were writing out the shifts as you discussed them with Mr Muldoon you would have recorded the shifts that you discussed with Mr Muldoon, wouldn’t you?---Yes.

And if they had been changed you would have changed them?---If I - if I decided to do that at the time, yes.

Oh, if you decided to do that, Mr Windsor. Weren’t these shifts the most important part of this discussion from your perspective?---Yes.

So wouldn’t you have wanted to get it absolutely right to make sure there was no confusion later?---Yes.

So if Mr Muldoon had said, ‘We’re going to change that’ you would have made a note of the change, wouldn’t you?---Yes.

But you didn’t?---No.

So I suggest to you that is because there was no such discussion relating to any changing any shifts?---That’s not true.

And I suggest to you, in fact, there was no discussion of shifts at all?---That’s not true at all.

I withdraw that. There may have been discussion of your wife doing a shift on 13 January but nothing else?---That is not true.”

The 10 January 2001 Meeting

51. Dr Windsor attended upon Mr Muldoon with Mr Windsor on the morning of 10 January 2001. According to Dr Windsor, Mr Muldoon said (T57/4):

“What if I tell you I cannot give the - all the shifts I promised you?”

When asked what Mr Muldoon said in the words which followed, Dr Windsor said (T57/38):

“I cannot remember the exact words, but in summary it was what he promised Neil at that particular time, he said; ‘I don’t have enough midnight shifts to give you at this time’, so instead he gave me two midnight shifts and said ‘the rest I will give you in – when the shifts are available, in May’. He said he will get some more shifts available in May, then he promised that he can give me the promised five midnight shifts by then and he also said to me, he being – I was upset when he said the midnight – the promised five midnight shifts he cannot give me straight away, but when he saw me upset then he said, ‘if you continue to do good work, you will be able to get more shifts in the seniority basis anyway’, so that’s how the conversation went.”

52. According to Dr Windsor, Mr Muldoon said (T58/21):

“Let’s start on 13th of January, Saturday, the afternoon shift,’ and then he also wrote this Sunday from morning 7 o’clock to 4 o’clock, and then wrote this line, and said, ‘Okay. Tuesday we start the regular roster.’ And then after that he got this next page and wrote this thing as the regular roster.”

53. Dr Windsor’s evidence in cross-examination was totally unsatisfactory largely because it was punctured by repetitive claims on her part that she did not understand the question; even the most straight-forward question. I do not accept her alleged lack of understanding in respect of many questions that were put to her, even if some of them should have been broken up into a number of questions. She maintained that at the meeting, Mr Muldoon had promised her five dawn shifts would be given to her “by March” (T125/45) (her evidence the previous day had been “by May” (T57/40)) and steadfastly eschewed acceptance of the proposition, because she said she did not understand the question, that this was only if the shifts became available. I do not accept her evidence in this respect.
54. According to Mr Windsor, at the meeting on 10 January Mr Muldoon said (T206/4):

“I received your fax. What if I say to you that I can’t give you all those shifts that I promised?”

And Mr Windsor said:

“What do you mean you can’t?”

And Mr Muldoon said:

“Well I have some problems with the roster, and if I were to allocate all those shifts, I promise right now, I will have problems with the roster, but she can still start on the 13th as planned and I will give you a different roster to start with. Then in March I can fix the roster.”

Then Mr Windsor said:

“What are you proposing?”

55. According to Mr Muldoon, when the Windsors arrived at his office on 10 January he had not actually digested the fax. He said (T413/43):

“This is not the way we do it here. I offer you shifts and you take them or refuse them. And I haven’t got those shifts available.”

56. According to Mr Muldoon, Dr Windsor got a bit distressed and that puzzled Mr Muldoon as he had her application and it said she only wanted three shifts and that was why he had called her in. A little later, according to Mr Muldoon, he said (T414/24):

“I can give you these shifts now.”

That was the shift on a Saturday, from noon to 1 am and the Sunday shift.

“And next week I’ll be able to put you on the regular roster with whatever shifts are available.”

57. According to Mr Muldoon, Dr Windsor was still a bit upset about that. She wanted her five shifts. She repeated that several times. Mr Muldoon said:

“There will be locums leaving to go to the country in March, most probably, because this is when those doctors were, the AGPAL doctors were called away to do country service.”

And a little later he said:

“You will have any shifts that are available...”

58. In response to a question as to whether he gave the Windsors anything in writing at that meeting, he said (T415/9):

“Yes, I scribbled down in my cursive hand the shifts that I was giving her on a piece of paper.”

And then he was asked:

“Did you tell the Windsors at that meeting what the regular shifts you referred to would be?”

And he said:

“No, I didn’t because I would not have known them until I finished the roster on Monday morning.”

59. The transcript then reads (T415/20):

“Can I show you the next document that is tab 10?---Yes.

Do you recognise that document?---Yes.

And what is that document?---That is the first permanent week’s roster that I was able to give her after she – we went through and did a post-what’s-her-name-brief on how she handled the work on the weekend.

So when do you say you gave that to Dr Windsor?---I think I am not exactly 100 per cent sure. It would have either been Monday after I finished the roster or it could’ve been Tuesday morning. I wouldn’t be sure of exactly which day that was but it was definitely when I had finished the roster and knew what I could give her.

Now, Mr Muldoon, you note that the handwriting on tab 9 differs significantly from the handwriting in tab 10. Can you explain to his Honour why that might be the case?---I was left-handed from the time I was a boy was thrashed into writing right-handed and the only way I could do it was with a ruler and a painful pen which is when I sit down to do something precisely, I use the ruler and pen and when I’m scribbling – well, it’s scribble.

So which do you say was written with the ruler and pen and which was the scribble, just to make it clear?---The scribbled one was the document at tab 9 which I wrote instantly for them and the 10 was what I would’ve done while I was pulling out the roster and putting it on the radio room roster. I would’ve written that out as I could see the shifts available.”

60. In cross-examination (at T455/1) it was suggested to Mr Muldoon that at the commencement of the meeting he said:

“I don’t have enough midnight shifts to give you at this time and the rest I will give you when the shifts are available in March.”

And he said:

“No. That is not how I said it. I said to him because I had his fax there, I said, ‘this is not how we do it here. I will offer you shifts and it is up to you to take them.’ They expressed disappointment that they weren’t the shifts that he asked for and I said to him, ‘We will – there will be locums going to the country in March and there probably will be shifts available for you.’ I mentioned no specific shifts because I didn’t know what would be available.”

A little later it was put to him:

“And I suggest you told her that on that occasion that she would get shifts totalling 39 hours.”

And he said:

“No. I did not. I had no idea. Actually, there was a problem but I couldn’t say that because the first Saturday that she did was a Dr Plant was on holidays and I wasn’t sure if he would be back the following Saturday and if he was, whether I would even have a shift for the next Saturday. And I could only do that when I had the roster done.”

61. The transcript at T458/7 reads:

“You gave some evidence this morning that a meeting took place on Monday, 15 January or Tuesday, 16 January?---One or the other, I’m not sure which, but it did.

Now, who attended that meeting?---Both the Windsors.

And you made no notes of that meeting?---No, I did not. Well---

And you have no recollection of what was said in that meeting, do you?---No, only vaguely. We discussed how the shift went, how the weekend went and there seemed to be no problems with her or doing the work and that is when I gave her the permanent roster sheet.

I suggest to you, Mr Muldoon, that no such meeting took place with Dr and Mr Windsor on 15 January or 16 January?---It definitely did because I formed the impression that Dr Windsor wasn’t exactly that impressed with that type of work. And at a later meeting with Neil Windsor, I suggested to him on 12 February that maybe she wasn’t up to this type of work when he was wanting the double shifts. Or not wanting the double shifts, he was wanting more work.

Your evidence, Mr Muldoon, is that you gave her the documented tab 10 on that meeting; is that correct?---That’s correct.

You would accept that you had already given information about the item numbers on the meeting of 10 January?---That is correct.

And you can close that now, Mr Muldoon. In your affidavit at exhibit F, if you go to tab – sorry, paragraph 88, please?---Yes.

I want to suggest to you that no meeting with Mr Windsor took place on 12 February 2001?---That is incorrect.

Did you make any notes of that meeting?---No, I did not.

And in giving the evidence in paragraph 88 you were relying on your recollection; is that right, Mr Muldoon?---Yes. And the fact that I got a fax two hours, within two hours of him leaving.”

62. In cross-examination, Dr Windsor denied that she saw Mr Muldoon on Monday, 15 January or Tuesday, 16 January for a debriefing on her week-end shifts on 13 and 14 January and to get her regular roster (T129/37 – T130/12). In cross-examination, Mr Windsor also denied that he and Dr Windsor, or Dr Windsor alone, had such a meeting (T266/1). Mr Windsor repeated that to me at T268/30 and T270/5. Indeed, Mr Windsor (but importantly, not Dr Windsor – see T127/42) said in cross-examination that Dr Windsor’s regular shift commenced on Saturday, 13 January, not Tuesday, 16 January (T267/4) and that only Sunday 14 January was a temporary one (T269/47). For reasons which I will come to, I do not accept any of this evidence.

FINDINGS

63. The findings below are predicated on the evidence referred to above and my assessment of the witnesses through whom that evidence was given. A lot of other evidence was given to which I have not referred because I do not consider it relevant to the issue of whether Dr Windsor’s pleadings are made out.

Pre-8 January 2001 Events

64. I find that Dr Windsor first met with Mr Muldoon on 24 July 2000. At that meeting she informed Mr Muldoon that she wanted to work two shifts concurrent with her position at Royal North Shore Hospital and that she needed a driver because her husband could not drive her. I also find, contrary to Mr Muldoon’s denial, that she sought two midnight shifts, otherwise Mr Muldoon’s evidence referred to in [32] above, that he told Dr Windsor she could not finish with SMS at 8 am and be at Royal North Shore Hospital at 8 am, does not make sense.
65. I find that Mr Muldoon was not interested in engaging Dr Windsor concurrent with her engagement at Royal North Shore Hospital because he did not think she could do midnight shifts with SMS and day shifts at Royal North Shore Hospital and because he did not have an available driver. I also find that Dr Muldoon asked Dr Windsor what shifts she would like after she finished with Royal North Shore Hospital on 15 January 2001 and that she indicated three shifts – 4 pm to 1 am Saturday; 1 am to 8 am Monday and another shift from 7 pm to 1 am on another day of the week.

The 8 January 2001 Meeting

66. I find that Mr Muldoon did not offer or promise any shifts for Dr Windsor at his meeting with Mr Windsor on 8 January 2001. The evidence is clear, in my view, that he was only prepared to deal with Dr Windsor and that until she came in to see him, there were no contractual commitments on either side.
67. I find that while Mr Windsor and Mr Muldoon discussed the possibility of Dr Windsor securing five midnight to dawn shifts per week at their meeting on 8 January 2001, no offer or promise was made by Mr Muldoon in those terms. At that time, five midnight to dawn shifts were just not available; that was not put in issue by Dr Windsor. In the face of that circumstance, Mr Windsor’s evidence that Mr Muldoon offered or promised that Dr Windsor could have any shifts she wanted if she did a Saturday shift is not only fanciful, but defies common sense and logic; a medical deputising service that offered prospective locums the regular shifts of incumbent locums would not survive.

The 9 January 2001 Letter

68. For the reasons canvassed and the evidence referred to in [48] – [50] above, I find that the content of that letter does not accurately represent the points discussed between Mr Windsor and Mr Muldoon at their meeting on 8 January 2001. Indeed, I find that, like the letterhead itself, insofar as the content is intended to represent the terms of an offer or promise made by Mr Muldoon to Mr Windsor on 8 January, it is equally a figment of Mr Windsor’s imagination. So much is consistent with my findings in [66] – [67] above.
69. This letter raises a real issue as to whether SMS ultimately contracted with Dr Windsor or with InterNEOn. SMS submitted, on the basis of this letter and because all payments for Dr Windsor’s services were not paid by SMS to Dr Windsor but initially to InterNEOn, then to Mr Windsor and subsequently to another company under his ownership and control, Visionone Holdings Pty Ltd, that any contract which SMS ultimately entered into for Dr Windsor’s services was with InterNEOn. Initially, I was disposed to agree with that submission, particularly having regard to the terms of the letter, but on reflection I have come to the view that InterNEOn and the other entities to which SMS paid for Dr Windsor’s services were a mere “sideshow” or distraction; devices or vehicles with ABN recordation so as to avoid deductions of tax at source. I find that any contract ultimately entered into by SMS for Dr Windsor’s services was between SMS and Dr Windsor.
70. On the other hand, nothing was paid to Dr Windsor by SMS and there is no evidence that anything was paid to Dr Windsor by the entities to which SMS paid amounts for Dr Windsor’s services. Moreover, there is no evidence that either Dr Windsor or any of the SMS payee entities returned the SMS payments as assessable income or that if any payments were made by SMS payee entities to Dr Windsor, they were returned by her as assessable income. I indicated to Dr Windsor’s counsel on an earlier occasion that, depending on the evidence forthcoming, I may have no alternative but to refer the papers in this matter to the Commissioner of Taxation, and that is what I propose to do.

The 10 January 2001 Meeting

71. I find that when the Windsors arrived at the Randwick premises of SMS for their meeting with Mr Muldoon, consistent with the findings in [66] and [67] above, he did not say: “I cannot give you all the shifts I promised you”, but rather: “This is not the way we do it here”, referring to Mr Windsor’s facsimile letter of 9 January, “I offer you shifts and you take them or refuse them. And I haven’t got those shifts available”.
72. I find that at that meeting Mr Muldoon offered Dr Windsor two start-up or temporary shifts to ascertain whether she liked the work – Saturday, 13 January 12 noon to 1 am and Sunday, 14 January 7 am to 4 pm – and indicated that he would put her on a regular roster on Tuesday of the following week – 16 January 2001 – once he had done the roster for that week.
73. I accept that Dr Winsor appeared to be upset at not being offered five midnight to dawn shifts as per Mr Windsor’s facsimile letter and that Mr Muldoon sought to placate her by indicating that shifts were likely to become available when locums went to the country in March. But I find that Mr Muldoon did not, at that meeting on 10 January 2001, offer or promise Dr Windsor any specific shifts in March 2001 because he did not know what shifts would become available.
74. Indeed, I find that at the meeting on 10 January 2001 Mr Muldoon offered Dr Windsor nothing more than the Saturday and Sunday shifts for the weekend of 13 and 14 January and that she accepted that offer by making herself available to perform those shifts.

Post 13 – 14 January 2001

75. I find that on Tuesday, 16 January 2001 Mr Muldoon offered Dr Windsor a regular roster of shifts comprising the following:

Tuesday 7 pm – 1 am 6 hours

Thursday 1 am – 8 am 7 hours

Friday 7 pm – 1 am 6 hours

Saturday 12 pm – 1 am 13 hours

Monday 1 am – 8 am 7 hours

39 hours

76. I find that Dr Windsor accepted this offer by making herself available to perform the shifts comprising this roster.
77. There was conflicting evidence as to whether a meeting took place between Mr Muldoon and the Windsors, or one of them, on Monday 15 or Tuesday 16 January by way of a debriefing of the weekend shifts and for Dr Windsor to be given her regular roster. Because I prefer the evidence of Mr Muldoon and because of my earlier findings, in particular that there was no offer of a regular roster to Dr Windsor until after she had completed the week-end shifts and Mr Muldoon had done his roster for the following week on the Monday, I find that such a meeting, on the balance of probabilities, took place and that it was at that meeting that Dr Windsor was given her regular roster.

CONCLUSIONS

78. Based on the findings at [64] – [77] above, I have come to the conclusion that, apart from the trial or temporary shifts over the weekend of 13 and 14 January 2001, the only contract entered into between SMS and Dr Windsor for the provision of her services to the patients of SMS’ general practitioner members in January 2001 was that constituted by Mr Muldoon’s offer of a regular roster commencing on Tuesday, 16 January 2001 and Dr Windsor’s acceptance of that offer by making herself available to perform the shifts comprising that roster.
79. Moreover, I conclude, based on the findings at [71] – [77] above, that that contract was entered into no earlier than Tuesday, 16 January 2001. No breach of that contract by SMS was pleaded by Dr Windsor.
80. These conclusions are supported by subsequent correspondence from Dr Windsor to SMS. On 12 February 2001, Dr Windsor sent a facsimile transmission to Mr Muldoon which read:

Dear Tim,

Further to the brief discussion Neil had with you on the subject, I thought of writing to you just put the request on record.

I am currently doing 5 shifts totalling 39 hours of which all but one are short shifts. Having worked for four weeks covering 3 zones, I now strongly feel that my interests are best served by doing long 13 hour shifts in place of short 6/7 hour shifts. This means back-to-back night shifts on week days from 7pm to 8am.

At the same time, I have the interest and the capacity to work more hours. So if you have additional shifts becoming vacant I am willing to use those to stretch my short shifts regardless of whether they are one-off, short term, or long term.

I am aware that you had told Neil that you would give priority to this request. I would very much appreciate if you could let me know the first opportunity available.

Thanking you,

Yours sincerely,

Dr G N Windsor”

81. The content of this fax clearly demonstrates Dr Windsor’s understanding that additional or new shifts to that offered to her on and from Tuesday, 16 January 2001 or earlier on her version of events, could only be offered as they became available. It was not suggested, nor could it be, that this was something which only dawned on Dr Windsor on or about 12 February 2001.
82. Some ten months later, on 12 December 2001, Dr Windsor again wrote to Mr Muldoon by way of facsimile transmission in the following terms:

“Dear Mr Muldoon,

As requested I have tabled below my work preferences for the year 2002.

Day	Start – End Time	Duration/hours	Location
Monday	07:00 PM – 07:00 AM	12	Hills District/West
Tuesday	07:00 PM – 07:00 AM	12	Hills District/West
Wednesday	07:00 PM – 07:00 AM	12	Hills District/West
Thursday	07:00 PM – 07:00 AM	12	Hills District/West
Friday	07:00 PM – 07:00 AM	12	Hills District/West
Saturday	Off day	0
Sunday	07:00 PM – 07:00 AM	12	Hills District/West

The reasons for the above preferences are as follows:

1. Weekend is the only time my two children can spend some quality time with me as both of them attend childcare 5 days a week. Saturday off day allows our whole family to be together and given what we missed out as a family during the last year, this Saturday off day is very important to us. However, from time to time if you need a doctor for Saturday, I am happy to do the Saturday night on a one-off basis.
   
2. I hope my choosing of Sunday night would, to some extent at least, help you fill the Saturday shift.
   
3. My choosing of 12-hour night shifts on weekdays is because I strongly feel that my time is under-utilised at the moment. The way shifts are scattered at present (5 hours here and 7 hours there), it is extremely difficult to find any additional locum work. Also with our current family situation, we will have to depend on a single regular income for some time to come.
   

As you know I have been asking for more shifts and longer shifts for quite some time, I appreciate very much if you could allocate all the shifts I have requested above, given that you now have the opportunity to do so.

Regards,

Dr G N Windsor”

This again is supportive of the findings and conclusions reached in relation to the events of January 2001.

83. Even if I were of the view that SMS had breached a term or terms of a contract it had entered into with Dr Windsor, sufficient to entitle Dr Windsor to terminate that contract, I would not be satisfied that Dr Windsor had suffered any loss. As noted in [3] above, the evidence establishes that at no time during her six years with SMS was one penny paid by SMS to Dr Windsor; everything was paid to either Mr Windsor or to companies under his ownership and control; and there is no evidence that Dr Windsor was paid an income for such services whether by Mr Windsor or any of his relevant companies. There is no evidence to suggest that those circumstances would have been different had SMS not breached the alleged term or terms of any relevant contract between it and Dr Windsor.
84. Dr Windsor’s application must be dismissed with costs.
    

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 9 February 2012