Plaintiff v Defendant

2 By summons dated 14 May 2020, Mr Tansley seeks leave to file a further amended statement of claim ('FASOC').[1]

3 The amendment application is partially allowed and partially disallowed. Mr Tansley will be given the opportunity to further amend his claim to facilitate the just determination of the proceeding by precise identification of the real issues in dispute: is there a contractual relationship between the parties, and if so what are its terms and have they been breached?

4 Mr Tansley relies on the affidavit of his solicitor, Russell Ball sworn on 29 May 2020 ('Ball affidavit').

5 RACS relies on the affidavits of its solicitor, Gareth Kerr, sworn on 20 May 2020 ('first Kerr affidavit') and sworn on 22 May 2020 ('second Kerr affidavit').

7 Rules 13.02 and 13.10 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') are applicable.

Content of pleading

(1) Every pleading shall -

(a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;

(b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on; and

(c) state specifically any relief or remedy claimed.

(a) raise a point of law;

(b) plead a conclusion of law if the material facts supporting the conclusion are pleaded.

...

Particulars of pleading

(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.

(2) Without limiting paragraph (1), particulars shall be given if they are necessary -

(a) to enable the opposite party to plead;

(b) to define the questions for trial; or

(c) to avoid surprise at trial.

(3) Without limiting paragraph (1), every pleading shall contain particulars of any -

(a) misrepresentation, fraud, breach of trust, wilful default or undue influence which is alleged; or

(b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice, which is alleged.

...

8 The following principles in relation to the function and purpose of pleadings are applicable.

...

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression 'material facts' is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;

(d) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent...;

(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;

(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic) [('Civil Procedure Act')];

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;

(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);

(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement - namely, to fill in the picture of the plaintiff's cause of action (or defendant's defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;

(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;

(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible; [2]

9 There are findings below that parts of the FASOC are 'embarrassing'. In the context of pleadings, 'embarrassing' should be interpreted as follows.

Prejudice, embarrass or delay: In general, a pleading or indorsement is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her. Thus, a pleading which is unintelligible, or is vague or ambiguous, or is too general is embarrassing.[3]

10 The applicable test is not the application of the strike out rule (r 23.02).

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings -

the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(a) originating process;

(b) an indorsement of claim on originating process; and

(c) a pleading.

(3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.

...

12 In Mandie v Memart Nominees Pty Ltd,[4] the Court of Appeal outlined applicable principles in respect of amendment, as follows.

The [Civil Procedure Act] has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the [Civil Procedure Act] which set out when a pleading amendment will be allowed must be approached with caution.

The power conferred on the court by s 63(1) of the [Civil Procedure Act] to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. To grant leave in that circumstance would be futile as the claim or defence would be susceptible to a summary judgment application. This principle facilitates the administration of justice, as it enables courts to prevent claims or defences being pleaded where they will inevitably fail and thus avoid the cost and inconvenience that would otherwise arise if those claims or defences were permitted to be made only to be the subject of summary judgment subsequently.[5]

13 Elliott J summarised some of the applicable principles in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10),[6] as follows.

In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.

The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment. The nature and importance of the proposed amendments must be considered. This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants.[7]

14 The amendments are substantial and the parties' written submissions number 33 pages, including 21 pages of submissions from RACS.[8] As this is an application for amendment, the analysis below is confined to whether or not the proposed amendments should be allowed.

15 Before examining the submissions of the parties in respect of particular amendments, I will outline their general submissions. As to the authorities relied upon, where relevant and necessary, they are addressed in the analysis further below.

16 Amendments should be made and allowed such as are necessary to ensure the real questions in controversy are decided. The discretion is enlivened when the just resolution of the proceeding requires it. Absent extraordinary circumstances, leave should be given to make an amendment which provides for clear articulation of the claim and affords the parties an opportunity to present their case. An amendment directed to tidying up the pleading to ensure issues are clearly defined and well understood will be regarded as a stronger case. Provided that the case is arguable, whether or not it ought succeed is a question for the trial judge.

17 There is a clear case for amendment. The matter is factually complex and concerns conduct undertaken over a period of five years. In successive steps, both parties created and then adjusted the rights, duties and obligations of the parties over that period. The proposed pleading makes this clear and is a suitable basis upon which to conduct the trial.

(a) make it clearer the terms upon which the major defence of RACS, the validity period (discussed further below), will be challenged;

(b) do not substantially alter the relief as originally sought, but fully state all the bases for them; and

(c) make a damages claim for breach of contract and seek appropriate relief under the Competition and Consumer Act 2010 (Cth) ('the Consumer Law').

19 Mr Tansley's solicitor deposes that the amendments will also avoid the necessity for multiple proceedings.[9]

20 There is no legal basis for any claim which will be traversed in the trial which was not always present for determination by the Court in the present amended statement of claim, save for the question of damages.

21 RACS knows the cause of action and the breaches alleged. There is nothing to suggest it cannot conduct its defence. Its complaints are not confined to the question of whether the amendment ought be permitted. It had more than 14 months to strike out the pleading and has not done so despite raising it first in January 2019. No issue of delay exists here. The application has been made promptly after an extensive mediation process. RACS has not alleged any prejudice.

(a) did RACS wrongfully, in breach of the contract, refuse to permit an appeal?

(b) is RACS entitled to rely on the validity period term?

(c) did the decision of the appeal committee leave the approval of the post at Northern Hospital in force?

(d) if yes, then was the further Appeals Decision Implementation Committee ('ADIC 2') acting within its power when making a decision on that question?

(e) did ADIC 2:

(i) deny the plaintiff procedural fairness in reviewing the Board of Plastic and Reconstructive Surgery ('the BPRS') decision without providing him a proper opportunity to be heard on matters to which the decision-maker would have regard and impermissibly taking a witness' evidence; and

(ii) take an irrelevant consideration into account (the decision of the BPRS)?

(f) is the reliance by RACS upon the validity period term a breach of the Consumer Law entitling suitable relief?

(g) what damages have been suffered by Mr Tansley in consequence of these matters?

23 The application for leave to amend is opposed on the ground that the proposed FASOC is hopelessly defective. Leave ought be refused because the FASOC:

(a) does not disclose a course of action;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; and

(d) is otherwise an abuse of the process of the Court.

24 The proposed amendments would be susceptible to being struck out pursuant to r 23.02 of the Rules and s 18 of the Civil Procedure Act.

25 Mr Tansley should not be permitted to replead a case unless and until he can satisfy the Court that there is a proper basis to support the claims and they can be articulated in accordance with the well-established rules of pleading.

26 The FASOC is populated with allegations that are so unintelligible, ambiguous, vague or general that they are embarrassing. RACS does not know what is alleged against it.

27 An overview of the allegations in the FASOC follows. Prior to the FASOC, the parties exchanged an amended statement of claim ('ASOC') and amended defence. To aid understanding of the dispute concerning the FASOC, I will identify some of the agreed facts and issues and some that are in dispute.

28 The following are common ground between the parties.

(a) Mr Tansley was admitted to fellowship of the Royal College of Surgeons of England in 1999. He practised exclusively in the United Kingdom from then until 2011. In September 2010, he was admitted to fellowship of the Royal College of Surgeons of England in plastic and reconstructive surgery. In April 2011, he was entered onto the Specialist Register of the General Medical Council.

(b) On 22 October 2011, Mr Tansley arrived in Melbourne to undertake further fellowship experience for a period of up to 12 months.

(c) In Australia, Mr Tansley was at all relevant times, and is, a registered medical practitioner and the holder of a general registration under the provisions of the Health Practitioner Regulation National Law (Victoria) Act 2009 ('the National Law'), and from December 2012, an international medical graduate ('IMG') as known in and for the purposes of the various policies and rules of RACS.

(d) Mr Tansley does not hold fellowship of RACS. He is not registered as a specialist medical practitioner in Australia under the National Law.

(e) RACS is a registered public company, limited by guarantee.

(f) On 20 August 2012, Mr Tansley made an application to the Australian Medical Council ('AMC') to be assessed for admission to practice as a specialist medical practitioner in Australia and paid a fee of $285 for doing so.

(g) On 11 September 2012, the AMC referred Mr Tansley's application for specialist registration to RACS for assessment. On 13 September 2012, RACS proceeded to assess the application for specialist registration. On 14 September 2012, Mr Tansley paid RACS an assessment fee of $7,458.

(h) RACS may admit an IMG to fellowship on application to it if it deems them to be partially comparable with a surgeon who is trained in Australia or New Zealand and certain mandated assessment exercises have been completed.

(i) On 15 October 2012, RACS determined, amongst other things, that Mr Tansley had to undertake 24 months of supervision in a post to be approved by it and pass a fellowship examination [in order to be recognised as a specialist plastic surgeon which requires comparability with an Australian or New Zealand trained surgeon] ('the first comparability decision').

(j) On or about 7 November 2012, an application was made for supervision of Mr Tansley and appointment of two plastic surgery fellows of RACS as his clinical assessors. The position for supervision included a post at Northern Hospital ('the post'). The application included a position description assessment form ('PD assessment form').

29 Mr Tansley says that on 4 December 2012, RACS approved the application for supervision and appointment of the two assessors. RACS says it advised Mr Tansley it assessed the post to be suitable for the first 12 months of clinical assessment and approved the clinical assessors. RACS says it never recommended that he undertake clinical assessment at the post beyond the 12 months.

30 Mr Tansley says he accepted the approval above (supervision and appointment of assessors). He alleges that the acceptance of approval and thereby the pathway to fellowship of RACS is a contract between himself and RACS. He alleges that the pathway to fellowship was to exist for four years, namely until 17 December 2016 ('the validity period'), and thereafter he became an IMG under consideration for the grant of RACS fellowship.

31 Mr Tansley says that the grant of fellowship of RACS confers the right upon a medical practitioner to be registered under the provisions of the National Law as a specialist and thereby hold out to the public the right to practice as a specialist in Australia. RACS admits that it is an accredited body for determining the eligibility for specialist registration in surgery including plastic surgery and the use of specialist titles such as 'specialist plastic surgeon', and otherwise denies the allegation.

(a) on 17 December 2012, Mr Tansley's pathway to fellowship of RACS commenced. He paid a fee to RACS $2,585 prior to that, namely on 20 September 2012, for its maintenance of professional standards program; and

(b) on 14 January 2013, Mr Tansley paid RACS a fee of $6,039 for the right to be assessed on his pathway to fellowship in payment for the first year of clinical assessment.

33 On 29 April 2013, Mr Tansley says that he made an allegation of apprehended bias against RACS.

34 Mr Tansley says that on 6 May 2013, RACS set aside the first comparability decision. RACS says it decided to give Mr Tansley a fresh specialist assessment interview before a differently constituted panel. It says that on 6 May 2013 it decided a suspension of Mr Tansley's clinical assessment should be lifted and it should resume.

35 Mr Tansley alleges that on 3 August 2013, RACS, by a decision of the Board of Plastic and Reconstructive Surgery, and allegedly pursuant to the contract, withdrew approval of the post. The BPRS is alleged to be an agent of RACS. It is alleged that RACS delegated power to the BPRS to exercise responsibility for the regulation and delivery of RACS' surgical and educational programming in plastic and reconstructive surgery. RACS admits that on 3 August 2013, the BPRS decided to recommend to it that the clinical assessors be removed as IMG assessors of Mr Tansley and Northern Hospital no longer approved as an IMG post.

36 On 6 September 2013 and 25 October 2013, Mr Tansley says that he applied to RACS to appeal the decision to withdraw approval of the post and the failure to decide the question of the suitability of work performed during the second period of assessment (as then understood). RACS admits Mr Tansley made an application to it to appeal. It says the appeals were in relation to the BPRS' refusal to approve the second period of clinical assessment which concluded on 13 June 2013 and the BPRS' recommendations.

37 From 6 September 2013 and until 2 February 2015, allegedly pursuant to the contract, Mr Tansley continued working in the post. He says that he worked in the post under the supervision of his assessors until 14 December 2014. RACS denies this.

38 Mr Tansley says that on 24 February 2014, allegedly pursuant to the contract, RACS again assessed him to be partially comparable to an Australian or New Zealand trained plastic and reconstructive surgeon ('the second comparability decision'). It required him to undertake 12 months of clinical assessment under supervision in a unit with accredited plastic and reconstructive trainees and pass a fellowship examination. RACS admits it notified Mr Tansley of various matters on 24 February 2014. It says that this included, that to pass the pathway to examination he needed to successfully complete 12 months of clinical supervision in a large plastic surgery unit that has a broad range of services and with accredited plastic and reconstructive surgery trainees.

39 On 25 March 2014, the appeals committee of RACS allegedly heard the appeal of Mr Tansley concerning RACS' decision to withdraw approval of the post and the purported failure of the second period of clinical assessment. RACS admits this.

40 It is common ground that on 28 April 2014, the appeals committee of RACS determined to revoke the decision to withdraw approval of the post and referred that decision to revoke to the Council of RACS ('the appeal decision').

41 Mr Tansley alleges that the appeal decision was made pursuant to the contract, and by reason of it, there was a further term of the contract from 28 April 2014, namely the 'appeal set aside term', discussed further below.

42 Mr Tansley alleges that, pursuant to the contract, he continued on his approved pathway to fellowship, in the post approved by RACS on 4 December 2012, and under assessment by his clinical assessors. RACS denies this.

43 Mr Tansley alleges that on about 4 June 2014, allegedly pursuant to the contract, a committee to oversee Mr Tansley's continuing assessment was purportedly established by RACS. RACS admits establishment of a sub-committee: the Appeals Decision Implementation Committee ('ADIC 1').

44 Mr Tansley alleges that on 17 June 2014 and 3 July 2014, pursuant to the contract, he accepted, so as to progress his position: the first comparability assessment and that his period under supervision commenced on 17 December 2012 (which had been set aside by RACS on 6 May 2013).

45 It is common ground that on 8 July 2014, RACS accepted that Mr Tansley's clinical assessment had commenced on 17 December 2012.

46 Mr Tansley alleges that RACS purportedly created ADIC 1 so as to consider the suitability of the post and assess the second and subsequent periods of clinical assessment. On or about 5 August 2014, Mr Tansley objected to the competency of ADIC 1 to reopen the question of the suitability of the post. RACS admits it convened ADIC 1. Its purposes are said to include review of the decision to assess the second period of clinical assessment as unsatisfactory and review of the decision to withdraw approval of the post for clinical assessment effective from 5 September 2013.

47 Mr Tansley alleges that on 14 December 2014, pursuant to the contract, he completed 24 months of clinical assessment in the RACS approved post under the supervision of his clinical assessors. Eight assessment reports were lodged with RACS. It is alleged that RACS has not assessed the assessment reports with associated documents. It is alleged that in breach of the contract, RACS has refused to do so. RACS denies this.

(a) on 19 December 2014, RACS accepted only that Mr Tansley had completed two periods of clinical assessment with the outcome of the second period remaining under consideration.

(b) on 2 March 2015, RACS, by ADIC 1, confirmed the decision of the BPRS to withdraw approval of the post. RACS says that ADIC 1 decided that the post was not suitable for IMG assessment. Further, that it decided that Mr Tansley's second period of clinic assessment was satisfactory.

(c) on 28 May 2015, Mr Tansley applied to appeal the decision of ADIC 1 saying it was made in jurisdictional error. He paid RACS a fee of $8,250 to do so. Mr Tansley says he appealed part of the decision concerning the suitability of the post. RACS says Mr Tansley appealed the whole decision of ADIC 1.

(d) in October 2015, RACS revoked the ADIC 1 decision in respect of the post.

(e) in October 2015, RACS moved to establish a further Appeals Decision Implementation Committee ('ADIC 2'). A purpose of ADIC 2 was to review and reconsider the decision of the BPRS to withdraw approval of the post for clinical assessment effective from 5 September 2013.

49 Mr Tansley alleges the following. A hearing was conducted on 29 February 2016 and on other dates precisely unknown to Mr Tansley. He says ADIC 2 was required to accord him procedural fairness. Mr Tansley says its decision was made in denial of procedural fairness and in breach of the contract with him. Evidence was given at the hearing by a consultant plastic surgeon. It was not given in the presence of Mr Tansley or his legal advisers. There was no opportunity to cross examine the consultant. Mr Tansley says ADIC 2 failed to take into account a relevant consideration, namely the interest of the consultant in giving of his evidence. He alleges that the consultant had a conflict of interest. In particular, the employment of Mr Tansley in the post had the potential to reduce the amount of compensable cases and fee-for-service work and related financial remuneration of the consultant. These allegations are newly made in the FASOC.

50 Mr Tansley alleges that the jurisdiction of ADIC 2 to decide the question of the approval of the post does not exist, and RACS' decision in December 2012 (to approve the post) remains operative and of legal effect. It is alleged that RACS has, in breach of the contract, impermissibly purported to interfere with the post and engaged in misdirection in law and or an abuse of power.

51 On or about 24 August 2016, with the hearings and decision of ADIC 2 still extant, Mr Tansley says that RACS, in breach of the contract, advised that his pathway to fellowship would terminate on 16 December 2016. RACS admits that on that date it informed him of the expiry and invited him to consider applying for a 12 month extension, and further that an application was made for an extension that was granted. It otherwise does not admit the allegations.

52 On 28 October and 2 November 2016, Mr Tansley says that he protested the RACS' advice and sought a 12 month extension. He says that on 7 November 2016, RACS advised him that the validity period would "not be treated as expired until such time as the process does conclude". This allegedly forms a further term of the contract. RACS admits the extension application was made and otherwise denies the allegation. It says that on 7 December 2016, it informed Mr Tansley that the extension application would be put before RACS once the current application process had concluded. RACS anticipated it to be before the expiry of his validity period but, if it was not, then it would not treat the validity period as expired until such time that the extension application had been put before ADIC 2.

53 By submissions dated 29 November 2016, Mr Tansley says he objected to the competency of ADIC 2 to consider the suitability of the post.

(a) on 18 April 2017, ADIC 2 made its decision and delivered reasons for it ('ADIC 2 decision').

(b) ADIC 2 decided, amongst other things, that the post was not suitable for IMG assessment. (At the time Mr Tansley was an IMG.)

(c) on 26 May 2017, RACS advised Mr Tansley that his pathway to fellowship of RACS came to an end on 18 April 2017 (the date of the ADIC 2 decision) absent a request for an extension of time by him. Further, that he should inform RACS by 2 November 2017 if he sought an extension.

(d) on 31 May 2017, Mr Tansley informed RACS, that: he would appeal the decision, rejected the suggestion that pathway had concluded on 18 April 2017 and that, he sought, without prejudice to that contention, an extension of time for his pathway if necessary.

(e) on 16 June 2017, RACS granted Mr Tansley an extension of the specialist assessment validity period until 17 December 2017.

(f) on 22 June 2017, Mr Tansley applied to have the ADIC 2 decision considered by an appeals committee of RACS and paid RACS a fee of $8,925 to do so.

(g) on 20 July 2017, RACS denied Mr Tansley's application to have the decision considered by an appeals committee ('the denial').

55 Mr Tansley alleges the denial was wrongful and in breach of the contract and terms of the RACS appeals policy. He alleges the denial never addressed the question of the currency or otherwise of the contract and hence his pathway to fellowship. RACS denies these allegations and says, amongst other things, that any appeal of the ADIC 2 decision has been rendered nugatory.

56 Mr Tansley alleges that by reason of the conduct of RACS, he: has worked in a position for two years that has now been disapproved; does not have recognition for that work; is denied credit for it; has damaged his pathway to fellowship; and was removed from his pathway to fellowship from 17 December 2017. RACS denies these allegations.

(a) on 8 December 2017, Mr Tansley sought a date for when an appeals committee would hear the appeal of the ADIC 2 decision.

(b) on 29 January 2018, RACS declared that Mr Tansley's validity period had come to an end. Mr Tansley alleges this was in breach of the contract. RACS says that it notified Mr Tansley, amongst other things, that he had not completed the requirements of the first assessment recommendation.

(c) on 2 February 2018, RACS affirmed its declaration that Mr Tansley was not on the pathway to fellowship and refused to permit an appeal against the decision.

58 RACS defines the 'validity period' as the four year period from commencement of clinical assessment on 17 December 2012 to complete all requirements stipulated in the first assessment recommendation. It says on 16 June 2017, the validity period was extended by 12 months to 16 December 2017.

(a) the four year delay of RACS concerning approval of the post is an unreasonable restraint on his trade profession as a plastic surgeon;

(b) RACS has engaged in unconscionable conduct pursuant to s 236(1) of the Consumer Law;

(c) RACS should be restrained from denying him the right to appeal and taking any further steps to hold his fellowship pathway pending the hearing and determination of an appeal;

(d) he is entitled to a declaration that the decision to approve his post as at 4 December 2012 is final and of continuing effect, that the validity period of his pathway has not concluded or expired and other declarations;

(e) an order should be made pursuant to s 246(2)(b) of the Consumer Law directing RACS to establish a compliance program for all fellows and staff involved in the assessment of IMGs to ensure the awareness of the need not to engage in delay of an IMG application given the conduct which is constituted by the matters of delay alleged here;

(f) an order should be made pursuant to s 246(2)(d) of the Consumer Law that RACS, at its own expense, publish a notice to him and all members of the speciality craft of plastic and reconstructive surgery that he has been wrongfully delayed in the assessment by RACS of his surgical competencies; and

(g) he should be awarded damages at general law and pursuant to the Consumer Law.

60 Turning now to the particular amendments in dispute, which shall be examined in turn.

FASOC paragraphs [21(a), (d)], particulars of [21€]

61 The amendments to paragraph [21] define and particularise the alleged contract between the parties.

62 Paragraph [21] pleads a claim in contract and later paragraphs plead various breaches and an entitlement to relief. The terms are further pleaded for clarity. These terms are already imposed by law or evident from the amended statement of claim.

63 The additions to the claim are made to put to the forefront the consequences of RACS asserting the effect of the validity period term in December 2017. It did so in correspondence to Mr Tansley in December 2017 upon purported termination. It then elected to raise that term in its defence. By doing so, it evidently wishes to rely upon this term as its principal line of defence. Such a case is not appropriately pleaded to by reply.

64 There are several fundamental problems with the plea in paragraph [21(a)] defining the alleged contract as Mr Tansley's acceptance of the approval by RACS of his post at Northern Hospital and of his two clinical assessors.

65 Firstly, how does Mr Tansley's unilateral acceptance of the approval of the application bind RACS if the underlying applications were not supported by consideration? The terms of the approval pleaded in [20(a)] are not pleaded as forming part of the contract. This creates further confusion as to what constitutes the alleged contract.

66 Secondly, how does Mr Tansley's unilateral acceptance of RACS' approval of an application made by others, namely Northern Hospital and the clinical assessors, unilaterally bind RACS? Mr Tansley is not privy to any contract, if there is one, between RACS and the Northern Hospital or the assessors.

67 Thirdly, are the applications to RACS made by Northern Hospital for approval of the post, and by the clinical assessors for approval as assessors, part of the alleged contract or not? There are particulars contained in paragraph [21(e)]. They do not refer to the applications. How are they to be reconciled with the preceding paragraphs? How can they be reconciled with paragraph [21(a)]? What is the contract? The particulars to paragraph [21(e)] are inadequate. They refer to emails but do not identify them with particularity. Further, they refer to terms "implied by the course of conduct of the parties and between them referred to in [21]-[96] hereof". Paragraph [22] treats the contract and the PD assessment form separately yet paragraph [20] refers to the terms contained within the form. Paragraph [21](a)] pleads that Mr Tansley accepted the approval in paragraph [20] and that is then defined as the contract.

68 Fourthly, the sheer number and breadth of the implied contractual terms is overwhelming. It is onerous. The scope, source and particulars of the alleged duties ought be pleaded with the requisite details to comply with the pleading rules.

69 It is pleaded that a wide range of conduct and steps were undertaken "pursuant to contract"[10] and other variations of this phrase. These pleas are tied to the validity of the plea in relation to the contract alleged at paragraph [21(a)] and for the reasons submitted are similarly defective and susceptible to being struck out.

70 x It is pleaded that "Mr Tansley by the contract became bound by all the terms of the contract then in place and/or implemented and/or required thereafter during the pathway being relevant rules and policies of RACS governing his pathway to Fellowship, including: (i)...(iv)".[11] If this plea is to be given its plain meaning then there should be no further terms pleaded other than those. However, what follows are other terms, which are not pleaded as alternatives. They infringe r 13.09 of the Rules and ought be struck out.

71 One of the policies pleaded as a term of the contract in [20(d)(ii)], being Appeal Decision Implementation Committee Policy Ref No. ETA-IMG-013, did not come into existence until 2014 and was amended in October 2015.[12] The plea does not answer the question of how it became a term of an alleged contract made two years earlier.

72 The term in [20(d)(iv)] is: "A term which required independent fresh assessment of the suitability of the post without regard to matter or opinion are relevant to the decision". The source of this rule is unidentified and is not one which is familiar to RACS and accordingly should be specifically identified.

73 Further, the plea is susceptible to being struck out as it is an attempt to maintain judicial review in circumstances where such a review is not available. This submission is addressed more fully below in relation to paragraphs [22A] and [83(c)].

74 I will disallow this amendment. This plea is embarrassing.

75 Firstly, it defines the contract by simply adding the words "the contract" after referring to acceptance of "the approval referred to in paragraph [20]". Paragraph [20] refers to RACS' approval on 4 December 2012 of the post and appointment of two assessors of Mr Tansley. It also pleads that a number of positions comprise the post including: clinical practice at the Northern Hospital, Broadmeadows and Craigieburn health services; clinical practice of private hospitals with his assessors; academic research and teaching positions; work as a senior lecturer; work as an honorary clinical lecturer; and work as an appointed honorary associate specialist surgeon at Royal Melbourne Hospital. It says the approval of the assessors was contained in a letter in writing. It pleads that the position of supervision included the post at Northern Hospital on terms contained within the PD assessment form. Mr Tansley's acceptance of the approval is asserted. There are no material facts pleaded in support of the assertion.

76 Secondly, there is no consideration identified in respect of the alleged contract.

77 Thirdly, as discussed further below, the terms of the alleged contract are unclear.

78 For completeness, I reject RACS' submissions that:

(a) paragraph [22] treats the contract and the PD assessment form separately yet paragraph [20] refers to the terms contained within the form. That is not my reading of paragraph [22]. Whilst it does separately refer to both the contract and the PD Assessment form, it does not counterpoint them.

(b) the phrase 'pursuant to the contract' is objectionable. I do not consider it to be embarrassing.

79 I will give Mr Tansley an opportunity to replead, as discussed further below. The issue of whether or not there is a contract is an issue more appropriately ventilated at trial. It is inappropriate to finally determine the following issues agitated here by RACS: whether or not there is a contract between it and Mr Tansley because of his alleged unilateral acceptance and issues of privity and consideration.

FASOC paragraph [21(d)], particulars of [21(e)]

80 I will disallow these amendments. The pleadings are embarrassing.

81 Firstly, paragraph [21(d)] pleads that Mr Tansley became bound by all contractual terms being relevant rules and policies of RACS governing his pathway to fellowship including three stipulated policies and then, fourthly (iv), "A term which required independent fresh assessment of the suitability of the post without regard to matter or opinion irrelevant to the decision." This fourth matter is embarrassing. It does not appear to be a rule or policy. Alternatively, if it is, it is not properly identified.

82 Secondly, and in contradiction to paragraph [21(d)], which stipulates all the terms of the alleged contract, the particulars of the alleged contract contained in paragraph [21(e)] plead that the contract was partly in writing and partly implied. They plead further terms. Alleged terms in writing are alleged to include "letters and emails and correspondence between the parties on or about 17 December 2012 and those emails referred to hereunder relevant to further terms included in the contract." This lacks precision. It does not place RACS (or the Court) in a position to identify the actual terms of the alleged contract.

83 Thirdly, paragraph [21(e)] particularises terms as "implied by the course of conduct of the parties and between them referred to in [21]-[96]". This lacks the precision necessary for repleading. It places an onerous and impossible task on the defendant who would be required, if the plea were allowed, to sift through those many paragraphs to identify the alleged implied terms.

84 Fourthly, it is unclear whether Mr Tansley is pleading the terms of the contract as on 17 December 2012 or pleading the contract as varied.

85 Paragraph [22A] pleads that the contract contained terms that any RACS' assessment of Mr Tansley: would not take into account irrelevant considerations; would take into account all relevant considerations; make decisions based on evidence; make decisions reasonably and rationally; make decisions bona fide; accord procedural fairness. It pleads these terms are implied by law.

86 Paragraph [83(c)] pleads that there were express and implied terms of the contract that RACS will act reasonably in exercising its powers under the contract.

87 The pleaded terms of the contract are for clarity. The terms in paragraphs [21(d)] and [22A] were already imposed by law or evident from the amended statement of claim. A damages claim for breach of contract is added in paragraphs [83]-[85].

88 RACS misunderstands the fundamental nature of the entire case. It has made no reference to applicable authority. Mr Tansley has always, and still does, plead a claim in contract. Mr Tansley submitted to assessment by RACS, as mandated by it, with such assessment to be performed according to law. The assessment enables the merit of Mr Tansley's surgical skills to be assessed. There has been serial legal error in that process. When RACS departed from the contract to assess his skills, it acted in a manner which destroys, and in ways which induces levels of distress and vexation wholly disconnected with the due performance of the contract. This is a matter to be tried. Unlike the authority RACS relies upon,[13] Mr Tansley has never sought prerogative relief or relief under the Administrative Law Act 1978, he has always and still does, plead a claim in contract.

89 In paragraph [22A] it is pleaded terms are to be implied by law, in [83(c)] by both fact and law, and in paragraph [21(d)(iv)] the basis for the alleged implication is unclear. These pleadings of implied terms attempt to preserve a judicial review of the contract by implying the terms into the contract where such a review is not available and it is not necessary to imply the judicial review term. A contract is not amenable to judicial review.[14] Implying terms into a contract which will invite a court to determine whether assessments were conducted under the implied terms, or whether RACS has acted under the implied terms, will in substance be an exercise no different to one conducted under judicial review. The manner in which the breach has been pleaded clearly suggests that what is intended is a judicial review of RACS' decision and conduct.

90 The requirements for implying a term in fact are well-established.[15] It would be unreasonable to imply judicial review terms into a commercial contract. It could never be necessary to do so. The contract does not require RACS to do anything other than approving, or not approving, the application. Therefore, when Mr Tansley 'accepted' RACS' approval of the application, its obligations under the alleged contract had been discharged. Therefore, to imply judicial review terms into the contract that relate to acts other than approving the application, including "any assessment conducted by RACS" is simply unnecessary. No "assessment" is expressly contemplated by the pleaded contract.

91 These pleadings ought be struck out. They have no prospect of success and are an abuse of process. No repleading should be permitted unless Mr Tansley can satisfy the court there is a sound basis to support the claims.

92 Other paragraphs which also contain judicial review pleas such as "jurisdictional error", "misdirection in law", "abuse of process or power", "jurisdiction", "ultra vires" and "abuse of power" should also be struck out.[16]

93 Paragraphs [22A] and [83(c)] are embarrassing and disallowed.

94 Firstly, as discussed above, the terms of the contract are not precisely identified.

95 Secondly, the basis for pleading "the terms are implied by law" is nebulous. There is no general basis for the implication of such terms.

96 However, I do not go so far as to say that Mr Tansley's contractual plea has no real prospect of success because he pleads particular policies and the alleged terms may be contained in those policies which may have contractual force. In Elobadi v Royal Australasian College of Surgeons,[17] a case with similarities to this one, it was common ground between the parties that the Appeal Mechanism Policy had contractual effect between Dr Elobadi and RACS. Its terms included the following.

Clause 5.2.3 provides that an appeal can only be brought on the following grounds:

(a) That an error in law or in due process occurred in the formulation of the original decision.

(b) That relevant and significant information existing at the time of the original decision was not considered or not properly considered in the making of the original decision.

(c) That the original decision was inconsistent with the evidence and arguments put before the body making the original decision.

(d) That irrelevant information was considered in the making of the original decision.

(e) That procedures that were required by College policies to be observed in connection with the making of the decision were not observed.

(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 made for an improper purpose.[18]

97 A policy with the same name is pleaded here as a term of contract: paragraph [21](d)(iii)]. This plea existed in the ASOC. The amended defence does not list this as a policy of RACS nor does it deny such a policy.[19]

98 In D'Souza, an authority upon which RACS relies, the appellant medical doctor was an associate of the college. Although there was a contractual relationship between the parties, no contractual relief was pursued.[20] Instead, judicial relief was pursued, relying upon the Datafin principle.[21] They are different causes of action.[22]

Where does this discussion lead? In my opinion the answer is that on the present state of Australian authority certiorari is not available in respect of a decision of a body whose powers derive only from private contract. In my opinion, Australian Football League v Carlton Football Club Ltd does not tell to the contrary. All of the judges emphasised that the proceeding was founded in contract. The remedies ultimately sought were a declaration and an injunction. Counsel for the plaintiff submitted that passages in the judgments of Tadgell and Hayne JJA showed that their Honours left open the prospect of reliance by a court on "general principles of law" to justify interference in the decision of a domestic tribunal. That should be understood to mean, she argued, the court's supervisory jurisdiction by way of prerogative writ. In the context of a case which was conducted and which was disposed of by reference to contract, I think that counsel sought to gain too much from the several references which she cited.

...

To this point I have concluded that the decision of the panel (acting as the arm of the college) is not amenable to judicial review; but that, assuming the contrary, the decision had public consequences. So, had the panel's decision not been the working out of a contractual relationship between the parties, it would have been subject to judicial review.

99 A later authority, Mickovski v Financial Ombudsman Service Ltd,[23] explains:

As Tadgell JA stated in Australian Football League v Carlton Football Club Ltd, if a domestic tribunal's decision owes its binding quality to a contract, the courts will recognise that the decision must be consonant with the contract and, if not, a declaration to that effect may be obtained and an appropriate injunction granted at the suit of an aggrieved person whom the decision purports to bind. Hence, although it is not open to turn what should be a hearing before a domestic tribunal into a hearing before the court, and of course there is no right of appeal as such from the decision of a domestic tribunal, if there is a doubt about the exact meaning of a law which it is the function of the domestic tribunal to interpret, a party to the contract is entitled to seek the opinion of the court about it.

Here, the question is whether the panel chair proceeded in accordance with the rules and there is a dispute as to whether the panel chair erred in the interpretation of cl 14.1(p) of the rules. In those circumstances, we should have thought that, but for cl 15.3, it would be open to either party to seek a declaration of right as to the correct interpretation of that clause.[24]

100 Here, Mr Tansley will be given an opportunity to replead. Whether or not there is a breach of an alleged contract is a matter more appropriately ventilated at trial.

101 There are ancillary amendments which will be disallowed.

102 Paragraph [59U] is disallowed. Confusingly, it makes an allegation of jurisdictional error (alternatively to that of contractual breach). This appears to be at odds with Mr Tansley's assertion that he does not seek judicial review. Paragraph [63J] is disallowed for the same reason; so too paragraph [B(e)] in the prayer for relief.

103 Paragraph [83(c)] is disallowed. It pleads that there were both express and implied terms of contract and does not identify whether the term alleged is either express or implied. The source of the term alleged is altogether unclear.

104 For completeness, RACS' submission in relation to paragraph [59L] is not in respect of an amendment.

105 Paragraph [22B] pleads that RACS was under a duty to not take into account irrelevant considerations, take into account all relevant considerations, make decisions based on evidence, make decisions reasonably and rationally, make decisions bona fide, accord procedural fairness. It particularises: "the duty arises at general law".

106 The submission in respect of paragraph [22A] is applicable here.

107 This duty is in the same terms as the implied contractual terms pleaded in paragraph [22A]. Accordingly, a similar analysis applies. Moreover, there is difficulty in holding the scope of any concurrent duty is wider than the ambit of the contract.

108 The plea is circular because it alleges that the duty arises by operation of law because it arises independently by the operation of law. It appears to allege the terms implied in the contract in paragraph [22A] give rise to the implied duty in paragraph [22B]. In other words, the duty arises from an implication on an implication. If the terms in paragraph [22A] fail to be implied into the contract, then the paragraph [22B] duty cannot arise.

109 Paragraph [22B] is embarrassing and is disallowed. It pleads a duty in the alternative, by implication of alleged contractual terms in [22A] or "by operation of law". This is vague. It appears consistent with a claim for judicial review yet Mr Tansley submits that he has never made a judicial review claim and does not now make such a claim. The cause of action said to be "independently by the operation of law" is not identified. The analysis in paragraphs [21(d)] and [22A] above applies.

110 Paragraph [21C][25] pleads that the contract contained a term that, at all material times, Mr Tansley would be permitted by RACS to work in the post under assessment of the assessors in order to be properly assessed, without molestation or vexation by RACS. The particulars plead that this is a term implied by the nature of the contract and law.

111 There are no specific submissions in relation to this plea.

112 The concepts of molestation and vexation are used in contracts for recovering damages "where the very object of the contract has been to provide pleasure, relaxation or freedom from molestation".[26] This principle is not applicable to this contract. It cannot not be characterised as a contract to provide pleasure, relaxation or freedom from molestation. Applicable authority is not supportive of the proposition.[27]

113 This plea should be struck out. Mr Tansley should not be permitted to replead unless and until he can satisfy the court there is a sound basis to support the claims.

114 The amendment is disallowed. It is embarrassing. The paragraph [21(d)] analysis above is applicable.

115 Paragraph [31A] pleads that from 28 April 2014, there was a further term of the contract: 'the appeal set aside term'. It is pleaded that this term arises by reason of the 'appeal decision' defined in paragraph [30]. The 'appeal decision' is defined as a determination by RACS to revoke its decision to withdraw approval of the Northern Hospital post and to refer the decision to the Council of RACS.

116 The 'appeal set aside term' is alleged to consist of a number of elements including that: the decision of the BPRS had no force, effect or relevance to the further assessment of Mr Tansley; he remained on a pathway under assessment; the post remained to be finally approved or disproved; and the question of further approval or disapproval was to be referred to and assessed by the Council of RACS. This term is alleged to be express insofar as it is contained in the reasons of the appeal committee and to be implied from the conduct of RACS.

117 RACS asserted that it did not see the relevance of the appeals decision to the pleadings. The proposed amended pleading removes any such alleged difficulty.

118 The plea is defective and capable of being struck out for several reasons. Firstly, it is not pleaded as a term of the contract in either paragraph [21(a)] or paragraph [21(d)] despite the latter identifying all of the contractual terms. It appears to create a standalone arrangement separate to the contract.

119 Further, the plea does not identify or cite which passage of the appeal committee reasons contain the alleged express term. Nor is it pleaded which parts of the appeal set aside term are implied. The conclusion that "the process of establishment and continued assessment by ADIC 1 and ADIC 2" gives rise to an implied term is illogical. How can subsequent conduct, either pursuant to a contract or otherwise, imply a term into a concluded pre-existing contract?

120 The amendment is disallowed. It is embarrassing. The paragraph [21(d)] analysis above is applicable.

121 Paragraph [44] pleads that on 28 May 2015, pursuant to the contract, Mr Tansley alleged the decision of ADIC 1 on the question of the suitability of the Northern Hospital post was made in jurisdictional error for denial of procedural fairness by seeking, pursuant to the RACS' appeal policy to appeal that part of the decision, for which he paid a fee.

122 There are no specific submissions in relation to this plea.

123 In paragraph [21(d)], it is pleaded that the RACS' appeal policy is one term of the contract. However, the pleading here, namely the phrase "pursuant to the contract", suggests otherwise.

124 This amendment is disallowed. It is embarrassing. The analysis in paragraphs [21(d)] and [22A] above applies.

FASOC paragraphs [58(a)-(b)], [59O], [60]

125 Paragraph [58] alleges that RACS has breached the contract by purporting to interfere with Mr Tansley's post and further that it engaged in a misdirection in law and / or an abuse of process or power.

126 Paragraph [59O] alleges that the decision of ADIC 2 was ultra vires. It refers to the matters arising from paragraphs [59A] and [59C], amongst other things. Paragraph [59A] pleads that, on 28 April 2014, the appeals committee of RACS revoked the decision of the BPRS made on 3 August 2013 to withdraw approval of the Northern Hospital post. Paragraph [59B] pleads that the appeals committee decision remains operative. Paragraph [59C] pleads that, on 18 April 2017, ADIC 2 purported to review and reconsider the decision of the BPRS. Paragraph [63] particularises 'the decision' as an ADIC 2 decision made in writing on 18 April 2017.

127 Paragraph [60] alleges that on 24 August 2016, with the hearings and decision of ADIC 2 still extant, in breach of the contract, RACS advised Mr Tansley that his pathway to fellowship would terminate on 16 December 2016.

128 There are no specific submissions in relation to this plea.

129 Paragraphs [58(a)], [58(b)], [59O] and [60] do not identify the contractual terms allegedly breached. Absent this, the pleas are defective and susceptible to being struck out.

130 This amendment is disallowed. It is embarrassing. The analysis in paragraphs [21(d)] and [22A] above applies.

131 Paragraph [59E] pleads that by the terms of its defence, RACS admits the ADIC 2 review decision made on 18 April 2017. That is, that it reviewed and reconsidered the BPRS decision made on 3 August 2013 to withdraw approval of the Northern Hospital post.

132 There are no specific submissions in relation to this plea.

133 The plea is defective because it does not identify the relevant paragraph of the defence to which it refers.

134 RACS is able to answer this pleading, which concerns its defence. The amendment is allowed.

135 Paragraph [59H] pleads that by the terms of a policy and pursuant to contract, RACS decided, created and conferred a duty upon ADIC 2 to review and reconsider the decision of the BPRS. The policy cited is ETA-IMG-013. Paragraph [21(d)] refers to this as the Appeal Decision Implementation Committee Policy.

136 There are no specific submissions in relation to this plea.

137 The policy did not come into existence until 2014 and was amended in October 2015. It is difficult to understand how some three years after the discharge of the obligations of RACS pleaded under the contract in paragraph [21(a)], namely to approve or disapprove the applications of the assessor and the Northern Hospital post, further duties are said to arise.

138 The question arises as to whom the duty said to be conferred upon ADIC 2 is owed. The question arises as to how Mr Tansley can rely upon a duty not owed to him.

139 This amendment is allowed. The question of whether or not the policy is a term of the contract is a matter to be ventilated at trial.

140 Paragraph [59J] pleads that: "[c]ontrary to the terms of ETA-IMG-013, the legal duty of RACS after 28 April 2014 pursuant to the contract on any consideration of the suitability of the post... was to cause to be considered,... anew, the question of the suitability of the post without regard to the BPRS decision".

141 This pleading clarifies the nullity question already alleged.

142 This pleading is confusing. Further, the specific law or source of the alleged duty is not identified. The source of that duty should be pleaded.

143 This pleading is disallowed. It is unintelligible and embarrassing.

144 Paragraph [59LA] pleads that "the content and product of the review and reconsideration by ADIC 2 of the decision of the BPRS (as admitted by paragraphs [59C] and [59D] of the Amended Defence of the Defendant dated 9 May 2019) pursuant to the contract was not informed to Mr Tansley in hearing by ADIC 2 nor in any written communication by [it] to Mr Tansley prior to or thereafter, or ever, as to: (a) that which was reviewed by ADIC 2; or (b) that which was re-considered by [it]; or (c) that which was accepted by [it] of the decision of BPRS; or (d) that which was not accepted by [it] of the decision of BPRS."

145 This pleading clarifies the denial of procedural fairness which has been earlier alleged in paragraph [59U] in respect of ADIC 2. It adds a claim to set aside the ADIC 2 decision made in denial of procedural fairness.

146 There are a number of defects with this plea which are likely to prejudice, embarrass or delay the fair trial of the proceeding. Firstly, there is no reference to the "content and product of the review" in paragraphs [59C]-[59D] of the amended defence as asserted. That phrase is vague and does not inform RACS of the case it has to meet. There are no particulars.

147 Secondly, only part of the amended defence is pleaded. Further pleas in the amended defence are ignored. In particular, paragraphs [59G(i)] and [59H(b)] of the amended defence plead, in summary, that ADIC 2 reviewed and reconsidered the suitability of the Northern Hospital post for clinical assessment rather than the decision of the BPRS. The BPRS decision had been revoked by that time.

148 This pleading is disallowed. It is unintelligible and embarrassing.

149 For completeness, I reject RACS' submission that Mr Tansley is required to refer to the further pleas in its amended defence.

150 Paragraph [59LB] pleads that "ADIC 2 was required, pursuant to [policy] ETA-IMG-O13, and also pursuant to the contract and at law (22A and 22B hereof) to accord Mr Tansley procedural fairness in its hearings and decision-making processes for the purpose of and in making the decision." It is alleged this duty was imposed under the policy and arises from general law.

151 This pleading clarifies the denial of procedural fairness which has been earlier alleged in paragraph [59U] in respect of ADIC 2.

152 The phrase "breach of contract or at law" appears here and at other parts of the pleading.[28] It is a deficient pleading because it fails to identify what law is breached.

153 The phrase "ADIC 2 in purported pursuance of the contract", or variations, appears here and other parts of the pleading.[29] It is confusing because it is not clear how ADIC 2 could be bound by the contract pleaded in paragraph [21(a)] given:

(a) it did not exist at the time the alleged contract was formed and did not come into existence until after another appeal committee (ADIC 1) had been formed and accordingly is well removed in time in existence from the formation of the alleged contract;

(b) its creation and conduct was triggered by Mr Tansley's application on 28 May 2015 to appeal the decision of ADIC 1 on the question of the suitability of the Northern Hospital post. These circumstances appear to create a standalone arrangement separate to the alleged contract;

(c) before its creation, ADIC 1 had been formed because of an application made by Mr Tansley to appeal the decision of the BPRS to withdraw approval of the post. Therefore another ad hoc committee and another two years passed before ADIC 2 was even contemplated; and

(d) the subject matter of the alleged contract is different to the appeal which ADIC 2 was formed to hear and determine.

154 The same analysis applies to the paragraphs which plead that the decision of ADIC 2 was made in breach of the contract, or variations.[30] If ADIC 2 was not bound by the pleaded contract, it could not have acted in breach of it.

155 The amendment is disallowed. It is embarrassing. It is deficient because it does not identify the alleged breach of law. The plea is particularly confounding in circumstances where Mr Tansley pursues his claim as a breach of contract and yet pleads duties "pursuant to the contract and at law" and says that they arise from policy and from the "general law". Moreover, it is not identified how ADIC 2 is bound by the contract. It is necessary that this be pleaded if Mr Tansley alleges that ADIC 2 itself breached the alleged contract.

156 The analysis in paragraphs [21(d)] and [22A] above applies. It also applies to paragraphs [59O(b)], [59O(e)], [59S], [59U(a)-(b)], [63I] and [63J]. They are either vague with pleas "at law" (or a variation) or appear to plead jurisdictional error notwithstanding that Mr Tansley's cause of action is founded in contract. Those amendments are embarrassing and disallowed.

FASOC paragraphs [62A], [65], [71], [76], [79], [80]-[82], [84(b)], [85], [101]

157 Paragraph [62A] pleads that a further term was contained in the contract on and after 7 November 2016 by reason of advice. Paragraph [62] pleads that the advice was given by RACS on or about 7 November 2016, namely that Mr Tansley's 'validity period' would "not be treated as expired until such time as the process does conclude". The validity period is defined with reference to an existing plea, namely paragraph [21(b)]. It alleges that Mr Tansley's pathway to fellowship was to exist for four years, namely until 17 December 2016 ('the validity period').

158 Paragraph [65] concerns advice allegedly given by RACS on 26 May 2017 pursuant to the contract. It allegedly advised Mr Tansley that absent an extension of time his pathway to fellowship would end on 18 April 2017 and that if he wished to pursue such an extension he should so advise.

159 Paragraph [70] pleads that Mr Tansley's application to have the ADIC 2 decision considered by an appeals committee was denied on 20 July 2017 ('the denial'). Paragraph [71] alleges that the denial was wrongful and in breach of the contract and terms of the appeal policy in that the decision was appealable and not part of the original appeals process. The amendment is to expressly plead this as a breach of contract and terms of the appeals policy.

160 Paragraph [76] pleads that in breach of the contract, on 29 January 2018, RACS declared that Mr Tansley's pathway had come to an end. The amendment is to expressly plead this as a breach of contract.

161 The proposed amendment in paragraph [79] is to plead a breach of "the contract referred to in 62A". Paragraph [62A] is discussed above.

162 Paragraphs [80]-[82] plead that RACS, by the effluxion of time provided for in the validity period and as revealed in a letter dated 29 January 2018, declared the contract between Mr Tansley and was terminated. Alternatively, that the contract between them has not been terminated by reason of delay by RACS and / or non-fulfilment of the contract by RACS. The particulars of the delay and non-fulfilment are plead in schedules 1 and 2.

163 Paragraph [84(b)] pleads that RACS breached terms pleaded in paragraph [83]. Paragraph [83] pleads that on 7 November 2016 the contract was varied so that the validity period not be treated as expired until such time as "the process" does conclude. The express term is alleged to arise from RACS' letter dated 7 November 2016 to Mr Tansley and by implication of law.

164 Paragraph [85] pleads that Mr Tansley has suffered a loss of opportunity to have an appeal heard and determined and loss and damage.

165 Paragraph [101] pleads that by reason of the unconscionable conduct of RACS seeking to enforce the validity period term, Mr Tansley has suffered loss and damage.

166 In its defence, RACS pleads the effect of the alleged expiration of the validity period in the contract. That point is consequently in heavy contest. The assertion of the capacity for the contract to continue is already in the pleading. The amended pleading clarifies that, despite the existence of the validity period term, even if it be found to be of effect, relief is still available to permit an appeal at law to the appeals committee of RACS.

167 Paragraph [86] pleads, in the alternative, that if the expiration of the validity period were to have effect, then its effect is prospective and the duty to consider an appeal remains. Paragraph [87] pleads that in the premises, the duty of RACS to hear the appeal exists, despite the alleged expiration of the validity period. Paragraphs [80]-[82] address the consequences of delay in breach of the contract at common law.

168 The validity period cannot be part of the contract. The entire claim in respect of the validity period is misconceived and ought be struck out. Mr Tansley should not be permitted to replead unless he can satisfy the court there is a sound basis to support it.

169 Firstly, the definition of contract in paragraph [21(a)] suggests it does not form part of the pleaded contract. There is nothing in paragraphs [19]-[20] that would suggest otherwise. There is no reference to it as a term of the contract in paragraph [21(d)].

170 Secondly, the pleading at paragraphs [62]-[62A] that the validity period was a further term would mean there are inconsistent terms in the contract as pleaded. Paragraph [21(b)] is for a four-year term and paragraph [62] is for a term of "until such time as the process does conclude".

171 Thirdly, the plea at paragraph [67] is that there was an extension of Mr Tansley's specialist assessment validity period until 17 December 2017 means that the plea of "until such time as the process does conclude" in paragraphs [62] and [62A] has been amended. Accordingly, there can be no breach of that term. Consequential terms in paragraphs [76], [79] and [84(b)] are therefore defective and susceptible to being struck out.

172 Additionally, paragraphs [71], [76] and [85] do not identify the alleged breaches.

173 The plea at paragraph [81], which is that alternatively, the contact has not terminated, ignores the amendment in [67].

174 Fourthly, it is unclear what the "process" is that it is pleaded in paragraph [62]. It is not identified at paragraphs [78]-[78A].

175 Moreover, paragraph [84(b)] relies on the validity period term and accordingly ought also be struck out.

176 As a preliminary matter, given that the amendment to paragraph [21(b)] is simply to define the existing plea by adding the words "the Validity Period", it need not be considered further. Turning now to the real contention, which is whether or not the plea in respect of the validity period, as a contractual term that has been allegedly breached, should be allowed.

177 I allow the amendments to these paragraphs. It is open to Mr Tansley to plead the validity term and RACS is able to respond to the plea. This is a real issue in dispute between the parties. Whether or not there is a contract which contains a validity term is a matter more appropriately ventilated at trial.

178 For completeness, paragraphs [62] and [78] are not subject to amendment. Paragraph [78A] does not define process but refers back to paragraph [62]. It does not define process either. However, paragraphs [62] particularises a written advice from RACS given to Mr Tansley on 7 November 2016 and paragraph [62A] pleads, by reason of that advice, a further term was contained in the contract.

179 Paragraph [87] pleads that the duty of RACS to hear the appeal of the ADIC 2 decision exists despite the alleged expiration of the validity period. The duty is said to arise at law by reason of the contract including the terms of RACS Policy ETA-IMG-013 and RACS Policy REL-GOV-011.

180 Paragraphs [80]-[87] invoke a claim that the validity period in the contract relied upon by RACS in its amended defence is unenforceable as a consequence of its conduct.

181 The alleged duty is confusing. It is described in paragraph [86] as prospective. It could not be prospective because the validity period expired on 17 December 2017. Further, it is described as a duty to consider an appeal in paragraph [86] and then there is a duty to hear the appeal. These concepts are different.

182 Further, the duty may not exist as paragraph [69] is cited as a source of the duty. No such duty is pleaded at paragraph [69].

183 This amendment is allowed. The particulars clarify that the alleged duty arises by reason of certain terms of policy. Whether or not such a duty arises, and whether or not it is contractual, are matters to be ventilated at trial. I am satisfied that RACS can answer to this pleading.

184 Paragraph [88] pleads that the validity period pleaded in paragraph [21] of the defence is void.

185 Paragraphs [88]-[94] add a restraint of trade claim.

186 Paragraph [21] of the statement of claim to which the defence responds does not allege a contract. The contractual claim only arises in the proposed FASOC. Paragraph [21] of the defence does not plead the validity period arising from express terms of the contract. RACS' defence to paragraph [21] in relation to the validity period is pleaded at [21(c)(i)] that: the plaintiff had four years from the commencement of his clinical assessment on 17 December 2012 to complete all requirements stipulated in the first assessment recommendation ('the validity period'); on 16 June 2017, the validity period was extended a further 12 months to 16 December 2017.

187 The defect above is likely to prejudice, embarrass or delay the fair trial of the proceeding.

188 Further, here and elsewhere in the FASOC, there is reference to RACS' current defence. It will be superseded if Mr Tansley's application to amend is allowed. The reference to RACS' current pleadings is likely to cause confusion, which may prejudice, embarrass or delay the fair trial of the proceeding. If there are factual matters to be pleaded, Mr Tansley should plead those matters. If he seeks to respond to matters contained in RACS' pleading that responds to the FASOC, he should do so by way of reply.

189 This plea is allowed. The analysis in respect of paragraph [89] below applies.

190 Paragraph [89] pleads that the validity period term is void because it is an unreasonable restraint of trade of Mr Tansley.

191 The entitlement to seek a declaration that a term of a contract is void for restraint of trade is entirely unobjectionable. The objection here is not to the existence of the validity period term. It is a restraint on the plaintiff's capacity to seek career progression, when his performance during the period imposed by the validity term has only been permitted by RACS to be for six months in a period of five years. Four and a half years has been lost to serial legal error committed by RACS. The purported enforcement by RACS of the validity period term in that circumstance is alleged to be unreasonable. That is the occasion of the unreasonableness of the restraint. Such a matter is fit for trial.

192 There are fundamental difficulties with the unreasonable restraint of trade claim. Firstly, at paragraph [89] there is a reference to the 'validity period term'. The term is not defined. In preceding paragraphs, the validity period is not referred to in that way.

193 Secondly, it is unclear whether the validity period term is a reference to the term pleaded in paragraphs [62]-[62A] ("until such time as the process does conclude") or the subsequent term pleaded at paragraph [67] (in which the validity period is extended). If it is the latter, then the unreasonable restraint of trade claim is misconceived as it relies upon a term that has been amended.

194 Thirdly, the validity period is reasonable because it is in:

(a) Mr Tansley's interest that he should not practice with the benefits of fellowship until he has sat and passed the examination;

(b) the interests of prospective patients that their treatment is provided by an appropriately skilled plastic and reconstructive surgeon;

(c) the interests of the broader community that persons requiring the service of a plastic and reconstructive surgeon are treated appropriately; and

(d) the interests of the entire community that the public purse, via Medicare benefits, is not depleted by treatment by plastic and reconstructive surgeons who lack the necessary skills.

195 Paragraph [89] is allowed. Whether or not the alleged validity period term is void because it is an unreasonable restraint of trade is a matter for trial.[31] I am satisfied that RACS can answer this plea. The validity period is defined in the pleading, together with the alleged variation of it.[32]

196 Paragraph [97] pleads that by the terms of its amended defence, RACS has relied upon the terms of the contract which purport to impose the validity period.

197 Paragraphs [95]-[103], including this one, plead a cause of action for which relief is sought under the Consumer Law arising from the continued assertion of the validity period.

198 There are a number of defects with this plea which are likely to prejudice, embarrass or delay the fair trial of the proceeding. Firstly, the plea does not identify which paragraphs of RACS' defence are relied upon. Secondly, there is no contractual plea made by Mr Tansley until the proposed FASOC. RACS has never pleaded a contract.

199 The same analysis applies in respect paragraph [88] above. The amendment is disallowed. This is a plea more appropriately made in the reply.

200 Mr Tansley will be given the opportunity to replead a further proposed FASOC. His claim is now founded on contract. It would be highly prejudicial to disallow him the opportunity to replead. On the other hand, RACS has not identified any prejudice it would suffer. The further proposed FASOC is necessary to precisely identify Mr Tansley's contractual claim and clarify that judicial review is not sought.

201 As discussed below, the trial is listed in approximately six weeks and this proceeding has been on foot for nearly two years. There have been a number of unsuccessful attempts at mediation. I accept the explanation given by Mr Tansley's solicitor that the mediation process has been completed and that Mr Tansley's case must now be fully advanced. Orders will be made for a further proposed FASOC to be served on RACS. If RACS does not consent to it, then an amendment application must be made to the Court.

202 This proceeding is listed for trial on 19 October 2020. It will not be feasible to maintain the trial date given that the amendment application is partially disallowed and that Mr Tansley will be given an opportunity to replead.

203 Mr Tansley made submissions in respect to splitting the trial. If he wishes to proceed with such an application it should be made formally, namely by way of summons with supporting affidavit material.

204 I will give the parties an opportunity to make submissions in respect of orders, including costs orders. Any submissions on costs ought address r 63.17 of the Rules.

[1] The proposed further amended statement of claim is exhibited as Exhibit 'RJB-1' to the affidavit of Russell Ball sworn 29 May 2020.

[2] Wheelahan v City of Casey (No 12) [2013] VSC 316 [25(b)-(m)] (J Dixon J) (citations omitted).

[3] Vo Nguyen [2013] VSC 304 [36] (Derham AsJ) (citations omitted).

[4] [2016] VSCA 4.

[5] Ibid [42]-[43] (citations omitted) (emphasis added).

[6] [2018] VSC 439.

[7] Ibid [17]-[18] (citations omitted) (emphasis added).

[8] Mr Tansley's written submissions filed on 22 May 2020 and reply submissions filed on 25 May 2020. RACS's written submissions filed on 22 May 2020.

[12] Exhibit 'GAK-9' to the first Kerr affidavit and Exhibit 'GAK-10' to the second Kerr affidavit.

[13] D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42 ('D'Souza').

[15] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283; Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169, 187 [23], 189 [28], 201 [60], [62], 215 [114], 189 [29].

[16] FASOC [59L], [59U] and [63J], and paragraph [B(e)] in the prayer for relief.

[17] [2014] WASCA 117 [23].

[21] R v Panel on Take-Overs and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815 discussed in NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277.

[22] D'Souza 58-9 [112], 59 [118] (citations omitted).

[23] [2012] VSCA 185; (2012) 36 VR 456 ('Mickovski') applied in Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd [2014] VSCA 179.

[24] Ibid 468 [38]-[39] (citations omitted).

[25] There appears to be a typographical error: as this pleading should be numbered [22C].

[26] Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344, 363, 371 ('Baltic Shipping').

[27] Shahid v Australasian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46, 116 [233] (Jessup J) citing Baltic Shipping 365.

[28] FASOC [59O(b),(e)], [59S], [59U(a)-(b)], [63I], [63J].

[30] FASOC [63I], [63J], [59O(b),(e)], [59S], [59U].

[31] See for example, D'Souza in which a finding was made about whether there was an unreasonable restraint of trade after careful analysis of evidence: D'Souza 77 [365].