Lukac v The Royal Australian and New Zealand College of Obstetricians and Gynaecologists

The plaintiff's application to the TAC

1. The plaintiff wrote to the defendant on 24 February 2015 making a formal request that she not be removed from the training program due to exceptional circumstances. She made reference to her ankle injury in May 2012 and her examination in October 2012. She said: I now realise that I had suffered an exceptional circumstance as set out in C1.1. of the exceptional circumstances, special consideration and reconsideration policy as I had suffered a serious injury, including significant physical impairment and incapacity during the lengthy period as I suffered the consequences of my serious leg injury. I had underestimated the extent of the detriment to my overall health and wellbeing and now realise that I was not operating at my usual level. I seek that this factor be taken into consideration as part of this appeal.
2. She thereafter made reference to sitting the oral examinations in October 2013 and May 2014, and to the extensions to her training program which had been granted in January and December 2013.
3. In relation to the exam in October 2014 she said this: I was successful in the trial examinations. I attended the trial examinations in Melbourne in October 2014 organised by RANZCOG to provide me with the best possible preparation for the examination, I had positive feedback from each individual examiner who all advised me that I should have no problems passing the upcoming examination as I had demonstrated the necessary levels of knowledge and skills. On 15 October 2014, just four days before the examination, I received the devastating news that my father had been diagnosed with metastatic cancer and had only a limited time left. Naturally, my mother was extremely distressed and pleaded with me to immediately return to Europe to be with my family as was my family responsibility. I did not apply for a further extension, as I appreciated the extensions previously given to me by the College. I did not want to seem ungrateful or cause further trouble or inconvenience to the College. Therefore, I made the decision to stay and sit for my examination. In hindsight, I should have requested a deferral immediately, as unfortunately my family situation did affect my performance. At the time, due to my level of distress and anxiety, I did not appreciate that my performance was suffering a significant detriment. I deeply regret my lapse in personal insight, as this is not usual for me. i consider it a reflection of the deep distress I was suffering which temporarily clouded my judgment. I left Australia on the afternoon of the examination, 19 October, and returned on 6 November 2014. The results had been published on 30 October but I did not access them until after my return. I continued to be deeply distressed about my father's health and my mother's ongoing emotional state and then my failure in the examination. For these reasons, I did not meet the three day timeframe. This was an unintentional oversight.
4. She attached letters of support from various doctors with whom she had worked. She asked for their views to be taken into account. She asked that all of the information she had provided to be considered.
5. On 23 March 2015 the Chair of the TAC of the defendant wrote to the plaintiff setting out regulation C2.1.1 and saying that the Committee discussed the issue of the plaintiff's possible removal from the training program. Regulation C2.1.1 relevantly states: Unless the Training Accreditation Committee accepts that exceptional circumstances exist, a trainee will be referred to the Progression Review Committee (PRC) for consideration for removal from the FRANZCOG training program if

• the requirements of core training are not completed within the timeframe specified in these Regulations; or
• …
• either the MRANZCOG Written or Oral Examination is not passed within the maximum four attempts.

1. The letter said that since the plaintiff was in breach of both those components, the TAC was required to consider recommending her removal from the program. The letter said the TAC considered her request that she be exempted from the regulation on the grounds of exceptional circumstances. The letter went on to say that, while the TAC sympathised with her personal difficulties, it had decided that in view of her continued inability to pass the oral examination, despite being given two extensions of the maximum eight year time limit to complete the core training requirements, she should be recommended for removal from the training program. The letter said the TAC had referred her case to the PRC who would make the final decision.

The decision of the PRC

1. The decision of the PRC was made on 15 June 2015.
2. The written decision of the PRC noted that the plaintiff attended the meeting of the PRC and was accompanied by two doctors in a support capacity. The material before the PRC was set out in annexure A to the written decision.
3. The report of the PRC summarised the history set out earlier in this judgment, noting that the plaintiff had requested two time extensions to complete the requirements of core training and was granted, on the basis of exceptional circumstances, ten months and 12 months respectively leading to a revised deadline for completion of 31 October 2014. The report noted that the plaintiff did not apply for special consideration for the exam held on 19 October 2014. It noted that she had failed to complete the oral examination within the maximum number of attempts allowed and had failed to complete the requirement of the core training within the timeframe as extended.
4. It noted that the plaintiff provided a summary of relevant events that led to the situation in which she found herself, and it noted that she cited the basis of the exceptional circumstances as being a "debilitating leg injury" and "distress and anxiety" relating to a family crisis in Europe. The report noted that during the course of the hearing the PRC enquired of the plaintiff whether she was aware of the Policy. The report noted that the plaintiff explained that, while she was aware of the Policy and the associated timeframe for applications to be submitted, she believed she would pass the October 2014 examination.
5. The section of the report headed "Decision of the Progression Review Committee" reads as follows: Decision of the Progression Review Committee While acknowledging the circumstances surrounding Dr Lukac's periods of extended leave of absence from the Training Program as a result of the injury sustained in 2012 and the family matter in 2014, the Committee noted that, on the basis of these exceptional circumstances, she had been previously granted two extensions to the timeframe to complete the requirements of Core Training, with the result being that she was able to undertake her two remaining attempts at the MRANZCOG Oral Examination. In relation to Dr Lukac's final attempt at the MRANZCOG Oral Examination in October 2014, while sympathetic to her father's illness, the Committee noted her own assessment of her performance in the examination and that, while familiar with the Exceptional Circumstances, Special Consideration and Reconsideration Policy, she was of the opinion that she performed well in the examination and chose not to submit an application for special consideration. In reviewing Dr Lukac's Six-monthly Summative Assessment for the period 22 July 2013 - 31 January 2014, the Committee noted the comments of her Training Supervisor in relation to the areas identified for improvement as well as the range of attributes in which her performance was rated 'Borderline' or 'Fail' by one or more consultants. That this was her most recent assessment and that it was assessed as 'Borderline' following review by the New South Wales Training Accreditation Committee was also noted. On the materials available to it, it was the decision of the Committee that exceptional circumstances were not demonstrated such as to afford Dr Lukac an additional (i.e. fifth) attempt at the MRANZCOG Oral Examination and a further extension to the timeframe to complete the requirements for Core Training. Thus, in accordance with Regulation A4.3.1(b), the PRC makes the following recommendation to the RANZCOG Board: • THAT Pursuant to Regulations C2.1.1 and A4.3.1(b), Dr Yvette Lukac be removed from the FRANZCOG Training Program, following her fourth unsuccessful attempt at the MRANZCOG Oral Examination and failure to meet the Core Training requirements by the stipulated deadline. RANZCOG Regulations require that the recommendation be submitted to the Board and, upon ratification or rejection of the recommendation, the PRC Chair notify Dr Lukac in writing of the decision and reasons for the decision, within three weeks of the meeting of the PRC.
6. On 29 June 2015 the Board passed a resolution giving effect to the recommendation of the PRC.
7. On 15 July 2015 the plaintiff wrote to the defendant asking for her letter to be regarded as a Formal request pursuant to regulation A2.6.1 of the Regulations that she not be removed from the training program and that she be granted additional time and one further attempt to undertake the oral examination. The letter relied on three of the grounds in regulation 2.6.1 as follows: (b) That relevant and significant information, whether available at the time of the original decision or which became available subsequently was not considered or not properly considered in the making of the original decision; (f) That the original decision was made in accordance with a rule or policy without regard to the merits of the particular case; (g) That the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.
8. The letter then went on to provide very similar information to what the plaintiff had put to the PRC in her letter of 24 February 2015.

The decision of the Appeals Committee

1. The decision and the reasons for the decision of the RANZCOG Appeals Committee were given on 5 October 2015. The reasons set out the background to the matter, the decision of the PRC against which she appealed, the grounds of the appeal, and what happened at the hearing of the appeal including questions asked of the plaintiff by Committee members. The final section was headed "Decision of the Appeals Committee" and was as follows: It was the unanimous decision of the Appeals Committee, taking into account the oral and written submissions of Dr Lukac (Attachment G), that the decision of the PRC made at its meeting on 11 June 2015 (Attachment C) should stand. There was, in the Appeal Committee's assessment of the evidence before it, no evidence that "exceptional" circumstances existed such as to warrant a departure from the College requirements that a FRANZCOG trainee complete all training within an eight (8) year period and be given four (4) attempts to pass the MRANZCOG Oral Examination in circumstances where the College had: • extended the period for completion of training to 31 October 2013 (Attachment 4); • extended Dr Lukac's training period to 31 October 2014 (Attachment 7); • granted leave of absence from her training for the period 31 October 2014 to 2 August 2015 (Attachment 12); and • made available to all trainees the ability to apply for special consideration in the event of "acute and substantive illness" of an immediate family member. In the case of Dr Lukac, the Appeal Committee was satisfied that: (a) relevant and significant information whether available at the time of the original decision or which became available subsequently was considered in the making of the original decision (b) the original decision was made in accordance with a rule or policy with reference to the merits of her case (c) the original decision was clearly consistent with the evidence and arguments put before the body making the original decision. The facts were that the College had been prepared to grant Dr Lukac extensions of time and leave of absence from her training. The Appeals Committee also noted that Dr Lukac was aware at all times about applying for special consideration and the College training requirements viz Core Training and ail associated requirements under Regulation C. 1.3.1 must be completed within a maximum period of eight (8) calendar years from the date of commencement in the FRANZCOG Training Program (Attachment 1). Accordingly, the appeal is dismissed and the decision of the PRC is confirmed under A2.9.9 of the RANZCOG Regulations (Attachment K). The decision of the Appeals Committee is final. The decision must be now notified to the Board, under A2.9.9.11 of the RANZCOG Regulations and the CEO must now notify the appellant Dr Lukac and provide these reasons within three weeks of this date under A2.9.9.12 of the RANZCOG Regulations (Attachment K).

The present proceedings

1. The present proceedings are not in the nature of proceedings seeking the supervisory jurisdiction of the Court. The plaintiff submitted that they were brought in the auxiliary jurisdiction of Equity, governed by the contract between the plaintiff and the defendant. Although some public law principles are invoked, the duty to accord procedural fairness is not co-extensive with the availability of certiorari for breach: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [79].
2. In McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002)191 ALR 759 Campbell J (as his Honour then was) said at [82]: Concerning private clubs, it has likewise long been recognised that rules of natural justice apply to the exercise of a power of expulsion: Wood v Woad [1874] LR 9 Ex 190 (expulsion from a ship owner's mutual insurance society); Fisher v Keane [1879] 11 Ch 353 (expulsion from a gentlemen's club). However, the remedies available to correct a wrongful expulsion from a private organisation did not include the issue of a prerogative writ - rather, the appropriate remedy was a declaration that the expulsion was invalid, and an injunction against treating the expulsion as valid: R v Wilson; ex parte Robinson [1982] Qd R 642; R v British Broadcasting Corporation; ex parte Lavelle [1983] 1 WLR 23 at 30-31; Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302; Dixon v Australian Society of Accountants (1989) 95 FLR 231; R v Disciplinary Committee of the Jockey Club; ex parte Aga Khan [1993] 1 WLR 909.
3. By reason of an issue which developed during the course of the hearing about the relief that was sought and that was available, the whole of the relief sought in the summons should be set out. The prayers sought were: 1. A declaration that the defendant by its Appeals Committee comprised of Ms Elizabeth Kennedy, Dr Peter Leslie, Dr Jill Reid, Dr John Regan and Dr Christine Tippett (Appeals Committee) was obliged to afford the plaintiff procedural fairness upon the hearing and determination of the plaintiff's appeal to the Appeals Committee from the decision of the Progression Review Committee of the defendant (PRC) made on 11 June 2015 (PRO Decision) to remove the plaintiff from the Training Program for Fellowship of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (Appeal). 2. A declaration that the plaintiff was denied procedural fairness upon the hearing and determination of the Appeal by the decision of the Appeals Committee made on 5 October 2015 to dismiss the Appeal and uphold the PRC Decision (Decision) by reason of: a. The failure of the Appeals Committee to proceed on correct principle by not holding that "exceptional circumstances" within the meaning of the RANZCOG Regulations are circumstances which are not ordinarily encountered or anticipated by a candidate for examination in the FRANZCOG Training Program and which are beyond the control of the individual concerned. b. The failure of the Appeals Committee to proceed upon the basis of correct facts for the purpose of the Appeal by not holding that the diagnosis of terminal cancer in respect of the father of the plaintiff in October 2014 (Diagnosis) four days before the plaintiff sat the MRANZCOG Oral Examination (October 2014 Oral Examination) was an exceptional circumstance. c. The failure of the Appeals Committee to have regard to all relevant considerations by failing to have regard to the adverse impact of the Diagnosis upon the capacity and performance of the plaintiff at the October Oral 2014 Examination. d. The Appeals Committee had regard to irrelevant considerations by holding there was no evidence that exceptional circumstances existed such as to warrant a departure from the College requirements in circumstances where the College had: i. extended the period for completion of training to 31 October 2013; ii. extended the plaintiffs training period to 31 October 2014; iii. granted leave of absence from her training for the period 31 October 2014 to 2 August 2015; iv. made available to all trainees the ability to apply for special consideration in the event of "acute and substantial illness" of an immediate family member"; and v. Dr Lukac did not apply for special consideration after sitting the 2014 Oral Examination despite her flying to Europe from Melbourne straight after the examination to be by her father's and mother's side. e. The Appeals Committee proceeded upon erroneous principle and erroneous findings of fact in finding that: i. Relevant and significant information whether available at the time of the PRC Decision or which became available subsequently to the PRC Decision was considered by the PRC when it is not possible for information which became available subsequently to have been considered by the PRC in the making of the PRC Decision; ii. The PRC decision was made in accordance with a rule or policy with reference to the merits of the plaintiff's case when the PRC did not find and have regard to the fact that the Diagnosis was an exceptional circumstance which denied the plaintiff a fair opportunity to sit the October 2014 Oral Examination; and iii. The PRC Decision was clearly consistent with the evidence and arguments put before the PRC when the PRC did not find and have regard to the fact that Diagnosis was an exceptional circumstance which denied the plaintiff a fair opportunity to sit the October 2014 Oral Examination. 3. A declaration that the Decision is void. 4. In the alternative, am order setting aside the Decision. 5. An order remitting the matter of the Appeal to the defendant upon terms that the Appeal be heard and determined by an appeals committee otherwise constituted and in accordance with law. 6. Such further or other declaration or order as the Court thinks fit. 7. Costs.
4. The plaintiff sought to read an affidavit in support of the summons which summarised the background to the present proceedings more briefly than I have set out above. The defendant objected to all but the formal parts of the affidavit on the basis that they were not relevant to any matter I had to decide. The plaintiff sought to lead that evidence as threshold facts against the possibility that the defendant would otherwise submit that there were no such facts in respect of which equitable relief could be granted. I admitted the evidence on that basis. The facts set out did not in any event go beyond what was contained in the material that went to the PRC and the Appeals Committee. If the matter was an administrative law appeal only the record being reviewed would ordinarily be received. That was not this matter. The plaintiff was correct to give evidence of the matters which led to the present proceedings being commenced.

Submissions

1. The plaintiff submitted that in its decision of 22 March 2015 the Appeals Committee did not make any finding on the question whether exceptional circumstances existed and, if so, whether those circumstances hampered the plaintiff's performance in the oral examination of 19 October 2014. The plaintiff submitted that the Appeals Committee applied the four attempts in eight years rule in regulation C2.1.1 without regard to the particular circumstances of the plaintiff's case which adversely affected her capacity to perform in her final oral examination.
2. The plaintiff pointed to the reasoning of the PRC in its decision of 29 June 2015 and submitted that the PRC made no finding on the question of exceptional circumstances or causation. The plaintiff submitted that it made its recommendation without regard to the merits of the plaintiff's application.
3. The plaintiff submitted that the Appeals Committee, in the same manner as the PRC, failed to make a decision on the threshold question of exceptional circumstances and causation. It applied regulation C1.4.1 (the eight year period for core training regulation), and denied relief without regard to the merits of the particular case. It took into account irrelevant considerations being the four bullet points in the Committee's decision (set out at [30] above).
4. The plaintiff submitted that none of the matters contained in those four bullet points bore any relation to the question whether the traumatic events four days before the oral examination occurred or were such as to hamper her performance in the oral examination on 19 October 2014. The plaintiff submitted that the purpose of the "exceptional circumstances" rule was to ensure that candidates for examination are fairly assessed. If events occured which deprived a candidate of an opportunity for fair assessment, the College bodies responsible for training and assessment were empowered to give the individual concerned special consideration in the form of variation from the usual requirements.
5. The plaintiff submitted that what was relevant to be considered when exercising that power after a failed oral examination was whether the events in question caused or contributed to the failure. If they did, the question became what form of relief should be given to remedy the situation, including whether the candidate should be given another opportunity to pass the oral examination. The plaintiff submitted that an examination in which the candidate was denied a fair opportunity to acquit themselves to the best of their ability was not a true examination of the ability of the candidate.
6. The plaintiff submitted that the first two bullet points referred to by the Appeals Committee were not related to the question whether the Plaintiff was denied a fair opportunity to acquit herself at the oral examination. In relation to the second extension of time to complete the training, all it did was to permit the examination to take place.
7. The third bullet point was only concerned with the period after the examination and could not bear on the question at hand which was whether the plaintiff was denied a fair opportunity to perform optimally. The plaintiff submitted that the fourth bullet point was not only irrelevant but also irrational because merely making available the opportunity to apply for special consideration after the exam results went nowhere.
8. The plaintiff submitted that the Appeals Committee did not take into consideration relevant matters: first, the existence of exceptional circumstances in terms of the Policy clause 1.3, namely, "acute and substantive illness" of an "immediate family member"; and secondly, causation, that is, the hampering of the plaintiff's ability to perform optimally in the oral examination. They were findings on threshold questions.
9. The plaintiff submitted that until there were findings of fact coupled with a conclusion that those facts constituted exceptional circumstances and hampered or did not hamper the plaintiff's performance in her examination, it was impossible for the Appeals Committee or the PRC to proceed further and to determine in a rational way whether those circumstances warranted a departure from the requirement that a trainee be given four attempts to pass the oral examination and complete all training within an eight year period. In that way the reasoning of the Appeals Committee miscarried, the decision was irrational, and the plaintiff was denied procedural fairness and a hearing on the merits.
10. The plaintiff submitted that the reasons of the Appeal Committee showed that it failed to respond to a substantial, clearly articulated argument relying on established fact and, in that way, there had been a denial of procedural fairness.
11. The defendant submitted that the extent to which principles of natural justice applied to proceedings of a private tribunal will depend on the construction of the arrangements empowering the tribunal to decide disputes. In that regard the defendant pointed to the defendant's regulations and in particular regulation A2.9.5 which required the Appeals Committee to act: according to the rules of procedural fairness/natural justice and decide each appeal on its merits. The defendant submitted that this was a requirement that the decision-maker consider the individual circumstances of each case rather than resolving each case according to a blanket rule or policy. The defendant submitted that allegations that the Appeals Committee or the PRC did not decide that plaintiff's applications "on the merits" were without foundation.
12. The defendant submitted that procedural fairness is concerned with process and not outcome. In that regard the defendant submitted that none of the grounds set out in prayer 2 of the summons related to an obligation to afford procedural fairness. Rather, they were outcome-focused, and related to the tests applied by the Appeals Committee and the weight accorded to various factors.
13. The defendant also drew attention to regulation A2.9.6 which gave to the Appeals Committee the right to consider all relevant information which it thought fit.
14. The defendant submitted that the decision of the Appeals Committee involved a balancing exercise. There was no finding that exceptional circumstances did not, of themselves, exist. Rather, the finding was that there were no exceptional circumstances that, in the opinion of the Appeals Committee, would warrant departure from the College requirements. One of the factors to which weight was given, it was submitted, was the availability of the Policy and the fact that, although the plaintiff had the ability to apply for special consideration, she had not done so until well after the event in question, outside the deadline set by the Policy. It was submitted that that was sufficient to indicate that the Appeals Committee did not misapprehend what it was required to decide.
15. The defendant submitted that the regulations do not go so far as to require, implicitly, an express finding at the level of causation in relation to any particular set of facts that are alleged.
16. In answer to each of the specific grounds of appeal in prayer 2 of the Summons (set out at [30] above) the defendant made the following submissions.
17. As to (a), the defendant submitted that in circumstances where the Appeals Committee had a copy of the defendant's policy and expressed familiarity with that policy in its reasons for decision, it was not necessary for the test for "exceptional circumstances" to be restated in its reasons for decision.
18. As to (b), the defendant submitted that the alleged failure was a merits review ground. The defendant submitted that, even if the Court might reach a different conclusion from the Appeals Committee, the Committee was entitled to find that the plaintiff's father's cancer diagnosis was not an exceptional circumstance provided it considered that diagnosis (which it expressly did) and balanced it against the other considerations required to determine whether it was an exceptional circumstance sufficient to warrant departure from the defendant's requirements. One such relevant consideration, expressly referred to by the Appeals Committee, was that the plaintiff did not report the matter in accordance with the Policy.
19. As to (c), the defendant submitted that the Appeals Committee did have regard to the considerations set out in the ground of appeal. The Appeals Committee had before it the plaintiff's own submission as to the effect of the diagnosis on her performance, and the Committee referred expressly to the consideration it gave to the letters of support which referred to the impact of the diagnosis. In that way, there could be no doubt that the Appeals Committee took those matters into consideration. The defendant submitted that, to the extent that the ground was a complaint about the weight accorded to those matters by the Committee, that was a merits review issue, and was not a matter of procedural fairness.
20. As to (d), the defendant submitted that it was difficult to see how any of the matters addressed by the Appeals Committee could be said to be irrelevant in the sense required by law to the question whether the PRC made an error in deciding that the plaintiff's training should be terminated. Similarly, as with ground (c), the defendant submitted that, to the extent that the complaint went to the weight that was accorded to those factual matters, that was not evidence of a denial of procedural fairness.
21. As to (e), the defendant submitted that each of the matters in the sub-paragraphs of ground (e) was a repetition of the grounds of appeal brought by the plaintiff to the Appeals Committee, each of which was found not to be made out.

Was procedural fairness denied?

1. The plaintiff submitted, and I accept, that a determination of the question raised by the proceedings must principally be decided by a consideration of the contractual arrangements between the plaintiff and the defendant. Those arrangements are more particularly set out in the defendant's Regulations and the Policy.
2. Regulation C2 relevantly provided: C2.1 Removal from the FRANZCOG Training Program C2.1.1 Unless the Training Accreditation Committee accepts that exceptional circumstances exist, a trainee will be referred to the Progression Review Committee (PRC) for consideration for removal from the FRANZCOG Training Program if. • the requirements of Core Training are not completed within the timeframe specified in these Regulations; or • the requirements of Advanced Training are not completed within the timeframe specified in these Regulations; or • either the MRANZCOG Written or Oral Examination is not passed within the maximum four (4) attempts; or … C2.1.2 At least 30 days prior to a meeting of the Training Accreditation Committee at which a trainee is to be considered for removal from the FRANZCOG Training Program, the trainee will be informed of this in writing by the Chair of the Committee and advised. • of the grounds on which they may be removed from the FRANZCOG Training Program; • that unless the Training Accreditation Committee accepts that exceptional circumstances apply, they will be referred to the Progression Review Committee (PRC) for consideration for removal from the Training Program in accordance with the relevant regulation(s); … (emphasis added)
3. The Policy relevantly provided: Preamble This policy outlines the criteria and processes by which those individuals subject to RANZCOG regulations and/or policies pertaining to a range of requirements, including those associated with training and assessment, may apply for variation to the normal requirements on the grounds of exceptional circumstances that may justify special consideration. As such, the application of this policy includes the following groups: • Applicants for a position on a RANZCOG training program; • Trainees undertaking the Integrated Training Program (ITP) / Core or Elective / Advanced components of the FRANZCOG Training Program; … Exceptional Circumstances All RANZCOG regulations and policies relating to training and assessment requirements conducted by RANZCOG are subject to the standard proviso 'unless exceptional circumstances apply'. For the purposes of this policy, the College views 'exceptional' circumstances as those not ordinarily encountered or anticipated and which are beyond the control of the individual concerned. Where an individual subject to College requirements relating to training and assessment is precluded from meeting specific requirements, exceptional circumstances may give rise to College bodies responsible for the training or assessment requirement in question forming the view that the individual concerned be given special consideration in regard to the usual requirements of the regulation(s), policy(ies) and/or assessment in question. Such consideration may take the form of variation from the usual requirements, including modification to or exception from those requirements. … For the purposes of this policy, the existence of exceptional circumstances that may give rise to the granting of special consideration will be known prior to a decision being made by the College in relation to a particular event or requirement; for example, illness or other grounds defined in section 1 below that are experienced immediately prior to or on the day of a college examination or interview. As such, these circumstances should be advised to the College in a timely manner (see section 3.1 below) to enable consideration of these circumstances prior to the making of any decision in relation to the College requirement in question. … 1. GROUNDS FOR EXCEPTIONAL CIRCUMSTANCES The College will consider the following as grounds for exceptional circumstances that may lead to the granting of some form of special consideration on the basis that the circumstances specified could prima facie reasonably be seen as having, to a substantial degree, hampered the applicant's ability to meet the requirements of a specific regulation or policy, or to perform optimally in relation to a specific assessment task: 1.1 Serious illness or injury (physical and/or psychological), including physical impairment or incapacity and complications of pregnancy; 1.2 Death of an immediate family member, partner or close relative; 1.3 Acute and substantive illness or injury of a partner, immediate family member or close relative; 1.4 Sever stress resulting from extreme hardship or trauma (e.g. victim of violent crime); 1.5 Act of God, including earthquake. Notwithstanding 2 Below, the College accepts that the list above may not be exhaustive and that other specific individual circumstances may give rise to grounds for consideration under this and any related policies. 2. CIRCUMSTANCES WHICH DO NOT CONSTITUTE ADEQUATE GROUNDS FOR SPECIAL CONSIDERATION The following would normally not be regarded by the College as exceptional circumstances for the purposes of applying for special consideration: … 2.14 Circumstances where alternative arrangements were available (e.g. deferral, extension of time, or other special arrangements, etc.) and application was not made for such arrangements. 3. APPLICATION PROCESS 3.1 Candidates should advise the College of circumstances that they feel may warrant special consideration as soon as they are aware that such circumstances exist and communication with the College is possible. Special consideration may be refused where prompt notification or application as outlined below has not been made. Initial notification may be verbal or written; however formal notification to the College in writing (see 3.3 below) on the prescribed College form MUST be submitted and received by the College within 72 hours: • The occurrence of the event(s) considered to give rise to the exceptional circumstances; • The due date of the relevant assessment or other requirement affected by the exceptional circumstances; • The date on the assessment(s) in question was conducted (including examinations - see section 7 relating specifically to special consideration for RANZCOG examinations); or • The individual(s) concerned being notified by the College that a breach of a regulation or regulations has occurred. … 6. LATE APPLICATIONS Late applications made after the required date, or where the original application was not made on the prescribed form, may still be submitted… . Such applications will only be accepted if the Chairperson is satisfied that it was not possible for the application to have been made by the required date or on the prescribed form. … Applicants are advised that any applications for special consideration in a RANZCOG examination made after the publication of results in that examination will not be accepted. (emphasis added)
4. An issue of some significance between the plaintiff and the defendant was whether the highlighted words in the Policy imported the notion of causation to a consideration of the notion of exceptional circumstances. The plaintiff submitted that what was said to constitute exceptional circumstances on a prima facie basis were those matters set out in sub-paragraphs 1.1 and following of the Policy. Thereafter, the plaintiff submitted that, if such circumstances were accepted as having occurred, the task of the Appeals Committee (and the PRC before it) was to consider whether those circumstances could be seen as having hampered the plaintiff's ability to meet whatever requirement had to be fulfilled or to perform optimally in a particular assessment task and, if so, whether it hampered that ability to a substantial degree. The defendant, on the other hand, submitted that the proper construction of the highlighted words was that the particular matters identified in paragraph 1.1 and following had been selected as grounds for exceptional circumstances because, prima facie, they could be regarded or reasonably be seen as having the effect of hampering an applicant's ability to a substantial degree to meet the requirements of the regulation or to perform optimally in relation to a specific task.
5. In my opinion, the proper construction of that part of the Policy is that the matters listed in 1.1 to 1.5 are matters which are categories of exceptional circumstances, but it is then necessary to consider whether those circumstances could be seen as having to a substantial degree hampered the applicant's ability to meet the requirements of the regulation or to perform optimally in a specific task. Any other construction of the Policy would result in a mechanical application of a particular event or events impacting upon the person seeking the special consideration regardless of whether the circumstances actually hampered the applicant.
6. Two examples will suffice. An applicant could show that an immediate family member or close relative had died. However, the applicant might not have had any contact or personal relationship with that deceased person for 20 or 30 years. Another example would be the happening of an earthquake or an act of god which did not impact in any significant way on an applicant, notwithstanding its occurrence or effect was felt at the place where the applicant lived or resided or was located at the relevant time.
7. The highlighted words (at [58] above) are directed to the effect of the circumstances on the applicant's ability to do what is required of the applicant. In that way the highlighted words import an element of causation which must be considered and determined by the PRC and by the Appeals Committee.
8. Furthermore, the inclusion of the clause that follows the list of circumstances (commencing "notwithstanding") demonstrates that the notion of the circumstance itself having built into it a prima facie assessment that the circumstance to a substantial degree hampered the applicant's ability cannot be correct. That is because that clause allows for other unspecified circumstances that could not, on a priori basis, have such a concept contained within them.
9. Accordingly, the task of the Committee was; first, to determine if there were any exceptional circumstances; secondly, to determine if those circumstances could reasonably be seen as having hampered the applicant to a substantial degree to meet a requirement or perform optimally; and thirdly, to exercise the discretion derived from the words "that may lead to the granting of some form of special consideration". That third stage would involve the balancing exercise which the defendant submitted was involved.
10. Many cases have warned against imposing too high a standard of reasons on non-judicial decision makers. In Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402; (1996) 136 ALR 84, Sackville J (with whom Beazley J, as her Honour then was, agreed) said (at FCR 413-414, ALR 94): Care should be taken not to elevate the requirements of s 166e, or equivalent legislation such as s 43(2b) of the Administrative Appeals Tribunal Act 1975 (Cth), into an occasion for a minute examination of reasons ``with an eye keenly attuned to the perception of error'': Politis v FCT (1988) 16 ALD 707 (Fed C of A, Lockhart J), at 708. As Lockhart J said in that case, if the court is to keep within the proper bounds of judicial review of administrative decisions, it should approach the task of construing the reasons "sensibly and in a balanced way''. See also Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472; 98 ALR 180 (Fed C of A, Gummow J); at FCR 479. Legislation such as s 166e(1) of the Migration Act does not require the tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the tribunal set out in "short and measured, but specific terms its findings in connection with'' matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465; 77 ALR 577 (Fed C of A, Wilcox J); at FCR 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 (Fed C of A, Full Court) at 444. As Wilcox J observed in Our Town v ABT (at FCR 481), it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the tribunal, which does not necessarily include trained lawyers: Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 (Fed C of A, Full Court); at FLR 157, per Sheppard J.
11. It should be noted that in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Heydon J said at [85] that the warning given by Lockhart in Politis v FCT (1988) 16 ALD 707 should now have substituted for it: a warning against construing the words of non-judicial decision-makers minutely and finely either with an eye keenly focussed on the perception of error, or with an ear keenly attuned to the perception of error.
12. I consider that what was said in Muralidharan establishes the standard for a committee such as the Appeals Committee in the present case.
13. The Appeals Committee in its reasons noted that the two exceptional circumstances relied upon by the plaintiff were the significant injury to her ankle in May 2012 and the diagnosis of terminal cancer in respect of her father in October 2014. Those two circumstances would, prima facie, fall within clauses 1.1 and 1.3 respectively of the Policy.
14. The Appeals Committee also noted that the plaintiff did not apply for special consideration after sitting the exam in October 2014.
15. In my opinion, the Appeals Committee denied procedural fairness to the plaintiff because it failed to respond to a clearly articulated argument based on established fact. The plaintiff's argument was that exceptional circumstances existed. Two were relied upon, but the significant one was the diagnosis of terminal cancer in relation to her father some four days before she sat the oral examination. Her argument was that those circumstances hampered to a substantial degree her ability to perform optimally in the examination with the result that she failed to meet the requirements to complete her training within the eight year period. In that regard, the two failures are inextricably linked because it was only a successful completion of the exam which prevented her from completing that training.
16. In that regard, the plaintiff's submission to the Appeals Committee dated 15 July 2015 relevantly said this: Under an extremely unfortunate situation on 15 October 2014, just four days before the examination, I received the devastating news that my father had been diagnosed with metastatic cancer and had only a limited time left. My father was my mentor, role model, lawyer, political prisoner and human rights activist, with whom I had a very close relationship with. Through my mother's pleading, I knew that the heartfelt and family responsible duty was to be by my family's side at this very difficult time. However due to appreciating the extensions given to me by the College, I did not want to seem ungrateful or inconvinience (sic) the College. Therefore, I made the decision to stay and sit for my examination. In hindsight, I probably should have requested a deferral immediately, as unfortunately my family situation possibly did affect my performance. At the time, I was not aware of the impact my personal circumstance could have. I deeply regret my lapse in personal insight, as this is not usual for me. I consider it a reflection of the deep distress I was suffering which temporarily clouded my judgment. Upon completing my exam I boarded the first flight available enabling me to join my family. My only thoughts throughout the flight was that I be fortunate enough to see my father whilst stiff alive. This may not seem as a substantial nor tangible reason to the Committee, however I can assure you with all sincerity, the 3 day timeframe was purely an oversight due to my fragile state of mind and for this I sincerely apologise.
17. The Appeals Committee's conclusion that: No evidence that "exceptional" circumstances existed such as to warrant a departure from the College requirements fails to identify whether the Committee accepted the evidence of the plaintiff's father's metastatic cancer but considered that it did not hamper to a substantial degree her ability to pass the exam and thereby complete her training, or whether it did not accept the evidence about her father's metastatic cancer so that the plaintiff was unable to bring herself within any of the categories of exceptional circumstances set out in the Policy.
18. None of the four bullet points which followed that conclusion assists in elucidating that matter. Further, to the extent that they are the reasons that the Appeals Committee considered that the plaintiff did not fall within the confines of the Policy, those matters do not address the particular argument the plaintiff put forward. It may be accepted that the College extended the period for the completion of her training on two occasions, but those matters - either alone or taken in conjunction with the other two bullet points - provide no logical or rational explanation for the rejection of the plaintiff's appeal. At best, the first two bullet points may be considerations at the third stage when the balancing exercise was called for, but it is hard to see how they say anything about the first two stages of the consideration to which I earlier referred.
19. The third bullet point concerning granting the plaintiff leave of absence subsequent to 31 October is entirely irrelevant to the matter the plaintiff was putting forward. It cannot be a reason why exceptional circumstances were not demonstrated.
20. The fourth bullet point appears, at its highest, to be a suggestion that the plaintiff's appeal was rejected because she had, in effect, made application out of time for the special consideration. If that is what the bullet point is intended to convey, it does not come to terms with the plaintiff's submission as to why it was that she had applied out of time for the special consideration. If the bullet point does not rise to that level, it is an irrelevant matter which cannot provide a reason for concluding that exceptional circumstances were not demonstrated because it does no more than re-iterate a general entitlement open to all trainees.
21. The plaintiff had a contractual right to have her application and appeal dealt with in accordance with the regulations of the defendant, including the right to procedural fairness. She had a right derived from the obligation of the Appeals Committee to give reasons for its decision to know that the Committee considered the argument she put forward, and if her argument was rejected, a right to know why it had been rejected by reference to the Policy.
22. Contrary to the defendant's submission that the Committee expressly considered the plaintiff's father's cancer diagnosis, nothing can be discerned from the reasons of the Committee that the Committee did otherwise than note that that diagnosis was one of the exceptional circumstances that she relied upon. The matter is not again mentioned in the reasons.
23. The defendant drew attention to what McColl JA said in Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [153] contrasting a fair trial with a fair outcome, to suggest that the plaintiff had a fair trial and was really complaining about the outcome. The defendant submitted that the plaintiff was given the opportunity to put her case in writing and orally.
24. Justice McColl said in Re Henry: [153] Procedural fairness is an aspect of the obligation to ensure a fair trial. It requires "a fair hearing, not a fair outcome". Accordingly, "the relevant question is about the [decision-maker's] processes, not its actual decision [and] the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires, [while] the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25] - [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
25. The difficulty is, however, that from the reasons given by the Appeals Committee, it cannot be known whether a fair trial was had. While the plaintiff made the submissions she wished, nothing in the reasons shows that the very essence of her argument was considered. The Appeals Committee simply expressed a conclusion in terms of the Policy without offering any relevant reasons for that conclusion, contrary to what the regulations obliged it to do. What is being challenged here by the plaintiff is not the outcome but the processes that led to the outcome. The paucity of the reasoning leads to the only available conclusion that the Appeals Committee failed to respond to the plaintiff's clearly articulated argument.

Is relief available?

1. I have already made reference to what Campbell J said in McClelland v Burning Palms Surf Life Saving Club at [82]. That passage was approved by Basten JA in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd at [79]. The remarks in McClelland assumed that the remedies spoken of were available in the circumstances.
2. The matter arose for consideration in Scandrett v Dowling (1992) 27 NSWLR 483. The question in that case was whether the Court should intervene in the affairs of the Anglican Church of Australia to prevent a bishop ordaining women to the priesthood if that ordination was a breach of the rules of the Church, being a voluntary association. Justice Mahoney said (at 503-504): Where there is a breach of the rules of a voluntary association, the court will not always intervene to restrain that breach. The circumstances in which the court will restrain a breach of the rules of a voluntary association have been referred to in a number of decisions: see, for example, Cameron v Hogan ("the leading Australian authority"; K L Fletcher The Law Relating to Non-Profit Associations in Australia and New Zealand (1986) at 44); Peckham v Moore [1975] 1 NSWLR 353. In considering whether such a breach should be restrained by injunction or the subject of a declaration, it will ordinarily be of assistance to consider three matters: whether the rules of the voluntary association were intended to create legally binding rights and obligations between the members; (if they were) whether there has been a breach of rules creating such rights and obligations; and (if there has) whether the rules or the breach are such that it was intended that legal consequences should flow from the breach and (if it was) whether those consequences warrant intervention to restrain the breach. Whether, considered as a whole, the rules of a particular voluntary association were intended to create such rights and obligations must be determined according to the nature of the association, the terms of the rules, and the general context. In earlier times, there was seen by some to be a tendency to infer that in the case of voluntary associations formed for non-profit purposes, it was not intended that the rules create such rights and obligations: at least, this was so where property and similar rights were not involved or except in so far as they were involved. … In more recent times the courts have, I think, tended more often to see the consensual: Cameron v Hogan (at 371); or the contractual: John v Rees [1970] Ch 345; in Re Recher's Will Trusts [1972] Ch 526; in Re Grant's Will Trusts [1980] 1 WLR 360; [1979] 3 All ER 359; nature of such rules as binding the members contractually or otherwise by legally binding obligations: see, for example, Buckley v Tutty (1971) 125 CLR 353; Nagle v Feilden [1966] 2 QB 633; compare Davies v Presbyterian Church of Wales [1986] 1 WLR 323; [1986] 1 All ER 705 (House of Lords); President of the Methodist Conference v Parfitt [1984] QB 368. In one case in New South Wales, a trial judge saw justification in the modern changes in society to refuse to follow the decision or at least the approach adopted by the High Court in Cameron v Hogan: see McKinnon v Grogan [1974] 1 NSWLR 295; cf Grogan v McKinnon [1973] 2 NSWLR 290.
3. The second paragraph quoted above was recently endorsed by the Court of Appeal in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; (2016) 340 ALR 560 at 32. That was a case where the decision of a committee of a domestic tribunal was challenged in circumstances where the tribunal was operating under contractual arrangements to which the plaintiff was not a party, and undertaking functions which were private as distinct from governmental. The primary judge had held, nevertheless, that the Court could intervene in aid of the private right asserted by the plaintiff. In so doing, the primary judge relied on Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242; [2001] NSWCA 162 and Australian Football League v Carlton Football Club Limited [1998] 2 VR 546.
4. In Agricultural Societies Meagher JA, with whom Ward and Leeming JJA agreed, said: [35] Neither AFL v Carlton nor Mitchell decides that a Court may grant a private law remedy, such as a declaration or injunction, in relation to a challenged decision of a private tribunal other than in enforcing or protecting an underlying contractual or other entitlement recognised at law or in equity. For that reason his Honour's statement that his decision was consistent with the "principle in Mitchell" was neither justified nor correct. [36] His Honour's reference may be to Ipp AJA's statement at [37] that it had been held "in certain circumstances, that the court has power to intervene, irrespective of the terms of any contract that may be applicable". That observation was made in relation to the jurisdictional basis for the exercise of the Court's "discretionary power to intervene in the affairs of voluntary tribunals" which, as Ipp AJA observed, had "long been recognised". Having also observed of that power that it was "ordinarily regarded to be derived from consensual arrangements or contracts between the members of the association concerned", Ipp AJA extracted two passages from the judgment of Tadgell JA in AFL v Carlton. [37] In the first, Tadgell JA (at 552) discusses the basis upon which a private tribunal is taken to be obliged to act "in good faith, without bias and in other respects honestly". His Honour was not there seeking to identify the underlying private law rights by reference to which, in an appropriate case, the Court will grant a remedy for breach of any such duty. In the course of that discussion, Tadgell JA referred to tribunals operating under a consensual arrangement or trust. Tadgell JA's earlier statement (see [30] above) had made clear that contract and trust provide two instances in which a private law remedy might be available. [38] In the second of the passages cited by Ipp AJA, Tadgell JA (at 550) notes that the Courts "have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property". Tadgell JA continued: If a tribunal's decision purports to owe its binding quality, for example, to a contract or a trust the courts, exercising jurisdiction in respect of contracts and trusts, will recognise that the making of the decision is to be consonant with the contract or trust before it is binding. [39] Tadgell JA's reference to the courts interfering with decisions of domestic tribunals in order to protect rights in property is most likely to one of the circumstances in which equity, in its auxiliary jurisdiction, would restrain unincorporated associations from expelling members: see Rigby v Connol (1880) 14 Ch D 482 and, more generally, the discussion in JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21-280]-[21-305]. [40] As I have already noted, in relation to the making or enforcement of the committee's decision, it was not alleged that there was any contract or proprietary right, legal or equitable, or equity that might be enforced, or protected at Mr Christie's suit by injunction or declaration. At its highest, the relevant effects on Mr Christie of the "voluntary" enforcement of the penalty decision were said to be "financial and reputational". It was not contended, however, that any such enforcement of that decision, or its publication, was or would be tortious, or involve any unreasonable restraint of trade because of any arrangement or understanding between ASC and its member show societies: cf Buckley v Tutty (1971) 125 CLR 353.
5. The defendant appeared to accept that there was a consensual arrangement between it and the plaintiff as a trainee under its program, and submitted that the content of the obligation owed by the defendant was informed by that arrangement.
6. The Regulations make clear that the arrangements between the defendant and trainees in the position of the plaintiff are contractual arrangements. In particular, clause C1.6 of the Regulations is headed "Trainees' Statement of Understanding" and provides" The agreement existence (sic) between individual trainees and the college by virtue of the Trainee Statement of Understanding completed by the trainee will continue to operate under these regulations. Trainees who have commenced the FRANZCOG Training Program prior to 1 December 2013 but who have not signed the Statement will not gain credit for any training undertaken past that date until such time as the Statement is signed and received by the College.
7. Other provisions of the Regulations make clear that a trainee registration form must be provided to the College and a fee paid on an annual basis. In addition, under clause A2.5.2, a fee is payable with the lodgement of an appeal to the Appeals Committee.
8. The result must be that the Regulation (A2.9.5) requiring the Appeals Committee to act according to the rules of procedural fairness is a contractual obligation undertaken by the defendant to a person in the position of the plaintiff. In accordance with what was said in Scandrett v Dowling and Agricultural Societies, that obligation is sufficient to justify relief from this Court in aid of that obligation. Such relief will, as Campbell J said in McClelland, ordinarily amount to a declaration of invalidity and an injunction to ensure the declaration is effective to achieve its purpose.
9. The defendant accepted that if the Court found in favour of the plaintiff in respect of the relief in prayers 1 and 2, it would be appropriate to make the orders sought in prayer 3 being the declaration of invalidity. The defendant submitted, however, that orders in terms of prayers 4 or 5, setting the decision aside or remitting the matter, should not be made.
10. The defendant submitted that the summons does not seek either an order in the nature of specific performance nor a mandatory injunction, and that prayers 4 and 5 should not be regarded as seeking such relief. The defendant also submitted that if those forms of relief are what is intended by prayers 4 and 5, both have discretionary aspects to them about which the defendant would be entitled to put on evidence. However, the defendant submitted, as the prayers were not understood in that way, the defendant was not prepared with that evidence. The defendant submitted that the only remedy sought by the plaintiff, flowing from such cases as McClelland and Chase Oyster Bar, is a declaration.
11. In my opinion, prayers 4 and 5 should not be read as restrictively as the defendant asserts. What is made clear in McClelland is that the appropriate remedy for a voluntary association is a declaration that a particular act is invalid and an injunction against treating the act as valid. Prayer 5 asks that the matter be remitted to the Appeals Committee to be dealt with in accordance with law. In public law such an order would be an order in the nature of mandamus. In private law where the Court is acting in the auxiliary jurisdiction of equity, such an order takes the form of a mandatory injunction. If there are matters of discretion that arise before an injunction is granted, the defendant ought to have been in a position to identify those discretionary matters and lead any evidence in support of a submission that an injunction should not issue.
12. Unless the defendant was prepared to accept that the effect of any declaration of invalidity of the Appeals Committee's decision meant that the matter had to be reconsidered, the making of a declaration alone may be futile in the sense that it would leave the plaintiff in limbo with no ability to proceed further except, perhaps, to make another application long out of time for special consideration. That would create additional burdens on the plaintiff which would not obtain if the Appeals Committee was required by the Court to reconsider its invalid decision.
13. For those reasons, I consider that, in addition to a declaration concerning the invalidity of the decision, a mandatory injunction should be ordered to require the Appeals Committee to consider the plaintiff's existing appeal to that Committee in accordance with law as this judgment determines.

Conclusion

1. The parties should bring in Short Minutes to give effect to these reasons and to provide for the payment of costs.

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