Yovichevich v The Royal Australian and New Zealand College of Radiologists

[2007] NSWSC 449

CITATION:	Yovichevich v The Royal Australian and New Zealand College of Radiologists [2007] NSWSC 449
HEARING DATE(S):	19/03/2007, 11/04/2007
JUDGMENT DATE :	17 May 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Claim for damages against College founded on breach of duty (in respect of conduct of examinations and review thereof) - claim for loss of income - plaintiff neither a registered practitioner nor fellow of the College - no reasonable cause of action disclosed - claim not viable
LEGISLATION CITED:	Health Insurance Act 1973 (Cth) Medical Practice Act 1992 (NSW)
PARTIES:	Stanko Yovichevich The Royal Australian and New Zealand College of Radiologists
FILE NUMBER(S):	SC 20429/04
COUNSEL:	Mr J. W. Shaw (Pl) (19/03/2007) In Person (Pl) (11/04/2007) Mr A. Ogborne (Def)
SOLICITORS:	Tress Cox Lawyers (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISON

ASSOCIATE JUSTICE MALPASS

17 MAY 2007

20429/04 Stanko Yovichevich v The Royal Australian and New Zealand College of Radiologists

JUDGMENT

1 HIS HONOUR: The plaintiff presents as having overseas qualifications as a radiologist. He has sought admission to practice as a radiologist both in New Zealand and Australia. He has never been a registered medical practitioner in New South Wales (within the definition provided in s.99 of the Medical Practice Act 1992 (NSW)) (the Act) or elsewhere in Australia.

2 The defendant is a company limited by guarantee. It is a professional organisation within the meaning of s.3D(5) of the Health Insurance Act1973 (Cth) and is one of the entities or persons able to certify that a medical practitioner meets the criteria for practice as “a specialist” within the meaning of s.3(1) of that Act.

3 The plaintiff has sat for examinations conducted by the defendant (for the purpose of being admitted to fellowship of the defendant so as to qualify him to practise as a radiologist). He has had a number of unsuccessful attempts at passing Radiology. The passing of the examinations is a qualification that has to be met to enable admission as a fellow of the defendant. Registration is also a qualification.

4 The defendant has a review process. Prior to 18 November 1999, it had not been pursued by the plaintiff.

5 On 18 November 1999, he did seek a review and reconsideration of his radiology examination results. The plaintiff does not accept what was done by the defendant in relation to that application.

6 He brought proceedings in this Court by way of a Statement of Claim claiming damages (including loss of income since 1997). Broadly speaking, the alleged cause of action has been described as being of the nature of breach of duty to undertake a review and/or in the conduct of examinations. The alleged breach of duty is said to have given rise to economic loss, which would be recoverable only if he had been entitled to practise medicine as a specialist.

7 The defendant made an application for summary relief. The application was heard by Adams J. His Honour delivered judgment on 30 November 2005.

8 Adams J was of the view that there were pleading problems. As he was also of the view that the plaintiff may be able to make good the defects, leave was given to file and serve an Amended Statement of Claim complying with the Rules as to the allegations of material facts and giving appropriate particulars.

9 The plaintiff (acting in person) also brought proceedings in the Federal Court. The nature of the claim made therein has been described as a mandatory injunction (to the effect that he be given back a fellowship of the College). The nature of the case advanced in that Court was similar to that sought in this Court. However, there was no claim for damages. An application for summary relief was heard by Conti J. He granted the relief sought by the defendant. He saw the proceedings as being misconceived in law.

10 An Amended Statement of Claim was filed (pursuant to the leave granted by Adams J). The defendant has brought a further application for summary relief. It is contended that the amended process does not address all of the defects.

11 The application came on for hearing on 19 March 2007. The parties were legally represented. The evidence was received and the Court entered into the process of hearing submissions. The defendant had completed submissions in chief. The plaintiff had commenced submissions in response thereto. At this time, I raised the question as to whether or not a particular defence (being one of futility) should be heard first as a separate issue.

12 The relevant issue raised by the defence was whether or not the plaintiff’s failure to be registered as a medical practitioner in New South Wales was fatal to the prospects of success of his proceedings in this Court.

13 There was a consensus to what had been proposed and short minutes were prepared. Directions were given as to the making of submissions on the issue. Further hearing of the application was adjourned to 11 April 2007.

14 Submissions were not made in accordance with the directions. By 11 April 2007, the plaintiff had withdrawn the retainer of his legal representative (Mr Shaw). On that day, the plaintiff appeared unrepresented (his son performed the role of spokesman). As at that time, written submissions had not been prepared on his behalf.

15 There was agreement between the parties to the effect that the plaintiff should be given further time to make written submissions. Further short minutes were prepared and directions were made in accordance with them. The intention was that the issue should be determined on the papers (if it was possible to do so).

16 The Consent Orders contained the following:-

“3. Notes that the parties consent to Malpass As J determining the defendant’s notice of motion dated 14 June 2006 without further appearance, subject to the Court requiring further appearances.”

17 Pursuant to that Consent Order, I have proceeded to deal with the separate question on the papers and without requiring further argument from the parties.

18 The defendant relies on provisions contained in Part 7 (which is headed “The practice of medicine”) of the Act. Section 99 (which is headed “Entitlement to practise medicine”) appears in Division 1 (which is headed “Registered practitioners”). Sub-section 1 of s99 provides that a registered medical practitioner may practise medicine.

19 The dictionary at the end of the Act defines “registered medical practitioner” as meaning a person who is for the time being registered as a medical practitioner under the Act.

20 The defendant contends that because the plaintiff is not so registered, he is not able to practise medicine and cannot be admitted as a fellow.

21 In respect of the matter of membership, it relies on Article 2.2.1 of its Articles of Association. That Article provides as follows:-

“2.2 Membership qualifications
2.2.1 A person may be admitted to fellowship of the College if the person:
(a) is a medical practitioner registered by an authority recognised by the Council;
(b) has spent at least two years in general clinical work at an approved hospital; and
(c) has undertaken such training and has passed such examination as may be conducted for this purpose under the by-laws determined from time to time by the Council and/or holds a qualification recognised by the Council”

22 In its written submissions (on the separate question), the defendant said as follows:-

“13. However, the effect of the various statutes regulating the profession is that a person who is not registered as a medical practitioner in a State or Territory of Australia would be committing an offence if he or she practised medicine in any State or Territory of Australia. Furthermore, as a practical matter, an overseas trained doctor or a former overseas medical student who had not registered as a medical practitioner would be unable to bill patients under Medicare.

14. As the plaintiff is not, and has never been a registered medical practitioner in any state or territory in Australia, it follows that, at all material times:

14.1 The plaintiff was not able to practice medicine in any State or Territory of Australia irrespective of whether or not he was admitted as a Fellow of the Royal Australian & New Zealand College of Radiologists;

14.2 The plaintiff was incapable of being admitted as a Fellow of the College (see article 2.2.1) of the Articles of Association); and, therefore,

14.3 The plaintiff cannot have suffered any economic loss as a consequence of any failure to admit the plaintiff as a Fellow of the College.

15. It follows that the proceedings should be dismissed.”

23 The plaintiff has also prepared written submissions (which refer the Court to various statutory provisions).

24 In these submissions, apart from referring to s99, the plaintiff relies on s4. It appears in Division 1 of Part 2 of the Act and is in the following terms:-

“4 Entitlement to general registration based on qualifications and training

(1) A person is entitled to be registered as a medical practitioner if the person has recognised medical qualifications and has successfully completed a period of internship or supervised training as required by the Board.

(2) A person has recognised medical qualifications if the person is a graduate of a Medical School (whether within or outside Australia) accredited by the Australian Medical Council or has successfully completed examinations held by that Council for the purposes of registration as a medical practitioner.

(3) The entitlement under this section is an entitlement to general registration (that is, registration not subject to any condition).”

25 The plaintiff’s submissions contain, inter alia, the following:-

“36. It is respectfully submitted that the sections set out above illustrate the fact and the reality that recognition of the specialist qualifications by specialist College comes before the registration as for overseas doctor. This is the statutory arrangement and the practice is in accordance with it.
37. As far as the plaintiff is aware there is almost no one who passed the examinations who is not practicing as a radiologist.
38. It is common practice that dozens of overseas specialists, during at least the last decade, come to Australia pass the examinations administered by RANZCR and almost universally routinely register and work in Australia and the defendant has or should have instructed its lawyers to that effect.
39. If the effect of these provisions is not clear to the Court than the plaintiff respectfully requests the opportunity to be called on this aspect. A careful reading of section 7(E) (see above) is a clear illustration of the point, (sic)
40. Therefore the plaintiff should be allowed to proceed with his claim with costs of this hearing being awarded against the Defendant.”

I have carefully considered the submissions. In my view, those made on behalf of the plaintiff are misconceived.

26 The statutory scheme confers an entitlement to general registration based on qualifications and training. Registration enables the practise of medicine. It is also a qualification that must be met to enable admission to fellowship.

27 The plaintiff is not a registered practitioner and has no present entitlement to practise. Without such registration, also, he cannot be admitted to fellowship.

28 In these proceedings, he propounds a claim for damages founded on an alleged breach of duty. He is suing in tort for negligence. The tort consists of three components. His claim cannot succeed unless he proves each of those three components.

29 Firstly, he must prove that he was owed a duty of care as alleged. Secondly, he must prove breach of that duty as alleged. Thirdly, he must prove that such breach has caused the damage that is claimed by him in the proceedings.

30 If it be assumed that the plaintiff successfully proved breach as alleged, his claim for damages as alleged would still fail. This is so because proof of the alleged breach would not entitle him to the damages as claimed.

31 Proof of breach of the alleged duty would not give him an entitlement to either registration or fellowship. He has neither registration nor fellowship and these proceedings will not bring about either of them. These are essential to an entitlement to practise as a specialist. In their absence, damages as claimed are not recoverable and his tortious claim must fail.

32 As the Amended Statement of Claim does not disclose a reasonable cause of action and the proceedings are doomed to failure, at the very least, the defendant is entitled to have the Amended Statement of Claim struck out.

33 The plaintiff has now had two attempts to plead a cause of action. By reason of what has been earlier said, the claim for damages which he wishes to pursue is not viable. The problems cannot be cured by further amendment.

34 In my view, it is in the interests of the parties that the proceedings be brought expeditiously to a conclusion. Further costs will not be thrown away and valuable court time will not be wasted.

35 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.

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