Tanious v Australian Medical Council Ltd

Court of Appeal (NSW)|2015-07-08|Before: Beazley ACJ, Ward JA, Bellew J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Mr Tanious' complaint in the proceedings below relates to his attempt to obtain registration as a medical practitioner in Australia. He has sought recognition of his overseas medical qualifications and experience. He holds a degree in medicine and surgery from Khartoum University in Sudan. His experience includes work in public, private and military hospitals and health centres during the period from 1990 to 2002 in Sudan.
As set out from [4] to [7] of his Honour's reasons, in Australia there is a statutory scheme providing for national registration and accreditation of health practitioners. In New South Wales, the relevant legislation is the Health Practitioner Regulation National Law (NSW) ("the National Law") (by Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)), s 53 of which provides that an individual is qualified for general registration in a health profession in the circumstances there set out.
AMC is a company limited by guarantee and appointed pursuant to s 43 of the National Law by the Medical Board of Australia (which is established under s 31 of the National Law) as an external accreditation entity for the medical profession. It conducts, relevantly, examinations of persons who have trained as medical practitioners overseas and who wish to seek registration to practise in Australia but who are not able to obtain registration some other way.
The said examinations include both a multiple choice examination and a clinical assessment. The general objective of the latter is to evaluate the clinical competence and performance of a candidate in terms of his or her medical knowledge, clinical skills and professional attitude. The clinical assessment includes an assessment of the ability of a candidate, among other things, to take a history, conduct a physical examination and engage in a reasonable discussion of diagnosis and management of a patient. The assessment also focuses on the candidate's ability to communicate effectively with the patient.
AHPRA is established under s 23 of the National Law. Its functions, as set out in s 25 of the National Law, include the provision of administrative assistance to various organisations including the Medical Board of Australia. It is involved in the establishment of procedures for the development of relevant accreditation standards as well as procedures for receiving and dealing with applications for registration as a health practitioner.
Mr Tanious has undertaken the AMC examinations seeking to become registered as a general practitioner in Australia. He passed the multiple choice examination. He has failed the clinical assessment examination on more than one occasion, the most recent being an examination which took place on 20 July 2013. The primary judge noted that this appeared to have been the fourth occasion on which Mr Tanious had failed the clinical assessment examination; that he was assessed in respect of a total of 16 "stations" of which he failed 15; and that in 12 of the 15 stations that he failed he was ascribed a grade of "very unsatisfactory" in respect of at least one of the criteria against which he was assessed.
AHPRA played no role in any aspect of the clinical assessment of Mr Tanious.

Summons

By his summons filed in the Common Law Division, Mr Tanious sought orders in effect that the result of his clinical assessment examination be set aside; that he be awarded a pass; and that AMC change the system of clinical examination. Mr Tanious did not have the benefit of legal representation in the proceedings, nor does he on the present application for leave to appeal.
Both AMC and AHPRA, by separate notices of motion, applied for dismissal of the proceedings pursuant to r 13.4 of the UCPR, arguing that no reasonable cause of action was disclosed. His Honour accepted the submissions of the respective respondents in that regard.
In so doing, his Honour noted that the nature of the orders sought by Mr Tanious was to the effect that, if made, they would involve the court adjudicating upon academic and/or examination standards and the accuracy of the results of, or grades assigned in the course of, clinical assessments. His Honour referred to various authorities in which it has been said that issues of that nature are ordinarily unsuitable for adjudication by a court (Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [58]; Walsh v University of Technology Sydney [2007] FCA 880; and Shvetsova v The University of New England [2014] NSWSC 918).
His Honour concluded (at [34]) that no reasonable cause of action was disclosed against AMC, Mr Tanious in effect asking the court to substitute its own views for those of the representatives of AMC who supervised the assessment and assessed Mr Tanious' performance in the clinical assessment examination.
As to AHPRA, his Honour noted (at [35]) that the shortcomings in Mr Tanious' case were even more fundamental since it played no part in the clinical assessment about which Mr Tanious was aggrieved and had made no decision or determination in respect of him at all.
His Honour accordingly dismissed the proceedings against both respondents. His Honour then heard submissions in relation to costs. The reason that his Honour determined that costs should be awarded on an indemnity basis in respect of AHPRA was that it had indicated in correspondence with Mr Tanious at the outset its position that the summons did not disclose any reasonable cause of action and had invited Mr Tanious to discontinue the proceedings on the basis that it would bear its own costs if the proceedings were discontinued by a specified date. Mr Tanious did not accede to that invitation.

Appeal

It will be apparent from the draft notice of appeal that the grounds on which Mr Tanious seeks to appeal, if leave is granted, raise issues that again go to the quality and conduct of AMC's clinical assessment process. Mr Tanious also wishes to challenge the costs orders made against him (for which he would also require leave if he were not otherwise given leave to appeal).
The proposed appeal grounds are set out below: 1. Respondents have intentionally acted high handed in a wrong way conducted an academic system supported by contradictory unreliable evidence according to the evidence Act 1995 section 165 (1) (a) & (f) because first respondent has failed appellant four times in clinical examination during 2007 - 2013. The mentioned examination would enable appellant to have permanent registration as a health professional according to standard pathway belong to second respondent. At the time the mentioned examination was entirely depending on spoken words there was no recording for the appellant's spoken words in order to enable him confirming his satisfactory performance later on. First respondent pretended that there was no financial fund at the time they took high fees from appellant four times. They depended on their examiners are well qualified without a least chance for those examiners are human being and any mistakes could be done at any time. 2. The contradiction in the respondents' academic system making it not applicable to the evidence Act 1995 sections 47 (1), 48 (1) (c), 140. Their system has wasted more than seven years of appellant's academic time. At the time appellant is not only international medical graduate but also overseas trained general practitioner with a recognized overseas experience from the Royal Australian College of General Practitioner since 2002 that is to say appellant is an expert according to UCPR 2005 rule 31.18 the legal definition of an expert. 3. Circumstances of appellant's proceedings have been clarified in the appellant's summary of argument supported by copy of document in a form of summons, submissions, certificate of overseas experience, certificate of recognition from the Royal Australian College of General Practitioner, and certificate of competency in the English language test.
By way of relief, Mr Tanious seeks orders that Bellew J's judgment be set aside and that: 3. Appellant seeks in place of the decision of the court below the following orders: "a" Appellant deserve to have provisional registration for one year first to be allowed for training in public hospital anywhere in Australia, then to be offered permanent registration according to his recognized overseas experience. "b" respondents change their academic system according to the appellant's opinion was clarified previously before Supreme Court Justice because their system is supported by contradictory unreliable evidence. "c" respondents pay financial compensation for the appellant's time wasted according to the Court of Appeal Justice estimation depending on UCPR 2005 rule 30.3. 4. The respondents pay the appellant's cost because appellant on certrelink [sic] welfare due to defect in the respondents' system but not because appellant was not qualified person in addition to appellant defending himself.

Leave to appeal

Leave to appeal will not be granted in respect of interlocutory decisions where the appeal is doomed to fail (Young v Hones (No 2) [2014] NSWCA 338 at [63]). Where the decision in question involves an exercise of discretion (such as the decision summarily to dismiss proceedings pursuant to UCPR 13.4 or the decision to award costs) an error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5) must be established in order to warrant appellate intervention.
Therefore, for Mr Tanious to succeed on the appeal he wishes to bring he must demonstrate something more than that the decision of his Honour was arguably wrong. He would have to establish that his Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account or give it sufficient weight to a relevant consideration, or arrived at a result so unreasonable or unjust as to bespeak such an error (see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]).
Leave to appeal from an interlocutory decision (such as the decisions now sought to be challenged are) is ordinarily appropriate only in matters that involve questions of principle, questions of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Clarke v State of New South Wales [2015] NSWCA 27 at [19]).

Submissions

The application has been dealt with on the papers. Each of the parties has filed submissions or a summary of argument and Mr Tanious has filed submissions responding to the submissions filed by the respective respondents, each of which opposes the grant of leave to appeal.
Mr Tanious' summary of argument, dated 12 May 2015, includes assertions that: the respondents "have a lot of contradiction in their academic system in dealing with the applicant's academic overseas qualification"; that the respondents "pretended that their examiners are well qualified"; that the respondents "provided a lot of contradictory information confirming that their academic system should be changed"; that their academic system "has induced wasting more than seven years from the applicant's academic time" (by reference to which Mr Tanious submits the respondents should accept his opinion in changing their academic system and pay him financial compensation in addition to recognising that he deserved to have registration by reference to his recognised overseas experience); that his Honour dismissed the proceedings pursuant to UCPR r 13.4, whereas Mr Tanious had "looked for the opinion of Supreme Court Justice concerning his proceedings"; that his Honour "neglected strong evidence of contradiction confirming the bias and misconduct in the respondents' academic system"; and that because Mr Tanious is on CentreLink welfare "as a result of the bias and misconduct in the respondents' academic system but not because he is not qualified person in addition to his defending himself" the respondents should pay his costs.
In his submissions filed on 22 June 2015, in reply to AHPRA's summary of argument opposing leave to appeal, Mr Tanious complains that the respondents' solicitors have neglected "to make specific comments of genuine supporting evidence about information provided by the applicant in the summary of applicant's argument" (see [2]). In particular, he refers to the information provided in his summary of argument as to his overseas experience and asserts that the "neglected information" confirmed the facts and circumstances of bias and misconduct and that the academic system has wasted more than seven years of his academic life.
Mr Tanious asserts that the respondents did not accept (and neglected) his experience because it had been in a country (Sudan) that was "not on the list of their academic system".
Mr Tanious also asserts that in 2011 he looked for some information from AHPRA about their regulation in order to have registration and found there was no way for him to have any sort of registration.
Mr Tanious submits that leave should be granted because the "essential reasons and evidence confirm[s] the mentioned bias and misconduct" and he looks for this Court to order the respondents to provide specific comment about the information provided by him in his submissions.
As to costs, Mr Tanious does not accept, for what he refers to as "academic, legal and logic reasons", the costs claimed by AMC. Nor does he accept that he should be required to pay the costs of AHPRA.
Mr Tanious requests no court order be made in respect of the costs of the respondents on the basis that he has been defending himself and is on Centrelink welfare "due to bias and misconduct belong [sic] to the respondents' academic system".

Determination

No error of principle can be discerned from his Honour's reasons, nor is any error of principle identified by Mr Tanious. His Honour was clearly mindful of the exceptional nature of the power in r 13.4 and that it is only appropriately to be exercised where the claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue. His Honour referred to General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130 and Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 90 in that regard. His Honour was correct to do so, the principles in those decisions having been relevantly affirmed by the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Batistatos v Roads & Traffic Authority [2006] HCA 27; (2006) 226 CLR 256 at [46].
For the reasons that his Honour articulated, no reasonable cause of action has been disclosed against either of the respondents. It is not the function of the Supreme Court of New South Wales to review the adequacy of the "academic system" conducted by AMC (on what appears to be a complaint as to the manner in which the clinical assessments are set and/or conducted or recorded), which is the tenor of proposed ground 1 of the appeal. Nor, if that be the real complaint against AHPRA, is it the function of the Court to adjudicate upon the accreditation procedures established by AHPRA. It is not for this Court to determine that Mr Tanious "deserves" to have provisional registration, which is part of the relief claimed by him. Nor is it the function of this Court to give an opinion as to the adequacy of Mr Tanious' evidence of overseas qualifications and experience for the purposes of his application for registration as a medical practitioner in this jurisdiction.
In essence, Mr Tanious wants this Court to take the place of the accredited examiners and declare that he has passed clinical assessments (which in fact he has failed) and/or to declare that he should be taken to have passed those assessments or that those are unnecessary in light of his overseas medical experience and qualifications (thereby bypassing the assessment regime that has been put in place by those with the relevant qualifications, unlike this Court, to do so). That only has to be stated to demonstrate the hopelessness of Mr Tanious' claim.
Nor is the basis on which his claim for financial compensation (the subject of ground 2 of the proposed grounds of appeal) anywhere made clear. His contention appears to be that he has wasted time seeking to become registered as a general practitioner under an accreditation procedure that is in some way biased or unfair or that he should not have been required to undertake because his overseas qualifications and experience in Sudan should have been recognised. If the complaint made by Mr Tanious is essentially a complaint of discrimination, he has not articulated it in a fashion that gives rise to a cause of action in the forum in which his proceedings have been brought. Insofar as Mr Tanious includes in this proposed ground of appeal a complaint that he should have been recognised as an expert, he appears to have misconceived the role of expert witnesses in the court. In the proceedings before the primary judge, Mr Tanious was the plaintiff, not an independent expert (however well qualified he may be), and it was not for him to proffer some kind of expert opinion on the adequacy or otherwise of the accreditation procedures or "academic system" implemented by AMC.
An appeal from the summary dismissal of Mr Tanious' summons would be doomed to fail and in those circumstances leave to appeal should not be granted.
As to the costs judgment, the award of costs is a paradigm case of the exercise of a discretionary judgment with which an appellate court will interfere only if there is error of the House v The King kind. Mr Tanious has not pointed to any such error. He appears to base his challenge to the award of costs against him on the fact that he is in receipt of CentreLink benefits (and that this was in some way due to the defects in the system of accreditation and registration). Presumably the argument is that, but for the fact that he has not been registered, he would have been earning money as a doctor and not on welfare.
The award of costs on the ordinary basis in favour of AMC was a straightforward application of the general rule that costs follow the event: Civil Procedure Act 2005 (NSW) s 98; UCPR r 42.1. No error is disclosed in that regard. The fact that Mr Tanious is on CentreLink benefits is not a reason not to order costs against him as an unsuccessful party in the proceedings. Although Mr Tanious was self-represented, AHPRA submitted (and his Honour noted) that he had some understanding of the processes of the court, having previously been the subject of costs orders (Tanious v Hunt [2012] NSWCA 51; Tanious v Dedousis (No 2) [2014] NSWSC 1361).
As to the indemnity costs award in favour of AHPRA, his Honour made clear his reasons for that award and again no error is thereby disclosed. The claim against AHPRA (as was the claim against AMC) was wholly misconceived. This was pointed out to Mr Tanious at an early stage of the proceedings and there was an offer by AHPRA to bear its own costs if the proceedings were discontinued against it. Mr Tanious chose to pursue his claim notwithstanding. His decision to do so, in all the circumstances, was unreasonable having regard to the lack of merits of the claim against AHPRA.
The award of indemnity costs does not reveal any error in the exercise of his Honour's discretion.

Conclusion

The application for leave to appeal must be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2015

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