Shahid v The Australasian College of Dermatologists
[2007] FCA 693
•11 May 2007
FEDERAL COURT OF AUSTRALIA
Shahid v The Australasian College of Dermatologists [2007] FCA 693
SUMMARY
KIRAN RUBINA SHAHID v THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS (ACN 000 551 824)
WAD 53 OF 2004NICHOLSON J
11 MAY 2007
PERTHSUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the announcement of reasons. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary.
The parties
The applicant is a medical practitioner who has sought to be appointed to the only position of Trainee Registrar in Dermatology available in Western Australia. She applied for appointment in each of the years from 2000-2004 inclusive for a position in the following year. She was not successful in any of those years. She has appealed the outcome of the selection in 2002, 2003 and 2004. None of those appeals has yet been determined.
The respondent is the Australasian College of Dermatologists (the College) of which most dermatologists are Fellows.
THE TRADE PRACTICES CLAIMS
The applicant’s claims were brought in reliance upon the Trade Practices Act1974 (Cth) (the TPA) and the Fair Trading Act 1987 (WA) (the FTA). In particular she relies on provisions in that legislation proscribing misleading or deceptive conduct or conduct likely to have that effect.
Application of the TPA and the FTA
Before the applicant’s claims under the TPA could be considered, two preliminary legal questions arose. The first was whether the College is a trading corporation. The Court has answered that affirmatively. The second was whether, in relation to the conduct of which the applicant complains, the College engaged in trade and commerce. The Court has answered that negatively. Although this latter decision would preclude the applicant succeeding under the TPA and the FTA, the Court’s reasons have nevertheless continued to examine the other issues raised by her.
Claims concerning the selection processes
In relation to the selection processes for the position of Trainee Registrar in Dermatology the applicant alleges that she was misled by an information meeting; by training handbooks; by feedback sessions; and by statements in the course of the selection process.
In relation to the representations concerning the selection process, the Court has found that in most cases the representations were not misleading or deceptive. An exception is in relation to the maintenance of the records of the College.
Claims concerning the appellate process
In relation to the appellate process, the applicant alleges she was misled by statements in the training handbooks as to the timeliness and effectiveness of the appellate process.
In relation to the representations concerning the College’s appellate process, the Court has found that the representation as to the timeliness and effectiveness of the appellate process and the maintenance of records could have been misleading or deceptive if the College’s conduct in that respect had been in trade or commerce.
BREACH OF CONTRACT CLAIMS
Additionally, in reliance on the law of contract, the applicant alleges that when she lodged her appeals with the College there was an intention to create legal relationships. Therefore she has pleaded that there was a breach of contract in various ways relating to her appeals.
The Court rejected the contention that the lodging of an appeal by the applicant was a circumstance in which there was an intention to create contractual relationships. It therefore rejected any liability based on breach of contract.
CONCLUSION
In the light of these findings, the Court was not prepared to grant to the applicant any declaratory, injunctive or monetary relief which she had sought.
Accordingly, the application was dismissed.
FEDERAL COURT OF AUSTRALIA
Shahid v The Australasian College of Dermatologists [2007] FCA 693
TRADE PRACTICES – misleading or deceptive representations – selection of a candidate on an annual basis for appointment as trainee registrar in dermatology – representations concerning the selection process – representations in information sessions, training handbooks, selection committee meetings and feedback sessions – representations concerning appellate process – filling of position before determination of appeals – whether representations misleading or deceptive or likely to be such – whether respondent a trading corporation - whether conduct in question was conduct in trade or commerce
CONTRACT – breach – whether intention to create legal relations – whether lodgement of appeals created contractual relationships
Federal Court of Australia Act 1976 (Cth) s 51A
Trade Practices Act 1974 (Cth) ss 4(1), 52, 53(g), 55AFair Trading Act 1987 (WA) ss 10, 12(1)(e), 12(1)(l), 18
Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470
Allesch v Maunz (2000) 203 CLR 172
Ashton v Australian Cruising Yacht Co Pty Ltd [2005] WASC 192
Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (2006) ATPR 42-103
Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801
Australian Competition and Consumer Commission v Kaye [2004] FCA 1363
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Brown v Jam Factory Pty Ltd (1981) 53 FLR 340
Cameron v Hogan (1934) 51 CLR 358
Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Collins Construction Co Pty Ltd v Australian Competition and Consumer Commission [1998] 43 NSWLR 131
Commonwealth of Australia v The State of Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Domain Names Australia Pty Ltd v .au Domain Administration Ltd (2004) 139 FCR 215
Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851
E v Australian Red Cross Society (1991) 27 FCR 310
Edwards v Skyways Ltd [1964] 1 All ER 494
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Fasold v Roberts (1997) 70 FCR 489
Fencott v Muller (1983) 152 CLR 570
Finucane v NSW Egg Corporation (1988) 80 ALR 486
Fox v Percy (2003) 214 CLR 118
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Havyn Pty Ltd v Webster (2005) ATPR (Digest) 46-266
Hearn v O’Rourke (2003) 129 FCR 63
Henderson v Pioneer Homes Pty Ltd (1979) 142 CLR 294
Henderson v Pioneer Homes Pty Ltd (1980) ATPR 40-159
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Jones v Dunkel (1959) 101 CLR 298
Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 70 IPR 1
Lamb v Cotogno (1987) 164 CLR 1
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1
MIPS Computer Systems Inc v MIPS ComputerResources (1990) 18 IPR 577
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants (Aust) [2001] ATPR (Digest) 46-212
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Phillips v Price [2007] WASC 54
Pirt Biotechnologies Pty Ltd v Pirtferm Limited [2001] WASCA 96
Plenty v Seventh-Day Adventist Church of Port Pirie [2006] SASC 361
Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25
Prestia v Aknar (1996) 40 NSWLR 165
R v Chief Constable of the Merseyside Police, Ex parte Calveley [1986] 1 All ER 257
R v The Judges of Federal Court of Australia: Ex parte The Western Australian National Football League (Incorporated) (1979) 143 CLR 190
Re Dickson Catering Pty Ltd (in liq) [2002] ACTSC 107
Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282
Taco Company of Australia v Taco Bell Pty Ltd (1982) 42 ALR 177
The Australian Beauty Trade Suppliers Limited v Conference and Exhibition Organisers Pty Limited (1991) 29 FCR 68
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations (1992) 38 FCR 1
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657
Trade Practices Commission v J & R Enterprises Pty Ltd (1999) 99 ALR 325
Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Village Building Company Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Westpac Banking Corporation v Northern Metals Pty Ltd (1989) 14 IPR 499
White Industries (Q) Pty Ltd v Flower & Hart (a Firm) (1998) 156 ALR 169
Yorke v Lucas (1985) 158 CLR 661
Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445KIRAN RUBINA SHAHID v THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS (ACN 000 551 824)
WAD 53 OF 2004NICHOLSON J
11 MAY 2007
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 53 OF 2004
BETWEEN:
KIRAN RUBINA SHAHID
ApplicantAND:
THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS (ACN 000 551 824)
Respondent
JUDGE:
NICHOLSON J
DATE OF ORDER:
11 MAY 2007
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
THE POSITION OF TRAINEE REGISTRAR IN DERMATOLOGY 1 THE APPLICANT'S SELECTION AND APPELLATE HISTORY 3 THE APPLICANT'S BACKGROUND 4 EVIDENCE 5 PART A: THE APPLICATION OF THE TRADE PRACTICES AND FAIR TRADING ACTS 7 IS THE RESPONDENT A TRADING CORPORATION? 7 WAS THE RESPONDENT ENGAGED IN TRADE AND COMMERCE? 12 THE NATURE OF MISLEADING AND DECEPTIVE CONDUCT AND OF REPRESENTATIONS 23 Relevant class of persons 27 Representations concerning future matters 28 The distinction between representations and aspirations 29 The distinction between representations and personal advice 29 The distinction between representations and an appraisal 30 PART B: REPRESENTATIONS CONCERNING THE SELECTION PROCESS 30 DEVELOPMENTS PRE-2000 30 NATURE OF THE SELECTION PROCESS 31 1999 INFORMATION MEETING WITH DR COLE 32 The value of general practice representations and the reinforced representations 32 Were the representations made? 35 Were the representations misleading or deceptive? 35 The value of general practice reinforced representations 36 2000 SELECTION PROCESS FOR POSITION COMMENCING 2001 37 THE TRAINING PROGRAMME HANDBOOK 2000 REPRESENTATIONS 38 Future representation i): a pass is permanently valid 39 Future representation j): requirements for provisional trainees 40 2000 FEEDBACK SESSION 40 The positive feedback and research representations 40 Research representation 41 Positive feedback representation 43 2001 SELECTION PROCESS FOR POSITION COMMENCING 2002 43 2001 TRAINING HANDBOOK REPRESENTATIONS 44 The introduction of the National Trainee Selection Guide 44 The open, transparent and accountable representations 47 Future representations: pars 20.a), d) to k), m), p), q) and t) 49 Non-future open, transparent and accountable representations 50 Failure to maintain records 52 Lack of genuine opportunity to appeal 53 2001 FEEDBACK SESSION 54 Strong performance and competitive position representations 54 2002 SELECTION PROCESS FOR POSITION COMMENCING 2003 58 2002 TRAINING HANDBOOK 60 FEEDBACK ON 2002 SELECTION PROCESS 60 INFORMAL REVIEW OF 2002 DECISION 66 2003 SELECTION PROCESS FOR POSITION COMMENCING IN 2004 66 ATTEMPTED FEEDBACK MEETING 2003 68 TRAINING HANDBOOK 2003 68 2004 SELECTION PROCESS FOR POSITION COMMENCING IN 2005 69 TRAINING HANDBOOK 2004 70 FEEDBACK SESSION 2004 70 PART C: REPRESENTATIONS CONCERNING APPELLATE PROCESS 74 APPEAL LODGED NOVEMBER 2002 FOR 2003 POSITION 74 REPRESENTATIONS OF JANUARY 2003 76 APPEAL LODGED NOVEMBER 2003 FOR 2004 POSITION 77 APPEAL LODGED NOVEMBER 2004 FOR 2005 POSITION 78 Scope of discovery issue 79 BREACH OF THE OPEN, TRANSPARENT AND ACCOUNTABLE REPRESENTATIONS IN RELATION TO APPELLATE PROCESS 79 The nature of the appeal 80 Relevance of creation of substitute position 81 Relevance of appointment being made by hospital 82 Causality of delay in hearing of appeals 82 Whether need to exhaust appellate rights 83 Impact on training argument 83 BREACH OF CONTRACT ISSUES IN RELATION TO APPELLATE PROCESS 84 The relevant pleadings 84 Case law on intention to create legal relations 85 Application of case law to facts 89 PART D: REMEDIES 90 DECLARATORY RELIEF 90 INJUNCTIVE RELIEF 92 MONETARY RELIEF 93 Relevant pleadings and particularisation 93 General damages 93 Aggravated and/or exemplary damages 97 Past and future economic loss 98 Out-of-pocket expenditure 98 Loss of income from medical practice 99 CONCLUSION 99
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 53 OF 2004
BETWEEN:
KIRAN RUBINA SHAHID
ApplicantAND:
THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS (ACN 000 551 824)
Respondent
JUDGE:
NICHOLSON J
DATE:
11 MAY 2007
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant is a registered medical practitioner in general practice. She has applied unsuccessfully for a position of Trainee Registrar in Dermatology in each of the years commencing 2001, 2002, 2003, 2004 and 2005. She claims that the respondent’s selection and appellate processes entitle her to relief because of misleading or deceptive conduct (or conduct likely to be such) and misleading representations by the respondent. Her claims are brought in reliance upon provisions of the Trade Practices Act 1974 (Cth) (the TPA) and the Fair Trading Act 1987 (WA) (the FTA), particularly ss 52, 53(g) and 55A of the TPA and ss 10, 12(1)(e), 12(1)(l) and 18 of the FTA. Her claims are set out in a re-amended statement of claim which is referred to as the claim.
The respondent is a company limited by guarantee. Fellows of the respondent are medical specialists practicing in the field of dermatology. The respondent operates in conjunction with chapters, of which there is one in Western Australian. The references to the respondent in these reasons are to be read as including or referring primarily to that Chapter unless otherwise indicated.
THE POSITION OF TRAINEE REGISTRAR IN DERMATOLOGY
In the relevant years there has been only one advertised position of Trainee Registrar in Dermatology in Western Australia, which has been tenable at Royal Perth Hospital (RPH). For the years 2001 and 2002 the advertisements for the position were placed by RPH. For the years from 2003 the advertisements were placed by the respondent. These latter advertisements noted that there is a variation between States regarding the application process for hospital-based positions and that the requirements of each State should be followed. In the case of the respondent in Western Australia, it has been the respondent’s function to conduct an annual selection process through a selection committee. The position is open to all eligible candidates in Australia and overseas. The person selected is recommended by the respondent to RPH which employs the trainee. The appointee is provided with training and instruction by Fellows of the respondent who are independently engaged as consultants by the teaching hospitals. Upon successful completion of the training, the trainee is entitled to become a Fellow of the respondent and may hold him or herself out as a specialist dermatologist.
The evidence of Dr Beresford, who was employed full time as Director, Clinical Services at RPH from 1989-2005 other than in 2000-2002, that service registrar positions for any speciality depend on both funding and workload demand. An increase in registrar positions is made to meet increasing workload demand. Training registrar positions have to be accredited (that is, authorised) by the relevant speciality college. The hospital does the administration of the rotating registrar positions for many specialities. In the case of dermatology the trainee is employed by RPH but discharges their training function on a rotational basis at other public hospitals in Perth, Fremantle, Sir Charles Gairdner and Princess Margaret. There is no financial arrangement between RPH and the respondent for the service of training the trainee registrar.
Dr Beresford further stated that RPH makes the offer of employment to the candidate recommended by the respondent. Only if the hospital was aware of some factor seemingly overlooked in the selection, would the hospital defer making any appointment while referring the issue to the respondent with notice to the candidate. If the recommended person put patients at risk, the hospital would not employ that person. Similarly, if a problem arose with a trainee the issue would be first referred to the respondent.
In cross-examination Dr Beresford testified that the Head of the Dermatology Department at RPH, who was employed by the hospital, had two roles. One was to supervise the Department, the other was as a Fellow of the respondent to be responsible for the tutoring of the individual trainees and to supervise training, for which they were responsible to the respondent. Additionally the respondent, after setting training requirements, then supervised its delivery.
In each of the years relevant to the applicant’s claims (2000 to 2004), the Selection Committee of the respondent recommended to RPH a candidate other than the applicant. In each of those years, the recommended candidate was employed by RPH in the position of Trainee Registrar in Dermatology. The applicant has argued that the respondent bears total responsibility for the appointment, given that RPH has always accepted the selected candidate. The respondent contends that the fact of acceptance by RPH of the respondent’s selection does not lead to the necessary inference which the applicant asserts, it being due arguably to the quality of the selection.
I proceed on the basis that in the years relevant to the application the appointment of the trainee registrar was made by the hospital. However, in the absence of unusual factors, the hospital would accept and act upon the recommendation from the respondent. That is, if unusual circumstances required it, RPH was entitled to accept or reject the recommendation of the respondent.
The respondent set the minimum training requirements for dermatologists and accredited training programs in its Training Handbooks. The respondent also supervised the delivery of training through the Head of the Department (as a Fellow) working with volunteer Fellows as trainers without payment from RPH (or any of the other hospitals) to the respondent. The respondent was not therefore engaged in the day to day management of the training program.
THE APPLICANT’S SELECTION AND APPELLATE HISTORY
Competition for selection for the position was usually highly competitive, with only well qualified candidates applying in the relevant years. The applicant understood that to be the case. For the position commencing in 2001, the applicant was ranked 9 out of 10. For 2002, towards the bottom of the list. For 2003, 14 out of 23. For 2004, 24 out of 34. For 2005, 7 out of 14, although two candidates withdrew so that she was effectively 7 out of 12.
The applicant has invoked the appellate process in relation to the Selection Committee decisions for the positions commencing in 2003, 2004 and 2005.
The applicant’s case is not that she should have been selected in any one of the relevant years or that she was in any of those years the best qualified candidate. Nor is it a case about the applicant seeking employment at RPH. Her claims are rather about her endeavours to get into the respondent’s training program and whether the processes of the respondent did not give her what was described in opening as ‘a fair go’. The respondent submits that nevertheless as the applicant’s case was developed in evidence, it became apparent that she contends her application should have been successful in 2002 for the 2003 position in that she was the best qualified candidate on offer with RPH that year. However, that does not reflect in the pleadings and nor has it been addressed in the submissions made for the applicant. It is to the claims in the pleadings which these reasons are directed.
The selection processes from 2000-2004 show that applicants usually applied one to two years in a row. The applicants who tried in more than one year were ones who usually got into the top five candidates. Some candidates applied unsuccessfully in more than one year. Each of the successful candidates for the positions commencing in the years 2002-2005 had previously applied unsuccessfully.
THE APPLICANT’S BACKGROUND
The applicant is a qualified and vocationally registered medical practitioner. She obtained her MBBS from the Dow Medical College of the University of Karachi, Pakistan in 1984. In August 1990 the applicant was admitted by a selection committee of the Commonwealth for a bridging course for overseas trained doctors. She completed the 12 month course in August 1991 and obtained her AMC in December 1991.
The applicant gained her specialist qualification as a Fellow of the Royal Australian College of General Practitioners (FRACGP) in July 2001.
Around February 1992 the applicant commenced practice as a general medical practitioner at the Wesley Medical Centre owned by the Wesley Central Mission in Perth. In or about July 1997 the Wesley Central Mission closed down the Wesley Medical Centre.
Sometime in August 1997 the applicant joined another city practice, namely, Forrest Chase Medical Centre where she worked full time until early December 1997.
In or about February 1998 the applicant commenced part-time work (three sessions per week) as a general medical practitioner at the Griffin Medical Centre located in Perth’s CBD.
From about 1998 to early 1999 the applicant considered various options for further advancing her career, including gaining specialist training in an area of interest, establishing and owning a general practice in Perth’s CBD or joining another practice either as a consultant contractor or a partner. In early 1999 she decided to seriously explore options for further advancing her career and expertise in medicine by gaining specialist training in dermatology. She telephoned the Australian Medical Association in Perth to obtain relevant information about a traineeship in dermatology and was told to contact Dr Judith Cole, the Regional Secretary of the WA Faculty of the Australasian College of Dermatologists. The applicant attended an interview with Dr Cole and subsequently applied to the respondent for admittance to its trainee registrar program in dermatology.
EVIDENCE
The witnesses and their evidence were as follows:
Applicant’s Witnesses Witness Statements Relevant Positions/s Dr Kiran Shahid 28 March 2006 General Practitioner, the applicant to the proceedings 10 July 2006 (Responsive Statement) Mr Shahid Shakur 28 March 2006 Solicitor and husband of the applicant 3 May 2006 (Claim for out of pocket expenditure) 10 July 2006 (Responsive Statement) Dr William Beresford 17 April 2006 Director of Clinical Services with Royal Perth Hospital (RPH) between 1989-2005 with a gap between 2000-2002 19 April 2006 (Responsive Statement) Dr Bruce McGeorge 23 March 2006 (Subject to objections considered in the reasons) Dermatologist practicing in WA who is not a Fellow of the respondent Dr Edward Stewart-Wynne 17 March 2006 Part-time Assistant Director of Clinical Services with RPH since 27 May 2000 20 April 2006 (Responsive Statement) Mr Lewis Thomas 24 March 2006 Registered tax agent and director of a tax firm Mr Timothy Spooner 8 March 2006 (Expert Report) Chartered Accountant prepared an expert report on the claimed economic loss of the applicant
Respondent’s Witnesses Witness Statements Relevant Positions/s Dr Judith Cole 13 February 2006 Fellow of the respondent, member of the selection committee 2000 and 2002-2004, Secretary of the respondent in 1999 and 2000 and involved in the national College task force on governance and curriculum development 24 April 2006 (Responsive Statement) Dr Christopher Clay 16 February 2006 Fellow of the respondent, member of the selection committee 2000-2004 and Chairperson 2002 and 2003 26 April 2006 (Responsive Statement) Dr Phillip Swarbrick 13 February 2006 Fellow of the respondent, member of the selection committee 2000-2002 and Chairperson 2000 and 2001 Dr Gian Singh 10 February 2006 Fellow of the respondent, member of the selection committee 2001-2003 and Secretary 2001-2003 21 April 2006 (Responsive Statement)
I do not allow the objection to the entire statement of Dr McGeorge. I have read the transcript and it is apparent that in respect of some of the items objected to, there are foundations for his knowledge. Whether they are convincing foundations is an issue which would arise if it was necessary to accord any weight to his evidence, as a non-expert. In the light of those considerations I allow the objections to par 31 and par 36. I also allow the objection to par 23 so far as it refers to Dr Vinciullo. I do not allow the objections to par 43 and par 44 on the basis they may inform the evidence of the witness on his perceptions of the profession. I do not allow the remaining objections.
Particularly in relation to the evidence of each annual selection process in the years relevant to the applicant’s claims, the applicant’s case draws inferences from the application of the principles in Jones v Dunkel (1959) 101 CLR 298 at 305, 308, 312, and 320-321. In doing so the applicant also relies upon Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162, 168 and 169; Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 at 671-672; White Industries (Q) Pty Ltd v Flower & Hart (a Firm) (1998) 156 ALR 169 at 226-228; and Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (2006) ATPR 42-103 at [57] and [60].
PART A: THE APPLICATION OF THE TRADE PRACTICES AND FAIR TRADING ACTS
IS THE RESPONDENT A TRADING CORPORATION?
The provisions of the TPA upon which the applicant mainly relies are applicable in respect of ‘corporations’. Section 4(1) of the TPA defines a corporation to mean (relevantly) a trading corporation formed within the limits of Australia. ‘Trading corporation’ is defined to have the same meaning as that expression has in s 51(xx) of the Constitution. The respondent denies that it is a trading corporation.
The evidence upon which the applicant relies to establish that the respondent was a trading corporation to which the TPA and FTA apply is as follows:
(a)The respondent regards its principal activities as the ‘Promotion of Dermatological Research and Training’; ‘Organisation of scientific meetings’ (the Annual Scientific Meeting incorporating a trade exhibition with it); and ‘Conduct of examinations and awarding of diplomas to successful candidates’: (See respondent’s Annual Reports: 2000/2001 at 59; 2001/2002 at 61; 2002/2003 at 63; 2003/2004 at 62).
(b)One of the respondent’s ‘chief functions’ includes providing ‘satisfactory education to our trainees’ and providing ‘a very high standard of training in dermatology’: (See respondent’s Annual Report 2000/2001 at 1, 15-17 and 46).
(c)The respondent’s education program incorporates both Registrar training and ongoing education of Fellows through its Continuing Professional Development Program (CPDP): (respondent’s Annual Report 2001/2002 at 1-2; 2004/2005 at 2)
(d)The respondent regards itself as having a ‘…monopoly on training dermatologists within Australia’: (respondent’s Annual Report 2004/2005 and respondent’s Training Program Handbook 2004 at 2).
(e)Throughout 2004/2005 the respondent increased promotion of itself and its Fellows to government, government bodies, the media and the general public to emphasise that Fellows of the respondent are the only true specialists in all aspects of skin health and disease. The respondent also planned to continue its promotional activities to ensure that dermatologists are recognised as the only true experts in all aspects of skin health and disease: (respondent’s Annual Report 2004/2005 at 2-3).
(f)The respondent earns significant income on an annual basis from a variety of sources that are of a trading or commercial character: For example, in 2000/2001 its ‘Meetings and Trade Exhibitions’, ‘Unit Trust Distributions’, ‘Entrance Examination Fees’, ‘Training Conferences/Courses’, ‘Network Training Income’, and ‘Building Levies Received’; In 2001/2002 ‘Revenue from meetings, trade exhibitions and courses’; ‘Training/Projects revenue’; ‘Investment revenue’; ‘Interest revenue’; ‘Revenue from sale of books and brochures’. (See respondent’s Annual Reports: 2000/2001 at 58-69 particularly at 61; 2001/2002 at 60-75 particularly 64; 2002/2003 at 62 – 74 particularly at 65; 2003/2004 at 61 – 75 particularly at 65). The respondent is also registered for GST and has an Australian Business number.
(g)The respondent’s Annual Scientific Meeting (incorporating a Trade Exhibition) is the respondent’s ‘largest single income/expenditure item’: (respondent’s Annual Report 2000/2001 at 56; 2001/2002 at 57; Statement of Shahid Shakur at pars 25-27).
(h)The respondent’s Finance Committee established following a respondent’s Council meeting in November 2000 recognised that ‘it should be pro-active in seeking new sources of income generation’: (respondent’s Annual Report 2000/2001 at 36).
(i)The respondent is dependant on income from meetings, trade exhibitions and sponsorship to fund its core activities: (respondent’s Annual Report 2001/2002 at 62).
The respondent’s Memorandum of Association and Articles of Association confirm that training courses and arranging for and providing instruction in dermatology are part of the objects of the respondent. They also confirm the respondent’s powers to undertake trading or commercial activities in furtherance of the objects of the respondent (including purchasing real or personal property or investing and dealing with the respondent’s money).
The respondent relies on the evidence of the applicant’s witness Dr Beresford. He testified that the respondent does not receive any remuneration from the hospital for undertaking the process of reviewing the applicants and making a recommendation. Further that training is provided by members of the respondent through the hospital at no charge. The candidates pay their examination fees and annual fees to the respondent.
The respondent submits that trading was not a substantial activity of the respondent. It contends that the trading activities of a corporation must form a significant proportion of the respondent’s overall activities: R v The Judges of Federal Court of Australia: Ex parte The Western Australian National Football League (Incorporated) (1979) 143 CLR 190 (Adamson 143 CLR).
However, the applicant’s submissions on the point rely on authorities which point to wider considerations. The test for determining whether or not a corporation is a trading corporation for the purposes of the TPA requires consideration of the ‘current activities’ of the corporation rather than enquiring into the ‘essential character’ of or ‘purpose of its incorporation’: Adamson 143 CLR and State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 at 303–304 per Mason, Murphy and Deane JJ. The test requires an assessment to be made whether ‘trading is a substantial corporate activity’ (Adamson 143 CLR at 208 per Barwick CJ) or whether ‘trading activities form a sufficiently significant proportion of its overall activities’ (Adamson 143 CLR at 233 per Mason J with whom Jacobs J agreed) or determining that ‘trading is not insubstantial, [the fact that trading is incidental to other activities does not prevent it being a trading corporation]’: Adamson 143 CLR at 239 per Murphy J. It should also be noted that ‘Trade for constitutional purposes cannot be confined to dealing in goods or commodities. Its full parameters may be difficult of definition. But the commercial nature of an activity is an element in deciding whether the action is in trade or trading’: Adamson 143 CLR at 209 per Barwick CJ.
In State Superannuation Board 150 CLR at 304, Mason, Murphy and Deane JJ also said:
‘The point is that the corporation engages in trading activities and these activities do not cease to be trading activities because they are entered into in the course of, or for the purpose of carrying on a primary or dominant undertaking not described by reference to trade.’
It has been recognised that a trading corporation may be a sporting, religious or governmental body: see Adamson 143 CLR at 239 per Murphy J. The fact that a corporation was incorporated by statute, publicly owned and established to undertake important public functions at public expense does not prevent it being characterised as a trading corporation – as was the case with the Tasmanian Hydro-Electric Commission in the Commonwealth of Australia v The State of Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.
Applying the activities test led Wilcox J to conclude that the Australian Red Cross Society, the NSW Division of that Society and The Prince Alfred Hospital were each trading corporations for the purposes of the TPA: see E v Australian Red Cross Society (1991) 27 FCR 310 at 340-345. This was notwithstanding that the Society did not make any profit out of its blood transfusion service (accounting for some 80 per cent of its activities) and that it did not charge for its blood products. Its only income was from governments, and the funding formula prevented that income ever matching its costs. In relation to the supply of blood the Red Cross Society and the NSW Division did not engage in trading activities; they engaged in a major public welfare activity pursuant to agreements with governments. Similarly, regarding The Prince Alfred Hospital, Wilcox J found that its ‘predominant activity was the provision of medical and surgical care to patients, they were not objectives antithetical to the notion of trade. Many trading corporations supply services rather than goods’: E v Red Cross 27 FCR at 345. It is not necessary that trading activities be profitable, or are even intended to be profitable, to constitute the trader as a ‘trading corporation’: E v Red Cross 27 FCR at 345.
In The Australian Beauty Trade Suppliers Limited v Conference and Exhibition Organisers Pty Limited (1991) 29 FCR 68 the sole issue before the Full Court was whether the primary judge had erred in finding that the appellant (ABTS Ltd) was a trading corporation formed within the limits of Australia for the purposes of the TPA. ABTS Ltd was a company limited by guarantee and had about 37 members each of whom paid an annual membership fee of $100. The members were suppliers to the trade known as the beauty industry. ABTS Ltd did not itself engage in any such supply business. It acted as a monitor in respect of adherence by its members to its rules. The main activity of ABTS Ltd was the organisation, annually, of a trade exhibition at which members were required to exhibit and at which non-members could exhibit, on less favourable terms than those available to members. In upholding Justice Foster’s view that ABTS Ltd was a trading corporation within the meaning of the Constitution and therefore the TPA, Morling, Wilcox and Hill JJ referred to and applied the High Court’s decisions in Adamson 143 CLR 190 and State Superannuation Board 150 CLR and said at 72:
‘In our opinion the involvement of the appellant in the annual exhibition is a trading activity. The exhibition itself is a significant commercial enterprise. The appellant instigates the exhibition, appoints an organizer and oversees her arrangements. From time to time it directs her as to the course she must take. By the terms of its rules, the appellant compels its members to participate in the exhibition and it takes a share of its financial return. The appellant engages in the exhibition for the ultimate purpose of promoting the sale of its members’ products. The exhibition generates the greater part of the appellant’s income. The exhibition is a substantial and not merely a peripheral activity of the appellant.
It is true that, comparatively speaking, the appellant cannot be described as a large corporation. But that is not to the point.’Trading denotes the activity of providing, for reward, goods or services: Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 20 per Toohey J citing other authorities. It is necessary therefore to identify what activities of the respondent constitute providing, for reward, goods or services.
In the case of the respondent its activities are directed to the provision of services. To some degree that provision is not for reward. The two matters referred to in the evidence of Dr Beresford (the absence of remuneration from RPH to the respondent for undertaking the process of selection and the provision of training by Fellows of the respondent without charge) are in that category.
The principal trading activity of the respondent is that of organising its Annual Scientific meeting which incorporates a trade exhibition. That is its largest single income/expenditure item by a very long measure. It also earns income from its training functions, which relate to continuing education of Fellows and, to a smaller extent, of persons seeking to complete the Part 1 examination or any later equivalent. Such income is significant to it. As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation: Adamson 143 CLR at 239 per Murphy J.
I do not consider the trading activities of the respondent to be insubstantial. As in Australian Beauty Trade 29 FCR 68, the exhibition itself is a significant commercial enterprise constituting a sufficiently significant proportion of the overall activities of the respondent. It generates a most significant part of the respondent’s income. These circumstances are such as to merit the description of the respondent as a trading corporation.
WAS THE RESPONDENT ENGAGED IN TRADE AND COMMERCE?
The applicant’s pleading asserts that the respondent is a supplier throughout Australia of dermatology post-graduate education, training and related services, including related services of accrediting training positions in hospitals, selecting medical practitioner candidates to fill trainee posts and educating and training trainees. In addition it is alleged the respondent is a supplier of high quality care and advice to individual patients, other branches of the medical profession, interest groups and the general public.
The respondent denies that it is engaged in the supply of services or engaged in trade or commerce or that it supplies care to patients. There is no evidence that it does supply such care. The respondent accepts the following and denies the remainder:
‘4.1The core activities of the Respondent are:
4.1.1to develop the curriculum for the training program;
4.1.2to set accreditation standards to be applied to dermatology training posts in public teaching hospitals and other dermatology foundations/institutions;
4.1.3to accredit those training programs;
4.1.4to recommend to the relevant public teaching hospital the candidate for employment by the public teaching hospital in a trainee registrar post in dermatology.
4.2The relevant public teaching hospital is entitled to accept or reject a recommendation by the Respondent to employ the candidate in the position of trainee registrar in dermatology;
4.3Individual Fellow dermatologists employed by the public teaching hospitals provide training to trainee registrars;
4.4Training of trainee registrar dermatologists is not, and has never been, an activity of the Respondent;
4.5Until the end of 2001, the Respondent charged administrative fees to eligible candidates by which expression is meant (successful completion of Basic Sciences Part 1 examination) to cover the costs of gathering, collating and disseminating materials to those candidates eligible to apply for the trainee registrar position in dermatology;
4.6The Respondent charges fees to candidates applying for a position as trainee registrar dermatologist to cover the administration costs of the selection process; and
4.7Fellows of the Respondent volunteer to be a member of the Respondent’s Local Selection Committee which makes recommendations of a candidate to the public teaching hospital;
…’
In other pleadings the respondent also accepts that it conducts examinations and awards diplomas to trainee dermatologists.
For an applicant to establish liability by a respondent under ss 52, 53 or 55A of the TPA or ss 10, 12 or 18 of the FTA it must establish that the impugned conduct was engaged ‘in’ ‘trade or commerce’: Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 at 602, 604, 614 and 613. The reasoning in that decision has been analysed by Dowsett J in his dissenting reasons in Hearn v O’Rourke (2003) 129 FCR 63 at 70-76, considered by the Full Court (French, Sackville and Conti JJ) in Village Building Company Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330 at 338-341. In Hearn 129 FCR at 73 Dowsett J stated:
‘… the focus must be upon the conduct in question and not upon the range of activities in which a relevant corporation may be engaged. In other words, one does not simply identify the conduct in question, note that the relevant corporation is engaged in commercial activity of some kind, then look for a connection between the two. Because corporations are usually formed to engage in commercial activities, it will rarely be difficult to find such a connection. The correct approach is to determine whether or not the relevant conduct can, according to ordinary usage, be described as having occurred in the course of dealings “which, of their nature, bear a trading or commercial character”. The commercial undertakings of the corporation in question may be relevant to the exercise. However, the more important question will be whether the conduct is of a kind which is usually of a commercial nature.’
The evidence which the applicant relies upon as establishing that the respondent’s conduct was ‘in’ trade or commerce is:
(a)The writing or preparation of comprehensive material in the form of a ‘Training Program Handbook – Information and Curriculum’ and updating that from time to time (See respondent’s Training Program Handbooks 2000, 2001, 2002, 2003, 2004 and respondent’s Annual Reports 2000/2001 at 4 and 16; 2001/2002 at 15);
(b)Publication of the Training Program Handbook on an ongoing regular annual basis either in hard copy or on the respondent’s website (See respondent’s Training Program Handbooks 2000 to 2004;
(c)The production and sale of support materials (See Order Form at the back of each of the respondent’s Training Program Handbooks for 2000 at 93; 2001 at 102; 2002 at 104; 2003 at 103; 2004 at 116 and Statement of Kiran Shahid at par 21);
(d)The organisation and conduct of a preliminary or basic support course or seminar (respondent’s Training Program Handbooks – 2000 at 8 at par 1.2.2; 2001 at 7; 2002 at 7 and Statement of Kiran Shahid at pars 22–26);
(e)The compilation, publication and implementation of the curriculum of and assessment processes for the training program and updating or modifying the same from time to time (respondent’s Training Program Handbooks 2000 to 2004; respondent’s Annual Reports 2000/2001 at 15-17; 2001/2002 at 16-19; 2002/2003 at 1, 3, 16-18; 2003/2004 at 2, 19-21; 2004/2005 at 20-23);
(f)The compilation, publication and implementation of a National Trainee Selection Guide as means of selecting the best and most appropriate candidates for dermatology training positions (respondent’s Training Program Handbooks – 2000 at 47; 2001 at 42-52; 2002 at 42-52; 2003 at 44-53; 2004 at 54-63; Brennan Report; respondent’s Annual Reports 2000/2001 at 4 and 17; 2001/2002 at 18; 2004/2005 at 23);
(g)Developing criteria and requirements for accrediting positions within public hospitals or elsewhere as suitable positions for training medical practitioners (trainees) to become dermatologists (respondent’s Training Program Handbooks – 2000 at 53-54; 2001 at 55-56; 2002 at 55-57; 2003 at 56-58; 2004 at 65-67);
(h)Prescribing the form of an application for accreditation of a training position (respondent’s Training Program Handbooks – 2000 at 53-60; 2001 at 57-68; 2002 at 58-69; 2003 at 59-70; 2004 at 68-79);
(i)Accrediting the specifically identified positions within public hospitals or elsewhere in accordance with the respondent’s criteria (respondent’s Training Program Handbooks – 2000 at 49-50; 2001 at 53-54; 2002 at 53-54; 2003 at 54-55; 2004 at
5-6);(j)Advertising, inviting or accepting on an ongoing, organised and annual basis for applications for Trainee Registrar positions (respondent’s Training Program Handbooks – 2000 at 5 and 11; 2001 at 5 and 43; 2002 at 5 and 43; 2003 at 5 and 45; 2004 at 1 and 55; and Statement of Kiran Shahid at pars 31-33; 51-54; 71-76; 212-220; 240-244);
(k)Selecting candidates to fill the respondent’s accredited Trainee Registrar positions (respondent’s Training Program Handbooks – 2000 at 7-8; 2001 at 6-8; 2002 at 6-8; 2003 at 6-8; 2004 at 2-3 and 7-8; Statement of Kiran Shahid at pars 33-35; 54-59; and Statement of Edward Stewart-Wynne at pars 8, 20, 30-34, 48-54);
(l)Compiling and prescribing the form of ongoing appraisal or assessment of trainees (respondent’s Training Program Handbooks – 2000 at 61-75; 2001 at 69-83; 2002 at 70-84; 2003 at 71-84; 2004 at 80-97);
(m)Developing, publishing and imposing a Code of Conduct for trainees of the respondent’s Training Program Handbooks – 2000 at 15-16 and 77-78; 2001 at 15-16 and 84; 2002 at 15-16 and 85; 2003 at 16-17 and 85-86; 2004 at 38-39 and 98-99);
(n)The provision of ‘feedback’ to the candidates (respondent’s Training Program Handbooks – 2001 at 46; 2002 at 46; Statement of Kiran Shahid at pars 36-39, 61-64, 78-83, 86-93, 222-228, and 247-262; Statement of Edward Stewart-Wynne at pars 11-19 and 21-26);
(o)Examination (meaning all forms of assessment of a candidate’s attempt at attainment of the position) (respondent’s Training Program Handbooks – 2000 at 41-42; 2001 at 35-36; 2002 at 35-36; 2003 at 36-38; 2004 at 30-36; Statement of Kiran Shahid at pars 18-30);
(p)Development, publication of material regarding and implementation of an Appeals Process so that any person adversely affected by a decision of the respondent can have their grievances addressed in a properly constructed and formal manner (respondent’s Training Program Handbooks – 2000 at 12, 45; 2001 at 12, 38-41; 2002 at 12, 38-41; 2003 at 13, 40-43; 2004 at 44, 50-53).
The applicant contends that the provision of or conduct of the respondent’s training program is conduct in trade or commerce for the following reasons:
(a)Education and training are activities in which the respondent and the candidates participate;
(b)They involve the charging of fees by (or the selling of services by) the respondent to the candidates (Preliminary course or seminar fee, examination fee, annual fee or levy, application fee and appeal fee) (respondent’s Training Program Handbooks – 2000 at 11-12; 2001 at 11-12, and 39; 2002 at 11-12 and 39; 2003 at 12-13 and 41; 2004 at 35, 41 and 51; and Statement of Kiran Shahid at pars 27, 44-45, 65, 120, 155-156, 201-203, 229, 232-236, 241, 265);
(c)The respondent earns income from its training conference/courses. Even if the services may be provided without profit to the respondent that would not necessarily signify that they are not provided in trade or commerce. The proper characterisation of the provision of the training program is not dependant on the respondent’s internal accounting practices. Nor it is submitted can it be dependant on the level of fees the respondent choses to charge. The respondent has acknowledged that its core objectives should ideally be funded by fees – rather than be dependant on respondent meetings, trade exhibitions and sponsorships (See respondent’s Annual Report 2001/2002 at 62);
(d)The respondent supplies the services or provides its training program on a highly organised, comprehensive, systematic and ongoing basis;
(e)The respondent supplies its training program services to many applicants each year. The respondent recognises that ‘[e]ntry into the program is highly competitive’ (respondent’s Training Program Handbook 2004 at 6); and
(f)The respondent’s training program is an essential path to Fellowship of the respondent with its enhanced standing in the community and commercial benefits such as immediate recognition by the Health Insurance Commission of specialist Dermatologist status for higher Medicare rebate purposes.
In addition to the fact of charging fees the respondent was actively considering the level of fees it should charge in October 2003. The WA Faculty believed that all costs associated with the issue of the cost of providing training to trainees needed to be properly costed and charged.
In support the applicant relies on Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants (Aust) [2001] ATPR (Digest) 46-212. There Lindgren J was required to decide whether the educational and training functions supplied by the ICAA in connection with its CA Program pursuant to its Charter constituted the provision of ‘services’ in trade or commerce. His Honour answered affirmatively after a careful analysis of the facts: Monroe Topple [2001] ATPR (Digest) at 52,339-52,343. The enrolment in CA Program modules (the successor to PY modules), the compilation and selling of the module syllabuses, the writing, production and sale of module support materials, the conduct of ‘focus sessions’, the provision of ‘feedback’ to the candidates and examination (meaning all forms of assessment of a candidate’s attainment) were all regarded as part of the ICAA’s education and training function. In concluding that the ICAA’s education and training functions were supplied in trade or commerce, his Honour relied on the following factors:
(a)the ICAA sold those services to many students;
(b)the ICAA obtained a very substantial monetary return;
(c)the ICAA supplied the services on a highly organised, systematic and ongoing basis.
His Honour noted that it may not be necessary that all these features be present in order to satisfy the expression ‘in trade or commerce’, but the presence of all of them in that case made it clear that the expression was satisfied.
Also of relevance to his Honour’s ruling were the following:
(d)the 1995-1996 Annual Report of the ICAA showed ICAA generated $250 000 in revenue from PY support material;
(e)ICAA derived PY revenue of over $7 million in each year from 1999-2000;
(f)ICAA sold its PY support material, and its CA support materials, through its bookshop;
(g)Large numbers of individuals were enrolled at any one time as candidates for the various PY and CA modules;
(h)The candidates were seeking the commercially valuable cachet of the CA ‘badge’;
(i)ICAA was a sizeable organisation;
(j)ICAA’s Annual Report for 1999 showed it had 32 429 members, a staff of 203, an operating revenue of $41 256 000, an operating surplus of $1 135 000 and membership subscription revenue of $19 364 000; and
(k)ICAA’s Annual Report for 2000 showed it had 34 090 members, a staff of 207, an operating revenue of $47 158 000, an operating surplus of $958 000 and membership subscription revenue of $20 450 000.
In reaching his conclusion that the ICAA’s education and training services were provided in trade or commerce Lindgren J rejected the following matters put on behalf of the ICAA in support of its proposition that the ICAA did not provide services in trade or commerce:
(a)the terms of ICAA’s Charter;
(b)that in providing its education and training services it is pursuing its Charter objects;
(c)evidence that the ICAA does not seek to conduct its pre-admission education activities at a profit or to have them generate a positive cash flow. Its objective was to recover the costs it incurs with respect to these matters by way of enrolment fees.
His Honour responded with the following comments on these issues:
(a)Education and training are activities in which the ICAA and the candidates participate;
(b)They involve the selling of services by ICAA to the candidates;
(c)This aspect of their character is not negated by the fact that ICAA’s constitution and objects may show that ICAA bears another character, such as that of ‘gatekeeper’ or professional disciplinary body;
(d)The fact that the services may be provided without profit to ICAA does not necessarily signify that they are not provided in trade or commerce;
(e)Whether they are properly characterised as provided in trade or commerce can scarcely depend on the internal accounting practices of ICAA;
(f)Why should the rights of consumers and the obligations of corporations under the [TPA] vary from time to time according to either the accounting practices of the corporation or adventitious circumstances going to the question whether a profit is or is not made over a particular period of time?; and
(g)The trading or commercial character of educational and training activities carried on by a group of individuals at their cost could hardly be eliminated by their incorporating a body to conduct them at cost and not for profit to itself.
On appeal the Full Court in Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 (Heerey J with whom Black CJ and Tamberlin J agreed) upheld Lindgren J’s conclusion that the ICAA’s supply of education and training in connection with its CA Program was the provision of services in trade or commerce. Heerey J said at [78]:
‘His Honour, in my view correctly, rejected the argument that because the Institute was a non-profit organisation and conducted its PY Program and CA Program education only seeking to recover costs it was necessarily not conducting those activities in trade or commerce. What is important in this context is not the profit making or non-profit making status of the entity or whether, for whatever reason, it does or does not obtain a profit or desire to make a profit from the activities in question. Rather, attention must be focussed on the nature of the activities themselves.’
And:
‘The provision, for reward, of training and education services, if carried on systematically, is a trading and commercial activity. Everyday examples are the provision of education and training in relation to foreign languages, or English, or skills such as cooking or photography, or sports such as golf or tennis.’
A further authority relied upon by the applicant is Australian Competition and Consumer Commission v Kaye [2004] FCA 1363 at [190]-[195]. There Kenny J found that promotional activities in relation to the supply of goods and services constituted conduct bearing a trading or commercial character. This was in circumstances where advertisements were part of a promotional campaign designed to promote products.
The applicant submits that the respondent has always sought to promote the interests of the Fellows of the respondent to be recognised as the ‘only true experts’ in skin health and disease, as well as itself as the provider of a:
‘comprehensive training program for its trainees and continuing professional development program for its Fellows that enables all Fellows to maintain excellent standards of practice in dermatology, whilst continuing to deliver expert dermatological services to all members of the Australian community’
(respondent’s Annual Report 2004/2005 at 3). It is submitted that the evidence establishes that the conduct of the respondent’s training program as identified above is conduct in trade or commerce.
The respondent seeks to distinguish Monroe Topple [2001] ATPR (Digest) 46-212 on the ground that here it is not established that the respondent is in the business of selling education and training to many candidates ‘for a very substantial monetary return on a highly organised and systematic and ongoing basis’: at [77]. Also that the applicant’s claim relates to the selection process for recommendation for employment by RPH subsequent to which the successful employee would receive the training. That is, the claim does not relate to any training provided by the Fellows after such employment in their capacity as employed consultants of the teaching hospitals. Nor, it is contended, does it involve the conduct of the respondent in proffering advice in the provision of dermatology services.
The respondent accepts that what must be found is ‘conduct which is itself of an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character’: Concrete Constructions 169 CLR at 603. Therefore the respondent submits that a finding needs to be made that the respondent’s conduct in relation to selecting a candidate to be recommended for the Registrar’s post at RPH and in determining any appeal by such a candidate is conduct in trade or commerce.
The services which the respondent contends may be relevant to this question are:
1.providing informal information to potential candidates on how to obtain entry into the respondent. This is a reference to evidence that Dr Cole, a Fellow of the respondent, provided informal advice in 1999 to candidates. The respondent contends that in any event Dr Coles’ conduct should be characterised as private conduct. For reasons set out below, that aspect of the submission has not been accepted.
2.inviting applicants to apply for entry into the dermatology training program in each year.
3.publishing a training handbook setting out the selection criteria.
4.participating in the interviewing process and recommending the candidate considered most suitable to RPH.
5.maintaining and undertaking an appellate process.
6.engaging through a Fellow of the respondent who was a member of the Selection Committee in Western Australia in a debriefing of candidates.
The provision through volunteer Fellows training through RPH without cost to the selected candidate is not an aspect in which the applicant participated.
It is common to the reasoning in Concrete Constructions 169 CLR 594, to Hearn 129 FCR 64, to Village Building 139 FCR 330 and to Monroe Topple 122 FCR 110 on appeal that to decide whether the conduct in question is in trade or commerce it is necessary to focus primarily upon that conduct. That involves identifying it. In my view the six items identified in the respondent’s submissions correctly identify the conduct in question with one exception. The exception is the promotion of entry to the trainee registrarship at a conference in the circumstances considered in relation to the value of general practice reinforced representations (discussed later). The seven circumstances identify the circumstances in which representations are alleged to have been made, the effect of which is at issue on this proceeding.
Examining each of the seven items of conduct in question in turn, I am unable to conclude that such conduct or any item of it is able to be characterised as of a kind usually of a commercial nature. This is not to say that among the range of activities engaged in by the respondent (to which the applicant’s submissions appear most to advert) these are not activities of a commercial nature. However, so far as concerns the conduct in question as the source of the infringement of the proscriptions of the TPA the position is to the contrary. None of the conduct in question is of a trading or commercial character. It is not enough that it is directed to the wider activity of the respondent to promote and develop dermatology when in itself it is devoid of the requisite character.
The conduct in question here is ‘divorced from any relevant actual or potential trading or commercial relationship or dealing’ so that it will not constitute conduct ‘in trade or commerce’: Hearn 129 FCR at 73 applying Concrete Constructions 169 CLR 594. I do not consider that a trading or commercial character is imparted to the conduct in question by the charging of a fee by the respondent to candidates, the advertisement for applications for trainee registrar positions or the publication of the Training Handbooks. The charging of fees bears no resemblance to the dimension of the fee charging at issue in Monroe Topple 122 FCR 110. They are not the source of very substantial monetary reward. None of these matters is in themselves conduct of a commercial character.
Furthermore the conduct in question does not arise in relation to the educational or training activities of the respondent. Rather, such conduct relates to the selection of a candidate to participate in training accredited as meeting the standards set by the respondent but provided by RPH through Fellows of the respondent engaged as volunteers and, if successful, to then join the respondent as a Fellow.
I distinguish Monroe Topple 122 FCR 110 on the basis that the conduct in question there was the whole of the range of activities of the Institute delivered as services. In other words, the conduct in question there included the range of activities of the corporation and specifically its educational and training activities. That is not the case in this proceeding.
The result is that I conclude the conduct in question is not properly able to be characterised as conduct in trade or commerce.
Section 5(1) of the FTA defines ‘trade or commerce’ to include ‘any business or professional activity’. ‘Business’ is defined to include a profession. In Prestia v Aknar (1996) 40 NSWLR 165 at 194 Santow J held the FTA is to govern dealings including professional activities, but only those which, of their nature, bear a trading or commercial character. Additionally that whether a particular occupation or activity is that of a ‘profession’ or ‘professional activity’ is a question of fact and degree. He drew a distinction between the actual exercise of intellectual skill, typically represented by pure advice on the one hand, and on the other, a representation about either the conduct of that intellectual skill or the practice which generates it. He found the former (subject to the terms in which it was given) would fall outside the equivalent of s 10 of the FTA on the ground that pure advice did not involve any representation. The latter would be capable of inclusion in trade or commerce if it inherently bore the necessary trading or commercial character. In Fasold v Roberts (1997) 70 FCR 489 at 528 Sackville J followed Prestia 40 NSWLR 165.
In my view it cannot be found that any of the conduct in question here was a professional activity. Furthermore, even if it was and for the reasons previously given, it was not ‘in trade or commerce’. The result is that the extended definition of trade or commerce in the FTA does not assist the applicant.
While this alone would disentitle the applicant to judgment on the claims under the TPA, I proceed to give my reasons on the totality of the applicant’s claims.
THE NATURE OF MISLEADING AND DECEPTIVE CONDUCT AND OF REPRESENTATIONS
The applicant submits that the following are the principles which emerge from the authorities in the High Court and this Court in relation to the determination of whether or not there has been a contravention of the misleading or deceptive conduct provisions of the TPA and the FTA:
(a)Section 52(1) is expressed in terms of broad generalities which are explicitly preserved by s 52(2). The same applies for s 10 of the FTA. The general words of s 52(1) of the TPA and s 10(1) of the FTA should be widely interpreted, not read down: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202 and 204; Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [97]; Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 491 and 503-504.
(b)The section is not confined to conduct that is intended to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228; Parkdale 149 CLR at 197; Yorke v Lucas (1985) 158 CLR 661 at 666 and 675-676; and Campomar 202 CLR at [103].
(c)The section is not confined to conduct which was engaged in as a result of a failure to take reasonable care: Parkdale 149 CLR at 197.
(d)A person who has acted honestly and reasonably may be liable to be restrained by injunction, and to pay damages, if his, her, or its conduct has in fact misled or deceived or is likely to mislead or deceive: Parkdale 149 CLR at 197; Yorke 158 CLR at 666; Campomar 202 CLR at [103].
(e)One meaning the words ‘mislead’ or ‘deceive’ share in common is ‘to lead into error’: Parkdale 149 CLR at 197.
(f)The words ‘likely to mislead or deceive’ make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone: Parkdale 149 CLR at 198.
(g)The Court must decide objectively for itself whether the conduct is misleading or deceptive or likely to mislead or deceive: Taco Company of Australia v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [29]; Domain Names Australia Pty Ltd v .au Domain Administration Ltd (2004) 139 FCR 215 at [17]–[18].
(h)Evidence that members of the public have actually been misled is admissible but not necessary or conclusive: Taco Bell 42 ALR at 202; Global 2 FCR at 87; Medical Benefits Fund 135 FCR at [43]; Domain Names 139 FCR at [17].
(i)The section provides remedies additional to the common law: Parkdale 149 CLR at 205; Campomar 202 CLR at [97].
(j)Consideration must be given to the class of consumers likely to be affected by the conduct: Taco Bell 42 ALR at 202; Global 2 FCR at 91; Campomar 202 CLR at [102]-[103]; Medical Benefits Fund 135 FCR at [31]; Domain Names 139 FCR at [24]–[28].
(k)Whether or not conduct amounts to a representation is a question of fact to be decided by considering what was said and done against the background of all the surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. In other cases, the process will be more complicated and call for the assistance of certain guidelines upon the path to decision: Taco Bell 42 ALR at 202; Campomar 202 CLR at [100].
(l)In cases of representations to the public (rather than cases involving representations to identified individuals), the ‘ordinary’ or ‘reasonable’ members of the class of prospective purchasers must be considered: Campomar 202 CLR at [101]–[103].
(m)In an assessment of the reactions or likely reactions of the ‘ordinary’ or ‘reasonable’ members of the class of prospective purchasers of a mass-marketed product for general use, the Court may well disregard assumptions by persons whose reactions are extreme or fanciful in deciding the application of the section: Campomar 202 CLR at [105].
(n)It must be determined whether the misconceptions or deceptions alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the class of prospective purchasers: Campomar 202 CLR at [105].
(o)In cases of alleged representations for conduct to mislead or deceive the representee must labour under some erroneous assumption. Such an assumption can include the obvious such as a simple assumption that an express representation is worthy of credence. The nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should properly be categorized as misleading or deceptive or as likely to mislead or deceive: Taco Bell 42 ALR at 200; Campomar 202 CLR at [104].
(p)The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description in the section: Taco Bell 42 ALR at 201.
(q)A document or advertisement which, when read or viewed carefully as a whole, is factually true and accurate may still be capable of being misleading if it contains a potentially misleading primary statement which is corrected elsewhere in the document or advertisement (eg by use of ‘fine print’ or a symbol pointing to some qualification) but without the readers or viewer’s attention being adequately drawn to the correction. The principle which applies to those cases is that the qualifying material must be sufficiently prominent or conspicuous to prevent the primary statement from being misleading. Put another way the degree of prominence required (of the qualifying material) may well vary with the potential of the primary statement to be misleading or deceptive: Medical Benefits Fund 135 FCR at [37]–[41].
(r)Nothing in the terms of the section suggests that a statement made which is literally true may not at the same time be misleading or deceptive. It clearly may be: Hornsby 140 CLR at 227; Taco Bell 42 ALR at 200; Global 2 FCR at 88.
(s)It is not necessary that there must be a representation for the section to be infringed. To add such a requirement is to impose a gloss on the statutory words. ‘Representation’ is not co-extensive with ‘conduct’. False impressions conveyed by pictures rather than words, can be misleading conduct: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 40-41; Accounting Systems 42 FCR at 491 and 504.
(t)There is no room under the legislation for publication of misleading or deceptive advertising so long as it is corrected by later material. Whether conduct is misleading or deceptive (or likely to be so) depends on the circumstances in which it occurs and not on what might happen in the future: Taco Bell 42 ALR at 198-199; Medical Benefits Fund 135 FCR at [42]-[43].
Relevant class of persons
The applicant also submits that in this case that there are two types of representations involved. Representations to identified persons (see claim at pars 11, 12, 14, 15, 18, 23, 28, 29, 31, 32, 38D) and representations to a general audience (see claim at pars 13, 20, 24, 34, 38A). For the latter, the applicant contends that the class of persons to be considered would be the reasonable or ordinary person in the community. As the respondent’s Training Handbooks were published on the respondent’s website, it argues the class of persons is broad. It would include not only medical practitioners contemplating entry onto the respondent’s training program and existing trainees and dermatologists but also officials from government agencies and hospitals as well as the public at large on the basis that it is relevant to public confidence in specialists to have knowledge of what the respondent requires for such a position. It is submitted that the erroneous assumption that the reasonable or ordinary member of the public would be under in this case is the obvious one identified above that the express representations are ‘worthy of credence’.
The respondent submits that there is not evidence that the Training Handbook was a document intended for, nor consumed by, the general public. The notice concerning the Training Handbook was itself addressed to trainees of the respondent and other examination holders. On the evidence the respondent contends that the relevant class, at its broadest, is medical practitioners and, at its narrowest, is the class of medical practitioners interested in becoming specialist dermatologists. It argues that it is by reference to ordinary and reasonable members of that class that it must be determined if the conduct alleged occurred: Campomar 202 CLR at 87.
The test to be applied is that stated in Parkdale 149 CLR at 199, namely ‘consideration must be given to the class of consumers likely to be affected by the conduct’. Applying that test, I consider that the relevant class is that of medical practitioners. The Handbooks were directed to such practitioners and it was only they who were eligible to avail themselves of the training opportunities described in the Handbooks.
I do not consider that the absence of evidence of use and consumption of the Training Handbooks by members of the public can be conclusive they were not directed to a wider audience. That is because the placement of the Handbooks on the website of the respondent enables it to be inferred that the Handbooks were available to any member of the public. However, it was not the wider public who were within a class of consumers likely to be affected by the Handbooks. They could be informed by the Handbooks but not affected by them in the way a medical practitioner consumer could be.
Representations concerning future matters
The applicant makes submissions concerning s 51A(1) which provides that where a corporation makes a representation with respect to any future matter and it does not have reasonable grounds for making it, the representation shall be taken to be misleading. Section 51A(2) is the source of the provision that unless the corporation adduces evidence to the contrary, it shall be deemed not to have had reasonable grounds for making the representation. The applicant submits that to establish ‘reasonable grounds’ the representor must show (a) some facts or circumstances (b) existing at the time of the representation (c) on which the representor in fact relied (d) which are objectively reasonable and (e) which support the representation made.
The respondent does not concede that s 51A is applicable. I am unable to agree that there are not occasions where the section is applicable.
However I agree with the respondent that s 51A should not be understood to have bound the respondent not to change the policy expressed in one particular Training Handbook. The policy in a Handbook for a particular year was valid for that year. The Handbooks were adopted by the Council of the respondent from year to year. Whether the changes or absence of changes in a particular year are relevant in any other year is a matter to be determined by application of the rules of evidence, not by adoption of any blanket approach that changes applicable in a subsequent year are irrelevant.
The respondent submits that it discharged the onus on it under s 51A by the passing of a formal resolution to adopt the Handbook each year in circumstances where it reposed confidence in the ability of its Fellows to discharge their obligations as members of a Selection Committee fairly, honestly and in good conscience.
I will consider the application of s 51A and these submissions in relation to each allegedly future representation as it arises.
The distinction between representations and aspirations
The respondent’s defence denies that it made representations and pleads that each relevant Training Handbook stated aspirations to act fairly towards applicants for the selection processes and decision-making of the respondent. The applicant submits that statements of aspiration can also constitute representations. For this submission the applicant relies upon the terms of the statements in question, the context in which they appear and the absence of evidence to persuade the Court that what are described in the defence as ‘itemised statements of aspiration’ were not representations.
The respondent contends on this issue that whether words are aspirational is to be found from the words used and not from evidence. Reference is made to the portion of relevant Training Handbooks addressing ‘attributes’ of a dermatology trainee occupying a registrar training position.
The question is therefore whether the statements were representations. I will consider the issue further in the particular contexts in which it is said to arise.
The distinction between representations and personal advice
The respondent maintains that the advice given to the applicant in the information session with Dr Cole and in the feedback sessions was in the character of personal advice. It is said it was not a representation because implementation of it never could have guaranteed an improvement in her position for selection. I have not accepted the submission that Dr Cole’s statements were not given on behalf of the respondent.
When each of the circumstances of these sessions (both before the applicant applied and the feedback sessions after she applied) is examined it is apparent the applicant sought a meeting with a spokesperson on behalf of the respondent. Also it is not the case that any representation from these sessions could not have improved the applicant’s chances, although it is the case they could not have guaranteed her selection.
The distinction between representations and an appraisal
The respondent submits that a further distinction to be borne in mind is that when the applicant sought feedback on her unsuccessful applications, what was said to her was in the character of an appraisal on why she was not successful rather than advice on what should be done by her in the future. Again, when the circumstances of each feedback session are examined, it is seen that while some of the matters stated to her were by way of appraisal, others were directed to how she could best improve her skills.
PART B: REPRESENTATIONS CONCERNING THE SELECTION PROCESS
DEVELOPMENTS PRE-2000
In January 1998 the Report entitled ‘Trainee Selection in Australian Medical Colleges’ was produced by Dr Peter Brennan and Co Pty Ltd. In April 1998 the Report was endorsed by the Medical Training Review Panel and forwarded to the Commonwealth Minister for Health and Family Services. The respondent participated in that review – which notes in the executive summary at 15 that ‘postgraduate training in medicine is almost exclusively in the hands of the learned Colleges’. The review was concerned with the fairness of the specialist colleges’ selection processes and noted (at 16) that:
‘[r]egrettably some individual College members pay lip service to the new policies [regarding modern Human Resource Management practices]… Those of this persuasion are entitled to their views but are best kept away from selection processes.’
The review recommended a three-tiered system for appeals, comprising internal review and external appeal (at 110-111, with a dissenting view at 178-180). It noted that the selection of medical graduates for vocational training is a serious responsibility and that the current system is based on the belief that members of the profession and the particular discipline are best able to identify those most suitable for specialist training (at 25-26). It expressly dealt with the situation of documentation as enabling external scrutiny and that the documentation should be such as to enable accurate reconstruction of the original detail and process. It said destruction of documents is unjustifiable on a number of grounds and is to be avoided until there is some certainty they will not be required (at 107).
The applicant’s pleading in pars 46, 49 and 52 is that in lodging her appeal in each of the cases for the selections for positions made in 2002, 2003 and 2004 she thereby created a contract between the respondent and herself (described as the selection process appeal contracts 2002, 2003 and 2004 respectively).
In each of these pleadings in associated paragraphs (47, 50 and 53) it is also pleaded that there were implied terms in each of the contracts, namely:
(1)the appeal process was genuine and effective;
(2)the appeal would be heard in a timely manner;
(3)the respondent would provide the applicant with all relevant materials to consider and properly pursue her appeal;
(4)the respondent would not finalise its decision on selection until the time for lodgement or determination of an appeal had passed; and
(5)the respondent would not communicate to RPH its final decision on selection until either the time for lodgement or determination of an appeal (as the case may be) had passed.
It is also pleaded in the same paragraphs that another term (not implied) of the contracts was that the grounds of appeal included that an error in law or in due process occurred in the formulation of the original decision; relevant information available at the time of the original decision was not considered or not properly considered in making the original decision; and that the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.
The applicant contends that the circumstances in which she made her appeals were such as to give rise to a contract. Those circumstances were (1) the appeal arose in the course of business relations rather than social or domestic relations; (2) the respondent offered the appeal in its Training Handbooks; (3) the applicant accepted the offer of an appeal by lodging the documents requesting an appeal; (4) the relationship of the parties is known; (5) the identity of the parties is known; (6) the payment of the fee on lodgement ensured that consideration was present; and (7) the exchange of correspondence between the parties and the conduct of a directions hearing is inconsistent with there being no contractual or legal obligation to carry forward the appeal process.
Case law on intention to create legal relations
In support of these contentions the applicant relies on Edwards v Skyways Ltd [1964] 1 All ER 494 at 499-500 where Megaw J stated:
‘… Where the subject-matter of the agreement is not domestic or social, but is related to business affairs, the parties may, by using clear words, show that their intention is to make the transaction binding in honour only, and not in law; and the courts will give effect to the expressed intention. …
In the present case, the subject-matter of the agreement is business relations, not social or domestic matters. There was a meeting of minds – an intention to agree. There was, admittedly, consideration for the defendant company’s promise. I accept the propositions of counsel for the plaintiff that in a case of [sic] of this nature the onus is on the party who asserts that no legal effect was intended, and the onus is a heavy one. Counsel for the plaintiff also submitted, with the support of the well-known textbooks on the law of contract, (Anson, and Cheshire and Fifoot), that the test of intention to create or not to create legal relations is “objective”. …’
If that does not represent the law in Australia, the applicant seeks support in Pirt Biotechnologies Pty Ltd v Pirtferm Limited [2001] WASCA 96 at [21] after reference to what was said in Edwards [1964] 1 All ER 494 case:
‘… For myself, I prefer the view that the legal onus to establish the existence of the contract and the intention to create legal relations remains upon the party asserting it, in this case, the appellant. I accept that the onus may be readily discharged in the case of commercial negotiations where agreement on important matters might readily persuade the court that a contract was made. It may be said then that an evidentiary onus will shift to the defendant to rebut that conclusion, but that is only a matter of evidence and in my opinion if the inference of an intention to create legal relations is to be drawn, it will be because the party asserting that it is so has discharged the onus of persuading the court: Toyota Motor Corp Aust Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106, particularly per Tadgell J at 177.’
In Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177 Tadgell J said:
‘… I remain of the view I expressed in Commonwealth Bank of Australia v T.L.I. Management Pty. Ltd. [1990] V.R. 510 that, when the question is whether the legal effect of a transaction is promissory there is no presumption that it is: see the discussion contrasting this decision and that in Banque Brussels Lambert SA v. Australian National Industries Ltd. (1989) 21 N.S.W.L.R. 502 in Greig and Davis, The Law of Contract, (1987), 5th cumulative supplement (1993), at pp. 57-8. …’
Since these decisions the question of intention to create legal relations has come before the High Court in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95. The issue raised in that appeal was whether a Magistrate had wrongly inferred an absence of intention to create legal relations in respect of the employment of a clergyman to the position of Archbishop of his church. The joint judgment (Gaudron, McHugh, Hayne and Callinan JJ) consideration of this issue (at 105) started with an identification of the requirements of a legally enforceable duty as being evidenced by identifiable parties, certain arrangements between the parties and (absent a deed) real consideration. In relation to the question whether the parties could objectively be seen to intend the assumption of duty, their Honours said that it may take account of the subject matter of the agreement, the status of the parties, their relationship to one another, and other surrounding circumstances: at 105. They said that the circumstances which might properly be taken into account are so varied that they preclude the formation of any prescriptive rules: at 105. Turning to the use of presumptions their Honours said (at 106):
‘… For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition.
More importantly, the use of the language of presumptions may lead, as it did in this case, to treating one proposition (that an intention to create legal relations is not to be presumed) as equivalent to another, different proposition (that generally, or usually, or it is to be presumed that, an arrangement about remuneration of a minister of religion will not give rise to legally enforceable obligations).’
Kirby J, in agreeing with the orders, reviewed the authorities relating to the existence of a presumption in relation to contracts between religious or associated bodies and ministers of religion not being intended to be legally enforceable and concluded that there were none: at 121.
Examination of the case law since the decision in Ermogenous 209 CLR 95 shows the following. In Re Dickson Catering Pty Ltd (in liq) [2002] ACTSC 107 it was accepted that the effect of Ermogenous 209 CLR 95 was that reliance on a presumption was no longer the appropriate test and that in every case the party asserting the existence of a legally binding relationship bears the onus of proof. In Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851 it was accepted that the issue is not to be resolved simply by applying presumptions. To similar effect was the reasoning of the Court in Ashton v Australian Cruising Yacht Co Pty Ltd [2005] WASC 192.
In Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 70 IPR 1 Heerey and Weinberg JJ, said at [105]:
‘Mr Miller’s state of mind regarding the arrangement struck with Gold Peg is a matter to which her Honour was entitled to have regard. It is true that when considering whether a binding agreement was reached, and if so, its terms, courts do not engage in a search for the subjective intention of the parties: Merritt v Merritt [1970] 1 WLR 1211 at 1213 per Lord Denning MR; Taylor v Johnson (1983) 151 CLR 422 at 428 per Mason ACJ, Murphy and Deane JJ; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 336 per McHugh JA; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105–106 per Gaudron, McHugh, Hayne and Callinan JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2003) 56 NSWLR 662 at 675 per Bryson J. Nonetheless, the understanding of the parties as to what they had agreed upon is not irrelevant when considering what a reasonable bystander might have concluded having regard to the discussions that took place. This aspect is discussed more fully in the separate judgment of Allsop J at [118] with which we agree. …’
In Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 it was emphasised that it was essential to a valid contract that the parties intended to create a relationship which gave rise to obligations enforceable by law. The Court said at [47]:
‘To hold that no contract comes into existence where both parties accept that neither intended to make the contract which the other had in mind, and neither seeks to enforce the contract on the basis that the other behaved in such a way as to induce the belief that a contract had been made on the terms it intended, is consistent with legal theory as expounded by Professor Treitel and the authors of Corbin. It is also supported by the authority of Paal Wilson and Air Great Lakes, both of which insist that consensus between contracting parties remains a relevant factor when deciding whether a contract has been made. To so hold also appears within the exceptions to the objective theory of contract allowed by Williston and Taylor.’
In Plenty v Seventh-Day Adventist Church of Port Pirie [2006] SASC 361 the Court said at [15]:
‘It is essential for the creation of a contract that there be an agreement as to its terms and, further, an intention to create legal relations: Rose and Frank Co v JR Crompton & Bros Ltd [1923] 2 KB 261 at 282. If the agreement regulates business relations, there will usually be no difficulty in inferring such an intention: ibid at 282.’
The Court then turned to consider the case of a voluntary association where it said the position was different. Reference was made to the decision in Cameron v Hogan (1934) 51 CLR 358 where the Court held that the rules of the political party in that case did not create enforceable contractual rights and duties between members, or between executive officers and members. It referred to the reasoning of Rich, Dixon, Evatt and McTiernan JJ at 370 where it was stated:
‘They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. (Compare per Jessel M.R., Rigby v Connol (1880) 14 Ch D at p 487, and per Scrutton LJ, Rose and Frank Co v JR Crompton and Bros Ltd (1923) 2 KB at p 288.).’
In Plenty [2006] SASC 361 at [18] the Court continued:
‘The limitations imposed by Cameron v Hogan on invoking the court’s power to allow judicial review of the decisions of voluntary organisation have been questioned from time to time: see eg. McKinnon v Grogan [1974] 1 NSWLR 295. However, the decision must govern the present case and, in any event, the criticisms do not relate to the necessity adverted to in the judgments for a clear indication that the members contemplated a legal relationship before the rules of the association can be treated as an enforceable contract.’
In Phillips v Price [2007] WASC 54, after referring to Ermogenous 209 CLR 95, the Court said at [134]:
‘In determining whether an agreement exists, it must be established that there are identifiable parties, the terms are certain, and there is an intention to create contractual relations. The search for such an intention requires an objective assessment of the state of affairs between the parties. A lack of certainty as to the terms or subject matter of a proposed agreement in the context of ongoing negotiations concerning such matters may lead to a finding that the parties did not arrive at a moment when, objectively assessed, there was an intention to create legal relations. If a contract was not made it will nonetheless be possible for a disaffected party to seek relief in equity.’
(A useful examination of some of these developments is to be found in N Courmadias, ‘Intention to create legal relations: The end of presumptions?’ (2006) 34 ABLR 175).
Application of case law to facts
The respondent denies that there was any contract with it because it maintains there was no intention to create legal relations. Rather it is said this was an application for employment by a third party (RPH), the successful applicant for which would be entitled to enter into a training process conducted by the respondent. Separately there was a grievance procedure contemplated by Appendix 1 to the Handbooks. The onus lies on the applicant to establish the intention, which is a question of fact. The respondent argues that not every relationship is a contractual one. It is said that this is not an example of parties involved in business relations. It is a medical college on the one hand and a medical practitioner aspiring to entry into a training program with a view to admission to the medical college on the other. It is submitted by the respondent that the appellate process does not require the finding of a contractual relationship. Likewise the respondent submits that as the appeals are incomplete no claim for loss can now be made out.
Having considered the above decisions I consider it is clear the applicant cannot rely on the presumption referred to in Edwards [1964] 1 All ER 494. Rather it is necessary to consider all the circumstances to find whether in fact there was an intention to create legal relations.
It is also clear, in my view, that the alleged agreement between the applicant and the respondent was not one relating to business affairs. This is not, therefore, one where there is no difficulty in inferring the intention to create legal relations.
On the contrary, the alleged contract is one which involves the invocation by the applicant as a candidate for selection for the position of trainee registrar of a right of appeal against the decision of a selection committee. The alleged right of appeal is provided by the statements and hence the processes of the respondent, which is a voluntary association. Without relying on the attachment to notions of proprietary interest referred to in Cameron 51 CLR 358, it is nevertheless evident that in the case of a voluntary association there must appear from the evidence a clear indication of a contemplation of a legal relationship. That of course was there referrable to the relationship between members of the association. A fortiori in the case of relationships between a person outside the association and the members of it.
In my opinion there is no clear indication from the evidence that either the applicant or the respondent contemplated a legal relationship giving rise to an enforceable contract. It is patent that, viewed objectively, the respondent had no such intention. This is because the respondent regarded itself as so unfettered by any contractual concerns as to be able to substitute some other form of outcome of the appeal other than the one which would normally be anticipated, namely, the substitution of a successful appellant for the person originally selected. There was clearly no meeting of minds between the applicant and the respondent on what the exercise of the right of appeal might lead to.
Not only is there no clear indication appropriate to a voluntary association of contractual intention but in my view there is no evidence which would support a finding of an intention to contract in any event.
I therefore find that the applicant’s plea that there was an intention to create legal relationships between herself and the respondent in respect of the selection process appeals in 2002, 2003 and 2004 respectively has not been made out.
PART D: REMEDIES
DECLARATORY RELIEF
The applicant submits that there are no discretionary grounds for rejecting the grant of a declaration. Rather the declarations sought are said to be directed to the determination of a legal controversy and not to answering abstract or hypothetical questions. The applicant is said to have a ‘real interest’ in seeking the relief to which the respondent has been a proper contradictor. There was no delay by the applicant in bringing the proceeding.
The respondent submits that unless the conduct is by a trading corporation and done in the course of a trade or commerce, there is no scope for declaratory relief under s 163A of the TPA: Henderson v Pioneer Homes Pty Ltd (1979) 142 CLR 294; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; and Fencott v Muller (1983) 152 CLR 570. Alternatively, if the conduct was in trade or commerce, the declarations sought are of no utility. The impugned conduct did not prevent the selection of a more meritorious candidate than the applicant. The grant of a declaration being discretionary, it is said that no demonstrable purpose is served by the making of such a declaration:
If the conduct of the respondent was in trade or commerce, the only declarations requiring consideration would be those in B(6), (10), (11) and (11A)-(11D) of the application. The findings made above would not entitle the applicant to the other declarations sought. Proposed declaration B(6) should not be made because the respondent had reasonable grounds for making its statement that its decision would not be affected; namely that an alternative position would be created. While that step was one not appropriate to the existence of a proper appellate system, it was one which made the letter of 8 January 2003 to RPH not misleading. Proposed declarations B(10) and (11A) involve a consideration of issues of relevance and argument on those issues. Such issues are best dealt with by the appellate body itself and such discretionary considerations would weigh against the making of these declarations. Proposed declarations B(11B)-(11D) could not be granted on the ground that the filling of the position breached any selection process appeal contract because it that was not the case in respect of the 2003, 2004 or 2005 appeals, for reasons set out above. As to whether the filling of the position of trainee registrar prior to the hearing and determination of the appeals was a pre-determination of the appeals themselves, I am not satisfied on the applicant’s case that would necessarily have been so. The prior filling of the position was never perceived by the respondent as precluding the appellant from attaining a position if successful, although not in replacement of the selected candidate. I have earlier held that the offering of an alternative position did not satisfy the requirements of the represented appellate system. However, I would have required some argument on the issue of pre-determination before accepting that it had such effect.
As is apparent from earlier findings, the applicant’s entitlement to a declaration along the lines of that sought in B(11) of the application, perhaps with some modifications to more readily suit the facts as found, must be considered. However, as the representations, being the conduct in question (as distinguished from the activities conducted by the respondent), did not occur in trade or commerce, the applicant is not entitled to the making of any declarations in respect of conduct under the TPA (or the FTA).
INJUNCTIVE RELIEF
As is well established, the injunctive power conferred on the Court by s 80 of the TPA is not confined by traditional equitable doctrine. Rather, in the public interest it is a broad statutory injunctive power which ‘is flexible and may be applied in service of a variety of functions to support the policy of the Act’. It is a power by which the Court may mark its disapproval of contravening conduct: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 300 per Toohey J cited in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 255 per Lockhart J
As to the public interest, it is submitted by the applicant that no evidence has been provided by the respondent that it intends to change the way it undertakes its appellate process. It is said to be imperative to the public interest that where the respondent offers candidates a right of appeal it does so on a genuine basis.
The respondent says, firstly, that the absence of a proper appeals process is of no materiality because it would not affect the outcome. That is, the applicant was not in any of the instances under appeal the best qualified candidate. Therefore the Court should be slow to grant a mandatory injunction if to do so would be of no advantage to an applicant in the proceedings before it: MIPS Computer Systems Inc v MIPS ComputerResources (1990) 18 IPR 577. Secondly, that none of the appeals has yet been determined. Thirdly, that as the suit is brought for the applicant’s personal interest, there is no foundation for this being considered to be a suit in the public interest. Fourthly that the absence of any likely repetition of the conduct is a relevant factor: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations (1992) 38 FCR 1.
There are four injunctions sought in the application. C(12) relates to the constitution of selection and training committees and I do not consider that the findings made in these reasons disclose any case for such relief. C(13) seeks an injunction for delivery of documents to the applicant for her appeals, but I have already stated that involves a judgment of relevance being made by each appellate committee. C(14) seeks injunctive relief requiring the respondent to ensure the appeals process is effective. While I have found that the respondent has not provided an effective appellate system, I do not consider it should be injuncted to do so. There are manifold discretionary considerations against it. It is for the respondent to develop improvements to its appellate process, not for a court to generally mandate improvements. Any improvements would be for the future and could not apply to any of the appeals instituted in the present appellate system. None of the present appeals have been determined and must be allowed to run their course. C(15) seeks restraint upon the respondent from implementing or acting upon selection decisions until the appellate processes have been completed or allowed to be completed. That cannot assist any of the appellate processes in which the applicant remains involved, so that it seeks relief falling outside the claims of the applicant. It concerns conduct of the respondent in relation to which it lies in its power to restructure. I do not consider these circumstances can support the making of a mandatory injunction.
MONETARY RELIEF
Relevant pleadings and particularisation
In par 45 and par 55 of the claim the applicant claims for loss and/or damage with regard to the trade practices pleas and the breach of appellate contract pleas. These have been particularised as general damages, aggravated and/or exemplary damages, and damages for past and future economic loss.
General damages
The claims under this head are for (a) loss of opportunity to participate in a proper and genuine selection process to enter the respondent’s program as a Trainee Registrar for 2003, 2004 and 2005; (b) loss of opportunity to participate in a proper or genuine appeals process regarding selection to enter that program for the same years; and (c) distress and anxiety.
The applicant’s submissions turn firstly to Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at [45] where the Court said:
‘The Act’s references to “loss or damage” can be given no narrow meaning. Section 4k of the Act provides that loss or damage includes a reference to injury. It follows that the loss or damage spoken of in ss 82 and 87 is not confined to economic loss (Marks (1998) 196 CLR 494 at 513 [46], per McHugh, Hayne and Callinan JJ; at 526-527 [93]-[96], per Gummow J. What kinds of detriment constitute loss or damage, when a detriment is to be identified as occurring or likely to occur, and what remedies are to be awarded, may all raise further difficult questions. Especially is that so when it is recalled that remedies may be awarded to compensate, prevent or reduce loss or damage that has been or is likely to be suffered by conduct in contravention of the Act.’
At [49] the Court continued:
‘It should not be assumed that the loss or damage which a person suffers as a result of a contravention of Pt V is necessarily singular. Nor should it be assumed that loss or damage is incurred either as a loss on capital account, or as a loss on revenue account which, if to be compensated by an award of damages, must be translated into a single capital sum. These assumptions find no support in the language of the relevant provisions.’
On the question of causation, the applicant relies upon the analysis of authorities by Santow JA in Havyn Pty Ltd v Webster (2005) ATPR (Digest) 46-266 at 52,574-52,579.
The submissions also make the point that there is a clear distinction to be drawn between proof of historical facts and, on the other hand, proof of future possibilities and past hypothetical situations. In the former case the civil standard of proof applies but in the latter the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect that degree of probability: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. The process of discounting for contingencies is considered in Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25.
The applicant claims she has lost the opportunity to establish herself as the best candidate for training under a fair selection process and is entitled to damages for the loss of that opportunity. Mr Spooner has calculated the present value of the future income loss of the applicant if she had been selected as a trainee registrar in 2002 commencing January 2003 and was admitted as a Fellow of the respondent in January 2007 after completion of the four year training program. The calculation is based on the projected income of a specialist dermatologist to age 65, less the projected income of the applicant as a continuing general practitioner based on her current actual income. As Appendix 4 of the Spooner report states, the calculations are done on three different income percentiles. The data and assumptions used in the calculations are set out in that appendix.
The respondent submits that there is no damage in relation to the applicant pursuing dermatological research or postgraduate studies if she is unable to enter dermatology because it is part of her personal development in any event. The undertaking of postgraduate research cannot have been wasted expenditure.
The respondent submits that the applicant was not prepared to accept suggestions from selection committee members that objectively were likely to improve her prospects for selection. Eg she did not act on the advice of Dr Clay to work in a first class hospital in preferred fields like immunology and rheumatology. Although she took on research on the advice of Dr Swarbrick, she was unable to convey a clear understanding of her research project: see the evidence of Dr Clay and Dr Swarbrick.
The respondent says further that the applicant’s real complaint on appeal could only be that a merit-based selection did not occur, as a result of which she was unsuccessful. That is, if it were the case that the respondent’s conduct either in the Selection Committees or the appeals was misleading or deceptive or likely to be such, it has not caused the applicant loss to the extent that she has lost the opportunity to be nominated for the position unless she was the most meritorious candidate. That is, the applicant must establish loss and damage by the conduct of the respondent done in contravention of the TPA or the FTA: Brown v Jam Factory Pty Ltd (1981) 53 FLR 340; Finucane v NSW Egg Corporation (1988) 80 ALR 486; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494. Further, that when the applicant applied she knew there was no guarantee that she would be selected. It is not her case that she would not have applied unless she was certain of selection.
The respondent continues by submitting that the applicant does not say she would have done anything other than remain as a general practitioner if she had not tried to obtain entry to the training course. There is no pleading by her of reliance on any conduct of the respondent to apply for the 2004 and 2005 positions, which the respondent says is fatal to any claim for damages relief for those years. It is said effectively only 2003 remains alive. In that year the successful candidate was one of the most highly qualified as against the applicant, who was rated 14 out of 23.
The respondent says that alternatively the applicant must show a loss of a demonstrable chance to have been nominated: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.
The respondent submits that the applicant cannot demonstrate such a demonstrable chance. The probabilities of her being the most meritorious candidate were low. She had no real or demonstrable chance of being recommended and has therefore suffered no loss
In any event, submits the respondent, there is no cogent evidence on which damages can be assessed. The assumptions on which Mr Spooner provided his expert opinion have not been made out.
Likewise in relation to damages for distress, the respondent says these are not exemplary and no evidence has been adduced to support such a claim in any event: Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445.
Turning firstly to the alleged loss of opportunity to participate in a proper and genuine selection process, it is apparent that as a consequence of my findings in relation to representations concerning the selection process, the applicant is unable to establish any such loss of opportunity caused by those representations. This would be the case even if the respondent’s conduct had been in trade or commerce.
As to the alleged loss of opportunity to participate in a proper or genuine appeals process (if the respondent’s conduct had been in trade or commerce), I do not consider the applicant has established that the absence of a proper or genuine appeals process was causative of a loss of opportunity as alleged. Objectively viewed, the persons selected in each of the years in which she lodged appeals had relevant qualifications unable to be matched by her record. This is even more so the case in relation to 2003. That is, I consider the applicant only established a low probability that she had any real or demonstrable chance to be selected if there had been a proper and genuine appellant process.
I also am not satisfied the applicant has made out any case for damages with respect to anxiety and distress under this head.
Aggravated and/or exemplary damages
The applicant’s submissions rely on Collins Construction Co Pty Ltd v Australian Competition and Consumer Commission [1998] 43 NSWLR 131 at 153-156 per Cole JA with whom Stein JA and Sheppard AJA agreed. It was there said that there was no reason why aggravated damages should not be recoverable under s 87. Such damages were considered to be compensatory, and the section provides for compensatory damages. Compensation was regarded as appropriate where proscribed conduct caused anxiety, distress and vexation.
The applicant submits that circumstances of aggravation exist in relation to the respondent’s process in relation to her three appeals in contumelious disregard of her rights. This conduct is said to include (1) communication of the respondent’s decision in each year to RPH before the appeal period had expired; (2) allowing and encouraging RPH to fill the position being appealed against before the appeal had been heard or determined; (3) inordinately delaying the hearing of the appeals; (4) not providing the applicant with the relevant materials or documents, as she repeatedly requested, pretending to her that the relevant documents were available when in fact they had been destroyed or misplaced; (5) stress in dealings with the respondent; and (6) stress from being required to undertake this proceeding and so engage in litigation.
The applicant also seeks to include in this list the respondent’s conduct concerning the Medical Directory of Australia. This involved the publication of the Directory wrongly describing the applicant as a Fellow of the respondent rather than a person who had passed Part 1 and the respondent had stated it would issue litigation against her concerning the misdescription. Although the applicant was not at fault over the misdescription, the threat of litigation had been made at the time when the applicant was an appellant in the respondent’s process.
As part of aggravation damages the applicant seeks damages for ‘reliance damages’ by reference to expenditure reasonably incurred by one of the parties to the contract for the supply of services in the expectation, ultimately disappointed, of performance by the other. Applied in relation to the respondent’s appellate process, it seeks an amount of damages commensurate with the applicant’s expectation, objectively determined, rather than subjectively ascertained. This requires the applicant to prove that, on the balance of probabilities, her expectation of a successful outcome of the appellate process, as a result of the performance of the contract, had a likelihood of attainment rather than being mere expectation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80.
The respondent accepts the aggravated damages are compensatory only and awarded for injury to a plaintiff’s feeling: Lamb v Cotogno (1987) 164 CLR 1 at 8.
Assuming the respondent’s conduct had been in trade or commerce, the applicant has not established that anxiety and stress were caused to her by such of that conduct on which she relies.
Further, there is no foundation for any award for reliance damages in respect of the applicant’s expectations of the appellate process in any of the three years involved. That is because the evidence establishes that the probabilities of her being the most meritorious candidate in any of those three years were low.
Past and future economic loss
The applicant claims three heads of economic loss plus interest as set out in the expert report of Mr Spooner. Loss of opportunity of becoming a specialist dermatologist has been considered above.
Out-of-pocket expenditure
This claim is based on the corrected Appendix 2 to the Spooner report. In evidence are the supporting documents. In addition interest is claimed at the Federal Court judgment rate of 10.5 per cent per annum.
The respondent argues that on the evidence there is no reasonably reliable evidence upon which to allow the out of pocket expenses. It is said there is no medical evidence to support the allegations that the applicant suffered depression or distress occasioned by the respondent. Likewise it is said there is no evidence that Mr Boccabella’s fees are proper or that Mr Shakur properly incurred any administrative fees.
In light of the conclusions reached in the earlier reasons, there is no foundation for this claim.
Loss of income from medical practice
The applicant claims to have lost the medical practice income foregone from the time she committed to becoming a specialist dermatologist (and not pursuing a career as a general medical practitioner in a corporate medical practice) up to the time she resumed full time work as a general medical practitioner. The starting point for the calculation is the income of the applicant for the financial year commencing 1 July 2004, that being her first year of full time earnings extrapolated back to the financial year commencing 1 July 1999. That was the first financial year after her meeting with Dr Cole, from which the applicant claims to have committed to becoming a trainee registrar.
The loss claimed is in the sum of $662 259 and $271 647 for interest. These figures derive from Appendix 3 of the Spooner report.
Again, in the light of the earlier reasons and findings, there is no basis upon which an order could be made for this claim.
CONCLUSION
For these reasons I conclude that the applicant’s claims must be dismissed.
I certify that the preceding three hundred and fifty-five (355) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate:
Dated: 11 May 2007
Counsel for the Applicant: D Williams QC and S Bhojani Solicitor for the Applicant: David Rawlinson Counsel for the Respondent: R Birmingham QC and IR Freeman Solicitor for the Respondent: DLA Phillips Fox Dates of Hearing: 1-5 May 2006
31 August 2006
1, 22 and 29 September 2006Date of Last Written Submissions: 6 October 2006 Date of Judgment: 11 May 2007
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