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[2005] VSC 161
Supreme Court of Victoria
2005-05-18
Ashley, J
Original judgment source is linked above.
1 The plaintiff is a medical practitioner. This proceeding arises out of his failed attempt in 2003 to pass an examination which was the last step in his becoming qualified for election to Fellowship of the Royal Australian and New Zealand College of Psychiatry ("the College"). The College, an incorporated body, is the first defendant. The examination was the so-called "clinical viva". The plaintiff was required to interview a patient suffering from psychiatric illness and then make oral presentations to two examiners; and then repeat the process with a second patient and different examiners. The clinical viva was held on 23 October 2003.
2 According to the amended originating motion there are three broad aspects to the plaintiff's claim.
3 First, the plaintiff contends that the decision to fail him was an unreasonable restraint of trade in light of his performance in the viva, "when judged objectively, reasonably and without bias". He contends also that to fail him was an unreasonable restraint of trade in light of his qualifications and experience, and what is said to be his "demonstrated expertise in the area of bipolar disorder".
4 Second, the plaintiff complains about the College's continuing refusal to admit him to Fellowship. He contends that it is an unreasonable restraint of trade in light of
(ii) The Honorary academic and clinical appointments held by [him];
(iii) [His] demonstrated and recognised expertise in the area of bi-polar disorder;
(iv) [His] demonstrated and recognised expertise in the areas of spiritually augmented cognitive behaviour therapy, telemedicine, and the delivery of mental health services to rural and regional Australia;
(v) The [College's] recognition of [his] areas of expertise and specialization referred to in paragraph (iii) and (iv) above, by reason of the [College's] invitations to [him] to convene, chair or present at seminars and conferences held under the auspices of the [College], in circumstances where the [College] imposed and received substantial fees for participants' attendance."
5 The relief sought by the plaintiff in respect of each of the restraint of trade aspects of the claim is a declaration. Paragraphs 8 and 9 of the originating motion seek relief by way of mandatory injunctions. But it was not suggested by senior counsel for the plaintiff in her final address that relief in the form sought by paragraph 8 could presently be appropriate to a successful restraint of trade plea; and she agreed that paragraph 9 was not in point.[1]
6 Pausing for a moment, the plaintiff's claims, as pleaded, that conduct by the College[2] has constituted an unreasonable restraint of trade make greater or lesser reference to his qualifications, experience and expertise. In her final address, however, counsel for the plaintiff pertinently focussed upon her client's clinical experience - as demonstrating, she submitted, the clinical competence which is central to appointment as a Fellow of the College. She relied upon his qualifications and asserted areas of expertise essentially in support of her submission that the plaintiff had demonstrated clinical competence.
7 Third, in circumstances that I will later outline the examiners' decision was referred to and was considered by a Review Panel ("the Panel"). The Panel was constituted by Professor Peter Ellis, Professor John Condon and Dr Helen Slattery. They are the second, third and fourth defendants. The Panel decided, in substance, that the decision to fail the plaintiff should be sustained. The plaintiff seeks to have that decision quashed, contending that the same is amenable to judicial review. He argues that the decision should be quashed because:
The defendants denied the plaintiff natural justice in that they failed to provide fair procedures for the conduct of the review[5].
The decision of the Panel was not reasonably open to it on the material before it[6].
Each of those matters is relied upon as a sufficient ground for quashing the Panel's decision.
8 Counsel for the plaintiff faintly submitted in her final address, in answer to my questions, that relief in the form of the mandatory injunction sought by paragraph 9 of the originating motion could be an appropriate form of relief - that is, in addition to an order which quashed the Panel's decision. For reasons which I expressed in argument,[7] I disagree with that submission. In the event, the relief sought by paragraph 9 can be put to one side in the context of the attack on the decision of the Panel.
9 The defendants deny that the decision of the Panel is amenable to judicial review. They deny, in any event, that the decision of the Panel could be open to challenge on the ground of apprehended bias. They further dispute each of the factual bases upon which the plaintiff founds his claim. They say also that, all other things apart, relief should be denied on discretionary grounds.
10 The College disputes, also, the plaintiff's contentions that each of the decisions of the examiner to fail him and its continuing refusal (it cavils with "refusal") to admit him to Fellowship without further examination constitutes an unreasonable restraint of trade.
11 Dr D'Souza was born in India in 1951. He obtained his qualifying degree to practise medicine in 1977 in Madras. He migrated to Australia in 1988. He has obtained post-graduate qualifications as follows:
Graduate Certificate in Clinical Trials Management[9]
12 In 1992 the plaintiff was accepted by the College into its training program. The intended end-point of training was Fellowship of the College.
13 Over a period of time the plaintiff either successfully completed or was exempted from aspects of the training program. By May 2001 it remained for him to successfully complete the so-called "Section 1 Clinical Examinations" - that is, the clinical viva.
14 The plaintiff attempted the clinical viva in May 2001, October 2001, October 2002 and May 2003. He failed on each occasion. He made a further attempt in October 2003. Again he failed. This proceeding arises out of his last attempt.
15 The circumstance that the plaintiff has not been admitted as a Fellow means that he does not have a qualification which is pertinent to some hospital appointments, to the performance of certain work pursuant to the Mental Health Act 1986, and to practise as consultant psychiatrist in private practice. It places a barrier, though not insuperable, upon him being recognised as a consultant or specialist psychiatrist for purposes of the Medicare rebate system. Of these matters, more later.
16 Although that the plaintiff has not been admitted as a Fellow, he has in fact practised as a psychiatrist in the last decade or so. Thus:
In some, not all, of these placements the plaintiff has conducted clinical practice.
17 In each of the placements which has involved clinical practice the plaintiff should have been subject to superintendence by a consultant psychiatrist. But in fact that has not always been the case.
18 I mentioned the Mental Health Act a few moments ago. It appears that Fellows of the College are readily delegated certain powers and functions under that Act. In some circumstances a practitioner who is not a Fellow may be delegated such powers and functions. The plaintiff was delegated powers and functions in 2003 and 2004. He has no delegation at present. Of this, more later.
19 I mentioned earlier in these Reasons the plaintiff's assertion that he has "demonstrated expertise in the area of bipolar disorder"; and, elliptically, to his assertions that he has "demonstrated and recognised expertise in the areas of spiritually augmented cognitive behaviour therapy, telemedicine and the delivery of mental health services to rural and regional Australia"[10].
20 The plaintiff's CV reveals that since 1998 he has made a number of presentations on the subject of telemedicine. Further, in 2001 and 2002 he was an invited lecturer and/or the chairman at meetings in the United States, Canada, Norway, Sweden, the United Kingdom and Australia. In most of those instances the subject-matter of discussion was telemedicine or spiritually augmented behaviour therapy. In two instances[11] the plaintiff was invited to chair and organise a session on Rural and Remote Psychiatry for the College; and in one instance a symposium on "Spirituality and Psychiatry"[12]. More recently, in May 2003, he was the convenor of symposia at the 38th Congress of the College. The topics were bipolar disorder and "spirituality and psychiatry".
21 The plaintiff's CV further reveals that he has presented papers on the topic of bipolar disorder in recent years.
22 Again according to his CV, the plaintiff has had published, has had accepted for publication, or has written, alone or with colleagues, 31 papers. They span the period, so far as I can see, 1987-2004, most being grouped in the period 2000-2004. Topics addressed include bipolar disorder, telemedicine and spiritually augmented cognitive behavioural therapy.
23 I should mention two other circumstances revealed by the plaintiff's CV. First, on his account he has had experience for a considerable number of years teaching undergraduate and postgraduate medical and allied health students, both in India and Australia; and as an examiner of medical students. Second, between 2000 and 2004 he participated in a number of radio and TV presentations. For the most part they addressed, it appears, telemedicine or the relationship between psychiatry and spirituality. Considerably mentioned in the evidence was an ABC Compass program entitled "Psyche and Soul". It went to air on 5 October 2003 - this is, only a few weeks before the clinical viva the subject of the present proceeding.
24 The plaintiff's CV certainly reveals, then, his wide involvement in various forms of professional development. Whether it makes good his evidence that he is -
"nationally and internationally recognised for [his] expertise in bipolar disorder and for [his] research in areas including telemedicine and spirituality in psychiatry"[13]
is another matter. So, for instance, it seems clear that - for whatever reason - the plaintiff has not published in "high citation", or leading, journals. Again, the plaintiff's work with telemedicine is not unique. Many other practitioners in Australia work in telemedicine[14] - although Professor Kalucy, called for the defendants, said that the plaintiff was "very knowledgeable about telemedicine, actually"[15]. Further again, Professor Keks - called for the plaintiff, but evidently considerably estranged from him for reasons good or bad - said that:
"Dr D'Souza, in my view, made a valuable contribution in re-invigorating the spiritual dimension of psychotherapy. He added to a body of work which has a proud history in the realms of such contributors and Victor Frankel in logo therapy, in bringing in a spiritual dimension to treatment which can often assist many people suffering from horrendous problems. In this regard I felt that Dr D'Souza had made an excellent contribution."[16]
But asked, in effect, to comment about the plaintiff's national or international standing in the discipline of psychiatry beyond that, he said:
"Dr D'Souza has had an extraordinary capacity for networking and communication with many colleagues nationally and internationally. He travelled an enormous amount and he has had much involvement in organisations of conferences, in symposia, often at the level of organisation and communication rather than necessarily leading the intellectual charge, as it were."[17]
25 The College is a company limited by guarantee. Its objects include the following:
"(b) To consider, establish and conduct courses of study and technical training and to diffuse any information calculated to promote and ensure the fitness of persons desirous of qualifying for membership of the College.
(c) To grant to registered medical practitioners or graduates in medicine, diplomas, certificates or similar recognition of knowledge in psychiatry or ancillary sciences and branches of medicine either alone or in conjunction with other bodies thereto authorised.
(d) To establish the status and classes of members of the College and to regulate the same and to admit to such status and classes such persons as shall be eligible therefore according to the regulations and requirements of the College.
(k) To cultivate and maintain high principles and standards of practice and ethics in respect of psychiatry, to promote fair, honourable and proper practice and discourage and suppress malpractice or misconduct therein, to settle doubtful points of practice and questions of professional usage, to protect the honour, good reputation, interests and work of the College, to consider complaints against members or Associates, to define the grounds upon which a member or Associate may be expelled, suspended or subjected to other disciplinary measures and to establish procedures for expelling, suspending or otherwise disciplining members and Associates whether consequent upon a complaint or otherwise."[18]
26 According to its articles, the members of the College shall "consist of Honorary Fellows, Fellows, Retired Fellows and Corresponding Fellows".[19]
"A candidate shall only be eligible for election as Fellow if the candidate:
(a) is entered on the register of Medical Practitioners of a State or Territory of Australia or of New Zealand or of some other country, State or Dependency approved by the General Council for the purposes of this Article; and
(b) has undergone such educational experience as specified by the General Council from time to time; and
(c) has satisfied the Fellowships Board at an examination for membership."
That article concerns, then, eligibility for election as a Fellow. Article 7 deals with the process of election.[20]
28 Articles 8 and 9 deal, respectively, with Honorary and Corresponding Fellows. The General Council of the College ("the Council") is empowered to elect
"by unanimous vote of the members present... persons of eminence and distinction"
as Honorary Fellows, notwithstanding that the same may not have the qualifications for fellowship provided by the articles.
29 Again by unanimous vote of all members present the Council is empowered to elect "a limited number of Corresponding Fellows" for a period not exceeding five years. Candidates must be proposed by two Fellows of the College having personal knowledge of the candidate and shall be
"... legally qualified medical practitioners engaged in the practice of psychiatry, either not eligible or unlikely in the opinion of the Council to become candidates for honorary fellowship or fellowship."
30 Pausing for a moment, the burden of the evidence was that the plaintiff would not qualify for election as an Honorary Fellow. Counsel for the plaintiff did not suggest the contrary in her final address. Again, there was the briefest mention of Corresponding Fellows in counsel's opening address. There was no evidence to suggest that the plaintiff has ever sought election as a Corresponding Fellow. It could not be suggested - and it was not - that the College has been in default by not itself instituting a proposal for the plaintiff's election as such a Fellow.
"Registered medical practitioners who are certified by the Fellowships Board as being in accredited College training may apply to General Council to become Associates of the College. Such persons may remain Associates of the College subject to annual review by General Council up to a maximum of ten years so long as they are certified by the Fellowships Board as being in accredited training. Associates of the College shall pay an annual subscription determined from time to time by General Council but which shall not exceed an amount of one half of the annual subscription of Fellows. Associates of the College shall not be entitled to use any title or abbreviation thereof indicative as associateship of the College nor use any appendage to their names or other means to so signify associateship or affiliation to the College and any such conduct shall be deemed to be detrimental to the interests of the College and the profession of psychiatry for the purpose of Article 71. Associates shall not be entitled to vote on any business at any meeting or to vote at elections of General Council or a Branch Committee or propose or second any candidate for election as a Fellow or to any position in the College or to be elected to any such position."
32 The plaintiff was, at relevant times - as I understand him still to be - an associate of the College.[21] There was thus a contractual relationship between he and the College, a relationship which persists.
33 The governing body of the College is the Council.[22] It is specifically empowered
"to prescribe a course of training to be undergone by candidates for fellowship of the College and the nature of the examination to which such candidates shall submit themselves in order to determine their suitability for fellowship and the fees payable by candidates for any such course of training or examination."[23]
34 I note also that the Council has a specific power to make, vary and rescind by-laws, and in particular to
"(iv) prescribe the procedure to be followed in relation to applications for membership and associateship and to make recommendations thereon;
"(v) constitute a Fellowships Board and regulate all things in connection with the carrying out of their duties by the members of the Fellowships Board and its sub-committees. [24]
35 The Council is empowered to "adopt such means as it deems necessary and sufficient" to bring by-laws to the notice of members and associates. The by-laws are made binding upon affected member and associates.[25]
36 Finally with respect to the Articles I should refer to certain provisions dealing with discipline. A regime for investigating complaints against members and associates is set up by Articles 71, 71A, 71B and 71C. The powers of the Council on consideration of a complaint or charge are set out in Article 71C(c)(d).
37 As at October 2003 there were by-laws in force which constituted a Fellowships Board. Also in force were "Training and Examination By-Laws for Fellowship and Advanced Training" ("the 2002 by-laws").[26]
38 According to Paul Loughran, then the College's Director of Education, in November 2003 the Council adopted the "Training and Assessment Regulations November 2003" ("the 2003 Training Regulations").[27] The evidence leaves no doubt that the 2003 Regulations substituted a significantly different examination regime for the regime of clinical vivas which had operated hitherto. Of the differences, more later.
39 The 2002 by-laws summarised the College's training approach this way:
"The College program for postgraduate training in psychiatry is based on an apprenticeship model. It requires satisfactory completion of a range of clinical training experiences to ensure an adequate depth and breadth of training to prepare the trainee for specialist practice. It requires successful completion of a minimum of five years full-time or equivalent part-time training in psychiatric practice. This generally includes four years of basic clinical training in accordance with set criteria; preparation of related case histories to be submitted at regular intervals throughout training; completion of written and clinical examinations; an elective year of training; and a dissertation."[28]
40 The 2002 by-laws summarised the roles of the Fellowship Board and the Committee for Examinations as follows:
"The Fellowship Board is responsible for consideration and determination of policy issues in relation to training and examination. It also oversees the functions of its various committees, including the ... Committee for Examinations.
"The Committee for Training and the Committee for Examinations are responsible for the program for postgraduate training in psychiatry leading to award of Fellowship the College."[29]
41 The 2002 by-laws contemplated a five year period of training which could lead to a recommendation to the Council for election of a trainee as a Fellow, the steps being
42 A reading of the 2002 by-laws shows that they contemplated that a trainee would undertake, throughout the five year period, clinical work and clinical examinations; and that throughout there would be supervision - varying in extent - of the trainee's clinical work.
43 The Section I examination consisted of separate written and clinical examinations. The latter could not be attempted except if the former had been passed. But if the former was passed and the latter failed, the pass would stand good for three years.
44 There were two elements of the clinical examination: a clinical viva (which is what the plaintiff attempted on 23 October 2003); and a consultancy viva. Satisfactory performance in the latter would stand good for three years.
45 The section II examination consisted, as I understand it, of a dissertation.
46 In addition to completion of the Sections I and II examinations, a candidate was required to attend a final viva. Usually, according to explanatory notes to the by-laws, the latter was conducted at the end of the Section I examination.
47 It is convenient to describe the plaintiff's status, in the context of the 2002 by-laws, immediately before 23 October 2003. He had demonstrated[30] general medical competency, for in 1999 he had been given a Certificate of Eligibility to undertake the Section I examination. Further, he had passed the Consultancy Viva - that is, one of the two vivas within Section I. Further again, he had been exempted from the training and examination requirements of the Section II examination. What stood between him and qualification for election as a Fellow was the clinical viva which formed part of the Section I vivas; and (perhaps) the final viva. He had, as I have said earlier, sat for and failed the clinical viva on four occasions before October 2003.
48 At pertinent times, according to the College's 2003 Annual Report,[31] there was a Committee for Examinations ("the Committee"). It had 25 members, the chairperson being Dr Elizabeth O'Brien. She was one of the plaintiff's examiners on 23 October. Other members included Dr Simon Hatcher, another of the plaintiff's October 2003 examiners, Dr Kym Jenkins and Dr Helen Slattery (a member of the Panel and the fourth defendant). Dr Jenkins was also a member[32] of the Victorian Branch Committee.
49 In the lifetime of operation of the 2002 by-laws, and for some uncertain period prior thereto, clinical vivas were held about six monthly. Candidates were required to give notice of intention to sit the examination. A fee was payable. Fees were not inconsequential. According to the financial statements accompanying the 2003 Annual Report, examination fees generated about $877,000 out of total College income of some $5.7M.
50 A list of candidates was provided to examiners at least one month prior to examination. About two weeks prior thereto, individual examiners were provided with the names of candidates whom they would be examining. It was intended, if an examiner for some reason considered he or she ought not examine a particular candidate, that the examiner - after the first or at least the second contact - should notify the College.
51 The examiners on a given day included members of the Committee and co-opted members of the College. The latter were Fellows who had expressed an interest and willingness to participate. It is not clear to me that every member of the Committee examined on every day that examinations were held.
52 The clinical viva required the candidate to interview a patient for about an hour. The interview took place without the examiners being present. The candidate then had about 15 minutes to collect his or her thoughts before making an oral presentation to the examiners.
53 In the 15 minute interim period the examiners interviewed the patient. The examiners, generally if not always, also had the advantage of access to a case summary prepared by the patient's treating team - access which the candidate did not have.
54 What then followed occupied about 30 minutes. The regime, broadly described, was that the candidate would present
About 10 minutes was allowed for all this. Then followed, in the broad, an opportunity for each examiner, in turn, to probe the candidate for about 10 minutes.
55 Each examiner was provided with a document entitled "Examiner's Mark Sheet". The Mark Sheet set out headings in the following sequence:
56 At the foot of the Mark Sheet were the following:
57 The evidence showed that examiners made notes under the various headings; but that the practice of individual examiners in note-taking was not identical. The evidence showed also that notes taken by examiners in the case of the plaintiff were not a transcript. The contrary could not have been expected. But that leaves open the question what should have been expected.
58 The references to "grading" and "mark" need to be explained. The Committee produced a document, apparently current as at October 2003, entitled "Marking Guidelines for Clinical Examinations".[33] It was evidently designed to be read in conjunction with another College publication entitled "The Examiners' Task in the RANZCP Clinical Examinations".[34] The latter provided what the authors - Professors Kalucy and Condon (the second of whom was a member of the Panel and the third defendant) - described as "general guidelines which, at best, simply illustrate principles". The authors warned that the document did not prescribe "rules". For all that, reading the document makes it pretty clear, I consider, that it was intended to provide examiners with an approach to examining candidates which would be of substantial use in most cases.
59 In any event, returning to the marking guidelines, the scheme described marks of "A", "B", "C" and "F". A, B and C were passes, F a fail.
"The candidate for each of the two examinations held on the day is given a grading of 'A', 'B', 'C' (Pass) or 'F' (Fail) by the agreed common assessment of the examiners involved. When there is a fail mark awarded (which may initially be awarded a 'D' for discussion) the examiners will generally have to present the reasons for that mark to the examiners' meeting held after the examinations. After discussion the initial marks may be confirmed as 'F', or a new mark awarded."
"'C Mark: this is a pass and refers to a sound performance where the candidate clearly meets the standard. That is, the candidate had achieved a junior consultant level of performance, not brilliant but sound. The candidate's level of competence doesn't allow them to get on top of the case. The examiners, on reflection however have little doubt that the candidate has passed."
62 What I have so far said does not fully describe the marking process. The entry beside "Personal Grading" was intended to reflect the particular examiner's initial reaction to the candidate's presentation and questioning. The entry beside "Agreed Common Mark" was intended to set out the agreed common assessment of the two examiners. The entry beside "Final Mark" was intended to set out the mark after any presentation to the examiners' meeting.
63 I have referred more than once to an examiners' meeting. Quite a number of examiners would be involved in clinical vivas on a particular day. After the examinations were concluded, all the examiners would meet. It appears that there would be some discussion about each candidate's performance - the candidate being identified by number, not name. In the case of candidates whom the examiners had passed without hesitation, discussion would likely be short. In the case of candidates who had been marked "D" or "F", discussion would likely be more substantial. The examiners of such a candidate would be called upon to explain the candidate's performance. Out of the discussion would emerge a final mark. As I perceive it, the mark might reflect either the reconsidered opinion of the particular examiners, or the consensus of the examiners' meeting.
64 Subsequent to a candidate failing a clinical viva, it was the custom to provide an examiners' feedback sheet. The plaintiff received such a sheet in respect of his viva on 23 October 2003.[35]
65 The College published a document entitled "Code of Ethics of the Committee for Examinations". According to Loughran, a copy was provided to each examiner before the plaintiff's October 2003 clinical viva. I draw attention to the following passages in the document:
"2. The examination process is intrinsically and necessarily testing and demanding. Nevertheless, examiners have a duty to strive to ensure that it does not impose undue or unnecessary suffering on candidates, and that it preserves their personal and professional dignity.
2.1 Examiners will strive to examine candidates skilfully, honestly and fairly. The examiners will be accountable to the Committee for Examinations for the thorough documentation of each candidate's performance and for the exposition of the processes of evaluating this performance.
2.6 Candidates will have access to a process for complaint and redress for any concern about injustice or disadvantage within the examination process."
66 Paragraphs 2.1 and 2.6, read together, seem to me to imply the need for preparation of a documentary record of a candidate's performance that would assist explanation by the particular examiners of a "D" or "F" common assessment, and enable investigation of the substance of any complaint which the candidate might make. Yet, bearing upon the second of those matters, the practice was apparently to destroy examiners' mark sheets, the retained record of performance then consisting of the feedback sheet provided to an unsuccessful candidate and the formal record of the examination outcome. So, it appears, it is only by chance that the examiners' mark sheets were extant in this case.
67 In respect of the first patient examined by the plaintiff (Case A), the examiners were Dr Simon Hatcher and Dr Carol Harvey. The former was a member of the Committee, the latter was a co-opted examiner.
68 The examiners had the advantage of a six page case summary detailing the patient's psychiatric history, diagnosis and treatment in the period 1992-2003.
69 Dr Hatcher's personal grading of the plaintiff was "C". Dr Harvey's personal grading was "F". Their agreed common mark was "F". The final mark was "F".
70 In the case of the second patient (Case B), the examiners were Dr Elizabeth O'Brien, the Chairperson of the Committee, and Dr John Reilly, the co-opted examiner. The latter had examined candidates, in all about 12, on two previous occasions.
71 The examiners were provided with a case history. Five pages in length, it disclosed that the patient had a history of intermittent psychiatric illness which had first required treatment in 1992.
72 Dr Reilly's personal grading was "C". According to his Mark Sheet,[36] the Agreed Common Mark was "D" and the Final Mark was "F".
73 Dr O'Brien's Mark Sheet[37] recorded nothing at all in the spaces reserved for her Personal Grading, Agreed Common Mark and Final Mark. The witness, throughout her evidence, essayed a certainty of recollection which in a number of respects I consider did not accord with the fact. She also dismissed criticism that her mark sheet, by recording no note of the grading and marks, was, in effect, incomplete, unhelpful or opaque. In my opinion the criticism was well-founded. But for all that, I do not think that the particular situation is in doubt. I consider that Dr Reilly's notes capture the sequence of what happened.
74 There is a question how it came about that the final mark was awarded. The submission made for the defendants was that the particular examiners awarded that mark, having been informed by discussion at the examiners' meeting.[38] Counsel for the plaintiff submitted that the matter was not so clear, referring to some evidence given by Dr Reilly,[39] and arguing that Dr O'Brien's evidence was an account of the general practice, not more.
75 In my opinion, counsel for the plaintiff correctly characterised Dr O'Brien's evidence on this point. Dr Reilly's pertinent evidence, on the other hand, was also uncertain. That said, I have reached a definite conclusion: the great probability is, whether by a decision of the examiners' meeting or by a decision of the particular examiners after discussion at such meeting, that Dr O'Brien had her way. She was Chairperson of the Committee whilst Dr Reilly was a co-opted and less experienced examiner. Further, Dr O'Brien created the strongest impression in her evidence that she expected to and would have her way upon a question to do with a mark that she awarded a candidate[40]. If she did not persuade Dr Reilly directly, I do not doubt that she persuaded the examiners' meeting that the plaintiff should be failed, and thereby Dr Reilly.
76 My summation of the identity of the examiner teams and of the marking sequences shows that in Case A it was the co-opted examiner whose personal mark failed the plaintiff, whilst in Case B it was the Committee examiner who did so. That presents an impediment to an argument that there was institutional (in the sense of College) bias against the plaintiff.
77 Thus far I have set out the identity of the examiner teams and the marking sequences. I have said nothing about criticism of the examiners' performance made by counsel for the plaintiff. The end point of those criticisms lay in the proposition that the examiners' decision to fail the plaintiff, on analysis, was shown not to have been fair, logical and soundly based (which, for convenience, and acknowledging that it does not capture every nuance of that phrase, I will contract to "sound") - this bearing both upon the claim for prerogative relief and the claim that the examiners' decision was an unreasonable restraint of trade. Of the criticisms, more later.
"13.1 Trainees may request a review of a decision affecting them in relation to training and examinations. Such requests will be considered by the relevant Committee and/or the Fellowships Board.
13.2 A trainee who is adversely affected by a decision in relation to training or examination may appeal to the Appeals Committee of the College in accordance with the relevant College By-laws."
79 There was no evidence as to any document which set out the review jurisdiction or process as at early 2004. There were, however, "By-Laws relating to Appeal Committees of the General Council of the RANZCP", ("the Appeals by-laws") operative from 1 July 1995.[41]
80 Clause 5.1 provided, inter alia, that a person adversely affected by a decision of
"(d) Any board or committee of the College with responsibility for training, accreditation, examination or professional standards"
might lodge an appeal within 30 days of receiving notice in writing of such decision.
81 Clause 5.3 provided that appeal might only be made on one or more of the following grounds:
"(a) new information which was not available or was not considered when the appealed decision was made;
(b) an error of law in the process by which the primary body made the appealed decision."
82 I note also cl. 6.3, which empowered the Chair of an Appeals Committee to refer the appealed decision to the primary body for review antecedently to the Committee considering the appeal.
83 The 2003 Training Regulations, which replaced the 2002 by-laws, were adopted, according to Loughran, in November 2003. They came into operation, according to the College's 2003 Annual report, on 1 December 2003.[42] According to the Minutes of the Council's meeting of 27 October 2002, however,[43] they were to commence at the beginning of the 2004 training year (which in Victoria was 2 February 2004). Nothing turns on this uncertainty.
You may request a review of a decision affecting you in relation to training and assessment. The relevant committee and/or the Fellowships Board will consider such requests.
If you are adversely affected by a decision in relation to training or assessment you may appeal to the Appeals Committee of the College in accordance with the relevant College By-laws."
86 Paragraph 4 of the 2004 Appeals document makes provision for a person adversely affected by a pertinent decision to apply to the Chief Executive Officer of the College "to have the decision reviewed by the Appeals Committee." Pertinent decisions, it was common ground, include decisions of the Committee for Examinations;[46] and, by paragraph 5.11, the decision of a Review Panel in relation to a decision of the Committee for Examinations.
87 The 2004 Appeals document, contrast the Appeals by-laws, specifies the available grounds of appeal:
"8 An appeal may only be made on one or more of the following grounds:
8.1. That an error in law or in due process occurred in the formulation of the original decision.
8.2. 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.
8.3. That the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.
8.4. That irrelevant information was considered in the making of the original decision.
8.5. That procedures that were required by College policies to be observed in connection with the making of the decision were not observed.
8.6. That the original decision was made in accordance with a rule or policy without regard to the merits of the particular case.
8.7. That the original decision was made for an improper use."
88 At least two other documents were spawned, as it appears, by the adoption of the 2003 Training Regulations. Each was approved, it seems, on 24 June 2004 by the Fellowships Board. The first is entitled "Procedure for Fellowships Board Reconsideration of Decisions" ("the Reconsideration document").[47]
89 The Reconsideration document is concerned with what is described as an intermediate process between review and appeal. According to the document, decisions that may be reconsidered include decisions of a Review Panel.
90 Available grounds for reconsideration are specified by paragraph 3. They are very similar in content (although they most often refer to a "decision of the Review Panel" and not to "the original decision") to the grounds of appeal set out in paragraph 8 of the 2004 Appeals document. They refer to a process which the College has adopted - although it finds no expression in Regulation 13.3 of the 2003 Training Regulations - which is neither review nor appeal.
91 The second document which, it appears, was approved by the Fellowships Board on 24 June 2004 is a document entitled "Proceeding for Review of Decisions made by the Fellowships Board and its Committees" ("the 2004 Review document").[48] The available grounds of review are specified by paragraph 3. For practical purposes they are the same as the grounds which are available on reconsideration and appeal. In other words, the regime since June 2004, despite the definition of "review" in paragraph 11 of the 2004 Review document,[49] essentially involves replication of available grounds three times.
92 In my opinion, the post-June 2004 regime casts uncertain light on the content of the review process at an earlier time. I would not conclude, without more, that the post-June 2004 regime means that "review" had a similar content earlier on. The post-June 2004 regime seems to have involved major changes in processes. Again, there is nothing in any pre-June 2004 document which describes "review" as it is defined in the 2004 Review document and in the Reconsideration document[50]. On the other hand, it may be said that the current regime recognises that there should be an avenue for comprehensive re-consideration of a board or committee decision, that it is improbable that there should have been no such avenue at an earlier time, that before June 2004 review was available as well as appeal, and that the grounds of appeal specified in 1995 were limited. It could be said to follow that, probably, "review" was the process by which comprehensive reconsideration of a board or committee decision was available. "Review" is susceptible of such content. To my mind that sequence of reasoning is persuasive.
93 Pausing for a moment, the Panel which considered the plaintiff's case, whether the plaintiff's right to review arose under the 2002 by-laws or the 2003 Training Regulations, could not in terms have exercised the functions and powers specified by the 2004 Review document. The Panel's task was complete when it delivered its decision on 27 May 2004. That does not necessarily mean, however, that the June 2004 reconsideration and appeal procedures did not operate in the plaintiff's favour insofar as they addressed decisions of Review Panels.
94 I have said that in June 2004 the College instituted a three step process. The second step was reconsideration. By paragraph 1 of the Reconsideration document, reconsideration must be sought "within 28 days of receipt of notice of such decision".
95 Paragraph 4 of the 2004 Appeals document, however, simply provides that a person may appeal "within three months of the receipt of notice of a relevant decision," although paragraph 9 does refer to the appellant being advised "to seek a reconsideration and review of the original decision, in accordance with the processes approved by the General Council from time to time".
96 It might be argued that application for reconsideration - and that within time - is made a condition precedent to the exercise of a right of appeal. But I do not think that is so. It is not the language of the 2004 Appeals document; and provision for reconsideration, a step not mentioned in the 2003 Training Regulations, does not appear to me to gainsay what is plainly said in the 2004 Appeals document in connection with the institution of appeals.
97 When the Council respectively adopted and approved the amended by-laws relating to appeal and the 2004 Appeals document at its May 2004 meeting, it resolved to:
"(adopt) the revised College Appeals Process and By-laws as soon as possible, in time for the College to report its corrective steps to the AMC in 2005."
There is, I think, no doubt that the import of paragraphs 29-36 of Loughran's third affidavit is that the new by-laws and procedures had been implemented by June 2004. As against that, it may be said that his affidavit confuses the date of the Council's resolutions with the date of commencement of the new regime. On balance, however, it seems the more probable that the new regime commenced in its entirety on or about 24 June. For it was then that the Fellowships Board adopted the Reconsideration and Review documents. They marked the completion of documentation pertaining to the new regime.
98 In the event, whether or not the Reconsideration document could sensibly apply in the plaintiff's case, I consider that the plaintiff was entitled to lodge an appeal against the Panel's decision up until about August 2004. Further, he arguably had on foot as at June 2004 an appeal against the decision of the Committee for Examinations to fail him on the clinical viva; and it may be (if the Appeals by-laws as amended and the appeal procedures adopted in May 2004 did not operate until 24 June 2004) that he had a right of appeal under the unamended Appeals by-laws against the Panel's decision in the period between 27 May and 24 June 2004.
99 Counsel for the plaintiff submitted that (decisions of) both the College and the Panel were amenable to judicial review because:
Either circumstance was enough, counsel submitted to make the decision of a body amenable to judicial review.
101 She referred also to Australian Football League and ors v Carlton Football Club Ltd and anor[55], submitting, as I understand it, that it at least left open the question whether judicial review is available where there is a contractual relationship between the parties.
102 In application of the principles which she submitted were applicable, counsel contended that:
103 Counsel for the defendants submitted that Datafin provided a means for deciding whether entities which exercised powers having neither a statutory nor a contractual basis should be amenable to judicial review. He referred particularly to a passage in the judgment of Lloyd LJ in Datafin[58], cited by Mathews J in Typing Centre[59]. In the present case there was a contractual, consensual relationship between the parties. The plaintiff had invoked rights of review and appeal available under that relationship. The decision of the Panel was not amenable to judicial review.
104 Alternatively, according to counsel's submission, in this case there were not the public law consequences or public element identified by Mathew J in Typing Centre. Her Honour said that the Advertising Standards Council had power:
"to interpret and mould the various advertising Codes in precisely the same way as the courts can interpret and mould Acts of Parliament."
"Many provisions of the Codes, including the one [the Court is] concerned with in this case, do little more than restate the existing law. In relation to these provisions, the Association is, in effect, providing an alternative forum for dealing with matters which might otherwise need to be litigated in the courts."
105 Whitehead v Griffith University[60] was a case which showed, counsel submitted, the practical application of Datafin. He referred also to Masu[61] as illuminating the type of considerations which might lead to a conclusion that a body was exercising powers of a public nature. The present was a case, he contended, where - as with many personal and private decisions - there may be public implications; but it was not a decision which was directed to or was part of the achievement of public consequences. The plaintiff was not without remedy; but any remedy derived from contract. Referring to Forbes v NSW Trotting Club Ltd[62], a case cited for the plaintiff, counsel noted that it had been brought in the Equity Division of the New South Wales Supreme Court, and that the remedies sought had been a declaration and an injunction.[63]
106 The plaintiff primarily seeks, vis à vis the decision of the Panel, that the same be brought up and quashed. He does not bring a claim for relief founded on the contract between he and the College. The question, it seems to me, is whether Datafin, as it should be understood and as it has been understood in Australia, provides a test of general application in deciding whether the decision of a particular body is subject to judicial review; or rather whether it provides a test for deciding cases in the middle ground between two extremes: that is, at one extreme entities whose exercise of powers is grounded in statute; and at the other extreme entities whose exercise of powers is grounded in contract.
107 Datafin itself was a case in the middle ground. Both Lloyd and Donaldson LJJ appear to have set the extreme positions and then supplied a test apposite to the middle ground. In R v Criminal Injuries Compensation Board; ex parte Lain[64], which may be regarded as the precursor of Datafin, Lord Parker CJ did not suggest that what I have called the extreme positions were no longer maintainable; rather the converse.[65] In R v. Jockey Club Disciplinary Committee; ex parte Aga Khan[66], decided after Datafin, the Court of Appeal refused to extend judicial review to a private body which exercised very considerable power, such power relevantly deriving from a contract between the respondent and those within the racing industry.
108 Datafin has been applied, with varying outcomes, in many cases in England[67]. That is likely the case because, as Scott Baker LJ said in R (Tucker) v Director General of the National Crime Squad:
"Whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria are met."[68]
109 In some of the instances where decisions have been held reviewable there appears to have been a contractual relationship between the parties. Aronson and his co-authors comment[69] that-
"The availability of alternative contractual relief against a public body (my emphasis) is not as big a hurdle where employment or personal issues are absent."
111 So far as I can see, Datafin has not been applied, in Australia, to a case where the pertinent relationship between the parties was contractual. In Whithead, its application in such a situation was denied. In Neat, Kirby J[72] might be said to have implicitly accepted the role of Datafin in the middle ground; likewise Eames J in Master Builders.[73] In Hudson Securities, on the other hand, although Datafin was not expressly cited, Santow J apparently approved a text passage to the effect that the question of availability of judicial review remedies in the case of a breach of the listing or business rules of the Australian Stock Exchange involved an area of developing law, the answer depending "on whether there is a public element present in the exercise of contractual powers".[74]
112 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 and ors v Carlton Football Club Ltd and anor 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.[75]
113 But if that conclusion is wrong, has the plaintiff shown that the College/Panel exercised public functions and powers; or else that such powers and functions had public consequences?
114 Elsewhere in these Reasons I consider the various circumstances relied upon by the plaintiff. My conclusions are, in short, that non-election of a psychiatrist to fellowship does have a real impact upon that person's ability to practice psychiatry as a consultant, a specialist; but that it does not preclude a person practising as a psychiatrist; nor from being appointed to exercise certain functions under the Mental Health Act. I conclude also that the College, in pursuing its objects, acts in the interests of the College, a candidate and the public.
115 There is, in the ways which I have just shortly described, a public impact of a person's non-election to fellowship. It is not a public impact which has the characteristics which were present in Typing Centre but I do not accept that those characteristics must always be decisive. There is, I think, much to the observations of Scott Baker LJ in National Crime Squad.
116 I could not conclude that the College exercises public functions and powers in determining whether to elect a candidate to fellowship. The question whether such exercise has public consequences (assuming that could be enough) is more difficult to answer. On balance, I am of opinion that the question should be answered in the plaintiff's favour. Election does carry with it as of right recognition under the Health Insurance Act 1973 (Cth); and de facto recognition as a "qualified psychiatrist" under the Mental Health Act. There are public consequences of such recognitions. The consequences are far from restricted to the pocket of the non-elected person. The treatment of mental illness is a public health issue; and the ability to practice in that field as a specialist is of public importance - the more so as the evidence showed there to be a chronic shortage of psychiatrists in Australia. Effectively, with an implicit intention of furthering the public good, the College does set up fellowship as the mark of professional competence; a mark of which Commonwealth and State authorities take note.
117 There is a question whether the Panel's decision operated to deny the plaintiff fellowship. Certainly, even if the Panel had gone so far as to award the plaintiff as pass in the clinical viva - the plaintiff's Notice of Appeal asked it to do so, but the grounds upon which the examiners' decision was challenged did not support grant of such relief - one could not conclude that the plaintiff would have been elected to fellowship forthwith; or at least for some considerable time thereafter. I say elsewhere why that is so. Except, however, if the plaintiff was exempted from examination requirements, passing the clinical viva was an essential pre-condition for election to fellowship. The plaintiff could call in aid, in the context of his claim for judicial review, the principle described in Hot Holdings v Creasy and ors.[76]
118 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.
119 The next question is whether, in the circumstances, each of the grounds upon which the plaintiff attacked the Panel's decision were available to him. With one exception there was no argument between the parties about that matter. It was not in dispute that, save with respect to the attack founded upon apprehended bias, the grounds of attack relied upon by the plaintiff were so available.
120 Before addressing the substance of the plaintiff's various attacks, it is convenient to deal with the question whether it was open to the plaintiff to impugn the Panel's decision on the ground of apprehended bias. Counsel for the defendants submitted, relying on Maloney v NSW National Coursing Association,[77] that a challenge on that ground is not available where the body in question exercises a power which is essentially consensual, whether or not the body is amenable to judicial review. Indeed, it is not available even where the body has a statutory, though indirect, foundation. In this case the Panel had exercised a consensual power; and so the ground was unavailable.
121 Counsel for the plaintiff submitted that Maloney had nothing to say about the present case. The College (and thus the Panel) exercised a public power with public consequences - unlike the committee in Maloney; and in any event it could not be said, although the plaintiff was in a contractual relationship with the College, that he had in any real sense agreed to its processes. He had to accept them if he wanted to be a fellow. He had no voting rights in relation to the College.
122 Maloney stands for the proposition that apprehension of bias on the part of a decision-maker is not, at least in all but an exceptional case,[78] a basis for impugning the decision of a domestic tribunal whose powers and functions arise consensually. In that case a distinction was drawn between a tribunal thus constituted and a court.[79] The occasion did not arise to consider whether, in connection with apprehended bias, some distinction was to be drawn between a domestic tribunal exercising private disciplinary powers with private consequences and a domestic tribunal exercising non-disciplinary powers with public consequences. Neither did the occasion arise to consider whether some distinction should be drawn between a domestic tribunal exercising powers derived by the common consent of all participants and a domestic tribunal exercising powers to which one party was contractually bound to submit but in respect of the criteria of which powers such person could have neither consented nor dissented.
123 It follows from what I have just said that Maloney did not in terms decide that any apprehended bias of the decision-maker in a case such as the present could not be raised as a ground for judicial review. Nonetheless, the trend of authorities seems to be that an allegation of apprehended bias is not in point in a case involving a domestic, consensual or private tribunal - by contrast with a Court, or a tribunal founded in statute.[80]
124 In my opinion, then, so far as the plaintiff's case relies upon an allegation of appended bias on the part of the Panel, it would not raise a pertinent allegation even if - which I consider is not the case - the Panel's decision was open to judicial review.
The Substance of the Plaintiff's Claim that the Panel's Decision should be quashed
125 Notwithstanding that, in my opinion, the plaintiff's claim for judicial review fails altogether (which is not to say that the plaintiff might not have been able to seek a remedy founded in contract) and notwithstanding that one element of the plaintiff's complaint could not in any event be pertinent, it seems desirable that I address the substance of the plaintiff's claim. The parties should have my conclusions, in case it was desired to take the proceeding further.
126 In order to understand the plaintiff's case it is necessary to appreciate that not long before the October 2003 clinical vivas were held Loughran, for the College, commenced enquiries into the plaintiff's status and activities. He did so after the College received a letter of complaint signed by Dr Jenkins, written on behalf of a number of College members.
127 The letter was written after a member, presumably Dr Jenkins,[81] contacted Professor Ellis with complaints about the plaintiff. Professor Ellis told the member that any complaints should be put in writing.
128 The letter itself did not go into evidence, but viva voce evidence of its contents was given by each of Loughran and Professor Ellis. The evidence was not altogether clear, but it appears probable that the letter made complaint that the plaintiff had represented himself to be a Fellow of the College; and made complaint also about representations which the plaintiff had made on the "Compass" program, about his interpersonal relationships, the integrity of his research, and his professional standards and behaviour.
129 The complaints raised serious matters. They were such as, if established, would very likely have precluded the plaintiff's election as a Fellow even if he had passed the clinical viva.
130 Loughran gave evidence that one matter which he investigated at the outset was whether the plaintiff held some overseas qualification as a consultant psychiatrist. This would or might have impacted on the nature of the Section I examination which the plaintiff was required to sit. Assuming that Loughran's evidence was not completely confused, it seems likely that this was an issue which arose as a variant of the plaintiff's alleged representation that he was a Fellow of the College. Such an issue could have arisen if it appeared that the plaintiff had represented himself to be a consulting psychiatrist rather than a member of the College.
131 The evidence showed that Loughran sent copies of Dr Jenkins' letter to Professors Ellis and Condon. The former directed Loughran to make enquiries. He did so. In the course of his enquiries he contacted Professor Keks and Dr Tanaghow. That was before the clinical vivas were held. In that interim period he certainly contacted other doctors also concerning the plaintiff's qualifications; and he probably spoke to the persons on whose behalf Dr Jenkins had written the letter of complaint.
132 Loughran made some enquiries antecedently to a meeting of the Council which was held on 18 - 19 October 2003. At that meeting further concerns were raised concerning the plaintiff. Professor Ellis directed Loughran to make further enquiries.
133 It is clear that the question whether the plaintiff had represented himself to be a Fellow of the College remained alive when the clinical vivas were held. Indeed, the College referred that question to the Medical Practitioners Board (which ultimately said that the matter was outside its jurisdiction) in early 2004. It is also clear that Loughran was still investigating other complaints when the Panel met in April 2004. That is what the Panel's solicitor said at the hearing, presumably on instructions from Loughran.[82]
134 Professor Ellis gave evidence of recollection that, by the time the clinical vivas were held, Loughran's enquiries had showed the complaints, save that pertaining to the plaintiff allegedly representing himself to be a Fellow of the College, to be unsubstantiated. Confronted by correspondence showing that enquiries were still being pursued in June 2004, the witness modified that evidence to say that he had reached the position where he considered that only the representation issue was alive. That was his state of mind, I understood him to say, when the Panel hearing took place. The matter was not one for the Fellowships Board.[83]
135 It may be that Professor Ellis was of opinion, by April 2004, that of the raft of allegations raised against the plaintiff only one remained to be resolved. But in light of what he was told by the Panel's solicitor at the hearing on 13 April 2004, let alone what he must have been told by Loughran if he had asked, it is really unconceivable that he could have believed as at 13 April that enquiries more generally concerning the plaintiff were then at an end.
136 According to the plaintiff's case, the Panel should have considered whether the examiners' decision was sound. It was asked by the plaintiff to consider that matter. But if that was not so, in any event its jurisdiction - I will use that word for sake of convenience, recognising always that the Panel was not a Court - extended to consideration of such a matter. Because it failed to exercise that jurisdiction its decision should be quashed.
137 Each of the questions of jurisdiction and of fact should be considered. I begin with the question of jurisdiction, and with what the plaintiff himself sought. The question calls into play Loughran's enquiries.
138 In December 2003 the plaintiff sought legal advice in respect of his "concerns about the examination process".[84] He instructed his solicitors to draft and file an appeal. A Notice of Appeal[85] dated 19 December 2004 was served on the Appeals Committee and the Committee for Examinations under cover of letters dated 23 February 2004.
139 The Notice of Appeal stated that the grounds upon which the plaintiff relied were:
"that the appellant was denied natural justice and procedural fairness in circumstances where the administrative decision of the examiners"
140 There is in my opinion no doubt at all that everything which followed in the Notice of Appeal was directed to those matters.[86] The thrust of the alleged denial of natural justice was that there had been actual bias on the part of the decision-makers/examiners, or else that there was reasonable apprehension of bias[87]. The Notice of Appeal summarised what had gone before by saying, in paragraph 12, that
"by reason of the above the appellant has been denied natural justice and procedural fairness and has grounds to appeal..."
The plaintiff sought avoidance of the decision to fail him
"by reason of the above breaches of natural justice and procedural fairness".[88]
141 It is true that within the Notice of Appeal there was reference to the plaintiff's reasonable expectation that he would pass the clinical viva,[89] that the decision "would be based on logically probative evidence",[90] that having "satisfactorily presented" he had a reasonable expectation of obtaining a pass;[91] and that he had a reasonable expectation that he would obtain a pass, "given the [College] recognises his credentials and experience".[92] True also it is that by paragraph 14 of the Notice of Appeal the plaintiff sought a decision that he pass the clinical viva. But the real import of paragraphs 5, 7, 10 and 11 was that the decision to fail the plaintiff was only explicable by bias, or else made good a reasonable apprehension of bias. Further, it is fanciful, in context, to read paragraph 14 of the Notice of Appeal as inviting the Panel's reconsideration of the merits of the plaintiff's presentation, or of any deficiencies in the examiners' performance.
142 The matters raised by the Notice of Appeal pertaining to bias or apprehension of bias were that:
143 It is necessary to trace, next, communication between the parties and/or their legal representatives in the period which began with service of the Notice of Appeal and ended with the hearing conducted by the Panel.
144 The College did not respond substantively to the Notice of Appeal until 5 March 2004. In a letter[93] it then set out cl. 13.1 and 13.2 of the 2002 by-laws and said:
"At this point in time it would be customary practice for a trainee to request a review of the decision to which they object, rather than applying directly to Appeal. During the review all relevant material information would be considered before reaching any decision."
145 By letter also dated 11 March 2004 the plaintiff's solicitors said that their client would be prepared, subject to two provisos, to have the decision reviewed. The letter stressed the urgency of the situation.
146 By letter dated 26 March[94] the plaintiff's solicitors accepted an invitation by the College to attend the foreshadowed review. They said that
"(t)he substance of our client's claim is set out in the Notice of Appeal."
They annexed two documents, which went to the question of the plaintiff's recognised expertise in spirituality and psychiatry.
147 The College thereafter indicated that arrangements were being made to hold the review by way of teleconference. The plaintiff's solicitors argued in reply that the review should be face to face. The College maintained its position.
148 On 5 April the College's solicitors wrote to the plaintiff's solicitors confirming that the material to be placed before the Panel would be:
"We are also instructed to confirm that the Review Panel is reviewing the original decision in relation to this matter. The terms of reference therefore to be considered by the Review Panel, based on the issues raised in Dr D'Souza's appeal are:-
In relation to the last issue, we are also instructed that Mr Paul Loughran will also be available to speak to the Review Panel to confirm that no member of the Examinations group was or would have been aware of his enquiries in relation to Dr D'Souza (which you refer to as 'credentialling investigation'), and that the issues raised were not known by any of the examiner(s)."[95]
150 The passage just cited is not easy to understand. Having referred to the Panel "reviewing the original decision", the College's solicitors then set out terms of reference "based on the issues raised in [the plaintiff's] appeal". What followed, if it was an intended paraphrase of matters raised by the Notice of Appeal, was inaccurate. Leaving aside the omission of "want of" before "impartiality" in term 1, that term failed to distinguish between actual and apprehended bias. Then, as to terms 2 and 3, the author of the letter appears to have misunderstood the Notice of Appeal by not apprehending that the subject-matter of those terms was relied upon by the plaintiff to support his allegation of actual or apprehended bias.
151 On 5 April 2004 the plaintiff's solicitors wrote to the College's solicitors seeking confirmation that Loughran would give evidence to the Panel at the public part of its hearing and that they would have an opportunity to cross-examine him. They also enclosed correspondence which pertained to a complaint made by the College to the Medical Practitioners' Board of Victoria concerning the plaintiff. They argued that "(t)he enclosures substantiate our client's allegations of bias and or appearance of bias".[96] Finally by the letter they said that they required the questions to be considered by the Panel to be rephrased as follows, on the balance of probabilities:
"1. Was there any bias or impartiality, or any appearance of bias or impartiality on the part of the examiners when they examined Dr D'Souza on 23 October 2003 and 24 October 2003?
152 This was a broader formulation than in the letter of the College's solicitors dated 5 April.[97] It retained the same three areas of subject-matter. On its face, and contrary to the import of the Notice of Appeal, it appeared to treat the question whether the decision of the examiners was unfair, illogical or unsoundly based as raising a discrete issue.
153 Emphasising the apparent difference in so treating that question, a letter dated 3 April 2004 sent by the plaintiff's solicitors to the Medical Practitioners' Board[98] mentioned the subject-matter of the "appeal" in terms consistent with the Notice of Appeal.
154 The College's solicitors e-mailed the plaintiff's solicitors on 7 April. They advised that Loughran would be on leave at the time of the Panel's hearing; and said that any evidence he gave would be at the public part of the Review. They said nothing about Loughman being available for cross-examination. Other than concerning Loughran, the letter advised that it was not proposed to change the terms of reference.
155 The Review proceeded by teleconference on 13 April. The plaintiff and his solicitor were at his solicitors' office. Professor Ellis was in New Zealand. The other members of the Panel were elsewhere. Officers of the College and a solicitor who represented the College (and on this occasion assisted the Panel) were also party to the telephone hook up.
156 The hearing was recorded. A transcript was made.[99] The vast percentage of what was said was said by the solicitors. Professor Ellis made a few contributions, Dr Slattery one and Professor Condon none. An officer of the College, Mr Collier, spoke on two occasions.
157 It is pertinent to note the topics addressed by Mr Collier, Manager, Basic Training, of the College. He had been "looking after", it was said, the examination process. He told the Panel that he had only heard of the "credentialling exercise" very recently. It followed that he could not have told any of the examiners about that matter. He said also, as I understand it, that he had sat in on the examiners' meeting; and that candidates were discussed by "an unidentifiable number or code"; though perhaps he was speaking only of a general practice with which he was familiar - a practice referred to by each of Professor Ellis and Dr Slattery. Upon the issues which he addressed, what Mr Collier said was pertinent to allegations of bias - actual and apprehended.
158 There is no doubt, reading the transcript, that the issue of the "credentialling investigation" was, as the plaintiff's solicitor put in "very much at the centre of what we say about the process being carried out here"; and that "the whole process" was "tainted with bias" - not just the examination in which Dr O'Brien participated. In that connection the plaintiff's solicitor said that "...we are told that the matter of the credentialling investigation was actually discussed at the examiners' meeting shortly before the examination". Loughran had spoken to Professor Keks and Dr Tanaghow before the examination. Enquiries "were meant to and did have the effect of creating a bias in the minds of the examiners that actually examined" the plaintiff.
159 The plaintiff's solicitor mentioned also, in his submissions, the matter of the same doctor having examined the plaintiff three times in the past; and the singling out of his client for examination by Dr O'Brien - who, the solicitor claimed, had earlier been in discussion with the President of the College, a man ill-disposed to the plaintiff's work on spirituality and psychiatry.
160 The solicitor referred to the intimation from the College's solicitor that the Panel would be reviewing the original decision. He said that he was not sure what that meant. He did not see how the examination was going to be reviewed - absent its having been taped. He referred to the plaintiff having notes, and to the plaintiff having replayed his presentation to senior members of the profession whose view was that the decision to fail him was not fair, logical or soundly based. But he went on:
"Now this is an area where there will be many opinions, but we say that [the plaintiff] was not judged on the examination or the presentation he gave, but on many other, I suppose, allegations that were untested out there and he was given no opportunity to answer them."
161 Again, referring to the particular examiners' conduct, he argued that the circumstances disclosed:
"do appear to demonstrate people that are going out of their way to achieve a result rather than objectively testing the candidate."
162 There was discussion thereafter whether Loughran should be called at a later time; and about the issue of cross-examination. The Panel ultimately adjourned on the footing that:
163 To my mind, viewed fairly, the plaintiff's case at the review hearing on 13 April 2004 was about bias - actual or apprehended; and, to the extent that it could add anything, a case about the examiners having taken into account, against the plaintiff, matters which were irrelevant - being essentially some of the circumstances said to give rise to actual or apprehended bias. The Panel could have been left in no doubt, I consider, that this was the area of debate. Submissions by the plaintiff's solicitor about the examiners' conduct were framed in that context.
164 There was no "public" hearing by the Panel after 13 April. But in the interim until it published its decision on 27 May there was correspondence between the solicitors. Further, one or more members of the Panel possibly spoke with Loughran,[100] and the solicitor assisting the Panel obtained certain statements and supplied them both to the Panel and the plaintiff's solicitors. I should refer to that correspondence and those statements, insofar as the same might bear on the jurisdiction which the Panel was invited to or did exercise.
165 On 27 April the plaintiff's solicitors wrote to the Panel's solicitor asking what further investigations it had undertaken, when it intended to reconvene or alternatively when it intended to make its finding.[101]
166 On 3 May, the Panel's solicitor advised that statements had been sought from "the relevant participants" in relation to the conduct of the clinical viva. Copies of statements by Drs Hatcher and Harvey[102] were provided. The plaintiff's solicitors were informed that when all statements were to hand the plaintiff would be asked if he had further submission to make. Further statements were forwarded to the plaintiff's solicitors under cover of letters dated 12 May 2004 and 18 May 2004.[103] The statements were signed by Professor Keks and Dr Tanaghow. The four (or five) statements supplied to the plaintiff's solicitors only addressed issues of actual and apprehended bias.
167 By the covering letter of 18 May, the Panel's solicitor advised that one or two more statements might be secured. If so, they would be forwarded. Other than that, the solicitor "propose(d) to reconvene the Review Committee (sic) to consider [the] additional information". Nothing was said about the Panel having privately questioned Loughran after 13 April. The Panel's solicitor asked the plaintiff's solicitors to provide any further submissions "on the basis of this additional material" as soon as possible.
168 The plaintiff's solicitors responded to receipt of most of the statements by letter dated 14 May. This is what they said:
"We have received your letters dated 3 May 2004 and 12 May 2004 which enclose statements presumably prepared by your office and signed by the participant examiners. We do not understand the content or purpose of these statements as:
We note that we have not received any statement from Paul Loughran nor any list of people contacted by him. Since there was an investigation of our client as indicated in the statements provided by your office this information should be easily obtained and provided.
Our client does not wish to make any further submissions as it is apparent that the Review Panel is simply intent on delay.
The teleconference 'hearing' was held over four weeks ago on 13 April 2004. Your client has had more that (sic) ample time to obtain any statements it requires and make a determination of the review. We regard the delay in making this determination a further denial of natural justice.
We indicate that our client is being penalised both financially and emotionally by the actions or inactions of your client. Our client holds your client responsible for this loss and damage.
Given that our client lodged his Appeal on 20 February 2004 it indicates the attitude that prevails throughout your client that a determination of the review has not been finalised.
We seek that the Review Panel make a determination and advise us of it by 5.00 pm on Wednesday 19 May 2004 failing which we are instructed to issue proceedings in the Supreme Court of Victoria seeking appropriate injunctions and damages. Our client has made a report of this matter to ACCC whom we understand are investigating."[104]
169 The plaintiff's solicitors were provided with a copy of the decision of the Panel, dated 27 May 2004, under cover of a letter from the Panel's solicitor dated 3 June.[105] The solicitor asked whether the plaintiff now wished to continue with his appeal.
170 The key matters noted by the Panel in its decision were as follows:
"1. The Review Panel noted that on this occasion, the RANZCP (through its Melbourne office, but not involving the Committee for Examinations) did conduct a preliminary investigation in relation to a matter raised in relation to Dr D'Souza. Preliminary enquiries were made, but not of the Committee for Examiners. That matter, if it proceeds further, will be the subject of a separate process).
It is standard practice for the RANZCP to undertake preliminary investigations to determine whether sufficient evidence exists in relation to allegations raised by College Fellows, trainees or the broader community regarding the conduct of College Fellows or trainees that may breach the College Code of Ethics.
The evidence provided by Prof Keks; Dr Tanaghow; Dr Harvey; Dr Hatcher and Dr O'Brien does not support the claim by Dr D'Souza that the 'credentialing' activity undertaken by Mr P Loughran contributed to any alleged bias on behalf of the examiners.
The Committee for Examinations customarily utilise a 'Can't See List' to ensure that examination candidates are unknown to the examiner.
College records indicate that Dr J Allan had examined Dr D'Souza on:
The evidence indicates that the 'Can't See List' process was implemented for the October 2003 clinical examination and that Dr D'Souza was not examined on this occasion by any examiners who had previously judged his performance to not reach the required standard.
It was noted, that even if Dr Allen had awarded a pass on the case examined, Dr D'Souza failed the other case - giving an overall fail result in any event.
It was also noted that the Chair, Committee for Examinations can.
The evidence before the Review Panel indicates that Dr D'Souza was not singled out by the Chair, Committee for Examinations given that:
The Review Panel considered the signed statement by Dr O'Brien denying the allegation and was satisfied that the allegation could not be substantiated."
"... the allegations by Dr D'Souza were not substantiated by the evidence before it."
It confirmed the plaintiff's fail grade at the October 2003 clinical viva.
172 Plainly the Panel disposed of the matter before it by addressing issues of bias. It did not in terms differentiate between actual and apprehended bias; but a number of the matters which it "noted" were pertinent in one or both of those contexts.
173 Pausing for a moment, as the material before the Panel stood at the time of the decision, and assuming that the issues for its consideration were limited to those identified by the plaintiff, no outcome other than that arrived at by the Panel would have made sense. The thrust of the plaintiff's case was that the decision to fail him had been actuated by bias, or that the circumstances gave rise to reasonable apprehension of bias; and, if it added anything, that the examiners had taken extraneous considerations - principally, the credentialling investigation - into account when deciding to fail him. In that context, three of the four examiners had stated that they had been unaware of the investigation when they examined the plaintiff, and that they had marked the plaintiff simply on the merits of his presentation at the clinical viva. Further, each of Professor Keks and Dr Tanaghow, whom the plaintiff had alleged had discussed the investigation with other examiners in advance of the examination, had denied knowing about the investigation at the pertinent time; and had denied telling the plaintiff that the issue had been discussed between examiners at the time of the clinical examinations. Further again, Dr O'Brien had made a statement in which she dealt with a pre-judgment issue and with the circumstances in which she came to examine the plaintiff. Finally, the circumstance that a particular doctor had, in the past, examined the plaintiff on three occasions, was put by the Panel into a context which ran contrary to there being a laid-out plan to deny the plaintiff a Fellowship.
174 Further than that, it is likely, whether before or after 13 April, that Loughran told the Panel that he had not spoken to any of the examiners in connection with his investigation of the plaintiff. There is, as I noted earlier, a possible conflict in the evidence of Professor Ellis and Loughran as to when the latter spoke with the Panel (or at least with Professor Ellis). But the thrust of what Loughran very probably said could not be in doubt. See paras 21-22 of his third affidavit, and the account given by the Panel's solicitor at the 13 April hearing of Loughran's instructions.[106]
175 True it is that the fourth examiner had made no statement. But the absence of such a statement was much outweighed by the presence of statements which disputed key allegations made by the plaintiff.
176 True also it is that the statements made by Professor Keks and the other doctors were in very similar form[107]. They looked as if they were the work of a solicitor. The plaintiff's solicitors had drawn attention to the pro-forma character of the documents. But neither that form nor what the plaintiff's solicitors claimed were the "self-serving" contents of the statements rendered such statements unworthy of belief.
177 The plaintiff's solicitors did not after receipt of the decision write to the Panel's solicitor and complain that a part of the plaintiff's case had not been considered. They did nothing, it appears, until 17 June, at which time they asked for details of the complaints made against their client, and the names of the complainants. That letter[108] led on to more correspondence between solicitors dealing with those issues.
178 Given this area of disputation, the plaintiff's solicitors adverted to the question of appeal. In a letter to the Panel's solicitor dated 21 June they said this:
"In relation to our client's appeal we understand this is continuing although we are unsure how the College proposes to determine that with any independence given the conduct of the review. Is an Appeal likely to allow evidence to be produced and tested rather than accumulate pro-forma statements of evidence? Are we likely to hear from Mr Paul Loughran during the Appeal process? Is the College prepared to proffer positive proof by its own witnesses as to the exam process rather than seek to rely only on disproving the evidence of our client? Will the College offer any explanation as to why the Chief Examiner was sent to examine our client only? Who made this decision and why? Was any consideration given to what effect that decision would have on the other examiners?"[109]
It was that letter which provoked the Panel's solicitor to enquire whether the plaintiff wished to proceed with a reconsideration of the Panel's decision.
179 In my opinion, nothing which happened between 14 April and 27 May 2004 leads to a conclusion that the subject-matter of the Review, as the plaintiff requested and pursued it, was constituted otherwise than by allegations of actual or apprehended bias and consideration in that context of irrelevant matters constituted by some of the matters said to raise the actuality or apprehension of bias. The question which then arises is whether, as the plaintiff would have it, the Panel's jurisdiction not only extended to but required determination of a different issue; that is, whether the decision to fail the plaintiff was sound.
180 It is clear that the Panel did not in fact consider and decide whether the decision was sound. At its highest, having excluded bias, the Panel concluded that there was no reason to think other than that the decision was sound.[110]
181 The plaintiff's solicitor evidently held material bearing on the alleged unsoundness of the examiners' decision at the time of the Panel hearing.[111] He did not place it before the Panel. Had he done so the Panel might perhaps have reasoned, in an attack upon the examiners' decision founded upon actual or apprehended partiality, that any unsoundness of the decision was probably so explained. Whether that would have been permissible reasoning, and not mere speculation, need not be considered; for the matter did not arise.
182 So much for what the plaintiff sought, and what the Panel did. What then was the available review jurisdiction? It is a question the answer to which I have already, in substance, provided.
183 It has been said that the term "review" is one without fixed meaning, taking its meaning from the context in which it appears.[112] Nonetheless, "review" is commonly used
"in the context of comprehensive administrative review by an administrative tribunal of administrative decisions."[113]
184 In the present case, for reasons which I earlier expressed, I draw no conclusion as to the content of "review" under the 2002 by-laws from the regime which came into being on (probably) 24 June 2004, but I do take it to be significant that the Appeals by-laws provided very limited grounds of appeal which did not extend to a comprehensive merits review. The authors of the 2002 by-laws must be taken to have understood that such was the limited content of the appeal process. The 2002 by-laws distinguished between review and appeal. It seems improbable that a complainant should have been given no avenue for "comprehensive administrative review" of a decision of a body such as the Committee for Examinations. Yet if the available grounds of review and appeal had been identical, such was the consequence. Those circumstances suggest that "review" where used in the 2002 by-laws was intended to embrace comprehensive administrative review. In the event, I consider that the Panel did have jurisdiction to conduct such a review in the plaintiff's case.
185 In my opinion, however, the Panel was not obliged to exercise each and every aspect of its available jurisdiction in this case. I think that, given the particular circumstances, there is an unreality about the contrary proposition. Not only did the plaintiff not discretely seek to agitate the question whether the decision to fail him had been sound, the key information which might have assisted such a conclusion - what the plaintiff's solicitor described as comprehensive notes from which the plaintiff had made his oral presentation, and the alleged opinion of the plaintiff's supervisor and other senior men that the decision to fail him was not fair, logical or soundly based[114] - was not placed before the Panel. It seems to me to go too far to say that the Panel must consider a question not raised by the plaintiff, in respect of which the plaintiff did not advance the material which might have supported a favourable answer, and where the state of the material actually before the Panel must have compelled an answer adverse to the plaintiff upon the issue which was not raised. The observations of the Full Court in McDonald[115], albeit directed to a statutory review, are in my opinion in point.[116]
186 Counsel for the plaintiff submitted that the defendants denied her client natural justice by failing to provide fair procedures for the review. That was one of two contentions raised by the plaintiff of denial of natural justice. The other was that there was reasonable apprehension of bias.
187 In her final address counsel for the plaintiff refined and somewhat varied the detail of the plaintiff's complaint of unfair procedures as it had been set out in paragraph 4 of the originating motion. She submitted that, having regard to considerations described in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam,[117] there was practical unfairness in the hearing accorded to the plaintiff because
188 Turning to apprehension of bias, counsel relied upon principles recently restated in the Re Refugee Review Tribunal; ex parte H and anor.[119] She mentioned but did not pursue a possible issue whether the test of apprehended bias is different in the case of a private tribunal than applies in a public forum. The key question, she submitted, is whether there is an objective possibility that what the decision maker had to do might not have been done with an impartial mind, that being assessed from the perspective of a hypothetical fair-minded layperson properly apprised of the circumstances.[120]
189 Against that background counsel relied upon what the members of the Panel knew, but did not reveal to the plaintiff, about Loughran's enquiries. Professor Ellis had been responsible for the initiation of the enquiries and had continued to liaise with Loughran about them. Professor Condon knew of the allegations and, as did Professor Ellis, knew that the letter of complaint had been signed by a member of the Committee for Examinations. This, counsel submitted, was the strongest matter going in support of the case on apprehended bias.
190 Other than that, counsel submitted, the evidence made out each of the particulars relied upon in the originating motion. I should set them out:
191 Counsel for the defendants submitted that if apprehended bias was an available ground for impugning the Panel's decision then the parties were not far apart as to the applicable test. It was that described in Ebner v Official Trustee in Bankruptcy.[121]
Counsel particularly focused upon this passage in the joint judgment:
"[The] application [of the test] requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on the merits."
192 He submitted that the fact that Professor Ellis knew about Loughran's enquiries had no logical connection with the question for his determination - that is, whether the examination process itself had been (or might have been) affected by any such knowledge on the part of the examiners.[122]
194 I have earlier concluded that the issues raised for the Panel's consideration were whether the examiners had been actually biased, whether there was reasonable apprehension of bias in connection with their decision to fail the plaintiff, and whether the examiners had taken into account extraneous matters - essentially some of the circumstances said to give raise to actual or apprehended bias - in arriving at their decision.
195 The plaintiff did not squarely allege, by his Notice of Appeal, that Loughran's inquiries were known to or had influenced the examiners in their decision-making. Indeed, two of the matters raised[126] reached into the past, and suggested that the plaintiff's complaint was in part that the College's examiners had been or appeared to have been biased against him over a protracted period. Before the hearing, however, the College's solicitors had defined as a matter for consideration by the Panel the question whether other information concerning the plaintiff was known to the examiners at the time of the examination and their decision - particularly with respect to Loughran's investigation;[127] and at the hearing the issue of what was called the "credentialing investigation" was said by the plaintiff's solicitor to be central to the review process. The highlighting of that issue, and what the plaintiff had allegedly been told by Professor Keks and Dr Tanaghow, evidently led on to the Panel's solicitor obtaining statements from those men and from three of the four particular examiners.
196 The plaintiff's case upon the issue of bias, particularly as it developed in correspondence and at the hearing on 13 April 2003, set the framework for the Panel's consideration of that issue. Concerning Loughran's enquiries, the plaintiff should be taken to have ultimately contended, as it seems to me, that the examiners either knew of such enquiries, which influenced them against the plaintiff and led to their decision to fail him; or else that the examiners knew of such enquiries and that this, together with the decision to fail him, in all the circumstances gave rise to reasonable apprehension of bias in the decision-making process. I doubt that he raised a third possible variant, that is, that reasonable apprehension of bias in the decision-making was to be discerned from the circumstances only that Loughran was making enquiries and that he had been failed.
197 So what the Panel had to consider, a propos Loughran's enquiries, was whether the examiners' decision had in fact been infected by bias against the plaintiff; or whether there was reasonable apprehension that the decision had been so affected. As the plaintiff ultimately put his case, in each instance the starting point was that the examiners knew about Loughran's enquiries, which were to do with matters reflecting unfavourably, in a professional setting, upon the plaintiff.
198 Upon the question of apprehended bias, and focussing upon the complaint raised against the plaintiff and Loughran' enquiries, the fair-minded layperson should be taken to have known that
"confirmed... that he did not discuss the investigation with any other member of the examinations branch or any of the examiners..."[129]
"when he [could] make statements directly so you [could] hear them and make submissions in relation to those."
Professor Ellis, immediately thereafter, had asked the plaintiff's solicitor whether he wished an adjournment. The plaintiff's solicitor had replied, in effect, that it all depended whether Loughran would answer substantive questions. The Panel's solicitor had then said that Loughran could
"certainly give evidence if you want as to who he told he spoke to about the credentialling exercise"
repeating thereafter his account of Loughran's instructions. The matter had been left on the agreed basis that statements would be sought from Professor Keks and Dr Tanaghow, after which the plaintiff's side be given opportunity to make final submissions; Professor Ellis also saying that the Panel would consider whether it needed further information from Loughran before reaching its decision.
199 To my mind the question whether in the circumstances described a fair-minded and informed lay-observer might reasonably apprehend that Panel members might not bring unprejudiced minds to deciding whether the examiners' decision was infected by actual bias or reasonable apprehension of bias because the examiners had been informed about Loughran's investigations is made difficult to answer not because of what Professors Ellis and Condon knew, but because of what they did not tell the plaintiff. I think that the fair-minded observer would reason this way:
200 The correct answer to the question just posed is not, I think, easily given. The issue is not whether in fact the reason for non-disclosure was innocent. In my opinion it probably was - the Panel thinking that the matters were irrelevant to its determination of the key issue framed for its consideration. But what of a fair-minded lay-observer, who would appreciate amongst other things that there was some inter-connection between the matters not disclosed and the question which the Panel had to decide? On balance, in my opinion, such an observer, though not unduly suspicious, might reasonably conclude that non-disclosure did colour the fact that matters which I have described were known to Panel members but not to the plaintiff - this leading on to a conclusion that reasonable apprehension of bias with respect to the question which the Panel had to decide had been made out.
201 That is enough to dispose of the apprehended bias point, assuming it could arise in this proceeding. I should add that in my opinion none of the other matters relied upon by the plaintiff should have yielded a conclusion favourable to him. In particular, for reasons described elsewhere, I think that there was nothing to the point that the plaintiff should be seen to have been denied an adequate opportunity to present material about the alleged incorrectness of the examiners' decision; or material concerning the alleged unfairness of, and the illogical and unsound basis for, that decision.
202 I turn to the matters relied upon by the plaintiff as demonstrating unfair procedures. Whilst superficially they substantially coincided with the matters relied upon as showing reasonable apprehension of bias, the coincidence was far from complete.
203 For the most part, I reject the submissions made by plaintiff's counsel as I have earlier noted them. I do, however, consider that the Panel should have disclosed that Dr Jenkins was formally the complainant. The Panel's failure to do so disabled the plaintiff from having something with which to challenge the reliability of the statements made by the examiners, Professor Keks and Dr Tanaghow.
204 It may properly be said, I consider, that the plaintiff had a very slim chance of breaking down the solid wall of denial that his particular examiners knew anything about Loughran's enquiries. Moreover, the mere fact that Dr Jenkins had been on the examiners' panel could have led nowhere unless at least it could be shown as a starting point that discussion about candidates at the examiners' meeting had been by name and that this had provided a forum for the doctor to publicise complaints raised against the plaintiff; or that, knowing the plaintiff was a candidate, she had publicised such complaints generally in advance of the clinical vivas. Each of those starting points for an argument, as with any attack directed to what the particular examiners knew, stood opposed to information provided to the Panel. Further, searching cross-examination at this trial of three of the plaintiff's particular examiners and of Professor Keks gave me no reason to believe that the plaintiff would have been able to make anything at the Panel review of the circumstance that Dr Jenkins had formally been the complainant.
205 The question, however, is whether in the circumstances any practical injustice was visited upon the plaintiff. In that context the focus is upon the fairness of the procedures adopted rather than the fairness of the outcome.[132]
206 In my opinion that the plaintiff has made out his case that in the present connection the procedure adopted worked a practical injustice. It is not to the point that the non-disclosure was, as I said earlier in respect of the apprehended bias argument, probably innocent.
207 Paragraph 5 of the originating motion is founded on an assumption that the Panel in fact decided that the examiner's decision was sound. It proposes that such a decision was not reasonably open on the material before the Panel, specifically identifying as pertinent material the examiners' feed-back sheet a copy of which was supplied to the Panel.
208 The issue raised, in my opinion, is hopeless from the plaintiff's standpoint. That is so for two reasons. First, the Panel did not decide, the matter not being before it, that the examiners' decision was sound. I have already set out the detail which leads to that conclusion. Second, the evidence has not persuaded me that the feedback sheet, viewed discretely, would have commanded a contrary conclusion. It does not detract from that conclusion that skilful cross-examination of the examiners, including cross-examination directed to their mark sheets - which were not before the Panel - might be said to have revealed flaws in the feedback sheet.
209 In her final submission, counsel for the plaintiff advanced a further, unparticularised matter in support of the proposition pleaded by paragraph 5. The Panel knew, she submitted, that the instigator of complaints against the plaintiff - Dr Jenkins - had been an examiner (though not of the plaintiff) on 23 October 2003. Knowing that circumstance, and without more, the Panel could not have concluded that the examiners' decision to fail the plaintiff was sound.[133]
210 Treating the unparticularised matter as being before the Court, I do not consider that it leads to paragraph 5 being made good. The question whether the examiners' decision was sound was not discretely in issue and was not decided by the Panel. It is not in point what impact the Panel's knowledge of Dr Jenkins' role as instigator of complaints against the plaintiff would or might have had if the soundness of the examiners' decision had been in point; although the secrecy which allegedly attended the identity of candidates might well mean that Dr Jenkins' roles as the instigator of complaints and as an examiner would not require, without more, a conclusion that the decision to fail the plaintiff was unsound.
211 Counsel for the defendants argued, in connection with the claim for judicial review, that even if the plaintiff overcame all other hurdles nonetheless he should be refused relief on discretionary grounds. The plaintiff, counsel noted, commenced this proceeding on 23 July 2004. That was within the period during which could have commenced an appeal. The right of appeal, counsel submitted, offered the plaintiff an equally convenient, beneficial and effective way of challenging the Panel's decision.[134] The available grounds of appeal were expansive.
212 Counsel for the plaintiff, in an outline filed shortly before trial, submitted that the availability of a further internal review process was no barrier to relief where the process did not provide merits review.[135] That is a somewhat different point, as is made clear by the authorities which she cited.[136]
213 In her final address counsel approached the matter differently. She submitted that:
214 Counsel also submitted at one stage that the available grounds of appeal were very limited. But she did not pursue that submission, and rightly so when comparing the grounds available under the 1995 and 2004 formulations.
215 In my opinion the defendants' submission ought be accepted, both upon the question of principle and its application in the circumstances of this case.
216 As to principle, there was in the end virtually no debate. It is true that each of Tooth and Lloyd involved a statutory regime which had not been exhausted; but that was not, as I read it, the necessary precondition for the operation of the principle.
217 As to the circumstances, the appeal process, albeit not statutorily conferred, would have permitted agitation of at least many of the matters debated before me. The appeal would not have been conducted before "another panel constituted by the same bunch of people".[138] The appeal would surely have been conducted more quickly and cheaply than the hearing before me. Had the plaintiff been disappointed by its outcome, resort to this Court might still have been possible. Again, whilst it is true that the plaintiff was not told by the College about there being a time limit for appeal, and whilst it is true that such time limit has now expired, it does not follow that the defendants should be precluded from pointing to a right of appeal having existed for a substantial period. In that connection it should be borne in mind that the plaintiff had previously sought to exercise a right of appeal; and that when the decision of the Panel went against him the solicitors for the College addressed his attention (and that of his solicitors) to possible further action.[139] Finally, assuming that the plaintiff and his solicitors had some reason to think that they had not been well served by the College and its solicitors in the period leading up to and continuing through the review, I think there was no reason on that account not to make use of the appeal process.
218 What I have said means that in the exercise of my discretion I would not grant certiorari in this matter even if the plaintiff had otherwise established his claim for judicial review.
219 Subject to one matter, the principles of particular relevance to consideration of the plaintiff's restraint of trade claims were not in dispute. Thus:
"Trade" does not mean trade in a narrow sense. It extends to a profession or calling.[143]
A restraint on trade is contrary to public policy and invalid unless it is reasonable. [144]
Where a restraint is applied it is for the defendant to show that it does no more than provide adequate protection. That is, the defendant carries the onus, it should not receive "the benefit of the doubt".[146]
220 The area of debate was this: According to the argument of counsel for the defendants, the non-admission of the plaintiff to Fellowship could not be a restraint of trade because it does not preclude the plaintiff from working as a psychiatrist. It does not prevent a medical practitioner from treating private patients or from exercising powers under the Mental Health Act. Neither does it prevent private patients recouping Medicare benefits in respect of attendance on a non-Fellow psychiatrist. The College, counsel submitted, does not control the only entry to the practice of psychiatry, although doctors may use that entry. The College is no more than a voluntary association whose membership is only limited by consideration of a person's qualifications and skills. Other agencies - the Health Insurance Commission, for instance - rely upon the College's assessment; but not exclusively. The College could not properly be described as the gatekeeper for the practice of psychiatry in Australia. Counsel contrasted the situation as he described it with the restraint considered by the High Court in Buckley v Tutty.[147]
221 Upon the question of principle, counsel for the plaintiff submitted that her client did not have to show that it was impossible for him to practice as a psychiatrist without being a Fellow; but rather that the restraint affected his livelihood. Many unrestricted rights to practice as a psychiatrist available to a Fellow were only accessible to the plaintiff by way of favourable exercises of discretion in restricted circumstances. That was enough to show that there was a restraint.
222 In my opinion authority shows that there may be a restraint without there being a total inhibition on activity. The passage in Buckley v Tutty that was relied upon by counsel for the defendants doubtfully supported by the proposition which he advanced. Again, in Adamson[148] the applicants could play with a club not of their choice. Further again, the use of cascading clauses, in which variables are set out as to the period and area of restraint and the activity restrained - clauses which are sometimes but not always given effect - is an illustration of a very similar principle at work. On the other hand, the circumstance that a restraint is less than total might be a matter which bears upon the question whether the restraint is reasonable.
223 It is true that the plaintiff has been able to practice as a psychiatrist, working in the public system, since at least 1994. It is also true that he has been able to work in the field of psychiatric education throughout that period. On the other hand, the evidence clearly showed that the areas in which the plaintiff can work as a psychiatrist are in substance limited, and at times subject to an exercise of discretion, in the event that he is not elected as a Fellow of the College. Thus:
The plaintiff must register annually with the Medical Practitioners' Board. If he was a Fellow, he would be eligible for general registration. To obtain annual registration it is necessary for him, in effect, to be sponsored by an employer.[151]
In October 2003 the Chief Psychiatrist advised Eastern Health, then the plaintiff's employer, that as a special exemption he would treat the plaintiff as being eligible to be appointed a delegate of the authorised psychiatrist at that entity until 18 March 2004. He later granted the plaintiff a "very special exemption for a further 6 month period, in response to the acute shortage of psychiatrists".
According to the Chief Psychiatrist, the plaintiff "is not a qualified psychiatrist for the purposes of the Act." He is not a Fellow of the College and he "does not have a higher degree in psychiatry from any country in the world that satisfies" necessary criteria.[152]
In consequence of the stance taken by the Chief Psychiatrist, the authorised psychiatrist at the plaintiff's present place of work could not delegate powers to the plaintiff even if he wished to do so. That situation is highly unlikely to alter given what the Chief Psychiatrist has said.
In the event, the work that the plaintiff can perform in the public system is the less, as is exemplified by his present contract of employment.[153] The plaintiff's inability to exercise powers, duties and functions under the Mental Health Act limits his employability more generally; and seems likely to inhibit his earnings in jobs that he is able to obtain. His present contract of employment probably illustrate the latter proposition.
224 The defendants relied upon evidence given by Ms Tan, an officer of the Health Insurance Commission, as showing that eligibility for a Medicare rebate in the event of private treatment by a psychiatrist does not depend on the psychiatrist being a Fellow of the College. In my opinion, however, the witness's evidence did not take the defendants very far. Recognition as a specialist or consultant psychiatrist under the Heath Insurance Act 1973 (Cwth) by a Minister's determination follows upon a recommendation of the Specialist Recognition Advisory Committee. The recommendation is made in response to a medical practitioner's request for recognition. Absent a "relevant postgraduate qualification", the applicant is advised to provide as much supporting documentation as possible. Then the opinion of the relevant College is sought. The witness could recall no instance involving a psychiatrist applicant where the advice of the College had not been sought.[155] The witness was aware of a Minister's determination favourable to an applicant where the College had recommended against it; but not of such a determination where the College had indicated that the applicant did not meet its (qualifying) criteria.[156]
225 All in all, Ms Tan's evidence suggested strongly that the plaintiff would be unlikely to gain specialist recognition, and thus the access of private patients to the Medicare rebate, unless the College intimated that he met its qualifying criteria. The prospect that it would do so is presently remote.
226 In summary, and as I shortly stated at [15], I consider that the fact that the plaintiff is not a Fellow of the College places a substantial restraint upon him engaging in practice as a psychiatrist. It does so both in the areas of private practice and public sector work.
227 The plaintiff, as I have said, focuses upon restraint at two points:
They must be separately considered, for the alleged restraints are said to be unreasonable for reasons which do not wholly coincide.
228 Paragraph 6 of the originating motion pleads that the decision to fail the plaintiff was an unreasonable restraint
229 In my opinion there could be nothing to the second matter relied upon. I have earlier noted that the Fellowships Board had power to exempt a trainee from "all or any aspects of the training and examination requirements except the Final Viva." It could do so of its own motion. But particular (f) to paragraph 6 of the originating motion does not address exemption. It proposes that the decision to fail the plaintiff was an unreasonable restraint of trade having regard, in effect, to his qualifications, experience and expertise. To my mind it would have been quite wrong for the examiners to have had regard to those circumstances so as to produce an outcome that the plaintiff passed the clinical viva if, approaching the matter in accordance with the documents entitled "Marking Guidelines for Clinical Examination" and "The Examiners' Task in the RANZP Clinical Examinations", the plaintiff's presentation dictated a failure. The evidence was consistent as to the importance of a training regime culminating in examinations.[157] Note also Professor Singh's evidence that, in his lengthy period of involvement as an examiner, it was rare for trainees to be exempted from the Section I clinical viva.[158]
230 I go, then, to the first of the matters relied upon by the plaintiff. It proposes, as I have said, that the decision to fail the plaintiff was an unreasonable restraint of trade in light of his examination performance when judged
231 Did the examiner's decision to fail the plaintiff restrain him from practising his profession? Certainly, except if he was exempted from a requirement to pass the clinical viva, the plaintiff could not be admitted as a Fellow unless he passed that examination. But the plaintiff's admission as a Fellow was not guaranteed if he did pass the examination.
232 The issue which arises is, I consider, one of substance. It is not to be avoided by reference to and reliance upon the practical working of the alleged restraint. It is a different issue, as I perceive it, to that which arises in the context of the reach of certiorari - as to which see Hot Holdings.[159]
233 In December 2003 the College advised the plaintiff that it was undertaking investigations "relating directly to [his] status and standing with the College."[160] In June 2004 the College's solicitors said, in effect, that the College might or might not take action in respect of matters which had been raised and which were the subject of continuing enquiry.[161]
Allegations concerning the plaintiff were considered by the Council at its 18-19 October 2003 meeting. They were not resolved. The plaintiff's case was stood over to the Council's meeting in May 2004.[163]
235 Further again, Loughran gave evidence that enquiries were continuing as at June 2004.[165]
236 In my opinion it could not be concluded that the examiners' decision to fail the plaintiff effected a restraint upon him comprehensively practising his profession as at October 2003 because it is certain, or nearly so, that the Council would not then have admitted him to Fellowship. It is also highly improbable that the Council would have admitted him to Fellowship at any time when investigations were continuing. The fact that the Medical Practitioners Board told the College on 2 April 2004[166] that the question whether the plaintiff had wrongly represented himself as a psychiatrist was outside the permissible area of its investigation does not mean that the College's investigations were at an end. The material shows the contrary to have been the case.
237 Beyond that, I think, the direct evidence did not go. Certainly there was no evidence that the plaintiff has been charged with any disciplinary offence. But neither was there evidence that enquiries had been concluded.
238 Given the uncertainties posed by the evidence, I will assume, but not conclude, that had the plaintiff passed the October 2003 clinical viva he would have been admitted as a Fellow sometime between June 2004 and the present date. It follows that I will assume that the plaintiff has made good a causal link between the examiners' decision to fail him and the restraint upon his practice of his profession.
239 That takes me to the plaintiff's contention that the restraint was unreasonable; and to the reasons advanced why that was so.
240 The contention is more complicated than it might seem at first blush. I have said that once a plaintiff shows that a restraint has been imposed, it is for the defendant to show that it is reasonable. The plaintiff pleads that the restraint was constituted by the decision to fail him. If that formulation is tenable, then the burden would lie on the College to show that the restraint thereby imposed was reasonable. On one view it could be said to be enough if the College established the reasonable need - in the interests of candidate, College and the public - that there be a process of training which culminated in examinations, a process which here culminated in the decision to fail the plaintiff. But such an approach would both sidestep the substance of the plaintiff's case and eliminate consideration of an approach which I consider was logically available. In those connections, the plaintiff did not deny the utility of the examination process. He rather contended that the process had miscarried, so that restraint - the ultimate cause of which was his non-election as a Fellow - was unreasonable because the more remote cause constituted by the examiners' decision to fail him on the clinical viva was itself unreasonable as being biased or otherwise unsound.
241 It follows from what I have said that (making the assumption of causal relationship to which I have referred) the question whether the plaintiff ought to have been failed does arise for consideration. There the College carries the onus of proof. In considering how the onus should work it is, in my opinion, necessary to distinguish between the allegation that the decision to fail the plaintiff was an unreasonable restraint of trade in light of his examination performance when judged without bias, and the allegations that the decision was unreasonable in light of his examination performance when judged "objectively" and "reasonably". The former allegation proposes, in effect, that the decision to fail the plaintiff was explicable only by bias on the part of the examiners. The latter allegations propose, in effect, that the decision to fail the plaintiff did not accord with the decision that ought to have been reached on an objective and/or reasonable evaluation of the plaintiff's performance.
242 The College would discharge the onus it bears in respect of the first allegation if it showed that the examiners were not biased in their assessment of the plaintiff. In respect of the latter allegations, however, the evidence disclosed clearly that there is room for legitimate differences of opinion - sometimes of very substantial extent - in the assessment by different examiners of the many aspects of a candidate's performance at a clinical viva. So, for example, examiners may respond differently to the emphasis played by a candidate on a particular aspect of the patient's history, or to a contradiction in the history taken by the candidate from a patient. Again, one examiner may be negatively influenced more than another by a candidate's perceived failure to identify a disorder co-existing with the main presenting condition, or by a perceived failure to tailor a patient's proposed management to that patient's particular circumstances.
243 Examining at a clinical viva, then, involves consideration in part of matters of weight and degree in respect of which there is surely a subjective element viewed from an examiner's perspective. It is not, contrast the case of a simple arithmetical test, an exercise which admits of an overall answer which is definitely right or definitely wrong. This impacts upon the plaintiff's contention that the decision to fail him was an unreasonable restraint of trade in light of his examination performance when judged "objectively" and "reasonably." I consider that the College would satisfy the burden cast upon it if it showed, bearing in mind the subjective element inherent in the examiners' work, that their decision to fail the plaintiff was within the available range of professionally permissible opinion. It would show, in such circumstances, that the decision to fail the plaintiff was not an unreasonable restraint of trade when the plaintiff's examination performance was judged "reasonably".
244 Next, in considering whether or not the College has satisfied the burden cast upon it, it is in my opinion necessary to bear in mind the circumstance that the precise content and flavour of what occurred as between candidate and examiners is very unlikely to be disclosed either by a participant's later recollection of events, or by notes compiled at the time. True it is that, for reasons which I earlier described, the examiners should have made notes which were reasonably comprehensive. But it is not sensible to believe either that the notes would be a transcript, or that the examiners' notes would be a replica one of the other. An examiner would be likely to note particularly something which he or she considered was of significance in a candidate's presentation. It follows, in my opinion, that I should be somewhat cautious before reaching a conclusion that some apparent omission in an examiner's note-taking means that the matter omitted was not considered by the examiner; or that some error in note-taking revealed by a painstaking analysis of materials reasonably calls into question an examiner's assessment of the plaintiff's examination performance.
245 In my opinion the College has showed that the examiners were not biased in their assessment of the plaintiff. In that connection I conclude, first, that Loughran did not communicate with the plaintiff's particular examiners about his investigations on or before 23 October 2003. That is what he swore; and each of the three examiners who gave evidence averred that they knew nothing of the investigation, and that they judged the plaintiff's performance on the merits. Dr Harvey did not give evidence. But it was common ground that she was overseas at the time of trial; and she had made a statement in 2004 along the same lines.
246 In my opinion there is no good reason not to accept the evidence of Loughran and the three examiners on this point. Loughran's evidence was not, I consider, accurate or reliable on all matters; but I do not consider that such inaccuracy or unreliability affects the accuracy and reliability of the particular aspect of his evidence now under consideration. Again, I am critical, as these reasons will show, of aspects of the performance of, and evidence given by, examiners. But again I do not consider that such criticism renders their evidence on that particular point unreliable. Standing back, to conclude to the contrary I would have to conclude that, upon a discrete point, admitting of no mistake, four people had lied on oath. I decline so to conclude.
247 Second concerning the question of bias, and bearing upon the knowledge of the particular examiners, Professor Keks denied, in a statement tendered to the Panel, that he had been aware of a College investigation into the plaintiff at the critical time; and denied telling the plaintiff that the same had been discussed between he and other examiners. He said also that he was not aware of any discussion by examiners about such an investigation.
248 Professor Keks gave viva voce evidence in the course of which he averred the truth of his statement.[167] He further explained that he had rung the plaintiff on 20 October 2003 to question him about his qualifications. He had done that after a meeting with Dr Tanaghow, the Chief Psychiatrist for Victoria, in which the latter had raised a question about those qualifications. The issue had emerged when Dr Tanaghow had been contacted by College members - not the College - after the plaintiff's appearance on the ABC "Compass" program.[168] The witness claimed that he had been much upset by the matter which was raised - because, he said, the plaintiff had repeatedly represented to him that he had a qualification which entitled him to practice psychiatry in a limited capacity in the United States.[169]
249 It is unnecessary to accept all of the detail of the evidence to which I have just referred. It is enough to say that, upon the points of denial mentioned by Professor Keks in his statement to the Panel, his viva voce evidence was in part unchallenged and in part not impugned. Moreover, it was supported by Dr Tanaghow's statement to the Panel.[170]
250 Third, it is the fact that Dr Jenkins, the investigator of complaints against the plaintiff in October 2003, was an examiner on 19 October. She did not give evidence. She is likely to have known that the plaintiff was a candidate. But the evidence is against a conclusion that she could have identified him by number; and it stands in favour of a conclusion that candidates were discussed by number at the examiner's meeting. The particular examiners - by statements, in three instances by confirmed viva voce evidence - said that they had heard nothing about any investigation of the plaintiff by the College at the critical time. I have accepted that evidence. So if Dr Jenkins spoke to any of the examiners about the plaintiff on 23 October, it was not to the plaintiff's particular examiners. Moreover, if she did speak to other examiners about the matter - there is no evidence that she did - the system of identifying candidates whose performance was discussed at the examiners' meeting would not have allowed the persons informed to give effect to any bias which what she told them might have caused them to hold against the plaintiff.
251 Fourth, there is no doubt that Dr O'Brien was a late replacement examiner. The plaintiff contended, in effect, that he had been picked out for examination by Dr O'Brien, that she had previously been disparaging of him, and that this pointed to pre-judgement, to a determination by the College to fail him.
252 The circumstances in which Dr O'Brien became an examiner of the plaintiff on 23 October were not made clear by the evidence.[171] Apparently a Dr Mary Frost withdrew at a late stage. That doctor did not give evidence. If there was some problem about her examining the plaintiff, she should have intimated that this was the situation earlier on.
253 It is next clear the Chairperson of the Committee did not, as a rule, participate as an examiner. The chairperson's role included leading the discussion about candidates at the examiners' meeting which followed clinical vivas; and for the chairperson to be an examiner created a potential for some conflict.[172] Nonetheless, it was not at all unknown for the chairperson to step into the breach.
254 I do not conclude that the fact that Dr O'Brien stepped in to examine the plaintiff was anything other than a conventional, if out of the ordinary, circumstance. I have already accepted her evidence that she did not know of Loughran's investigations at the time. Further, Professor Keks denied telling the plaintiff that Dr O'Brien had made a disparaging remark about him at a time antecedent to the clinical viva; and I do not think that Dr O'Brien was cross-examined to suggest either that she had in fact made such a remark or, if she had, that it reflected a bias against the plaintiff which she expressed by failing him on the clinical viva. In that connection note also her evidence that before she examined the plaintiff she had no personal knowledge of the plaintiff and was unaware that he had been a trainee for some time.[173]
255 It is the fact that Dr O'Brien personally graded the plaintiff's performance as a fail whereas Dr Reilly's personal grading was a "C". Further, I later conclude that Dr O'Brien's assessment of the plaintiff's performance was properly susceptible to criticism. Again, I have already concluded that Dr O'Brien played a dominant role in the decision to fail the plaintiff on his second presentation. But I do not conclude from those matters - assuming that it would be a permissible form of reasoning - that Dr O'Brien's conduct bespoke bias against the plaintiff.
256 Fifth, Professor Keks gave evidence that Professor Boyce, the president of the College, "appeared to express negative views about [the plaintiff's] tendencies to self promote" on an occasion prior to 10 March.[174] In my opinion such a remark, privately made, could not sensibly found a conclusion that the pertinent decision of the examiners to fail the plaintiff was the product of pre-judgement.
257 Sixth, I have said earlier that the College satisfactorily explained the circumstance that the plaintiff had been examined by the same doctor, before October 2003, on a number of occasions. No conclusion that pre-judgement was abroad in October 2003 could be founded upon that circumstance.
258 So much for bias. I will go in a moment to the evidence which pertained to the plaintiff's performance at the clinical viva. But before doing so it is necessary to describe what the examiners were looking for. In short, it was a presentation by a candidate which would have left the examiner content to put the care of the patient in the candidate's hands.[175]
259 That is not to imply that the examiners must have felt satisfied that the patient's care, if confided to the candidate, would be putting the patient into the hands of a senior consultant with many years' experience. Rather, the yardstick was the skill required of a junior consultant psychiatrist - this implying a person who had successfully undertaken the College's training course, a course, barring failures, of five years' duration.[176] The level of skill required was evidently greater than that required from a more junior trainee. Bear in mind that, as I noted earlier, clinical presentations were required of trainees well before the Section I clinical viva. No doubt a lesser degree of sophistication was required of clinical presentations earlier on in a trainee's course.
260 Another point requires mention. It is evident that examiners did not consider it enough for a candidate simply to diagnose a patient's principal presenting problem and then to outline pro-forma management for that condition. It was considered important for the candidate to identify a patient sufficiently in context as permitted development of a management plan suited to the particular patient.
"I certainly wouldn't disagree with Dr Farnbach that psychiatrists will disagree about diagnoses but in this instance it's not relevant. The primary diagnosis was identified by the candidate, it was not in dispute. What we are looking for in this examination is the candidate's ability to apply their clinical skills to managing the symptom complexes that impair the patient's functioning. Treatment of the primary diagnostic entity was not in dispute in this case but the candidate presented, identified, and to some extent discussed some other symptoms which were disabling the patient but could not then bring his mind to bear effectively on managing those particular aspects, that is the social anxiety aspects. Hence, that was one element led to his being failed.[177]
I do not mean to imply, by the passage just cited, that I accept Dr O'Brien's application of principle to the plaintiff's case. My purpose is rather to identify the approach in principle.
262 The evidence pertaining to the plaintiff's performance at the clinical viva was mainly of three kinds: evidence of the plaintiff; evidence of consultant psychiatrists who had seen the plaintiff at work and/or with whom he had discussed his performance at the clinical viva; and evidence of the examiners.
263 That said, there was a fourth body of evidence. It may be conveniently be mentioned at the outset. The plaintiff commenced training no later than 1994. His history, so far as examinations are concerned, was not impressive. It took him three attempts, as I read it, to pass the General Medical Examination. It took him two attempts to pass the Section I consultancy viva. He had attempted the Section I clinical viva on four occasions before May 2001 and May 2003, failing on each occasion. Out of eight patients examined, he had been awarded a pass in three instances and a fail in five. At his last examination before October 2003 he had been awarded two fails.[178] On the face of it, his performance at the clinical vivas was not improving with the passage of time, despite his increasing experience.
264 It might be said with some force that the plaintiff's history showed that, over a period of years, he had demonstrated persisting weakness at clinical vivas; and that this makes it more likely that the decision of the examiners to fail the plaintiff on 23 October was a decision within the available range of professional opinion. On the other hand, each patient must be considered a fresh problem; and it might be (as the plaintiff said in one instance was the case in October 2003) that particular patients would be particularly suited to a candidate.
265 All things considered, I have decided to disregard in the present context, to the plaintiff's advantage, an argument advanced on his behalf to the effect that he had been shown to be an accomplished psychiatrist but a poor examinee, who should therefore be exempted from the requirement of a clinical viva.[179]
266 I turn to the plaintiff's evidence. It had these threads:
267 I go next to the evidence of witnesses called for the plaintiff. Dr Perera is a very experienced consultant psychiatrist. At one stage he was the Chief Psychiatrist for Victoria. He has been a co-opted examiner for the College, most recently in 2003, and has supervised trainees. The plaintiff made clinical presentations to him in the course of preparing for clinical vivas.
268 Dr Perera was provided with the examiners' feedback sheet, a copy of the plaintiff's handwritten notes and a typeface document recording the plaintiff's account of discussions he had with Professor Keks and several senior Fellows.
269 Dr Perera noted that the feedback sheet provided by the examiners with respect to Case A made criticism that:
271 Concerning Case B, the doctor noted that the feedback sheet criticised the plaintiff as follows:
273 Cross-examined the doctor conceded the obvious: he had not been present when the plaintiff examined either patient, nor when the plaintiff made his presentations to the examiners. He only had the feedback sheet as evidence of what the plaintiff told the examiners. He hoped that examiners present at the time would be in a reasonably good position to exercise judgement whether a candidate passed or failed.
275 I have no doubt that Dr Perera attempted to give me a fair appraisal of the material with which he had been provided. But his evidence suffered from the fact that he was not present at relevant times and that he was dependent upon documentary fragments - particularly in the case of the feedback sheet - in forming his opinion. Moreover, in at least one respect his opinion did not squarely challenge a criticism made by the examiners, but rather suggested an available alternative approach -that is, what as an examiner he would have done in particular circumstances; whilst in another respect he hypothesised that an aspect of history recorded by the plaintiff - as to residual symptoms in the case of patient A - may have been reliable. All in all, I do not regard Dr Perera's evidence as much assisting the plaintiff's case.
276 Dr Peter Farnbach is a consultant psychiatrist who has on occasions obtained brief or informal advice from the plaintiff about patients with bipolar disorder, and had been himself consulted by the plaintiff in 2003 for an anxiety condition connected with the forthcoming clinical viva. It was suggested by counsel for the College in cross-examination that these matters put him into the plaintiff's camp. The witness did not agree; and consideration of his evidence has led me to confidently conclude that the doctor gave me a fair-minded and even-handed assessment of the examination process.
277 The doctor was provided with the same bundle of material as was provided to Dr Perera.
278 Concerning Case A, the doctor agreed with the plaintiff that it was generally hazardous to speculate on personality issues where there is an examination of limited duration of a patient with severe and longstanding bipolar disorder. He said, as did Dr Perera, that it would not be surprising that the patient had reported some residual symptoms. He could not understand, he said, one of the criticisms that the examiners made about the plaintiff's presentation in respect of that patient.
279 Concerning Case B, the doctor opined that in a patient with poorly controlled psychotic illness social isolation is most likely due to that condition and not to a primary anxiety disorder. It might be that the patient had symptoms reflecting the presence of the latter, but the same would be extremely difficult to identify.[183]
280 The doctor further opined, concerning Case B, that he personally would be surprised if there was a linkage between the divorce of the patient's parents and the onset of persistent psychotic illness. He noted the different histories which the plaintiff on the one hand and the examiners on the other had taken from the patient.
281 Cross-examined, the witness agreed that examination assessment required the application of professional judgement, judgement on which qualified professional people could disagree. Frequently he found himself in disagreement with other qualified psychiatrists on questions of diagnosis or treatment.[184]
282 In re-examination the doctor said that he was not saying that the examiners were wrong. They took a different view about matters not addressed by the plaintiff than he took. This reflected, he thought, the difficulties in psychiatry. He went on -
".... yes, a College Fellow could have a different view from an examiner because that's the nature of the field. There is a degree of subjectivity, there are different theoretical viewpoints, there's a whole range of issues why a College Fellow might differ from the view of an examiner. It's not a cut and dried."[185]
283 In my respectful opinion Dr Farnbach's evidence illustrated the difficulty there is in my concluding that the decision of the examiners was not reasonable. It is evident that he would not have criticised the plaintiff for some of the things for which the examiners - according to the feedback sheet - criticised him. But he acknowledged that there was a contrary, and legitimate, professional view. Further, the doctor evidently considered the examination process itself to be intrinsically flawed. Perhaps he was correct; but that is not an issue which arises in the present connection.
284 Professors Keks, called by the plaintiff, gave evidence that the plaintiff had been performing poorly in mock presentations in the period leading up to the October 2003 clinical viva. That evidence, though speaking of a different time, did not sit comfortably with the letter to the College dated 28 May 2003,[186] the accuracy of which he confirmed. In the event, I do not consider that such evidence, even if reliable, much assists, if at all, a conclusion whether the examiners' decisions in particular instances were outside the fair range of professional opinion.
285 Professor Bruce Singh is professor of psychiatry at the University of Melbourne. He is also the clinical director of Northwestern Mental Health. The plaintiff works in one of the services which Northwestern provides. Professor Singh described the plaintiff as "a competent psychiatric clinician". That casts little light, I consider, on the plaintiff's performance at the clinical viva. More than one witness said, in effect, that there is no necessary correlation between performance of day to day clinical work and examination performance.
286 The defendants called four witnesses in respect of the decision to fail the plaintiff. Three of them were particular examiners of the plaintiff. The fourth was Professor Kalucy. It is convenient to refer immediately to the evidence given by the last-mentioned witness. It will be recalled that he was one of the authors of the College publication entitled "The Examiners' Task in the RANZCP Clinical Examinations". He was another witness called at the trial, whether for the plaintiff or the defendants, who was a consultant psychiatrist of high standing.
287 Professor Kalucy provided his opinion, at the outset, essentially on the same material as had been supplied to Doctors Perera and Farnbach. But later he was supplied with the patients' case histories and the examiners' mark sheets.
288 Concerning Case A, the Professor reported, in the first instance, that it was conventional wisdom that a candidate should not make a diagnosis of personality (disorder) on the basis of a short interview; but that this did not exclude the possibility of discussing a patient's personality. Thus it was:
"usually possible to speculate or hypothesise or to conjecture to varying degrees of certainty about the likelihood the way the person under assessment would relate to assessment and on-going management proposals and to comment on varying degrees of certainty about such a conclusion."
"also possible to comment on the extent to which the illness itself exaggerates or minimises aspects of past personality attributes or present personality attributes in terms of likelihood, for example, of complying with follow-up needs, treatment needs, medication compliance and capacity to cope."
"important for the examiners to explore matters of personality."[187]
289 Further concerning Case A, the Professor said initially that the question whether the patient had been experiencing residual symptoms was of importance. The mental state examination was:
"usually regarded as the hallmark of the quality of a psychiatric assessment amongst of course other hallmarks and to get this actually wrong would be regarded as a significant error."[188]
290 Supplied with further materials concerning Case A, Professor Kalucy said that it was evident from the case history that the patient's problem was not one of bipolar affective disorder only. There were at least two important illness processes going on. The case was a complicated but not unusual one, which gave the candidate a "rich opportunity to demonstrate their accumulated experience and thinking".
291 Finally concerning Case A, the Professor expressed the opinion that he could:
"readily see how the two examiners arrived at an agreed F grade mark."
292 Concerning Case B, the Professor initially expressed the opinion that the plaintiff's asserted "failure to explore the role of social anxiety factors in the patient's social isolation", and his attribution of "the behaviours to the impact of hallucinations only" was a very important issue. It is, he said:
"common for patients with psychiatric disorders to experience anxiety and panic disorders which in turn result in social isolation independently of the psychotic disorder and which, independently lead to social isolation."
"this is a very important issue in treatment and management and in the trajectory of the patient in terms of disability and handicap."[189]
293 The Professor further said at the outset, concerning Case B, that he could "see why the examiners were concerned about" the alleged discrepancy in history. He explained why that was so.
294 Having reviewed the case summary, Professor Kalucy described Case B as involving a simpler problem than Case A, and as being one where social isolation was a particularly important issue.
295 Then, having read the examiners' mark sheets, he said that he had no doubt - assuming what was reported was accurate - that the assessment should be an F.
296 The witness was cross-examined to suggest, in effect, that the time permitted for presentation and examiners' questioning was so short that the plaintiff should not have been too readily criticised for not addressing subsidiary issues. The witness gave evidence, to the contrary, that a great deal can be conveyed in a short time.
297 Further cross-examined, the witness agreed that he had misstated the factual situation when he first commented on Case A.[190] Then, as to the history issue in Case B - that is, with whose identity the patient had associated auditory hallucinations - the witness agreed, in effect, that it was very improbable that the plaintiff would have lied about the history he took. The Professor said, however, that it was probable that the patient had given the plaintiff and the examiners the same history on 23 October, although agreeing that it was possible that the patient had given variant histories.[191]
298 Professor Kalucy, provided with more materials, was better equipped than Drs Perera and Farnbach to assess the basis upon which the examiners failed the plaintiff. Evidently, however, he was still removed from the immediacy of the plaintiff's examination of the patients and the plaintiff's presentations to the examiners. I would not conclude, in the event, that his evidence could be decisive of the question in issue. I do consider, however, that his evidence was useful in that it gave a clear explanation why an examiner might legitimately consider that matters which the plaintiff allegedly omitted to mention, or got wrong, required him to be failed. This is not to say that Professor Kalucy's opinion about the importance of those matters was necessarily correct. But it does support, I consider, Dr Farnbach's refusal, despite his personal opinion, to categorise the examiners' decision as wrong.
299 In the event, it appears to me that unless the examiners' criticisms of the plaintiff were shown to be factually incorrect or unless, possibly, the conduct of the examinations was shown to be significantly at odds with the guidelines published by the College, it would be very difficult to conclude that the decision to fail the plaintiff on each of Cases A and B was outside the range of reasonable professional opinion.
300 That said, I turn to the evidence of the examiners. Concerning Case A, it was given by Dr Hatcher, a Fellow of the College who first examined candidates in May 2003 and who has been a member of the Committee for Examinations since October that year.
301 In his report concerning the plaintiff's presentation on Case A[192] he made clear his incomplete recollection of the event. Nonetheless, he identified as major issues the patient's mental state examination as reported by the plaintiff and the plaintiff's failure to deal with inconsistencies and unusual aspects of the patient's history - these suggesting the presence of significant personality traits which would inform the management of the patient. He would have expected some comment on personality. The plaintiff had also been unable to explain unusual aspects of the patient's history within his understanding of the case.
302 The witness was very effectively cross-examined. So it was demonstrated that the reason why he moved from a personal grading of "C" to an agreed mark of "F" was not disclosed by his mark sheet. So also he agreed that his comment[193] that the plaintiff's report on the patient's mental state examination was inaccurate relied upon the examiners' examination of the patient - no note of the latter being made in the mark sheet. Again, he agreed that it is difficult to diagnose a personality disorder on just an hour's interview with the patient alone. Further again, he accepted that he had initially considered the plaintiff to have given a reasonable answer in explaining why the patient should be subject to a guardianship order.
303 Notwithstanding the concessions made by the witness, the College showed, in my opinion, that the examiners' decision to fail the plaintiff on Case A was well within the bounds of what was reasonable.
304 First, the examiners, having had the opportunity to examine the patient, concluded that the patient's report on the patient's mental state examination was inaccurate. It was not suggested that they fabricated the alleged inaccuracy. It was rather proposed, in effect, that it had been they who had got it wrong - by reference to an entry in the case summary. But I doubt that such entry cast light on the likely situation as at 23 October 2003.
305 Second, Dr Hatcher's concession that it is difficult to diagnose a personality disorder at a single interview with a patient does not mean that personality issues should not have been discussed by the plaintiff. They were relevant to management, the link being made by Dr Hatcher at page 5 of his mark sheet. Personality issues were raised in discussion with the plaintiff at several points - for example, in a question about the patient "running away".
306 Third, it is associated with the second point, absent analysis of personality issues it was the more likely, as the examiners said here occurred, that the plaintiff would provide only a pro forma plan of management.
307 Fourth, it is the fact that Dr Hatcher's mark sheet was an incomplete account of the plaintiff's presentation; and that it was in some respects ambiguous. But where does that lead?
308 The practice was, at the time, to destroy mark sheets after the examiners' meeting. Again, it appears that the particular examiners would orally report at examiners' meeting within hours of a candidate's presentation. These considerations, along with my earlier observations that it could not be expected that a mark sheet would be a transcript, and that it could be expected that note-taking by individual examiners would vary, could be called in aid of a conclusion that not too much should have been expected in a mark sheet. On the other hand, the particular examiners would have to explain and justify their decision to fail a candidate; and they were likely to have examined a number of candidates in the course of the day. All in all, it seems to me that it was at least highly desirable for particular examiners to note their mark sheets in a way that would explain their decision without the need for them to have recourse to recollection to fill in significant gaps. Remember also that the mark sheets were the source of the feedback to failed candidates.
309 Set in the context just described, I consider that Dr Hatcher's mark sheet may fairly be criticised; likewise the mark sheet compiled by Dr Harvey.[194] But the key question is whether the entirety of the evidence reveals such error on the examiners' part as to show that their decision to fail the plaintiff was unreasonable. The College has satisfied me, considering all the evidence, that such was not the case.
310 That is effectively the end of the plaintiff's restraint of trade claim based upon the decision to fail the plaintiff on the clinical viva, for he failed unless he obtained a pass in respect of both Case A and Case B. For sake of completeness, however, I should address the latter.
311 Case B, according to the case summary provided to the examiners, concerned a 34 year old man with a 12 year history of major psychosis. He had required multiple hospital admissions, most often because of non-compliance with treatment. One recurrent feature of the patient's presentation over the years had been hallucinations.
312 At examination on 8 October 2003, according to the case summary prepared for the examiners, the patient had reported "persistent auditory hallucinations, usually of his mother or sister"; although the UR Sheet appended to the summary referred to "ongoing auditory hallucinations (especially of mother and family)"; and to "constant voices (especially of family members)".
313 At several points in the case summary the patient's social isolation was noted. Reference was also made to potential difficulties for the examining candidate: that the patient might minimise his symptoms, be guarded in his history, or become anxious.
314 According to Dr O'Brien's letter to the defendants' solicitors dated 3 March 2005[195] "there was a major discrepancy in the information provided by the candidate and the proforma". For that reason "the patient was seen again and the information checked". The plaintiff:
"stated that the patient had an ongoing and satisfactory relationship with his father which was incorrect and inconsistent with the other data presented by the candidate on the father."
315 Further according to Dr O'Brien, the plaintiff failed to assess the individual patient and tailor interventions appropriately. He did not adequately explore aspects important to the particular patient. Thus -
316 Most, not all, of the criticisms of the plaintiff's presentation noted by Dr O'Brien in her letter of 3 March 2005, and in the feedback sheet (which she compiled and then edited) related to the patient's relationship which his father.
317 When cross-examined, Dr O'Brien adopted a markedly antagonistic approach. She dismissed, as I said earlier, criticisms that by failing to record personal, agreed and final marks on her mark sheet she created a document that was opaque. She recreated the sequence of events leading to the decision to fail the plaintiff by liberal use of "would have" evidence; and then improbably asserted that she used that form of language to record the fact of what had occurred.[196] She attempted to find support for her criticisms of the plaintiff's presentation in her mark sheet - on several occasions by a tortured interpretation of what was written there;[197] but resorted, most often, to her recollection as the source of the substance of what it was that gave rise to her criticisms of the plaintiff[198]. Overall, I think, she showed a willingness to accept the reliability of the case summary when it suited her thesis; and a readiness to reject it in the opposite circumstances.[199]
318 Within the above summation lies the material for my conclusion that Dr O'Brien's evidence as to the nature and extent of disparity between the patient's history as recounted by the plaintiff and as she obtained it was markedly overstated. There was very little material in the doctor's notes as would suggest that the plaintiff reported a history given by the patient of much contact with his father in the years since his parents' separation. There was nothing in her notes as would support the assertion, made by the feedback sheet, that "the candidate maintained both in initial presentation and on detailed questioning from the examiner that the patient had a relationship with his father which was satisfactory". Indeed, her notes record a history taken by the plaintiff of anger felt by the patient at one stage towards his father.
319 The doctor agreed that her draft of the feedback sheet had been amended in one respect. As handwritten, it commenced by saying:
"The candidate gave a reasonably accurate history..."
As amended by her about a fortnight later, it commenced this way:
"The candidate gave a reasonably concise history..."
320 The change was evidently necessary, for it was alleged inaccuracy in history-taking which was important to the plaintiff being failed on Case B. The initial draft of the feedback sheet certainly contained an internal tension.
321 Dr Reilly, the co-opted examiner, reported by letter dated 1 March 2005[200] that by his recollection the plaintiff:
"Gave a very reasonable explanation, within the appropriate time, addressing various syndromes and giving an adequate summary of psychiatric and personal history. However, when asked to explore particular areas in more detail he tended to flounder and be rather imprecise. He had not adequately considered risk and when these issued were followed up further with him he tended to minimise risk issues rather than to be prepared to consider them and develop appropriate plans for their further assessment and management. He also did not adequately assess the patient's social situation."
"My recollection of the particular reasons for failing Dr D'Souza was concern about his inadequate risk assessment and his apparent attempt to cover up a failure in his history taking which had significant implications in regard to risk. It appeared that he had not specifically explored the risk to the patient's father of the patient's delusions and hallucinations, however he minimised this by stating that in fact the patient was having contact with his father. He appeared to construct a set of false statements about the relationship with the father rather than acknowledging that he had not addressed the issue and considering its importance. I recall that I had not been as clear about this discrepancy as my co-examiner Dr O'Brien was in our discussion after completing the examination. This resulted in our decision to move to a D for discussion, which made me comfortable with moving from a D at the Examiners Meeting."
"... the key issues in failing Dr D'Souza to me were not the patient's social isolation and its management, although that was a concern, but Dr D'Souza's failure to have performed an adequate and detailed history and attempts to cover this rather than acknowledge it, particularly given the risk issues associated with the patient's symptoms, in conjunction with a general vagueness of presentation."
322 This may be noted immediately: The history recounted by the plaintiff of the patient's relationship with his father was apparently the matter of principal importance to Dr Reilly - as impacting upon the risk to the father arising from the patient's delusions. That may be contrasted with the matter which Dr O'Brien said was significant about the plaintiff's alleged failure to take a reliable history concerning the patient's relationship with his father.
323 This also may be noted immediately: The second passage cited above from Dr Reilly's letter is open to fair criticism on two scores. First, there is apparent circularity in its reasoning. Second, it appears to suggest - though Dr Reilly in substance disclaimed any such suggestion in his viva voce evidence - that the plaintiff deliberately fabricated the content of answers which he gave to examiners' questions in order to cover up a weakness in his presentation. I am not at all persuaded, on consideration of all the evidence, that the plaintiff engaged in fabrication at all, let alone for such a reason.
324 Dr Reilly gave viva voce evidence. Its effect was to underline the fact that his concern was that the plaintiff had not recognised the risk flowing from the patient's attribution of auditory hallucinations to his father - that is, the risk that the patient would attempt to do his father harm.
325 What is not clear to me is in what respect, if at all, Dr Reilly concluded that the plaintiff had not taken an accurate history from the patient concerning the latter's father.[201] If the doctor's criticism was that the plaintiff had taken or had claimed to have taken a history that the patient was in contact with his father, then it can be said that very little, if anything, in his notes hinted at such a history. [202] But if the doctor's criticism was that the plaintiff had minimised the extent of risk to the patient's father by mentioning comments by the patient that he would not hurt a fly, and that although he felt angry with his father he was related to him, then no question of a wrong history arose. The same comment would apply if Dr Reilly's criticism was that the history taken by the plaintiff had minimised the extent of conflict within the family, this bearing upon risk to the father.[203]
326 In the event, there is reason to doubt that the alleged flaw in the plaintiff's presentation which Dr O'Brien emphasised was the flaw which Dr Reilly considered to be critical; and yet, according to paragraph numbered 3 of Dr Reilly's letter of 1 March 2005, it was Dr O'Brien, as he recalled it, who had illuminated the critical flaw as he described it.
327 If it was clear that the decisive consideration in the decision to fail the plaintiff on Case B was that the patient had given a history of experiencing auditory hallucinations involving his father, that this put the patient's father at risk of harm, and that the plaintiff had sought to minimise the risk, as it seemed, by calling in aid particular statements made by the patient, then I would readily conclude that the College had shown such decision to be within the boundaries of reasonableness. But the evidence did not make that matter clear. In the end, the central reason why the plaintiff was failed was left uncertain; as was the question whether there was common ground between the examiners in their decision to fail the plaintiff.
328 I should add two things. First, if the decision to fail the plaintiff had particularly fastened upon a supposed discrepancy between the patient's history as noted by the plaintiff and the history provided to the examiners, it would be a moot point whether - in circumstances where the asserted discrepancy was not put to the plaintiff for his comment - it was reasonable to fail the plaintiff. That was particularly the case when, as the examiners knew, the case summary at the least hinted at the patient's unreliability as an historian.[204]
329 Second, in the mark sheets, the feedback sheet, the letters of 1 and 3 March and their viva voce evidence the examiners noted other defects in the plaintiff's presentation. These included his alleged failure to adequately explore the extent and causation of the patient's social isolation; and his tendency to be vague and discursive in answers. There is potentially a question whether a decision to fail the plaintiff on those grounds alone would have been reasonable - that is, assuming that the plaintiff's presentation was defective in those ways. I say "would have" because it is at least clear that the examiners did not decide that the plaintiff failed by reason of those matters alone.
330 The evidence does not persuade me that the plaintiff would have been failed by reason of such matters. Paragraphs 3 and 5 of Dr Reilly's letter show that the social isolation issue - which I take to be the most important of those other matters - did not in fact operate in his decision-making. That stands in favour of my conclusion. It is, of course, possible that Dr Reilly could have been persuaded to a different view by Dr O'Brien; but her evidence did not suggest that she would have pressed for a decision to fail the plaintiff because of that (assumed) defect in his presentation. In the event, I consider that the question whether a decision to fail the plaintiff would have been reasonable if grounded in reference to that matter and/or to other defects in presentation which were mentioned in passing does not in truth arise.
The College's continuing "refusal" to elect the plaintiff
331 In my opinion the College plainly demonstrated that there has been nothing unreasonable in its continuing "refusal" - or failure - to elect the plaintiff as a Fellow.
332 Absent training and success at examinations (or exemption from all or some aspects of training and examinations), the only way that the plaintiff could have attained fellowship was as an Honorary or Corresponding Fellow. The burden of the evidence, as I have already said,[205] was that the plaintiff would not qualify for election as an Honorary Fellow. The evidence also showed that the plaintiff has never sought election as a Corresponding Fellow. I have earlier remarked[206] that it could not be suggested - and it was not - that the College has been in default by not itself initiating a proposal that the plaintiff be elected as such a Fellow.
333 In respect of Corresponding Fellowship I add two things: first, it is doubtful whether the plaintiff would in any event qualify for election as such a Fellow. One of the criteria is that the candidate must either be "not eligible or unlikely in the opinion of the ... Council to become [a candidate] for ... fellowship". What stands between the plaintiff and qualification as a candidate for election to fellowship is the examination which, by operation of the 2003 Training Regulations, has replaced the clinical viva. It is an examination, different to the clinical viva, which the plaintiff has applied to sit. It would be difficult for the Council to conclude, I think, that the plaintiff would be unlikely to become a candidate for fellowship.
334 Second, it would seem to me to be an odd use of the ability to elect a person as a Corresponding Fellow that it was used to elect a person who had embarked upon the training and examinations path to fellowship, had not thus far succeeded in his or her endeavours, and had not yet abandoned such endeavours. That, factually, is the plaintiff's position.
335 It follows from what I have said that the College could not be said to have unreasonably refused to admit the plaintiff to fellowship via the category either of Honorary or Corresponding Fellowship.
336 It is next clear that the plaintiff has not in fact qualified for election as a Fellow by the regime of training and examinations. Having not satisfied those pre-conditions to election there could be nothing unreasonable - subject to consideration of one argument - in the College acting consonantly with its own articles of association.
337 The argument is this: It was contended for the plaintiff that in all the circumstances the College should have acted unilaterally to waive the requirement that he successfully complete the clinical viva. It was an unreasonable restraint of trade for the College not to have done so.
338 Under the 2002 by-laws the Fellowships Board had a discretion to exempt a candidate
"from any or all aspects of the training and examination requirements except the final viva."
339 Under the 2003 Training Regulations, the Fellowships Board was empowered to exempt a candidate
"... from any or all aspects of the training and assessment requirements..."
340 The Fellowships Board has had power, then, to exempt the plaintiff from any or all of the training/examination/assessment requirements which have from time to time applied to him. According to counsel's submission, in substance, it has been an unreasonable restraint for the College - acting through the Fellowships Board - not to have exempted the plaintiff from that part of the training regime which is presently incomplete.
341 Central to the plaintiff's case in the present connection was the proposition that the evidence showed the plaintiff to be an experienced and competent clinician, as would be expected from a man with his qualifications, experience and particular expertise - expertise recognised by the College itself.
342 Then, ran the argument, the plaintiff's failures in the clinical viva must be understood to reflect only poor examination technique, not want of competence. That was a reason for the College to not deny him the ability to practise his profession without inhibition; the more so when there has been and remains a chronic shortage of specialist psychiatrists in Australia. Further again, if the plaintiff was now to attempt to complete the training and assessment regime he would be at a disadvantage because the regime changed when the 2003 Training Regulations came into operation.
343 I have referred already to some of the objects of the College.[207] They emphasise its position as a guardian of high standards in the practice of psychiatry; and to that end, as an educator. The 2002 by-laws and the 2003 Training Regulations show the detail of training and assessment regimes the purpose of which surely has been, and is, to produce highly-skilled practitioners who have undergone a wealth of clinical experiences, tested by examinations or by other forms of assessment, before qualifying for election to Fellowship.
344 In my opinion the action of the College in devising and implementing successive training and assessment regimes has been much in the interest of trainee psychiatrists and the wider community, as well as being in conformity with its own interest in adhering to objects set out in its Memorandum of Association. It is evidently in the interest of trainee psychiatrists that they should not have the ability to practise their profession in an uninhibited way until a long course of study and assessment has demonstrated their likely ability to do so. It is evidently in the interest of prospective patients that their assessment and treatment be carried out by appropriately skilled practitioners. It is in the interest of the broad community that persons with mental illness are appropriately assessed and treated. It is in the interest of the entire community that the public purse, via the Medicare rebate, is not depleted to pay for assessment and treatment of persons with mental illness by psychiatrists who lack the necessary skills. The fact that there has been and is a shortage of specialist psychiatrists in Australia does not detract from those conclusions.
345 The fact remains, however, that under both the past and present training regimes there has been a discretion to exempt a candidate from any or all of the stipulated training and assessment requirements.[208] The existence of the discretion shows that the Council must have considered that key objects would not be compromised if a candidate - in unspecified circumstances - was not required to adhere to the training regime then operative; for it cannot be supposed that the discretions were created on the footing that they could have no operation consistent with the objects of the College.
346 Professor Singh gave evidence that exemptions were often sought in the period when he was Chairman of the Fellowships Board. He had chaired an Exemption Sub-Committee. Asked about exemption from the clinical viva, he said this:
"Exemptions could take many forms because the exam had many components. There was training, there was written, two papers, and then there was day one and at that time there was a day two. In general it was rare for people to be exempted the day one clinical. For experienced clinicians who had worked as consultants in either other countries or in Australia, we brought in during the time that I was there, the so-called special day one viva for consultants like that which was run separately and had a somewhat different format than the ordinary day one. But exemptions were dealt with on a case by case basis, depending upon the person's training, what qualification they had, what experience they had had previously or since their qualification, both in their own country in some instances as well as in this one. We would decide on the basis of that what the nature of the exemptions would be but it was rare, except for senior and highly well-known psychiatrists coming from another country, for people to be exempted day one."[209]
347 Professor Ellis also addressed the question of exemptions. Thus -
"So far as you know, notwithstanding Dr D'Souza's qualifications and experience from the College's perspective he remains in a category where the College insists he pass the clinical viva, is that right? --- Yes. The College has very limited pathways by which to grant Fellowship without examination and I'm sure you are aware of those.
The College, I suggest to you, Professor Ellis, has decided to adopt limited pathways to proceed to Fellowship in the absence of completing a clinical viva, that's the position, isn't it? --- And those regulations have been approved by the Australian Medical Council, yes.
So far as you are aware, the College has never exempted anyone from the clinical viva on the basis that their performance in an examination may not accurately reflect their clinical skills in practice? --- Certainly not to the best of my knowledge."
"To sum it up, the College's position is that candidates must simply pass the exam on the day; that's the basic position, isn't it? --- The College has a process by which people with overseas training of particular levels may be exempt from some parts of the examination process. There are certain categories of people who are internationally distinguished and senior who may be awarded Fellowship without examination and somebody who holds the Fellowship of the British College of Psychiatrists, following a relatively informal viva, may proceed directly to Fellowship with the assent of general council. If there has been a miscarriage in an examination, steps are taken to facilitate early resitting of that exam. However, we had not had previously to consider an allegation of bias in the examination process and so there is no precedent to guide what might be possible.
If the evidence in this case shows that what Dr D'Souza's been doing for the last five years is that he's been performing perfectly competently and without complaint as a clinical psychiatrist, don't you agree that may be the better evidence of him having the appropriate clinical skills to satisfy Fellowship requirements? --- The College's position is that it is necessary to be able to report to the Australian Medical Council and to advertise to the public that somebody has reached a particular standard by requiring them to meet that standard, both in an examination and in a number of training settings and it is difficult to standardise and reliably evaluate solely in-service training experiences.[210]
348 The gist of the pertinent evidence given by Professors Singh and Ellis was that in the past a basis for exemption has been discerned in cases of persons with overseas consultant qualifications; but that even then exemption has been partial. The further evidence of Professor Ellis was that possible poor examination skills have not in his experience been recognised as a basis for exemption. Nor has clinical experience without adverse comment been so recognised, because of the difficulty there would be in evaluating in-house experience from one trainee to another.
349 The plaintiff does not have overseas consultancy qualifications. His argument that he should have been exempted from the requirement to complete the clinical viva or its 2003 replacement rested significantly upon his contention, in effect, that his examination failures could only be explained by poor technique, because his clinical skills were manifest.
350 In my opinion the College could not be said to have acted unreasonably by not taking (through the Fellowships Board) a unilateral decision to exempt the plaintiff from the clinical viva or its successor. Even if it was the fact that the plaintiff's failures could be ascribed to poor examination technique, why should the College have fixed upon that explanation in the absence of some assertion by the plaintiff that such was the case?
351 Further, at least absent some representation by the plaintiff, why should the College have decided to add a new and possibly unpredictable class of circumstances to those in respect of which exemption might be granted?
352 Again, at least in the absence of some representation by the plaintiff, why should the College have concluded that the plaintiff's clinical work showed that he was able to work to a consultant's standard?
353 Further again, the plaintiff's asserted expertise in particular areas of psychiatry was said to have been demonstrated to a substantial degree by publication of papers and presentations at symposia. Any expertise which was demonstrated in such a way did not necessarily show, I consider, that the plaintiff was equipped to practice as a consultant in psychiatry.
354 Remember also that, having failed the October 2003 clinical viva, the plaintiff applied to sit the examination which replaced it in 2004. The only reason that he did not sit the examination was that he suffered an injury. It is difficult to see why, when the plaintiff had committed himself to the examination process, the College should then have exempted him from it.
355 I go to the plaintiff's contention that the changes in regime effected by the 2003 Training Regulations made it unreasonable for the College not to exempt him from the examination and assessment which replaced the clinical viva.
356 The new regime was and is markedly different to that which it replaced. The essence of the changes is that the two patient examinations of the clinical viva have been replaced by an Observed Clinical Interview ("OCI") and an Observed Structured Clinical Examination ("OSCE").
357 The OCI is a variant of the old clinical viva patient examination which seems likely to be fairer to candidates.
358 The OSCE is where the main differences arise. Ronald Hunt, the present director of Education of the College, described it this way:
"OSCE... is an integrated assessment task using simulated patients (actors) involving any aspect of primary, secondary or tertiary consultation relevant to the practice of psychiatry. This part of the clinical examination consists of a mult-station assessment using six scenarios at between six to nine stations. Trainees spend 20 minutes at each station and are assessed on various areas of clinical competence. These areas fall under the following broad headings:
(a) reasoning, skills and attitudes in assessment and management tasks of patients with a range of psychiatric disorders across the age spectrum;
(b) professional attitudes and capability in relation to patients, carers, individuals and groups;
(c) the practice of general medicine as it relates to psychiatry;
(d) the application of basic sciences relevant to the psychiatric practice;
(e) communication, relatedness and leadership in the multidisciplinary team; and
(f) communication relatedness and leadership in the community."[211]
359 A further change is that the OCI and OSCE are marked cumulatively. It is possible to fail one or the other and yet not fail overall. Under the clinical viva regime, by contrast, failure on presentation in respect of either patient was fatal.
360 The plaintiff deposed in his first affidavit[212] that the change in regime meant that he would "also be required to undertake other components of the examination which" he had "already satisfied". In his second affidavit he deposed that he believed that he would be required to re-sit the General Medical Examination, which he had already passed; that he was unfamiliar with the new structure; that he had passed the consultancy viva, which had now been discontinued; that he had been unsuccessful in obtaining a training position which would fit him to undertake the new examination/assessment regime; and that the College had experienced difficulties in implementing the new regime.[213]
361 I doubt, speaking generally, that a change in regime which must have affected not only the plaintiff but any other candidate who had sat and failed the clinical viva should provide a basis for exempting the plaintiff from undertaking the requirements of that new regime.
362 Further than that, it appears to me that in a number of respects the plaintiff's concerns about unfairness to him of the new regime were unjustified. First, as I have already remarked, the OCI procedure seems likely to be fairer to a candidate than the clinical viva procedure. Second, it is not the case that the plaintiff will be deprived of the value of his pass in the General Medical Examination. That examination is not a part of the new regime. Instead there is a "Medical Station" as part of the OSCE. A candidate who has previously passed the General Medical Examination will be given a pass on that station whatever the candidate's actual performance.[214] Third, whatever difficulties the College had experienced implementing the new regime, it had accepted the plaintiff's application to sit the new examination/assessment in October 2004. Only the plaintiff's ill-health prevented him sitting.[215] Fourth, the plaintiff's evidence that he had not been successful in obtaining a training position - by which he meant a training program that would fit him to undertake the new examinations - was tempered by his evidence that he had made limited enquiry about the availability of such programs.[216] Fifth, OCI and OSCE are cumulatively intended to replace the clinical viva. True it is that the plaintiff, if he sits the new exams, will not get any credit for having passed the consultancy viva under the old regime. But nothing has been erected in its place.
363 In the event, both as a matter of general approach and by reference to the particular express concerns of the plaintiff, the College has persuaded me that introduction of the new examination regime does not make it unreasonable that the plaintiff be required to sit, rather than being exempted from, OCI and OSCE. [217]
364 The decision of the Panel was not amenable to judicial review. Had it been so amenable, attack on the ground of apprehended bias would not have been available. Had the decision been amenable to judicial review, and had the ground of apprehended bias been available, the plaintiff would have made out such ground. He would also have made out an attack based on unfair procedures. In each instance the attack would have succeeded on a fairly narrow footing. In the exercise of my discretion, however, I would not have made an order in the nature of certiorari.
365 The plaintiff has failed to establish either of his claims founded on alleged unreasonable restraint of trade. That is so even though the defendants failed to establish that it was reasonable to fail the plaintiff on one of the two clinical viva presentations.
366 There should be judgment for the defendants. I noted earlier the submission of counsel for the plaintiff that the Court was able to grant a declaration even if it refused to grant certiorari. Without considering whether the Court could possibly exercise such a power in the circumstances of this case, in the exercise of my discretion I would not grant such relief. There would be no useful purpose in my doing so. I add that to the extent that I have reached conclusions favourable to the plaintiff, my Reasons sufficiently reveal those conclusions.
D'Souza
Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161
(1994) 54 FCR 350
(1979) 143 CLR 242
(2003) 77 ALJR 1263
(2002) 55 NSWLR 381
(1991) 31 FLR 242
(1996) 185 CLR 149
(1979) 28 ALR 219
(1985) 75 FLR 91
(1995) 57 FCR 252
(1995) 183 CLR 245
(1992) 35 FCR 506
(2003) 214 CLR 1
(2001) 179 ALR 425
(2000) 205 CLR 337
(1985) 156 CLR 342
(1955) 97 CLR 492
(1999) 48 NSWLR 161
(1992) 175 CLR 564
(1971) 125 CLR 353
(1986) 10 FCR 10
(2001) 181 ALR 337
(1972) 126 CLR 449
(1991) 31 FCR 242