REASONS FOR JUDGMENT

1                     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.

2                     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

3                     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.

4                     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.

5                     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.

6                     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.

7                     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. 

8                     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. 

9                     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

10                  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.

11                  The applicant has invoked the appellate process in relation to the Selection Committee decisions for the positions commencing in 2003, 2004 and 2005.

12                  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.

13                  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

14                  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.

15                  The applicant gained her specialist qualification as a Fellow of the Royal Australian College of General Practitioners (FRACGP) in July 2001.  

16                  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.

17                  Sometime in August 1997 the applicant joined another city practice, namely, Forrest Chase Medical Centre where she worked full time until early December 1997.

18                  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.  

19                  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

20                  The witnesses and their evidence were as follows:

 

21                  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.

22                  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 Act

IS THE RESPONDENT A TRADING CORPORATION?

23                  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.

24                  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).

25                  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). 

26                  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.

27                  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).

28                  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. 

29                  In State Superannuation Board 150 CLRat 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.’

30                  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.

31                  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.

32                  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.’

33                  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.

34                  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. 

35                  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. 

36                  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?

37                  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.

38                  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:

‘4.1     The core activities of the Respondent are:

4.1.1      to develop the curriculum for the training program;

4.1.2      to set accreditation standards to be applied to dermatology training posts in public teaching hospitals and other dermatology foundations/institutions;

4.1.3      to accredit those training programs;

4.1.4      to recommend to the relevant public teaching hospital the candidate for employment by the public teaching hospital in a trainee registrar post in dermatology.

4.2       The 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;

4.3       Individual Fellow dermatologists employed by the public teaching hospitals provide training to trainee registrars;

4.4       Training of trainee registrar dermatologists is not, and has never been, an activity of the Respondent;

4.5       Until 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;

4.6       The Respondent charges fees to candidates applying for a position as trainee registrar dermatologist to cover the administration costs of the selection process; and

4.7       Fellows 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.

39                  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.’

40                  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).

41                  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. 

42                  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.

43                  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. 

44                  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.

45                  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.

46                  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.’

47                  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.

48                  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.

49                  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.

50                  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.

51                  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.

52                  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.

53                  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. 

54                  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.

55                  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. 

56                  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.

57                  The result is that I conclude the conduct in question is not properly able to be characterised as conduct in trade or commerce.

58                  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.

59                  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.

60                  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

61                  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 216at 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

62                  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’.

63                  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.

64                  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.

65                  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

66                  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. 

67                  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.

68                  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. 

69                  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.

70                  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

71                  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.

72                  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.

73                  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

74                  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. 

75                  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

76                  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

77                  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).

78                  A report by the Australian Medical Workforce Advisory Committee in February 1998 on the Specialist Dermatology Workforce in Australia noted that changes in dermatology practice are likely to continue and the trend was away from public hospital practice (at 182-293, 250).

NATURE OF THE SELECTION PROCESS

79                  Generally the respondent structured its Selection Committees for the Trainee Registrar position on the basis that it comprised the four Heads of the Dermatology units from each of the teaching hospitals, namely RPH, Fremantle, Sir Charles Gairdner Hospital and Princess Margaret Hospital together with the Chair and Secretary of the WA Chapter of the respondent.  From 2002, following a review of the selection process, an independent lay person has also been included.

80                  Each year a Selection Committee is constituted.  Nevertheless there was a considerable continuity in membership in the years made relevant by the applicant’s claims.

81                  The sole criterion of selection to be applied by the Selection Committees is merit.  Training Handbooks are issued with reference to the selection process in each year. 

82                  The first step in the selection process was for members of the Selection Committee to be assigned to ‘score’ the candidate or candidates referred to him or her against a series of criteria on a score sheet.  The Selection Committee then short-lists some candidates for interview and referee interview.

83                  It is apparent that a persons ranking by any Selection Committee is dependent not only on their own record but also how their record stands up in relation to the other candidates in the particular year.  Additionally emphasis by a Selection Committee on particular attributes varied from year to year in the light of the candidates and their particular qualities.  Two successful candidates in former years were persons who, like the applicant, had qualifications and experience as a general practitioner as part of their record.

84                  An important feature of the selection was that the Selection Committee did not have jurisdiction to appoint the selected person to the position of Trainee Registrar.  The final decision whether or not to employ a selected candidate rested with RPH, at least formally. 

1999 INFORMATION MEETING WITH DR COLE

The value of general practice representations and the reinforced representations

85                  The relevant pleading reads:

‘11. On or about 19 May 1999 Dr Shahid met with Dr Cole to discuss Dr Shahid’s interests in pursuing a career as a specialist Dermatologist.  During the meeting Dr Cole made representations to Dr Shahid to the effect that:

a)        Dr Shahid’s general practice background was very relevant for specialist training in dermatology;

b)        A General Practice background brings diversity to the profession;

c)         Other doctors with a General Practice background had been readily selected to the College’s trainee registrar training program;

d)        Being a General Practitioner gave Dr Shahid an advantage in selection for the College’s training program.

(“the value of General Practice representations”)

During the meeting Dr Cole encouraged Dr Shahid to apply for the College’s trainee registrar training program and advised Dr Shahid on the College’s general procedures and how to go about applying to the College (“the May 1999 meeting”).’

86                  The claim pleads that the making of both the general practice representations (and the value of general practice reinforced representations referred to below) was contrary to s 52 of the TPA and s 10 of the FTA in that the respondent does not in fact value general practice qualifications or experience and/or has an undisclosed preference for candidates with hospital experience and/or young hospital experienced doctors when selecting candidates for the training program.

87                  The applicant’s evidence was that she was interested in exploring options for advancing her expertise in medicine by gaining specialist training in dermatology.  She telephoned the Australian Medical Association (AMA) in Perth to obtain relevant information concerning a traineeship in dermatology.  She was told to contact Dr Cole, the Regional Secretary of the WA Faculty of the respondent.

88                  The respondent’s defence accepts that Dr Cole has been a Fellow of the respondent since 1989; was on the respondent’s Council between 2001 and 2002; was the Chair of the respondent’s WA Faculty in 2004 and 2005; and was on the West Australian Selection Committee for the recommendation of candidates for a position of trainee registrar in Western Australia in 2000 and 2002 to 2005.

89                  The respondent denies the pleading in par 11 of the claim save as to the fact of the meeting between the applicant and Dr Cole on or around 19 May 1999.

90                  The applicant attended the meeting together with her husband.  Her evidence in cross-examination was that Dr Cole told her that her background in practice was very relevant, would bring diversity to the profession and gave her ‘an edge’.  This was corroborated by her husband’s evidence. 

91                  In her evidence Dr Cole denied telling the applicant that her general practitioner background was ‘very relevant’ to specialist training in dermatology; rather she had said it would be ‘acceptable’ for application for the training position and that it would bring diversity.  She stated she had told her that other doctors with a general practitioner background had been selected; she named two.  She also claimed to have referred to another selected general practitioner who had an exceptional record and to the fact that entry into the training program had become very competitive.  Dr Cole denied saying that being a general practitioner gave the applicant an advantage.  Her evidence was also that she did not specifically encourage or discourage the applicant to apply for the training program.  However she had said that the Part 1 examination was being held in a few weeks’ time and the applicant could apply to sit for it.

92                  The applicant contends there are sound reasons for accepting her account in preference to that of Dr Cole.  The first is that it would be highly unlikely that she would have embarked on the extensive preparation for the FACD Part 1 examination and moved to a part-time role in general practice if she had not been given specific encouragement or reassurance by Dr Cole regarding her experience and its suitability for the practice of dermatology and the training program.  The second is that it is unlikely that Dr Cole would have gone into specific detail of one previous candidate’s qualification and interview performance if all she was trying to do was to give information as those particulars (of exceptional record) would have been likely to discourage the applicant.  The third is that the alleged comments on increasing competitiveness of dermatological training were highly unlikely given that Dr Cole accepted in cross-examination that in 1998 no person from WA sat for the respondent’s Part 1 examination and she was aware of that at the time and in 1999 there was only one or two WA candidates (although this would not affect the number of applicants for the position as it was advertised nationally).  The fourth is that Dr Cole asserts she suggested the applicant should get back into the hospital system as a dermatology resident whereas it was not something either the applicant or her husband recalled yet it was a suggestion which would have impacted on their lives.  The fifth is that Dr Cole said she did not take notes of the meeting because it was informal and did not recall its duration which is inconsistent with her definite approach to the matters in issue.

93                  In relation to the fourth submission the respondent says there is no evidence that the applicant’s entry into a hospital position would have impacted on her life.  The evidence shows that the applicant worked part-time at the time of the interview and continued to do so.  Also, at a later date the applicant did not accept such advice when given by Dr Clay.  In relation to the third factor the respondent says that there is evidence dermatology was becoming very competitive over recent years and was consistent with the increased uptake of applicants and the national and international advertising of the positions.

94                  On 13 September 2002 the applicant made a note in connection with later dealings with the respondent that Dr Cole had advised her in 1999 that her general practitioner background ‘was not a minus but was a plus point in terms of bringing diversity’, quoting the example of Dr Tait.

95                  The respondent submits that the fact that general practitioners have been selected as the trainee show that, in a particular context, being a general practitioner can be an advantage.  However, the advantage is to be found in the context of all relevant circumstances relating to an applicant and not in the fact of general practitioner experience alone.

96                  This evidence must also be considered with the evidence relating to the ‘value of general practice reinforced representations’ below.

Were the representations made?

97                  The first point for consideration is whether any statement made by Dr Cole at the pleaded meeting was a ‘representation’.  The respondent maintains she only gave ‘personal advice’.  I do not accept that submission.  The applicant had sought the advice of the respondent.  The AMA had referred her to Dr Cole, who held an appropriate office to represent the respondent.  Dr Cole was speaking on behalf of the respondent.

98                  I am satisfied that the representations pleaded in 11.b) and 11.c) were made.

99                  It is more difficult to find whether the representation in 11.a) was made.  It is denied by Dr Cole who testified she had said the experience was ‘acceptable’.  I am not satisfied that is a clear recollection of what was said.  The evidence shows that attention was directed to other selected trainee candidates with a general practitioner background.  ‘Acceptability’ does not seem to have been the focus of the consideration.  In that context the weight of evidence (even allowing for Mr Shakur’s position as the applicant’s husband) favours the view that the representation was made.

100               I am not satisfied that the representation pleaded in 11.d) was made.  When the ex post facto note of the applicant is considered, it becomes apparent that Dr Cole was not addressing an advantage of a general practitioner qualification to selection but rather to bringing diversity to the profession.

Were the representations misleading or deceptive?

101               Paragraph 42 of the claim pleads the value of general practice representations and reinforced representations were misleading or deceptive or likely to be such.  The foundation of the plea is that the respondent does not in fact value general practice qualifications or experience.

102               In my view the applicant has not made out this foundation as at the time the representations 11.a), b) and c) were made.  The evidence shows that, as Dr Cole stated to the applicant at her interview with her, some candidates with general practice qualifications had been selected as the trainee.  The representation that the general practice experience was ‘very relevant’ could not be misleading or deceptive or likely to be such because that was what it was at the time it was made.  That is not to represent that it would be a decisive or winning consideration, only that it was ‘very relevant’.  The fact that a consideration is ‘very relevant’ to a final determination does not necessarily mean that it is positive or negative it is just a relevant consideration that the adjudicator should take into account.  It would be scored and taken into account with all of a candidate’s qualifications and experience considered in the light of the qualifications of the other candidates.

103               The pleading in par 42 links the issue of undervaluing with the plea that the respondent does not value the general practice experience ‘and/or’ has an undisclosed preference for candidates with hospital experience and/or young hospital experienced doctors when selecting candidates for the training program.  Dr Cole’s evidence was that she told the applicant she should consider getting back into the hospital system as a dermatology resident or a registrar in a related field such as radiation, oncology, plastic surgery, histopathology, immunology or general medicine.  Both the applicant and Mr Shakur deny this was said.  However, Dr Cole said she remembered it because the applicant had asked what she could do and Dr Cole said she had explained her own experience before doing the trainee registrar position.  I accept Dr Cole’s evidence on this issue.  It follows that, so far as the interview with Dr Cole was concerned, there was no lack of disclosure to the applicant of the relevance of hospital experience.

104               Additionally, after the publication of the National Trainee Selection Guide in 2001 (considered more fully below)there was no on-going basis upon which the applicant could have considered that general practice experience would ensure her selection.  The value of general practice representations could not objectively have been open to the applicant to rely upon after the statements of desired attributes of trainee dermatologists were published in the Guide as part of the Handbooks to which the applicant annually had regard.  The Guide made it quite apparent that academic record, research, clinical experience and judgment were the pivotal considerations.

The value of general practice reinforced representations

105               The applicant also pleads certain representations defined in the pleadings as ‘the value of General Practice reinforced representations’.  In her evidence the applicant deposed that in the period 19-20 February 2000 she attended a seminar of the respondent in Sydney.  She stated that while there two of the presenters from the respondent, one a practising dermatologist who was previously a general practitioner and the other a trainee registrar with a general practitioner background, highlighted that their general practitioner experience was very relevant to the respondent’s training program and that general practitioner qualification was a plus for selection.  The applicant said she was pleased and reassured by the consistency of these statements and Dr Cole’s advice to her.  In cross-examination she testified that the former had said being a general practitioner had given him an edge towards selection; the latter had said she was selected readily because she was a general practitioner.  The applicant did not know where either came from.  I accept the applicant’s submission that the respondent has not adduced any evidence to refute this evidence nor any explanation for such. 

106               I therefore accept these representations were made.  However, for the reasons given on the value of general practice representations, I do not consider it has been established that the making of them was misleading or deceptive or likely to be such.  The general practice qualification referred to was ‘very relevant’ but that was not (and could not be) an assertion that it was the only or principal consideration on selection or that it guaranteed selection.  The ready acceptance of a candidate in one year cannot by itself constitute a future representation that another general practitioner will also be readily selected. 

107               Further, the value of general practice representations could not objectively have continued to be relied upon by the applicant after the publication of the National Trainee Selection Guide in 2001, considered below.

2000 SELECTION PROCESS FOR POSITION COMMENCING 2001

108               In accordance with the respondent’s requirements, in July 2000 the applicant successfully completed the Part 1 examination (or Basic Sciences Examination).  As a consequence she became a provisional trainee of the respondent.  As required by the respondent, the applicant applied for the respondent’s WA trainee registrar position in dermatology in July 2000.  The position was known as a ‘Rotating Inter-Hospital Registrar Appointment in dermatology’.  At that time, the application process and the formalities of selection being co-ordinated for the respondent by RPH, principally through Ms O’Hara.

109               The applicant pleads she took these steps induced by and in reliance upon the matters pleaded in pars 11 and 13-15.  Paragraph 11 refers to the value of general practice representations.  Paragraph 13 refers to statements in the Training Handbook 2000.  I agree with the respondent’s submission that each Handbook spoke only for the year to which it related.  The practice of the respondent was, through its Council, to issue such Handbooks annually in January, referable to the training for the calendar year in question.  However, for an applicant applying in 2000 for a position in 2001, the only guide available would be that for the year preceding the one in which the position was to be held.  Therefore, while the 2000 Handbook could not speak for 2001, it was nevertheless the document upon which the applicant had to rely to formulate her application for a position in 2001.  In that sense, the Handbook of one calendar year continued to speak until supplanted by the next Handbook.

110               The applicant attended an interview for the position in September 2000. 

THE TRAINING PROGRAMME HANDBOOK 2000 REPRESENTATIONS

111               Paragraph 13 of the claim pleads:

‘13       In or about January 2000 the College represented that:

a)        The College determines training requirements.

b)        The College required candidates to attend at least one formal training course in basic sciences as organised by the College before becoming eligible for the College’s Part 1 examination.

c)         The College requires candidates to satisfactorily complete 4 years of approved vocational training in dermatology as a requirement for admission to Fellowship.

d)        The only method of training acceptable to the College is employment in College approved registrar training posts in dermatology.

e)         Candidates must apply for individual hospital posts in the manner designated in their State.

f)         The College’s appeals process and the College’s Registrar selection process were being developed.

g)        The College approved a Code of Conduct for provisional trainees outlining both the responsibilities and the rights and entitlements of such trainees.

h)        The College classifies individuals who have passed the FACD Part 1 Examination of the College as “provisional trainees” of the College.

i)         A pass in the Part 1 examination is permanently valid.

j)         Provisional trainees are required to comply with specified requirements including that they must obtain an accredited registrar training position within five years of successfully completing FACD Part 1; and to pay an annual provisional trainee levy by 31 December.

k)        Failure to comply with the specified requirements will lead to removal of the individual’s name from the register of provisional trainees of the College and the loss of entitlement to continue in the College’s training program.

l)         A National Trainee Selection process was being developed to ensure uniformity and fairness in the selection process of dermatology registrars.’

112               These representations were published in the respondent’s Training Programme Handbook January 2000.  The applicant was asked by the respondent to read the Handbook thoroughly and did so.  The applicant’s claim alleges that i) and j) were representations with respect to future matters for the making of which the respondent did not have reasonable grounds.

113               The applicant submits that it is important to note the professionalism of the Handbook and that it was serious and detailed, being to provide guidance to members of the Australian or overseas community about the requirements to become a Fellow of the respondent.  Both the contents of the Handbook and the training and examination requirements are expressly stated to have been determined and approved by the respondent. 

114               In its defence the respondent pleads that the eligibility requirements for trainee registrar dermatologist are determined on an annual basis as set out in the Training Handbook and that in the 2000 Handbook the respondent was still developing its national selection process.

115               In pars 39, 40 and 41 it is pleaded the future representations in 13.i) and j) were misleading or deceptive or likely to be such.

Future representation i): a pass is permanently valid

116               This representation needs to be understood in the context of the respondent’s Annual Report 2002/2003.  There it was stated that the training period had been increased to 5 years and the Part 1 examination abolished, due to concerns about the attitude of the Australian Competition and Consumer Commission (the ACCC) to entry requirements.  In the respondent’s Annual Report 2003/2004 it was stated that the training program was increased to five years and the basic science examination was abolished.  Additionally that it would remain permanently valid and holders would not be required to sit the clinical sciences paper in their first two years. 

117               The respondent submits in the light of that evidence that notwithstanding that a pass in the Part 1 examination ceased to be a pre-requisite for entry into the dermatology training course, any person who had passed the exam was entitled to continue to assert that they had passed it, so that the pass remained valid.  Further that the entrants to the course who had previously passed the Part 1 examination were exempt from a portion of the training as a result of having that pass.   Consequently it is submitted the representation was true.  

118               It is also submitted by the applicant that at the time the representation was made, there was a basis for it.  I consider the respondent’s submissions establish reasonable grounds for the making of representation i).

Future representation j): requirements for provisional trainees

119               This representation is based on the existence of Part 1 which was subsequently changed.  The claim in respect of it fails for the same reason as i).

2000 FEEDBACK SESSION

120               In October 2000 the applicant attended a feedback session with Dr Swarbrick, who had been a member of the selection committee.  Her evidence was that he told her that the committee had selected a candidate with a research background in dermatology.  Also that she had performed well in the interview with good references.

The positive feedback and research representations

121               These representations are pleaded as follows:

‘18.      At a meeting on or about 10 October 2000 Dr Swarbrick then Chairman of the WA Faculty of the College and Chairman of the College’s selection committee for the 2001 trainee registrar position in Western Australia provided feedback to Dr Shahid.  Dr Swarbrick represented to Dr Shahid to the effect that:

a)      Dr Shahid’s interview was very good;

b)      The College had selected an applicant with a research background that year;

c)      To improve her future chances of selection to the trainee registrar position Dr Shahid should get involved in dermatological research; Dr Swarbrick encouraged Dr Shahid to undertake research activities and provided Dr Shahid with names of dermatologists, dermopathologists and other doctors who could be approached for supervised research projects.

(“The positive feedback and research representations”)’

122               It is pleaded in pars 39, 40 and 41 of the claim in relation to 18.c) of these alleged representations that it offend s 52 of the TPA and s 10 of the FTA because in fact the respondent does not value research experience and has a preference for candidates with hospital experience and/or young hospital experienced doctors.  Paragraph 18.c) is pleaded as a future representation.  In par 43 it is pleaded the positive feedback and research representations were conduct offending s 52 of the TPA.

123               It is also pleaded that induced by and in reliance upon (among other things) these representations, the applicant engaged in and undertook research work in dermatology.

124               The respondent submits that Dr Swarbrick encouraged the applicant by offering advice and that his feedback did improve her.  It submits that whether or not that advice improved her to the point where ultimately she could be successful was a matter for her and was also dependent on who else applied.  It could not be guaranteed.

Research representation

125               Turning first to 18.c), Dr Swarbrick is a specialist dermatologist.  Since 1981 he has been in private practice and a consultant dermatologist at Sir Charles Gairdner Hospital.   At various times he has been Head of the Department of Dermatology at Sir Charles Gairdner.  He has held various roles with the respondent including Chairman of the WA Faculty in 2000 and 2001 and member of the WA Selection Committee in various years.  In his evidence and cross-examination Dr Swarbrick said that, among other things, he had recommended to the applicant that she get involved in research relating to dermatology and gave her names of potential supervisors. 

126               The applicant said she followed this advice and from late 2000 commenced preliminary work towards research under the supervision of Dr Coombe on characterisation of some of the clones for expression of melanoma markers.  Her evidence was that she spent about 20 hours or more per week on the laboratory research activities from March 2001 to about the end of 2003.  Following that she was engaged in writing up the research when convenient in the light of her other professional activities.  As a consequence the applicant could not resume full time work in general practice.  In fact, in February 2000 the applicant had already entered into a contract for part-time work.  The applicant submits that it is not realistic to suggest that she would have done this without the positive feedback or encouragement given by Dr Swarbrick in October 2000.  As against that, the respondent points to evidence of the applicant’s interest in continuing professional education generally.

127               Dr Swarbrick’s evidence on this was clouded by the fact that he expressed himself as unsure whether his memory related to the 2000 or 2001 feedback interview.  As the meetings were intended to be informal, he had not made notes.  He denies saying that the applicant’s interview was very good and that she had performed well and had a good chance of being recommended for the position of trainee registrar.  His memory was that she had not performed particularly well in answering interview questions.  He said he endeavoured to be polite to her and to tell her things she could do to improve her chances of selection.  These included re-entering the hospital system in a registrar position, commencing a research project in dermatology and/or enrolling in a postgraduate course in a field of dermatology.

128               The applicant recalled Dr Swarbrick suggesting she take the option of research but denies that he mentioned taking a hospital position.  In cross-examination Dr Swarbrick gave a reason why he remembered saying that to her, namely, that Mr Shakur had suggested she might undertake research in the United States of America where she had relatives in the hospital system.  This evidence was not put to Mr Shakur.

129               I find that Dr Swarbrick made the research representation pleaded in 18.c).  It was a future representation it looked to the future and was not simply an ‘appraisal’ of the effect of her interview.  It was acted upon by the applicant. 

130               The respondent contends there were reasonable grounds for the representation, namely that undertaking research would improve the applicant’s merits for being selected.  Reliance is placed on the evidence of Dr Cole and Dr Swarbrick concerning the manner in which applicants were scored on, which included scoring research.  Therefore the respondent submits in effect that there were facts existing at the time of the representation, namely the mode by which candidates were scored, on which Dr Swarbrick relied and which were objectively reasonable and supported the making of the representation.  The respondent says on this evidence the representation was true and that undertaking the research did improve the applicant’s merits because she received recognition in the selection process (as did other candidates) where research had been undertaken as compared to the position if she had not undertaken the research. 

131               To be added to this is that Dr Swarbrick gave to the applicant the names of two candidates whose careers had benefited by undertaking research.

132               In my view the respondent has discharged the burden under s 51A and established that there were reasonable grounds for the making of this representation at the time it was made.

133               Furthermore, the representation continued to be reasonable because a history of involvement in research projects was in the first limb of the desirable attributes of a dermatological trainee introduced by the National Trainee Selection Guide in 2001, considered more fully below.

Positive feedback representation

134               Dr Swarbrick’s evidence on the positive feedback representation denies that this representation was made.  However, he could not be categorical in speaking to this feedback session.   The evidence remaining is that of the applicant and her husband.  Both of them testified that Dr Swarbrick had said she had performed well in the interview.  I find that was what he said.  It is consistent with Dr Swarbrick’s intention to be polite to the applicant and not put her down in the feedback session.  However, it was not a statement which did more than affirm she had performed well in the interview.  It could not have mislead or deceived or been likely to do so except with reference to how she in fact performed in the 2000 interview.  It said nothing as to her chances, either at the interview or in the future.  I do not consider it has any further relevance to the applicant’s case.

2001 SELECTION PROCESS FOR POSITION COMMENCING 2002

135               In July 2001 the applicant inquired of the respondent about the selection criteria for the 2002 Trainee Registrar position.  She was advised by the respondent to consult Appendix 2 in the 2001 Training Handbook, which could be downloaded from the respondent’s website.  The applicant read that Handbook and applied for the 2002 position.  She was not successful.  In October 2001, in accordance with the Handbook, she applied for a formal feedback interview.

136               A feature of the 2001 selection process was that much of the documentation relating to it was misplaced or destroyed.  Dr Swarbrick accepted in cross-examination that he did not know where the records were and that there was no system for preserving them, contrary to the Handbook representation.

137               Late in the trial the respondent produced Dr Clay’s handwritten score sheet for the 2001 selection and Dr Singh’s sheets for the same selection to each of the witnesses respectively.  The applicant submits the lateness and unexplained character of the production means that the documents should be treated with caution.  I agree with the respondent that the documents were properly identified and they cannot be disbelieved.  However, the manner of their production, while showing that these records were kept, does not add credibility to the soundness of the record keeping system.

2001 TRAINING HANDBOOK REPRESENTATIONS

The introduction of the National Trainee Selection Guide

138               In 2001 the respondent published in its Handbook the ‘National Trainee Selection Guide to ensure uniformity and fairness in the selection process of dermatology registrars (Appendix 2) and its ‘Appeal Mechanism (Appendix 1)’.  The applicant submits that the respondent has not provided any cogent evidence of measures taken by it to ensure these representations could be honoured and were made on reasonable grounds.

139               The respondent pleads in its defence that the 2001 Training Handbook states aspirations to act fairly towards applicants for the selection processes and decision making by the respondent but denies they constitute representations.  The Handbook is subtitled on its cover as referrable to ‘information and curriculum’.  The Foreword contains the statement ‘this handbook presents a detailed curriculum and general regulations relating to training and examinations’.  Appendix 1 contains what is described as the ‘appeals process’.  Appendix 3 addresses approved trainee posts.  Appendix 4 deals with application for accreditation to a training program.  Appendix 5 sets out the trainee appraisal form.  Appendix 6, the assessment of competence form.  Appendices 7 and 8 contain matters relating to certification.  Appendices 10 and 11 deal with sample logbooks.  Appendix 12 addresses research and travelling scholarships.  Appendix 14 contains an order form.  I consider these are all in the character of factual statements, representing the position of the respondent on their subject matter.

140               There are other appendices dealing with aspirational matters.  The curriculum statement includes a list of objectives relating to knowledge and understanding; skills; and attitudes as they affect professional behaviour and also ethical issues.  Appendix 2 is the ‘National Trainee Selection Guide’, some of which is aspirational in that it refers to desirable attributes of a dermatology trainee.  Appendix 9 sets out the code of conduct.  Appendix 13 contains a reading list.

141               It is not the case, therefore, that it can be found that the Handbook as a whole is an aspirational document.  Whether or not a statement from it is a representation will depend on the content of the particular statement and its context.

142               Importantly the National Trainee Selection Guide stated, under the heading ‘Criteria for a dermatology registrar’ as ‘attributes’ the following:

‘ATTRIBUTES

The desired attributes of a dermatology trainee occupying a registrar training position in the College’s training program are outlined in the Training Program Handbook.  In summary these are:

1.         To have a sound academic record, a pass in the Part 1 examination of the College and involvement, a history of involvement or a willingness to be involved in research projects.

2          To demonstrate sound clinical ability and judgement in a wide range of clinical settings. …’

I read this statement as saying that a Selection Committee must have regard to the three attributes in those paragraphs along with the other paragraphs not quoted.  Those three paragraphs show that such a committee must have regard to academic record (which would included post-graduate record), involvement in research, and clinical ability and experience.  Of these, clinical ability is clearly an important consideration. 

143               How important was the focus on clinical work was emphasised in the General Information section of the 2001 Training Handbook where the ‘scope of training’ for a dermatology trainee registrar was described as follows:

‘It is expected that the majority of training will be spent in clinical work in all aspects of dermatology with the trainee responsible, under supervision, for the care of both outpatients and inpatients.  Discussion of cases in the clinics, ward rounds, seminars, clinicopathological sessions and journal club meetings are all important aspects of training.  Trainees should allow time for reading current dermatological literature as well as pertinent literature in clinical medicine.  An understanding of general clinical medicine, particularly pertaining to dermatology, is essential.  Trainees are also encouraged to attend grand rounds and other hospital conferences involving other aspects of medicine and surgery.  It is essential that trainees acquire a knowledge of histopathology of the skin as well as both theoretical and practical knowledge in mycology, parasitology, virology and microbiology.  This includes an understanding of techniques of staining and culturing pathogens.’

144               Clinical experience arises from experience in a hospital or from the practice elsewhere of medicine, including experience in general practice.

145               The applicant testified she had been in practice over 8 years full-time and 5 years part-time.  Of the patients she saw 10 to 15 per cent had a dermatology condition.  Of those, 95 per cent she managed and about 5 per cent were referred to dermatologists.  Her main referral was to West Perth Dermatology.  The three dermatologists there were Dr Donnelly, Dr Rohr and Dr Halbert.  Dr Rohr was a member of the Selection Committee when the applicant applied in 2000.  Dr Halbert was a member of each of the Selection Committees for the applications made in 2001 to 2004.  Dr Donnelly was a member of the Selection Committee for applications made in 2003 and 2004.  However, she had not used them as referees.  It had not occurred to her that the persons best able to address her clinical skills would be the dermatologists to whom she was referring patients each week.  In particular, she had not discussed her application or her interest in dermatology with Dr Donnelly.  Therefore the respondent argues it can safely be inferred that their assistance was not sought either because the amount of clinical work the applicant said she referred to them was untrue or their references concerning her clinical skills would not have assisted her case.

146               Dr Cole testified that the difference between clinical experience as a general practitioner and clinical experience in a hospital is that the latter involved treating patients who, by virtue of their problems, have been sent to hospital usually by a general practitioner, because that problem could not be managed in general practice.  For a training registrar it is a supervised environment in which they must perform a lot of tasks which would not arise in general practice.  She did not deny that general practice could be an adequate background for selection but it was different to hospital experience.

147               From the introduction of the National Trainee Selection Guide the applicant was therefore on notice that her experience as a general practitioner as such was not among the desired attributes for which a Selection Committee was charged to search among candidates.  She was from that time on notice that the relevance of her experience as a general practitioner was whether it had given her experience, including clinical experience, which could establish that she had one or more of the desired attributes.  It must have been apparent to her as a medical practitioner that if she wanted to get high marks for clinical experience she may perhaps best do that in a hospital setting or, if not, by increasing the focus of her general practice on clinical aspects of dermatology.  As a practitioner, she would also have known of the comparative difficulty in having someone able to speak to her clinical experience as a general practitioner rather than from a supervised environment.

The open, transparent and accountable representations

148               In reliance on the respondent’s Training Program Handbook 2001 the applicant pleads that in or about January 2001 the respondent again represented the matters set out in 13.a) to e) (see above) and also represented that:

‘20.      In or about January 2001 the college again represented the matters set out in paragraph 13(a) to (e) above and also represented that:

a)    The College’s entire selection process for candidates for dermatology registrar training positions will be open, transparent and accountable. 

b)    Merit is the sole criterion.

c)    All potential applicants are requested to forward copies of the application form, together with their curriculum vitae and photograph to the hospital(s) or health authority where the position(s) which they wish to apply for is (are) being advertised, the Honorary Secretary of the Australasian College of Dermatologists and the Chairman or Secretary of the relevant State Faculty of the College.

d)    No trainee will be selected into a registrar training position without an interview.  Interviews will be granted after assessment of curriculum vitae and referee reports.  Referee reports will be scored in an objective manner with a global score incorporated.

e)    The College’s selection and interview committees should have the confidence of all candidates, the profession and the community in general.

f)     Written records will be kept of each interview.

g)    The proceedings of each meeting of the Selection and Interview Committees will be minuted with a record of decisions made, with appropriate reasons for those decisions. 

h)    Candidates will be given the opportunity to ask questions and to express an opinion as to his or her satisfaction with the selection and interview process.  The candidate’s responses will be recorded.

i)     A meeting of the College’s full Selection Committee will take place as soon as possible after the interviews to determine the Committee’s (and College’s) recommendations of candidates for available training positions.

j)     The College’s selection process will be capable of withstanding external scrutiny.

k)    A record of proceedings of the College’s Selection and Interview Committees will be kept for a minimum period of 6 years in a secure manner at the College’s premises.

l)     All unsuccessful applicants will be offered a formal interview with the Chairman of the Selection Committee, which will be minuted.

m)   The purpose of the formal interview with the Selection Committee Chairman includes giving unsuccessful candidates a frank appraisal of their standing in the eyes of the Selection Committee and to provide an indication as to why they were not selected.

n)    The College’s selection process will be continually monitored and evaluated.

o)    Failure to comply with the specified requirements (including failure to pay an annual trainee levy by 31 December) will lead to removal of the individual’s name from the register of trainees of the College and the loss of entitlement to continue in the College’s training program.

p)    A National Trainee Selection Guide has been developed to ensure uniformity and fairness in the selection process of dermatology registrars.

q)    The appeals process of the College is designed to provide a means by which any person adversely affected by a decision of any Board or Committee of the College in relation to admission to Fellowship can have their grievances addressed in a properly constructed and formal manner.

r)    The College recognises the importance of natural justice and the avoidance of bias and conflict of interests in its dealings with persons wishing to become Fellows of the college and aims for fairness in all its official processes.

s)    A fee is payable to the College on lodgement of an appeal.

t)     The College’s appeals process will provide a genuine mechanism enabling any person adversely affected by a relevant decision of any Board or Committee of the College to obtain a reconsideration of that decision in a timely and effective way.

(“The open, transparent and accountable representations”)’

Representations a) to s) are particularised as having been published in the Handbook.  Representation t) is particularised as implied from q) to s) and the contents of 6-12 (General Information) and 38-41 (Appendix 1 – Appeals Process) of the same Handbook.

149               As these pleadings (other than ‘t)’) are sourced in statements in the Training Handbook, there is not a dispute as to whether they were made.  The areas of contention are whether they constituted representations and whether they were conduct proscribed by s 52 and other sections of the TPA.

Future representations: pars 20.a), d) to k), m), p), q) and t)

150               I find that the statements pleaded in 20.e), j) and m) are aspirational and not made as a statement of fact and so not by way of a representation.

151               Of the remaining future representations I find:

·                    20.d): no trainee was selected without interview.  This occurred after assessment of CV’s and referee reports.  Such reports were scored.

·                    20.f): such were kept, subject to defects in retention referred to elsewhere.

·                    20.g): such minutes and reasons were kept.

·                    20.h): candidates had the opportunity to ask questions and express opinions and their responses were recorded.

·                    20.i): the Selection Committees met promptly.

·                    20.k): records were kept, subject to defects to be mentioned below.

·                    20.n): this occurred annually in the production of each year’s Training Handbook.

·                    20.p): the purpose of the Guide is a fact.

·                    20.q) and t): considered below.

152               The respondent therefore submits it had a reasonable belief that any selection process adopted would be open, transparent and accountable: 20.a).  Written applications were made.  A Selection Committee reviewed and assessed applications against a common set of criteria.  A standardised ranking system was used.  No trainee was selected without an interview.  Interviews were granted after assessment of CV’s and referee reports.  No other candidate than the applicant has appealed.  Other candidates have applied more than once.  Written records were kept.  There was opportunity for candidates to speak, ask questions and obtain feedback.  There were reasonable grounds to suggest that the applicant would have improved her chances of selection by leaving general practice and working in a hospital in preferred fields of immunology and rheumatology.  There was no evidence that if the applicant’s appeal succeeded in any instance, arrangements could not be made for the applicant to enter the program.  It is submitted that in all these circumstances each Selection Committee attempted to discharge the obligation on it and the respondent had reasonable grounds to expect that the obligation would be discharged.

153               I accept that the evidence supports the matters the respondent relies upon and I find reasonable grounds for the making of the statements at the time they were made has been established in relation to the non-aspirational pleaded future statements.

Non-future open, transparent and accountable representations

154               In par 44 of the claim there are two aspects of these representations which are pleaded as material to the case for engagement in proscribed conduct.  The first is in relation to 20.k).  It is said there was an alleged failure of the respondent to keep or provide minutes or records of meetings during the selection processes for the trainee registrar program.  The second is in relation to 20.q) where it is contended that no genuine opportunity is provided for a candidate aggrieved by a decision of the respondent in the selection process to appeal the decision and to have the appeal adjudicated upon before allowing the impugned decision to take effect. 

155               In respect of each of these aspects it is first pleaded that the conduct is misleading or deceptive or likely to be such contrary to s 52 of the TPA and s 10 of the FTA.

156               It is also pleaded that the statements are liable to mislead the public as to the nature, the characteristics or the suitability for their purpose of the respondent’s services in contravention of s 55A of the TPA and s 18 of the FTA.  The applicant submits that the conduct complained of must have a public element to it given the reference in the section to ‘mislead the public’.  She relies on the Handbooks, the source of the representations, being available in hard copy and to the community as a whole when promoted or provided on the respondent’s website.  The respondent submits that, based on its view that the relevant class is an ordinary member of the class of medical practitioners or medical practitioners interested in becoming specialist dermatologists, there is no scope to find a breach of s 55A.  This is because the respondent maintains that there is no basis to find that the relevant conduct would ‘mislead the public’ because there is no involvement of a sufficiently large and random or general group to satisfy this requirement.  cf Westpac Banking Corporation v Northern Metals Pty Ltd (1989) 14 IPR 499; Trade Practices Commission v J & R Enterprises Pty Ltd (1999) 99 ALR 325.

157               Thirdly, it is pleaded the statements falsely represent that services are of a particular standard, quality, value or grade contrary to s 53(aa) of the TPA and s 12(1)(e) of the FTA. The applicant submits that the Court should approach the word ‘quality’ and the word ‘standard’ in their ordinary meaning.

158               Fourthly it is pleaded that the statements falsely or misleadingly represent the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy contrary to s 53(g) of the TPA and s 12(1)(I) of the FTA.  The applicant submits that the concept invoked is that of a transaction (in this case, the selection process and the appeal process) being promoted.  This will include ‘the collection of rights and duties which will be acquired or assumed by the parties to the transaction being promoted as between the proposed [supplier] and the proposed [acquirer], if they enter into the transaction which the promoter actually has in mind, and is promoting: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [26] per Carr J citing and applying Henderson v Pioneer Homes Pty Ltd (1980) ATPR 40-159 at 42 244.

159               The applicant relies upon the evidence referred to above in relation to the respondent’s 2000 Handbook and the value of general practice reinforced representations and to evidence digested in a tabular form as an attachment to the applicant’s closing submissions.  The position which the applicant maintains the evidence discloses is:

‘In particular the evidence shows that after significant consideration the College produced its National Trainee Selection Guide as part of its Handbook.  It was expressly said, among other things, that “the entire selection process for candidates for dermatology training registrar positions will be open, transparent and accountable”; that “proceedings of each meeting of the Selection and Interview Committees will be minuted with a record of decisions made, with appropriate reasons for those decision”; that “the selection process would be “capable of withstanding external scrutiny”; “a record of proceedings of the College’s Selection and Interview Committees will be kept for a minimum period of 6 years in a secure manner at the College’s premises; the National Trainee Selection Guide had been developed by the College “to ensure uniformity and fairness in the selection process” and that it “will be continually monitored and evaluated”.’

Failure to maintain records

160               I do not consider that the matter pleaded in 20.k) is aspirational.  The statement appeared as part of the National Trainee Selection Guide.  It is most specific in its content.  It is a matter on which most if not all applicants would rely in knowing that it would preserve the confidentiality of their application. 

161               The respondent accepts that there is evidence that the November 2001 selection minutes were not kept at the respondent’s premises.  Also that there was evidence that records were maintained by the secretary of the Western Australian selection committee, although not at the respondent’s premises.  Nevertheless the respondent submits records were kept and became available.

162               The respondent says that in any event the complaint goes nowhere because the question of record keeping and maintenance was ex post facto to the decisions of selection committees.  The applicant did not appeal the selection decision in 2001, so that the subsequent question of failure to keep records is irrelevant.  This submission is not to the point of the applicant’s submission here, which is whether the making of the representation constituted conduct offending any of the sections.  Issues of causation will arise later.

163               As the respondent accepts, there is evidence that some records were kept and some were not.  The record keeping involved the passing of records from secretary to secretary.  Perhaps inevitably with such a system, not all records were readily able to be located and some were found not to exist.  In my view the evidence establishes that the record keeping of the respondent fell short of the representation made concerning it as pleaded in 20.k) of the claim.  On the assumption, the respondent’s relevant conduct was in trade or commerce, I therefore find that the conduct of the respondent in failing to maintain its selection and interview records in accordance with the norm of conduct referred to in representation 20.t) engaged in misleading or deceptive conduct or conduct likely to be such contrary to s 52 of the TPA.  This would be the case whether or not the public to which the representation was directed is defined narrowly to applicants for the position of trainee registrar or to medical practitioners or even to the readers of the Handbook from the public generally if they were, contrary to my view, found to be part of the relevant parts.

164               Section 55A applies in more limited circumstances (conduct ‘liable to mislead the public’) and requires proof beyond reasonable doubt.  On the assumption that the conduct of the respondent was ‘in trade or commerce’ so far as the conduct in question is concerned, the failure to maintain records in accordance with the representation is said to be conduct as to which there was a probability it could mislead (for example, applicants seeking assurance of confidentiality or litigants such as the applicant seeking discovery for the appellate process) the relevant public ofmedical practitioners as to the nature, characteristics or suitability for their purpose of the services offered by the respondent in relation to selection.  However, liability under the section is strict and it is necessary to prove an actual probability, not just a possibility, that the relevant public would be misled and misled in the relevant way required by the section:  J & R Enterprises Pty Ltd 99 ALR at 337-339.  This has not been made out.

165               I consider the circumstances do satisfy a finding that, contrary to s 53(aa), representation 20.t) falsely represented that the respondent’s services in relation to selection were of a particular standard in relation to record keeping, when that was not universally the case.

166               Likewise the same circumstances satisfy the requirements of s 53(g) that the respondent promoted its services in relation to selection by making a false or misleading representation concerning the existence of a condition or right attaching to engagement with the services.

167               I consider the further relevance of these findings is in relation to the applicant’s claims respecting the appellate process since it was for the purposes of that process that she sought the records.

Lack of genuine opportunity to appeal

168               Representation 20.t) and future representation 20.q) relating to the respondent’s appellate process were made in 2001.  The appellant did not appeal in that year so that she cannot have been misled by any lack of genuine opportunity in that year.  

169               The respondent submits that the Training Handbook for 2001 relates only to its selection and appellate processes in that year.  It is submitted that it is not the case that a Handbook was conduct with an ongoing effect.  This is because the respondent through its Council published a Training Handbook in each year, applicable to that year.  I agree with this submission.  There is no evidence that any of the Handbooks made representations intended to have effect beyond the year in question.

170               It follows that these claims with respect to 2001 cannot be resolved in favour of the applicant as there is no evidence she was misled by them.  The issues dealt with in the submissions concerning the alleged lack of a genuine right to appeal are considered in Part C below.

2001 FEEDBACK SESSION

Strong performance and competitive position representations

171               The applicant next pleads:

‘23.      At a meeting on or about 23 October 2001 Dr Swarbrick then Chairman of the WA Faculty of the College and Chairman of the College’s selection committee for the 2002 trainee registrar position in Western Australia provided feedback to Dr Shahid.  Dr Swarbrick represented to Dr Shahid to the effect that:

a)         Dr Shahid had performed very well and her interview was very good;

b)         The College had selected an applicant with a better postgraduate degree (an FRACP-4 year program compared to Dr Shahid’s FRACGP-3 year program) that year;

c)         Dr Shahid’s Referee reports were very good and in particular the Referee report from Dr Rahimtoola was extremely good;

d)         Another applicant for the position Dr Thom did not have relevant experience as most of his experience had been in emergency medicine.  He had been asked to gain relevant experience/qualifications to improve to be selected for the training registrar position;

e)         Dr Clay was to be the next Chairman of the College’s selection committee for trainee registrar positions and he considered that Dr Shahid was pursuing dermatological research just to get onto the training program.  However they were Dr Clay’s views and were not shared by Dr Swarbrick.

f)         To improve her future chances of selection to the trainee registrar position Dr Shahid should formalise her research by enrolling into an academic program;

g)         Given Dr Shahid’s strong performance and competitive position in 2001 it would be bad luck for Dr Shahid if a Professor of Medicine applied for the trainee registrar position next year.

(“The strong performance and competitive position representations”)’

172               The respondent denies this claim, save as to the plea of the meeting, and pleads a different account of what was said between the applicant and Dr Swarbrick.

173               As to 23.a), the applicant relies on her evidence which she claims is corroborated by the evidence of Mr Shakur, who accompanied her to the feedback interview.  In her evidence the applicant said Dr Swarbrick told her she had performed very well and her interview was very good. 

174               Dr Swarbrick denied making such a statement.  He said that experience in immunology was relevant, and the applicant accepts that was the case.  She also accepted that he referred to one applicant who, although highly regarded, did not get selected because the Selection Committee considered he needed to obtain more well-rounded clinical experience.  He testified to having given the applicant ways in which to improve her chances of success in the selection process.  One way he recommended was for her to get back into the hospital system.  This was denied by the applicant.  Dr Swarbrick, as previously set out in relation to the feedback session in 2000, could not recall in which year he had given this suggestion.  He also testified that after the conclusion of the interview the applicant had thanked him for his comments as being most helpful and encouraging to her to keep pursuing her goal.  He was surprised at this response because he believed he had said words to the applicant and her husband to convey that her qualifications were not sufficient to be competitive.

175               The feedback meeting was overheard in part by Dr Cole, who occupied a room adjacent to Dr Swarbrick.  Her evidence was that he had told the applicant she could undertake a hospital position or start a research project and/or postgraduate studies.  In cross-examination Dr Cole said she was sure of this.

176               Dr Cole said that Dr Swarbrick had given a reasonable feedback interview, neither encouraging or discouraging the applicant.  He had explained that there were other candidates of an extremely high calibre.  After the meeting had concluded Dr Swarbrick had expressed his surprise to her at being thanked by the applicant for his encouragement.  Dr Swarbrick said he was surprised because he did not consider the applicant’s qualifications were sufficient to be competitive for selection.

177               In the light of the evidence of Dr Cole (which I also consider removes the doubt held by Dr Swarbrick on whether he had made a representation concerning hospital experience at this feedback interview) I accept that Dr Swarbrick did not represent to the applicant at the feedback interview that her selection interview had been very good.  He gave to her even handed advice, representing what he knew to be the position for candidates to qualify for selection.  Even if he used the words ‘very good’ they would fall to be understood in the context of the whole of the evidence of the character of the feedback interview and so as not representing to the applicant that her chances of selection were unusually high.  I therefore find that the positive feedback representation was not made as pleaded and pressed.

178               As to 23.b), it was made as pleaded.

179               As to 23.c), the applicant’s evidence was that Dr Swarbrick had said her referee reports were excellent.  Mr Shakur corroborated the applicant’s evidence.  Dr Swarbrick denied making this representation and testified two referees gave adverse reports. 

180               In 2001 the applicant’s referees were a Professor known to the applicant to whom she had spoken about research; a Senior Research Fellow at the Western Australian Institute of Medical Research, to whom the applicant had also spoken about research; a paediatrician and a mentor while the applicant was preparing for her AMC examination; and Dr Rahimtoola, the Professor of Medicine where the applicant had worked in Pakistan whom she had not seen for 10-12 years save for an occasional meeting at conferences.  Dr Swarbrick testified in cross-examination he had endeavoured to contact Dr Rahimtoola without success.  He could not recall the Senior Research Fellow being a referee.  I cannot accept Dr Rahimtoola would have been in a position to give an ‘extremely good’ report on relevant recent experience of the applicant.  I am not satisfied in all these circumstances that the applicant’s evidence, even considered with Mr Shakur’s, establishes the alleged statement. 

181               As to 23.d), it was made as pleaded.

182               As to 23.e), Dr Swarbrick said he told the applicant that the 2001 Selection committee was not convinced by her answers in relation to the new research project and that the Selection Committee got the impression the applicant was not enthusiastic in pursuing dermatological research.  Both the applicant and Mr Shakur testified that Dr Swarbrick’s evidence was that this was the view of Dr Clay.  I find the representation was made as pleaded.

183               As to 23.f) (a future representation), Dr Swarbrick’s evidence was that he gave the applicant ideas to improve her chances of success.  He told the applicant that the best way to be recommended for a registrar position in dermatology would be if the applicant got back into the hospital system with any medical registrar position.  Dr Cole, who gave evidence of what she had overheard of the interview, testified that Dr Swarbrick had told the applicant that she could undertake a hospital position or start a research project and/or postgraduate studies such as honours or masters in a dermatology related field.  Therefore I find the representation as pleaded is made out (although it does not represent the whole of the representations which were made). 

184               I find that the respondent has adduced evidence to negate the statutory presumption that such representation was unreasonable.  The evidence is that which establishes that in selection procedures, including this year in question, credit could be given in respect of another hospital position or research or academic work but not that either factor would be decisive in favour of selection. 

185               It follows that representation 23.f) was not misleading or deceptive or likely to be such and did not constitute the engagement in conduct of relevance to ss 55A or 53(g) of the TPA on which the applicant also relies in this respect (par 41 of the claim).

186               As to 23.g), it was initially denied in the pleaded terms by Dr Swarbrick.  He testified he said that a better trained doctor with higher degrees would probably be selected for the position over the applicant and that was always a problem.  However, in cross-examination he testified that although he did not remember making the statement as claimed, it was possible that he could have said it.  The applicant and Mr Shakur testify he did make it.  I find the statement was made.

187               Paragraph 43 of the claim is to the effect that the strong performance and competitive position representations (leaving aside the future representation addressed above) were misleading or deceptive or likely to be such because the respondent did not in fact value post graduate qualifications or research experience highly or at all and/or had a preference for candidates with hospital experience and young hospital experienced doctors when selecting candidates for the trainee registrarship.  In my view the evidence has not shown that at the time any of these representations were made that the respondent did not in fact value post graduate qualifications or research experience either highly or at all.  The evidence shows they would have been taken into account and scored where an applicant held such qualifications.  However, neither of them would have or was said to have guaranteed selection.

188               As to the alleged preference for hospital experience, this option was one of the options put to the applicant by Dr Swarbrick, whose evidence on this was corroborated by Dr Cole. 

189               I do not consider that the putting of the research option and the post-graduate study option by Dr Swarbrick to the applicant in addition to the hospital option was misleading or deceptive or likely to be so.  That is because all were relevant to and would play a part in any selection process for the position of trainee registrar.  As 20.b) pleads and as it has been found, the selected candidate in 2001 was someone with a better postgraduate degree than the applicant.  Likewise, as 20.d) states, another candidate was sent away to enhance his clinical experience.

2002 SELECTION PROCESS FOR POSITION COMMENCING 2003

190               Around January 2002 the applicant downloaded the respondent’s Training Handbook and read it through.  In early June 2002 the applicant received notice from the respondent regarding proposed changes to the training program, including the future validity of the FACD Part 1 examination.  The notice informed her that holders of a pass in that examination would only be given an exemption for 3 years from the need to complete the basic sciences training component and assessment rather than, as previously, on a permanent basis.  No explanation was provided of the reasons for this change. 

191               In late June 2002 the applicant applied electronically and directly to the respondent for the training program for 2003.  The respondent acknowledged receipt of her application and incorrectly advised her also to apply to RPH.

192               The applicant claims to have made this application induced by and in reliance upon the matters pleaded in pars 11, 13 to 15 and 19 to 20 of the claim.  Pleadings 13 and 20 refer to Training Handbooks and are not the source of continuing representations except so far as they endured until the approval and issue by the respondent of the next Handbook or were adopted or repeated by the substitute Handbook.

193               The Training Handbook stated that short listing for interviews would be done by assessment of an applicant’s curriculum vitae and referee reports.  However, the applicant’s referees were not contacted and no records of her referee reports have been produced by the respondent.  Dr Clay testified in cross-examination that the respondent did not regard the Trainee Selection Guide in the Handbook as binding in relation to processes the respondent should follow.  Although it stated that it was essential for there to be satisfactory reports from professional referees, the Selection Committee resolved on 6 August 2002 to interview referees only for the short listed candidates.

194               The assessment of the applicants was done using two different ‘CV assessment guidelines’ forms, one with 11 scoring factors and the other with 10.  The additional scoring factor was item 8, addressed to whether or not an applicant was a ‘BSE holder’.  The reason for the difference was that the former was an old scoring sheet.  There were also anomalies in the assessment within the 11 factor form.  Additionally, Dr Swarbrick was unable to explain his allocation of marks to the applicant and others.

195               In his cross-examination Dr Swarbrick accepted that the use of hospital and clinical record as two separate items with equal points, a person such as a general practitioner would be at a disadvantage.  Likewise Dr Clay accepted that in that respect the process favoured hospital doctors.

196               The applicant was not short listed or interviewed.

197               The interviews were held on 21 August 2002.  The meeting closed at 9.00 pm.  Within three hours of that time the Chair of the respondent had informed the selected candidate of his success by telephone.  Just after midnight the Chair sent an e-mail notice to RPH and others stating that the selected candidate ‘has been appointed’ and requesting RPH to inform the unsuccessful candidates.

2002 TRAINING HANDBOOK

198               The applicant then pleads that in the respondent’s Training Handbook 2002 the respondent again made ‘the open, transparent and accountable representations’ or alternatively that those representations were implied from the contents of the general information and appeals process sections of that  2002 Handbook. 

199               The respondent again denies that these ‘representations’ are anything more than aspirations.  However, I have rejected that submission in respect of the open, transparent and accountable representations as pleaded in par 20, identifying only 20.e), j) and m) as aspirational.

200               These representations fall for resolution as previously set out in relation to par 20 of the pleading.

FEEDBACK ON 2002 SELECTION PROCESS

201               The applicant pleads as follows in relation to the 2002 feedback meeting:

‘28.

(1)     At a meeting on or about 13 September 2002 Dr Clay then Chairman of the WA Faculty of the College and Chairman of the College’s selection committee for the 2003 trainee registrar position in Western Australia provided feedback to Dr Shahid.  Dr Clay represented to Dr Shahid to the effect that:

a)    There were 23 applicants for the College’s trainee registrar position for 2003.  Three were short-listed.

b)    The quality of the applicants who were short-listed was of a very high calibre;

c)    The College’s selection committee consisted of 8 members.  All members of the selection committee were dermatologists.

d)    Dr Cole, the only female member of the selection committee was unable to attend.

e)    The selection committee that short-listed the candidates was the same committee that interviewed the candidates.

f)     Dr G Thom the successful candidate “is a genius and an outstanding student” who holds a number of awards: the Beasley Award; the G Wood Award; and the Jane Lament Gold Medal.

g)    Dr G Thom presented a paper at the College’s recent annual conference, has worked in a nursing home and has published various articles.

h)    Dr G Thom “does not possess any postgraduate degree and/or diploma and he is not currently involved in any relevant research”.

i)     Dr King Chen from Sydney (who was short-listed) has a First Class Honours in MBBS and is involved in tele-dermatology.  He has no postgraduate qualifications and no significant research background.

j)     Dr Lisa Gordon, (who was also short-listed) works at West Infirmary, Glasgow.  Dr Gordon gave a case presentation at the College’s conference this year.  She has no publications and no other research background.  Dr Gordon has no postgraduate degree or diploma.

k)    Dr Shahid was not considered for the College’s trainee registrar position and was not short-listed because she comes from a general practice background.

l)     The College’s selection committee for trainee registrar positions looks more favourably at hospital experience, and favourably at hospital-based experience in immunology and rheumatology than at general practice experience.

m)   It is “commonsense that hospital experience is superior to general experience”.

n)    The experience of doctors from general practice is not relevant for such a position.

o)    There is a lack of understanding by the College’s selection committee with regard to the recognition of general practice experience.

p)    Dr Shahid’s experience and postgraduate degree etc. were valuable for a General Practitioner but not for a Dermatologist.

q)    “Not everyone who does Masters gets into Medicine”  “A postgraduate degree does not necessarily mean that you will get the position”.

r)     To improve her future chances of selection to the trainee registrar position Dr Shahid should leave General Practice, work in a recognised hospital like Royal Perth Hospital, Royal Melbourne, etc in preferred fields, such as immunology and rheumatology.

(2)     At the meeting Dr Clay confirmed that there was an advantage in the College’s selection processes towards hospital-based doctors and younger doctors with hospital backgrounds in immunology and rheumatology.  And that overall there appears to be a “subtle bias” towards younger hospital doctors.

(3)     Dr Clay did not respond when asked why Dr Shahid and other candidates had never been made aware of the matters in (1) (k) to (r) and (2) above and that at the College Seminar in Sydney in 2000 General Practitioners gave presentations for the College advising that they had been readily selected in the College’s trainee registrar program and in fact represented that they were regarded as having an advantage over other candidates precisely because of their general practice experience.’

Only 28(1).r) is pleaded as a future matter.

202               Those attending this feedback session in addition to the applicant were Mr Shakur, Dr Clay, Dr Stewart-Wynne (Assistant Director, Clinical Services, RPH and consultant neurologist) and Ms Joyce O’Hara (Administrative Assistant to Clinical Services, RPH).  The applicant was the only person taking notes at the meeting.

203               The respondent’s defence denies all but the fact and date of the meeting with Dr Clay and relies on a different account of the evidence given by Dr Clay.  It specifically denies the pleas in 28(1).k) that the applicant was not short listed because she comes from a general practice background; in 23(1).l) that hospital experience was viewed more favourably; in 28(1).n) that the experience of doctors from general practice is not relevant; and in 28(1).p) that her post-graduate experience was also not relevant.

204               To make out this pleading the applicant relies on her evidence and contemporaneous notes which she says are corroborated by Mr Shakur’s evidence and Dr Stewart-Wynne’s evidence.  She testified that Dr Clay did not rely on any documents in providing the feedback.  Specifically he did not produce her score sheets or any other material for the selection process.  In a responsive statement Dr Clay said that his practice was usually to review such matters before providing feedback.  In any event he considered his involvement with the respondent made him very familiar with the CVs of applicants.

205               The applicant said in her statement that she had asked what deficiencies the selection committee had seen in her application.  However, Dr Clay had not responded but rather stated the strengths and distinctions of the winning candidate as well as of the other candidates short-listed.  She had been told that 23 applicants applied and three were short-listed and interviewed, of which she was not one.  Her evidence was that Dr Clay had told her the Selection Committee looked more favourably on hospital based experience and at such experience in immunology and rheumatology than at general practice experience.  In cross-examination she testified he told her she should look to get experience in these fields.  In her statement the evidence also said that Dr Clay had told her the committee would not know how to assess the value of general practice.  Additionally he had said that her experience and post graduate degree were all valuable for a general practitioner but not for a dermatologist.  Also that the committee preferred younger hospital based doctors because immunology and rheumatology were relevant and younger doctors can serve the community for a longer time.  Dr Stewart-Wynne had said that overall there appeared to be a subtle bias towards younger hospital doctors.  Dr Clay had confirmed that was the case.  When she put to those present a complaint that the respondent should have made these matters known and that they were contrary to what she had been told by Dr Cole, she had not received any response.

206               Mr Shakur generally corroborated the applicant’s evidence.

207               Dr Stewart-Wynne said in his statement that he did not retain a clear recollection of who had said what at the meeting.  He recalled Dr Clay praising the winner, possibly excessively.  He had met with the applicant on 23 September 2002 and been provided by her with a letter setting out her recollection of the feedback meeting on 13 September 2002.  Although he had not checked the exact words of the letter he considered the overall thrust of the letter was appropriate as an account.  The letter is now reflected in the applicant’s claim in respect of the 2002 feedback session.

208               Dr Clay had been the Chair of the selection committee in 2002.  He had met with the applicant for the feedback session on 13 September 2002.  He did not specifically recall what was said in the meeting.  He believed that he told the applicant that other candidates had qualifications and/or experience that she did not.  He testified that he tried to give the applicant ideas on how to improve her position for the following year, including by joining a hospital or doing further postgraduate work.  He denied that he had told the applicant that these were criteria for selection or that the applicant had to have any particular type of experience for a trainee position.  He accepted that he had told her that if she worked in the hospital system it would ‘get her known’ in the hospital community and give her a better chance of convincing the selection committee that she was the most qualified person.  In cross-examination, the applicant accepted Dr Clay had told her this.  He denied telling the applicant that two of the short-listed candidates were not involved in any dermatological research.  Also that she was not short-listed because she came from a general practice background or that the experience of doctors from general practice is not relevant for the trainee position.  He said it was the applicant who had insinuated that it was advantageous to be a younger doctor with a hospital background.  In fact, only on one occasion had a young doctor been selected for the position, but he had been unsuccessful prior to being selected.  A doctor with a hospital background in immunology was also recommended for the position.  In his experience each committee member had his or her own view of what was relevant experience to begin training as a dermatologist.  It was not his position that general practice experience gave someone an advantage over other candidates.

209               This extract of the principal points made in the evidence of Dr Clay does not convey the qualified terms in which his oral evidence was given.  Much of it was qualified by statements of belief and reference to his own practice rather than precise recollection of the feedback interview and what was said at it.

210               The respondent submits that to the extent Mr Shakur supports the applicant’s evidence on feed back sessions, no weight should be given to his testimony.  I agree that his evidence must be approached with caution, given that he is the applicant’s husband.  However I cannot see why his evidence on the feedback sessions should be treated in any way different to his evidence of other events.  At this feedback session he was in the company of others whose testimony must also be weighed.

211               The respondent submits that the purpose of the feedback session was to advise the applicant why she had not been selected rather than to advise her on what she should do in the future to be selected.  While it is the case the applicant initially sought a feedback in 2001 in terms identifying the former purpose, the advice given to her, including that given by Dr Clay, was not confined to past analysis and was to some extent expressed in terms as to what she should do in the future.

212               Turning to the pleaded future representation in 28(1).r), Dr Clay accepted that he had made this statement.  The applicant pleads that the pleaded representations in 28(1).k) to r) and 28(2) are the context in which the issue of reasonableness is to be judged.  I consider 28(1).n) and p) to be not reasonable and not to reflect the evidence.  The other paragraphs reflect the views of the 2002 Selection Committee on the application of the requirement in the 2002 Training Handbook for clinical training.

213               There is no dispute that in making the statement in 28(1).r) Dr Clay was acting on behalf of the respondent, a corporation.  The evidence establishes that experience in the areas of immunology and rheumatology could have assisted the applicant.  His evidence in relation to this aspect, based as it is on the requirement for clinical training in the Handbook and his years of experience in dermatological practice and with the respondent and its selection processes, is evidence to the contrary of the statement being misleading.  The statement is one made with reasonable grounds supporting it, so that it was not misleading or deceptive advice or advice with that likelihood.

214               It needs to be borne well in mind that from the introduction of the National Trainee Selection Guide in 2001, the criteria for a trainee registrar included meeting the attributes of ‘a sound academic record’, ‘willingness to be involved in research projects’ and demonstration of a ‘sound clinical ability and judgement in a wide range of clinical settings’.  It should therefore have been apparent to the applicant from the 2001 Handbook onwards that all these matters were part of the matters to be weighed by a Selection Committee.  Above all, that ‘merit is the sole criterion’.  That is, merit is to be assessed by a Selection Committee with reference to the desired attributes.  Additionally the Guide provided that referee reports were to be from referees with whom the candidate had the closest professional contact in recent times and who were able to comment on the stated criteria.

215               As to the other statements alleged to have been made at the feedback meeting, the weight of the evidence favours a finding that they were made as the applicant claims.  Her evidence is corroborated by Mr Shakur; it is not disputed by Dr Stewart-Wynne and it must be considered in the circumstance of the uncertainties and lack of exact recollection affecting Dr Clay’s evidence.  No evidence was submitted from Ms O’Hara.

216               Within 10-11 days of the feedback meeting the applicant’s notes had been documented and used for a letter to RPH and the respondent seeking confirmation of her recollection of the meeting and informal reconsideration.  She did not receive any substantive response from RPH or the respondent concerning the accuracy of her record.  Dr Stewart-Wynne’s evidence was that he left it to Dr Clay to respond.  Dr Clay said in cross-examination that he disagreed with the applicant’s version of the minutes but did not convey that to her.  That is confirmatory of the correctness of the acceptance of her evidence on these alleged statements.

217               The statements other than 28(1).r) are only pleaded as particularisation of the circumstances going to the reasonableness of the making of that representation.

INFORMAL REVIEW OF 2002 DECISION

218               Dr Singh’s evidence establishes that an informal review of the respondent’s decision regarding the position commencing in 2003 was sought by the applicant on 24 September 2002 and conducted by the respondent on 29 October 2002.  The applicant was advised on 6 November 2002 that the respondent had affirmed its original decision.  She was not provided with any substantive reasons or explanation for the outcome of the reconsideration.

219               No evidence was tendered by the respondent as to whether the use of the different score sheets to short list candidates had been considered on the review or similarly whether any consideration was given to the fact that the applicant had not been scored on certain criteria as she should have been.  Dr Singh testified that he could not recall whether or not the letter from the applicant was taken into account and that no new materials were submitted by her.  Dr Swarbrick, although present, had not added to his original CV assessment of the applicant.

2003 SELECTION PROCESS FOR POSITION COMMENCING IN 2004

220               In January or February 2003 the applicant downloaded the respondent’s 2003 Training Program Handbook and read through it.  She also checked the respondent’s website.

221               In May 2003, after checking with the hospital on the correct procedure for lodging an application, the applicant lodged her application for the 2004 Trainee Registrar post electronically directly with the respondent in Sydney and also in hard copy with the Secretary of the WA Chapter.

222               The respondent was unable to produce the original records of this application and no explanation of that failure was provided.

223               The initial allocation of candidates had the applicant assigned to Dr Singh.  This was changed by Dr Clay to Dr Cole.  Dr Clay’s explanation was that this was at Dr Singh’s request, because he had corresponded with the applicant.  However Dr Singh said he did not recall requesting such a change.

224               The applicant was neither short listed nor interviewed.  Interviews of short-listed candidates were conducted on 15 September 2003.  The applicant was informed by letter dated 28 August 2003 that her application had been unsuccessful.

225               RPH was notified by the respondent of the selection by letter two days after the decision.  Unlike 2002, the letter was in the form of a recommendation.  The selected candidate was offered a contract of employment by RPH around 22 September 2003.  The respondent says there is no evidence that the person selected was not the best candidate.

226               The applicant submits that the evidence establishes that her CV assessment scores were moderated down.  This was so, but it occurred in relation to all candidates.  Comparing her 2002 CV assessment with 2003 shows that, despite progressing further in her dermatological research and adding another year of clinical experience and running a general practice, the Selection Committee, virtually not changed from 2002, had given her less marks for her academic record (score sheet item 1), her hospital record (item 2), her clinical experience (item 3), her involvement in broader community (item 6), her postgraduate study/higher degree (item 8) and for WA commitment/rural involvement (item 10).  Dr Clay agreed in cross-examination that his written evidence that the applicant’s referees were personal and could not comment on her clinical ability was not correct.  He then minimised the usefulness of her referees on the grounds they were business associates.  He said a reference from a general practitioner may receive a lower rating than one from a Professor of Medicine in a competitive situation.  Another of her referees told Dr Clay he was unaware of the applicant having any clinical experience.  Two others of the applicant’s referees were not persons who could attest to her clinical experience.

ATTEMPTED FEEDBACK MEETING 2003

227               The applicant sought a feedback meeting and further information.  Dr Clay, as Chair of the WA Faculty, instead of arranging such a meeting, forwarded the request to the National Secretary of the College.  The evidence from the respondent is that it did not accede to the applicant’s request because of the appeals process and potential legal proceedings against the respondent.  Dr Clay’s evidence was that he was directed by the respondent not to have any communications with the applicant.  The respondent submits that there is reason for scepticism at the bona fides of the request of the applicant in the circumstances.

TRAINING HANDBOOK 2003

228               Around January 2003 the respondent through its 2003 Handbook again represented the matters set out in par 20 and par 24 of the claim (being the open, transparent and accountable representations in the 2001 and 2002 Handbooks other than that pleaded in 20.c)) and also represented:

‘34…

a)        A pass in the FACD Part 1 examination (abolished in 2003), previously declared to be valid permanently was valid until and including 2005.  Thereafter, candidates who had passed the FACD Part 1 examination and who were selected into the College’s registrar trainee program would be required to pass a Clinical Sciences Examination.

b)        The training period for the College’s trainee registrar program was extended from 4 years to 5 years.

c)         A general advertisement will be placed in the national press and in the Medical Journal of Australia advising potential trainees regarding dermatology training programs available throughout Australia.

            Information will also appear on the College website.’

229               The respondent denies that the statements constitute representations, claiming they are statements of aspiration.  I have previously rejected this as a general submission.  I do not consider it is applicable to the three above additional statements.  They were all statements of fact. 

230               The representation concerning the permanency of the Part 1 examination was contrary to the representations of permanency in the 2001 and 2002 Handbooks.  However, credit is still given to holders of the Basic Sciences Examination as they are exempted from the Clinical Sciences examination but are required to pass the Clinical Pharmacology examination.  The applicant was aware that criteria may change from year to year.  The statement in the 2003 Handbook was not misleading or deceptive. 

2004 SELECTION PROCESS FOR POSITION COMMENCING IN 2005

231               In January 2004 the applicant obtained the respondent’s 2004 Training Program Handbook and read it through.  (Her evidence was she downloaded it; there is evidence of a hard copy being mailed by the respondent to her).  She applied in mid-May 2004 to the WA Faculty of the respondent and electronically to the National office of the respondent for the Trainee Registrar position in Perth commencing 2005 and paid an application fee.

232               In June 2004 the WA Faculty of the respondent was uncertain whether or not the application should be considered, given the applicant’s appeals process was still continuing and due to other ‘ongoing legal issues’.  The national office of the respondent advised the WA Faculty to consider the application and to disregard previous appeals as a consideration.

233               In July 2004 the applicant sought clarification from the respondent whether or not she was also required to apply to RPH.  The respondent advised her she had to apply to RPH as the appointment was made by it on the recommendation of the respondent.  The applicant inquired of Dr Beresford at RPH who advised her that was not the case and that applications need to be made only to the respondent.

234               The Selection Committee met around 24 August 2004 to short-list candidates for the 2005 position.  The applicant was not short-listed and therefore not interviewed. 

235               The documents of the short-listing process evidence that the items on hospital record and clinical experience had been merged.  Again, the respondent gave no explanation for being unable to produce original documents associated with these processes.

236               In February 2003 the applicant had commenced a major clinical dermatological trial.  Notwithstanding a year of this experience, the electronic record of the applicant’s score sheet shows she was given no marks for academic record (item 1), hospital record/clinical experience (item 2), WA commitment/rural involvement (item 7), and other (item 8) and only a score of 1 for her global score and 1.5 for referees.

237               In late August 2004 the respondent advised the applicant that her application for the 2005 position had been unsuccessful.

238               The Selection Committee met on 13 September 2004 and interviewed the four short-listed candidates, selecting one.  The respondent was unable to discover the communication for the selection to RPH.  The applicant submits the inference is that the communication had taken place by 15 September 2004.

TRAINING HANDBOOK 2004

239               Around January 2004 the respondent again represented the matters pleaded in relation to the 2003 Handbook and also represented:

‘a)       A pass in the FACD Part 1 examination abolished in 2003 was declared to be permanently valid.  However, Basic Science Examination holders who commenced training from 2004 onwards exempted from the Clinical Sciences Examination were required to pass the Clinical Pharmacology Examination in the first 18 months of training.

b)        A general advertisement will be placed in the national press and in the Medical Journal of Australia advising potential trainees regarding dermatology training programs available throughout Australia.  Information will also appear on the College website.’

240               These statements are not aspirational; they are factual.

241               The evidence establishes the making of the representations pleaded in this respect.

FEEDBACK SESSION 2004

242               The claim pleads:

‘38D.

(1)     At a meeting on or about 15 September 2004 Dr Cole then Chairman of the WA Faculty of the College and Chairman of the College’s selection committee for the 2005 trainee registrar position in Western Australia provided feedback to Dr Shahid.  Dr Cole represented to Dr Shahid to the effect that:

a)      Dr Shahid scored highly on postgraduate degree, teaching, research, clinical trial and community work.

b)      Dr Shahid did not score high in academics, as she had no medals or prizes.

c)      Dr Shahid did not score on the hospital record.

d)      Dr Shahid scored lower on clinical experience as a G.P. as compared to a hospital registrar in immunology, rheumatology and radiotherapy.

e)      Dr Shahid scored lower as one of her referees Dr Peter Heenan who was the supervisor of her thesis could not comment on her clinical ability.

f)       If Dr Shahid applied to all states then that would be seen as a commitment to dermatology.

g)      It was not possible for the committee to rank Dr Shahid hence no ranking was being provided to her.

h)      The name and details of the successful candidate were confidential as the Royal Perth Hospital had not finalised their offer.

i)       Dr Shahid’s original assessment sheet had been already sent to the College and Dr Cole did not have a copy at hand.

(2)     At the meeting Dr Cole did not explain to Dr Shahid why general practice clinical experience was regarded as inferior to hospital based clinical experience given the nature and day to day realities of practice in dermatology and why she did not receive any score or any marks for “the hospital record” in the score sheet.  Dr Cole also refused to provide any explanation as to how a general practitioner not having the hospital record keeping experience would be assessed and scored; further how that was important and relevant to the trainee registrar position in dermatology.

(3)     Dr Cole also informed Dr Shahid that she did not have a chance for selection in the next 3-4 years as the quality of the applicants was very high.

(4)     Despite Dr Shahid’s request Dr Cole refused to provide or arrange for the College to provide [sic] with a copy of her score sheet.’

243               The meeting took place on the date pleaded.  Dr Donnelly was also present.  The applicant took notes at the meeting.  Dr Cole dictated notes about 30 minutes after the meeting.  Dr Cole disagrees that the applicant’s notes represent what in fact occurred at the session.  Dr Cole’s notes were not made available until produced as an exhibit to her statement.  They had previously been undiscovered.  No proper explanation of this was given by the respondent.  In her responsive statement Dr Cole denied not answering the applicant.

244               Re 38D(1).a), Dr Cole stated she did not inform the applicant that she had scored highly on the matters pleaded in this paragraph.  She said that she told the applicant she had received marks for her post-graduate degree even though her Master’s degree had not yet been officially awarded.

245               Re 38D(1).b): Dr Cole told the applicant the Selection Committee gave higher marks to applicants with good grades during their undergraduate degree and recognised with marks if applicants received prizes or were awarded honours.  As the applicant did not have these she had not scored highly for academics.  In her responsive statement Dr Cole said the Selection Committee had taken into account that the applicant had only pass grades at undergraduate level.

246               Re 38D(1).c): Dr Cole told the applicant she did not score on this criterion because she did not have recent or referable hospital experience.

247               Re 38D(1).d): Dr Cole denied telling the applicant she had scored lower on clinical experience as a general practitioner.  In her responsive statement Dr Cole said the comment she had made was that the experience was different.  Further, that it was a different objective criterion to hospital experience.

248               Re 38D(1).e): Dr Cole told the applicant that Dr Heenan had not been a good choice as a referee as he could not comment on her clinical ability and provide useful comments in the referee questionnaire.

249               Re 38D(1).f): Dr Cole said if the applicant or any other applicant was serious about becoming a dermatologist he or she should apply to all States because sometimes other larger States had many more positions available than Western Australia.  Whether such applications were made was only one of the criteria used to determine whether a candidate scored in relation to a commitment to dermatology.

250               I find that the representation made by Dr Cole was that if the applicant or any candidate applied to all States that would be one of the indicia to which regard was had to determine the candidate’s commitment to dermatology.

251               This is pleaded as a future representation.  Dr Cole was speaking of the approach taken by the Selection Committee and future Selection Committees.  Her views were based on her significant experience in the Selection Committees of the respondent.  She therefore had reasonable grounds for making the statement on behalf of the respondent.

252               Re 38D(1).g), h) and i): Dr Cole said to the applicant that as RPH had not finalised the offer to the successful applicant and the score cards had been sent to the respondent in Sydney she could not provide the applicant with her ranking. 

253               Having considered the evidence in 38D, I find that 38D.b), c), e), h) and i) are made out as pleaded.  In relation to 38D.f) and g), the pleadings are made out but only in the terms of Dr Coles’ evidence on them allows.  Paragraphs 38D.a) and d) are not made out.

254               Re 38D(2): Dr Cole reassured the applicant her clinical experience had been taken into account.  However, the applicant was given a zero score for such experience.  The applicant submits this failed to properly assess her work as a general practitioner (as the respondent’s website said was relevant) or her clinical trial work.  Dr Cole testified in cross-examination that a zero score was a fair one because the item applied only for particularly relevant clinical experience.  In the absence of a proper explanation from the respondent (such as a formal and published change in meaning or interpretation of the clinical experience criterion) I agree with the submissions of the applicant that Dr Cole’s evidence on this issue does not provide a credible explanation.  I find this statement made out.

255               Re 38D(3): This is pleaded as a future representation.  Dr Cole’s evidence in her responsive statement was that she said to the applicant that given the high calibre of the applicants she did not stand a chance for the next three to four years.  Rather she had said to the applicant that given the high calibre of candidates that year, which was likely to continue in future years, the chances of any one candidate being selected for the position was very low.  In the light of the evidence of Dr Cole I am not satisfied this statement as pleaded was made.

256               Re 38D(4): In the light of Dr Cole’s evidence that the score sheets had been forwarded to the respondent in Sydney, I am not satisfied this statement was made.

257               Again associated with this selection process were informal admissions concerning the non-existence of relevant documents for which no explanation was given.

258               The future representations in 38D(1).f) and (3), having been found to be reasonable and not made out respectively, cannot be productive of any liability arising under pars 39, 40 and 41 of the claim.

259               There are no pleas in relation to the conduct reflected in the making of the non-future statements in the 2004 feedback session.

Part C: Representations concerning appellate process

APPEAL LODGED NOVEMBER 2002 FOR 2003 POSITION

260               On being notified of the reconsideration decision, the applicant on 12 November 2002 confirmed with the respondent that she would be formally appealing the selection decision and requested assistance to ensure the appeal was dealt with as expeditiously as possible.  Within about a further 10 days the applicant filed her request for appeal. 

261               In her request the applicant referred to the issue of informal reconsideration and review as a precondition of appeal:

‘Section 3.4 of Appendix 1 (“Appeals Process”) in the Australasian College of Dermatologists’ Training Program Handbook’ January 2002, states:

“Before the Honorary Secretary convenes an Appeals Committee, the Chairman of the Appeals Committee shall be entitled to enquire whether the applicant has explored all avenues of informal reconsideration and review of the relevant decision reasonably open to him or her.  An applicant has the right however to request a hearing of the Appeals Committee if he or she does not wish to participate in an informal reconsideration and review process.”

I have explored all avenues of informal reconsideration and review without success.’

With reference to the appeal the applicant cited section 3.5 of Appendix 1 reading:

‘3.5      An appeal may only be made on one or more of the following grounds:

(i)        That an error in law or in due process occurred in the formulation of the original decision.

(ii)       That relevant information, available at the time of the original decision was not considered or not properly considered in the making of the original decision.

(iii)      That the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.’

As to the grounds of her appeal the applicant stated:

‘As is clear …, an error in due process has clearly occurred.  My application was dismissed for reasons that do not fall within the parameters of the guidelines that govern the Committee’s decision-making powers.  In particular, my application was dismissed for erroneous reasons which are wrong and which are biased in their scope and application.  The Committee indicated a preference for younger applicants, a preference which is both discriminatory and outside the scope of the guidelines it is required to follow.  In addition, relevant information was ignored or unfairly dismissed because the Committee wrongly concluded that certain qualifications and expertise were irrelevant – which, in fact, they were not.  Finally, the decision made could not be justified on the facts and information before the Committee.’

The applicant concluded her request by stating:

‘In light of the above, I would ask that pursuant to Section 5 of Appendix 1 (“Appeals Process”) in the Australasian College of Dermatologists’ ‘Training Program Handbook’ dated January 2002, the Appeals Committee:

1.      Revoke the decision of the Selection Committee of Western Australia and make recommendations to Council as to an appropriate alternate decision; and/or

2.      Revoke the decision of the Selection Committee of Western Australia and make a new decision in substitution for the original decision by offering me the position for a rotating inter-hospital Registrar in Dermatology.’

262               In her submissions the applicant makes the following criticisms of the appellate process on this occasion:

(1)               The respondent made no attempt to accommodate her concerns about timely progression of the appeal.

(2)               The respondent declined to provide to her the documentation concerning the selection process which she considered necessary to enable her to effectively advance the proper hearing of the appeal.  Further it did not inform her that many of the documents she was seeking never existed, were destroyed or misplaced after the relevant selection process.  That was not made apparent until October 2005 when the respondent was required to file a list of documents and provide an explanation of discovery inadequacies.  No explanation has been given in evidence for the shortcomings in this regard.

(3)               The respondent did nothing to ensure that the appeal was heard before the time that the position the subject of the appeal was to commence.  It did not seek to have the starting date for the position delayed.  The respondent had in fact advised RPH of the selection decision and on the same day advised that the position commenced on 20 January 2003.  That is, there was no intention to provide a person appealing the decision to do so in a properly constructed and formal manner.  Therefore the applicant submits that appellate process was a sham or charade.  It is said this dissipated the subject matter of the appeal so that no realistic outcome of it was possible.  It is submitted that it is paradoxical for the respondent to maintain that the appeal was on foot when by the time of the directions hearing the selected person had held the position for two years.

(4)               The continuation of the appeal process in these circumstances is contended therefore to have been a charade.  It was one that required the applicant to travel interstate for a mediation and for a directions hearing.  It was not until 19 December 2002 that Dr Singh sent to the national office of the respondent only some of the documents relevant to the appeal with more documents being sent a year later on 18 December 2003.

I accept the submissions of the applicant that the absence of any evidence from the respondent on the destruction or misplacement of the documents relevant to the appeal would enable the Court to draw the inference, should it be relevant to this case, that such evidence would not have assisted the respondents’ case.

263               Concerning the suggestion that the appeals system is a charade, the respondent cites the evidence referring to the role of the applicant and her solicitors in preventing the procedure proceeding for the 2002 appeal.

REPRESENTATIONS OF JANUARY 2003

264               On 8 January 2003 the Honorary Secretary of the respondent wrote to Dr Beresford, Director of Clinical Services at RPH expressing the respondent’s surprise that the successful candidate for 2003 was only being offered a short-term contract pending the result of the applicant’s appeal.  He stated that ‘whatever the outcome of the appeal, [the successful candidate’s] position will not change’.  He continued by stating that should the applicant be successful in her appeal ‘the issue of her participation in the training program and employment for the year will be a matter for discussion by’ the respondent.  Dr Clay’s evidence was that had the applicant so succeeded a novel position would have been presented as there was not then another position available.

265               On 15 January 2003 Dr Beresford replied to the Honorary Secretary stating that RPH only had one salary for a trainee in dermatology.  In the event that the respondent was prepared to guarantee that should the applicant be successful she would be placed elsewhere and that RPH would not be expected to offer a place, he would be willing to offer a full contract to the successful candidate.  Pending that assurance, he was not able to offer a long-term contract to that person until after the appeal had been heard.

266               However, Dr Beresford testified he had afterwards been informed the successful candidate had been given a one year appointment.  He considered therefore he could not give only a short term contract because to do so would constitute a breach of a year long contract.

267               I do not agree with the submission of the applicant that the letter of 15 January 2003 is evidence of pre-judgment of the appeal.  However, it shows an appeal process that was without effect in that a successful appellant would not supplant the person previously selected.  It is clear that the respondent did not have any proper appeal process in place and was devoid of experience as to what the appeal process should offer. 

268               One possible argument from all the circumstances is that the respondent did not consider it was likely the applicant would succeed in her appeal.  The selected candidate was an outstanding, probably one of the most outstanding ever selected over the years.  If that was the case, it would show pre-judgment.  However, I do not regard it as a necessary inference.

269               The delay in the appeal process also takes on added significance in the context of Dr Beresford’s response to the respondent.  Was the delay a way of accommodating the issue of a full contract to the selected candidate?  There is no inference that follows from the evidence to answer that question.

270               The evidence set out above is also relevant to the assertion by the respondent that RPH controlled and determined the making of appointments of the trainee dermatologist.

APPEAL LODGED NOVEMBER 2003 FOR 2004 POSITION

271               On 25 November 2003 the applicant appealed against the decision of the selection committee recommending another candidate for the 2004 position.  There is no evidence of the respondent having taken any steps to have the applicant’s appeal considered or dealt with before the subject matter of the appeal, namely, the post of Trainee Registrar, was filled by RPH acting on the advice of the respondent of the selection as conveyed in mid-September 2003 and commenced in January 2004.

272               In lodging the appeal the applicant paid the fees represented in the respondent’s Training Handbook for 2003 of $1650.  However, in December 2003 the respondent sought further fees representing an increase to $5000 which were paid by the applicant, although previously unknown to her.

273               In the course of discovery for this appeal the respondent disclosed in an affidavit sworn on 24 October 2005 that a number of documents relating to this selection process (original informal notes of conversations with referees taken by Selection Committee members) had been destroyed.  The applicant contends this supports her claim that the representation by the respondent regarding the security of storage of documents being part of the selection process in 2003 was misleading or deceptive.

APPEAL LODGED NOVEMBER 2004 FOR 2005 POSITION

274               On 9 November 2004 the applicant wrote to the President of the respondent inviting him personally or by representative to meet with her and resolve all the outstanding issues affecting her appeals. 

275               On 22 November 2004 the applicant lodged advice of her appeal against the decision of the selection committee with regard to the 2005 Trainee Registrar position. 

276               On 15 December 2004 the applicant wrote to Dr Beresford at RPH seeking assurance that her rights were being protected without disadvantaging the successful candidate or herself until the determination of the appeal.  On 25 February 2005 Dr Beresford responded that ‘several of the colleges and speciality societies undertake their own recruitment and simply notify the hospital of the successful candidate’.  He also stated that RPH ‘had no control over their process of selection’.

277               Around 24 December 2004 the respondent acknowledged the applicant’s appeal and advised that it had been forwarded to the appeals committee and that there may be significant delays in seeking to convene an appeals committee for the second and third appeals.  In January 2005 the applicant wrote to the respondent inquiring about the foreshadowed delays but did not receive a reply.

278               The discovery process for this appeal also was productive of evidence that a document from the selection process (an email) had been destroyed.

Scope of discovery issue

279               The applicant has insisted on attempting to obtain documentation relating to the previous years Selection Committees for use in her appeals, notwithstanding that the respondent asserts such material is self evidently irrelevant.  The respondent says this will involve potential privacy issues and the applicant should not be allowed to ‘trawl over’ records relating to the assessment of other candidates.

BREACH OF THE OPEN, TRANSPARENT AND ACCOUNTABLE REPRESENTATIONS IN RELATION TO APPELLATE PROCESS

280               After 2001 the open, transparent and accountable representations were repeated in the respondent’s training handbooks in 2002, 2003 and 2004.  These included 20.q) and t) concerning the genuineness of the respondent’s appellate process.

281               Against that background the applicant submits that the respondent’s training program selection process is not an open, transparent and accountable process or one capable of withstanding external scrutiny, which as the Brennan report said on the issue of documentation, meant a process that enables ‘non-participants in the original selection to accurately re-construct processes and decisions’ or ‘accurate reconstruction of the original detail and process’ and which urged colleges to avoid destruction of documents because it was an unjustifiable action.  It is argued that the respondent has, since 2001 consistently and expressly stated in its Training Program Handbooks that, following the publication of the Brennan Report the respondent recognises that ‘a formal National Trainee Selection Guide is essential …’ and that the respondent further recognises in that context that ‘… the selection process needs to be open, transparent and accountable’.  It has also made other express representations regarding documenting the selection process and secure custody of those documents as alleged by the applicant in these proceedings.  However, whether considered on a year by year basis or overall the applicant submits the evidence establishes that the respondent’s representations are untrue.

The nature of the appeal

282               The applicant submits that an ‘appeal’ as such is not a common law procedure with a known meaning.  The term can have a variety of meanings in a legal context.  For example, there are: (a) appeals in the strict sense; (b) appeals by way of rehearing on the evidence before the initial decision maker; (c) appeals by way of rehearing on the evidence before the initial decision maker supplemented by such further evidence as the appellate tribunal may allow; (d) appeals by way of hearing de novo; (e) appeals in the nature of judicial review; and (f) appeals on questions of law or involving questions of law.  It is submitted that to determine which of the meanings borne by the term ‘appeal’ as referred to, and conferred by, the respondent’s training program handbooks is a matter of construction of the respondent’s relevant handbook and other materials:  See Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297; Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322; Allesch v Maunz (2000) 203 CLR 172 at 179-181; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202-205, 222-226, 238-242; Fox v Percy (2003) 214 CLR 118 at [20] (and [21]-[31]) per Gleeson CJ, Gummow and Kirby JJ. 

283               It is submitted that construing the relevant handbook suggests that the nature of an appeal provided by the respondent is a hybrid between an appeal in the strict sense and an appeal by way of rehearing (with the possibility of a hearing de novo in ‘exceptional circumstances’:  see respondent’s Training Program Handbook 2003 at 42 at par 6.1).  In any event, for there to be a genuine appeal from the decision of the respondent’s Selection Committee the applicant contends it needs to be possessed of the following features.  Firstly, it was essential that the subject matter of the appeal, namely the Trainee Registrar position for the relevant year, be available.  By providing RPH with the respondent’s decision on the selection of the appropriate candidate for the Trainee Registrar position for the relevant year without allowing for the appeal period to expire or, if an appeal is lodged, for the appeal to be heard and determined, the respondent dissipated the subject matter of the Appeal.   It is claimed by the applicant that by encouraging RPH to fill the Trainee Registrar position in each relevant year in accordance with the selection committee’s decision and allowing the ‘appeal process’ to continue (for over 2 years in respect of the applicant’s first appeal) notwithstanding that the respondent was aware of the appeals lodged by the applicant, the respondent exacerbated and aggravated the situation.  Secondly, to enable the applicant to conduct the appeal she needed to have access to the materials on which the respondent’s Selection Committee made its initial decision.

284               The respondent submits that the appeal is at best a right of review.  It is contended that as the appointment is a hospital appointment it could not be expected that there would be an appeal or review process inconsistent with the Public Sector Management Standards.  In addition, the respondent could not determine the matter insofar as the position for which the applicant applied was for a public hospital appointment with RPH, as the applicant understood.  The respondent argues that the right to appeal is available and that the conflict over the relief afforded is not a denial of that right. 

285               The respondent maintains that, as a consequence of the applicant’s appeals being undetermined, the applicant’s rights have neither been exhausted nor abandoned.  Further that in such circumstances her claims relate to incomplete causes of action so that her claims are brought prematurely and should be dismissed.  Additionally that at no point has either the respondent or RPH said that if the applicant was successful with her appeal, that she would be refused an appointment as trainee dermatologist; rather they have indicated that the person appointed would not be removed from the position which had been awarded to them.

286               Whether the ‘appeal’ provided in the respondent’s training handbook is of the legal character contended for by the applicant or the respondent, I consider it needs to be possessed of the features contended for by the applicant to qualify as an appeal, however understood.  An appeal is defined as ‘a transference of a case from an inferior to a high court or tribunal, in the hope of reversing or modifying the decision of the former’ Oxford English Dictionary (2^nd ed, 1989) at p 565.  Thus the verb to appeal relevantly includes the meaning of calling ‘to a higher judge or tribunal for deliverance from the adverse decision of a lower…’: ibid.  To representthat an appeal is provided for is not a statement that some alternative avenue is provided.  It is a statement that there is a route to deliverance from a lower adverse decision.  The features contended for are intrinsic aspects of an appeal being available. 

Relevance of creation of substitute position

287               I therefore do not agree that it is determinative of the applicant’s contentions concerning the adequacy of the appellate process that the respondent is prepared to create another position for the year in question in the event she succeeded in her appeal for that particular year.  An appeals process, in the absence of pre-known provisions to the contrary, necessarily involves an appeal against the decision awarding the selection to another and not a process for seeking an alternative appointment.  The appeal is posited on the assumption arising from the fact that there is only one trainee position available in Western Australia in any one year.  The possibility of the availability of another position may be relevant to other considerations, such as damages, but it cannot mean, in the absence of pre-announced provisions to that effect, that it qualifies as part of the appeals system to which the representations of the respondent refer.

Relevance of appointment being made by hospital

288               I do not consider it is an answer to the need to provide a true appellate system that the appointment of the trainee is made by the hospital.  This is because RPH will only act to make an appointment upon advice from the respondent that the process of selection is complete.  The responsibility for completing the process, including the appellate process, rests entirely with the respondent. 

Causality of delay in hearing of appeals

289               The respondent accepts that the applicant exercised appeal rights for the last three years of her applications but that none of the appeals have been determined.  The respondent contends that the applicant’s conduct has been a significant factor in why that is so.  She has occasioned dates for directions hearing to be vacated, mediation dates to be delayed and insisted on attempting to obtain documentation relating to previous years selection committees for use in her appeals, notwithstanding that the material is self-evidently irrelevant given that each years’ selection is unique. 

290               I do not consider that the actions of the applicant have been the only cause of the reason why the respondent has not engaged in conduct to fulfil representation 20.t).  In reaching this view I have had regard to the applicant’s aide-memoire ‘Schedule of dates set by the Respondent for the hearing of Dr Shahid’s appeal lodged on 22 December 2002 and mediation’ and the evidence to which it refers.  The actions of the applicant relied upon by the respondent are to some extent normal features of any properly operating appellate system.  The failure to resolve any of the appellant’s appeals as at this date is ultimately not occasioned by her exercising rights incidental to each of the appeals.  What has occasioned that position in the main is the failure by the respondent to establish and operate an appellate process in a timely and effective way in accordance with pre-planned rules or mechanisms designed to bring about the hearing and determination of any appeals before an appointment is made in any particular year.  Such a process must itself be able to control timely advancement of the appellate process.

Whether need to exhaust appellate rights

291              The respondent contends that because the applicant has not yet exhausted or fully utilised her rights of appeal she should be precluded from bringing this proceeding.  That is the usual rule where a court has a discretionary jurisdiction and it is applicable where judicial review is sought in the face of other remedies not having been used.  Even that ‘cardinal principle’, however, is subject to exceptional circumstances: cf R v Chief Constable of the Merseyside Police, Ex parte Calveley [1986] 1 All ER 257. 

292               I do not accept that the applicant’s claims are premature (in that her appeals have not been resolved) so that the claim should be dismissed on that ground alone.  The applicant’s claim is in respect of conduct the effect of which is complete and is not dependent of the resolution of any appeal.  Her claim is not related to the determination of her selection.  Rather her claim is directed to the conduct of the respondent in representing the characteristics of its selection and appellate process. 

Impact on training argument

293               The respondent contends that it cannot be the case that the exercise of appellate rights should be allowed to hold up the training process.  That is not the contention: the contention is that a viable appeal should be heard and determined within the time necessary for training to continue on schedule or at least without any unnecessary interruption.  That is, it is not an essential component that there should be a viable appellate system that it give rise to a stay in training.

BREACH OF CONTRACT ISSUES IN RELATION TO APPELLATE PROCESS

The relevant pleadings

294               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). 

295               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.

296               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.

297               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

298               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”.  …’

299               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.’

300              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.  …’

301               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).’

302               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.

303               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.

304               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.  …’

305               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.’

306               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.’

307               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.’

308               (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

309               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.

310               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.

311               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. 

312               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. 

313               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.

314               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. 

315               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

316               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.

317               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:

318               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.

319               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

320               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

321               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.

322               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 Computer Resources (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.

323               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

324               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

325               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.

326               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.’

327               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.

328               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.

329               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.

330               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.

331               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.

332               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.

333               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.

334               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. 

335               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

336               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.

337               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.

338               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.

339               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. 

340               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

341               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.

342               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.

343               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.

344               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.

345               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.

346               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.

347               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

348               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

349               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. 

350               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.

351               In light of the conclusions reached in the earlier reasons, there is no foundation for this claim.

Loss of income from medical practice

352               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.

353               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.

354               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

355          For these reasons I conclude that the applicant’s claims must be dismissed.

 

Associate:

Dated:         11 May 2007