Plaintiff v First Defendant Second Defendant Third Defendant Fourth Defendant

Supreme Court of Victoria|2005-05-18|Before: Ashley, J

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.

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 Panel did not exercise the review jurisdiction with which it was invested[3].
The defendants denied the plaintiff natural justice in that there was reasonable apprehension of bias on the part of the Panel[4].

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:

Doctor of Medicine (Madras University, 1987)
Graduate Diploma in Mental Health Science (University of Melbourne 1992)
Master of Psychological Medicine (Monash University 1999)
1. Senior Disability Analyst (Psychiatry) and Diplomate[8]

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:

Trainee Psychiatrist, Glenside Hospital, Eastwood, South Australia: February 1994 - January 1995.
Psychiatric Registrar, Community Mental Health Centre, Noarlunga, South Australia: February 1995 - August 1995.
Psychiatric Registrar, Flinders Medical Centre, South Australia: August 1995 - February 1996.
Psychiatric Registrar "Third Year PG Student", Monash Medical Centre: February 1996 - February 1997.
Senior Registrar in Psychological Medicine, Monash Medical Centre, Melbourne: February - August 1997.
Senior Psychiatric (?)Registrar, Rural and Remote Mental Health of South Australia, Glenside Hospital (?)Eastwood, South Australia: September 1997 - April 2000.
Deputy Medical Superintendent, Department of Psychiatry, Staff Specialist in Psychiatry, Broken Hill Base Hospital, Broken Hill, NSW: January 2000 - May 2002.
Senior Research Fellow, Mental Health Research Institute, Parkville, Melbourne: March 2002 - March 2004.
Coordinating Consultant Psychiatrist, Continuing Care Psychiatric Program, Central East Area Mental Health Service, Box Hill: March 2002 - August 2004.
Senior Medical Officer and Director of Clinical Trials, Northern Area Mental Health, Northern Hospital, Epping, Vic: August 2004 - date.

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

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

Appointment as an approved College trainee.
First year assessment (after 6 - 9 months).
Rotations and experiences and the submission of case histories over an approximate two year period.
Demonstration of Competency in General Medicine (in third year of training), leading to issue of Certificate of Eligibility for Section I examination.
Section I examination (at end of fourth year of training).
Section II examination (at end of fifth year of training).
A final viva.

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

the history obtained from the patient;
findings on mental state examination;
a formulation; and
a diagnostic statement.

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:

"History.
Mental State Examination.
Formulation.
Diagnosis.
Discussion with First Examiner.
Management.
Discussion with Second Examiner.
Strengths and Weaknesses of the Presentation.
Examiner's Conclusions and Reasons for Given Mark for Feedback in the Examiners' Meeting and the Candidate (to be recorded for candidates who have failed)."

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."

85 At a meeting held on 8 - 9 May 2004 the Council resolved to amend the Appeals by-laws[44]. It also resolved to approve a document entitled "The RANZCP Appeals Process"("The 2004 Appeals document").[45] The Appeals by-laws specify that they are to be read in conjunction with that document.

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:

They exercise public functions and powers; or
The powers they exercise and the functions they discharge have public consequences.

Either circumstance was enough, counsel submitted to make the decision of a body amenable to judicial review.

100 Counsel cited, in support of those submissions, R v Panel on Take-Overs and Mergers,[51] Typing Centre of New South Wales v Toose and ors[52], Dorf Industries Pty Ltd and anor v Toose and ors[53] and Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd and anor[54].

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:

The College's reason for existence relates to the health profession. Access to mental health services is a key public health function.
Fellowship affects the ability of a medical practitioner to practice as a psychiatrist. It therefore affects the access of the public to mental health services. Denial of Fellowship has a public consequence, a fortiori because there is a shortage of (specialist) psychiatrists.
Fellowship gives a right to specialist recognition under Commonwealth law.
Fellowship gives a right to specialist registration at State level; and to recognition for appointment as a qualified psychiatrist under the Mental Health Act.
Speaking practically, Commonwealth and State law give the College the role of regulator of the practise of psychiatry.
The College promotes itself as arbiter and gatekeeper of those who meet the standards for the practise of psychiatry in Australia. Its role is accepted by the Commonwealth and State governments.
1. "This is about how many people are able to give treatment to health patients in Australia;"[56] archetypically a function with public consequence.
2. Although the order sought was that the decision of Panel be quashed - and so was directed to the Panel and not the College - the functions, powers of the College were in point because the Panel had acted in pursuance of such functions and powers.[57]

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."

110 In Australia, as I understand it, Datafin has yet to receive endorsement by the High Court.[70] But in some cases it has been relied upon and in other cases cited (whether directly or indirectly) by intermediate courts of appeal and superior courts at first instance.[71]

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.

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Cases Cited (23)