Legal battle continues over eye surgeon’s contract
LAWYERS have argued that a successful central Queensland ophthalmologist who sold his practice became disgruntled when he became an "employee" who no longer had a say in the business.
Eye specialist Dr David Kitchen lost a court case in Brisbane Supreme Court in 2014 and again in 2015 after his former employers, Vision Eye Institute and Icon Laser, sued him for breaching an employment contract while working at Gladstone and Rockhampton clinics.
He has appealed this at the Queensland Court of Appeal and on Monday his lawyers argued the justice made the wrong decision.
In 2006, Dr Kitchen sold his company to Vision and signed a contract saying he would work for the company for five years, contemplating that he would work at existing clinics at North Mackay, Rockhampton, Gladstone, Bundaberg and Hervey Bay.
Before the sale, Dr Kitchen worked at Mackay, Rockhampton, Gladstone and Bundaberg.
But in 2009 Dr Kitchen purported to terminate his contract and set up new practices.
Vision claimed he breached their contract by doing this.
But Dr Kitchen claimed he was misled when induced into selling his company.
On Monday, Dr Kitchen's barrister Walter Sofronoff QC said the justice who found in favour of Vision was wrong.
But Vision Eye's barrister, Liam Kelly QC, said the justice was considerate and thorough when making his decision.
Mr Kelly said Dr Kitchen became an employee of Vision, which the eye surgeon "couldn't tolerate" because he had lost his autonomy.
"So you go from being a highly successful self practitioner with a very prosperous practice, you sell to Vision, you no longer control your destiny in that regard," he said.
The court heard a clause in Dr Kitchen's and Vision's contract stated their agreement could be amended from time to time to keep in line with other employed doctors, who had a share in the business, to ensure equality. But this did not apply to factors such as salary and leave entitlements.
Part of Mr Sofronoff's argument was based on contracts Vision had with other doctors.
The previous justice found it would be "invidious" to compare different doctors' agreements but Mr Sofronoff said it was not invidious to ensure equality.
The court of appeal has reserved its decision. - APN NEWSDESK