Yovichevich v Royal Australian & New Zealand College of Radiologists

The pre-existing and thereafter concurrent Supreme Court proceedings between the same parties 6 At the time of commencement of the subject proceedings in this Court on 31 March 2005, there was already pending in the Supreme Court of New South Wales a proceedings having a similar purported context brought by the applicant as plaintiff against the College as defendant, and which had commenced in December 2004 (Yovichevich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208). In relation to those Supreme Court proceedings, as well as in relation to the subject proceedings commenced in the Federal Court, the applicant pleaded causes of action purportedly based upon the absence of the grant to him of a Fellowship from the College. Unlike the Supreme Court proceedings however, no claim for damages was advanced in the subject Federal Court proceedings. The circumstantial context to the Federal Court proceedings at least largely mirrored the factual context the subject of the Supreme Court proceedings. On 30 November 2005, the Supreme Court (Adams J) found that the proceedings in that Court were defective as framed, and leave was granted to the applicant to file and serve an amended statement of claim within 28 days, failing which the Supreme Court proceedings was to stand dismissed. I will later explain in more detail the reasons for his Honour's findings. Apparently the Supreme Court proceedings has been subsequently repleaded. It is necessary to summarise the Supreme Court proceedings in force at the time at least of commencement of the Federal Court proceedings. 7 The cause of action originally pleaded by the applicant in the Supreme Court was for breach of duty of care in relation to its conduct of examinations in radiology and pathology in which the applicant participated as a student. It appears from the reasons for judgment of Adams J that the applicant sat for examinations conducted by the College in May and November 1995 and in November 1997, and passed the examination in pathology on the last of those three occasions but failed the examination in radiology on three successive occasions. Moreover in November 1999, the applicant was examined but failed once more in radiology, and as a consequence, the applicant requested a review and reconsideration of his radiology examination results. On 9 December 1999 he was notified by the College that it was satisfied from the records of that radiology examination that the same was conducted (inclusively of marking) professionally and equitably, and that the examination outcome recorded accurately and fairly reflected the applicant's performance. Consequentially upon the applicant's short-fall in performance seemingly in relation to that examination, he failed to gain admission to the College. 8 The causes of action pleaded by the applicant in the Supreme Court proceedings including the following averments: (i) the College did not properly or at all undertake a review of his examination performance as required by its procedures and has continued to fail to do so; (ii) the College failed to provide the applicant with a copy of examination questions and his answers thereto; (iii) the College breached its duty of care to him to conduct with reasonable care, skill, diligence and competence its relevant qualification examinations and its review and consideration as an examiner of the performance of the applicant; (iv) the College breached its duty of care to inform him of all relevant aspects of those examinations, including the criteria and method of assessment, and to administer the examinations properly and fairly and in such a way as to enable his performance to have been considered and reviewed, and by way of the provision of an effective and fair appeal process; (v) the College breached its duty of care to have proper procedures in place to ensure that the examinations, and any appeal in respect of the results thereof, would be conducted fairly, competently and impartially; (vi) the College also breached its duty of care by failing to inform him beforehand of relevant aspects of the examinations, including the criteria for assessment and the method of marking; (vii) the College failed to administer the examinations appropriately by not keeping proper and adequate notes in respect thereof, and by not having in place a procedure permitting adequate and fair reconsideration and review of his performance by reason in the meantime of its destruction of, or failure to properly safeguard or keep, the questions and answers and other documents and materials that recorded that performance, and by the way in which his performances was assessed; and (viii) in consequence of the foregoing breaches by the College of its duties said to be owed to him, compensatory damages should be awarded for his loss of income sustained from 1997 onwards for [at least] seven years, and an order should be made for his admission to the College as a Fellow. 9 The College's pleaded response to the applicant's framework of purported pleadings the subject of the Supreme Court proceedings was that the causes of action so purportedly pleaded disclosed no cause of action, and had the tendency to cause prejudice, embarrassment or delay in and to the proceedings, and additionally were frivolous, vexatious and an abuse of process. The College invoked moreover the barring of those proceedings by the Limitation Act 1969 (NSW), given that the applicant's statement of claim in the Supreme Court was not filed until 2 December 2004, and related at least in part to the 1995 and 1997 examinations. The College denied moreover its infliction of loss or damage to the applicant, and demurred to the relief sought by the applicant by way of his installation as a Fellow of the College. The College also pleaded contributory negligence on the part of the applicant on account of the applicant's failure to appeal within the three months' time limit specified in the College's published appeals procedures then prevailing, and of his failure to become registered as a specialist radiologist in any event by any alternative means, such as by way of application to the responsible Minister under the Health Insurance Act 1973 (Cth). 10 On 30 November 2005, as I have earlier foreshadowed, Adams J made the following findings in the Supreme Court: (i) there were grave shortcomings in the statement of claim, in that assuming the existence of a duty of care of the nature pleaded, it was essential that the applicant identify the particular attributes of the duty alleged, or in other words, plead the material facts constituting the alleged acts or omissions; (ii) the particulars supplied by the applicant in the Supreme Court were 'clearly embarrassing' in the pleading sense; for instance there was a failure to plead in what respect or respects the conduct of the examination in respect of the applicant was not appropriate; for instance, there was said to be no pleaded indication of the particular elements of the examination review alleged to be part of the College's duty to perform, nor of the facts matters and circumstances giving rise to those particular elements, and as to the specific ways whereby the College failed to undertake those acts or perform those duties in respect of the applicant; (iii) the pleaded duty of care as to non-provision of a copy of the examination paper and of the applicant's response to it, together with any other document relating to an assessment of his performance, did not reflect any viable duty of care according to law, at least in any such unqualified way as he had averred; in any event the facts and circumstances justifying any such purported allegation of duty needed to be pleaded; a similar observation was made by his Honour as to any asserted duty to keep examination material for a certain period of time after conclusion of the examination, and to disclose the same to the applicant; (iv) the pleaded duty of care was so general in nature that it was not possible to discern any such duty as was sought to be imputed to the College in favour of the applicant, or the way in which the College had supposedly failed to fulfil the asserted duty; (v) no facts, matters or circumstances were pleaded from which it was possible to identify the reasons for which the College was liable to compensate the applicant for the loss of income claimed, much less to admit him to membership of the College. 11 In the result, leave was granted by the Supreme Court to the applicant to file and serve within 28 days an amended statement of claim in compliance 'with the rules as to the allegations of material facts and giving appropriate particulars'. 12 Subsequently on 23 February 2006, an amended statement of claim was filed by the applicant in the Supreme Court of New South Wales pursuant to leave being granted. On that occasion, the applicant was represented at least initially by a firm of solicitors with long established and well known credentials for the conduct of common law proceedings. In the meantime the Federal Court proceedings had become the subject of an application by the College for dismissal or at least a permanent stay of proceedings. Earlier on 31 May 2005, I ordered that the Federal Court proceedings be stayed for six months, or for a period of time next following delivery of reasons for judgment by the Supreme Court in relation to the strike-out application. A telephone conversation on 21 March 2006 between the solicitor for the College having the conduct of the proceedings, and the then solicitor for the applicant in those Supreme Court proceedings, revealed that his said firm were not instructed to appear on behalf of the applicant (of course Mr Yovichevich) in the Federal Court proceedings. Subsequently the strike-out application filed in this Court on behalf of the College on 8 April 2005 was heard on the 28 March and 30 May 2006.

The evidence filed by the applicant in pursuit of the relief sought by the applicant in the Federal Court - the submissions in response of the College 13 The applicant tendered in the Federal Court an affidavit made on 22 April 2005, describing himself thereby as a 'MD Consultant Radiologist', and to which he attached a bundle of 20 or so documents relating inter alia to his medical examinations and qualifications, and to his consultancy practice undertaken in Croatia and apparently thereafter in Yugoslavia, and his endeavours subsequently to secure qualifications for and admission to practice in Australia. His affidavit evidence sought to provide an estimate of financial losses, and of consequential losses and damage otherwise sustained, all of which he claimed to have incurred by reason of the denial by the College of the requisite authority for him to practice his specialty as a radiologist in Australia. He traced his experience in radiology internationally over a period of about 20 years, excluding of course any experience in New Zealand and Australia. 14 The applicant also provided affidavit evidence as to his endeavours to secure professional recognition to practice in New Zealand, to where he first emigrated upon leaving Europe. Those endeavours included examinations undertaken during the years 1995 to 1999. He recorded further that upon moving from New Zealand to Australia in August 2000 in order to obtain employment here as a radiologist, he made numerous attempts to obtain radiology work in various metropolitan and rural areas. The applicant obtained Australian citizenship in September 2002. He came ultimately to the view that litigation in Australia was his 'only available option' to secure the right to practice. He consulted members of the legal profession with a view to obtaining legal representation, and was ultimately unsuccessful in that regard, partly, so he asserted, because of a lack of adequate financial resources. 15 It is readily apparent that the applicant has been untiring in his endeavours to secure qualification to practice radiology earlier in New Zealand and now in Australia. He has undertaken a study of legal authorities with a view to pursuing curial relief in that regard. The extent of his persistent legal research as a legally unqualified litigant has been somewhat remarkable for a person having the handicaps of language, an absence of local secondary and tertiary qualification and of course an absence of any Australian academic qualification and experience. The reality of his ultimate resort to curial redress as a self-engaged litigant involved the virtually insurmountable task of establishing and maintaining any viable cause of action according to law. His inherent determination and persistence have been applied to the task of pleading nevertheless an array of facts and circumstances, and averments of purported legal significance, both in the Supreme Court and in the Federal Court.

Summary of circumstances adduced by the College in support of summary dismissal of the applicant's proceedings in the Federal Court 16 In support of the applicant's radical claim in the Federal Court for a mandatory injunction to the effect that he be 'given back' Fellowship of the College, being a status which the applicant has of course never held, recourse was purportedly undertaken by the applicant to relief under the auspices of, or otherwise pursuant to, what he described as 'The Trade Practices Act 1974', 'Corpor. Law And Au Secur. Act 1989', 'Freedom Of Informat. Act 1982', and the 'Privacy Act 1998'. The purported description of statutes were unspecifically invoked in aid of his claims for relief. Any supposedly material elements of those statutory provisions necessary to establish causes of action sustainable according to law were however not pleaded nor otherwise identified. The task of a legally unqualified person to plead statutory causes of action of those broad descriptions adequately and effectively was understandably an overwhelming endeavour, assuming that reliance upon any of those statutory provisions was at least theoretically open to the applicant. 17 The College submitted to the Federal Court that the case propounded by the applicant did not disclose any justiciable cause of action, and moreover duplicated the proceedings he had already initiated in the Supreme Court. The College submitted that his case had been brought in reality for a collateral purpose, no declarations or orders as to consequential relief having been framed. Moreover it was emphasised that an order for the applicant to be effectively installed as a Fellow of the College, given that any such order may in theory have been juridically open to be made in the first place, 'might well require supervision from time to time as occasion might require'; reference in that context was made to J C Williamson Limited v Lukey and Mulholland (1931) 45 CLR 282 at 200-300 (Dixon J as he then was). For example, so it was pointed out by the College, the applicant would not be absolved from continuing compliance with the governing rules of or a member's ongoing contractual arrangements with the College. 18 In the upshot it was submitted by the College that no reasonable cause of action had been demonstrated, and the purported proceedings were manifestly and plainly untenable. The College acknowledged that the burden placed on a respondent in an application to dismiss a pleading is a high one and made reference, inter alia, to the following dicta of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.' Reference was also made by the College to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 (per Barwick CJ): '… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' It was the contention of the College that in the context of the current proceedings, the above principles had been satisfied and summary dismissal should be ordered.

Conclusions 19 I would make the observation, at the outset of those conclusions, that the applicant presented to the Court as a courteous person who was anxious to gain the opportunity to demonstrate, as a relative newcomer to Australia, justification for his grievance for non-recognition of his overseas professional qualifications and status. However it is readily apparent that he is unable to succeed in the Federal Court proceedings which he presently would pursue upon the basis that there is unavailable to him any aspects of the scope of curial relief he has sought to pursue in this Court. The submissions of the College in opposition to and denial of his pleaded claims are plainly correct. In short, as I have foreshadowed, the purported bases and reasons for the applicant's submissions advanced to the Court in the present proceedings are misconceived in law, in that they fail radically to plead, much less to even imply, any viable cause of action against the College. 20 The College is therefore inevitably entitled to summary relief by way of dismissal of the applicant's originating process filed in this Court. It is unnecessary therefore for me to further determine whether in any event, the unsuccessful outcome of his proceedings initiated in the Supreme Court to date has established an issue estoppel here operable, or attracts the operation adversely to the applicant of the doctrine of res judicata, or is otherwise oppressive of the College in the technical sense, such as to require dismissal of the subject proceedings in any event. 21 The proceedings must therefore be dismissed as not disclosing a cause of action, and also as vexatious and an abuse of process, pursuant to Order 20 rule 2 of the Federal Court Rules. The applicant must therefore sustain an adverse order for payment of the College's costs of the proceedings. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti J

Date of Hearing: 28 March and 30 May 2006