Lukac v The Royal Australian and New Zealand College of Obstetricians and Gynaecologists

1. [1]

   On 5 October 2015 the Appeals Committee of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists dismissed an appeal from the Progression Review Committee of the College (PRC) that determined the plaintiff was to be removed from the FRANZCOG training program.

2. [2]

   The plaintiff, by a summons filed on 5 July 2017 in the Equity Division of the Court but later transferred to this Division, seeks declarations that the plaintiff was denied procedural fairness by the Appeals Committee, that the decision of the Appeals Committee is void, and in the alternative seeks an order setting aside the decision of the Appeals Committee and remitting the matter to be heard and determined by an Appeals Committee otherwise constituted and in accordance with law.

Factual background

1. [3]

   The plaintiff was born in what is now the Czech Republic. She moved to Australia in 2001. She had been trained as a doctor in the Czech Republic.

2. [4]

   On 17 January 2005 she enrolled in and commenced the training program of the defendant for her FRANZCOG. In accordance with the defendant’s regulations the plaintiff was to complete the training program within eight years of the date of enrolment, that is, by 17 January 2013.

3. [5]

   Amongst other things, the program required the plaintiff to complete successfully written and oral examinations. The plaintiff first attempted the written examination in her fourth year of training. She was unsuccessful on the first three attempts to complete this examination because, she said, she had illegible handwriting. She successfully completed the written examination on her fourth attempt.

4. [6]

   She first sat for the oral examination on 21 October 2012. Earlier that year in May 2012 she had badly fractured her ankle. She took a lengthy period of leave during which she was unable to work. She was unsuccessful in the first attempt at the oral examination.

5. [7]

   By 2012 the plaintiff had successfully completed all the requirements of the training program except for the oral examination. On 20 December 2012 the plaintiff requested an extension of time to complete her core training which, as noted earlier, was due to be completed by 17 January 2013. On 22 January 2013 the defendant extended the time for the core training completion to 31 October 2013.

6. [8]

   On 20 October 2013 she sat the oral examination for the second time but was unsuccessful. Thereafter on 5 November 2013 she requested a further extension of time to complete her core training. On 6 December 2013 the defendant extended the time for the completion of her core training to 31 October 2014.

7. [9]

   On 18 May 2014 the plaintiff sat the oral examination for the third time but she was unsuccessful.

8. [10]

   She sat the oral examination for the fourth time on 19 October 2014. Four days before that examination she was telephoned by her mother from the Czech Republic to say that her father had been diagnosed with metastatic cancer. Although the plaintiff sat for her oral examination on 19 October, she left that afternoon for Europe to see her parents.

9. [11]

   The exam results were published on 30 October 2014. The plaintiff was again unsuccessful.

10. [12]

    She returned home on 6 November 2014 and said that she then became aware of her exam results. She applied in November 2014 for extended leave of absence from the training program to travel to Europe for the “family crisis”.

11. [13]

    On 8 January 2015 the plaintiff’s father died.

12. [14]

    The plaintiff did not make application either before or after the exam for special consideration under the defendant’s Exceptional Circumstances Special Consideration and Reconsideration Policy (“the Policy”).

13. [15]

    On 22 January 2015 the defendant wrote to the plaintiff informing her that the Training Accreditation Committee (TAC) would consider her position.

The plaintiff’s application to the TAC

1. [16]

   The plaintiff wrote to the defendant on 24 February 2015 making a formal request that she not be removed from the training program due to exceptional circumstances. She made reference to her ankle injury in May 2012 and her examination in October 2012. She said:

2. [17]

   She thereafter made reference to sitting the oral examinations in October 2013 and May 2014, and to the extensions to her training program which had been granted in January and December 2013.

3. [18]

   In relation to the exam in October 2014 she said this:

4. [19]

   She attached letters of support from various doctors with whom she had worked. She asked for their views to be taken into account. She asked that all of the information she had provided to be considered.

5. [20]

   On 23 March 2015 the Chair of the TAC of the defendant wrote to the plaintiff setting out regulation C2.1.1 and saying that the Committee discussed the issue of the plaintiff’s possible removal from the training program. Regulation C2.1.1 relevantly states:

6. [21]

   The letter said that since the plaintiff was in breach of both those components, the TAC was required to consider recommending her removal from the program. The letter said the TAC considered her request that she be exempted from the regulation on the grounds of exceptional circumstances. The letter went on to say that, while the TAC sympathised with her personal difficulties, it had decided that in view of her continued inability to pass the oral examination, despite being given two extensions of the maximum eight year time limit to complete the core training requirements, she should be recommended for removal from the training program. The letter said the TAC had referred her case to the PRC who would make the final decision.

The decision of the PRC

1. [22]

   The decision of the PRC was made on 15 June 2015.

2. [23]

   The written decision of the PRC noted that the plaintiff attended the meeting of the PRC and was accompanied by two doctors in a support capacity. The material before the PRC was set out in annexure A to the written decision.

3. [24]

   The report of the PRC summarised the history set out earlier in this judgment, noting that the plaintiff had requested two time extensions to complete the requirements of core training and was granted, on the basis of exceptional circumstances, ten months and 12 months respectively leading to a revised deadline for completion of 31 October 2014. The report noted that the plaintiff did not apply for special consideration for the exam held on 19 October 2014. It noted that she had failed to complete the oral examination within the maximum number of attempts allowed and had failed to complete the requirement of the core training within the timeframe as extended.

4. [25]

   It noted that the plaintiff provided a summary of relevant events that led to the situation in which she found herself, and it noted that she cited the basis of the exceptional circumstances as being a “debilitating leg injury” and “distress and anxiety” relating to a family crisis in Europe. The report noted that during the course of the hearing the PRC enquired of the plaintiff whether she was aware of the Policy. The report noted that the plaintiff explained that, while she was aware of the Policy and the associated timeframe for applications to be submitted, she believed she would pass the October 2014 examination.

5. [26]

   The section of the report headed “Decision of the Progression Review Committee” reads as follows:

6. [27]

   On 29 June 2015 the Board passed a resolution giving effect to the recommendation of the PRC.

7. [28]

   On 15 July 2015 the plaintiff wrote to the defendant asking for her letter to be regarded as a Formal request pursuant to regulation A2.6.1 of the Regulations that she not be removed from the training program and that she be granted additional time and one further attempt to undertake the oral examination. The letter relied on three of the grounds in regulation 2.6.1 as follows:

8. [29]

   The letter then went on to provide very similar information to what the plaintiff had put to the PRC in her letter of 24 February 2015.

The decision of the Appeals Committee

1. [30]

   The decision and the reasons for the decision of the RANZCOG Appeals Committee were given on 5 October 2015. The reasons set out the background to the matter, the decision of the PRC against which she appealed, the grounds of the appeal, and what happened at the hearing of the appeal including questions asked of the plaintiff by Committee members. The final section was headed “Decision of the Appeals Committee” and was as follows:

The present proceedings

1. [31]

   The present proceedings are not in the nature of proceedings seeking the supervisory jurisdiction of the Court. The plaintiff submitted that they were brought in the auxiliary jurisdiction of Equity, governed by the contract between the plaintiff and the defendant. Although some public law principles are invoked, the duty to accord procedural fairness is not co-extensive with the availability of certiorari for breach: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [79].

2. [32]

   In McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002)191 ALR 759 Campbell J (as his Honour then was) said at [82]:

3. [33]

   By reason of an issue which developed during the course of the hearing about the relief that was sought and that was available, the whole of the relief sought in the summons should be set out. The prayers sought were:

4. [34]

   The plaintiff sought to read an affidavit in support of the summons which summarised the background to the present proceedings more briefly than I have set out above. The defendant objected to all but the formal parts of the affidavit on the basis that they were not relevant to any matter I had to decide. The plaintiff sought to lead that evidence as threshold facts against the possibility that the defendant would otherwise submit that there were no such facts in respect of which equitable relief could be granted. I admitted the evidence on that basis. The facts set out did not in any event go beyond what was contained in the material that went to the PRC and the Appeals Committee. If the matter was an administrative law appeal only the record being reviewed would ordinarily be received. That was not this matter. The plaintiff was correct to give evidence of the matters which led to the present proceedings being commenced.

Submissions

1. [35]

   The plaintiff submitted that in its decision of 22 March 2015 the Appeals Committee did not make any finding on the question whether exceptional circumstances existed and, if so, whether those circumstances hampered the plaintiff’s performance in the oral examination of 19 October 2014. The plaintiff submitted that the Appeals Committee applied the four attempts in eight years rule in regulation C2.1.1 without regard to the particular circumstances of the plaintiff’s case which adversely affected her capacity to perform in her final oral examination.

2. [36]

   The plaintiff pointed to the reasoning of the PRC in its decision of 29 June 2015 and submitted that the PRC made no finding on the question of exceptional circumstances or causation. The plaintiff submitted that it made its recommendation without regard to the merits of the plaintiff’s application.

3. [37]

   The plaintiff submitted that the Appeals Committee, in the same manner as the PRC, failed to make a decision on the threshold question of exceptional circumstances and causation. It applied regulation C1.4.1 (the eight year period for core training regulation), and denied relief without regard to the merits of the particular case. It took into account irrelevant considerations being the four bullet points in the Committee’s decision (set out at [30] above).

4. [38]

   The plaintiff submitted that none of the matters contained in those four bullet points bore any relation to the question whether the traumatic events four days before the oral examination occurred or were such as to hamper her performance in the oral examination on 19 October 2014. The plaintiff submitted that the purpose of the “exceptional circumstances” rule was to ensure that candidates for examination are fairly assessed. If events occured which deprived a candidate of an opportunity for fair assessment, the College bodies responsible for training and assessment were empowered to give the individual concerned special consideration in the form of variation from the usual requirements.

5. [39]

   The plaintiff submitted that what was relevant to be considered when exercising that power after a failed oral examination was whether the events in question caused or contributed to the failure. If they did, the question became what form of relief should be given to remedy the situation, including whether the candidate should be given another opportunity to pass the oral examination. The plaintiff submitted that an examination in which the candidate was denied a fair opportunity to acquit themselves to the best of their ability was not a true examination of the ability of the candidate.

6. [40]

   The plaintiff submitted that the first two bullet points referred to by the Appeals Committee were not related to the question whether the Plaintiff was denied a fair opportunity to acquit herself at the oral examination. In relation to the second extension of time to complete the training, all it did was to permit the examination to take place.

7. [41]

   The third bullet point was only concerned with the period after the examination and could not bear on the question at hand which was whether the plaintiff was denied a fair opportunity to perform optimally. The plaintiff submitted that the fourth bullet point was not only irrelevant but also irrational because merely making available the opportunity to apply for special consideration after the exam results went nowhere.

8. [42]

   The plaintiff submitted that the Appeals Committee did not take into consideration relevant matters: first, the existence of exceptional circumstances in terms of the Policy clause 1.3, namely, “acute and substantive illness” of an “immediate family member”; and secondly, causation, that is, the hampering of the plaintiff’s ability to perform optimally in the oral examination. They were findings on threshold questions.

9. [43]

   The plaintiff submitted that until there were findings of fact coupled with a conclusion that those facts constituted exceptional circumstances and hampered or did not hamper the plaintiff’s performance in her examination, it was impossible for the Appeals Committee or the PRC to proceed further and to determine in a rational way whether those circumstances warranted a departure from the requirement that a trainee be given four attempts to pass the oral examination and complete all training within an eight year period. In that way the reasoning of the Appeals Committee miscarried, the decision was irrational, and the plaintiff was denied procedural fairness and a hearing on the merits.

10. [44]

    The plaintiff submitted that the reasons of the Appeal Committee showed that it failed to respond to a substantial, clearly articulated argument relying on established fact and, in that way, there had been a denial of procedural fairness.

11. [45]

    The defendant submitted that the extent to which principles of natural justice applied to proceedings of a private tribunal will depend on the construction of the arrangements empowering the tribunal to decide disputes. In that regard the defendant pointed to the defendant’s regulations and in particular regulation A2.9.5 which required the Appeals Committee to act:

12. [46]

    The defendant submitted that procedural fairness is concerned with process and not outcome. In that regard the defendant submitted that none of the grounds set out in prayer 2 of the summons related to an obligation to afford procedural fairness. Rather, they were outcome-focused, and related to the tests applied by the Appeals Committee and the weight accorded to various factors.

13. [47]

    The defendant also drew attention to regulation A2.9.6 which gave to the Appeals Committee the right to consider all relevant information which it thought fit.

14. [48]

    The defendant submitted that the decision of the Appeals Committee involved a balancing exercise. There was no finding that exceptional circumstances did not, of themselves, exist. Rather, the finding was that there were no exceptional circumstances that, in the opinion of the Appeals Committee, would warrant departure from the College requirements. One of the factors to which weight was given, it was submitted, was the availability of the Policy and the fact that, although the plaintiff had the ability to apply for special consideration, she had not done so until well after the event in question, outside the deadline set by the Policy. It was submitted that that was sufficient to indicate that the Appeals Committee did not misapprehend what it was required to decide.

15. [49]

    The defendant submitted that the regulations do not go so far as to require, implicitly, an express finding at the level of causation in relation to any particular set of facts that are alleged.

16. [50]

    In answer to each of the specific grounds of appeal in prayer 2 of the Summons (set out at [30] above) the defendant made the following submissions.

17. [51]

    As to (a), the defendant submitted that in circumstances where the Appeals Committee had a copy of the defendant’s policy and expressed familiarity with that policy in its reasons for decision, it was not necessary for the test for “exceptional circumstances” to be restated in its reasons for decision.

18. [52]

    As to (b), the defendant submitted that the alleged failure was a merits review ground. The defendant submitted that, even if the Court might reach a different conclusion from the Appeals Committee, the Committee was entitled to find that the plaintiff’s father’s cancer diagnosis was not an exceptional circumstance provided it considered that diagnosis (which it expressly did) and balanced it against the other considerations required to determine whether it was an exceptional circumstance sufficient to warrant departure from the defendant’s requirements. One such relevant consideration, expressly referred to by the Appeals Committee, was that the plaintiff did not report the matter in accordance with the Policy.

19. [53]

    As to (c), the defendant submitted that the Appeals Committee did have regard to the considerations set out in the ground of appeal. The Appeals Committee had before it the plaintiff’s own submission as to the effect of the diagnosis on her performance, and the Committee referred expressly to the consideration it gave to the letters of support which referred to the impact of the diagnosis. In that way, there could be no doubt that the Appeals Committee took those matters into consideration. The defendant submitted that, to the extent that the ground was a complaint about the weight accorded to those matters by the Committee, that was a merits review issue, and was not a matter of procedural fairness.

20. [54]

    As to (d), the defendant submitted that it was difficult to see how any of the matters addressed by the Appeals Committee could be said to be irrelevant in the sense required by law to the question whether the PRC made an error in deciding that the plaintiff’s training should be terminated. Similarly, as with ground (c), the defendant submitted that, to the extent that the complaint went to the weight that was accorded to those factual matters, that was not evidence of a denial of procedural fairness.

21. [55]

    As to (e), the defendant submitted that each of the matters in the sub-paragraphs of ground (e) was a repetition of the grounds of appeal brought by the plaintiff to the Appeals Committee, each of which was found not to be made out.

Was procedural fairness denied?

1. [56]

   The plaintiff submitted, and I accept, that a determination of the question raised by the proceedings must principally be decided by a consideration of the contractual arrangements between the plaintiff and the defendant. Those arrangements are more particularly set out in the defendant’s Regulations and the Policy.

2. [57]

   Regulation C2 relevantly provided:

3. [58]

   The Policy relevantly provided:

4. [59]

   An issue of some significance between the plaintiff and the defendant was whether the highlighted words in the Policy imported the notion of causation to a consideration of the notion of exceptional circumstances. The plaintiff submitted that what was said to constitute exceptional circumstances on a prima facie basis were those matters set out in sub-paragraphs 1.1 and following of the Policy. Thereafter, the plaintiff submitted that, if such circumstances were accepted as having occurred, the task of the Appeals Committee (and the PRC before it) was to consider whether those circumstances could be seen as having hampered the plaintiff’s ability to meet whatever requirement had to be fulfilled or to perform optimally in a particular assessment task and, if so, whether it hampered that ability to a substantial degree. The defendant, on the other hand, submitted that the proper construction of the highlighted words was that the particular matters identified in paragraph 1.1 and following had been selected as grounds for exceptional circumstances because, prima facie, they could be regarded or reasonably be seen as having the effect of hampering an applicant’s ability to a substantial degree to meet the requirements of the regulation or to perform optimally in relation to a specific task.

5. [60]

   In my opinion, the proper construction of that part of the Policy is that the matters listed in 1.1 to 1.5 are matters which are categories of exceptional circumstances, but it is then necessary to consider whether those circumstances could be seen as having to a substantial degree hampered the applicant’s ability to meet the requirements of the regulation or to perform optimally in a specific task. Any other construction of the Policy would result in a mechanical application of a particular event or events impacting upon the person seeking the special consideration regardless of whether the circumstances actually hampered the applicant.

6. [61]

   Two examples will suffice. An applicant could show that an immediate family member or close relative had died. However, the applicant might not have had any contact or personal relationship with that deceased person for 20 or 30 years. Another example would be the happening of an earthquake or an act of god which did not impact in any significant way on an applicant, notwithstanding its occurrence or effect was felt at the place where the applicant lived or resided or was located at the relevant time.

7. [62]

   The highlighted words (at [58] above) are directed to the effect of the circumstances on the applicant’s ability to do what is required of the applicant. In that way the highlighted words import an element of causation which must be considered and determined by the PRC and by the Appeals Committee.

8. [63]

   Furthermore, the inclusion of the clause that follows the list of circumstances (commencing “notwithstanding”) demonstrates that the notion of the circumstance itself having built into it a prima facie assessment that the circumstance to a substantial degree hampered the applicant’s ability cannot be correct. That is because that clause allows for other unspecified circumstances that could not, on a priori basis, have such a concept contained within them.

9. [64]

   Accordingly, the task of the Committee was; first, to determine if there were any exceptional circumstances; secondly, to determine if those circumstances could reasonably be seen as having hampered the applicant to a substantial degree to meet a requirement or perform optimally; and thirdly, to exercise the discretion derived from the words “that may lead to the granting of some form of special consideration”. That third stage would involve the balancing exercise which the defendant submitted was involved.

10. [65]

    Many cases have warned against imposing too high a standard of reasons on non-judicial decision makers. In Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402; (1996) 136 ALR 84, Sackville J (with whom Beazley J, as her Honour then was, agreed) said (at FCR 413-414, ALR 94):

11. [66]

    It should be noted that in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Heydon J said at [85] that the warning given by Lockhart in Politis v FCT (1988) 16 ALD 707 should now have substituted for it:

12. [67]

    I consider that what was said in Muralidharan establishes the standard for a committee such as the Appeals Committee in the present case.

13. [68]

    The Appeals Committee in its reasons noted that the two exceptional circumstances relied upon by the plaintiff were the significant injury to her ankle in May 2012 and the diagnosis of terminal cancer in respect of her father in October 2014. Those two circumstances would, prima facie, fall within clauses 1.1 and 1.3 respectively of the Policy.

14. [69]

    The Appeals Committee also noted that the plaintiff did not apply for special consideration after sitting the exam in October 2014.

15. [70]

    In my opinion, the Appeals Committee denied procedural fairness to the plaintiff because it failed to respond to a clearly articulated argument based on established fact. The plaintiff’s argument was that exceptional circumstances existed. Two were relied upon, but the significant one was the diagnosis of terminal cancer in relation to her father some four days before she sat the oral examination. Her argument was that those circumstances hampered to a substantial degree her ability to perform optimally in the examination with the result that she failed to meet the requirements to complete her training within the eight year period. In that regard, the two failures are inextricably linked because it was only a successful completion of the exam which prevented her from completing that training.

16. [71]

    In that regard, the plaintiff’s submission to the Appeals Committee dated 15 July 2015 relevantly said this:

17. [72]

    The Appeals Committee’s conclusion that:

18. [73]

    None of the four bullet points which followed that conclusion assists in elucidating that matter. Further, to the extent that they are the reasons that the Appeals Committee considered that the plaintiff did not fall within the confines of the Policy, those matters do not address the particular argument the plaintiff put forward. It may be accepted that the College extended the period for the completion of her training on two occasions, but those matters - either alone or taken in conjunction with the other two bullet points - provide no logical or rational explanation for the rejection of the plaintiff’s appeal. At best, the first two bullet points may be considerations at the third stage when the balancing exercise was called for, but it is hard to see how they say anything about the first two stages of the consideration to which I earlier referred.

19. [74]

    The third bullet point concerning granting the plaintiff leave of absence subsequent to 31 October is entirely irrelevant to the matter the plaintiff was putting forward. It cannot be a reason why exceptional circumstances were not demonstrated.

20. [75]

    The fourth bullet point appears, at its highest, to be a suggestion that the plaintiff’s appeal was rejected because she had, in effect, made application out of time for the special consideration. If that is what the bullet point is intended to convey, it does not come to terms with the plaintiff’s submission as to why it was that she had applied out of time for the special consideration. If the bullet point does not rise to that level, it is an irrelevant matter which cannot provide a reason for concluding that exceptional circumstances were not demonstrated because it does no more than re-iterate a general entitlement open to all trainees.

21. [76]

    The plaintiff had a contractual right to have her application and appeal dealt with in accordance with the regulations of the defendant, including the right to procedural fairness. She had a right derived from the obligation of the Appeals Committee to give reasons for its decision to know that the Committee considered the argument she put forward, and if her argument was rejected, a right to know why it had been rejected by reference to the Policy.

22. [77]

    Contrary to the defendant’s submission that the Committee expressly considered the plaintiff’s father’s cancer diagnosis, nothing can be discerned from the reasons of the Committee that the Committee did otherwise than note that that diagnosis was one of the exceptional circumstances that she relied upon. The matter is not again mentioned in the reasons.

23. [78]

    The defendant drew attention to what McColl JA said in Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [153] contrasting a fair trial with a fair outcome, to suggest that the plaintiff had a fair trial and was really complaining about the outcome. The defendant submitted that the plaintiff was given the opportunity to put her case in writing and orally.

24. [79]

    Justice McColl said in Re Henry:

25. [80]

    The difficulty is, however, that from the reasons given by the Appeals Committee, it cannot be known whether a fair trial was had. While the plaintiff made the submissions she wished, nothing in the reasons shows that the very essence of her argument was considered. The Appeals Committee simply expressed a conclusion in terms of the Policy without offering any relevant reasons for that conclusion, contrary to what the regulations obliged it to do. What is being challenged here by the plaintiff is not the outcome but the processes that led to the outcome. The paucity of the reasoning leads to the only available conclusion that the Appeals Committee failed to respond to the plaintiff’s clearly articulated argument.

Is relief available?

1. [81]

   I have already made reference to what Campbell J said in McClelland v Burning Palms Surf Life Saving Club at [82]. That passage was approved by Basten JA in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd at [79]. The remarks in McClelland assumed that the remedies spoken of were available in the circumstances.

2. [82]

   The matter arose for consideration in Scandrett v Dowling (1992) 27 NSWLR 483. The question in that case was whether the Court should intervene in the affairs of the Anglican Church of Australia to prevent a bishop ordaining women to the priesthood if that ordination was a breach of the rules of the Church, being a voluntary association. Justice Mahoney said (at 503-504):

3. [83]

   The second paragraph quoted above was recently endorsed by the Court of Appeal in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; (2016) 340 ALR 560 at 32. That was a case where the decision of a committee of a domestic tribunal was challenged in circumstances where the tribunal was operating under contractual arrangements to which the plaintiff was not a party, and undertaking functions which were private as distinct from governmental. The primary judge had held, nevertheless, that the Court could intervene in aid of the private right asserted by the plaintiff. In so doing, the primary judge relied on Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242; [2001] NSWCA 162 and Australian Football League v Carlton Football Club Limited [1998] 2 VR 546.

4. [84]

   In Agricultural Societies Meagher JA, with whom Ward and Leeming JJA agreed, said:

5. [85]

   The defendant appeared to accept that there was a consensual arrangement between it and the plaintiff as a trainee under its program, and submitted that the content of the obligation owed by the defendant was informed by that arrangement.

6. [86]

   The Regulations make clear that the arrangements between the defendant and trainees in the position of the plaintiff are contractual arrangements. In particular, clause C1.6 of the Regulations is headed “Trainees’ Statement of Understanding” and provides”

7. [87]

   Other provisions of the Regulations make clear that a trainee registration form must be provided to the College and a fee paid on an annual basis. In addition, under clause A2.5.2, a fee is payable with the lodgement of an appeal to the Appeals Committee.

8. [88]

   The result must be that the Regulation (A2.9.5) requiring the Appeals Committee to act according to the rules of procedural fairness is a contractual obligation undertaken by the defendant to a person in the position of the plaintiff. In accordance with what was said in Scandrett v Dowling and Agricultural Societies, that obligation is sufficient to justify relief from this Court in aid of that obligation. Such relief will, as Campbell J said in McClelland, ordinarily amount to a declaration of invalidity and an injunction to ensure the declaration is effective to achieve its purpose.

9. [89]

   The defendant accepted that if the Court found in favour of the plaintiff in respect of the relief in prayers 1 and 2, it would be appropriate to make the orders sought in prayer 3 being the declaration of invalidity. The defendant submitted, however, that orders in terms of prayers 4 or 5, setting the decision aside or remitting the matter, should not be made.

10. [90]

    The defendant submitted that the summons does not seek either an order in the nature of specific performance nor a mandatory injunction, and that prayers 4 and 5 should not be regarded as seeking such relief. The defendant also submitted that if those forms of relief are what is intended by prayers 4 and 5, both have discretionary aspects to them about which the defendant would be entitled to put on evidence. However, the defendant submitted, as the prayers were not understood in that way, the defendant was not prepared with that evidence. The defendant submitted that the only remedy sought by the plaintiff, flowing from such cases as McClelland and Chase Oyster Bar, is a declaration.

11. [91]

    In my opinion, prayers 4 and 5 should not be read as restrictively as the defendant asserts. What is made clear in McClelland is that the appropriate remedy for a voluntary association is a declaration that a particular act is invalid and an injunction against treating the act as valid. Prayer 5 asks that the matter be remitted to the Appeals Committee to be dealt with in accordance with law. In public law such an order would be an order in the nature of mandamus. In private law where the Court is acting in the auxiliary jurisdiction of equity, such an order takes the form of a mandatory injunction. If there are matters of discretion that arise before an injunction is granted, the defendant ought to have been in a position to identify those discretionary matters and lead any evidence in support of a submission that an injunction should not issue.

12. [92]

    Unless the defendant was prepared to accept that the effect of any declaration of invalidity of the Appeals Committee’s decision meant that the matter had to be reconsidered, the making of a declaration alone may be futile in the sense that it would leave the plaintiff in limbo with no ability to proceed further except, perhaps, to make another application long out of time for special consideration. That would create additional burdens on the plaintiff which would not obtain if the Appeals Committee was required by the Court to reconsider its invalid decision.

13. [93]

    For those reasons, I consider that, in addition to a declaration concerning the invalidity of the decision, a mandatory injunction should be ordered to require the Appeals Committee to consider the plaintiff’s existing appeal to that Committee in accordance with law as this judgment determines.

Conclusion

1. [94]

   The parties should bring in Short Minutes to give effect to these reasons and to provide for the payment of costs.