Dr David Kitchen (with a client) when he worked at CQ Eye.
Dr David Kitchen (with a client) when he worked at CQ Eye. Lisa Benoit ROK270515leye3

CQ eye surgeon loses multi-million dollar lawsuit

A CENTRAL Queensland ophthalmologist has lost his case in the state's highest court after his former employers sued him for breaching an employment contract.

In 2006, David Kitchen sold his company to Vision Eye Institute for about $20million and signed a contract with Icon Laser saying he would work for them 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 had worked at Mackay, Gladstone, Rockhampton and Bundaberg.

But in 2009 Dr Kitchen purported to terminate his contract and set up new practices and Vision and Icon Laser claimed he breached their contract by doing this.

In a previous court judgment Dr Kitchen was ordered to pay more than $10million in damages for breaching the contract.

Dr Kitchen appealed this, claiming the judge that made this decision had made an error.

Dr Kitchen also claimed Icon Laser had breached a clause in the contract that stated the company had to notify him as soon as it entered into a new doctor agreement with another "salaried doctor partner".

This was based on another clause of the contract that stated the contract could be altered so Dr Kitchen's work agreement was no less favourable than other doctors.

But this did not include salary, entitlements or leave.

A judgment handed down from the Queensland Court of Appeal said Dr Kitchen's agreement was that he would be paid an annual salary of $400,000.

Dr Kitchen claimed the company had offered numerous "salaried doctor partners" more favourable terms and conditions.

But a previous judge found the company did not need to notify Dr Kitchen about the new agreement because of how a "salaried doctor partner" was defined.

The judge also found Dr Kitchen was not entitled to terminate his contract.

Court of Appeal Justice Hugh Fraser upheld the previous judge's ruling and dismissed Dr Kitchen's appeal.


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