Elobadi v Royal Australasian College of Surgeons - [2014] WASCA 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ELOBADI -v- ROYAL AUSTRALASIAN COLLEGE OF SURGEONS [2014] WASCA 117

CORAM: MARTIN CJ
MURPHY JA
EDELMAN J

HEARD: 9 MAY 2014

DELIVERED : 9 JUNE 2014

FILE NO/S: CACV 17 of 2013

BETWEEN: BARAA SALH ELOBADI
Appellant
AND
ROYAL AUSTRALASIAN COLLEGE OF SURGEONS
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :ELOBADI -v- ROYAL AUSTRALASIAN COLLEGE OF SURGEONS [2013] WASC 29
File No  :CIV 2353 of 2010

Catchwords:

Contract - Failure to challenge essential findings of fact by primary judge - Failure to show any breach of contract - Failure to prove lost chance

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D S Stanley
Respondent: Ms P E Cahill SC & Mr B J Lloyd

Solicitors:

Appellant: David McDonald Legal
Respondent: Gadens Lawyers

Cases referred to in judgment:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Elobadi v Royal Australasian College of Surgeons [2013] WASC 29
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
JUDGMENT OF THE COURT:

Introduction and background

Dr Elobadi is a surgeon. He qualified and trained in Iraq. He came to Australia in August 2001. Between 2003 and June 2009, Dr Elobadi applied three times to the Royal Australasian College of Surgeons (RACS) for specialist admission as a Fellow. Two of Dr Elobadi's three applications for admission to the RACS were through the International Medical Graduate (IMG) Programme.[1] A third application, in 2006, was brought through the alternative programme to achieve fellowship of the RACS,[2] the Surgical Education and Training (SET) Programme.[3]
[1] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [24], [26].
[2] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [26].
[3] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [33].
As part of each application, a 'Specialist Assessment' took place.[4] The specialist assessment considered three possible recommendations: (i) not comparable; (ii) partially comparable; or (iii) substantially comparable.[5]
[4] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [38].
[5] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [39].
On each of the three occasions between 2003 and June 2009, Dr Elobadi was assessed as 'not comparable'. Two appeals by Dr Elobadi were rejected. Prior to June 2009, the most recent of Dr Elobadi's appeals was dismissed on 21 October 2008.
On 29 June 2009, Dr Elobadi made a fourth application. He was again assessed as 'not comparable'.
On 11 August 2009, Dr Elobadi emailed Dr Hillis (who has been the Chief Executive Officer of the RACS since 2003).[6] He asked for an Appeals Committee to be convened in respect of his fourth application on 29 June 2009.
[6] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [10].
An Appeals Mechanism Policy, which had contractual force between Dr Elobadi and the RACS,[7] prevented Dr Hillis from convening the Appeals Committee unless Dr Hillis was satisfied that, on the basis of the supporting documented material submitted, there were valid grounds of appeal. Dr Hillis considered that there were no valid grounds of appeal. He refused to convene the Appeals Committee.
[7] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [62].
Dr Elobadi commenced proceedings in the Supreme Court seeking (i) a declaration that he was 'partially comparable', and (ii) damages against the RACS for an alleged lost opportunity to be assessed as partially comparable. He asserted that the failure by Dr Hillis to convene the Appeals Committee was a breach of contract. The primary judge dismissed Dr Elobadi's action. Dr Elobadi now appeals from that decision.
There are four reasons why the appeal to this Court must fail. The first two reasons why the appeal must fail is because there is no challenge to either of the primary judge's findings of fact (which were supported by a number of intermediate findings of fact) that
(i)'the inevitable result of an appeal [to the Appeals Committee] would have been a dismissal',[8] and
(ii)Dr Elobadi had not completed a comparable specialist training programme to the College programmes and he will never be regarded as 'partially comparable' until he does.[9]
[8] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [221].
[9] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [220].
These findings of fact mean that (i) any declaration of breach of contract would serve no utility, and (ii) no damages can be awarded for an alleged lost opportunity to be assessed as 'partially comparable' when that opportunity never existed.
The appeal to this Court also fails because each particular of the appeal ground upon which the appeal depends is misconceived, and because no value of any lost chance was established. In the reasons which follow, and simply for clarity and consistency with the practice at trial, we refer to each medical practitioner and consultant surgeon by the appellation 'Dr'.

Dr Elobadi's 29 June 2009 (fourth) application to the RACS

The trial before the primary judge, and the issues on this appeal, arose from the fourth application by Dr Elobadi for admission to the RACS on 29 June 2009.
On 6 August 2009, Dr Roberts, the Clinical Director of the RACS, assessed Dr Elobadi's fourth application and made a finding that Dr Elobadi was 'not comparable'.[10] The reasons given were
a.There is insufficient evidence of recency of specialist surgical practice in the relevant specialty comparable to that of an Australian or New Zealand trained surgeon in the specialty; or
b.There is insufficient evidence of completion of a comparable specialist training programme to the College programs including the competencies, skills and attributes.
[10] GB vol 5, page 624 ‑ 626 (exhibit 67); Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [92].
On the same day, 6 August 2009, Dr Roberts wrote to Dr Elobadi[11] and explained that the assessment 'not comparable' had been made after 'thorough, detailed review of all documentation submitted' as well as discussions with Dr French and Prof Newman. Dr Roberts explained in the letter that the reasons why Dr Elobadi had been assessed as 'not comparable' were as follows:
•Specialist surgical training undertaken is not of a comparable standard to the training programme of the College.
•A comparable exit examination has not been completed.
•Evidence of recency of active specialist surgical practice is not comparable.
•Logbook numbers not comparable to an Australasian Cardiothoracic trainee.
[11] GB vol 5, page 630 (exhibit 75); Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [92].
Dr Roberts concluded his letter, in the fourth substantive paragraph, by saying that '[i]f you wish to obtain substantially comparable specialist standards to an Australian and New Zealand trained Cardiothoracic Surgeon you will need to undertake further training'.
The assessment of 'not comparable' was made without a face‑to‑face interview with Dr Elobadi. As the primary judge held, a 'specialist assessment is principally document based. It may include a face‑to‑face semi‑structured panel interview only with IMGs who are deemed from the document based assessment to provide sufficient evidence of specialist training'.[12]
[12] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [38].

Dr Elobadi's application to convene the Appeals Committee of the RACS

Following the 'not comparable' assessment in relation to Dr Elobadi's fourth application, the primary judge found (and it was not challenged on appeal) that Dr Elobadi's request to convene the appeals committee was by the email that Dr Elobadi sent to Dr Hillis on 11 August 2009.[13]
[13] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [126].
In that email (set out verbatim below) Dr Elobadi said of the College assessment:[14]
[14] GB vol 5, page 631 (Exhibit 77).
I believe its unfair and the process has not followed and for the following reasons.
1.The college has contacted Mr. M. Newman , I haven't nominated him as referee, and he declined to be a referee to avoid future conflict with the board.
2.Mr French has been forced by the board to compromised his report in 2008, so there is no reason to recontact him.
3.I understood from college recommendation that the assessment was a phone calls assessment and not document based assessment.
4.Process of natural justice has not followed and parties with conflict of interest has not been excluded.
5.Information has been provided to the college recently has not been considered.
I decided to proceed to the appeals committee on these grounds, I am waiting to receive the balance to complete the fee.

The subsequent correspondence

On the same evening, almost immediately after sending the 11 August 2009 email, Dr Elobadi sent an email to Mr Gorton (the solicitor for the RACS),[15] copied to others including Dr Hillis. Dr Elobadi again said that he 'decided to proceed to the appeals committee'. Dr Elobadi asked that none of the members 'who attended [the] previous hearing should be invited to attend this coming hearing'.[16]
[15] ts 303 (14 September 2012).
[16] GB vol 5, page 632 (Exhibit 77).
On 12 August 2009, Dr Elobadi sent another email to Dr Hillis and others.[17] In that email Dr Elobadi said that he wanted to correct allegedly false statements in Dr Roberts' assessment of his 29 June 2009 application. Dr Elobadi suggested that Dr Roberts had not discussed the application with Prof Newman (as Dr Roberts had said) but had, instead, spoken with a Mr M Neugyn. He also referred to the 'fourth paragraph' of Dr Roberts' letter, in which he alleged Dr Roberts had referred to 'general surgery' rather than 'cardiothoracic surgery'.
[17] GB vol 5, page 633 (Exhibit 77).
On 13 August 2009, the solicitors for the RACS wrote to Dr Elobadi.[18] They explained that '[i]n order to accept your request for appeal' they required (i) full details of the decision of the College in respect of which he was lodging his appeal, (ii) full details of the submissions he proposed to raise in connection with his appeal, and (iii) payment in full of the appeal fee. They explained that once they had the information and payment, the 'usual processes will be followed to convene a meeting of the Appeals Committee'. They explained that Dr Elobadi would be aware of the processes involved given his previous appeals.
[18] GB vol 5, page 634 (Exhibit 84).
On 16 August 2009, by email attachment, Dr Elobadi wrote to Dr Civil, the Censor in Chief at the RACS.[19] In the letter, Dr Elobadi elaborated upon the grounds of appeal set out in his 11 August 2009 email. He raised concerns about the contact that the RACS had had with Prof Newman and Dr French. He said that the error that he alleged in the fourth paragraph of Dr Roberts' letter raised serious questions concerning whether Dr Elobadi's application had been reviewed properly. He alleged that Dr Roberts had made his recommendation without including additional information possessed by the IMG department.
[19] GB vol 5, page 637 ‑ 638 (Exhibit 88).

The refusal of the RACS to convene the Appeals Committee

On 26 August 2009, the RACS, by its solicitors, responded to Dr Elobadi's request.[20] The RACS refused to convene the Appeals Committee. Since this refusal was a central issue at trial, and the core issue on appeal, the relevant parts of the letter are set out in full below.
We note the assessment issued to you in August 2009 confirms the similar assessment requested by you in August 2008. Your assessment in August 2008 was also subject to appeal, which appeal confirmed the decision in relation to your specialist assessment and confirmed that you would not be regarded as comparable to an Australian or New Zealand trained surgeon.
The College has now noted that the recent specialist assessment notified in August 2009 was in relation to the same materials, and there was no new material of substance in your application or submissions. The same decision was reached, that you are not substantially comparable, and you would need to apply for surgical training. We note in this regard, the Appeals Committee in 2008 also advised that you would be entitled to apply for training under the College SET program, which could lead to full qualification, in accordance with the requirements and regulations of that program. We note that you have taken no steps to apply for entry into the program.
Under the Appeals Policy, the Chief Executive of the College is not to convene the Appeals Committee unless he is satisfied that there are valid grounds for appeal. Given that there is no new material in your recent assessment, and therefore no new material applicable for an appeal, the Chief Executive has reached the conclusion that there are no valid grounds for an appeal. The same issues considered by the Appeals Committee in 2008, apply in this case. It would amount to a re‑hearing of the same matter.
Accordingly, we have been asked by the College to confirm to you that it will not be convening the Appeals Committee to consider your request in relation to your recent specialist assessment.
[20] GB vol 5, page 639 (Exhibit 89).

The Appeals Mechanism Policy

The centrally relevant document to the trial, and to this appeal, was a document which was described as the Appeals Mechanism Policy. It was common ground that this policy document has contractual effect between the RACS and Dr Elobadi. The central clauses of the Appeals Mechanism Policy are set out below.[21]
[21] GB vol 4, page 481 - 486.
Clause 1 provides for the 'purpose and scope' of the policy. It says that the policy is 'the mechanism for appeal by any person adversely affected by a decision of the College that is inconsistent with approved policy'.
Clause 4 is entitled 'Background'. It provides that '[a]ny person who believes that they have been adversely affected by a decision that is inconsistent with approved policy and procedure may apply to the Chief Executive Officer to have the decision considered by the Appeals Committee'.
Clause 5.1 is the clause at the heart of this appeal. It provides as follows.
5.1Reconsideration of decisions
5.1.1Before referring a matter to the Appeals Committee, the Chief Executive Officer may advise an appellant to seek reconsideration and review of the original decision. Such reconsideration and review must be initiated within three months of notification of the decision, and shall not, and does not, constitute an appeal under these rules.
5.1.2An appellant may request copies of information on which the decision was based. The College will provide such information upon written request, within 4 weeks of the request, subject to obligations of privacy and confidentiality which may apply.
5.1.3The Chief Executive Officer shall not convene the Appeals Committee until satisfied:
(a)that all appropriate avenues of reconsideration and review of the original decision have been exhausted; and
(b)that, on the basis of the supporting documented material submitted, there are valid grounds of appeal.
Clause 5.2.1 provides that applications to the Chief Executive Officer to have a decision reconsidered by the Appeals Committee
shall be in writing and accompanied by all relevant information or grounds upon which the person seeks to rely in respect of the review. An appellant shall be asked to lodge a written submission to the Appeals Committee as required in these rules.
Clause 5.2.2 provides that the Appeals Committee may consider decisions including those 'of Boards and Committees in relation to the assessment of International Medical Graduates (IMGs) seeking a pathway to Fellowship of the College'.
Clause 5.2.3 provides that an appeal can only be brought on the following grounds:
(a)That an error in law or in due process occurred in the formulation of the original decision.
(b)That relevant and significant information existing at the time of the original decision was not considered or not properly considered in the making of the original decision.
(c)That the original decision was inconsistent with the evidence and arguments put before the body making the original decision.
(d)That irrelevant information was considered in the making of the original decision.
(e)That procedures that were required by College policies to be observed in connection with the making of the decision were not observed.
(f)That the original decision was made in accordance with a rule or policy without regard to the merits of the particular case.
(g)That the original decision was made for an improper purpose.
Although the application is described as one to have a decision 'considered' by the Appeals Committee, cl 6.2 provides that the 'Appeals Committee will not, unless in exceptional circumstances, consider a matter de novo'.
By cl 5.5, the Appeals Committee has power, after considering all the submissions, to (i) confirm the decision which is the subject of the appeal, (ii) revoke the decision which is the subject of the appeal, (iii) revoke the decision and refer the decision back to the relevant Board for further consideration upon any terms and conditions, or (iv) revoke the decision and make recommendations to Council on an alternative decision.

The grounds of appeal

Dr Elobadi appeals to this Court from the decision of the primary judge. He has two grounds of appeal. They are not independent. In combination they assert that the primary judge should have found that the RACS was in breach of its contract with Dr Elobadi, and should have awarded damages to Dr Elobadi for his lost opportunity to be 'assessed as Partial [sic] Comparable'.
The grounds of appeal, and the written submissions, relied upon the wrong document. Counsel for Dr Elobadi on this appeal (who did not sign the grounds or written submissions) accepted that the relevant document was the Appeals Mechanism Policy. He amended the grounds of appeal on this basis.
The first ground is that the primary judge erred in finding that the decision by Dr Hillis in refusing to convene the RACS's Appeals Committee complied with the Appeals Mechanism Policy. The ground of appeal alleges that the Appeals Committee should have been convened to reconsider Dr Elobadi's assessment application for Dr Elobadi 'to be found Partial [sic] Comparable being a step toward [Dr Elobadi] being admitted as a Fellow of [the RACS]'. Three particulars are given for this alleged error.
The second ground of appeal is premised upon the success of the first. It asserts that if the primary judge had found that Dr Hillis had failed to comply with the Appeals Mechanism Policy then Dr Elobadi was entitled to an award of damages for breach of contract for his loss of 'an opportunity to be assessed as Partial [sic] Comparable, to undergo further training and potentially be admitted as a Fellow of [the RACS]'.

The first two reasons why the appeal must be dismissed

The primary judge concluded that 'the inevitable result of an appeal [to the Appeals Committee] would have been a dismissal'.[22] This conclusion was supported by a number of intermediate findings of fact. They included the finding that there had been little change in the factual circumstances of Dr Elobadi since the dismissal of his previous appeal (on 21 October 2008) apart from him acquiring more experience.[23]
[22] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [221].
[23] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [222].

Dr Elobadi did not challenge this conclusion by the primary judge.
The effect of the unchallenged conclusion that the inevitable result of an appeal to the Appeals Committee would have been dismissal is that but for any breach of contract by the RACS in failing to convene the Appeals Committee, the appeal would inevitably have been dismissed in any event.
This is sufficient to dismiss the appeal to this Court. Even if there had been a breach of contract, there would no utility in making any declaration of breach of contract which would 'produce no foreseeable consequences for the parties'.[24] Nor could any damages be awarded for loss of a chance that did not exist or had no value.[25]
[24] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey & Gaudron JJ).
[25] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey & Gaudron JJ), 358 (Brennan J); Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 [3] (Macfarlan JA), [85] (Ward JA, Hoeben JA agreeing).
The second reason why the appeal must be dismissed is similar.
The primary judge found that in order to achieve a classification of 'partially' or 'substantially comparable', Dr Elobadi's training and experience must be at a much higher level than he has demonstrated.[26] His Honour concluded that Dr Elobadi has never completed a comparable specialist training programme to the College programmes and that he will never be regarded as 'partially comparable' until he does.[27] Again, this conclusion was supported by a number of intermediate findings of fact and based on the primary judge's assessment of witnesses.[28]
[26] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [89].
[27] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [220].
[28] For instance, Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [226]. See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 ‑ 126 [23] (Gleeson CJ, Gummow & Kirby JJ).
Dr Elobadi does not challenge this conclusion of the primary judge. The effect of this second unchallenged conclusion is that an ultimate assessment of 'not comparable' would have been made even if it were not inevitable that the Appeals Committee would dismiss the appeal and even if the Appeals Committee would have revoked the re‑assessment of 'not comparable' and exercised its powers (above [31]) to require further consideration by the Board.
The appeal to this Court must also be dismissed due to this second unchallenged conclusion. Again, even if there had been a breach of contract, there would no utility in making any declaration of breach of contract in circumstances in which any breach would not have affected the ultimate factual circumstance about which Dr Elobadi complains. And no damages can be awarded for loss of a chance to be assessed 'partially comparable' when that chance did not exist.

Two other reasons why this appeal must fail

There are two other reasons why this appeal must fail. In light of the two primary reasons set out above it is sufficient to explain briefly each of these additional two matters.

1. The particulars forming the basis of the appeal are misconceived

The first additional reason why the appeal must fail is because the particulars are based upon assertions of fact contrary to the evidence, or based upon matters that have no bearing on whether there was a breach of the Appeals Mechanism Policy. None of them can establish any breach of the Appeals Mechanism Policy.
The first particular of alleged breach of the Appeals Mechanism Policy is that Dr Hillis 'could not have satisfied himself whether the appeal application established any valid grounds of appeal' because at the time of making his decision he had not received Dr Elobadi's grounds of appeal.
The fact asserted in this particular is incorrect. As explained above, Dr Elobadi's request to convene the Appeals Committee was by email on 11 August 2009. In the email he provides five grounds of appeal. In that email, as well as the second email to Dr Hillis that evening, Dr Elobadi explained that he 'decided to proceed to the appeals committe [sic] on these groounds [sic]'. Dr Elobadi further elaborated on these grounds in his letter to Dr Civil on 16 August 2009 (a letter that Dr Hillis said that he was reasonably sure he saw prior to making his assessment).[29] These five grounds of appeal were intended by Dr Elobadi as appeal grounds. They were treated as appeal grounds.
[29] GB vol 1, page 123 [14(i)]; ts 326 (14 September 2012).
The first particular of appeal cannot succeed.
The second particular alleges a breach of the Appeals Mechanism Policy because it asserts that the primary judge erred by finding that the decision of Dr Hillis not to convene the Appeals Committee conformed with the Appeals Mechanism Policy. The breach of the Appeals Mechanism Policy is said to be that Dr Hillis 'made his decision not on the basis of whether the appeal application had established valid grounds of appeal but on the basis of the outcome of previous assessment applications and appeals'. The implicit assertion in this particular is that Dr Hillis limited his consideration to previous assessment applications and appeals or that consideration of these matters was irrelevant. This assertion must be rejected.
The primary judge accepted Dr Hillis' evidence about how he reached the decision to apply the policy against allowing an appeal. His Honour considered the cross‑examination of Dr Hillis and concluded that 'Dr Hillis was meticulous in his consideration whether the policy permitted an appeal' and 'took account of all appropriate matters' and 'reached a decision that was procedurally appropriate and fair'.[30]
[30] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [135].
Dr Hillis properly considered Dr Elobadi's previous assessments and appeals. Those assessments and appeals were relevant because they had involved findings about the training that Dr Elobadi would require before he could be assessed as partially comparable. But Dr Hillis' evidence about how he reached his decision was not limited to the 'outcome' of those previous assessment applications and appeals. Nor was it limited to the findings in those previous assessment applications and appeals. Nor was it limited to the matters mentioned by the solicitors for RACS in their letter on 26 August 2009 which Dr Hillis accepted was an 'indication' of why no Appeals Committee would be formed.[31]
[31] ts 311 (14 September 2012).
Dr Hillis took the following steps in his consideration of whether there was a valid ground of appeal raised by Dr Elobadi in his grounds of appeal:
(i)before reaching any conclusion about whether there were valid grounds of appeal,[32] he engaged an internal review of the grounds of appeal, conducted by Dr Petrusch and Dr Roberts;[33]
(ii)he reviewed Dr Elobadi's file and application history,[34] he read through the material that Dr Elobadi sent in his emails,[35] which included Dr Elobadi's emailed letter to Dr Civil, on 16 August 2009, that elaborated upon Dr Elobadi's grounds of appeal;[36]
(iii)he considered Dr Elobadi's two previous appeals from RACS decisions that Dr Elobadi was 'not comparable'[37] and turned his mind to the fact that Dr Elobadi had been informed by previous Appeals Committees that to obtain substantially comparable specialist status he will need to apply for specialist training[38] and that more years of doing registrar work would not lead to fellowship because he needed to apply for, and be accepted, onto the training program;[39]
(iv)he considered the directives from the previous Appeals Committees in the context that the Appeals Committee is the most senior committee at the RACS, apart from Council (the overarching Board of Governance), and made up of very senior members;[40]
(v)he considered whether there was any error of law or lack of due process in the 6 August 2009 decision;[41]
(vi)he considered whether there might be any other grounds of appeal available to the appellant under the Appeals Mechanism Policy;[42] and
(vii) he concluded that there were no valid grounds of appeal within the meaning of the Appeals Mechanism Policy.[43]
[32] ts 307 (14 September 2012).
[33] ts 304 (14 September 2012).
[34] GB vol 1, page 125 [20] (Exhibit F).
[35] ts 315 (14 September 2012).
[36] ts 326 (14 September 2012).
[37] ts 311 (14 September 2012).
[38] ts 317 (14 September 2012).
[39] GB vol 1, page 125 [21.3] (Exhibit F); ts 323 (14 September 2012).
[40] ts 323 - 324 (14 September 2012).
[41] GB vol 1, page 125 [21.5] (Exhibit F).
[42] GB vol 1, page 125 ‑ 126 [21.4], [21.5], [21.9] (Exhibit F).
[43] GB vol 1, page 126 [22] (Exhibit F).
For these reasons, the second particular of the first appeal ground must also fail.
The third particular alleges a breach of the Appeals Mechanism Policy because 'Dr Hillis determined the appeal application would be unsuccessful'.
Such a determination by Dr Hillis cannot be a breach of the Appeals Mechanism Policy. Dr Hillis' failure to be satisfied that there were valid grounds of appeal must have meant that he considered that the appeal application would be unsuccessful.
The third particular must also be rejected.

2. No value of any lost chance was established

Another reason why the appeal is dismissed is because of the lack of sufficient evidence concerning any value of the chance that was allegedly lost. In Sellars v Adelaide Petroleum NL,[44] Mason CJ, Dawson, Toohey and Gaudron JJ said that 'the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage' (italics in original).[45] This requires that there must be 'evidence from which the value of [the] lost opportunity can be assessed'.[46]
[44] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332.
[45] Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332, 355.
[46] Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 [86] (Ward JA; Macfarlan & Hoeben JJA agreeing)
The primary judge concluded that[47]
To establish the loss of a chance it would have to be assumed that Dr Elobadi should have been assessed as 'partially comparable' in 2009. He would have found continuing employment (his responsibility) as a registrar. He would complete a structured training regime. In due course, he could pass an exit examination and be admitted as a Fellow. The imponderables at each step do not even make the assessment of a loss of a chance an educated guess.
[47] Elobadi v Royal Australasian College of Surgeons [2013] WASC 29 [231].
To elaborate on the point made by the primary judge, for Dr Elobadi to prove that any chance lost had value, there would need to be a proved chance of the following occurrences:
(i)The Appeals Committee would have to have been convened some time after Dr Elobadi's application on 11 August 2009;
(ii)Dr Elobadi would have to succeed in his appeal to the Appeals Committee;
(iii)Dr Elobadi would have to be subsequently assessed as 'partially comparable';
(iv)Dr Elobadi would have to subsequently find, or continue, employment as a registrar;
(v)Dr Elobadi would need to complete a structured training regime;
(vi)Dr Elobadi would have to sit, and pass, the fellowship exam for admission to fellowship as a consultant surgeon in cardiothoracic surgery; and
(vii)Dr Elobadi would have to obtain employment as a consultant surgeon.
Putting aside the 'imponderables' at (i) to (vi) above, it appears that there was no evidence concerning (vii), Dr Elobadi's prospects of obtaining employment as a consultant surgeon.
The lack of evidence concerning Dr Elobadi's prospects of obtaining employment as a consultant surgeon is compounded by difficulties concerning the calculation of income derived from such a position based on the admitted evidence. At trial, Dr Elobadi had claimed $1,352,000 as lost income as a consultant surgeon for the years 2010, 2011, 2012, and 2013.[48] On this appeal the written submissions by counsel for Dr Elobadi (who was not counsel at the oral hearing) asserted only that Dr Elobadi had lost income for 2011 and 2012 (assuming that the second claim for lost income for 2011 was intended to be a reference to 2012) of $875,000. This assertion appeared to derive from the same particulars of loss asserted at trial which allege income in 2011 that he would have earned as a consultant surgeon.
[48] Amended particulars of losses, BB page 82 ‑ 85.
These particulars of loss rely upon matters that appear not to have been in evidence at trial,[49] and certainly were not included in the appeal books. They were Industrial Agreements, and 'Overtime/On Call Payments ... calculated in accordance with [Dr Elobadi's] prior income with deduction made to incorporate variables'.[50] Ultimately, it is not necessary to descend into whether there was any evidential foundation for these particulars because there is insufficient evidentiary foundation for the valuation of any lost opportunity.
[49] Compare Exhibit A (Dr Elobadi's witness statement), GB vol 1, page 58 [115].
[50] Written submissions on behalf of Dr Elobadi [16] ‑ [17].

Conclusion

The basic obstacles to this appeal were the findings by the primary judge, supported by his Honour's findings of a number of intermediate facts, that (i) 'the inevitable result of an appeal [to the Appeals Committee] would have been a dismissal', and that (ii) Dr Elobadi will never be regarded as 'partially comparable' until he completes a comparable specialist training programme to the College programmes. There was substantial evidence supporting those findings. Neither was challenged.
The appeal must be dismissed.