Bechara v The Law Society

[2000] NSWSC 917

CITATION:	Bechara v The Law Society [2000] NSWSC 917
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3165 of 1999
HEARING DATE(S):	8 September 2000
JUDGMENT DATE:	15 September 2000
PARTIES :	Maria Terese Bechara (Plaintiff) The Law Society of New South Wales (Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr P Neil SC with him Mr S Galitsky (Plaintiff) Mr I G Harrison SC with him Mr B Skinner (Defendant)
SOLICITORS:	M T Bechara & Co (Plaintiff) A S Brown (Defendant)
CATCHWORDS:	CONTRACT - implied terms - Law Society specialist accreditation scheme - contract between applicant and Law Society for accreditation - provision for re-assessment for unsuccessful applicant - applicant failed peer interview - whether implied term that written materials would be kept to allow proper re-assessment to take place
CASES CITED:	BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Enkelmann v Glissan (1982) 2 BPR [97155]
DECISION:	See paragraph 23

11

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

FRIDAY 15 SEPTEMBER 2000

3165/99 MARIA TERESE BECHARA v LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

Outline

1    The plaintiff is a solicitor. She applied to the Law Society of New South Wales for accreditation as a specialist in personal injury law. That involved assessment in three parts: a written test; a mock file assessment; and a peer interview. She attained an acceptable pass level for the written test and mock file. She was judged unsatisfactory in the peer interview component. She complains that there had been a breach of contract between herself and the Law Society and seeks specific performance and/or damages. In addition, or as a last resort, she seeks declarations as to breach.

Facts

2    The Law Society conducts a specialist accreditation programme of its own accord. It has a specialist accreditation department and a specialist accreditation board, presumably set up by authority of the Council of the Society.

3    The Society has issued a specialist accreditation handbook setting out what it refers to as "policy, procedures and regulations". It explains the methods of assessment. As to peer interviews it states:

Peer Interview
These interviews are conducted by a panel of assessors, usually two, asking questions regarding legal practice and/or the candidates mock file if appropriate.

I should add that in some specialties rather than a peer interview the third component consists of what is described as a simulation under which the applicant interviews a person acting the part of the client. That interview is videotaped and the assessment made from the videotape.

4    Candidates are judged against performance standards and either pass or fail. There is a procedure for re-assessment set out in the handbook as follows:

Re-assessment
A brief report on the performance of an applicant who fails is provided with the applicant's results. If the applicant is of the view that the comments of the assessor/s do not adequately reflect the applicant's performance he or she may seek reassessment. This is carried out by an assessor who did not assess the applicant. The reassessor reviews the assessment and states whether he or she agrees with it. The reassessor does not provide comments to the applicant. A non-refundable fee applies to an application for reassessment.

5    An applicant for accreditation is required to pay an application fee of $550.00 and if successful an accreditation fee of $265.00. An accredited specialist must apply for re-accreditation annually and there are certain requirements for that, less onerous than the original accreditation procedure. Accredited specialists are permitted by the Society to promote themselves as such and the Society itself promotes its accredited specialists to some degree.

6    There is a limited right of appeal to applicants which it is conceded is not applicable to the facts of the present case.

7    In addition to the handbook, the Society or the specialist accreditation board has issued a document called "Personal Injury Law Accreditation Assessment Guidelines 1998". This gives candidates information on performance standards, core areas, topics to be covered, knowledge required and methods of assessment. It is quite a useful document. Under the methods of assessment heading is a sub-heading "peer interview" which is as follows:

Peer Interview
Applicants will be interviewed by a panel of two assessors, in which they will be questioned as to how they deal with a typical professional situation e.g. the applicants' understanding of the area, their ability to plan and to communicate ideas as well as their capacity to run matters efficiently and office/file management issues. Assessment may include any of the performance standards, and refer to work presented in the mock file.

8    The plaintiff made the required application for accreditation and paid the fee. She attended the written examination and completed her mock file. On 26 March 1998 she was advised of the fixing of the date of the peer interview for 20 April 1998. The letter giving notice of this included the following:

You are required to participate in an interview for your next assessment for accreditation as a specialist.
Method: You will be interviewed by a panel of two assessors, in which you will be required to discuss the handling of matters, in particular the mock file.
Aim: To clarify issues which arise from the mock file and to assess performance standards, including identification of legal issues, devising and communicating options and practice management issues. The interview will also test your ability to communicate effectively.
Tip: Your mock file will be assessed before the interview. You should familiarise yourself with the facts of your mock file and your response before you attend the interview. PLEASE BRING A COPY OF YOUR MOCK FILE AND ANSWER TO THE INTERVIEW AS YOU MAY WISH TO REFER TO IT DURING THE INTERVIEW.
Duration: 30-45 minutes.

9    The plaintiff attended the peer review. She does not know the names of the two solicitors who interviewed her. I was told by Senior Counsel for the defendant that the Society is aware of their names. The plaintiff has given evidence by affidavit and a little oral evidence as to the course of the interview and this has not been challenged.

10    By letter of 5 May 1998 the plaintiff was advised by the Society of what would happen next. That letter gave information about when the results would be released, the requirements for accreditation, rights of review and the like. The letter included the following:

Is attaining specialist accreditation dependent upon passing all assessment methods?

· Candidates should pass all methods of assessment. However where a borderline result has been achieved in one assessment method, the advisory committee will look at the candidate's performance to see whether the candidate has been able to redeem him/herself overall. Careful consideration of each candidate's efforts is undertaken.

Do candidates receive feedback on performance?

· Candidates who achieve accreditation receive notification to that effect without any commentary as to performance.

· Candidates who are not successful will receive a precis of comments indicating where the candidate failed to meet the standards.

Is there a right of review?

· There are two avenues of review for candidates who fail to meet the standards: re-assessment, and appeal. Firstly if the candidate is of the view that the comments provided do not adequately reflect the performance on the day, the candidate may seek a re-assessment of that method of assessment. An assessor who did not assess the candidate in the first place will review the assessment of the candidate. A fee of $100 per assessment method will be charged. This fee is non refundable.

11    On 5 June 1998 the plaintiff was advised that she had failed. She was given comments on assessment as required by the procedures so that on the mock trial component and the written test component the comment was "meets the standard". The comment on the interview was as follows:

Knowledge vague and confused at times. Practical advice not strong. Lack of knowledge re: assessment damages. Did not demonstrate sufficient knowledge of medico legal issues.

12    The letter stated the following in a paragraph headed "Review":

You have a right to seek a review of your assessment. Firstly , if you are of the view that the comments made do not adequately reflect your performance, you may request a re-assessment by way of a review of those comments. You must give reasons why you believe those comments do not reflect your performance. The review will be carried out by an assessor who did not assess you originally. He or she will review the assessment of your performance and will make a recommendation to the advisory committee.

13    By letter of 16 June 1998 the plaintiff sought review. She set out her recollection of the interview and made some comments on what had happened and some complaints. By letter of 27 July 1998, the board offered a further interview. The plaintiff did not accept this. She has said that she expected that the original interviewers would have kept notes of the interview on which re-assessment could be based. She asked for a copy of those notes. She was told by letter that the policy of the specialist accreditation board was not to release notes. By letter of 27 August 1998 the plaintiff was informed re-assessment had taken place and the original decision confirmed. It seems from the correspondence and I find that the plaintiff's letter to the board setting out her record of events at the interview was before the person who conducted the re-assessment.

14    After this there followed further correspondence between the plaintiff and the Society, which of no real relevance and eventually these proceedings were commenced by summons filed on 13 July 1999. At about that time the documents relevant to the plaintiff's application for accreditation were destroyed in accordance with Law Society policy as to destruction of records. While there was some complaint about this I do not think much turns on it. The plaintiff had asked for notes of the interview, but was refused access to these. She was told that there was no tape recording of the interview. In the absence of evidence from the Law Society that notes were taken of the interview, I think it proper to infer that there were none. The persons who conducted the interview were known to the Law Society and not to the plaintiff, but no evidence was adduced from them. In any event the plaintiff says that she did not see them taking any notes.

Plaintiff's claim

15    The plaintiff's claim is based in contract. Unfortunately this matter proceeded on summons and was not pleaded, but to some extent the fault lies with me in failing to require the issues to be defined by pleadings when the matter was before me for directions. In essence the plaintiff's claim is that there was a contract entered into between herself and the Law Society as a result of her application for accreditation and its acceptance, that the application would be dealt with in accordance with the specialist accreditation handbook, the Personal Injury Law Accreditation Assessment Guidelines 1998, the information on assessments policies and procedures and the specialist accreditation letter dated 5 May 1998. The existence of a contract is not contested by the Law Society, although I do not consider the latter document forms part of it. The plaintiff then claims that the contract was subject to certain implied conditions, namely that adequate and sufficient notes would be taken in the interview component of the assessment, by the assessors. To support this claim counsel pointed out that without such notes, it was difficult to see how re-assessment of the interview component of the procedures could effectively be carried out.

16    The question then is whether or not the contract was subject to this implied term and thus whether the conditions as summarised in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 were met. There is no doubt that the implied term sought is reasonable and equitable, although it would not necessarily make re-assessment of the interview possible. I consider also that it is capable of clear expression and would not contradict any express term of the contract. In addition to that it seems to me that it would be almost impossible to carry out properly the re-assessment to which an applicant for accreditation was entitled under the express contractual terms unless adequate and sufficient notes were taken in the interview, either by way of writing or by way of recording by tape. The question which has exercised my mind is whether or not the term which it is sought to have included as an implied term is so obvious that "it goes without saying". Looking at the matter with hindsight it might seem that the Law Society realised the impossibility of any meaningful re-assessment taking place on the interview comment furnished to the plaintiff and it was for that reason that a further peer interview was offered. In fact, had the Law Society at that stage told the plaintiff that no material was available other than her comments and the comments of the interviewers which had been furnished to her, and at the same time offered a new peer interview, it would seem to me that the plaintiff could not have claimed that she suffered any damage, if she had refused that offer. Her case is, of course, that she assumed there would be some material although it is not quite clear to me why she should have made that assumption as, on her evidence, no notes were made during the interview. The difficult question is whether or not the term put forward is so obvious that it goes without saying. This is a matter which has caused me some difficulty. I have, however, concluded that this condition is not fulfilled. My reasoning for that is that I do not consider that a person reading what was said about the peer interview segment of the assessment would conclude that the questions and the answers would be noted in some way which would make re-assessment possible. That would almost assume that the questions were formulated in advance and did not necessarily flow from the previous answers and there would be some method of placing ticks or crosses against the questions to indicate how the candidate performed. It would be easy enough to perform a reasonably serious re-assessment of the written examination and probably of the mock file and the examiners' or assessors' comment on those if appropriate. However, the implied term, so far as an oral interview is concerned, is not one that would necessarily spring to one's mind and on consideration I think that if the question was asked the answer would certainly not be "of course".

17    There is one further relevant matter. At the end of the Personal Injury Law Accreditation Assessment Guidelines 1998 there is included under a heading "Supplementary Assessment/Assignment" a statement as follows:

Applicants may be required to undertake further assessment/assignment. This will allow applicants who have failed in some respect to meet requirements without having to make a further application involving the full assessment process. The decision whether or not to provide supplementary assessments rests with the Board".

It would seem to me that this was the course which the Board decided to take with the plaintiff. It offered her a new assessment of the peer interview segment. In fact, it suggested this on two occasions, but this offer was rejected. The existence of such a procedure does weigh against the implication of the term for which the plaintiff contends. It is also possible to say, at least in hindsight, that the Law Society should have openly explained its difficulty to the plaintiff, who might then have accepted the offer of a new peer assessment. An open explanation of the reasons for re-assessment was appropriate and I think should have been given.

18    It follows from this that the plaintiff's claim fails.

19    If I am wrong in these matters it is still necessary to bear in mind that having regard to my conclusion that there was no written material other than the comments on the part of the interviewers, the person who conducted the re-assessment obviously had those comments and also had the plaintiff's comments on the interview as had been set out in her letter to the Board. In other words, there is no reason why it should not be assumed that the person conducting the re-assessment had regard only to the original assessors' comments and the material put forward by the plaintiff, but even on that material, decided to confirm the decision. That is really little to the point, because the case of the plaintiff is dependent upon the implied condition put forward being accepted as part of the contract.

20    The amended summons sought an order for specific performance. The orders sought are that the defendant conduct a proper assessment of the plaintiff's application or conduct a proper re-assessment of the application. Neither of those orders could reasonably be made. The contract is no longer in executory form. The material, such as it was, is no longer available. It would not be possible to make an order for specific performance by way of requiring some new assessment to be made and there is no evidence that the re-assessment which was conducted so far as it could be conducted, was not a proper re-assessment. In other words, it would not be possible to comply with an order for performance. Neither would it be proper for the court to order that re-assessment take place on the basis of the record of interview created by the plaintiff.

21    If the plaintiff had made out a case it follows that any remedy should be limited to a claim for damages for breach of contract. Those damages, apart from nominal damages, would have to be based on a claim for damages for loss of a chance of being accredited had the contract been complied with. In other words, the chance of the re-assessment being successful. In that matter, the court would just have to do the best it could, but that would not mean the remedy was not available. The problem for the plaintiff, however, is that while breach of a contract in itself gives rise to a right to nominal damages, the court does not order a reference or inquiry by a Master as to damages, unless there is some evidence before the court to establish that there is such a claim above the claim for nominal damages. This would require not only the acceptance of loss of a chance of accreditation but some evidence of damages sustained through loss of that chance. In other words there would need to be some prima facie evidence that this plaintiff would have obtained financial benefit as a result of accreditation. Without such evidence, no reference to a Master would ordinarily be made: see Enkelmann v Glissan (1982) 2 BPR [97155].

22    While the plaintiff sought that declarations be made, even if the claims for specific performance or for damages failed, it is not necessary for me to take this matter further in view of my decision on the contractual terms. However, had I found that there was a breach of contract entitling the plaintiff to nominal damages I consider that this might have been one of the few cases where a declaration was justified because it would have vindicated the claim of the plaintiff, who had a real interest in proper procedures and it might have resulted in beneficial changes to make the rules clearer so far as this part of the assessment was concerned.

23    It follows from all of this that the amended summons should be dismissed. The exhibit can be returned. Costs would normally follow the event, but this is a case where I consider a great deal of difficulty was caused by the Law Society so that subject to any further argument there should be no order as to costs.
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Last Modified: 09/27/2000