Section 6(3) - Was the examination condition reasonable?
59 The primary judge considered various reasons why the examination condition should not have been waived by the College and various factors going to the effect of the application of the condition upon Dr Sklavos. Before concluding (at [204]) that she was "satisfied that the College has established that its examination requirement, as it applied and applies to Dr Sklavos, was and is reasonable having regard to the circumstances of the case", the primary judge said this (at [203]):
Against this, all of the reasons against the waiver of the examination requirement identified above must be measured. Given those matters, it cannot be concluded that the College's insistence that all Australian trainees (and some international dermatologists) pass its final examinations is a matter of mere convenience. The examination requirement has an obvious logical and understandable basis. In fact, as at 2012 (and today) the requirement was close to a necessity because it was (and is) the only method the College had to satisfy itself of a trainee's competence without the College (and the AMC) undertaking substantial work to develop alternative assessment programs. The examination requirement was and is appropriate and adapted to the College, as the only body vested with the relevant responsibility for training dermatologists in Australia, being able to satisfy itself that a person is competent to practice as a dermatologist. While it is possible that the College could develop an alternative assessment program which would not have a discriminatory effect on Dr Sklavos, that development would require the College (and the AMC) to expend substantial effort to give Dr Sklavos a chance, but no more, to prove his competence.
60 On the appeal, Dr Sklavos contended that in reaching the conclusion that the examination condition was reasonable, the primary judge relied upon considerations and evidence which had not been relied upon by the College. Dr Sklavos contended that in adopting that course, the primary judge erred by effectively imposing upon him the onus of demonstrating that the examination condition was not reasonable.
61 To assess that challenge, it is necessary to outline the basis upon which the College sought to establish that the examination condition was reasonable, the position taken by Dr Sklavos and the considerations and evidence relied upon by the primary judge.
62 The primary judge recorded the circumstances relied upon by the College at [170] of her Honour's reasons for judgment by reference to the list of considerations set out in the College's Further Amended Defence. Other than one consideration (particular (iv)), there was no dispute and the primary judge found that each of the considerations relied upon by the College were established. The disputed consideration was not specifically resolved by the primary judge but that is of no real consequence. The considerations relied upon by the College were these:
i. the overall objective of the Respondent's training program is to produce dermatologists who are safe, skilled and competent in the diagnosis and management of all aspects of diseases of the skin and its appendages and able to respond to the change health needs of the Australian community;
ii. the structure of the training program over a four-five year full-time period is designed to ensure that the trainees pass through Basic Training in the initial two years and Advanced Training in the final three years. Trainees must pass through the defined stages to facilitate the progressive and cumulative acquisition of knowledge and skill;
iii. during the Basic Training, the trainee must acquire detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin. Trainees are assessed on their knowledge and competence in this area;
iv. a further aspect of training through formative assessment, aims to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Trainees must become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in:
1. interviewing skills
2. clinical examination skills
3. procedural dermatology skills
4. professional conduct
5. research skills
v. each stage of training must be completed to a satisfactory level;
vi. the training is designed to ensure that the trainees acquires skills in the treatment of complex dermatological conditions and can meet the demands of increased responsibility for patient management;
vii. the assessment is undertaken in an objective and appropriate manner to ensure that the high standards expected of trainees is meet;
viii. the Respondent currently holds an accreditation from the Australian Medical Council as the specialist medical program in Australia which allows a medical practitioner to be registered as a specialist dermatologist, conferring upon that medical practitioner the qualification of Fellowship of the Australasian College of Dermatologists.
ix. the assessment requirements of the Respondent have been accredited by the Australian Medical Council.
x. the Respondent undertakes assessment of trainees by a number of different means including both summative and formative assessments which are formulated to ensure that trainees who successfully complete the program of the Respondent are competent and safe to practise as a junior dermatological specialist.
xi. the Respondent had a Special Consideration policy which operated to permit trainees have their examinations held under alternative or varied conditions in certain situations;
xii. the Australasian College of Dermatologists Training Program Handbook 2009 at Appendix Three provides an internal appeals process for any person who claims to be adversely affected by a decision of the Board or Committee of the Respondent.
63 As is apparent, those considerations explain the objective of the College's training program, the structure of that program, the knowledge and understanding that trainees must acquire, the nature and purpose of the assessments utilised, the accreditation requirements by the Australian Medical Council ("AMC") and finally, the availability of a special considerations policy to permit examinations to be held under alternative or varied conditions in certain situations and the availability of an internal appeals process.
64 The College's submissions to the primary judge was that:
In relation to the reasonableness of the exam requirement, it has plainly been established on the evidence that the assessment regime the College had in place was founded in logic and rationality, was accredited by the AMC following a rigorous accreditation process (the AMC having considered its various components, including the final examinations component), and was appropriate in order to assess the competency levels required before a trainee is admitted as a Fellow of the College and entitled to practice as a specialist or consultant dermatologist. It has been established that it was "reasonable" in the circumstances, including with regard to how the Courts have interpreted the word "reasonable" in cases alleging indirect discrimination - that is, having a logical and understandable basis, and noting that the test in respect of a reasonableness of a requirement or condition is one "less demanding that one of necessity, but more demanding that one of convenience". Moreover, the fact that alternative modes of assessment may exist (in the present case alternatives to final examinations) does not in any way render the requirement or condition of the College's final examinations unreasonable.
65 In support of its submission that it had established that the examination condition was reasonable as it had a "logical and understandable basis" the College also relied on evidence of Professor Jolly, a witness called by Dr Sklavos. In relation to that evidence, to which I will return, the College said this:
There can be no doubt that the evidence of Professor Jolly establishes the complete defence available to the College under section 6(3) of the Act to a claim of indirect discrimination. In short, even on the expert evidence called by the Applicant, it has been established that the Fellowship exams have a logical and understandable basis, and have relevance to medical training. The Court should find on the evidence that a balanced and reliable form of assessment for medical training would involve a combination of assessment tools which could include, among other measures, both workplace based assessments and final examinations - that is the reality of the manner by which the College assesses it trainees (and did so at or around 2010 to 2012).
And continued:
When one adds the evidence of the rigour with which the AMC have assessed and approved the College's assessment program, there is no basis on the evidence to find other than that the College's assessment program as at 2012 (and continuing) was reasonable in the circumstances.
66 The position of the College was that the examination condition, as part of the assessment requirements of the College, was reasonable per se and that was so whether or not any alternative to formal examinations was available as a mode of assessment. Or, in other words, the absence of an alternative mode for assessing competency did not detract from the reasonableness of the examination condition.
67 It was common ground on the appeal and at the trial that the College conceded that there were alternative assessment methods capable of achieving the same objective as the College's final examinations. The primary judge said this at [173]:
I accept that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. The College, sensibly, did not suggest otherwise.
68 After recording that concession and having earlier set out the considerations relied upon by the College (those set out at [62] above), the primary judge (at [175]-[198]) identified eleven related and somewhat overlapping matters which supported the judge's ultimate conclusion that the examination condition was reasonable.
69 The first matter relied upon by the primary judge was that, in the context of the AMC having accredited the College's training program and its final examinations, it was not open to the College to unilaterally waive its examination requirements without the AMC approving an alternative method of assessment.
70 The second matter was that any accreditation by the AMC of an alternative form of assessment would require AMC satisfaction that the alternative program would ensure competency akin to the extant scheme and would involve the AMC in substantial work.
71 The third matter was that the College's examination requirements are the result of an extraordinary amount of voluntary and unpaid work from the dermatologists involved and that a system derived from that input, developed and refined over many years, and in relation to which there was no evidence of dissatisfaction (excluding Dr Sklavos), ought not be lightly waived.
72 The fourth and fifth matters were that, at the time that Dr Sklavos sought a waiver of the examination condition, the College did not have available to it an alternative program for assessing Dr Sklavos' competency and that it is likely that the College would have had to carry out substantial work to ascertain the feasibility of an alternative method of assessment. Her Honour considered the assessment of international dermatologists under Rule B, only a starting point for the development of such an alternative.
73 Sixthly and relatedly, whilst the primary judge accepted that at least in theory an alternative assessment method could be developed, the task would be difficult and time consuming. The primary judge referred to Professor Jolly's evidence and accepted submissions of the College based upon it. The primary judge concluded in relation to the sixth matter she relied on by finding that the evidence showed that great care would be needed to devise an alternative assessment program to the College's final examinations.
74 The primary judge's seventh point was that providing an alternative assessment method for Dr Sklavos would set a significant precedent, could impact upon other trainees who may be aggrieved by the fact that they were nevertheless required to pass the exam and would thereby raise difficult policy questions for the College and the AMC. By the eighth matter considered, the primary judge again raised concern that scarce and largely voluntary time and resources would need to be devoted to an individualised alternative assessment program which would be a cause of serious disquiet.
75 The primary judge's ninth and tenth concerns focussed more directly upon Dr Sklavos. Her Honour observed that he had already been afforded a number of prior opportunities to establish his competence and questioned the merit of further resources being allocated to permit another opportunity for Dr Sklavos in circumstances where he did not lack a capacity to practice at all and could do so as a general practitioner or possibly a vocationally registered general practitioner. The primary judge's eleventh point was that even if the College had waived the examination condition, as Dr Sklavos was at the time of trial incapable of subjecting himself to any form of assessment by the College, the idea that he could have subjected himself to alternative assessment by the College in 2012 struck her Honour as "unrealistic".
76 The first to eighth of the considerations relied upon by the primary judge addressed or substantially addressed the impracticability of an alternative assessment method being developed, accredited and provided to Dr Sklavos.
77 However, the College did not put a case that practical considerations such as accreditation, resources, effort, policy considerations and other difficulties relied upon by the primary judge stood in the way of the College waiving the examination condition and providing Dr Sklavos with an alternative form of assessment. As earlier recorded, the case put by the College was that its assessment regime was appropriate and reasonable per se and that whilst an alternative mode of assessment to its final examinations may exist, that did not detract from the reasonableness of the examination requirement, given the appropriateness of that requirement. So much is reflected in the extract from the College's submissions set out at [64] above.
78 There is force in the proposition that the primary judge relied upon a case not made by the College. On the appeal, the College did not cavil with that proposition. It did not suggest that it had relied upon practical considerations to establish that an alternative form of assessment could not have been reasonably made available. Instead, the College relied upon the same case it put to the primary judge in relation to the availability of an alternative form of assessment. The submission made was this (footnotes omitted):
The trial judge correctly observed that the fact that there were alternatives to final examinations as a method of assessing medical competence (a point conceded by the College, that being a concession the trial judge considered appropriate) did not in the circumstances detract from the reasonableness of the term.
79 That submission relied upon [173] and [205] of the reasons of the primary judge but is not sustained by those references. It is clear that the primary judge considered it necessary to have regard to the practicality of providing an alternative form of assessment for Dr Sklavos and relied upon the impracticability of doing so to support the conclusion that the College had established the reasonableness of the examination condition. Insofar as the primary judge concluded that an alternative assessment program did not detract from the reasonableness of the examination condition, her Honour did so including because, in essence, she regarded the provision of an alternative program as not reasonably practicable.
80 Putting aside for the moment issues of procedural fairness, the approach taken by the primary judge was, with respect, correct. It may be accepted, as the College submitted, that the Court in an assessment of reasonableness does not assess "whether the alleged discriminator could have made a 'better' or more informed decision": CBA v HREOC at 112-113 (Sackville J). As the Full Court (Sackville and Stone JJ, with whom Tamberlin J agreed) said in Catholic Education Office v Clarke (2004) 138 FCR 121 at [115], the test of reasonableness is objective, having regard to the circumstances of the case. The subjective preferences of the aggrieved person cannot be determinative of the reasonableness of the impugned requirement although they may be relevant in assessing whether the requirement or condition is unreasonable. But as the Full Court went on to say at [115], whilst again not of itself determinative, the relevant factors to be taken into account in the application of the objective test will usually include whether reasonable alternatives exist that might accommodate the interests of the aggrieved person. Relevantly, the Full Court said this (emphasis added):
[115] …
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395 , per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou (2004) 8 VR 120 at [26], per Phillips JA.
81 In the circumstances of this case, whether a reasonable alternative existed that might achieve the objectives of the College while accommodating the needs of a disabled person in Dr Sklavos situation was clearly a relevant factor for consideration. That is so despite the evidence in support of the wisdom of the use of formal examinations as an assessment tool to assess the competency of candidates for Fellowship of the College. Professor Jolly's evidence, which the primary judge recounted at [185] and [186], itself provided an evidentiary foundation for the primary judge's conclusions that the "wisest" type of assessment program in medical training utilises a combination of several assessment tools including formal examinations as the College's program in fact did. But, the evidence did not establish that the examination condition was an indispensable necessity, and in the face of the concession made by the College that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing the proficiency and competence of medical trainees, the practicability and availability of an alternative assessment method was obviously relevant to the question of the reasonableness of the examination condition having regard to the circumstances of the case. The primary judge, with respect, correctly recognised that to be so. The problem is that the submissions of the College and the case it put at trial did not.
82 The Court was not apprised of the extent to which the primary judge put Dr Sklavos on notice that she may rely upon the impracticability of an alternative assessment program. If that was not done or not sufficiently done, I consider that Dr Sklavos may have justifiably complained that, on the issue of the practicability of an alternative assessment program, he was denied procedural fairness at trial. However that is not the substance of his complaint on the appeal. It is not expressly raised either by Dr Sklavos' grounds of appeal nor by the submissions made on his behalf. Rather, the absence of any submission of the College on the impracticability of an alternative assessment method was relied upon by Dr Sklavos for the proposition that the primary judge should not have had regard to cost, difficulties or other impediments to the adoption of an alternative assessment method and should have found that the College lost on the issue of reasonableness, an issue which the College bore the onus of proving. Relatedly, Dr Sklavos contended that the primary judge erred by effectively imposing an onus on Dr Sklavos to demonstrate that the examination condition was not reasonable.
83 A failure to accord procedural fairness is capable of being cured either on an appeal or on a remittal. Any failure of the primary judge to give Dr Sklavos an opportunity to make submissions about the factual findings that should have been made on the evidence received at trial has effectively been addressed on the appeal. A number of submissions challenging the factual findings made by the primary judge on the question of the practicability of an alternative assessment program have been agitated on the appeal and I shall address those shortly. I would have expected that if there was evidence that Dr Sklavos may have called on the issue, but was denied the opportunity to do so by the approach taken by the primary judge, the Court would have been informed of its existence. There was no suggestion, however, that Dr Sklavos had particular evidence that he would have called or now wishes to call, having been denied the opportunity to do so at trial. In any event, the error that Dr Sklavos relies upon is not founded on procedural unfairness. Rather, it is based on the proposition that the College's burden of proof could only have been discharged by reference to the submissions and evidence it had relied upon to discharge that burden.
84 The primary judge well understood that the onus on the issue of the reasonableness of the examination condition fell upon the College. Her Honour said so at [166]. Putting aside issues going to procedural fairness, for the reasons I have given, the primary judge was correct to have regard to the reasonable practicability of the College providing an alternative assessment program to Dr Sklavos. A court's obligation to do justice in the case (Nescor Industries Group Ptyd Ltd v Miba Pty Ltd [1997] FCA 1431 (Davies, Tamberlin and Nicholson JJ)) will, from time to time, lead the court to rely upon relevant evidence adduced at trial but not expressly relied upon by the parties. If that should happen to assist the discharge of a particular burden, so be it. There is no principle restricting the discharge of a burden of proof to those considerations raised by the party on which the burden falls. Nor is there error in reliance being placed on evidence not called by the party that bears that onus. Even where a reverse onus of proof applies, as was here the case, the respondent's burden may be discharged by reference to the evidence of the applicant: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [192] (Logan, Bromberg and Katzmann JJ). If procedural fairness had been accorded, there could be no complaint made about the approach of the primary judge. No complaint about a failure to accord procedural fairness is made by Dr Sklavos.
85 In my view, there was no error of the kind Dr Sklavos relied upon. Particular (a)(i) of appeal ground 2 and so much of particulars (a)(ii), (a)(vi), (a)(vii) of appeal ground 2 as challenge the primary judge's reliance on evidence and submissions not relied upon by the College, must be dismissed. The same conclusion applies to particular (d) of appeal ground 3 to the extent that that ground asserts error of the same kind.
86 I turn then to consider the factual errors asserted to have been made by the primary judge in finding that the examination condition was reasonable in all of the circumstances of the case.
87 The first challenge is raised by particular (a)(ii) to appeal ground 2. Dr Sklavos asserted that the primary judge erroneously found that developing an alternative form of assessment would be "difficult and time consuming" (at [184]]) and "substantial work" and "substantial effort" (at [203]).
88 Dr Sklavos submitted that the impugned findings are unsupported by evidence relied upon by the College. I have dealt with that already but, insofar as Dr Sklavos intended to say that the impugned findings are unsupported by any evidence, I consider the submission to be unsustainable. That developing and implementing an alternative assessment program would be difficult and involve substantial effort is almost a self-evident proposition which flows out of the uncontested objective of the College's training and assessment practices of ensuring that only medical practitioners who are "safe to practice" dermatology are accredited to do so. In any event, there was ample evidence before the primary judge supportive of the findings which her Honour made.
89 Many of the eleven matters relied upon by the primary judge at [175]-[198] to which I have earlier referred, deal with the impracticability of an alternative assessment method by reason of the work and effort that would be involved in formulating and providing it. The evidence upon which the primary judge relied is there set out. At [177] the primary judge concluded on the evidence of Dr Fischer, the Chief Censor of the College in 2010, that "it is obvious that the College's examination requirements represent an extraordinary amount of work for the dermatologists involved, work which is undertaken on a wholly voluntary and unpaid basis". Her Honour at [177] set out evidence of Dr Fischer. At [178] her Honour set out some of the evidence of Dr Corderoy an education specialist employed by the College. The evidence of Dr Fischer and Dr Corderoy detailed the nature of the curriculum provided by the College and the nature and extent of the work involved in both providing that curriculum and assessing the competence of trainees. At [179] the primary judge described what the College had in place as a system "which has been developed and refined over many years [and] which has involved extraordinary amount of work to bring it to its present standard …"
90 The evidence of the very substantial and sustained effort involved in providing the current assessment method was an obvious foundation from which an inference could be drawn that providing an alternative and equally reliable indicator of competence would involve substantial work and effort and would be difficult and time consuming. Part of the difficulty that the primary judge obviously had in mind was raised in the evidence of Professor Jolly. That evidence, as the primary judge's reasons reveal at [184], indicated the complexity of an assessment program given the need for a "variety of assessment methods that complement each other". At [187] and [188], the primary judge considered by reference to Professor Jolly's evidence that there is difficulty in developing reliable assessment systems and that great care would be required.
91 All of that, as the primary judge noted at [191], had to be considered in the context of there being 450 dermatologists across Australia and that the College was dependent on volunteers taking time out of their practice to ensure that new dermatologists can be trained and assessed.
92 I have taken into account Dr Sklavos's contention that the evidence showed that the College already had recognised alternative assessment methods which it had previously formulated and implemented. That contention, as Counsel for Dr Sklavos conceded, was not intended to suggest that the College had "on its shelf, ready to go, a suite of alternative methods of assessment designed for the circumstances of Dr Sklavos' case". But Dr Sklavos did contend that the evidence demonstrated that in order to assess overseas trained and qualified dermatologists the College had a demonstrated means of devising assessment processes which did not involve the application of the examination condition. So much may be accepted as indeed I consider that the primary judge did. The existence of those processes, as the primary judge acknowledged at [180], might have provided a "starting point" for the development of an alternative assessment program designed to meet the particular circumstances of Dr Sklavos. However, as the primary judge went on to say at [181], the situation in respect of international medical graduates was not directly comparable. In any event, the fact that a starting point existed does not detract from the finding that to reach the finish line substantial work and effort would be required and that difficulties were likely to be encountered.
93 Dr Sklavos' reliance upon the concession made by the College does not assist his contention. The concession that there were alternatives was not a concession that an alternative could be provided to Dr Sklavos without substantial effort and without difficulties being encountered. I would, however, accept that the failure of the College to rely upon those considerations diminished their force. Nevertheless, I consider the impugned findings were open on the evidence.
94 I also reject the challenge made by particular (a)(iii) of appeal ground 2 which asserts that the primary judge erroneously treated those findings as determinative of the test posed by s 6(3) of the DDA. The submissions of Dr Sklavos briefly elaborated on the contention by saying that the findings in relation to impracticability were not weighed against the discriminatory effect. I reject that contention. The reasons of the primary judge amply demonstrate that the primary judge was well aware that all the circumstances of the case had to be taken into account in the application of s 6(3) and the primary judge's reasons demonstrate that a very wide range of circumstances were taken into account, including the discriminatory effect of the examination condition.
95 Dr Sklavos also contended that the primary judge wrongly reduced the weight to be accorded to the effect on Dr Sklavos of the examination condition, because the judge erred in concluding that it was probable that Dr Sklavos would not have been able to successfully complete any alternative assessment program that may have been provided to him by the College. This aspect of Dr Sklavos's appeal is raised by particulars (a)(iv) and (a)(v) of appeal ground 2. It relates to the findings made by the primary judge at [201]-[202] where her Honour said this:
[201] I accept the submission for Dr Sklavos that the College's examination requirement means that he will be prevented from practising his chosen profession, in circumstances where he has devoted many years of work and study to becoming a specialist dermatologist. I accept too that:
This has had an adverse effect on his professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction.
[202] Dr Sklavos will be able to practice as a general practitioner, including in a practice focusing on skin conditions. He has a strong subjective preference to have the examination requirement waived, but unless there was developed by the College in or after 2012 an alternative program of assessment there was no rational basis upon which the College could elect him as a Fellow. Given his performance in the 2010 clinical examinations and his beliefs about the College, there is also no sound basis for inferring that there was a probability that Dr Sklavos would have been capable of successfully undertaking alternative assessments at and from 2012. His performance in the 2010 examinations and beliefs about the College, at the least, made it a real risk (and in my view, a probability) that in and from 2012, he would not be able to successfully complete any alternative assessment program given the College's inevitable involvement in such a program.
96 Dr Sklavos contended that the finding that he probably would not have been able to successfully complete an alternative assessment program if it had been offered, improperly conflated the issue of whether he was competent to practice as a dermatologist (an issue relevant to damages) with the issue of whether an alternative assessment program would have assisted him to be assessed for Fellowship on the same basis as others. Dr Sklavos also contended that to the extent that the finding went to the latter issue, it was contrary to the evidence and did not reflect any submission put by the College.
97 In my view there is no error of the kind asserted by Dr Sklavos. As part of her consideration of the reasonableness of the examination condition with regard to the relevant circumstances of the case, the primary judge took into account the impact upon Dr Sklavos of the examination condition. At [201] her Honour accepted that as a result of the imposition of the examination condition, Dr Sklavos will be prevented from practising his chosen profession. The primary judge in that regard accepted that that would have an adverse effect on Dr Sklavos's professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction. At [202] the primary judge properly considered whether there were circumstances which warranted some discounting of the full impact of the adverse effects recognised at [201]. In that respect, her Honour took two matters into account. The first was that despite not being able to practice as a specialist dermatologist, Dr Sklavos would be able to continue to practice as a general practitioner including in a practice focussing on skin conditions. Secondly, her Honour took into account the likelihood of Dr Sklavos successfully undertaking an alternative assessment in and from 2012. That was relevant because the prospect that Dr Sklavos would not have been admitted as a Fellow under an alternative assessment if it had been offered, necessarily reduces the adverse impact of the examination condition.
98 In respect of that matter, the primary judge took into account two considerations. The first was Dr Sklavos' poor performance in the 2010 clinical examinations. That provided some indication of the probability of Dr Sklavos' likely success if an alternative assessment program had been provided to him. Secondly, the primary judge took into account Dr Sklavos' "beliefs about the College" in the context that any alternative assessment program would inevitably involve the College in providing that program. Read in context and with an eye to the observations earlier made by the primary judge (in particular at [75]-[83]), the primary judge was referring to the impact upon Dr Sklavos' capacity to successfully complete any alternative program made available to him in the context of his "unshakeable beliefs … about the College being involved in a conspiracy against him" (at [80]). As her Honour recounted at [75]-[83], Dr Sklavos' strong obsessive, paranoid and narcissistic personality traits resulted in him developing a perception that the College was involved in a conspiracy to deprive him of dermatological qualifications. The prior demonstrated inability of Dr Sklavos to successfully interact with the College (including in completing workplace placements) was obviously relevant to the probability of Dr Sklavos successfully completing any alternative assessment program offered by the College. The matters her Honour took into account were relevant to the issue she was considering. Any conflation with the issues relevant to damages was no error: both questions are concerned with impact on Dr Sklavos.
99 Additionally, Dr Sklavos asserts that the finding in relation to his capacity to complete any alternative assessment was contrary to the evidence. In that respect, Dr Sklavos relied upon his own evidence and also evidence given by Professor Glozier. Whilst that evidence suggested that Dr Sklavos would have been able to undertake an alternative assessment program in 2012, the evidence did not deal with Dr Sklavos' capacity to successfully undertake any such program which is the subject of the impugned finding. The primary judge was well aware of the evidence that an alternative program may have been commenced but her concern, as is made clear at [155], was with whether it was likely that Dr Sklavos could successfully complete that program.
100 This aspect of Dr Sklavos' appeal is also not sustained and must be dismissed.
101 Dr Sklavos further contended that the primary judge erroneously found at [175] that it was not open to the College to vary or waive the examination condition unilaterally, without having first obtained accreditation from the AMC for an alternative assessment program to stand as a substitute for the components tested by the College's examinations. Dr Sklavos contended that the primary judge erred in this respect because accreditation by the AMC would not be required unless the waiver of the examination condition and its substitution with an alternative assessment program for Dr Sklavos was regarded by the AMC as "a major change" to the program of study provided by the College. In this respect, Dr Sklavos relied on a publication of the AMC titled "Procedures for Assessment and the Accreditation of Specialist Medical Education Programs and Professional Development Programs by the Australian Medical Council 2013".
102 The primary judge made reference to that document at [176] but it is not clear whether the terms of that document dealing with the assessment of proposals for "major change" were drawn to her Honour's attention and were taken into account in the finding made that an alternative assessment program would need to be accredited by the AMC. Her Honour's reasons appear to be focussed upon whether or not the examination processes were part of what the AMC accredited. Having determined that they were, the reasoning seems to proceed on the basis that any change would require the involvement of the AMC. Nevertheless, I do not regard the finding impugned by Dr Sklavos as erroneous. As her Honour found at [176], the accreditation requirements of the AMC are "detailed and rigorous". A rigorous accreditation process for medical trainees would obviously include, as a vital component, AMC approval of the assessment processes utilised to assess competency. It is likely, in those circumstances, that any waiver of the AMC accredited assessment process and its replacement with a substitute would be regarded by the AMC as a "major change" and, in accordance with its procedures, the AMC would need to accredit the change. For those reasons, I reject the contention raised by particular (a)(vi) of appeal ground 2 which asserted that the primary judge was wrong to conclude that accreditation from the AMC would be required.
103 Lastly, in relation to appeal ground 2, by particulars (a)(vii) and (a)(viii), Dr Sklavos asserted that regard was erroneously given to the following irrelevant matters:
The assumed precedential effect of any decision to waive the examination condition for Dr Sklavos and the need to address difficult questions of policy (at [189], [190]);
That any further training invested in Dr Sklavos was training that could be made available to another trainee (at [192]);
The number of opportunities that a single trainee should be given and that at the time of the hearing, Dr Sklavos would have only one more year to pass the Fellowship examinations (at [193]); and
The fact that Dr Sklavos had not been practicing any form of dermatology for more than three years, when the relevant issue was the reasonableness of the examination requirement in 2012 (at [194]).
104 Each of the impugned matters were part of one or other of the matters which her Honour took into account in addressing the practicability of the College providing an alternative assessment program for Dr Sklavos. In that context, her Honour considered various difficulties that may confront the College in providing an alternative assessment program for Dr Sklavos. Each of the matters suggested to be irrelevant formed part of that consideration which, as I have earlier identified, was a relevant consideration to the question of whether the imposition of the examination condition was reasonable in all of the circumstances of the case. When each of the impugned matters is read in the context of the paragraph in which it appears, the relevance of that matter to the question of practicability is apparent. Other than asserting irrelevance, no submission was made by Dr Sklavos as to why any of the matters impugned should be considered to be irrelevant to the issues properly before the primary judge. I can see no basis for the assertion that they were.
105 For all of those reasons, ground 2 of the appeal must be dismissed.