D'Souza v Royal Australian and New Zealand College of Psychiatrists

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7232 of 2004

Dr RUSSELL D’SOUZA

Plaintiff

THE ROYAL AUSTRALIAN AND NEW ZEALAND COLLEGE OF PSYCHIATRISTS

PROFESSOR PETER ELLIS

PROFESSOR JOHN CONDON

Dr HELEN SLATTERY

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

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Judicial review – certiorari – professional association – decision of domestic tribunal – whether amenable to judicial review – whether ground of apprehended bias available – whether Tribunal misunderstood its “jurisdiction” – whether want of fair procedures or reasonable apprehension of bias – whether decision reasonably open – whether relief should be refused on discretionary grounds.

Unreasonable restraint of trade – decision of domestic tribunal – whether restraint in fact – effect of decision – whether continuing non-election of plaintiff to fellowship of a professional association an unreasonable restraint of trade.

JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 30 and 31 March; 1, 4, 5 and 6 April 2005
DATE OF JUDGMENT:	18 May 2005
CASE MAY BE CITED AS:	D’Souza v RANZCP
MEDIUM NEUTRAL CITATION:	[2005] VSC 161

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D. Mortimer, SC and Ms C. Harris	Middletons
For the Defendants	Mr P. Hanks, QC and Mr J. Pizer	Lander & Rogers

TABLE OF CONTENTS

Statement of the Case........................................................................................................................ 1

The Plaintiff........................................................................................................................................ 3

The College......................................................................................................................................... 8

Training and Examinations............................................................................................................ 11

Membership of the Committee for Examinations..................................................................... 13

Examination Arrangements........................................................................................................... 14

The Code of Ethics........................................................................................................................... 17

Some Aspects of the 23 October Clinical Viva........................................................................... 18

Review and Appeal.......................................................................................................................... 20

Amenability to Judicial Review?.................................................................................................. 25

Availability of Apprehended Bias?.............................................................................................. 32

The Substance of the Plaintiff’s Claim that the Panel’s Decision should be quashed...... 34

Loughran’s Enquiries................................................................................................................. 34
The Panel’s Review “Jurisdiction”........................................................................................... 36
Denial of Fair Procedures. Apprehended Bias...................................................................... 52
A Decision not Reasonably Open?........................................................................................... 64
Refusal of Relief on Discretionary Grounds?.......................................................................... 65

Unreasonable Restraint of Trade.................................................................................................. 67

Principles...................................................................................................................................... 67
Restraint in fact............................................................................................................................ 69
Unreasonable restraint?............................................................................................................. 72
The examiners’ decision............................................................................................................. 72

A causation issue..................................................................................................................... 73
The scope of enquiry into reasonableness................................................................................. 75
Reasonableness......................................................................................................................... 77

The College’s continuing “refusal” to elect the plaintiff..................................................... 100

Summary.......................................................................................................................................... 108

HIS HONOUR:

Statement of the Case

The plaintiff is a medical practitioner. This proceeding arises out of his failed attempt in 2003 to pass an examination which was the last step in his becoming qualified for election to Fellowship of the Royal Australian and New Zealand College of Psychiatry (“the College”). The College, an incorporated body, is the first defendant. The examination was the so-called “clinical viva”. The plaintiff was required to interview a patient suffering from psychiatric illness and then make oral presentations to two examiners; and then repeat the process with a second patient and different examiners. The clinical viva was held on 23 October 2003.

According to the amended originating motion there are three broad aspects to the plaintiff’s claim.

First, the plaintiff contends that the decision to fail him was an unreasonable restraint of trade in light of his performance in the viva, “when judged objectively, reasonably and without bias”. He contends also that to fail him was an unreasonable restraint of trade in light of his qualifications and experience, and what is said to be his “demonstrated expertise in the area of bipolar disorder”.

Second, the plaintiff complains about the College’s continuing refusal to admit him to Fellowship. He contends that it is an unreasonable restraint of trade in light of

“(i) [His] qualifications and experience;
(ii)The Honorary academic and clinical appointments held by [him];
(iii)[His] demonstrated and recognised expertise in the area of bi-polar disorder;
(iv)[His] demonstrated and recognised expertise in the areas of spiritually augmented cognitive behaviour therapy, telemedicine, and the delivery of mental health services to rural and regional Australia;
(v)The [College’s] recognition of [his] areas of expertise and specialization referred to in paragraph (iii) and (iv) above, by reason of the [College’s] invitations to [him] to convene, chair or present at seminars and conferences held under the auspices of the [College], in circumstances where the [College] imposed and received substantial fees for participants’ attendance.”

The relief sought by the plaintiff in respect of each of the restraint of trade aspects of the claim is a declaration. Paragraphs 8 and 9 of the originating motion seek relief by way of mandatory injunctions. But it was not suggested by senior counsel for the plaintiff in her final address that relief in the form sought by paragraph 8 could presently be appropriate to a successful restraint of trade plea; and she agreed that paragraph 9 was not in point.[1]
[1]T 631 - 2

Pausing for a moment, the plaintiff’s claims, as pleaded, that conduct by the College[2] has constituted an unreasonable restraint of trade make greater or lesser reference to his qualifications, experience and expertise. In her final address, however, counsel for the plaintiff pertinently focussed upon her client’s clinical experience – as demonstrating, she submitted, the clinical competence which is central to appointment as a Fellow of the College. She relied upon his qualifications and asserted areas of expertise essentially in support of her submission that the plaintiff had demonstrated clinical competence.
[2]Directly and via its examiners

Third, in circumstances that I will later outline the examiners’ decision was referred to and was considered by a Review Panel (“the Panel”). The Panel was constituted by Professor Peter Ellis, Professor John Condon and Dr Helen Slattery. They are the second, third and fourth defendants. The Panel decided, in substance, that the decision to fail the plaintiff should be sustained. The plaintiff seeks to have that decision quashed, contending that the same is amenable to judicial review. He argues that the decision should be quashed because:

·The Panel did not exercise the review jurisdiction with which it was invested[3].
·The defendants denied the plaintiff natural justice in that there was reasonable apprehension of bias on the part of the Panel[4].
·The defendants denied the plaintiff natural justice in that they failed to provide fair procedures for the conduct of the review[5].
·The decision of the Panel was not reasonably open to it on the material before it[6].

Each of those matters is relied upon as a sufficient ground for quashing the Panel’s decision.

[3]Originating motion, para 2

[4]Originating motion, para 3

[5]Originating motion, para 4

[6]Originating motion, para 5

Counsel for the plaintiff faintly submitted in her final address, in answer to my questions, that relief in the form of the mandatory injunction sought by paragraph 9 of the originating motion could be an appropriate form of relief – that is, in addition to an order which quashed the Panel’s decision. For reasons which I expressed in argument,[7] I disagree with that submission. In the event, the relief sought by paragraph 9 can be put to one side in the context of the attack on the decision of the Panel.
[7]T 632 - 4

The defendants deny that the decision of the Panel is amenable to judicial review. They deny, in any event, that the decision of the Panel could be open to challenge on the ground of apprehended bias. They further dispute each of the factual bases upon which the plaintiff founds his claim. They say also that, all other things apart, relief should be denied on discretionary grounds.

The College disputes, also, the plaintiff’s contentions that each of the decisions of the examiner to fail him and its continuing refusal (it cavils with “refusal”) to admit him to Fellowship without further examination constitutes an unreasonable restraint of trade.

The Plaintiff

Dr D’Souza was born in India in 1951. He obtained his qualifying degree to practise medicine in 1977 in Madras. He migrated to Australia in 1988. He has obtained post-graduate qualifications as follows:

·Doctor of Medicine (Madras University, 1987)
·Graduate Diploma in Mental Health Science (University of Melbourne 1992)
·Master of Psychological Medicine (Monash University 1999)
·Senior Disability Analyst (Psychiatry) and Diplomate[8]
·Graduate Certificate in Clinical Trials Management[9]

[8]American Board Certification of Disability Analysts (by examination), January 2001

[9]University of Canberra, June 2001

In 1992 the plaintiff was accepted by the College into its training program. The intended end-point of training was Fellowship of the College.

Over a period of time the plaintiff either successfully completed or was exempted from aspects of the training program. By May 2001 it remained for him to successfully complete the so-called “Section 1 Clinical Examinations” – that is, the clinical viva.

The plaintiff attempted the clinical viva in May 2001, October 2001, October 2002 and May 2003. He failed on each occasion. He made a further attempt in October 2003. Again he failed. This proceeding arises out of his last attempt.

The circumstance that the plaintiff has not been admitted as a Fellow means that he does not have a qualification which is pertinent to some hospital appointments, to the performance of certain work pursuant to the Mental Health Act 1986, and to practise as consultant psychiatrist in private practice. It places a barrier, though not insuperable, upon him being recognised as a consultant or specialist psychiatrist for purposes of the Medicare rebate system. Of these matters, more later.

Although that the plaintiff has not been admitted as a Fellow, he has in fact practised as a psychiatrist in the last decade or so. Thus:

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

In some, not all, of these placements the plaintiff has conducted clinical practice.

In each of the placements which has involved clinical practice the plaintiff should have been subject to superintendence by a consultant psychiatrist. But in fact that has not always been the case.

I mentioned the Mental Health Act a few moments ago. It appears that Fellows of the College are readily delegated certain powers and functions under that Act. In some circumstances a practitioner who is not a Fellow may be delegated such powers and functions. The plaintiff was delegated powers and functions in 2003 and 2004. He has no delegation at present. Of this, more later.

I mentioned earlier in these Reasons the plaintiff’s assertion that he has “demonstrated expertise in the area of bipolar disorder”; and, elliptically, to his assertions that he has “demonstrated and recognised expertise in the areas of spiritually augmented cognitive behaviour therapy, telemedicine and the delivery of mental health services to rural and regional Australia”[10].
[10]See amended originating motion, particular (f) to para 6, particular (c)(iii) and (iv) to para 7, and paras 7-10 of plaintiff’s first affidavit, sworn 26 July 2004.

The plaintiff’s CV reveals that since 1998 he has made a number of presentations on the subject of telemedicine. Further, in 2001 and 2002 he was an invited lecturer and/or the chairman at meetings in the United States, Canada, Norway, Sweden, the United Kingdom and Australia. In most of those instances the subject-matter of discussion was telemedicine or spiritually augmented behaviour therapy. In two instances[11] the plaintiff was invited to chair and organise a session on Rural and Remote Psychiatry for the College; and in one instance a symposium on “Spirituality and Psychiatry”[12]. More recently, in May 2003, he was the convenor of symposia at the 38^th Congress of the College. The topics were bipolar disorder and “spirituality and psychiatry”.
[11]May 2001 and April 2002
[12]April 2002

The plaintiff’s CV further reveals that he has presented papers on the topic of bipolar disorder in recent years.

Again according to his CV, the plaintiff has had published, has had accepted for publication, or has written, alone or with colleagues, 31 papers. They span the period, so far as I can see, 1987-2004, most being grouped in the period 2000-2004. Topics addressed include bipolar disorder, telemedicine and spiritually augmented cognitive behavioural therapy.

I should mention two other circumstances revealed by the plaintiff’s CV. First, on his account he has had experience for a considerable number of years teaching undergraduate and postgraduate medical and allied health students, both in India and Australia; and as an examiner of medical students. Second, between 2000 and 2004 he participated in a number of radio and TV presentations. For the most part they addressed, it appears, telemedicine or the relationship between psychiatry and spirituality. Considerably mentioned in the evidence was an ABC Compass program entitled “Psyche and Soul”. It went to air on 5 October 2003 – this is, only a few weeks before the clinical viva the subject of the present proceeding.

The plaintiff’s CV certainly reveals, then, his wide involvement in various forms of professional development. Whether it makes good his evidence that he is –

“nationally and internationally recognised for [his] expertise in bipolar disorder and for [his] research in areas including telemedicine and spirituality in psychiatry”[13]

is another matter. So, for instance, it seems clear that – for whatever reason – the plaintiff has not published in “high citation”, or leading, journals. Again, the plaintiff’s work with telemedicine is not unique. Many other practitioners in Australia work in telemedicine[14] - although Professor Kalucy, called for the defendants, said that the plaintiff was “very knowledgeable about telemedicine, actually”[15]. Further again, Professor Keks – called for the plaintiff, but evidently considerably estranged from him for reasons good or bad – said that:
“Dr D’Souza, in my view, made a valuable contribution in re-invigorating the spiritual dimension of psychotherapy. He added to a body of work which has a proud history in the realms of such contributors and Victor Frankel in logo therapy, in bringing in a spiritual dimension to treatment which can often assist many people suffering from horrendous problems. In this regard I felt that Dr D’Souza had made an excellent contribution.”[16]

But asked, in effect, to comment about the plaintiff’s national or international standing in the discipline of psychiatry beyond that, he said:
“Dr D’Souza has had an extraordinary capacity for networking and communication with many colleagues nationally and internationally. He travelled an enormous amount and he has had much involvement in organisations of conferences, in symposia, often at the level of organisation and communication rather than necessarily leading the intellectual charge, as it were.”[17]
[13]Para 7 of plaintiff’s first affidavit.
[14]Plaintiff, T 153
[15]T 360
[16]T 223. The nature of the relationship between psychiatry and the spiritual needs and activities of patients was described by Professor Singh at T 256
[17]T 223

The College

The College is a company limited by guarantee. Its objects include the following:

“(b)To consider, establish and conduct courses of study and technical training and to diffuse any information calculated to promote and ensure the fitness of persons desirous of qualifying for membership of the College.
(c)To grant to registered medical practitioners or graduates in medicine, diplomas, certificates or similar recognition of knowledge in psychiatry or ancillary sciences and branches of medicine either alone or in conjunction with other bodies thereto authorised.

(d)To establish the status and classes of members of the College and to regulate the same and to admit to such status and classes such persons as shall be eligible therefore according to the regulations and requirements of the College.
(k)To cultivate and maintain high principles and standards of practice and ethics in respect of psychiatry, to promote fair, honourable and proper practice and discourage and suppress malpractice or misconduct therein, to settle doubtful points of practice and questions of professional usage, to protect the honour, good reputation, interests and work of the College, to consider complaints against members or Associates, to define the grounds upon which a member or Associate may be expelled, suspended or subjected to other disciplinary measures and to establish procedures for expelling, suspending or otherwise disciplining members and Associates whether consequent upon a complaint or otherwise.”[18]

[18]Exhibit PRL 1 to the first affidavit of Paul Loughran, affirmed 9 September 2004.

According to its articles, the members of the College shall “consist of Honorary Fellows, Fellows, Retired Fellows and Corresponding Fellows”.[19]
[19]Article 3, part of exh. PRL1

Article 5 provides as follows:

“A candidate shall only be eligible for election as Fellow if the candidate:
(a)is entered on the register of Medical Practitioners of a State or Territory of Australia or of New Zealand or of some other country, State or Dependency approved by the General Council for the purposes of this Article; and
(b)has undergone such educational experience as specified by the General Council from time to time; and
(c)has satisfied the Fellowships Board at an examination for membership.“

That article concerns, then, eligibility for election as a Fellow. Article 7 deals with the process of election.[20]

[20]According to the College’s Annual Report for 2003 there were then about 2350-2400 elected Fellows in Australia and New Zealand.

Articles 8 and 9 deal, respectively, with Honorary and Corresponding Fellows. The General Council of the College (“the Council”) is empowered to elect

“by unanimous vote of the members present... persons of eminence and distinction”

as Honorary Fellows, notwithstanding that the same may not have the qualifications for fellowship provided by the articles.

Again by unanimous vote of all members present the Council is empowered to elect “a limited number of Corresponding Fellows” for a period not exceeding five years. Candidates must be proposed by two Fellows of the College having personal knowledge of the candidate and shall be

“... legally qualified medical practitioners engaged in the practice of psychiatry, either not eligible or unlikely in the opinion of the Council to become candidates for honorary fellowship or fellowship.”

Pausing for a moment, the burden of the evidence was that the plaintiff would not qualify for election as an Honorary Fellow. Counsel for the plaintiff did not suggest the contrary in her final address. Again, there was the briefest mention of Corresponding Fellows in counsel’s opening address. There was no evidence to suggest that the plaintiff has ever sought election as a Corresponding Fellow. It could not be suggested – and it was not – that the College has been in default by not itself instituting a proposal for the plaintiff’s election as such a Fellow.

I turn to Article 11. It provides -

“Registered medical practitioners who are certified by the Fellowships Board as being in accredited College training may apply to General Council to become Associates of the College. Such persons may remain Associates of the College subject to annual review by General Council up to a maximum of ten years so long as they are certified by the Fellowships Board as being in accredited training. Associates of the College shall pay an annual subscription determined from time to time by General Council but which shall not exceed an amount of one half of the annual subscription of Fellows. Associates of the College shall not be entitled to use any title or abbreviation thereof indicative as associateship of the College nor use any appendage to their names or other means to so signify associateship or affiliation to the College and any such conduct shall be deemed to be detrimental to the interests of the College and the profession of psychiatry for the purpose of Article 71. Associates shall not be entitled to vote on any business at any meeting or to vote at elections of General Council or a Branch Committee or propose or second any candidate for election as a Fellow or to any position in the College or to be elected to any such position.”

The plaintiff was, at relevant times – as I understand him still to be – an associate of the College.[21] There was thus a contractual relationship between he and the College, a relationship which persists.
[21]T 75

The governing body of the College is the Council.[22] It is specifically empowered

“to prescribe a course of training to be undergone by candidates for fellowship of the College and the nature of the examination to which such candidates shall submit themselves in order to determine their suitability for fellowship and the fees payable by candidates for any such course of training or examination.”[23]

[22]See Articles 15, 28-33

[23]Article 31(a)

I note also that the Council has a specific power to make, vary and rescind by-laws, and in particular to

“(iv)prescribe the procedure to be followed in relation to applications for membership and associateship and to make recommendations thereon;

and
“(v)constitute a Fellowships Board and regulate all things in connection with the carrying out of their duties by the members of the Fellowships Board and its sub-committees. [24]

[24]Article 31(m)

The Council is empowered to “adopt such means as it deems necessary and sufficient” to bring by-laws to the notice of members and associates. The by-laws are made binding upon affected member and associates.[25]
[25]Article 31

Finally with respect to the Articles I should refer to certain provisions dealing with discipline. A regime for investigating complaints against members and associates is set up by Articles 71, 71A, 71B and 71C. The powers of the Council on consideration of a complaint or charge are set out in Article 71C(c)(d).

Training and Examinations

As at October 2003 there were by-laws in force which constituted a Fellowships Board. Also in force were ”Training and Examination By-Laws for Fellowship and Advanced Training” (“the 2002 by-laws”).[26]
[26]Exhibit RFD 2

According to Paul Loughran, then the College’s Director of Education, in November 2003 the Council adopted the “Training and Assessment Regulations November 2003” (“the 2003 Training Regulations”).[27] The evidence leaves no doubt that the 2003 Regulations substituted a significantly different examination regime for the regime of clinical vivas which had operated hitherto. Of the differences, more later.
[27]Those Regulations are exhibit PRL 13 to Loughran’s third affidavit, affirmed15 March 2005

The 2002 by-laws summarised the College’s training approach this way:

“The College program for postgraduate training in psychiatry is based on an apprenticeship model. It requires satisfactory completion of a range of clinical training experiences to ensure an adequate depth and breadth of training to prepare the trainee for specialist practice. It requires successful completion of a minimum of five years full-time or equivalent part-time training in psychiatric practice. This generally includes four years of basic clinical training in accordance with set criteria; preparation of related case histories to be submitted at regular intervals throughout training; completion of written and clinical examinations; an elective year of training; and a dissertation.”[28]

[28]Introduction, exh RFD 2

The 2002 by-laws summarised the roles of the Fellowship Board and the Committee for Examinations as follows:

“The Fellowship Board is responsible for consideration and determination of policy issues in relation to training and examination. It also oversees the functions of its various committees, including the … Committee for Examinations.

and
“The Committee for Training and the Committee for Examinations are responsible for the program for postgraduate training in psychiatry leading to award of Fellowship the College.”[29]

[29]Introduction, exh RFD 2

The 2002 by-laws contemplated a five year period of training which could lead to a recommendation to the Council for election of a trainee as a Fellow, the steps being

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

A reading of the 2002 by-laws shows that they contemplated that a trainee would undertake, throughout the five year period, clinical work and clinical examinations; and that throughout there would be supervision – varying in extent – of the trainee’s clinical work.

The Section I examination consisted of separate written and clinical examinations. The latter could not be attempted except if the former had been passed. But if the former was passed and the latter failed, the pass would stand good for three years.

There were two elements of the clinical examination: a clinical viva (which is what the plaintiff attempted on 23 October 2003); and a consultancy viva. Satisfactory performance in the latter would stand good for three years.

The section II examination consisted, as I understand it, of a dissertation.

In addition to completion of the Sections I and II examinations, a candidate was required to attend a final viva. Usually, according to explanatory notes to the by-laws, the latter was conducted at the end of the Section I examination.

It is convenient to describe the plaintiff’s status, in the context of the 2002 by-laws, immediately before 23 October 2003. He had demonstrated[30] general medical competency, for in 1999 he had been given a Certificate of Eligibility to undertake the Section I examination. Further, he had passed the Consultancy Viva – that is, one of the two vivas within Section I. Further again, he had been exempted from the training and examination requirements of the Section II examination. What stood between him and qualification for election as a Fellow was the clinical viva which formed part of the Section I vivas; and (perhaps) the final viva. He had, as I have said earlier, sat for and failed the clinical viva on four occasions before October 2003.
[30]Though not when first assessed

Membership of the Committee for Examinations

At pertinent times, according to the College’s 2003 Annual Report,[31] there was a Committee for Examinations (“the Committee”). It had 25 members, the chairperson being Dr Elizabeth O’Brien. She was one of the plaintiff’s examiners on 23 October. Other members included Dr Simon Hatcher, another of the plaintiff’s October 2003 examiners, Dr Kym Jenkins and Dr Helen Slattery (a member of the Panel and the fourth defendant). Dr Jenkins was also a member[32] of the Victorian Branch Committee.
[31]Exhibit RFD 31 to the plaintiff’s second affidavit, sworn 5 October 2004
[32]See page 30 of the Report

Examination Arrangements

In the lifetime of operation of the 2002 by-laws, and for some uncertain period prior thereto, clinical vivas were held about six monthly. Candidates were required to give notice of intention to sit the examination. A fee was payable. Fees were not inconsequential. According to the financial statements accompanying the 2003 Annual Report, examination fees generated about $877,000 out of total College income of some $5.7M.

A list of candidates was provided to examiners at least one month prior to examination. About two weeks prior thereto, individual examiners were provided with the names of candidates whom they would be examining. It was intended, if an examiner for some reason considered he or she ought not examine a particular candidate, that the examiner – after the first or at least the second contact – should notify the College.

The examiners on a given day included members of the Committee and co-opted members of the College. The latter were Fellows who had expressed an interest and willingness to participate. It is not clear to me that every member of the Committee examined on every day that examinations were held.

The clinical viva required the candidate to interview a patient for about an hour. The interview took place without the examiners being present. The candidate then had about 15 minutes to collect his or her thoughts before making an oral presentation to the examiners.

In the 15 minute interim period the examiners interviewed the patient. The examiners, generally if not always, also had the advantage of access to a case summary prepared by the patient’s treating team – access which the candidate did not have.

What then followed occupied about 30 minutes. The regime, broadly described, was that the candidate would present

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

About 10 minutes was allowed for all this. Then followed, in the broad, an opportunity for each examiner, in turn, to probe the candidate for about 10 minutes.

Each examiner was provided with a document entitled “Examiner’s Mark Sheet”. The Mark Sheet set out headings in the following sequence:

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

At the foot of the Mark Sheet were the following:

“Personal Grading (A, B, C or F)
Final Mark
Agreed Common Mark.”

The evidence showed that examiners made notes under the various headings; but that the practice of individual examiners in note-taking was not identical. The evidence showed also that notes taken by examiners in the case of the plaintiff were not a transcript. The contrary could not have been expected. But that leaves open the question what should have been expected.

The references to “grading” and “mark” need to be explained. The Committee produced a document, apparently current as at October 2003, entitled “Marking Guidelines for Clinical Examinations”.[33] It was evidently designed to be read in conjunction with another College publication entitled “The Examiners’ Task in the RANZCP Clinical Examinations”.[34] The latter provided what the authors – Professors Kalucy and Condon (the second of whom was a member of the Panel and the third defendant) – described as “general guidelines which, at best, simply illustrate principles”. The authors warned that the document did not prescribe “rules”. For all that, reading the document makes it pretty clear, I consider, that it was intended to provide examiners with an approach to examining candidates which would be of substantial use in most cases.
[33]Exhibit PRL 4
[34]Exhibit PRL 5

In any event, returning to the marking guidelines, the scheme described marks of “A”, “B”, “C” and “F”. A, B and C were passes, F a fail.

The guidelines provided that

“The candidate for each of the two examinations held on the day is given a grading of ‘A’, ‘B’, ‘C’ (Pass) or ‘F’ (Fail) by the agreed common assessment of the examiners involved. When there is a fail mark awarded (which may initially be awarded a ‘D’ for discussion) the examiners will generally have to present the reasons for that mark to the examiners’ meeting held after the examinations. After discussion the initial marks may be confirmed as ‘F’, or a new mark awarded.”

The guidelines further said this:

“’C Mark: this is a pass and refers to a sound performance where the candidate clearly meets the standard. That is, the candidate had achieved a junior consultant level of performance, not brilliant but sound. The candidate’s level of competence doesn’t allow them to get on top of the case. The examiners, on reflection however have little doubt that the candidate has passed.”

What I have so far said does not fully describe the marking process. The entry beside “Personal Grading” was intended to reflect the particular examiner’s initial reaction to the candidate’s presentation and questioning. The entry beside “Agreed Common Mark” was intended to set out the agreed common assessment of the two examiners. The entry beside “Final Mark” was intended to set out the mark after any presentation to the examiners’ meeting.

I have referred more than once to an examiners’ meeting. Quite a number of examiners would be involved in clinical vivas on a particular day. After the examinations were concluded, all the examiners would meet. It appears that there would be some discussion about each candidate’s performance – the candidate being identified by number, not name. In the case of candidates whom the examiners had passed without hesitation, discussion would likely be short. In the case of candidates who had been marked “D” or “F”, discussion would likely be more substantial. The examiners of such a candidate would be called upon to explain the candidate’s performance. Out of the discussion would emerge a final mark. As I perceive it, the mark might reflect either the reconsidered opinion of the particular examiners, or the consensus of the examiners’ meeting.

Subsequent to a candidate failing a clinical viva, it was the custom to provide an examiners’ feedback sheet. The plaintiff received such a sheet in respect of his viva on 23 October 2003.[35]
[35]Exhibit RFD 4

The Code of Ethics

The College published a document entitled “Code of Ethics of the Committee for Examinations”. According to Loughran, a copy was provided to each examiner before the plaintiff’s October 2003 clinical viva. I draw attention to the following passages in the document:

“2.The examination process is intrinsically and necessarily testing and demanding. Nevertheless, examiners have a duty to strive to ensure that it does not impose undue or unnecessary suffering on candidates, and that it preserves their personal and professional dignity.
2.1Examiners will strive to examine candidates skilfully, honestly and fairly. The examiners will be accountable to the Committee for Examinations for the thorough documentation of each candidate’s performance and for the exposition of the processes of evaluating this performance.
2.6Candidates will have access to a process for complaint and redress for any concern about injustice or disadvantage within the examination process.”

Paragraphs 2.1 and 2.6, read together, seem to me to imply the need for preparation of a documentary record of a candidate’s performance that would assist explanation by the particular examiners of a “D” or “F” common assessment, and enable investigation of the substance of any complaint which the candidate might make. Yet, bearing upon the second of those matters, the practice was apparently to destroy examiners’ mark sheets, the retained record of performance then consisting of the feedback sheet provided to an unsuccessful candidate and the formal record of the examination outcome. So, it appears, it is only by chance that the examiners’ mark sheets were extant in this case.

Some Aspects of the 23 October Clinical Viva

In respect of the first patient examined by the plaintiff (Case A), the examiners were Dr Simon Hatcher and Dr Carol Harvey. The former was a member of the Committee, the latter was a co-opted examiner.

The examiners had the advantage of a six page case summary detailing the patient’s psychiatric history, diagnosis and treatment in the period 1992-2003.

Dr Hatcher’s personal grading of the plaintiff was “C”. Dr Harvey’s personal grading was “F”. Their agreed common mark was “F”. The final mark was “F”.

In the case of the second patient (Case B), the examiners were Dr Elizabeth O’Brien, the Chairperson of the Committee, and Dr John Reilly, the co-opted examiner. The latter had examined candidates, in all about 12, on two previous occasions.

The examiners were provided with a case history. Five pages in length, it disclosed that the patient had a history of intermittent psychiatric illness which had first required treatment in 1992.

Dr Reilly’s personal grading was “C”. According to his Mark Sheet,[36] the Agreed Common Mark was “D” and the Final Mark was “F”.
[36]Part of exh JJR 2 to Dr Reilly’s affidavit, affirmed 21 March 2005

Dr O’Brien’s Mark Sheet[37] recorded nothing at all in the spaces reserved for her Personal Grading, Agreed Common Mark and Final Mark. The witness, throughout her evidence, essayed a certainty of recollection which in a number of respects I consider did not accord with the fact. She also dismissed criticism that her mark sheet, by recording no note of the grading and marks, was, in effect, incomplete, unhelpful or opaque. In my opinion the criticism was well-founded. But for all that, I do not think that the particular situation is in doubt. I consider that Dr Reilly’s notes capture the sequence of what happened.
[37]Part of exh EMO 2 to Dr O’Brien’s first affidavit, affirmed 14 March 2005. The sheet was incomplete, but nothing presently turns upon it.

There is a question how it came about that the final mark was awarded. The submission made for the defendants was that the particular examiners awarded that mark, having been informed by discussion at the examiners’ meeting.[38] Counsel for the plaintiff submitted that the matter was not so clear, referring to some evidence given by Dr Reilly,[39] and arguing that Dr O’Brien’s evidence was an account of the general practice, not more.
[38]Counsel referred to the evidence of Dr O’Brien at T 494 lines 3-7 and to her answer to question 2 in her letter which is exhibit EMO 3 to her first affidavit.
[39]At T 482

In my opinion, counsel for the plaintiff correctly characterised Dr O’Brien’s evidence on this point. Dr Reilly’s pertinent evidence, on the other hand, was also uncertain. That said, I have reached a definite conclusion: the great probability is, whether by a decision of the examiners’ meeting or by a decision of the particular examiners after discussion at such meeting, that Dr O’Brien had her way. She was Chairperson of the Committee whilst Dr Reilly was a co-opted and less experienced examiner. Further, Dr O’Brien created the strongest impression in her evidence that she expected to and would have her way upon a question to do with a mark that she awarded a candidate[40]. If she did not persuade Dr Reilly directly, I do not doubt that she persuaded the examiners’ meeting that the plaintiff should be failed, and thereby Dr Reilly.
[40]See, particularly, T 489, lines 21-24

My summation of the identity of the examiner teams and of the marking sequences shows that in Case A it was the co-opted examiner whose personal mark failed the plaintiff, whilst in Case B it was the Committee examiner who did so. That presents an impediment to an argument that there was institutional (in the sense of College) bias against the plaintiff.

Thus far I have set out the identity of the examiner teams and the marking sequences. I have said nothing about criticism of the examiners’ performance made by counsel for the plaintiff. The end point of those criticisms lay in the proposition that the examiners’ decision to fail the plaintiff, on analysis, was shown not to have been fair, logical and soundly based (which, for convenience, and acknowledging that it does not capture every nuance of that phrase, I will contract to “sound”) – this bearing both upon the claim for prerogative relief and the claim that the examiners’ decision was an unreasonable restraint of trade. Of the criticisms, more later.

Review and Appeal

The 2002 by-laws provided that -

“13.1Trainees may request a review of a decision affecting them in relation to training and examinations. Such requests will be considered by the relevant Committee and/or the Fellowships Board.
13.2A trainee who is adversely affected by a decision in relation to training or examination may appeal to the Appeals Committee of the College in accordance with the relevant College By-laws.”

There was no evidence as to any document which set out the review jurisdiction or process as at early 2004. There were, however, “By-Laws relating to Appeal Committees of the General Council of the RANZCP”, (“the Appeals by-laws”) operative from 1 July 1995.[41]
[41]Exhibit PRL 18

Clause 5.1 provided, inter alia, that a person adversely affected by a decision of

“(d)Any board or committee of the College with responsibility for training, accreditation, examination or professional standards”

might lodge an appeal within 30 days of receiving notice in writing of such decision.

Clause 5.3 provided that appeal might only be made on one or more of the following grounds:

“(a)new information which was not available or was not considered when the appealed decision was made;
(b)an error of law in the process by which the primary body made the appealed decision.”

I note also cl. 6.3, which empowered the Chair of an Appeals Committee to refer the appealed decision to the primary body for review antecedently to the Committee considering the appeal.

The 2003 Training Regulations, which replaced the 2002 by-laws, were adopted, according to Loughran, in November 2003. They came into operation, according to the College’s 2003 Annual report, on 1 December 2003.[42] According to the Minutes of the Council’s meeting of 27 October 2002, however,[43] they were to commence at the beginning of the 2004 training year (which in Victoria was 2 February 2004). Nothing turns on this uncertainty.
[42]Exh. RFD 31, p. 10
[43]Exh. RJN 1 to the affidavit of Ronald Hunt, affirmed 29 March 2005

Regulation 13.3 provided as follows:

“Review and Appeals
You may request a review of a decision affecting you in relation to training and assessment. The relevant committee and/or the Fellowships Board will consider such requests.
If you are adversely affected by a decision in relation to training or assessment you may appeal to the Appeals Committee of the College in accordance with the relevant College By-laws.”

At a meeting held on 8 - 9 May 2004 the Council resolved to amend the Appeals by‑laws[44]. It also resolved to approve a document entitled “The RANZCP Appeals Process”(“The 2004 Appeals document”).[45] The Appeals by-laws specify that they are to be read in conjunction with that document.
[44]See p.3 of exh. PRL 19
[45]Exh. PRL 20

Paragraph 4 of the 2004 Appeals document makes provision for a person adversely affected by a pertinent decision to apply to the Chief Executive Officer of the College “to have the decision reviewed by the Appeals Committee.” Pertinent decisions, it was common ground, include decisions of the Committee for Examinations;[46] and, by paragraph 5.11, the decision of a Review Panel in relation to a decision of the Committee for Examinations.
[46]Whether by reference to clause 5.2, 5.3 or 5.10 was not debated

The 2004 Appeals document, contrast the Appeals by-laws, specifies the available grounds of appeal:

“8An appeal may only be made on one or more of the following grounds:
8.1.That an error in law or in due process occurred in the formulation of the original decision.
8.2.That relevant and significant information, whether available at the time of the original decision or which became available subsequently, was not considered or not properly considered in the making of the original decision.
8.3.That the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.
8.4.That irrelevant information was considered in the making of the original decision.
8.5.That procedures that were required by College policies to be observed in connection with the making of the decision were not observed.
8.6.That the original decision was made in accordance with a rule or policy without regard to the merits of the particular case.
8.7.That the original decision was made for an improper use.”

At least two other documents were spawned, as it appears, by the adoption of the 2003 Training Regulations. Each was approved, it seems, on 24 June 2004 by the Fellowships Board. The first is entitled “Procedure for Fellowships Board Reconsideration of Decisions” (“the Reconsideration document”).[47]
[47]Exhibit PRL 16

The Reconsideration document is concerned with what is described as an intermediate process between review and appeal. According to the document, decisions that may be reconsidered include decisions of a Review Panel.

Available grounds for reconsideration are specified by paragraph 3. They are very similar in content (although they most often refer to a “decision of the Review Panel” and not to “the original decision”) to the grounds of appeal set out in paragraph 8 of the 2004 Appeals document. They refer to a process which the College has adopted - although it finds no expression in Regulation 13.3 of the 2003 Training Regulations - which is neither review nor appeal.

The second document which, it appears, was approved by the Fellowships Board on 24 June 2004 is a document entitled “Proceeding for Review of Decisions made by the Fellowships Board and its Committees” (“the 2004 Review document”).[48] The available grounds of review are specified by paragraph 3. For practical purposes they are the same as the grounds which are available on reconsideration and appeal. In other words, the regime since June 2004, despite the definition of “review” in paragraph 11 of the 2004 Review document,[49] essentially involves replication of available grounds three times.
[48]Exhibit 6
[49]Which is replicated in paragraph 11 of the Reconsideration document.

In my opinion, the post-June 2004 regime casts uncertain light on the content of the review process at an earlier time. I would not conclude, without more, that the post‑June 2004 regime means that “review” had a similar content earlier on. The post-June 2004 regime seems to have involved major changes in processes. Again, there is nothing in any pre-June 2004 document which describes “review” as it is defined in the 2004 Review document and in the Reconsideration document[50]. On the other hand, it may be said that the current regime recognises that there should be an avenue for comprehensive re-consideration of a board or committee decision, that it is improbable that there should have been no such avenue at an earlier time, that before June 2004 review was available as well as appeal, and that the grounds of appeal specified in 1995 were limited. It could be said to follow that, probably, “review” was the process by which comprehensive reconsideration of a board or committee decision was available. “Review” is susceptible of such content. To my mind that sequence of reasoning is persuasive.
[50]Which in any event assumes that such definition could sit comfortably with the grounds of review specified by paragraph 3 of exhibit 6.

Pausing for a moment, the Panel which considered the plaintiff’s case, whether the plaintiff’s right to review arose under the 2002 by-laws or the 2003 Training Regulations, could not in terms have exercised the functions and powers specified by the 2004 Review document. The Panel’s task was complete when it delivered its decision on 27 May 2004. That does not necessarily mean, however, that the June 2004 reconsideration and appeal procedures did not operate in the plaintiff’s favour insofar as they addressed decisions of Review Panels.

I have said that in June 2004 the College instituted a three step process. The second step was reconsideration. By paragraph 1 of the Reconsideration document, reconsideration must be sought “within 28 days of receipt of notice of such decision”.

Paragraph 4 of the 2004 Appeals document, however, simply provides that a person may appeal “within three months of the receipt of notice of a relevant decision,” although paragraph 9 does refer to the appellant being advised “to seek a reconsideration and review of the original decision, in accordance with the processes approved by the General Council from time to time”.

It might be argued that application for reconsideration – and that within time – is made a condition precedent to the exercise of a right of appeal. But I do not think that is so. It is not the language of the 2004 Appeals document; and provision for reconsideration, a step not mentioned in the 2003 Training Regulations, does not appear to me to gainsay what is plainly said in the 2004 Appeals document in connection with the institution of appeals.

When the Council respectively adopted and approved the amended by-laws relating to appeal and the 2004 Appeals document at its May 2004 meeting, it resolved to:

“(adopt) the revised College Appeals Process and By-laws as soon as possible, in time for the College to report its corrective steps to the AMC in 2005.”

There is, I think, no doubt that the import of paragraphs 29-36 of Loughran’s third affidavit is that the new by-laws and procedures had been implemented by June 2004. As against that, it may be said that his affidavit confuses the date of the Council’s resolutions with the date of commencement of the new regime. On balance, however, it seems the more probable that the new regime commenced in its entirety on or about 24 June. For it was then that the Fellowships Board adopted the Reconsideration and Review documents. They marked the completion of documentation pertaining to the new regime.

In the event, whether or not the Reconsideration document could sensibly apply in the plaintiff’s case, I consider that the plaintiff was entitled to lodge an appeal against the Panel’s decision up until about August 2004. Further, he arguably had on foot as at June 2004 an appeal against the decision of the Committee for Examinations to fail him on the clinical viva; and it may be (if the Appeals by-laws as amended and the appeal procedures adopted in May 2004 did not operate until 24 June 2004) that he had a right of appeal under the unamended Appeals by-laws against the Panel’s decision in the period between 27 May and 24 June 2004.

Amenability to Judicial Review?

Counsel for the plaintiff submitted that (decisions of) both the College and the Panel were amenable to judicial review because:

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

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

Counsel cited, in support of those submissions, R v Panel on Take-Overs and Mergers,[51] Typing Centre of New South Wales v Toose and ors[52], Dorf Industries Pty Ltd and anor v Toose and ors[53] and Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd and anor[54].
[51][1987] 1 QB 815 at 825, 826, 827, 834-5, 836-7.
[52]Mathews J, Supreme Court of NSW, Judgment 15 December 1988, unreported, at pp. 1, 12-13, 14-19
[53](1994) 54 FCR 350
[54]Shaw J, Supreme Court of NSW, Judgment 15 September 2004, unreported, at paras 4-6

She referred also to Australian Football League and ors v Carlton Football Club Ltd and anor[55], submitting, as I understand it, that it at least left open the question whether judicial review is available where there is a contractual relationship between the parties.
[55][1998] 2 VR 546 at 549, 550, 561

In application of the principles which she submitted were applicable, counsel contended that:

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

[56]T 584.

[57]T 590-1.

Counsel for the defendants submitted that Datafin provided a means for deciding whether entities which exercised powers having neither a statutory nor a contractual basis should be amenable to judicial review. He referred particularly to a passage in the judgment of Lloyd LJ in Datafin[58], cited by Mathews J in Typing Centre[59]. In the present case there was a contractual, consensual relationship between the parties. The plaintiff had invoked rights of review and appeal available under that relationship. The decision of the Panel was not amenable to judicial review.
[58]At 847.
[59]At p. 18.

Alternatively, according to counsel’s submission, in this case there were not the public law consequences or public element identified by Mathew J in Typing Centre. Her Honour said that the Advertising Standards Council had power:

“to interpret and mould the various advertising Codes in precisely the same way as the courts can interpret and mould Acts of Parliament.”

and that:
“Many provisions of the Codes, including the one [the Court is] concerned with in this case, do little more than restate the existing law. In relation to these provisions, the Association is, in effect, providing an alternative forum for dealing with matters which might otherwise need to be litigated in the courts.”

Whitehead v Griffith University[60] was a case which showed, counsel submitted, the practical application of Datafin. He referred also to Masu[61] as illuminating the type of considerations which might lead to a conclusion that a body was exercising powers of a public nature. The present was a case, he contended, where – as with many personal and private decisions – there may be public implications; but it was not a decision which was directed to or was part of the achievement of public consequences. The plaintiff was not without remedy; but any remedy derived from contract. Referring to Forbes v NSW Trotting Club Ltd[62], a case cited for the plaintiff, counsel noted that it had been brought in the Equity Division of the New South Wales Supreme Court, and that the remedies sought had been a declaration and an injunction.[63]
[60][2003] 1 Qd R 220.
[61]At [7].
[62](1979) 143 CLR 242.
[63]In that case counsel for the plaintiff unsuccessfully sought to establish that there was a pertinent contractual relationship.

The plaintiff primarily seeks, vis à vis the decision of the Panel, that the same be brought up and quashed. He does not bring a claim for relief founded on the contract between he and the College. The question, it seems to me, is whether Datafin, as it should be understood and as it has been understood in Australia, provides a test of general application in deciding whether the decision of a particular body is subject to judicial review; or rather whether it provides a test for deciding cases in the middle ground between two extremes: that is, at one extreme entities whose exercise of powers is grounded in statute; and at the other extreme entities whose exercise of powers is grounded in contract.

Datafin itself was a case in the middle ground. Both Lloyd and Donaldson LJJ appear to have set the extreme positions and then supplied a test apposite to the middle ground. In R v Criminal Injuries Compensation Board; ex parte Lain[64], which may be regarded as the precursor of Datafin, Lord Parker CJ did not suggest that what I have called the extreme positions were no longer maintainable; rather the converse.[65] In R v. Jockey Club Disciplinary Committee; ex parte Aga Khan[66], decided after Datafin, the Court of Appeal refused to extend judicial review to a private body which exercised very considerable power, such power relevantly deriving from a contract between the respondent and those within the racing industry.
[64][1967] 2 QB 864.
[65]At 882.
[66][1993] 1WLR 909.

Datafin has been applied, with varying outcomes, in many cases in England[67]. That is likely the case because, as Scott Baker LJ said in R (Tucker) v Director General of the National Crime Squad:

“Whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria are met.”[68]

[67]See the cases noted in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3^rd Ed, pp. 123-125.

[68][2003] ICR at [13].

In some of the instances where decisions have been held reviewable there appears to have been a contractual relationship between the parties. Aronson and his co-authors comment[69] that-

“The availability of alternative contractual relief against a public body (my emphasis) is not as big a hurdle where employment or personal issues are absent.”

[69]At p. 126

In Australia, as I understand it, Datafin has yet to receive endorsement by the High Court.[70] But in some cases it has been relied upon and in other cases cited (whether directly or indirectly) by intermediate courts of appeal and superior courts at first instance.[71]
[70]Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 77 ALJR 1263 per McHugh, Hayne and Callinan JJ at [49]-[50]; cf per Kirby J at [112]-[113], [115], [119], [120], [121], [134].
[71]For example State of Victoria v The Master Builders Association of Victoria [1995] 2 VR 121 at 161, 163 per Eames J; Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 at [7]; Typing Centre; Masu; Whitehead; Adamson v NSW Rugby League (1991) 31 FLR 242 per Gummow J at 292; AustralianStock Exchange Ltd v Hudson Securities Pty Ltd (1999) 33 ACSR 416 at [83].

So far as I can see, Datafin has not been applied, in Australia, to a case where the pertinent relationship between the parties was contractual. In Whithead, its application in such a situation was denied. In Neat, Kirby J[72] might be said to have implicitly accepted the role of Datafin in the middle ground; likewise Eames J in Master Builders.[73] In Hudson Securities, on the other hand, although Datafin was not expressly cited, Santow J apparently approved a text passage to the effect that the question of availability of judicial review remedies in the case of a breach of the listing or business rules of the Australian Stock Exchange involved an area of developing law, the answer depending “on whether there is a public element present in the exercise of contractual powers”.[74]
[72]At [113].
[73]At 161.
[74]At [82]-[83].

Where does this discussion lead? In my opinion the answer is that on the present state of Australian authority certiorari is not available in respect of a decision of a body whose powers derive only from private contract. In my opinion, Australian Football League and ors v Carlton Football Club Ltd and anor does not tell to the contrary. All of the judges emphasised that the proceeding was founded in contract. The remedies ultimately sought were a declaration and an injunction. Counsel for the plaintiff submitted that passages in the judgments of Tadgell and Hayne JJA showed that their Honours left open the prospect of reliance by a Court on “general principles of law” to justify interference in the decision of a domestic tribunal. That should be understood to mean, she argued, the court’s supervisory jurisdiction by way of prerogative writ. In the context of a case which was conducted and which was disposed of by reference to contract, I think that counsel sought to gain too much from the several references which she cited.[75]
[75]See, for example, per Hayne JA at 567 line 50 – 568 line9

But if that conclusion is wrong, has the plaintiff shown that the College/Panel exercised public functions and powers; or else that such powers and functions had public consequences?

Elsewhere in these Reasons I consider the various circumstances relied upon by the plaintiff. My conclusions are, in short, that non-election of a psychiatrist to fellowship does have a real impact upon that person’s ability to practice psychiatry as a consultant, a specialist; but that it does not preclude a person practising as a psychiatrist; nor from being appointed to exercise certain functions under the Mental Health Act. I conclude also that the College, in pursuing its objects, acts in the interests of the College, a candidate and the public.

There is, in the ways which I have just shortly described, a public impact of a person’s non-election to fellowship. It is not a public impact which has the characteristics which were present in Typing Centre but I do not accept that those characteristics must always be decisive. There is, I think, much to the observations of Scott Baker LJ in National Crime Squad.

I could not conclude that the College exercises public functions and powers in determining whether to elect a candidate to fellowship. The question whether such exercise has public consequences (assuming that could be enough) is more difficult to answer. On balance, I am of opinion that the question should be answered in the plaintiff’s favour. Election does carry with it as of right recognition under the Health Insurance Act 1973 (Cth); and de facto recognition as a “qualified psychiatrist” under the Mental Health Act. There are public consequences of such recognitions. The consequences are far from restricted to the pocket of the non-elected person. The treatment of mental illness is a public health issue; and the ability to practice in that field as a specialist is of public importance – the more so as the evidence showed there to be a chronic shortage of psychiatrists in Australia. Effectively, with an implicit intention of furthering the public good, the College does set up fellowship as the mark of professional competence; a mark of which Commonwealth and State authorities take note.

There is a question whether the Panel’s decision operated to deny the plaintiff fellowship. Certainly, even if the Panel had gone so far as to award the plaintiff as pass in the clinical viva – the plaintiff’s Notice of Appeal asked it to do so, but the grounds upon which the examiners’ decision was challenged did not support grant of such relief – one could not conclude that the plaintiff would have been elected to fellowship forthwith; or at least for some considerable time thereafter. I say elsewhere why that is so. Except, however, if the plaintiff was exempted from examination requirements, passing the clinical viva was an essential pre-condition for election to fellowship. The plaintiff could call in aid, in the context of his claim for judicial review, the principle described in Hot Holdings v Creasy and ors.[76]
[76](1996) 185 CLR 149 at 158-165 per Brennan, Gaudron and Gummow JJ and at 178 per Dawson and Toohey JJ (dissenting in the result)

To this point I have concluded that the decision of the Panel (acting as the arm of the College) is not amenable to judicial review; but that, assuming the contrary, the decision had public consequences. So, had the Panel’s decision not been the working out of a contractual relationship between the parties, it would have been subject to judicial review.

The next question is whether, in the circumstances, each of the grounds upon which the plaintiff attacked the Panel’s decision were available to him. With one exception there was no argument between the parties about that matter. It was not in dispute that, save with respect to the attack founded upon apprehended bias, the grounds of attack relied upon by the plaintiff were so available.

Availability of Apprehended Bias?

Before addressing the substance of the plaintiff’s various attacks, it is convenient to deal with the question whether it was open to the plaintiff to impugn the Panel’s decision on the ground of apprehended bias. Counsel for the defendants submitted, relying on Maloney v NSW National Coursing Association,[77] that a challenge on that ground is not available where the body in question exercises a power which is essentially consensual, whether or not the body is amenable to judicial review. Indeed, it is not available even where the body has a statutory, though indirect, foundation. In this case the Panel had exercised a consensual power; and so the ground was unavailable.
[77][1978] 1 NSWLR 161 at 169F–170D, 170G – 171D.

Counsel for the plaintiff submitted that Maloney had nothing to say about the present case. The College (and thus the Panel) exercised a public power with public consequences – unlike the committee in Maloney; and in any event it could not be said, although the plaintiff was in a contractual relationship with the College, that he had in any real sense agreed to its processes. He had to accept them if he wanted to be a fellow. He had no voting rights in relation to the College.

Maloney stands for the proposition that apprehension of bias on the part of a decision-maker is not, at least in all but an exceptional case,[78] a basis for impugning the decision of a domestic tribunal whose powers and functions arise consensually. In that case a distinction was drawn between a tribunal thus constituted and a court.[79] The occasion did not arise to consider whether, in connection with apprehended bias, some distinction was to be drawn between a domestic tribunal exercising private disciplinary powers with private consequences and a domestic tribunal exercising non-disciplinary powers with public consequences. Neither did the occasion arise to consider whether some distinction should be drawn between a domestic tribunal exercising powers derived by the common consent of all participants and a domestic tribunal exercising powers to which one party was contractually bound to submit but in respect of the criteria of which powers such person could have neither consented nor dissented.
[78]See at 171C-D.
[79]See at 169D-E, 170F-171D.

It follows from what I have just said that Maloney did not in terms decide that any apprehended bias of the decision-maker in a case such as the present could not be raised as a ground for judicial review. Nonetheless, the trend of authorities seems to be that an allegation of apprehended bias is not in point in a case involving a domestic, consensual or private tribunal – by contrast with a Court, or a tribunal founded in statute.[80]
[80]Dale v NSW Trotting Club Ltd and ors [1978] 1 NSWLR 551 at 556D per Hutley JA, cf at 559B per Samuels JA; Cains v Jenkins and ors (1979) 28 ALR 219 at 227 per Sweeney J and St. John JJ and at 232-4 per Keely J; Sweeney v Committee of South East Racing Association and ors (1985) 75 FLR 91 – a decision of Gallop J which addressed a broader issue; Jackson v Western Australian Basketball Federation Inc (1990) 21 ALD 283 (Supreme Court of Western Australia); Re Maggacis [1994] 1 QdR 59 – a decision of Thomas J which dwelt broadly with the place of procedural fairness in the conduct of private organisations; Whittle v Australian Miniature Pony Society Inc (1995) 57 FCR 252 at 268-270; Bornecranz v Queensland Bridge Association Inc [1999] QSC 58 at [33]-[34]; Heathcote v King [2002] WASCA 1 at [57]. See also Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24 at [46]-[48] where the issue was left open; likewise, semble, Julien v Racing Penalties Appeals Tribunal of Western Australia [2001] WASCA 345 at [62] and following; and Maynard v Racing Penalties Tribunal [1994] 11 WAR 1. In the last-mentioned case Ipp J noted that the contract between a racing association and trainer is not an ordinary commercial transaction – implying, as I understand it, that Maloney might not be applicable in such a case.

In my opinion, then, so far as the plaintiff’s case relies upon an allegation of appended bias on the part of the Panel, it would not raise a pertinent allegation even if – which I consider is not the case – the Panel’s decision was open to judicial review.

The Substance of the Plaintiff’s Claim that the Panel’s Decision should be quashed

Notwithstanding that, in my opinion, the plaintiff’s claim for judicial review fails altogether (which is not to say that the plaintiff might not have been able to seek a remedy founded in contract) and notwithstanding that one element of the plaintiff’s complaint could not in any event be pertinent, it seems desirable that I address the substance of the plaintiff’s claim. The parties should have my conclusions, in case it was desired to take the proceeding further.

Loughran’s Enquiries

In order to understand the plaintiff’s case it is necessary to appreciate that not long before the October 2003 clinical vivas were held Loughran, for the College, commenced enquiries into the plaintiff’s status and activities. He did so after the College received a letter of complaint signed by Dr Jenkins, written on behalf of a number of College members.

The letter was written after a member, presumably Dr Jenkins,[81] contacted Professor Ellis with complaints about the plaintiff. Professor Ellis told the member that any complaints should be put in writing.
[81]See the evidence of Professor Ellis at T 428

The letter itself did not go into evidence, but viva voce evidence of its contents was given by each of Loughran and Professor Ellis. The evidence was not altogether clear, but it appears probable that the letter made complaint that the plaintiff had represented himself to be a Fellow of the College; and made complaint also about representations which the plaintiff had made on the “Compass” program, about his interpersonal relationships, the integrity of his research, and his professional standards and behaviour.

The complaints raised serious matters. They were such as, if established, would very likely have precluded the plaintiff’s election as a Fellow even if he had passed the clinical viva.

Loughran gave evidence that one matter which he investigated at the outset was whether the plaintiff held some overseas qualification as a consultant psychiatrist. This would or might have impacted on the nature of the Section I examination which the plaintiff was required to sit. Assuming that Loughran’s evidence was not completely confused, it seems likely that this was an issue which arose as a variant of the plaintiff’s alleged representation that he was a Fellow of the College. Such an issue could have arisen if it appeared that the plaintiff had represented himself to be a consulting psychiatrist rather than a member of the College.

The evidence showed that Loughran sent copies of Dr Jenkins’ letter to Professors Ellis and Condon. The former directed Loughran to make enquiries. He did so. In the course of his enquiries he contacted Professor Keks and Dr Tanaghow. That was before the clinical vivas were held. In that interim period he certainly contacted other doctors also concerning the plaintiff’s qualifications; and he probably spoke to the persons on whose behalf Dr Jenkins had written the letter of complaint.

Loughran made some enquiries antecedently to a meeting of the Council which was held on 18 - 19 October 2003. At that meeting further concerns were raised concerning the plaintiff. Professor Ellis directed Loughran to make further enquiries.

It is clear that the question whether the plaintiff had represented himself to be a Fellow of the College remained alive when the clinical vivas were held. Indeed, the College referred that question to the Medical Practitioners Board (which ultimately said that the matter was outside its jurisdiction) in early 2004. It is also clear that Loughran was still investigating other complaints when the Panel met in April 2004. That is what the Panel’s solicitor said at the hearing, presumably on instructions from Loughran.[82]
[82]Exhibit PRL 8, p.2; see also exhibit RFD 28

Professor Ellis gave evidence of recollection that, by the time the clinical vivas were held, Loughran’s enquiries had showed the complaints, save that pertaining to the plaintiff allegedly representing himself to be a Fellow of the College, to be unsubstantiated. Confronted by correspondence showing that enquiries were still being pursued in June 2004, the witness modified that evidence to say that he had reached the position where he considered that only the representation issue was alive. That was his state of mind, I understood him to say, when the Panel hearing took place. The matter was not one for the Fellowships Board.[83]
[83]T 431-2

It may be that Professor Ellis was of opinion, by April 2004, that of the raft of allegations raised against the plaintiff only one remained to be resolved. But in light of what he was told by the Panel’s solicitor at the hearing on 13 April 2004, let alone what he must have been told by Loughran if he had asked, it is really unconceivable that he could have believed as at 13 April that enquiries more generally concerning the plaintiff were then at an end.

The Panel’s Review “Jurisdiction”

According to the plaintiff’s case, the Panel should have considered whether the examiners’ decision was sound. It was asked by the plaintiff to consider that matter. But if that was not so, in any event its jurisdiction – I will use that word for sake of convenience, recognising always that the Panel was not a Court – extended to consideration of such a matter. Because it failed to exercise that jurisdiction its decision should be quashed.

Each of the questions of jurisdiction and of fact should be considered. I begin with the question of jurisdiction, and with what the plaintiff himself sought. The question calls into play Loughran’s enquiries.

In December 2003 the plaintiff sought legal advice in respect of his “concerns about the examination process”.[84] He instructed his solicitors to draft and file an appeal. A Notice of Appeal[85] dated 19 December 2004 was served on the Appeals Committee and the Committee for Examinations under cover of letters dated 23 February 2004.
[84]Paragraph 35 of the plaintiff’s first affidavit
[85]Exhibit RFD 8

The Notice of Appeal stated that the grounds upon which the plaintiff relied were:

“that the appellant was denied natural justice and procedural fairness in circumstances where the administrative decision of the examiners”

The doctor agreed that her draft of the feedback sheet had been amended in one respect. As handwritten, it commenced by saying:

“The candidate gave a reasonably accurate history...”

As amended by her about a fortnight later, it commenced this way:
“The candidate gave a reasonably concise history...”

The change was evidently necessary, for it was alleged inaccuracy in history-taking which was important to the plaintiff being failed on Case B. The initial draft of the feedback sheet certainly contained an internal tension.

Dr Reilly, the co-opted examiner, reported by letter dated 1 March 2005[200] that by his recollection the plaintiff:
[200]Exhibit JJR3 to his affidavit affirmed 21 March 2005.

“Gave a very reasonable explanation, within the appropriate time, addressing various syndromes and giving an adequate summary of psychiatric and personal history. However, when asked to explore particular areas in more detail he tended to flounder and be rather imprecise. He had not adequately considered risk and when these issued were followed up further with him he tended to minimise risk issues rather than to be prepared to consider them and develop appropriate plans for their further assessment and management. He also did not adequately assess the patient’s social situation.”

He also said this:
“My recollection of the particular reasons for failing Dr D’Souza was concern about his inadequate risk assessment and his apparent attempt to cover up a failure in his history taking which had significant implications in regard to risk. It appeared that he had not specifically explored the risk to the patient’s father of the patient’s delusions and hallucinations, however he minimised this by stating that in fact the patient was having contact with his father. He appeared to construct a set of false statements about the relationship with the father rather than acknowledging that he had not addressed the issue and considering its importance. I recall that I had not been as clear about this discrepancy as my co-examiner Dr O’Brien was in our discussion after completing the examination. This resulted in our decision to move to a D for discussion, which made me comfortable with moving from a D at the Examiners Meeting.”

And this:
“... the key issues in failing Dr D’Souza to me were not the patient’s social isolation and its management, although that was a concern, but Dr D’Souza’s failure to have performed an adequate and detailed history and attempts to cover this rather than acknowledge it, particularly given the risk issues associated with the patient’s symptoms, in conjunction with a general vagueness of presentation.”

This may be noted immediately: The history recounted by the plaintiff of the patient’s relationship with his father was apparently the matter of principal importance to Dr Reilly – as impacting upon the risk to the father arising from the patient’s delusions. That may be contrasted with the matter which Dr O’Brien said was significant about the plaintiff’s alleged failure to take a reliable history concerning the patient’s relationship with his father.

This also may be noted immediately: The second passage cited above from Dr Reilly’s letter is open to fair criticism on two scores. First, there is apparent circularity in its reasoning. Second, it appears to suggest – though Dr Reilly in substance disclaimed any such suggestion in his viva voce evidence – that the plaintiff deliberately fabricated the content of answers which he gave to examiners’ questions in order to cover up a weakness in his presentation. I am not at all persuaded, on consideration of all the evidence, that the plaintiff engaged in fabrication at all, let alone for such a reason.

Dr Reilly gave viva voce evidence. Its effect was to underline the fact that his concern was that the plaintiff had not recognised the risk flowing from the patient’s attribution of auditory hallucinations to his father – that is, the risk that the patient would attempt to do his father harm.

What is not clear to me is in what respect, if at all, Dr Reilly concluded that the plaintiff had not taken an accurate history from the patient concerning the latter’s father.[201] If the doctor’s criticism was that the plaintiff had taken or had claimed to have taken a history that the patient was in contact with his father, then it can be said that very little, if anything, in his notes hinted at such a history. [202] But if the doctor’s criticism was that the plaintiff had minimised the extent of risk to the patient’s father by mentioning comments by the patient that he would not hurt a fly, and that although he felt angry with his father he was related to him, then no question of a wrong history arose. The same comment would apply if Dr Reilly’s criticism was that the history taken by the plaintiff had minimised the extent of conflict within the family, this bearing upon risk to the father.[203]
[201]See p. 6 of Dr Reilly’s mark sheet, part of Exhibit JJR2.
[202]The reference in the mark sheet, at the foot of p. 3, “talks occasionally”, did not evidently refer to conversation between father and son.
[203]See Dr Reilly’s mark sheet, last two lines of p. 3.

In the event, there is reason to doubt that the alleged flaw in the plaintiff’s presentation which Dr O’Brien emphasised was the flaw which Dr Reilly considered to be critical; and yet, according to paragraph numbered 3 of Dr Reilly’s letter of 1 March 2005, it was Dr O’Brien, as he recalled it, who had illuminated the critical flaw as he described it.

If it was clear that the decisive consideration in the decision to fail the plaintiff on Case B was that the patient had given a history of experiencing auditory hallucinations involving his father, that this put the patient’s father at risk of harm, and that the plaintiff had sought to minimise the risk, as it seemed, by calling in aid particular statements made by the patient, then I would readily conclude that the College had shown such decision to be within the boundaries of reasonableness. But the evidence did not make that matter clear. In the end, the central reason why the plaintiff was failed was left uncertain; as was the question whether there was common ground between the examiners in their decision to fail the plaintiff.

I should add two things. First, if the decision to fail the plaintiff had particularly fastened upon a supposed discrepancy between the patient’s history as noted by the plaintiff and the history provided to the examiners, it would be a moot point whether – in circumstances where the asserted discrepancy was not put to the plaintiff for his comment – it was reasonable to fail the plaintiff. That was particularly the case when, as the examiners knew, the case summary at the least hinted at the patient’s unreliability as an historian.[204]
[204]An unreliability perhaps instanced by the patient saying, apparently for the first time, that the auditory hallucinations involved his father’s voice.

Second, in the mark sheets, the feedback sheet, the letters of 1 and 3 March and their viva voce evidence the examiners noted other defects in the plaintiff’s presentation. These included his alleged failure to adequately explore the extent and causation of the patient’s social isolation; and his tendency to be vague and discursive in answers. There is potentially a question whether a decision to fail the plaintiff on those grounds alone would have been reasonable – that is, assuming that the plaintiff’s presentation was defective in those ways. I say “would have” because it is at least clear that the examiners did not decide that the plaintiff failed by reason of those matters alone.

The evidence does not persuade me that the plaintiff would have been failed by reason of such matters. Paragraphs 3 and 5 of Dr Reilly’s letter show that the social isolation issue – which I take to be the most important of those other matters – did not in fact operate in his decision-making. That stands in favour of my conclusion. It is, of course, possible that Dr Reilly could have been persuaded to a different view by Dr O’Brien; but her evidence did not suggest that she would have pressed for a decision to fail the plaintiff because of that (assumed) defect in his presentation. In the event, I consider that the question whether a decision to fail the plaintiff would have been reasonable if grounded in reference to that matter and/or to other defects in presentation which were mentioned in passing does not in truth arise.

The College’s continuing “refusal” to elect the plaintiff

In my opinion the College plainly demonstrated that there has been nothing unreasonable in its continuing “refusal” – or failure - to elect the plaintiff as a Fellow.

Absent training and success at examinations (or exemption from all or some aspects of training and examinations), the only way that the plaintiff could have attained fellowship was as an Honorary or Corresponding Fellow. The burden of the evidence, as I have already said,[205] was that the plaintiff would not qualify for election as an Honorary Fellow. The evidence also showed that the plaintiff has never sought election as a Corresponding Fellow. I have earlier remarked[206] that it could not be suggested - and it was not – that the College has been in default by not itself initiating a proposal that the plaintiff be elected as such a Fellow.
[205]At [31].
[206]At [31].

In respect of Corresponding Fellowship I add two things: first, it is doubtful whether the plaintiff would in any event qualify for election as such a Fellow. One of the criteria is that the candidate must either be “not eligible or unlikely in the opinion of the ... Council to become [a candidate] for ... fellowship”. What stands between the plaintiff and qualification as a candidate for election to fellowship is the examination which, by operation of the 2003 Training Regulations, has replaced the clinical viva. It is an examination, different to the clinical viva, which the plaintiff has applied to sit. It would be difficult for the Council to conclude, I think, that the plaintiff would be unlikely to become a candidate for fellowship.

Second, it would seem to me to be an odd use of the ability to elect a person as a Corresponding Fellow that it was used to elect a person who had embarked upon the training and examinations path to fellowship, had not thus far succeeded in his or her endeavours, and had not yet abandoned such endeavours. That, factually, is the plaintiff’s position.

It follows from what I have said that the College could not be said to have unreasonably refused to admit the plaintiff to fellowship via the category either of Honorary or Corresponding Fellowship.

It is next clear that the plaintiff has not in fact qualified for election as a Fellow by the regime of training and examinations. Having not satisfied those pre-conditions to election there could be nothing unreasonable – subject to consideration of one argument – in the College acting consonantly with its own articles of association.

The argument is this: It was contended for the plaintiff that in all the circumstances the College should have acted unilaterally to waive the requirement that he successfully complete the clinical viva. It was an unreasonable restraint of trade for the College not to have done so.

Under the 2002 by-laws the Fellowships Board had a discretion to exempt a candidate

“from any or all aspects of the training and examination requirements except the final viva.”

Under the 2003 Training Regulations, the Fellowships Board was empowered to exempt a candidate

“... from any or all aspects of the training and assessment requirements...”

outlined by the Regulations.

The Fellowships Board has had power, then, to exempt the plaintiff from any or all of the training/examination/assessment requirements which have from time to time applied to him. According to counsel’s submission, in substance, it has been an unreasonable restraint for the College – acting through the Fellowships Board – not to have exempted the plaintiff from that part of the training regime which is presently incomplete.

Central to the plaintiff’s case in the present connection was the proposition that the evidence showed the plaintiff to be an experienced and competent clinician, as would be expected from a man with his qualifications, experience and particular expertise – expertise recognised by the College itself.

Then, ran the argument, the plaintiff’s failures in the clinical viva must be understood to reflect only poor examination technique, not want of competence. That was a reason for the College to not deny him the ability to practise his profession without inhibition; the more so when there has been and remains a chronic shortage of specialist psychiatrists in Australia. Further again, if the plaintiff was now to attempt to complete the training and assessment regime he would be at a disadvantage because the regime changed when the 2003 Training Regulations came into operation.

I have referred already to some of the objects of the College.[207] They emphasise its position as a guardian of high standards in the practice of psychiatry; and to that end, as an educator. The 2002 by-laws and the 2003 Training Regulations show the detail of training and assessment regimes the purpose of which surely has been, and is, to produce highly-skilled practitioners who have undergone a wealth of clinical experiences, tested by examinations or by other forms of assessment, before qualifying for election to Fellowship.
[207]At [25].

In my opinion the action of the College in devising and implementing successive training and assessment regimes has been much in the interest of trainee psychiatrists and the wider community, as well as being in conformity with its own interest in adhering to objects set out in its Memorandum of Association. It is evidently in the interest of trainee psychiatrists that they should not have the ability to practise their profession in an uninhibited way until a long course of study and assessment has demonstrated their likely ability to do so. It is evidently in the interest of prospective patients that their assessment and treatment be carried out by appropriately skilled practitioners. It is in the interest of the broad community that persons with mental illness are appropriately assessed and treated. It is in the interest of the entire community that the public purse, via the Medicare rebate, is not depleted to pay for assessment and treatment of persons with mental illness by psychiatrists who lack the necessary skills. The fact that there has been and is a shortage of specialist psychiatrists in Australia does not detract from those conclusions.

The fact remains, however, that under both the past and present training regimes there has been a discretion to exempt a candidate from any or all of the stipulated training and assessment requirements.[208] The existence of the discretion shows that the Council must have considered that key objects would not be compromised if a candidate – in unspecified circumstances – was not required to adhere to the training regime then operative; for it cannot be supposed that the discretions were created on the footing that they could have no operation consistent with the objects of the College.
[208]There was one exception under the 2002 by-laws.

Professor Singh gave evidence that exemptions were often sought in the period when he was Chairman of the Fellowships Board. He had chaired an Exemption Sub-Committee. Asked about exemption from the clinical viva, he said this:

“Exemptions could take many forms because the exam had many components. There was training, there was written, two papers, and then there was day one and at that time there was a day two. In general it was rare for people to be exempted the day one clinical. For experienced clinicians who had worked as consultants in either other countries or in Australia, we brought in during the time that I was there, the so-called special day one viva for consultants like that which was run separately and had a somewhat different format than the ordinary day one. But exemptions were dealt with on a case by case basis, depending upon the person’s training, what qualification they had, what experience they had had previously or since their qualification, both in their own country in some instances as well as in this one. We would decide on the basis of that what the nature of the exemptions would be but it was rare, except for senior and highly well-known psychiatrists coming from another country, for people to be exempted day one.”[209]

[209]T 254-5; see also T 260.

Professor Ellis also addressed the question of exemptions. Thus –

“So far as you know, notwithstanding Dr D’Souza’s qualifications and experience from the College’s perspective he remains in a category where the College insists he pass the clinical viva, is that right? --- Yes. The College has very limited pathways by which to grant Fellowship without examination and I’m sure you are aware of those.
The College, I suggest to you, Professor Ellis, has decided to adopt limited pathways to proceed to Fellowship in the absence of completing a clinical viva, that’s the position, isn’t it? --- And those regulations have been approved by the Australian Medical Council, yes.
So far as you are aware, the College has never exempted anyone from the clinical viva on the basis that their performance in an examination may not accurately reflect their clinical skills in practice? --- Certainly not to the best of my knowledge.”

And
“To sum it up, the College’s position is that candidates must simply pass the exam on the day; that’s the basic position, isn’t it? --- The College has a process by which people with overseas training of particular levels may be exempt from some parts of the examination process. There are certain categories of people who are internationally distinguished and senior who may be awarded Fellowship without examination and somebody who holds the Fellowship of the British College of Psychiatrists, following a relatively informal viva, may proceed directly to Fellowship with the assent of general council. If there has been a miscarriage in an examination, steps are taken to facilitate early resitting of that exam. However, we had not had previously to consider an allegation of bias in the examination process and so there is no precedent to guide what might be possible.
If the evidence in this case shows that what Dr D’Souza’s been doing for the last five years is that he’s been performing perfectly competently and without complaint as a clinical psychiatrist, don’t you agree that may be the better evidence of him having the appropriate clinical skills to satisfy Fellowship requirements? --- The College’s position is that it is necessary to be able to report to the Australian Medical Council and to advertise to the public that somebody has reached a particular standard by requiring them to meet that standard, both in an examination and in a number of training settings and it is difficult to standardise and reliably evaluate solely in-service training experiences.[210]

[210]T 439-440.

The gist of the pertinent evidence given by Professors Singh and Ellis was that in the past a basis for exemption has been discerned in cases of persons with overseas consultant qualifications; but that even then exemption has been partial. The further evidence of Professor Ellis was that possible poor examination skills have not in his experience been recognised as a basis for exemption. Nor has clinical experience without adverse comment been so recognised, because of the difficulty there would be in evaluating in-house experience from one trainee to another.

The plaintiff does not have overseas consultancy qualifications. His argument that he should have been exempted from the requirement to complete the clinical viva or its 2003 replacement rested significantly upon his contention, in effect, that his examination failures could only be explained by poor technique, because his clinical skills were manifest.

In my opinion the College could not be said to have acted unreasonably by not taking (through the Fellowships Board) a unilateral decision to exempt the plaintiff from the clinical viva or its successor. Even if it was the fact that the plaintiff’s failures could be ascribed to poor examination technique, why should the College have fixed upon that explanation in the absence of some assertion by the plaintiff that such was the case?

Further, at least absent some representation by the plaintiff, why should the College have decided to add a new and possibly unpredictable class of circumstances to those in respect of which exemption might be granted?

Again, at least in the absence of some representation by the plaintiff, why should the College have concluded that the plaintiff’s clinical work showed that he was able to work to a consultant’s standard?

Further again, the plaintiff’s asserted expertise in particular areas of psychiatry was said to have been demonstrated to a substantial degree by publication of papers and presentations at symposia. Any expertise which was demonstrated in such a way did not necessarily show, I consider, that the plaintiff was equipped to practice as a consultant in psychiatry.

Remember also that, having failed the October 2003 clinical viva, the plaintiff applied to sit the examination which replaced it in 2004. The only reason that he did not sit the examination was that he suffered an injury. It is difficult to see why, when the plaintiff had committed himself to the examination process, the College should then have exempted him from it.

I go to the plaintiff’s contention that the changes in regime effected by the 2003 Training Regulations made it unreasonable for the College not to exempt him from the examination and assessment which replaced the clinical viva.

The new regime was and is markedly different to that which it replaced. The essence of the changes is that the two patient examinations of the clinical viva have been replaced by an Observed Clinical Interview (“OCI”) and an Observed Structured Clinical Examination (“OSCE”).

The OCI is a variant of the old clinical viva patient examination which seems likely to be fairer to candidates.

The OSCE is where the main differences arise. Ronald Hunt, the present director of Education of the College, described it this way:

“OSCE... is an integrated assessment task using simulated patients (actors) involving any aspect of primary, secondary or tertiary consultation relevant to the practice of psychiatry. This part of the clinical examination consists of a mult-station assessment using six scenarios at between six to nine stations. Trainees spend 20 minutes at each station and are assessed on various areas of clinical competence. These areas fall under the following broad headings:
(a)reasoning, skills and attitudes in assessment and management tasks of patients with a range of psychiatric disorders across the age spectrum;
(b)professional attitudes and capability in relation to patients, carers, individuals and groups;

(c) the practice of general medicine as it relates to psychiatry;
(d)the application of basic sciences relevant to the psychiatric practice;
(e)communication, relatedness and leadership in the multidisciplinary team; and
(f)communication relatedness and leadership in the community.”[211]

[211]Paragraph 8 of his affidavit affirmed 16 March 2005.

A further change is that the OCI and OSCE are marked cumulatively. It is possible to fail one or the other and yet not fail overall. Under the clinical viva regime, by contrast, failure on presentation in respect of either patient was fatal.

The plaintiff deposed in his first affidavit[212] that the change in regime meant that he would “also be required to undertake other components of the examination which” he had “already satisfied”. In his second affidavit he deposed that he believed that he would be required to re-sit the General Medical Examination, which he had already passed; that he was unfamiliar with the new structure; that he had passed the consultancy viva, which had now been discontinued; that he had been unsuccessful in obtaining a training position which would fit him to undertake the new examination/assessment regime; and that the College had experienced difficulties in implementing the new regime.[213]
[212]Paragraph 56.
[213]Paragraphs 11-14.

I doubt, speaking generally, that a change in regime which must have affected not only the plaintiff but any other candidate who had sat and failed the clinical viva should provide a basis for exempting the plaintiff from undertaking the requirements of that new regime.

Further than that, it appears to me that in a number of respects the plaintiff’s concerns about unfairness to him of the new regime were unjustified. First, as I have already remarked, the OCI procedure seems likely to be fairer to a candidate than the clinical viva procedure. Second, it is not the case that the plaintiff will be deprived of the value of his pass in the General Medical Examination. That examination is not a part of the new regime. Instead there is a “Medical Station” as part of the OSCE. A candidate who has previously passed the General Medical Examination will be given a pass on that station whatever the candidate’s actual performance.[214] Third, whatever difficulties the College had experienced implementing the new regime, it had accepted the plaintiff’s application to sit the new examination/assessment in October 2004. Only the plaintiff’s ill-health prevented him sitting.[215] Fourth, the plaintiff’s evidence that he had not been successful in obtaining a training position – by which he meant a training program that would fit him to undertake the new examinations – was tempered by his evidence that he had made limited enquiry about the availability of such programs.[216] Fifth, OCI and OSCE are cumulatively intended to replace the clinical viva. True it is that the plaintiff, if he sits the new exams, will not get any credit for having passed the consultancy viva under the old regime. But nothing has been erected in its place.
[214]See paragraphs 24, 25 and 26 of Loughran’s second affidavit.
[215]See paragraphs 31 and 32 of Loughran’s second affidavit.
[216]T 165; see also T 169.

In the event, both as a matter of general approach and by reference to the particular express concerns of the plaintiff, the College has persuaded me that introduction of the new examination regime does not make it unreasonable that the plaintiff be required to sit, rather than being exempted from, OCI and OSCE. [217]
[217]

Summary

The decision of the Panel was not amenable to judicial review. Had it been so amenable, attack on the ground of apprehended bias would not have been available. Had the decision been amenable to judicial review, and had the ground of apprehended bias been available, the plaintiff would have made out such ground. He would also have made out an attack based on unfair procedures. In each instance the attack would have succeeded on a fairly narrow footing. In the exercise of my discretion, however, I would not have made an order in the nature of certiorari.

The plaintiff has failed to establish either of his claims founded on alleged unreasonable restraint of trade. That is so even though the defendants failed to establish that it was reasonable to fail the plaintiff on one of the two clinical viva presentations.

There should be judgment for the defendants. I noted earlier the submission of counsel for the plaintiff that the Court was able to grant a declaration even if it refused to grant certiorari. Without considering whether the Court could possibly exercise such a power in the circumstances of this case, in the exercise of my discretion I would not grant such relief. There would be no useful purpose in my doing so. I add that to the extent that I have reached conclusions favourable to the plaintiff, my Reasons sufficiently reveal those conclusions.

---

[2005] VSC 161

18 May 2005