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Federal Court of Australia - Full Court |
Last Updated: 28 July 2009
FEDERAL COURT OF AUSTRALIA
Shahid v Australasian College of Dermatologists [2008] FCAFC 72
CORRIGENDUM.
KIRAN
RUBINA SHAHID v AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
WAD 113 OF
2007
BRANSON, STONE AND JESSUP JJ
9 MAY 2008
(CORRIGENDUM 2 JUNE 2008)
MELBOURNE (HEARD IN PERTH)
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IN THE FEDERAL COURT OF AUSTRALIA
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WESTERN AUSTRALIA DISTRICT REGISTRY
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WAD 113 OF 2007
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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KIRAN RUBINA SHAHID
Appellant |
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AND:
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AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
Respondent |
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JUDGES:
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BRANSON, STONE AND JESSUP JJ
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DATE OF ORDER:
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9 MAY 2008
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WHERE MADE:
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MELBOURNE (HEARD IN PERTH)
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CORRIGENDUM
1 On page 106 "19 & 20 November 2008" should read "19 & 20 November 2007".
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I certify that the preceding paragraph is a true copy of the Corrigendum to
the Reasons for Judgment of the Court.
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Associate:
Dated: 2 June 2008
FEDERAL COURT OF AUSTRALIA
Shahid v Australasian College of Dermatologists [2008] FCAFC 72
TRADE PRACTICES – College of
medical specialists having procedures for admission to membership –
Representations by College as to characteristics
of procedures – Whether
made "in trade or commerce" – Whether made "in any professional activity"
– Whether false,
misleading or deceptive.
EVIDENCE –
Statutory provision proscribing misleading conduct with respect to services
– Whether creates offence – Whether
proof beyond reasonable doubt
required.
CONTRACT – Intention to create legal
relations.
DAMAGES – Anxiety and distress – Whether
damages available for breach of contract or under statute – Loss of
opportunity
– Whether damages available where conceded no real prospect of
success – Out-of-pocket expenses incurred as a result
of contravention of
statute – Legal expenses associated with pointless proceeding –
Requirements of proof.
Fair Trading
Act 1987 (WA) ss 10, 12, 18, 79
Trade Practices Act 1974
(Cth) ss 52, 53, 55A, 79, 82,
87
Baltic Shipping Co v Dillon
[1993] HCA 4; (1993) 176 CLR 344
Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76
CLR 1
Collings Construction Co Pty Ltd v Australian Competition and
Consumer Commission (1998) 43 NSWLR 131
Concrete Constructions (NSW)
Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594
Demagogue Pty Ltd v
Ramensky [1992] FCA 557; (1992) 39 FCR 31
Durant v Greiner (1990) 21 NSWLR
119
Edwards v Skyways Limited [1964] 1 All ER 494
Ermogenous v
Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Fawke v
Holloway [1986] VR 411
Giannarelli v Wraith [1988] HCA 52; (1998) 165 CLR
543
Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64
Helmos Enterprises
Pty Ltd v Jaylor Pty Ltd [2005] NSWSC 235
Holman v Deol [1979] 1
NSWLR 640
Holt v Biroka Pty Ltd (1988) 13 NSWLR 629
Hughes v
Western Australian Cricket Association (Inc) & Ors (1986) 19 FCR
10
Kelly v R [2004] HCA 12; (2004) 218 CLR 216
Lee v Evans [1964] HCA 65; (1964)
112 CLR 276
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR
494
Monroe Topple & Assoc Pty Ltd v Institute of Chartered Accountants
in Australia [2002] FCAFC 197; (2002) 122 FCR 110
Murphy v Overton Investments Pty
Ltd [2004] HCA 3; (2004) 216 CLR 388
Orion Insurance Co PLC v Sphere Drake Insurance
PLC [1992] 1 Lloyds Rep 239
Pirt Biotechnologies Pty Ltd v Pirtferm
Ltd [2001] WASCA 96
Plimer v Roberts (1997) 80 FCR 303
Prestia v Aknar (1996) 40 NSWLR 165
Re Ku-ring-gai Co-operative
Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134
Trade Practices
Commission v J & R Enterprises Pty Ltd (1991) 99 ALR 325
KIRAN
RUBINA SHAHID v AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
WAD 113 OF
2007
BRANSON, STONE AND JESSUP JJ
9 MAY
2008
MELBOURNE (HEARD IN PERTH)
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
2. The orders made by the trial Judge on 11 May 2007 and 23 July 2007 be set aside.
3. The respondent pay the appellant damages in the sum of $15,384.92.
4. Within 14 days, the appellant file and serve a memorandum setting out the sum to which she claims to be entitled as interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), together with all necessary calculations.
5. Within 7 days of the service upon it of the memorandum referred to in the previous order, the respondent file and serve a memorandum of its response to the appellant’s claim for interest.
6. The respondent pay the appellant’s costs of the proceeding under appeal.
7. The respondent pay the appellant’s costs of the appeal.
8. The operation of orders 6 and 7 above be stayed for 28 days.
9. Each party have leave to file and serve, within 7 days, a memorandum of any proposal for the setting aside or variation of orders 6 and 7 above or either of them.
10. In the event that any such memorandum is so filed and served, within 7
days thereafter the other party file and serve a memorandum
setting out her or
its response to such proposal.
Note: Settlement and entry of orders is
dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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KIRAN RUBINA SHAHID
Appellant |
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AND:
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AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
Respondent |
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JUDGES:
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BRANSON, STONE AND JESSUP JJ
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DATE:
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9 MAY 2008
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PLACE:
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MELBOURNE (HEARD IN PERTH)
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REASONS FOR JUDGMENT
BRANSON AND STONE JJ:
2 We have had the advantage of reading in draft the judgment of Jessup J. We are in general agreement with his Honour on all issues raised by the appeal other than the question of whether the record-keeping representation and the meaningful appeal representation were made "in trade or commerce" within the meaning of s 52, s 53 and s 55A of the Trade Practices Act 1974 (Cth). On that question we respectfully take a different view from his Honour.
3 These reasons for judgment deal only with the issue on which we take a different view from Jessup J. They should be read together with his Honour’s judgment which provides the background against which the issue arises. We have adopted, so far as possible, the terminology used in that judgment.
4 The primary judge concluded that the College was at all material times a trading corporation. That conclusion is understandably not challenged on this appeal. As Jessup J notes the total revenue of the College (including its faculties) grew from $1,234,951 in 2000/01 to $1,891.684 in 2003/04. Over the same period its net annual profit grew from $145,754 to $344,535. In every year the largest single item of revenue in the accounts was shown as revenue from meetings, trade exhibitions, conferences and courses.
5 Notwithstanding that the College is a trading corporation, it may readily be accepted that not all of the College’s activities during the relevant period of time were undertaken "in trade or commerce". The critical issue is whether the record-keeping representation and the meaningful appeal representation were made by the College "in trade or commerce" within the meaning of the Trade Practices Act. The record-keeping representation was relevantly made by the publication by the College of the "Training Program Handbook – Information and Curriculum" ("the Handbook") for 2001, 2002, 2003 and 2004. The meaningful appeal representation was relevantly made by the publication of the Handbooks for 2002, 2003 and 2004.
6 The Handbooks, as their respective forewords indicate, present the detailed curriculum for the training necessary to achieve Fellowship of the College and the general regulations relating to training. They were, as the primary judge found, publications that contained material that was relevant to, and necessarily relied on by, practitioners such as the appellant who intended to apply for a position as a trainee registrar in dermatology. They additionally contained important material of relevance to all trainee registrars.
7 The leading authority on the meaning of the phrase "in trade or commerce" in s 52, s 53 and s 55A of the Trade Practices Act remains Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594 ("Concrete Constructions"). In that case Mr Nelson sued his employer for damages for personal injuries sustained during the course of his employment. He had fallen to the bottom of an air-conditioning shaft when a grate he was removing, in a manner said by his foreman to be safe, gave way. He claimed relief on the basis that the foreman’s conduct had been misleading or deceptive within the meaning of s 52 of the Trade Practices Act.
8 In Concrete Constructions the majority judgment of Mason CJ, Deane, Dawson and Gaudron JJ at 602 notes that the phrase "in trade or commerce" in s 52 has a restrictive operation in that it qualifies the prohibition against engaging in conduct of the kind specified by the section. At 602-603 their Honours observe that as a matter of language a prohibition against engaging in conduct "in trade or commerce" can be understood as encompassing all conduct undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business or alternatively as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. Their Honours at 603 take the view that when s 52 is read in the context of other provisions of the Trade Practices Act the second, or narrower, of the alternative constructions is the preferable construction. At 603-604 the majority explains that:
...the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. ... So construed, to borrow and adapt words used by Dixon J in a different context in Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 381, the words "in trade or commerce" refer to "the central conception" of trade or commerce and not to the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.9 Their Honours conclude at 604-605 that the allegedly misleading or deceptive conduct, which consisted of an internal communication by one employee to another in the course of their ordinary activities in and about the construction of a building, was not conduct "in trade or commerce" within the meaning of s 52.
10 Even with the guidance provided by the majority judgment in Concrete Constructions, as Davies J observed as a member of the Full Court in Plimer v Roberts (1997) 80 FCR 303 at 305:
...the precise limits of what is or is not trade and commerce or what act is in or is not in trade or commerce cannot be definitively stated...11 Plimer v Roberts concerned whether Dr Roberts had made misleading or deceptive statements "in trade or commerce" within the meaning of s 42 of the Fair Trading Act 1987 (NSW) when delivering a course of public lectures advancing the hypothesis that remnants of Noah’s Ark might lie in a boat-shaped geological formation near Mt Ararat in Eastern Turkey. Davies J at 306 expressed the view that it was necessary to consider "whether there was some business, trading or commercial activity in the course of which the lectures took place". In concluding that there was not, His Honour pointed out that there was no trading or commercial dealing or relationship between Dr Roberts and members of his audience or the purchasers of recordings of his lectures.
12 Lindgren J, with whose reasons for judgment Davies J substantially agreed, at 326 concluded that, subject to any effect of the definition of the expression "trade or commerce" in the Fair Trading Act, Concrete Constructions required an answer to the question whether Dr Roberts’ misrepresentations were made "in" trading or commercial dealings between persons. His Honour concluded that they were not, placing weight particularly on the fact that the delivery of lectures is not inherently a trading or commercial activity and that Dr Roberts had no commercial or trading relationship with the body under the auspices of which he delivered his lectures.
13 In Plimer v Roberts at 312 Branson J drew on language which the majority in Concrete Constructions had borrowed and adapted from words used by Dixon J in a different context in Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 (see [7] above). Her Honour identified the crucial issue to be determined as whether the conduct of Dr Roberts in making the relevant misrepresentations was conduct "in" the central conception of the trade of the body under the auspices of which he delivered his lectures or merely in the "immense field of activity" in which that body was engaged in the course of, or for the purposes of, its trade. Branson J chose to emphasise the "trade" part of the expression "trade and commerce" because, in her Honour’s view, it was uncontroversial that the relevant body was engaged in trade.
14 As mentioned above, each of the two relevant representations in this case was made by the annual publication by the College of the Handbook. From at least July 2001 the current version of the Handbook was available to be downloaded from the College’s website. The appellant obtained it this way – apparently free of charge.
15 The evidence before the primary judge disclosed that in February 2000 there were 50 posts in Australian institutions in which training programs in dermatology had been accredited by the College. By 2004 that number had increased to 61. It appears that the total number of trainees at any time is a multiple of the number of posts and the number of years of required training. That is, although only one post was available in Western Australia in any one year, while the period of training was four years, the total number of trainees in Western Australia was four.
16 His Honour found that the College was not paid for selecting trainee registrars nor for providing training. The training itself was done by Fellows of the College without charge. However, there were financial dealings between the College and those who sought selection as trainee registrars and those who achieved selection as trainee registrars. The evidence concerning those financial dealings is summarised in the following paragraphs.
17 Between 2000 and 2002 it was necessary to pass an examination to become a "provisional trainee" before seeking selection as a trainee registrar. That examination was called the Part I Examination in 2000 but by December 2001 it was called the Basic Sciences Examination. In April 2000 the fee to lodge an application to sit the Part I Examination was $1,250. This fee was paid by the appellant. The Handbook for 2002 reveals that by the time of its publication the application fee to sit the Basic Sciences Examination had increased to $1,400.
18 The Basic Sciences Examination was abolished in 2003. Thereafter knowledge of the basic sciences pertaining to dermatology was examined in the first 18 months of the training program in the Clinical Sciences Examination. At the time of the publication of the 2003 Handbook the fee for the Clinical Sciences Examination had not been determined. The Handbook for 2004 discloses that by the time of its publication the initial examinations sat by trainees were the Clinical Sciences Examination and the Clinical Pharmacology Examination. Trainees who were holders of the Basic Sciences Examination were exempt from the Clinical Sciences Examination but were required to pass the Clinical Pharmacology Examination. The fee for the combined Clinical Sciences Examination and Clinical Pharmacology Examination was $1,700 and for the Clinical Pharmacology Examination alone $1,400.
19 One of the texts on the reading list for the Part I Examination and its replacements was only available from the College. The appellant paid $240 for this text in November 1999. By 2004 the cost of the text had increased to $330. Another of the texts on the reading list was a set of notes produced by the College which could be purchased in 2000 for $120 and in 2004 for $132.
20 It appears that the College also conducted seminars which were relevant to the Part I Examination and its replacements. In February 2000 the appellant paid a fee of $350 to attend a Basic Skin Biology seminar run by the College which was relevant to the Part I Examination. This seminar was presumably similar to the accredited training and assessment courses referred to in the Handbook for 2001 which stated:
Periodically the College will conduct accredited training and assessment courses. This will include courses in dermatological sciences for Part I candidates as well as courses in superficial radiotherapy, medico-legal issues, statistics, evidence based medicine, ethics and various aspects of procedural dermatology. A fee may be charged in such circumstances.21 Upon passing the Part I Examination the appellant became a "provisional trainee" of the College and liable to pay a levy described as a Part I Holder Levy. This was an annual fee payable to the College by those who had passed the Part I Examination. Payment of the fee entitled a trainee to receive The Australasian Journal of Dermatology and correspondence from the College. The fee continued to be payable until either the trainee became a Fellow of the College or requested that his or her name be removed from the College’s correspondence list. The levy for 2001 was $300, for 2002 it was $400 and for 2003 it was $1,000. By 2004 it was designated a training levy and had risen to $1,100 plus GST.
22 The evidence discloses that trainee registrars were a significant pool of actual and potential attendees for meetings and conferences organised by the College. For example, para 1.6 of the Handbook for 2000 stated:
• Trainees are expected to attend all scientific sessions of the Annual Scientific Meeting of the College. They are also expected to attend any associated registrar training sessions held in conjunction with the Annual Scientific Meeting and are encouraged to attend the clinical meeting and other ancillary meetings which may also be held at the time. For trainees who commenced training in 1999 it is a requirement that during their period of training they present at least one paper in the Registrars’ Forum component of the Annual Scientific Meeting or submit a poster presentation. The subject of this presentation can overlap with that of their publication requirement. A registration fee for trainees as determined by Council will apply.• Trainees are encouraged to attend the Spring Meetings of the College which are normally held every second year in November and any other meetings which the College may from time to time arrange.
• Trainees are expected to attend all clinical or other meetings organised by their State Faculties and individual training institutions during their period of training.
• Trainees are expected to attend the Biennial Training Conference of the College.
23 Similar statements are included in the Handbooks for 2001, 2002, 2003 and 2004. However, in each of those years the Handbook disclosed that it was a requirement that trainees attend the Biennial Training Conference of the College at least once (but preferably twice) during the course of their training. As the primary judge noted, the Annual Scientific Meeting of the College was the largest single income/expenditure item in its financial statements "by a very long measure". His Honour described it as "a significant commercial enterprise".
24 The Handbooks for 2000 and 2001 disclosed that the final examination for trainees was the Part II examination. The fee payable on application for admission to the Part II Examination in those years was $1,750. The Handbooks for 2002 and 2003 disclosed that the name of the final examination for trainees had been changed to the Fellowship Examination and the fee payable in respect of the examination was $2,200. The Handbook for 2004 disclosed that the fee for the Fellowship Examination had increased to $2,500.
25 The Handbook for 2000 advised that an appeals process was then "in development". Appendix I of the Handbook for 2001 outlined an appeals process by which any person adversely affected by a decision of any Board or Committee of the College in relation to admission to Fellowship or termination of Fellowship could have his or her grievances addressed. The fee then payable on lodgement of an appeal was $1,500. The Handbook for 2004 reveals that by January 2004 this fee had been increased to $5,000 plus GST.
26 In our view, in reaching a judgment on whether the College published its Handbooks "in trade or commerce", it is important to consider the cumulative significance of the above evidence rather than to consider each aspect of the evidence as though it stood alone. Additionally, it must be borne in mind that the words "trade" and "commerce" in s 52, and other relevant provisions of the Trade Practices Act, carry their ordinary meanings. In Concrete Constructions at 602 the majority described them as "terms of common knowledge of the widest import". In Re Ku-ring-gai Co-operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134 at 167 Deane J said of these terms:
They are not restricted to dealings or communications which can properly be described as being at arm's length in the sense that they are within open markets or between strangers or have a dominant objective of profit-making. They are apt to include commercial or business dealings in finance between a company and its members which are not within the mainstream of ordinary commercial activities and which, while being commercial in character, are marked by a degree of altruism which is not compatible with a dominant objective of profit-making.27 In our view, the evidence outlined above supports the conclusion that the College had a commercial relationship with practitioners, such as the appellant, who intended to apply for a position as a trainee registrar and with those who obtained such positions. It charged them significant examination fees. It generated further revenue from them from the sale of prescribed texts and the conduct of seminars and courses relevant to their examinations and training – some of which it required trainee registrars to attend. It subjected them, initially upon passing the Part I Examination and in later years upon their commencing training as a registrar, to an annual levy. If they chose to challenge decisions of the College affecting their admission to training or their acceptance as Fellows of the College they were required to pay substantial fees.
28 The financial statements of the College disclose, as the primary judge found, that the revenue generated by the College from the activities outlined above was considerable.
29 The publication of the Handbooks was conduct of the College specifically directed to practitioners who intended to apply for positions as trainee registrars and also those who obtained such positions; that is, to practitioners with whom it had a commercial relationship. The Handbooks, by reason of their content, were an important element of that relationship. Their publication was therefore, as it seems to us, conduct "in the central conception" of the College’s commercial activities.
30 We therefore conclude that the record-keeping representations, which were made by the publication of the Handbooks for 2001, 2002, 2003 and 2004, and the meaningful appeal representations, which were relevantly made by the publication of the Handbooks for 2002, 2003 and 2004, were representations made by the College "in trade or commerce" within the meaning of the Trade Practices Act.
31 As previously indicated we agree with Jessup J’s assessment of the
damages that should be awarded to the appellant and with
his Honour’s
conclusion that the award of those damages is supported by the relevant
provisions of the Fair Trading Act 1987 (WA). However, it follows from
our conclusion that the meaningful appeal representations were made by the
College "in trade or commerce"
within the meaning of the Trade Practices Act,
that the award of those damages is independently supported by ss 82 and 87
of the Trade Practices Act.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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KIRAN RUBINA SHAHID
Appellant |
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AND:
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AUSTRALASIAN COLLEGE OF DERMATOLOGISTS
Respondent |
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JUDGES:
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BRANSON, STONE & JESSUP JJ
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DATE:
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9 MAY 2008
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PLACE:
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PERTH
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REASONS FOR JUDGMENT
JESSUP J
INTRODUCTION
32 The appellant is a medical practitioner, engaged in general practice in Perth. During the 1990s, she developed an interest in dermatology. She understood that, in order to be recognised as a specialist (eg for the purposes of the Medicare rebate) in dermatology, a practitioner had to be a Fellow of The Australasian College of Dermatologists ("the College").
33 The College is a company limited by guarantee, the full members, or "Fellows", of which (in addition to its foundation members upon formation in 1966) are those medical practitioners who have become members in accordance with its Articles of Association. Over the years with which this appeal is concerned, the number of Fellows of the College ranged from 325 in 2000/01 to 362 in 2003/04. The College is governed by a Council, consisting of various office-bearers and elected councillors. Members of the College residing in each State and Territory of Australia, and in New Zealand, constitute a "regional faculty" of the College. Each faculty has a committee, which acts in an advisory capacity to the Council for the affairs of the College within the faculty, and may exercise powers on delegation by the Council. The faculty with which the appellant had dealings was the Western Australian faculty (referred to in these reasons as "the faculty").
34 A requirement of fellowship of the College was that the practitioner first have undertaken a period of supervised training in an accredited post over a period of 4-5 years. In each of the years from 2000 to 2004, the appellant applied for employment in the one accredited post of trainee registrar in dermatology at the Royal Perth Hospital ("the hospital"). Such employment was obtainable only on the recommendation of the College. In each of those years, the appellant was unsuccessful in securing that recommendation. She commenced proceedings in this court seeking declarations, injunctions and other remedies in relation to the process by which the College selected a practitioner other than herself to be recommended for employment at the hospital as trainee registrar in dermatology. By a judgment given on 11 May 2007, her application was dismissed. The present proceeding is her appeal from that judgment.
35 According to a publication of the College entitled "Training Programme Handbook – Information and Curriculum" which the appellant obtained in February 2000, there were then 50 posts in Australian institutions for which training programs in dermatology had been accredited by the College: 19 in New South Wales, 13 in Victoria, 9 in Queensland, 5 in South Australia and 4 in Western Australia. In the case of Western Australia, the appointment was to the staff of the hospital, but in practice, the registrars worked both there and, by a system of rotation, at three other hospitals in Perth. At the time, the period of training required by the College was four years, which meant that there was a registrar in training in each of the four years. In other words, although there were four posts, only one new registrar was appointed each year. That remained the case over the period which is relevant to this proceeding, notwithstanding that, at some point, the required period of training was increased to five years.
36 The means by which trainee registrars were selected for employment at the hospital varied in point of detail over the years with which this proceeding is concerned, but at all times a critical feature was that it was the College, not the hospital, that conducted the selection process and selected the applicant who would be successful. Having made the selection, the College recommended the employment of the successful applicant to the hospital, and that recommendation was, absent exceptional circumstances (which were not said to exist in the relevant years), accepted as a matter of course. The selection process involved the submission of a written application with supporting materials, the short-listing of some applicants for interview, the conduct of the interviews and the making of a selection from amongst those interviewed. The process was the responsibility of a selection committee which was constituted each year, but which, it seems, usually involved some continuity of membership.
37 The appellant applied for appointment as trainee registrar in dermatology at the hospital in 2000, for the position commencing in early 2001, and in each of the four succeeding years, for the position which commenced early in the year following in each case. Although it was open to her to have done so, she did not apply for appointment at any other institution. As mentioned above, none of her applications was successful. It appears to have been common ground that the contest to secure the single position which became available at the hospital each year was very competitive. On appeal, the appellant did not contend that she ought to have been held to be the best qualified applicant in any year, or that, absent the things she alleges in this proceeding, she would most likely have been the single successful applicant. On each of the three most recent occasions (applications made in 2002, 2003 and 2004) the appellant lodged an internal appeal against the rejection of her application. As things transpired, none of those appeals was heard.
38 The appellant’s claims in the proceeding involved allegations that the College had contravened s 52, pars (aa) and (g) of s 53 and s 55A of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act") and s 10, pars (b) and (l) of s 12 and s 18 of the Fair Trading Act 1987 (WA) ("the Fair Trading Act") and had breached contracts into which it had entered with her. At the core of the appellant’s case was a series of allegations of misleading representations said to have been made to her by, or with the authority of, the College about the attributes which would best befit her to make a successful application for a training appointment, about the procedures and protocols which the College had in place with respect to its selection process and about rights of appeal which were said to be available to an unsuccessful applicant such as the appellant. The appellant also alleged that the legal framework under which she lodged appeals in three of the relevant years was contractual, and that the College had breached its contract by not providing rights of appeal as it had promised.
39 The appellant’s case under the Trade Practices Act required first the resolution of the question whether the College was a trading corporation within the meaning of that Act. According to the report of the Council of the College in each of the years with which this appeal is concerned, the "principal" activities of the College were –
(a) Promotion of dermatological research and training; and(b) Organisation of scientific meetings; and
(c) Conduct of examinations and awarding of diplomas to successful candidates.
The annual reports of the College show that it was administered by honorary officers, assisted by a paid staff, including a chief executive officer. In addition to the Board of Censors, to which further reference will be made below, there were many committees (in the region of 15-18 over the years) of Fellows of the College which contributed their reports to the annual report.
40 Over the years in question, the total revenue of the College (including the revenue of the faculties) grew from $1,234,951 in 2000/01 to $1,891,684 in 2003/04. Over the same period, the net profit shown in the accounts of the College grew from $145,754 to $344,535. In every year the largest single item of revenue in the accounts was shown as revenue from meetings, trade exhibitions, conferences and courses. In 2001/02 this item represented about 45%, and in 2003/04 it represented about 46%, of total revenue. In addition, there was an item described as "training projects revenue" which was about 12% and about 7% of revenue in each of these years respectively. The item "revenue from members" was about 29% of total revenue in each of 2001/02 and 2003/04.
41 The trial Judge observed that the activities of the College were "directed to the provision of services". To some extent that was not done for reward: there was no payment by the hospital for the College undertaking the process of selection of trainee registrars, and the training itself (ie of the registrars) was done by Fellows of the College without charge. However, his Honour continued:
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 [R v Judges of FCA & Adamson; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190] at 239 per Murphy J.
I do not consider the trading activities of the respondent to be insubstantial. As in Australian Beauty Trade [The Australian Beauty Trade Suppliers Limited v Conference and Exhibition Organisers Pty Limited (1991)] 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.
There is no challenge to his Honour’s finding that the College was a trading corporation within the meaning of the Trade Practices Act.
42 In the way the matter was approached by his Honour, the next question was whether the College’s conduct which the applicant impugned was "in trade or commerce". His Honour dealt with that question globally, rather than by reference to particular instances of conduct found to have occurred, or particular representations found to have been made. He held that none of the conduct alleged by the appellant had occurred, and none of the representations had been made, in trade or commerce as required by the provisions of the Trade Practices Act upon which she relied. His Honour also found that the conduct had not occurred, and the representations had not been made, in a professional activity under the extended definition of "trade or commerce" in the Fair Trading Act. The appellant appeals against those conclusions.
43 Notwithstanding that the nature of the conclusions just referred to was fatal to the appellant’s statutory case, the trial Judge proceeded to consider whether the conduct alleged for the purposes of ss 52 and 55A, and the representations alleged for the purposes of s 53, of the Trade Practices Act had occurred, and if so whether the conduct was misleading, or the representations were false or misleading, respectively. Of the many allegations of false or misleading representations made at trial, there were two that, according to the appellant’s case on appeal, were, at least effectively, upheld by his Honour. Whether that is so is not altogether clear from his Honour’s reasons, and is an issue referred to further below. It is sufficient at this point to note that the College conducted its case on the appeal as though the allegations in question had been upheld by the trial Judge. The appellant does not challenge his Honour’s findings that the representations, other than those two, either were not made or were not false or misleading. His Honour said that, but for his holding on the trade or commerce point, he would have held that those two representations involved contraventions of s 52, and of pars (aa) and (g) of s 53, of the Trade Practices Act. However, he indicated that he would not have been satisfied beyond reasonable doubt that any conduct of the College had been "liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services" as required by s 55A of that Act. In each of these respects, his Honour made no specific reference to the relevant provisions of the Fair Trading Act.
44 With respect to ss 52 and 53 of the Trade Practices Act, the appellant’s case on appeal was that, once his Honour’s error on the trade or commerce point was corrected, she had the benefit of positive findings with respect to the two representations which had been found to be misleading, or false, and that she ought now to have judgment in relevant respects. With respect to s 55A, the appellant’s case was that his Honour’s view that proof beyond reasonable doubt was required was in error, and that, at least with respect to the two representations found to be misleading or false, it should be found on a balance of probabilities that the College’s conduct had been liable to mislead the public. The appellant’s case did not deal expressly with the corresponding provisions of the Fair Trading Act, but it was implicit that she made the same submissions in relation to them as were made on her behalf in relation to the Trade Practices Act.
45 On the contract claim, his Honour found that the transaction by which the appellant lodged an internal appeal on each of three occasions upon which she had been unsuccessful before the selection committee was not accompanied by an intention to create legal relations and was not, therefore, contractual. The appellant also appeals against that finding.
46 By Notice of Motion filed on 24 October 2007, the Australian Competition and Consumer Commission ("the Commission") sought leave to intervene in the appeal. When the appeal came on for hearing on 19 November 2007, counsel for the Commission moved in accordance with that notice, and sought to rely upon written submissions which had been filed. Neither party opposed the application for leave. The court took the view that leave should be granted, but subject to the condition that the Commission’s participation in the hearing of the appeal be confined to reliance upon its written submissions. To the extent that the Commission sought to raise questions of principle, those questions were sufficiently, and comprehensively, dealt with in those submissions (and, of course, in the very comprehensive submissions which the parties themselves made). To the extent that the Commission sought to agitate questions of fact, or to characterise the facts in particular ways, the court took the view that those questions and characterisations were most appropriately dealt with by the parties, and that there was little that the Commission could legitimately add. Although the written submissions filed by the Commission were of assistance, there was no particular respect in which those submissions dealt with a subject in a way conspicuously different from the approach taken by one or both of the parties in relevant respects. In the result, it has not been necessary to make specific reference to the submissions in the balance of these reasons.
47 It is necessary to commence by setting out the facts which bear upon the issues agitated on appeal, and in this respect to refer particularly to the provisions of the various training handbooks which were published by the College.
THE APPELLANT’S APPLICATION IN 2000
48 In May 1999, the appellant met with the secretary of the faculty, and enquired about the procedure for becoming a Fellow of the College. She was told that, before applying for a traineeship in dermatology, she had to sit the "Part I Examination". She decided not to sit the examination in that year, but to prepare herself to do so the following year, 2000. In November 1999, she purchased a textbook from the College. The book was available only from the College, and cost $240.
49 In February 2000, the appellant obtained a publication of the College entitled "Training Programme Handbook – Information and Curriculum". This was an important publication, and was published by the College annually. It contained the material which, relevantly to this appeal, the appellant contends involved misleading representations. Further reference to the actual provisions which remain relevant will appear later in these reasons. As the trial Judge pointed out, in the context of a practitioner such as the appellant who intended to apply for a position as a trainee registrar, each handbook contained material which was relevant, and which was necessarily relied on, in relation to the position which would commence at the start of the following year.
50 Also in February 2000, the appellant attended the Basic Skin Biology seminar (relevant to the Part I examination) conducted by the College in Sydney. She paid a fee of $350 for that seminar.
51 In April 2000, the appellant lodged her application to sit the Part I examination, and paid the required fee of $1250. In July 2000, the appellant sat and passed that examination. Thereupon she became a "provisional trainee" of the College. Having passed the examination, she was a trainee; but not having yet secured an appointment as a training registrar, her status as trainee was provisional.
52 The appellant applied for the position of training registrar in dermatology at the hospital which was to commence in January 2001. As mentioned above, she was unsuccessful. However, no representation upon which the appellant relies on appeal was made in the context of that application, and the appellant did not lodge an internal appeal. Nothing further, therefore, needs to be said about the appellant’s application in 2000, or about the contents of the handbook published in that year.
53 In December 2000, the College invoiced the appellant in the sum of $300, described as "Part I Holder Levy for 2001". This was an annual fee which was payable by those who had passed the Part I examination. Payment of it entitled a trainee to receive The Australasian Journal of Dermatology and other correspondence from the College. The fee continued to be payable until either the trainee became a fellow of the College or the trainee requested that his or her name be removed from the correspondence list. The appellant paid the invoice.
THE APPELLANT’S APPLICATION IN 2001
54 In July 2001, the appellant enquired with the College about the selection process for trainee registrar positions for the following year. She was told that the necessary forms were part of the training program handbook for 2001, and that the handbook could be downloaded from the College’s web site. The appellant downloaded the handbook. It will be necessary to refer to its contents in some detail.
55 In the Foreword of the handbook, there was some general information about the College. It was there stated:
The College is committed to providing the Australasian public with the highest quality care in dermatology. The overall objectives of the College, as stated in the Memorandum, are:
• to establish and maintain high standards of learning, skill and content in the practice of dermatology• to issue diplomas or other distinctions.
Fellowship of the Australasian College of Dermatologists is achieved following a period of specialised, supervised training and the successful completion of several examinations, both written and practical, in all aspects of the principles and practice of dermatology. Fellows can rightly be regarded as the ultimate authority in all matters pertaining to skin care and the diagnosis and treatment of all conditions affecting the skin. Within the College there are a number of specialised groups whose members have received extra training in their particular sub-specialty.
....
Training requirements and examinations are determined by the College. This handbook presents a detailed curriculum and general regulations relating to training and examinations. The curriculum has been formulated by the Board of Censors and approved by the Council of the College.
56 The handbook set out the requirements of admission to membership of the College, as follows:
1. Possession of a medical degree registrable in Australia.
2. At least two years acceptable training in a teaching hospital or equivalent recognised by College.
3. A pass in the Part 1 examination.
4. Satisfactory completion of 4 years of approved vocational training in dermatology.
5. Presentation of adequate evidence of experience and competence in all aspects of procedural dermatology as outlined in the curriculum.
6. To meet all requirements of the curriculum as directed by the Board of Censors.
7. A pass in both sections of the Part II examination.
8. Election to the College.
In a section headed "Training Program", the handbook summarised the constitution and role of the Board of Censors, and then dealt with the "Board of Training", as follows:
The Board of Training which is an advisory group to the Board of Censors consists of the Chief Censor (or his/her nominee) and the State Directors of Training. Each Faculty will appoint a Director of Training whose term is three years. The responsibilities of the Director of training are to oversee the training program as a whole in his/her State, particularly in regard to:
• ensuring that an adequate rotation scheme operates so that all trainees are exposed to all the various aspects of dermatology as outlined in the curriculum• ensuring that all requirements of the curriculum are met
• addressing any instances of trainees performing unsatisfactorily in any aspect of their training
• being responsible for ensuring that each trainee is assessed by an appropriately qualified dermatologist as being competent to perform those procedures outlined in the procedural dermatology curriculum.
57 Under the heading "Registrar Training for Fellowship of the Australasian College of Dermatologists", the following appeared in the handbook:
The minimum requirements for selection as a dermatology registrar in the training program of the Australasian College of Dermatologists are (in summary):
• Possession of a medical degree registrable in Australia• Satisfactory completion, since graduation, of a minimum of two years of acceptable training as defined in 1.2.2 in a teaching hospital or equivalent recognised by the College
• A pass in the Part 1 examination of the College
• A commitment to participate in, and complete, any accredited training post of the College as directed by the appropriate State Faculty Committee during the 4 year training program.
In exceptional circumstances some of the above requirements may be deleted or amended at the discretion of the Council of the College.
All training for Fellowship of the Australasian College of Dermatologists can only be prospectively approved by the Board of Censors and the Council. The only method of training acceptable to the Board of Censors is employment in approved registrar training posts in dermatology (Appendix 3). Such training posts are examined for accreditation by the Board of Censors on a regular basis. A period of training equivalent to 48 months in a full time accredited training position is required. Normal leave entitlements are acceptable as part of this period of training but a minimum period of 176 weeks of actual full time training is essential. Unpaid leave taken during this period of time will not be regarded as accredited training. Any unpaid leave taken during the training period will need to be made up at the completion of training in an accredited position.
A National Trainee Selection Guide has been developed to ensure uniformity and fairness in the selection process of dermatology registrars (Appendix 2). Candidates must apply for individual hospital posts in the manner designated in their State. An application must also be sent to the State Faculty Selection Committee through the Faculty Secretary or Chairman with a copy sent to the Honorary Secretary of the College. All registrar training posts are reviewed annually. To ensure reappointment trainees must fulfil all requirements of the training program and satisfy the Director of Training and the Chief Censor that they have satisfactorily completed that year of training. Under normal circumstances a trainee may not be reappointed once the required 48 months training program has been completed except in special circumstances as determined by the Council. Retrospective accreditation is not given.
The minimum requirements for normal training posts in Australia and overseas are:
• four supervised general dermatology clinics per week (adult and/or paediatric) where the trainee is directly responsible for patient care• one dermatropathology session per week
• one dermatological surgery session per week
• attendance at specialty clinics, eg patch testing
• exposure to dermatology inpatients and dermatological referrals from other specialties
• availability of library and other support facilities to enable adequate study
• attendance at teaching sessions on all aspects of the curriculum
Appendix 3 set out the approved training posts in the various institutions (referred to above at par 35).
58 Appendix 2 of the handbook contained the "National Trainee Selection Guide". It included a statement of principles, including that merit was the "sole criterion", and that the College –
... aims to select into its training program individuals who are able to demonstrate that they have the abilities, qualifications, experience, standard of work performance and personal qualities which will enable them to satisfactorily perform all the required duties of a dermatology registrar, achieve all the objectives of the training scheme as outlined in the College’s Training Program Handbook and become a skilled and competent clinical Dermatologist.
59 It was stated that interviews would be granted after assessment of curricula vitae and referees’ reports. The text continued:
Normally at least twice as many interviews will be granted as the number of training positions available in a particular State. No trainee will be selected into a registrar training position without an interview. The sole aim of all questions during the selection process is to select the best and most appropriate candidates for register training positions in dermatology. Questions will contain no reference to any personal or domestic circumstances of the candidate unless they are relevant nor any other matters not directly relevant to the stated claim.
60 The minimum eligibility requirements for selection for training, and the desired attributes of trainees, were set out. Under the heading "Selection Process", the following appeared:
The selection process will be open, transparent and accountable. Everyone who fulfils the eligibility criteria will be given an opportunity to compete for available training positions. There is a limited number of dermatology registrar training positions available. A pass in the Part 1 examination of the College does not guarantee selection for a training position.
61 It was stated that a "general advertisement" would be placed in the national press, and in the Medical Journal of Australia, advising potential trainees of the positions available and the means by which applications might be submitted. However, it was noted that, since there was variation between States as to the application process for hospital-based positions, candidates were advised to "follow the requirements of the State in which they are applying for a position". That might, it was said, involve responding to advertisements placed by hospitals or health authorities.
62 An application form was an addendum to Appendix 2 in the handbook. That took the form of a letter (presumably from the College) to the "potential applicant". The letter opened as follows:
Herewith the procedure to apply for a registrar training position in dermatology in the training program of the Australasian College of Dermatologists.
To apply for such a position, please complete all parts of this application form. Typed applications only will be accepted. Also please include passport style photographs. You are requested to forward copies of the application form, together with your curriculum vitae and photograph to the hospital(s) or health authority where the positions(s) which you 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. You are required to forward ... copies of your application, curriculum vitae and photograph to the Chairman or Secretary of the relevant State Faculty of the College for dissemination to members of the Selection Committee. However only one copy of ‘publications/articles’ needs to be sent marked ‘Chairman Only’.
The letter referred to the applicant’s duty of disclosure, and continued:
If you fail to provide all relevant information truthfully and completely to the relevant hospital(s) and/or health authority, appropriate State Faculty and the Australasian College of Dermatologists or if the information provided is fraudulent or misleading in any way, the State Faculty Selection Committee is entitled to withdraw the offer of or terminate any appointment to a dermatology registrar training position at any time.
The balance of the addendum was a form on which the applicant was required to insert his or her particulars. Although described as an "application form", the form in the addendum made no provision for the applicant to make an express statement of application to any body or institution.
63 Returning to Appendix 2 of the handbook, comprehensive details of the selection process itself were set out. The constitution of the selection committee was a matter for each faculty, but it was suggested that the committee should include –
... the Heads of Departments (or their nominees) of the training institutions in that State, the State Director of Training, an independent representative from another medical specialty or training institution and, if practical, a lay person as well as the Chairman of the Faculty who will act as the Chairman of the committee. ...
As to the selection of applicants for interview, the appendix stated:
The Selection Committee will meet and consider all applications with reference to the candidates curriculum vitae and reports, both written and verbal, from referees and other persons if applicable. The committee will decide which candidates should be selected for interview. All applications will be considered purely on merit.
The criteria by which the interview committee was to be guided were set out. Under the sub-heading "Selection Procedure", the following was stated:
The final selection of trainees will take into account all aspects of the selection process namely the curriculum vitae, referees reports and reports from other persons (if applicable) and the interview. A meeting of the full Selection Committee (which includes or is the same as the Interview Committee) will take place as soon as possible after the interviews to determine the Committee’s recommendations of candidates for available training positions. The final selection is made by a Hospital Committee/Administrator or Health Authority.....
The College recognises that the College’s selection process should be capable of withstanding external scrutiny.
After final selections are made and individual training positions assigned successful candidates will be advised by the relevant hospital and/or health authority.
The appellant submitted before the trial Judge that the penultimate sentence in this passage involved a representation that the selection process would be capable of withstanding external scrutiny, that it amounted to a representation as to a future matter, and that the College had not proved the existence of reasonable grounds, as required by s 51A of the Trade Practices Act. His Honour rejected that submission, on the basis that the statement was aspirational, was not a statement of fact and was not, therefore, a representation. That conclusion is not challenged on appeal.
64 The next sub-heading in the appendix was "Documentation". Under it the following appeared:
A record of proceedings of both the Selection and Interview Committees will be kept for a minimum period of 6 years in a secure manner at the College premises with access only by the President, Censor in Chief or Secretary of the College.
The appellant submitted before the trial Judge that so much of that sentence as ends with the word "premises" (referred to hereafter as the "record-keeping representation") amounted to a representation as to a future matter, and that the College had not proved the existence of reasonable grounds, as required by s 51A of the Trade Practices Act. His Honour found that some records were kept, but subject to defects to which he referred. However, he found also that, at the time when the handbook was published, the College had reasonable grounds for making this statement. That conclusion is not challenged on appeal.
65 Leaving Appendix 2 and returning to the body of the handbook, under the heading "Scope of Training", the following appeared in the handbook:
The requirements of the training program are detailed in the College curriculum which forms part of this book.
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.
A knowledge of and practical competence in the various aspects of procedural dermatology as outlined in this section of the curriculum must be acquired. Adequate logbooks as designated must be kept.
Periodically the College will conduct accredited training and assessment courses. This will include courses in dermatological sciences for Part 1 candidates as well as courses in superficial radiotherapy, medico-legal issues, statistics, evidence based medicine, ethics and various aspects of procedural dermatology. A fee may be charged in such circumstances.
66 The handbook noted that assessment for Fellowship of the College was carried out both by formative and by summative assessment processes. These are referred to further below. The summative assessment was by way of examination. Candidates were required to lodge applications for admission to each of the Part I and the Part II examinations. Fees of $1,250 and $1,750 respectively were payable on application. As noted above, the applicant had paid her fee of $1,250 upon applying for admission to the Part I examination. The handbook also provided for the fee, or levy, of $300 p.a for trainees of the College and those who had passed the Part I examination. That was the fee referred to in par 53 above.
67 Under the heading "Scientific Meeting", the handbook set out the meetings, conferences etc which trainees were required or encouraged to attend. A trainee was expected to attend –
• all scientific sessions of the annual scientific meeting of the College and any associated registrar training sessions held in conjunction with that meeting;
• all clinical and other meetings held by his or her faculty, and by the relevant training institution, during the period of training; and
• the biennial training conference of the College.
In addition, a trainee was encouraged to attend –
• the clinical meeting, and any ancillary meetings, held at the time of the annual scientific meeting of the College;
• the spring meetings of the College (normally held every second November), "and any other meetings which the College may from time to time arrange".
There were also requirements that trainees publish in the Journal and submit a paper in the registrars’ forum of the annual scientific meeting, or submit a poster presentation.
68 The handbook next contained detailed provisions as to the curriculum. This material was organised into sections: objectives, ethics and dermatological training, Part I, Part II, and advanced training in procedural dermatology. Under "Ethics and Dermatological Training" the following was set out:
In the relationship that exists between College and its trainees the following principles will apply regarding the College:1. That there is an ongoing commitment by College to refine and develop the training and examination process so that trainees develop clinical skills to provide the best possible dermatological care.
2. That the Board of Censors discharges its duty with diligence, honesty and respect for trainees.
3. That an appeal mechanism exists.
The following expectations and rights apply to trainees:
1. Trainees have a right to a process of selection and a work environment which is safe from harassment and discrimination and that operates under the broad ethical principles previously enunciated.
2. Trainees have an obligation to be hard working, honest, punctual and diligent and to achieve the objectives of the curriculum relating to knowledge, understanding, skills and attitudes. Consideration of leave entitlements should be taken with due care for clinical responsibilities.
3. Trainees are expected to acquire knowledge and skills which reflect both scientific truth and narrative truth in order to be able to assist patients to make informed decisions about their health care. Narrative truth refers to truth and communication between doctor and patient. This requires skills in fostering a trusting relationship with the patient, in listening and being attentive to the patient’s concerns, in receiving what the patient wishes to communicate and responding clearly and honestly to the patient’s questions.
4. Trainees undergo regular assessment regarding their progress in acquiring this knowledge and skill. Feedback at each of these assessments will be provided to the trainee. Trainees are expected to have a willingness to accept criticism.
5. Trainees develop not only knowledge of beneficent and non-maleficent ("first do no harm") ethics, but also understand the importance of patient autonomy and develop an understanding of distributive justice and how this may impact on broad principles of ethical behaviour. Distributive justice looks at the needs of the individual and the cost to the community of meeting these needs.
6. Dermatological training involves rotation through different institutions and posts for varying times. Trainees must be prepared to accept relocation if this is deemed necessary as part of their experience.
7. Trainees have a duty to carry out all of the requirements of the post which they occupy as detailed by the employing hospital or health authority.
69 "Part I" dealt with the syllabus and related matters for the Part I examination. It opened with the following paragraph:
A pass in the Part 1 examination of the College is essential prior to being selected into the College training program unless exceptional circumstances exist which need to be adjudicated by the Council of the College on advice from the Board of Censors. Preparing for the Part 1 examination should include private study, attendance at tutorials organised by individual State Directors of Training (or their nominee) on a regular basis and attendance at a specified course on dermatological sciences organised by the College prior to sitting for the examination.70 The syllabus was set out. It concluded with a reading list, on which 7 texts were specified. One was the text which the appellant purchased from the College in November 1999. According to the handbook, the reason the book was available only from the College was that it was out of print and had been reproduced by the College with the permission of the copyright owners. Another of the texts was a set of notes produced by the College, and available from the College at a cost of $120. The syllabus also required articles in relevant journals (7 of which were named) to be read.
71 The syllabus for each of six components in the Part II curriculum was also detailed and, it appears, quite prescriptive. Under the heading "Procedural Dermatology" the following appeared:
Trainees should have a broad theoretical and practical knowledge of all aspects of procedural dermatology. In the first year of training attendance at supervised dermatological surgery clinics is required. Advanced surgical procedures should also be performed in a setting of supervised dermatological surgery clinics. Theoretical knowledge of procedures that trainees may not perform themselves directly, either during training or after graduation, is still essential (eg electron beam therapy, Mohs’ micrographic surgery and cosmetic laser skin resurfacing). It is the responsibility of the Director of Training in each State to ensure that trainees obtain at least observational exposure to these procedures. (See Assessment of Competence Form in the Training Program Record Book and Appendix 6).
On the subject of "practical competence in procedural dermatology", the handbook provided as follows:
It is acknowledged that a wide range of technical skills and dexterity will exist in trainees. Dermatology as a specialty may attract medically inclined individuals as well as those with a surgical preference. Some trainees may have low confidence in their technical abilities. Trainees should, with intensive training, be able to achieve a satisfactory level of technical and practical competence to satisfactorily complete all of the requirements of the Procedural Dermatology section of the curriculum.
Assessment of competence by an appropriately qualified dermatologist who is a member of the Australasian College of Dermatologists will be carried out on all aspects of procedural dermatology utilising the Assessment of Competence form (Appendix 6). This form, which forms part of the Training Program Record Book, will need to be completed prior to trainees sitting for the Part II examination.
The curriculum dealt with the subject of "essential practical skills in dermatological surgery" and with other like subjects. The reading list for the Part II examination referred to most of the texts, materials and articles that were set out on the Part I reading list, and a number of others besides.
72 Under the heading "Assessment Process" the handbook dealt with the subject of assessment for membership of the College. The process of assessment included formative and summative assessment. As to the former, the handbook provided as follows:
The Board of Censors regards the process of continuous (formative) assessment of great importance in the assessment of trainees for Fellowship of the College. This is carried out under the direction and supervision of the Heads of Departments of the training institutions in conjunction with the State Director of Training and under the overall supervision of the Board of Censors. It provides comprehensive assessment by suitably qualified dermatologists in:
• interviewing skills• clinical examination skills
• procedural dermatology skills
• professional conduct
73 Appendix 5 in the handbook was a series of pro-forma pages introduced by a front page headed "Trainee Appraisal Form – For the Fellowship of The Australasian College of Dermatologists – Six Monthly Report". Detailed appraisal forms for completion by every dermatologist in the relevant department with whom the trainee had had contact were set out. The system was that these forms, when completed, would be returned to the head of the department for collation of the results, which were then placed on a summary form. The process contemplated gradings from A to E in each of 12 areas.
74 Finally in relation to the handbook published in 2001, reference should be made to Appendix 4. There the handbook set out the requirements whereby a training program of an institution, such as a hospital, might become accredited by the College. Accreditation was given not to an institution as such, but to a training program for a registrar at the institution, such that an application for accreditation had to be made in respect of a particular training program which was to be followed by a particular individual. The appendix stated that accreditation for a program would be considered only if the head of training at the institution was a Fellow of the College. The head of the relevant department of dermatology (whether or not he or she was also the head of training) was also required to be a Fellow of the College. The appendix also contained detailed provisions as to the organisation and content of training programs. A pro forma application for accreditation was contained in the appendix, which required the giving of detailed and comprehensive particulars of the training program proposed for the registrar in question, the facilities available and the like.
75 In June 2001, the Metropolitan Health Service placed a series of job advertisements in the press. One section of the entry was headed "Rotating Interhospital Registrar Appointments". It stated: "The occupants of the posts rotate amongst the various teaching hospitals." In the case of dermatology, the application was to be addressed to the hospital. The commencement date was to be 21 January 2002. By letter to the faculty dated 10 July 2001, the appellant requested details of the selection criteria for the training position in dermatology. On 12 July, the secretary of the faculty referred the applicant to the handbook (described as the "training manual"), and continued:
Any further details you may require will need to be directed to the Personnel Officer at Royal Perth Hospital as the Registrar positions come within the hospital jurisdiction, and selection will be done by the selection committee of that hospital.
76 By letter dated 27 July 2001 addressed to the Senior Administrative Assistant (Clinical Services) at the hospital, the appellant applied for an appointment as a rotating inter-hospital registrar in dermatology. She used an application form headed "Royal Perth Hospital – Application for Employment – Junior Medical Staff". She was invited by the secretary of the faculty to attend an interview in connection with her application, and she did so on 11 September 2001. By letter from the hospital dated 15 October 2001, the appellant was advised that her application had been unsuccessful. The appellant requested, and was granted, a feedback interview with the chairman of the selection committee, and this was held on 23 October 2001.
77 In November 2001, the College invoiced the appellant in the sum of $400, being the fee for those who had passed the "Basic Sciences Examination", previously known as the Part I Examination. The appellant paid the invoice. It seems that the fee had been increased from $300 since the publication of the 2001 handbook.
THE APPELLANT’S APPLICATION IN 2002
78 In January 2002, the appellant downloaded the training program handbook for 2002. The contents of the handbook did not depart in any presently relevant respect from those of the 2001 handbook, save that the Part I Examination was now referred to as the Basic Sciences Examination (for which the application fee was now $1,400), and the Part II Examination was now referred to as the Fellowship Examination (for which the application fee was now $2,200). Additionally, since 2002 was the first occasion on which the appellant lodged an internal appeal against the rejection of her application, it will be necessary to turn to the relevant parts of the handbook on that subject.
79 The provisions of the 2002 handbook which dealt with internal appeals were dealt with in Appendix 1 thereof. That appendix was headed "Appeals Process", and commenced with the following preamble:
The Appeals Process of the Australasian College of Dermatologists 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 or termination of Fellowship can have their grievances addressed in a properly constructed and formal manner. Any person with such a grievance will however be encouraged to first seek a reconsideration of the adverse decision in an informal reconsideration and review process which involves the original Committee/Board making the decision.
80 The appellant submitted before the trial Judge that the first sentence of this extract was a representation as to a future matter, and that the College had not proved the existence of reasonable grounds, as required by s 51A of the Trade Practices Act. His Honour held that the College had had reasonable grounds for the making of the representation. That conclusion is not challenged on appeal.
81 The appendix provided for the convening of an appeals committee on the instructions of the president or the chief censor. It seems that what was contemplated was the convening of a committee to deal with a particular appeal. The constitution of the committee was provided for. An appeal lay against various specified decisions by boards or committees of the College, including (relevantly for present purposes) decisions by the Council in relation to applications for admission to Fellowship of the College, and:
A decision by review committee of a State Faculty to reject an appeal, or request for a review, by a candidate for an approved registrar post for an accredited training program against a decision that the candidate should not be appointed to the approved registrar post ...
The appendix also contained the following qualification:
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 information 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.
The grounds of appeal were limited by the following provision:
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.
82 There was a fee for the lodgement of an appeal; at the time of the 2002 handbook, it was $1,500. The powers of the appeals committee, upon determination of an appeal, were to:
(i) confirm the decision which is the subject of the appeal;(ii) revoke the decision which is the subject of the appeal and refer the matter back to the Council or Committee who made the original decision for further consideration (upon such terms or conditions as the Appeals Committee may determine);
(iii) revoke the decision and make recommendations to Council as to an appropriate alternative decision;
(iv) if the Appeals Committee considers it appropriate to do so, to revoke the decision the subject of the appeal and make a new decision in substitution for the original decision.
(v) recommend to the Council whether part or all of the Application Fee for the Appeals Committee hearing should be refunded.
83 From the passage set out in par 79 above and other passages of the 2002 handbook, the appellant alleged that the following additional representation was implicitly made by the College in relation to its internal appeal process:
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 question whether the trial Judge upheld this allegation (which is hereafter referred to as the "meaningful appeal representation"), and, if so, the question whether his Honour held it to be misleading etc, are dealt with below.
84 Returning to the narrative, on 26 June 2002, the appellant completed an electronic application form headed "Application for the College of Dermatologists Training Program 2003". She emailed that to the secretary of the faculty. By email sent to the appellant on 27 June 2003, the CEO acknowledged receipt of the appellant’s application, and informed her that she was required to apply directly to the hospital. An attachment to that email was a document headed "The College’s Training Program 2003 – How to apply for a registrar training position in dermatology". The document opened as follows:
As there is variation between States regarding the application process for hospital based positions, candidates for dermatology registrar training positions should follow the requirements of the State in which they are applying for a position. This may involve responding to advertisements placed by hospitals and/or health authorities. You should also apply to the Australasian College of Dermatologists. For 2003 this will be done electronically.
85 By letter dated 26 July 2002 addressed to the Senior Administrative Assistant (Clinical Services) at the hospital, the appellant applied for an appointment as a rotating inter-hospital registrar in dermatology. She enclosed her supporting materials, as she had done the previous year. It seems that there were some 23 applicants for the position on this occasion, three of whom were interviewed. The appellant was not one of them. By letter dated 3 September 2002, the hospital advised the appellant that she had not been successful. There followed correspondence between the appellant and the faculty with a view to arranging a feedback interview with the chairman of the selection committee, and that interview was ultimately set down for 13 September 2002.
86 In the meantime, the appellant sent two letters on 9 September 2002. She wrote to the College itself in Sydney, enquiring about the appeals process. She asked about the process of "reconsideration of the adverse decision" which the handbook encouraged. She noted that the handbook did not contain any information about the process for such a reconsideration, and she requested details of that. She asked about the time limits, if any, for an appeal. And she sought clarification of the role of the hospital, noting that she had applied to the hospital, but that her application had been determined by the faculty. On 17 September 2002, the secretary of the College in Sydney responded to the appellant’s letter. He said that the process of reconsideration was an informal one, and accordingly was not the subject of any prescription in the handbook. The process enabled the clarification of any misunderstandings, for example, that might lead the committee to review its decision, or the applicant to "withdraw" (or, presumably, not to lodge) his or her appeal. There was a right to an appeal, regardless of whether there had been any informal reconsideration. As to the respective roles of the College and the hospital, the secretary’s letter said:
The College is unable to assist in relation to the role of the hospital or health authorities in Western Australia. Decisions to employ any particular staff are made by the hospital or health authority, and not by the College. The College accredits training posts, and the posts are then filled by the particular hospitals.
87 The appellant’s other letter of 9 September 2002 was sent to the hospital. She enquired about any rights she may have "to seek redress to any grievances". The Assistant Director of Clinical Services, Dr Stewart-Wynne, at the hospital responded the following day, advising the applicant to contact the chairman of the faculty in the first instance, and referring also to public sector standards on the process of recruitment, selection and appointment. They were said to set out "human resource management practices that should occur to ensure that due regard has been given to merit, equity and probity". Dr Stewart-Wynne advised the appellant to contact him if she thought that the standards had been breached in any way.
88 The appellant’s feedback interview was conducted on 13 September 2002 as arranged. In addition to the appellant and her husband, the chairman of the selection committee, the Assistant Director of Clinical Services at the hospital and the Administrative Assistant, Clinical Services at the hospital were present.
89 On 20 September 2002, the appellant wrote to Dr Stewart-Wynne seeking a meeting with him about concerns which she had as a result of what had been said at the feedback interview. Such a meeting was held on 23 September 2002, at which the appellant presented to Dr Stewart-Wynne a lengthy letter, in which she had set out what purported to be a detailed minute of the feedback meeting.
90 On 24 September 2002, the appellant wrote to the secretary of the faculty requesting "a reconsideration and review process" of the adverse decision on her application for the trainee registrar position at the hospital. She enclosed a copy of her letter to Dr Stewart-Wynne of 23 September 2002. She referred to the limited grounds of appeal in the handbook, and continued:
As is clear from the attached letter to Dr Stewart-Wynne, 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. In addition, relevant information was ignored or unfairly dismissed because the Committee wrongly concluded that certain qualifications and expertise was irrelevant – which, in fact, it was not. Finally, the decision made could not be justified on the facts and information before the Committee.
91 By letter dated 25 September 2002, the secretary replied to the appellant, stating that the selection committee would be reconvened, that an external observer would be appointed, and that the meeting would be minuted. The reconvened meeting occurred on 29 October 2002. By letter dated 6 November 2002, the secretary of the College informed the appellant that the original decision had been affirmed.
92 By letter dated 12 November 2002 to the College in Sydney, the appellant advised that she proposed formally to appeal against the committee’s original decision. She lodged her appeal by letter dated 22 November 2002. She commenced that letter as follows:
I am writing to request a formal appeal of an adverse decision dated 3rd of September 2002 regarding my application for a Trainee Registrar for a Rotating Dermatology Position at the Royal Perth Hospital, as made by the Original Selection Committee (the "Committee") for this position.
The appellant attached a copy of her letter of 23 September 2002 to Dr Stewart-Wynne. In her letter of 22 November, she repeated the paragraph in her letter to the secretary of the faculty of 24 September 2002 set out in par 90 above, but included therein the following additional allegation: "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." The appellant continued:
In refusing to reconsider or overturn the original decision of the Committee, the College provided little information as to why it would not do so, stating only that the original committee had given due recognition to my qualifications and research interests. As is clear from ATTACHMENT ‘A’, the original Selection Committee did not do so. Rather, it based its decision on an erroneous assessment of who best qualifies for an internship, dismissed my qualifications as ill suited for the position advertised and indicated a preference for persons with qualifications that are arguably not as strong as my own – qualifications which were carefully laid out for the Selection Committee but which the Selection Committee chose to ignore without any basis for doing so.
By bank cheque drawn on 25 November 2002, the appellant paid the appeal fee of $1,500.
93 The College did not formally acknowledge the lodgement of the appellant’s appeal. However, by 12 December 2002 the College had appointed solicitors to represent it in connection with the appeal. By a letter of that date, those solicitors corresponded with the practitioner who had by then been appointed by the appellant to represent her. They confirmed that they acted for the College, noted that the College had received a formal submission from the appellant, and requested that further correspondence be directed through their office.
THE APPELLANT’S APPLICATION IN 2003
94 In about January or February 2003, the appellant downloaded the training program handbook for 2003. In the Foreword it was announced that several major changes had been made to the training program. It was no longer a prerequisite that applicants have passed the basic sciences examination; instead, trainees were "expected to acquire the relevant basic sciences knowledge during the early stages of their training, as theoretical knowledge is most efficiently acquired in conjunction with its practical application." A new Clinical Services Examination had to be passed within the first 18 months of training. Trainees who commenced between January 2003 and December 2005 and who had passed the basic sciences examination would be exempt. The other major change was the extension of the training period from four to five years. The handbook retained the record-keeping representation and the passage under the heading "Appeals Process" set out at par 79 above. Save for an adjustment of the annual fee, or levy, from $400 to $1,000, there is nothing further of present relevance which should be noted in the 2003 handbook.
95 At about this time, the appellant also consulted an entry on the College’s web site, which contained the following advice:
For 2004 applications for a registrar training position in Dermatology will be done electronically. As there is variation between States regarding the application process for hospital based positions, candidates for dermatology registrar training positions should follow the requirements of the State in which they are applying for a position. This may involve responding to advertisements placed by hospitals and/or health authorities. You should also apply to the Australasian College of Dermatologists.
96 On 16 May 2003, the appellant wrote to the hospital, enquiring as to whether, in the light of that entry, she should apply to the hospital or to the College. In a reply sent on the same day, the Senior Administrative Assistant, Junior Medical Staff, advised the appellant that she should "submit the on-line application form which can be obtained through the College website."
97 On 27 May 2003, the appellant completed an electronic application form headed "Australasian College of Dermatologists – Application for Registrar Training Position" for a position commencing in 2004. She lodged that application with the faculty electronically, and also sent a copy of it to the faculty by ordinary mail.
98 On 7 June 2003, the Department of Health (WA) placed an advertisement in the press for a number of positions, including "Rotating Interhospital Registrar Appointments". It was stated that the occupants of the positions would "rotate" amongst the various teaching hospitals, and that the rotations were administered by the hospital. The advertisement continued: "Trainees currently in the system need to resubmit their application to the hospital." Dermatology was one of the specialities listed for these positions, and was within a limited group with respect to which the advertisement stated that applicants "must submit their application to the relevant College". On 12 June 2003, the appellant wrote to the secretary of the faculty, enquiring whether, in the light of the advertisement and the entry in the website set out in par 95 above, it was necessary for her to apply also to the hospital. She did not receive a response to that correspondence.
99 By letter dated 28 August 2003, the faculty thanked the appellant for her "application to the Dermatology Training Scheme in 2004", and informed her that there had been 34 applicants for the position and that her application had been unsuccessful. On 1 September 2003, the appellant requested a feedback interview with the chairman of the selection committee. The appellant was not provided with such an interview. By letter dated 9 September 2003, the College’s solicitors (engaged in relation to the appellant’s proceeding in this court, which had by then been instituted) informed the appellant’s practitioner (also so engaged) that, of the 34 applicants, six had been short-listed.
100 By letter dated 25 November 2003, the appellant appealed against the decision of the College to reject her application for the position of trainee registrar in dermatology commencing in 2004. She commenced that letter with a paragraph similar to that by which she had commenced her previous appeal (see par 92 above). Her grounds of appeal related to the composition of the selection committee, to the failure of the faculty to provide her with feedback, to the faculty’s use of its solicitors as a means of communication with the appellant in relation to the application and, non-specifically, to what was said to be a failure to observe the procedures required by the College’s policies and rules. The appellant paid the required fee of $1,650 upon lodgement of her appeal. By letter dated 22 December 2003, the secretary of the College informed the appellant that, "in May 2004" (corrected in later correspondence to May 2003) the appeal fee had been increased to $5,000. He enclosed a tax invoice for the balance, including GST – a sum of $3,850. In subsequent correspondence, the appellant maintained the position that the College was not entitled to increase the appeal fee in this way. The College asserted that the appellant was obliged to pay the higher fee. By letter dated 19 October 2004, solicitors for the appeal committee informed the appellant that, until full payment was made, the appeal could not proceed.
101 By letter dated 11 December 2003, the appellant applied for a position with the hospital as a "service registrar in dermatology". Her stated purpose of doing so was to obtain some training in the following year that might be recognised by the College in the event that either of her appeals was successful.
THE APPELLANT’S APPLICATION IN 2004
102 In about January 2004, the appellant downloaded the training program handbook for that year. It involved a considerable change in format from handbooks of previous years. For the first time, there were chapters so-called. Passages previously in the Foreword about the College generally were now either omitted or moved into a new introductory chapter, and the following statements were made (in the Foreword):
Formative assessment procedures within the training program are also being reviewed. The trainee appraisal process allows trainee performance in the workplace to be monitored throughout the course of their training, enabling any trainee who is experiencing problems in their training to be identified and assisted. All trainees will be appraised in May and November each year, with first year trainees having an additional appraisal in August. Both trainees and supervisors are reminded that this is not intended to be a punitive process, but rather one that assists the trainee to identify and meet their learning needs.
There will also be an increased focus on the role of the supervisor as educator. Supervisors are a crucial element in the education of trainees and it is, therefore, of utmost importance that their skills in teaching, providing constructive feedback and assessing trainees be developed. In order to facilitate this, a Supervisor of Training has been nominated for each training institution. These Supervisors will be expected to participate in a workshop which provides training in essential skills for clinical educators.
These changes foreshadow the College’s accreditation review by the Australian Medical Council (AMC), which will take place in 2006. College is required to meet specific standards in a range of areas, including trainee selection, supervision, assessment and evaluation, in order to be given continuing accreditation. As an institution of higher education and learning, this is the minimum standard to which we aspire.
103 In the introductory chapter, under the heading "Overview of Dermatology Training", the following appeared:
To become a specialist dermatologist it is necessary to complete a specified program of training and assessment, successful completion of which leads to Fellowship of the Australasian College of Dermatologists.
Below that, a series of steps was schematically set out: undergraduate education, post-university medical experience, the College’s training program, and admission to Fellowship. In the step involving the training program as such, it was stated that "[e]ntry to the program is highly competitive and generally many more applications are received than programs available". It was stated that "the trainee must" do a number of things, including "[s]atisfactorily complete five years of defined clinical and educational experiences in accredited training programs and submit all required documentation". The structure of the program was set out. The five years of training involved "three defined stages", namely basic training (2 years), advanced training (2 years) and a senior trainee year.
104 Chapter Two in the handbook was concerned with the subject of selection into the training program. Application forms were available from the College’s web site, and had to be submitted electronically. Supporting documentation was to be forwarded by mail. Further information could be obtained from State faculties.
105 Chapter Three in the handbook was entitled "Objectives of the Training Program", and was divided into three sections, each containing a series of bullet points. The sections dealt, respectively, with objectives relating to knowledge and understanding, objectives relating to skills and objectives relating to attitudes as they affected professional behaviour.
106 Chapter Four in the handbook was entitled "Teaching and Learning in the ACD Training Program". It opened with the following paragraph:
The ACD training program employs a range of teaching and learning methods to assist trainees develop the knowledge, skills and attitudes required of a competent dermatologist. It is an applied program based on recognised principles of adult education. Practical learning in teaching hospitals and a limited number of accredited private facilities is complemented by structured educational activities and independent learning.
107 The chapter dealt first with the subject of "Experiential Learning". That section opened as follows:
Much of the trainees’ learning throughout the training program is experimental. This educational method is emphasised because learning is more pervasive and permanent if the learner acquires and then applies knowledge, skills and attitudes in an immediate and relevant setting. The majority of training is spent in clinical placements where the trainee is responsible, under supervision, for the care of both outpatients and inpatients.
Trainees work in accredited training programs for all five years of training. Specialist dermatologists who are College Fellows provide teaching, close supervision and ongoing guidance and feedback on the clinical and non-clinical performance of each trainee. Specialists in related fields may provide teaching on various topics such as dermatopathology, infectious diseases, oncology and immunology. Trainees’ competence is closely monitored and responsibility for patient care is progressively increased according to skill level.
108 The "clinical training requirements" were set out. It was said that trainees "must spend 60 months full-time (or equivalent) in an accredited registrar training program". The chapter then set out the formal educational activities that were said to serve as an adjunct to practical training. It stated: "A fee may be charged for these meetings." Certain things were obligatory, namely –
• attendance at all scientific sessions of the Annual Scientific Meeting of the College "whenever possible";
• attendance at the "registrar training day" held in conjunction with the Annual Scientific Meeting;
• presentation of at least one paper in the registrars’ forum, or other session, of the Annual Scientific Meeting, or submission of a poster presentation at that meeting;
• attendance at the Biennial Training Conference of the College at least once (but preferably twice);
• attendance at all clinical and other meetings organised by State faculties and individual training institutions "whenever possible".
Additionally, there were other events of a training nature that trainees were encouraged to attend.
109 Chapter Five in the handbook set out the curriculum of the training program. It was divided into two sections: the clinical sciences curriculum and the Fellowship curriculum. The former opened with the following paragraph:
Knowledge of the basic sciences provides an important foundation for a thorough understanding of the clinical aspects of dermatology. Within the first 18 months of training trainees should have acquired detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin.
110 The detailed elements of the clinical sciences curriculum were set out. There were some differences from the reading list referred to in par 70 above, but the text which the appellant purchased was still on the list, and was still available only from the College because it was out of print and had been reproduced by the College with the permission of the copyright owners. The price of that text from the College was $330, including GST. The notes produced by the College were also still on the list, at a price of $132, including GST.
111 Chapter Six in the handbook dealt with the subject of "Assessment", both formative and summative. The section on formative assessment opened as follows:
Formative assessment is a crucial element of the assessment of trainees throughout the full duration of their training. The aim of formative assessment is to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Feedback is a crucial element of formative assessment. Feedback given as part of formative assessment helps trainees become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in:
• interviewing skills• clinical examination skills
• procedural dermatology skills
• professional conduct
• research skills
The appraisal forms were referred to, and set out in an appendix. These forms had to be completed three times in the first year of a registrar’s training by the supervising dermatologist and by the head of the relevant department.
112 The section on summative assessment indicated that the examinations required to be passed as part of the training program were three: the Clinical Sciences Examination, the Clinical Pharmacology Examination (each of which was required to be passed in the first 18 months of training) and the Fellowship Examination. Fees of $1,700 (for the Clinical Sciences Examination taken together with the Clinical Pharmacology Examination), $1,400 (for the Clinical Pharmacology Examination taken alone) and $2,500 (for the Fellowship Examination) were payable upon application for admission to these examinations.
113 Chapter Seven is not presently relevant. Chapter Eight was concerned with "Other Training Considerations", and included a list of the "Rights and Responsibilities of Trainees".
114 Under the heading "Costs of Training", it was said that trainees were "levied an annual fee", which was $1,100 plus GST in 2004. Under the heading "Management of the Training Program", it was stated that the program was overseen by the Board of Censors. The duties of the board, and of the Chief Censor, were set out. There was also a Director of Training appointed by each State faculty. It was said that he or she had "a key role in overseeing the training program", and that his or her duties included being involved in the selection and appointment of trainees, monitoring the performance of all trainees, liaising with supervisors and department heads regarding trainee performance, ensuring that an adequate rotation scheme operated and other significant duties concerning the progress of training both generally and in individual cases. The chapter also set out the duties of persons who, it seems, were engaged by the particular hospital or institution at which formative training was carried out, namely, the Supervisor of Training, the Clinical Supervisors and the Head of Department.
115 As to the appendices to the 2004 handbook, the only change from the contents outlined above in earlier years’ handbooks that is presently necessary to note was that, in the text concerning the "selection process" set out in par 60 above, the third and fourth sentences had been omitted. The handbook retained the record-keeping representation (now part of Appendix Four) and the passage under the heading "Appeals Process" set out at par 79 above (now part of Appendix Three).
116 By letter dated 12 May 2004 sent to the secretary of the faculty, the appellant applied for a registrar training position in dermatology for 2005. On 16 May 2004, she also lodged an electronic application with the College, on which occasion she paid an application fee of $220. At least so far as revealed by the evidence, this was the only occasion on which the appellant was required to pay a fee upon such an application. On 12 July 2004, the appellant enquired of the College whether, in addition to having applied in these ways, she was required also to respond to the advertisement placed by the hospital for the dermatology training position for the following year. On 13 July 2004, the Chief Executive Officer of the College replied in the following terms:
As you will appreciate, the College has no control over the requirements of local State Departments of Health. Their arrangements are quite separate from the College’s application process for training positions.
I therefore suggest you contact the Royal Perth Hospital for further information.
However, on the same day it would seem, the Chief Executive Officer of the College sent a further email to the appellant in the following terms:
I have now been informed that an application must also be made to Royal Perth Hospital as the appointment is made by the hospital on the recommendation of the WA Faculty.
As a result of this correspondence, on 14 July 2004 the appellant wrote to the Director of Clinical Services at the hospital, seeking confirmation as to whether she was required to submit an application to the hospital. By letter dated 15 July 2004, the director informed the applicant that, as indicated in the relevant advertisements, applicants were not required to apply to the hospital. They were required to apply to the College. He said that he was "uncertain" as to who informed the Chief Executive Officer of the College that applications were to be made also to the hospital.
117 By letter dated 25 August 2004, the faculty informed the appellant that her application had been unsuccessful. By letter dated 30 August 2004, the appellant sought a feedback interview with the chairman of the selection committee. Such an interview was held on 15 September 2004, at which time the appellant was informed that there had been 14 applicants, 4 of whom (not including the appellant) had been short-listed. The appellant did not consider that the feedback given to her was satisfactory. On 24 September 2004, she wrote to the faculty enclosing a copy of "minutes" of the feedback interview, based on notes which she had taken. She said that she proposed to apply for an informal reconsideration of the original decision, and asked to be supplied with certain materials. On 27 September 2004, the chairman of the selection committee replied to this correspondence, taking issue with the accuracy of the appellant’s minutes and noting her request for a reconsideration. Further correspondence ensued, the details of which it is not necessary to set out, save to note that, in her letter dated 11 October 2004, the appellant made it clear that she had not in fact applied for a reconsideration.
118 By letter dated 22 November 2004, the appellant appealed against the rejection of her application for the trainee registrar position commencing in 2005. She paid the appeal fee of $5,500. She enclosed with the letter a document headed "REQUEST FOR A FORMAL APPEAL OF AN ADVERSE DECISION OF THE SELECTION COMMITTEE IN WESTERN AUSTRALIA AGAINST MY APPLICATION FOR A TRAINEE REGISTRAR IN DERMATOLOGY AT THE ROYAL PERTH HOSPITAL, PERTH – 2004" and opened the text of that document with a paragraph similar to that used in the previous years (see par 92 above). Her grounds related to what was said to be the faculty’s rejection of her request for an informal reconsideration of the original decision, to the constitution of the selection committee, particularly in the light of the appeals which the appellant had lodged against previous rejections by similarly-constituted committees, to the alleged inadequacy of the feedback interview and to non-specified failures to comply with the procedures required by the College policies and rules. By letter dated 24 December 2004, the College acknowledged receipt of the appellant’s appeal. In that same letter, the secretary of the College noted that the appellant still had not paid the full fee due in respect of her second appeal, and added: "... the second appeal cannot be heard until the full fee has been paid." He said that, since the appellant required each appeal to be heard separately, there might be "significant delays" in convening a committee to hear the second and third appeals. As it happened, neither of these latter appeals was ever dealt with by the College.
119 On 15 December 2004, the appellant sent a copy of her notice of appeal to the hospital, and asked how her rights might be protected in the event that her appeal was successful. The Director of Clinical Services at the hospital replied, by letter dated 25 February 2005, in the following terms:
Turning now to your request, for the policy or guidelines that govern the offer of employment for advance trainee registrar position in a speciality program, please be aware that several of the colleges and speciality societies undertake their own recruitment and simply notify the hospital of the successful candidate. For your information I attach an advertisement which appears in The West Australian each year which identifies the advanced training positions in general surgery, dermatology, neurology, neurosurgery, ophthalmology, ENT, plastic surgery, urology and orthopaedic surgery which are handled this way and all applicants must submit their application to the relevant college. I would point out that we have no control over their process of selection. All other junior staff are appointed using the hospital’s Human Resources Manual Guidelines which meet the Public Sector Standards.
THE TRIAL JUDGE’S TREATMENT OF THE RECORD-KEEPING REPRESENTATION
120 The appellant submitted before the trial Judge that, whether or not the record-keeping representation, first made in the 2001 handbook, amounted to a representation as to a future matter, it was misleading (and/or false) in contravention of the relevant provisions of Pt V of the Trade Practices Act, without the assistance of s 51A. His Honour held that the College’s record-keeping fell short of the representation involved in this passage of the handbook. He held that, had there been conduct in trade or commerce, that conduct would have been misleading contrary to s 52 of the Trade Practices Act. His Honour also held that there had been a false representation that the College’s relevant services were of a particular standard contrary to s 53(aa) of that Act, and that there had been a false or misleading representation concerning the existence of a condition or right attaching to the College’s services, which would have been contrary to s 53(g) of that Act. Taking the view that s 55A of the Trade Practices Act required proof beyond reasonable doubt, his Honour was not satisfied that it was actually probable that the public would have been misled as to the nature etc of the College’s services.
121 The appellant made substantially the same allegations about the 2002 handbook as she had made in relation to the corresponding provisions of the 2001 handbook. His Honour ruled that the 2002 representations "fall for resolution as previously set out in relation to" the 2001 representations. It was submitted on behalf of the appellant on appeal that, by this statement, his Honour found that there had been breaches of s 52, and of pars (aa) and (g) of s 53, of the Trade Practices Act in relation to the record-keeping representation. That submission was not resisted by the College, and seems to accord with the natural sense of the relevant passage in his Honour’s reasons.
122 The trial Judge did not make any express finding as to whether the record-keeping representation, as made in the 2003 handbook, was misleading. Neither did he refer back to his finding in relation to the 2001 handbook, as he had done in his treatment of the 2002 handbook. It was submitted on behalf of the appellant that it was implicit that the same findings of misleading conduct etc, and the same provisional holdings of contraventions of the Trade Practices Act, as had been made for the earlier years would apply in relation the 2003 handbook. The College did not deal with this aspect at all on appeal, and, given the nature of the College’s shortcomings in the matter of record-keeping found by his Honour, it seems reasonable to accept the appellant’s submission in this regard.
123 As in the case of his Honour’s treatment of the 2003 handbook, the trial Judge did not make any express finding as to whether the record-keeping representation, as made in the 2004 handbook, was misleading. Again it was submitted on behalf of the appellant that such a finding was implicit, and, for the same reasons as set out above, this submission should be accepted.
124 One of the authorities referred to by the trial Judge in connection with his Honour’s consideration of the matter whether the College was a trading corporation was Hughes v Western Australian Cricket Association (Inc) & Ors (1986) 19 FCR 10. In that case, Toohey J held (at 20) that "trading denotes the activity of providing, for reward, goods or services". As noted above, in the present case, the trial Judge held that there were some, not insubstantial, respects in which the College traded by the provision of services. This aspect is relevant also to any consideration of the present question. Each of the proscriptions in par (aa) and (g) of s 53 of the Trade Practices Act applies only where the corporation makes the representation in question "in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services". Dealing with the application of those proscriptions in the context of the record-keeping representation (as made in the 2001 training handbook), the trial Judge said:
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.
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.
Although not dealt with explicitly or separately, these passages seem clearly to embody findings that what the College did, apropos the appellant, in the matter of its selection process constituted the supply of services to her. Although the College’s case before his Honour, and again on appeal, was based upon denial at the general level, there was no notice of contention that his Honour was in error in making these findings. Neither was the matter the subject of particular mention in the submissions of counsel for the College on appeal. It is appropriate, therefore, to accept that the things done by the College in the course of selecting a trainee registrar for appointment at the hospital each year constituted the supply of services within the meaning of s 53 of the Trade Practices Act.
125 The position, then, is that the only thing standing in the way of a finding in favour of the appellant under ss 52 and 53 of the Trade Practices Act was his Honour’s conclusion that the record-keeping representation was not made in trade or commerce; and the only thing standing in the way of a finding in favour of the appellant under ss 10 and 12 of the Fair Trading Act was his Honour’s conclusion that the record-keeping representation was not made in trade or commerce or in any professional activity. The same issues arise under s 55A of the Trade Practices Act and s 18 of the Fair Trading Act, but in each instance there is also the question whether the appellant was required to prove her factual case beyond reasonable doubt.
THE TRIAL JUDGE’S TREATMENT OF THE MEANINGFUL APPEAL REPRESENTATION
126 The trial Judge did not make an express finding on the question whether the meaningful appeal representation was to be implied as alleged by the appellant. He referred to it specifically in relation to the 2001 handbook (where the relevant contents were indistinguishable from those later found in the 2002 handbook), but made no finding because the appellant did not lodge an internal appeal in 2001; so the point was moot. As mentioned above in another context, his Honour dealt with the alleged representations said to be conveyed by the terms of the 2002 handbook by way of reference back, as it were (he said that the questions fell for resolution "as previously set out" in relation to 2001). However, his Honour had not made a finding as to whether the meaningful appeal representation should be implied in 2001; and likewise no such finding was made as to 2002.
127 Counsel for the appellant recognised that his Honour had made no express finding either that the meaningful appeal representation had been made as alleged or that it was misleading etc within the terms of the relevant provisions of the Trade Practices Act. They submitted that such a finding – at each level – was implicit. They referred to a summary of reasons published by his Honour at the same time as he gave judgment. That summary contained the following passage:
In relation to the appellate process, the applicant alleges she was misled by statements in the training handbooks as to the timeliness and effectiveness of the appellate process.
In relation to the representations concerning the College’s appellate process, the Court has found that the representation as to the timeliness and effectiveness of the appellate process and the maintenance of records could have been misleading or deceptive if the College’s conduct in that respect had been in trade or commerce.
Counsel submitted that, when his Honour said "could have been misleading or deceptive", he intended the sense that might have been better conveyed by the words "would have been misleading or deceptive".
128 Counsel referred in this respect also to par B(11) of the Application, in which the appellant had sought a declaration that –
... by representing that the College has an effective appeals process for candidates for selection as a dermatology registrar in the training program of the College and by failing to convene an appeals committee in a timely manner and by allowing its decision for selection of a candidate for the position of a dermatology registrar in Western Australia commencing in 2003, 2004 and 2005 to be acted upon and progressed before –a) convening an appeals committee;
b) hearing an appeal;
c) deciding the appeal
in respect of Dr Shahid’s application in 2002, 2003 and 2004 for the position of dermatology registrar in Western Australia, the College has contravened section 52, 53(aa), 53(g) and/or 55A of the Act and sections 10, 12(1)(e), 12(1)(l) and/or 18 of the FTA.
Although the trial Judge held that the appellant would fail on the substance of her application (because the conduct impugned had not been in trade or commerce), his Honour nonetheless considered the relief to which she might have been entitled had she succeeded. In his reasons, his Honour said:
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).
Counsel submitted that that passage made it tolerably clear that his Honour not only regarded it as proper to imply the making of the meaningful appeal representation as alleged, but also considered that the representation was misleading etc in the sense that there never was any meaningful or effective appeal for the appellant.
129 Further light is thrown on the approach taken by the trial Judge to this issue in that section of his Honour’s reasons that dealt with "the nature of an appeal". The gravamen of the appellant’s complaint was there summarised as follows:
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 [the hospital] 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 [the hospital] 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.
His Honour substantially accepted those submissions. He rejected a number of propositions advanced by the College: that the appeal referred to in the handbook was "at best a right of review"; that it was for the hospital, in accordance with public sector management standards, to deal with complaints concerning the employment of persons to trainee registrar positions; that, had an appeal succeeded, it was possible that an additional position might have been created for the appellant; and that the appellant was herself the cause of delays in the processing of her appeals. As to the latter, his Honour said:
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.
What his Honour referred to as "representation 20.t)" was the meaningful appeal representation. It seems clear from this that his Honour considered that that representation had in fact been made, and that it was false.
130 Finally in this regard, in their submissions on appeal, counsel for the College confirmed that the College did not challenge "his Honour’s findings that there wasn’t an effective appeal process".
131 In all the circumstances, it seems reasonable to accept the appellant’s submission that the trial Judge accepted not only that the meaningful appeal representation was (implicitly) made in the 2002 handbook but also that it was misleading. Further, given the generality of his Honour’s treatment of the matter, it seems reasonable to accept that he should be taken to have reached the same conclusions with regard to the 2003 and 2004 handbooks. In each of these years, his Honour’s reasons clearly bespeak a view that the College did not have in place a process or a mechanism that would enable an applicant, disappointed with the College’s recommendation to the hospital, to secure a meaningful or effective appeal before the whole subject became moot by the irreversible appointment of another person to the only available position of trainee registrar in dermatology. As mentioned above, the College was not heard on appeal to take issue with such a view.
132 What his Honour did not do, however, was to articulate specific conclusions about the potential legality of the meaningful appeal representation under s 52, pars (aa) and (g) of s 53, and s 55A of the Trade Practices Act or the corresponding provisions of the Fair Trading Act. It seems clear enough that he would have held it to amount to misleading conduct within the terms of s 52 (ie had that conduct been engaged in in trade or commerce), but whether the matter could be taken further, in the absence of express holdings, is more problematic.
THE TRIAL JUDGE’S TREATMENT OF THE APPELLANT’S CLAIM IN CONTRACT
133 The most appropriate way to identify the nature, and content, of the appellant’s claim in contract is to set out pars 294-297 of the reasons of the trial Judge:
The applicant’s pleading in pars 46, 49 and 52 is that in lodging her appeal in each of the cases for the selections for positions made in 2002, 2003 and 2004 she thereby created a contract between the respondent and herself (described as the selection process appeal contracts 2002, 2003 and 2004 respectively).
In each of these pleadings in associated paragraphs (47, 50 and 53) it is also pleaded that there were implied terms in each of the contracts, namely:
(1) the appeal process was genuine and effective;
(2) the appeal would be heard in a timely manner;
(3) the respondent would provide the applicant with all relevant materials to consider and properly pursue her appeal;(4) the respondent would not finalise its decision on selection until the time for lodgement or determination of an appeal had passed; and
(5) the respondent would not communicate to [the hospital] its final decision on selection until either the time for lodgement or determination of an appeal (as the case may be) had passed.
It is also pleaded in the same paragraphs that another term (not implied) of the contracts was that the grounds of appeal included that an error in law or in due process occurred in the formulation of the original decision; relevant information available at the time of the original decision was not considered or not properly considered in making the original decision; and that the original decision was clearly inconsistent with the evidence and arguments put before the body making the original decision.
The applicant contends that the circumstances in which she made her appeals were such as to give rise to a contract. Those circumstances were (1) the appeal arose in the course of business relations rather than social or domestic relations; (2) the respondent offered the appeal in its Training Handbooks; (3) the applicant accepted the offer of an appeal by lodging the documents requesting an appeal; (4) the relationship of the parties is known; (5) the identity of the parties is known; (6) the payment of the fee on lodgement ensured that consideration was present; and (7) the exchange of correspondence between the parties and the conduct of a directions hearing is inconsistent with there being no contractual or legal obligation to carry forward the appeal process.
134 His Honour then dealt with the question whether the transactions relevantly relied upon by the appellant were accompanied by an intention to create legal relations. He noted that the appellant had relied upon the onus to which Megaw J referred in Edwards v Skyways Limited [1964] 1 All ER 494, said to arise in a situation in which the subject matter of an agreement was business relations, not social or domestic matters, and said to lie upon the party who asserted that no legal effect was intended by such an agreement. After considering more recent Australian authorities, such as Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95, 106 and Pirt Biotechnologies Pty Ltd v Pirtferm Ltd [2001] WASCA 96, his Honour held that the appellant could not rely upon the presumption referred to in Edwards, but that it was "necessary to consider all the circumstances to find whether in fact there was an intention to create legal relations".
135 The trial Judge approached the matter first by characterising the alleged contract upon which the appellant relied. His Honour said that it was "not one relating to business affairs", but that it was "one which involved the invocation by the [appellant] as a candidate for selection for the position of Trainee Registrar of a right of appeal against the decision of a selection committee". His Honour then provided a context for the right which the appellant sought to invoke. He said that the alleged right of appeal "is provided by the statements and hence the processes of the [College], which is a voluntary association." His Honour said that, in the case of a voluntary association, "there must appear from the evidence a clear indication of a contemplation of a legal relationship." His Honour considered that such a requirement applied a fortiori "in the case of relationships between a person outside the association and the members of it." His Honour continued:
In my opinion there is no clear indication from the evidence that either the applicant or the respondent contemplated a legal relationship giving rise to an enforceable contract. It is patent that, viewed objectively, the respondent had no such intention. This is because the respondent regarded itself as so unfettered by any contractual concerns as to be able to substitute some other form of outcome of the appeal other than the one which would normally be anticipated, namely, the substitution of a successful appellant for the person originally selected. There was clearly no meeting of minds between the applicant and the respondent on what the exercise of the right of appeal might lead to.
Not only is there no clear indication appropriate to a voluntary association of contractual intention but in my view there is no evidence which would support a finding of an intention to contract in any event.
Thus his Honour rejected the appellant’s case in contract.
136 At the hearing of the appeal, counsel for the College made it clear that the only basis upon which their client resisted a finding that a contract existed in the terms proposed by the appellant in her pleading was that relied upon by his Honour, namely, that there was no intention to create legal relations. The question which arises now, therefore, is whether there was such an intention. If so, the appellant’s case in contract should succeed.
THE ISSUES FOR DETERMINATION ON APPEAL
137 In the circumstances, the issues which now arise for determination are as follows:
1. Were the record-keeping representation and the meaningful appeal representation, or was either of them, made in –
(a) trade or commerce; or
(b) a professional activity?
2. If yes to 1 in relation to the meaningful appeal representation, did the making of the representation amount to a breach of s 52 or of par (aa) or (g) of s 53, of the Trade Practices Act or the corresponding provisions of the Fair Trading Act?
3. Did s 55A of the Trade Practices Act, or s 18 of the Fair Trading Act, require proof beyond reasonable doubt?
4. If no to 3, should a finding now be made that the conduct of the College did occur as alleged and was liable to mislead the public as to the nature, characteristics, suitability or quantity of any services?
5. Was the lodgement by the appellant, and the acceptance by the College, of an appeal in each of the years 2002, 2003 and 2004 accompanied by an intention to create legal relations?
6. To the extent that the appellant succeeds, to what, if any, remedy is she entitled?
TRADE OR COMMERCE
138 Both parties relied on what is now the leading authority on the meaning of "in trade or commerce" in Part V of the Trade Practices Act, Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. Upholding the narrower of two possible constructions of the term – that s 52 referred "... only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character..." (169 CLR at 603) – Mason CJ, Deane, Dawson and Gaudron JJ said (at 604):
What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.
Concrete Constructions thus requires one first to identify the activities or transactions in the course of which the impugned conduct occurred, and then to determine whether those activities or transactions "of their nature, bear a trading or commercial character". At the first stage, one looks not at the overall activities of an enterprise, but at "a particular ... dealing, transaction or activity": Plimer v Roberts (1997) 80 FCR 303, 323 per Lindgren J, with the agreement of Davies J (at 304).
139 The trial Judge did approach the problem within the conceptual framework referred to above. His Honour identified the relevant activities in which the College engaged. They were:
1. Providing informal information to potential candidates on how to obtain entry into the College.
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 the hospital.
5. Maintaining and undertaking an appellate process.
6. Engaging through a Fellow of the College who was a member of the Selection Committee in Western Australia in a debriefing of candidates.
7. Promotion of entry to the trainee registrarship at a conference.
His Honour’s conclusion about these activities was as follows:
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.
140 His Honour’s list of activities was, of course, more extensive than is necessary in the limited context of the appeal. Since the representations which his Honour found to be false or misleading were contained in the training handbooks, item 3 on his Honour’s list remains relevant. Item 4 is relevant to the record-keeping representation, and item 5 is relevant to the meaningful appeal representation. Counsel for the appellant did not submit that his Honour was in error to identify the relevant activities as he did. The questions which need to be decided are whether the activities referred to in these three items, or in one or more of them, do or does bear a trading or commercial character.
141 Dealing first with the publication of the training handbook, if the College sold the handbook, either to trainees, to Fellows, or to the public generally, it might be possible to say that those activities bore a trading or commercial character, as was the case with the videotapes, audio cassettes and publications sold to the public in Plimer v Roberts (see esp per Branson J, 80 FCR at 310). However, none of this occurred. The evidence was that the appellant downloaded the handbook from the College’s web site in each of the relevant years. That action involved no transaction in the nature of trade or commerce. If the activities of the College are to be viewed from the perspective proposed in this paragraph, therefore, the conclusion must be that they did not bear a trading or commercial character.
142 It is here convenient to refer to a particular submission made on behalf of the appellant. It was said that the handbooks were the means by which the College promoted its training program in dermatology. Counsel relied on the following passage in Concrete Constructions, which follows immediately after the passage set out in par 138 above (169 CLR at 604):
Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public.
It is true that the "promotion of dermatological ... training" was described by the College as one of its "principal activities" – see par 39 above. However, activities or transactions which do not of themselves bear a trading or commercial character cannot be held to do so merely because they are promoted to potential participants or to the public at large. What their Honours in Concrete Constructions were concerned to point out was, where the activities or transactions in question constituted the supply of goods or services (in context, uncontroversially bearing a trading or commercial character), promotional activities in relation to that supply would not be regarded as outside the field of that trade or commerce simply because they did not, as such, involve transactions between the supplier and the actual or potential consumers. That is not the present case.
143 Turning next to the activity involved in selecting, and then recommending, a candidate for appointment as trainee registrar in dermatology, it seems that the purpose of this selection process was not, at least predominantly, to filter job applicants on behalf of the hospitals where the training would occur. There was no evidence of the nature of the relationship between the College and the various hospitals in relevant respects. Besides, the appellant did not base her case upon a contention that the dealings of the College with those hospitals were inherently commercial. Rather, the purpose of the process was for the College to select from amongst multiple aspirant trainees who were best equipped to take advantage of the limited training opportunities that were available. There was nothing in the selection or interview process as such that impressed it with a trading or commercial character. At least until the appellant’s application in 2004, involved in that process was no exchange, no transaction and generally no indicium of trade or commerce.
144 The only minor qualification that needs to be made to the conclusion expressed in the previous paragraph relates to the appellant’s application in 2004. On that occasion, she was, it seems, required to pay $220 upon lodging her electronic application for the trainee registrar position in 2005. The trial Judge referred to that circumstance in his judgment only after he had already decided that nothing which the College did in relevant respects was done in trade or commerce. The only reference to it in the appellant’s submissions on appeal was the brief, and somewhat unrevealing, inclusion of the words "application fee" in the parenthetical passage in item (b) of a list of circumstances said to justify the conclusion that the training program as a whole was an activity in the nature of trade or commerce (set out in par 146 below). It was not put that the lodging by the appellant, and the processing by the College, of the application in 2004 was itself an activity of that nature by reason particularly of the payment of the fee of $220. In the light of the kind of function in which the College was relevantly engaged, and in the absence of any particular attention being given to this aspect in the appellant’s case on appeal, I do not consider that the payment of the fee was sufficient to qualify the conclusions expressed in the previous paragraph. The fee did not impress a trading or commercial character upon the selection and interview process in 2004.
145 Turning finally to the appeal process mentioned in item 5 on his Honour’s list, it was, of course the fact that the process, as claimed in the handbook, was not confined to decisions about appointments to positions of trainee registrar: it extended to a decision of any board or committee of the College. Notwithstanding the potential width of that application, the only concrete context for the relevant operation of the meaningful appeal representation related to the appellant’s own circumstances. Here at least, the appellant can point to an exchange: she paid a fee each time she lodged an appeal against the rejection of her application for a trainee registrar position. It would, however, be highly artificial to regard the College’s appeal process, such as it was, as bearing a trading or commercial character because of the exaction of a fee from the party seeking to invoke it. The exaction of similar fees by civil courts would clearly be insufficient to justify the conclusion that the activities of the courts in relevant respects bore a trading or commercial character. That would be because the nature of the courts, as institutions, would contradict any such conclusion. In the case of the College, the nature of its training program generally is addressed below. Within that program, the appellant’s appeal was from the unsuccessful outcome of the deliberations of the selection committee, activities which, in the view I take, did not have a trading or commercial character. The appeal was (or would have been, if one existed) an internal process as between different organs of the College by which the appellant was enabled to challenge that outcome. It was, in effect, the College offering to do again what it had already done once. Of its nature, the appeal was no different from the original selection process, at least with respect to the trade or commerce question.
146 In their submissions on appeal, counsel for the appellant did not concentrate upon the three categories of particular activities dealt with above. Neither did they give special attention to the question why his Honour was in error to have reached the conclusions which he did about items 3, 4 and 5 on his list. Rather, counsel submitted that the activities involved in the training program as a whole bore a trading or commercial character. In their written outline, they submitted as follows:
(a) Education and training in accordance with the requirements of the Respondent’s Training Program 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);
(c) The Respondent earns income from its training conferences/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, is it submitted, can it be dependant on the level of fees the Respondent chooses to charge. The Respondent has acknowledged that its core objectives should ideally be funded by fees – rather than be dependant on the Respondent’s meetings, trade exhibitions and sponsorships. Further, the Respondent was actively considering the level of fees it should charge in October 2003. The Respondent’s WA Faculty believing that all costs associated with the issue of the cost of providing training to trainees needed to be properly costed and charged.
(d) The Respondent supplies the services or provides its training program on an 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".
(f) The Respondent’s training program is an essential path to Fellowship of the Respondent ("FACD") with its enhanced stranding in the community and commercial benefits such as immediate recognition by the Health Insurance Commission and other insurance providers of specialist Dermatologist status for higher Medicare and insurance rebate purposes.
(g) The commercially (and professionally) valuable cachet of the FACD ‘badge’ could only be provided by the Respondent, to candidates selected by the Respondent for its Training Program, who successfully completed the requirements of the Respondent’s training Program as assessed by the Respondent. That is, the Respondent is the monopolistic supplier of specialist dermatological training in Australia.
147 But the question whether the training program as a whole bore a trading or commercial character is not the ultimate issue with which we are concerned. That issue is whether the "particular ... dealing, transaction or activity" (to use the wording of Plimer) bore such a character. That dealing (etc) was, in the case of the record-keeping representation, the selection and interview process for appointments as trainee registrar and, in the case of the meaningful appeal representation, the process of appeal from adverse decisions made with respect to such appointments. The character of the training program as a whole may well reflect upon, and justify conclusions about, the character of those dealings (etc), but it does not thereby become the issue itself which must be decided at this stage of the case. It is with that caveat that I turn to consider the items, lettered (a) – (g), on the appellant’s list as set out above.
148 Item (a) on the appellant’s list appears to be in the nature of an introductory or contextual statement which makes it clear that, in what follows, the appellant is concerned with the College’s training program as a whole. Of itself, it does not lead to the conclusion that the activities referred to bore a trading or commercial character.
149 Item (b) on the list is clearly relevant to the present question. According to the evidence before the trial Judge, as canvassed above in these reasons, the appellant paid fees at several stages of her involvement in the College’s training program, in addition to the fees referred to in par 144 above. The appellant paid a fee for attendance at the Basic Skin Biology Seminar in February 2000. That was the only conference in respect of which it is unambiguously established that the College charged a fee for attendance by the appellant. In April 2000, the appellant paid a fee to sit the Part I examination in July of that year. Further, as pointed out above, there was a fee to be paid for what was then the Part II examination, and for what later become the Fellowship examination. In 2004, when the number of examinations was expanded to three, there continued to be a fee payable for admission to each. The appellant, and presumably other provisional trainees, were required to pay an annual fee, or levy, in return for which they received the Journal and their names were maintained on the College’s mailing list.
150 These fees are relevant to the question whether the activities of the training program bore a trading or commercial character, but they are not dispositive of that question. Perhaps the fee which has the most obvious potential to produce an answer favourable to the applicant was the annual fee. However, save for so much of that fee as related to receipt of the Journal, it is difficult to characterise it as the appellant’s part of a transaction in the nature of a commercial exchange. It did not constitute payment for any training services rendered by the appellant, as it was payable (in her case) with respect to a period during which no such services were provided. Having passed her Part I examination, the appellant was a provisional trainee, and the next stage was her attempt to secure a trainee registrar appointment. In the meantime, it seems, the appellant considered herself under an obligation (not to any extent commercial) to better herself, and therefore her prospects, by further study and research. The annual fee seems to have been a kind of registration fee by which the appellant maintained her name on the College’s books, as it were. It was consistent either with a commercial, or with a non-commercial, training program. Its impact on the question whether the College’s training program bore a trading or commercial character should be regarded as more or less neutral.
151 As for so much of the annual fee which might have been notionally attributable to the receipt by the appellant of the Journal, it may be accepted that the relevant transaction had a trading character, much in the same way as did the sale of the videotapes etc in Plimer v Roberts. However, as in that instance, the trading transaction (or, in the present case, notional transaction) was a discrete entity in itself, related in point of subject matter to the broader activity in the context of which it came about, but was insufficient to impress upon that activity a character different from that which it otherwise bore. In other words, it may be accepted that the notional sale to the appellant of a subscription to the Journal was a transaction in the way of trade, but it does not follow that the payment of the annual fee in other respects, or the appellant’s involvement as provisional trainee, thereby bore the character of trade or commerce.
152 Turning to the examination fees, it is true that, in a sense, those fees were part of a transaction in the nature of an exchange: the College admitted candidates to the examinations, and the candidates paid the fees. However, any characterisation of that transaction must depend wholly or substantially upon the nature of the thing for which the appellant was paying. Here, the better view is that the process of admission to a merit-based examination designed to assess the sufficiency of the knowledge of professional persons to progress to the membership of a body such as the College does not, "of its nature" bear a trading or commercial character. A process of examination of this kind cannot, even if accompanied by the payment of admission fees, realistically be regarded as an activity in the way of trade or commerce. Any conclusion to the contrary would be quite artificial.
153 Item (c) on the appellant’s list seems to involve two points: that payments were made for, and income was derived by the respondent in respect of, various conferences and the like; and that the absence of a profit motive is not conclusive against the characterisation of those conferences as activities in the way of trade or commerce. The second point may immediately be accepted: see Monroe Topple & Assoc Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110, 130-131. The first point is also correct as stated. As appears from par 40 above, conferences and courses were a most significant source of income for the College. However, just as the absence of a profit, or of a profit motive, should not lead inevitably to the conclusion that the activity in question cannot bear a trading or commercial character, neither does the fact, or the size, of income receipts generated by those activities necessarily justify a conclusion that the activity must bear such a character.
154 The trading or other nature of the College’s activities involved in the conduct of its conferences and courses was not the subject of specific examination in the appellant’s submissions on appeal. However, in that part of his Honour’s reasons that dealt with the question whether the College was a "trading corporation", the trial Judge held that organising the annual scientific meeting, with its trade exhibition, was the College’s "principal trading activity". It should be accepted, therefore, that organising the meeting was an activity which bore a trading or commercial character. Even that conclusion, however, does not mean that everything done by every person in connection with the meeting was also such an activity. For instance, the presentation, without reward, of a paper at the meeting may not have borne such a character: Plimer. But the work of organisers of the meeting in seeking to persuade practitioners and others to present such papers may well have: Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64.
155 It seems that the meeting, and the other conferences and the like which the College conducted, were events of the College for the interest and participation of Fellows generally. Trainees (in which category the appellant was, at the relevant time, only provisionally included) were required to attend some of them, and encouraged to attend others. Thus the training program made use of such events for its own purposes. However, the conclusion does not follow that the program itself took the same characterisation – apropos the trade or commerce axis – as the meeting and conferences themselves. It is to no extent counterintuitive that a training program, which was in substance non-commercial, might at various points make use of meetings, conferences and the like conducted by the College along commercial lines, but without affecting its own characterisation. However, the present question is at least one remove further away again from the trading or commercial aspects of the annual scientific meeting. The question is whether those aspects, alone or in combination with the other circumstances upon which the appellant relied, justify the conclusion that the aspects of the training program with which we are here concerned – the selection and appeal processes with respect to trainee registrar positions – bore a trading or commercial character.
156 None of these fees related directly to the appellant’s application to be recommended for appointment as trainee registrar in dermatology, or to the selection and interview processes involved therein. Each of these fees either was payable in any event, whether or not the appellant had made such an application in a particular year, or related to a separate and discrete transaction altogether. Likewise, none of them related to the appeals which the appellant lodged. None of these fees, therefore, had a sufficiently immediate relationship with the dealings, transactions or activities with which we are here concerned to impress upon them a trading or commercial character, even if otherwise the fees might have had that effect with respect to the particular activities etc to which they did directly relate.
157 Item (d) on the appellant’s list is undoubtedly correct in point of fact. However, although the authorities (of which Monroe Topple, referred to further below, is one) have mentioned the kind of circumstance relied upon in this item, they have tended to do so in order to highlight the contrast presented by activities, even otherwise involving trade, that were isolated, infrequent or unsystematic. This is not a case in which it would be appropriate to deny that the College’s training program bore a trading or commercial character for that reason alone.
158 Items (f) and (g) on the appellant’s list may be taken together. The proposition in (f) is broadly correct. That in (g) is more controversial. The College insisted that vocational status as a "dermatologist", and recognition as such by public health authorities, were not obtainable only through membership of the College. That protest may, however, be put to one side. Whether or not there might be other paths to the advantages referred to in items (f) and (g), it is undeniable that membership of the College was in fact the principal means by which medical practitioners, desiring to practise as specialist dermatologists, secured recognition of their status as such. Membership was not only a professional, but also a vocational, advantage to them. Nothing in the evidence or the submissions would render inappropriate the inference that practitioners substantially sought membership of the College as a means to further their careers in their chosen area of specialisation. None of the above, however, relates to the character of the activities and transactions constituted by the College’s training program. Rather, it relates to the vocational advantages flowing from a successful completion of the program, and, inferentially, to the goals of those who participated.
159 Neither does it progress the present analysis to submit, as is done in item (g), that the College is the "monopolistic supplier of specialist dermatological training". So to submit is to go no further than to say that, at present, the College’s training program is the only such program available to practitioners. There are many unarguably non-commercial training programs which, in the nature of things, are provided by one supplier only (such as, perhaps, a program to train priests in a particular religious denomination). The issue here is not whether the College was the only supplier – it is whether the activities by which it did make that supply bore a trading or commercial character.
160 Considering all of the appellant’s propositions, neither individually nor together do they lead to the conclusion that the particular aspects of the College’s training program with which we are here concerned consisted of activities or transactions which, of their nature, bore a trading or commercial character. Training for professional qualifications is not an inherently commercial activity. Whether it is commercial in any particular case will depend upon the nature of the transactions by which it is provided to trainees. In the present case, looked at broadly, the College did not sell training services to the applicant or other trainees. It required them to meet certain standards, and it did so rigorously and systematically. At various points along the way, the College and the trainees engaged in transactions which, in themselves, were of a trading or commercial character (such as the sale of some books and the attendance at some conferences). But those instances did not have the effect of impressing such a character on the program as a whole, even the clearly non-commercial aspects of it such as those in the course of which the representations impugned in the present case were made.
161 The appellant placed much reliance upon Monroe Topple. The facts which led to that judgment (and to the judgment at first instance of Lindgren J – see [2001] FCA 1056) related to "support services" for undertaking the Institute’s "professional year" (or "PY") program, the successful completion of which was a necessary element of qualification for membership of the Institute. Like the present matter, Monroe Topple concerned training and qualification for membership of a professional association. Like the College here, the Institute established the requirements for membership, set the necessary standards, set the curricula, and conducted the examinations. These aspects of the Institute’s training regime, however, were not those which led Lindgren J, and then the Full Court, to hold that the Institute relevantly operated in a market for services provided in trade or commerce.
162 Traditionally, the strong focus of assessment in the PY program in Monroe Topple had been on examinations. The Institute had provided only minimal support for candidates undertaking the program. As found by Lindgren J ([2001] FCA 1056 at [12]):
According to the evidence, "one of [the Institute’s] primary educational philosophies [was] to develop in Candidates the ability to identify and solve problems [and to require] Candidates to learn how to search for information, distil the important aspects of that information and then use it appropriately". [The Institute] saw rote learning, the provision of "the correct answers" for candidates to learn, and general "spoonfeeding" as antithetical to its educational philosophy.
However, the large accounting firms had developed a practice of providing considerable, and it appears quite sophisticated, support for members of their own staff undertaking the PY program. Accountants working in the smaller firms were at first denied the benefit of such support, but private providers of training services came to fill the void. The point was reached where such providers were, according to the Institute’s Director, Education, "very active" in "the market" (22 FCR at 116). The Institute itself – perhaps in some States more so than in others – had also become active in the selling of support services for the PY program.
163 The point was reached where the Institute gave serious consideration to a national response to the emerging pattern of the provision of support services, for reward, both by itself in the various States, by the large firms and by private providers. In the result the PY program was restructured and replaced with something called the "CA Program". That program changed the balance of assessment such that greater emphasis was given to "extension work" and to "focus sessions", and less emphasis (than previously) was given to examinations. Further, the CA program effectively re-structured the course such that the support services – previously available separately – were now provided as part of the course and for a single enrolment fee. These changes gave rise to a complaint from those who had previously operated in the open market for the provision of support services for the PY program that the Institute had effectively monopolised the market for those services by leaving candidates without the option of taking them from non-Institute suppliers.
164 Both at first instance and on appeal it was held that the provision of CA support services was something which the Institute did "in trade or commerce". Lindgren J said ([2001] FCA 1056 at [139]):
In my opinion, [the Institute] supplies the education and training it provides in connection with its CA Program pursuant to its Charter "in trade or commerce". It seems to me that this conclusion is compelled by the fact that the [the Institute] sells those services to many students for a very substantial monetary return on a highly organised, systematic and ongoing basis. While it may not be necessary that all of those features be present in order to satisfy the expression "in trade or commerce", the presence of all of them makes it clear that the expression is satisfied in this case.
On appeal, Heerey J said (122 FCR at 131 [78]):
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.
The other members of the Full Court (Black CJ and Tamberlin J) agreed with Heerey J in relevant respects.
165 Despite the superficial similarities involved, upon analysis it is clear that the essential facts of the present case are very different from those of Monroe Topple. While the College did engage in some incidental commercial activity in connection with its training program, there is no suggestion that it provided support services for reward in a manner analogous to the operation of a private training provider. What the College did had more in common with the traditional modus operandi of the Institute, before the provision of support services for the CA program on a commercial basis. That traditional model was not what was held to constitute trade and commerce in Monroe Topple. If anything, it stands by way of contrast to the more recent, overtly commercialised, model which the Institute adopted in response to the activities of the larger firms and the private providers.
166 For the reasons stated above, the trial Judge was correct to hold that the activities and transactions, in the course of which the record-keeping representation and the meaningful appeal representation were made, did not, of their nature, bear a trading or commercial character. His Honour was, therefore, correct to dismiss so much of the appellant’s case as was brought under the Trade Practices Act.
PROFESSIONAL ACTIVITY
167 Under the Fair Trading Act, the expression "trade or commerce" is defined to include "any business or professional activity". The Fair Trading Act also contains a definition of "business", as including "a business not carried on for profit" and "a trade or profession".
168 Additionally to their argument on the matter of "trade and commerce" under the Trade Practices Act, counsel for the appellant submitted that the activities and transactions of the College which were relevant in the present case were "professional activities", and thus within the scope of the definition of "trade and commerce" in the Fair Trading Act. If the slate were clean, this submission should be regarded as having obvious merit. All of the facts and events of the present case occurred within the medical profession. The College bore responsibilities and discharged functions which lay the centre of the carrying on of one of the traditional professions. The very thrust of the College’s case under the Trade Practices Act, which was accepted by the trial Judge, was that the relevant activities and transactions bore a professional, rather than a trading or commercial, character. However, the slate is not clean, it having been held that the underlying concept of "trade or commerce" gives a special meaning to the expression "any professional activity".
169 The trial Judge rejected the proposition that the Fair Trading Act should be so construed as to include within the concept of "professional activity" the activities and transactions done by the College for the purposes of its training program. In this respect, his Honour accepted the analysis of Santow J in Prestia v Aknar (1996) 40 NSWLR 165. In that case, his Honour was required to consider, as separate questions, whether certain representations made by one Scarcella constituted conduct "in trade or commerce" for the purposes of s 42 of the Fair Trading Act 1987 (NSW) (the equivalent of s 10 of the Fair Trading Act (WA)). Scarcella was a solicitor, and had previously acted professionally for his co-defendants, Messrs Aknar and Soussa. At the time of the making of the representations, Scarcella had ceased so to act, but continued his involvement in the negotiations and other transactions in the course of which the representations were made. He made the representations on behalf of Aknar and Soussa, but not as their solicitor. On the assumption (which Santow J made for the purpose of determining the separate questions) that the representations constituted misleading or deceptive conduct, the question for his Honour was whether Scarcella engaged in that conduct within the expanded definition of "trade or commerce" in the Fair Trading Act (NSW), which included within that term "any professional activity".
170 The NSW legislation is presently relevant because it was the first of the Fair Trading Acts to contain an extension of the definition of "trade or commence" to include a "professional activity". The WA legislation adopted the NSW terminology. The NSW parliamentary materials are unhelpful in resolving the construction of the expression "any professional activity", but it has been suggested that the inspiration for the extended definition came from cases such as Holman v Deol [1979] 1 NSWLR 640. In the facts leading to that judgment, claims had been made against solicitors under the Consumer Claims Tribunal Act 1974 (NSW). Those claims would have been within the jurisdiction of the tribunal established under it only if the solicitors were "traders". A "trader" was defined as "a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who holds himself out as carrying on such a business." Lee J held that the solicitors carried on business, which led to the next question: did they do so "in the field of trade or commerce"? His Honour held not ([1979] 1 NSWLR at 646-649). In so concluding, he expressed himself as follows (at 649):
The conclusion I have come to, is that, when the legislature uses the
expression "the field of trade or commerce" in the Consumer Claims
Tribunals Act, it is not intending that there should be included within it
any business that would not, in relation to ultimate consumers, ordinarily
be regarded as properly described as one operating within the field of
trade or commerce. It did not intend to give the expression artificiality by
including within it professions such as law, medicine and dentistry,
which traditionally have been regarded as occupying a field separate and
apart from trade and commerce as ordinarily understood. The fact that
the legislature has defined the nature of the services in respect of which
claims can be made is, not to set limits to the field of trade or commerce
as it would ordinarily be understood...
Towards the end of his Honour’s reasons, Lee J said (at 651-652):
It may be that the legislature will consider that to avoid
doubt and litigation, the Act should be amended to express finally which professions, in addition to law, medicine and dentistry, are to be taken to
be excluded from the operation of the Act.
171 In Durant v Greiner (1990) 21 NSWLR 119, Rolfe J was directly concerned with the meaning of the expression "professional activity", in circumstances where it was submitted that a speech in an election campaign by someone described as a professional politician was such an activity. His Honour said (21 NSWLR at 129):
[I]n my opinion the intention of the definition of "trade or commerce" was to reach not only persons engaged in business, but persons who could assert that they were engaged not in business, as understood in the way to which I have just referred, but rather in a professional activity productive of income.
His Honour thought that the legislature was probably responding to decisions such as that in Holman. He continued (at 129):
In these circumstances I think that the words "professional activity" must
refer to an activity of a professional nature but one which can also be
characterised as in trade or commerce in this way I have sought to explain.
172 In Prestia, Santow J gave careful consideration to Durant, and provided the following explanation of the judgment of Rolfe J (40 NSWLR at 188):
Thus, extrapolating that explanation, one may infer that Rolfe J would treat
"professional activity" as referring to activity of a professional nature which
can be characterised as in trade or commerce (in the sense of encompassing
trade, commercial transactions or engagements). Such activity must occur in the course of those activities or transactions which, of their nature, bear a trading or commercial character.
This was what Santow J described as the "narrower interpretation" of the term "professional activity". The other interpretation considered by his Honour was described as follows (40 NSWLR at 188):
An alternative interpretation at the other extreme would be to treat any
conduct in a "profession" or by way of "professional activity" as per se
sufficient to attract the potential application of s 42(1) of the Act, whether or
not it is trading or commercial in nature, in the above sense. I refer to this
interpretation as the wider interpretation.
His Honour thought that the narrower interpretation had much to commend it, and he ultimately adopted it for the purpose of resolving the issues then before him. Before identifying the factors which influenced his Honour to that conclusion, I should say something briefly about the structure of his judgment as a whole.
173 Santow J expressed the question which he was required to answer as – "s 42 of the Fair Trading Act 1987; was there conduct in trade or commence?" It is clear that his Honour’s analysis of the issues of construction with which he was concerned proceeded wholly in the context of s 42 (or of its federal counterpart, s 52 of the Trade Practices Act). In that context, his Honour first considered whether the Fair Trading Act (NSW) should be construed as though it were concerned substantially with consumer protection. His Honour held not (40 NSWLR at 180). Observing the very considerable width, and general terms, of s 42 (and of the federal s 52), his Honour then undertook a "search for a limiting factor, if not consumer protection". Here he identified Concrete Constructions as providing a "further constraint on the luxuriant growth of s 52 and its State counterparts" (at 181). His Honour considered that Concrete Constructions –
... has encouraged a sharper focus on the capacity in which a particular activity has been carried out, rather than concentrating merely on the activity itself, divorced from its context and potential connection with a trading or commercial relationship
(40 NSWLR at 182). Santow J next considered whether the professional activity had to be for profit or reward, and held that it did not (at 184). His Honour then considered what was "a profession or professional activity", and held that the notion of a "profession" was one which depended upon context, and, specifically, upon the general community’s understanding as to professions and professional activities (at 185). He held that references to professions included "at least ... the traditional categories of medicine, dentistry and the law" (at 186). His Honour said that the term "professional activity" referred "at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional." (at 186).
174 Santow J then dealt with the question which is of most importance in the present case. His Honour asked at 187: "what kind of professional activity can be in trade or commerce?" (Although nothing presently turns on it, it may be noted that his Honour observed that it was only in New South Wales, Western Australia and New Zealand that there were expanded definitions of "trade or commence" and of "business" to embrace professions and professional activity (at 187). As it happens, when Prestia was decided (in June 1996) the definitions of "trade or commence" in the fair trading legislation of Queensland also included "any professional activity".) Santow J dealt with the judgment of Rolfe J in Durant, in the way discussed above. His Honour then referred to an article by Professor McCabe in volume 3 of the Trade Practices Law Journal in which a distinction between "the actual exercise of the intellectual skill" of a professional, on the one hand, and "representation about the product of that intellectual skill or about the practice which generates it", on the other hand, was made.
175 Santow J then identified the two alternative and, it seems, extreme interpretations of "profession" and "professional activity" in the provisions with which he was concerned. Under the heading "arguments for the two interpretations", his Honour made the following points. First, he held that it would be inappropriate merely to engage in textual substitution of the words "business or professional activity" for the words "trade or commerce" in s 42 of the Fair Trading Act (NSW). In this respect, his Honour said (at 189-190):
It might be argued that the "trading or commerce" definition in s 4(1) of the
Act means that the words "business or professional activity" can be substituted for "trade or commerce" in s 42(1), thus suggesting the wider interpretation. On this view, the provision would amount to the following: "... a person shall not, in business or professional activity, engage in conduct that is misleading or deceptive or likely to mislead or deceive". Once it has been established that a person is engaged in a business or professional activity, the requirement is satisfied.
However, had the legislature intended to provide "business or professional
activity" as an alternative to "trade or commerce", this could have been much
more readily effected by amending s 42(1) to read "... a person shall not, in
trade or commerce or in business or professional activity ...". The inclusion instead of reference to "profession" and to "business or professional activity"
in the definition of "business" and "trade or commerce" suggests that the
term was rather intended to work a qualification of "trade or commerce", and
not a substitution. Thus "... the words ‘professional activity’ must refer to an
activity of a professional nature but one which can also be characterised as in
trade or commerce ...": per Rolfe J in Durant v Greiner (at 129).
Secondly, his Honour noted that, pursuant to s 35(1)(a) of
the Interpretation Act 1987 (NSW), headings formed part of an Act. He
observed that the general proscription upon misleading or deceptive conduct in
trade or
commerce appeared in a Part of the NSW Act headed "Fair Trading", and
considered that that circumstance went some way towards justifying
the narrower
approach. Thirdly, his Honour considered that the narrower construction would
make for greater uniformity between those
jurisdictions (such as NSW and WA)
which had, and those jurisdictions (including the Commonwealth) which had not,
introduced the
expanded definition of "trade and commerce". Fourthly, his
Honour considered that the narrower approach was warranted by the circumstance
that the wider approach might have quite unintended consequences, such as the
repeal "at a stroke" of the advocate’s immunity
(see generally 40 NSWLR at
190-191).
176 With respect, I am bound to say that I have some reservations about the reasoning of Santow J in Prestia. The first relates to the passages in his Honour’s judgment set out in the previous paragraph of these reasons. When the issue before a court is the proper construction of a statutory definition, or of a word or phrase within such a definition, the exercise necessarily involves a consideration of the definition, word or phrase as it appears when read into the substantive provisions in which it is used: see Kelly v R [2004] HCA 12; (2004) 218 CLR 216, 253 per McHugh J. There may, of course, be situations where, because the context indicates otherwise, the term should not be read as defined in the statute. But when it is, the construction of the definition should proceed as I have indicated. Thus I do not agree with Santow J that textual substitution should not, at least generally, be the proper starting point for an exercise of this kind.
177 The second aspect of Prestia as to which I have reservations is that Santow J limited the substantive context by reference to which his Honour construed the expression "any professional activity" to that provided by s 42 of the Fair Trading Act (NSW). In the passage referred to in par 175 above, his Honour gave as his principal reason for not proceeding by way of direct substitution that, had the legislature intended to convey the idea that "any professional activity" was a direct alternative to "trade or commerce", it might have "more readily" done so by inserting the former expression into s 42 itself. With respect to his Honour, that proposition overlooks the many other occasions upon which the legislation with which he was concerned used the latter expression and with respect to which, presumably, the expanded meaning was also intended to be conveyed. More is said about this aspect, in the particular context of the Western Australian legislation, below. My point here is that, because of the many occasions when the expression "trade and commerce" was used, there is every reason to think that it was out of conventional considerations of convenience that the legislature chose to use an interpretation section, and that its choice did manifest an intention that each substantive section should be construed by direct substitution.
178 Given that the expanded definition of "trade or commerce" must do service in a multiplicity of substantive contexts, it is clear that it will not be sufficient to construe a word or phrase in the definition by reference only to one such context. Further, although there may be individual instances where, because of the context indicating otherwise, the defined meaning of "trade or commerce" should not be carried through into the substantive provisions, wherever it is carried through, it must, it seems to me, have the same meaning. That is to say, the expression "any professional activity" must have a singular meaning wherever used in the Fair Trading Act. This is, of course, no more than a particular application of the presumption that a term or expression will have the same meaning wherever used in different parts of the same Act.
179 With respect to the reliance which Santow J placed upon the headings in the Fair Trading Act (NSW), his Honour’s reasoning is not readily transferred to the situation arising under the WA legislation. In the Fair Trading Act (WA), the general proscription on misleading and deceptive conduct appears in a Part headed "Unfair Practices", and in a Division headed "Misleading Conduct and False Representations". Santow J acknowledged that, but thought that the fact that the Part was not headed "Consumer Protection", and that the Act itself was entitled "Fair Trading", overcame what might otherwise have been a want of consistency between the constructions given to the same terms in different State Acts by reason of different Part headings. For my own part, I do not consider that these very general considerations ought to be regarded as sufficient to convey the meaning that the expression "any professional activity" should be limited to such activities which have a trading or commercial character.
180 The final point I would respectfully make about Prestia relates to Santow J’s opinion that what his Honour described as "the wider interpretation" would "pick up in its swathe many situations which have traditionally been treated as immune from civil action...." (40 NSWLR at 190) The only example given by his Honour was the advocate’s immunity from suit in relation to his or her negligence in court, or court-related, activities. However, even the widest norm established by the Fair Trading Acts – the proscription on misleading or deceptive conduct – cannot be regarded as setting up anything like a perfect overlap with the law of negligence. If the norm applied to all the professional activities of barristers, say, there would be many aspects of their court work which remained untouched, even if negligently done. Only by a very strained use of the language could the conduct alleged in Giannarelli v Wraith [1988] HCA 52; (1998) 165 CLR 543, for example, be described as misleading or deceptive. In an era of proliferation of legislative regulation, it might be thought that oversight of a newly-enacted provision would present the greatest risk of a legal practitioner becoming negligent in his or her acts or omissions, but it is hard to see how such a situation, at least of itself, might be described as involving misleading or deceptive conduct. I do not, with respect, agree with Santow J that what his Honour described as the wider interpretation would cut a swathe through the advocate’s immunity.
181 Turning to authority in this court, the matter of the construction of the expanded definition of "trade and commerce" in the Fair Trading Act (NSW) was considered by the Full Court in Plimer. Lindgren J held (with the assent of Davies and Branson JJ) that the expanded definition of "trade or commerce" had the effect of requiring that expression to be read as though followed by the parenthetical phrase "including in any business activity or in any professional activity" (80 FCR at 322). Thus s 10(1) of the Act with which we are presently concerned should be read:
A person shall not, in trade or commerce (including in any business activity or in any professional activity) engage in conduct....
His Honour continued (at 323):
Although the present distinction is a fine and difficult one, I think that, consistently with the clearly adjectival senses of "business" and "professional" in the definition of "trade or commerce", what the notion of "business ... activity" incorporated into the definition of "trade or commerce" includes, is activity which is unequivocally and distinctively characteristic of the carrying on of a non-profit business, or of the carrying on of a trade, or of the carrying on of a profession. The distinction will, perhaps, rarely be of practical importance and the most straightforward way of demonstrating that the inclusory definition is brought into play in a particular case will be to show that the conduct in question was engaged in in the course of the actual carrying on of a particular non-profit business or trade or profession.
To similar effect, Branson J held that a professional activity was "an activity in the course of the conduct of a profession which of itself bears a professional character" (80 FCR at 308), Lindgren J specifically left open the question (in the sense of not finding it necessary "to reach a final view") whether the expanded definition included only those professional activities which could be described as "bearing a trading or commercial character", as held by Santow J in Prestia (80 FCR at 329).
182 So far as Full Court authority in this court is concerned, therefore, the position seems to be, first, that the expression "trade or commerce" should be so read as to include any professional activity; secondly, that a professional activity will only be such as is unequivocally and distinctively characteristic of the carrying on of a profession; but thirdly, that whether the activity should also be such that, when done in the carrying on of a profession, it bears a trading or commercial character is an open question. The present case requires that question to be answered. There is no authority, binding on this Full Court, which requires it to be answered in a particular way. I propose, therefore, to turn to the provisions of the Fair Trading Act itself.
183 It will be clear from what I have written above that I take the view that a proper construction of the expanded definition of "trade or commerce" in the Fair Trading Act requires first the reading of the definition into each of the sections in which the defined term is used. When this is done, it will be found that, in every case, a grammatically viable result is yielded. There are no oddities or absurdities. As to subject-matter, there are, it is true, instances where a breach of the statutory norm might be thought to be an unlikely event, such as the proscription (in s 61) upon supplying goods which do not comply with an applicable packaging standard. But this is no reason to reject the adoption of the definition (unless, of course, the result of such a process is so manifestly discordant with the subject matter of the provision itself as to justify the conclusion that the context suggested otherwise and that, therefore, the expression "trade or commerce" should not be read in its defined sense at all).
184 The next task is to take the substantive provisions of the legislation, with the definition read into each, and to consider whether their subject matter, purpose and context is such as to illuminate the connotation of the expression "any professional activity". Those provisions may be divided into the following categories:
(a) There are four instances (ss 11, 12(1), 15 and 16) which relate to "the supply or possible supply of goods or services ...."
(b) There are eight instances (ss 17, 29(1), 31, 51, 59, 60, 65 and 67) which relate to the manufacture, supply, sale, promotion etc of goods.
(c) There are two instances (ss 18 and 29(2)) which relate to the supply, sale, promotion etc of services.
(d) There are three instances (ss 20, 21 and 61) which relate to the supply of, to payment for or to information about, goods or services, or (in the case of s 61) to information about an interest in land.
(e) There is one instance, not already mentioned above (s 19), which relates to the advertising of goods, services or interests in land.
(f) There is one instance, not already mentioned above (s 12(2)), which relates to the disposal of interests in land.
(g) There is one instance (s 22) which relates to the profitability, risk etc of business activities.
(h) There is one instance (s 42(5)) which relates to a code of practice for persons in a particular "field".
Additionally there is, of course, s 10 itself, which contains the general proscription upon misleading or deceptive conduct to be found in s 52 of the Trade Practices Act.
185 Save for the case of s 10, each of the provisions referred to in the previous paragraph is concerned to regulate conduct in an identified policy setting. Some of the provisions are very specific. Others, such as s 11, are limited more generally (eg in the case of s 11 and others like it, by reference to a connection with the supply or possible supply of goods or services). But in each case the scope of the norm is identified primarily by reference to the policy settings referred to. This has two consequences of relevance to the matter of construction with which we are here concerned. First, it means that the (admittedly limiting) qualifier "in any professional activity" is not required to perform service as the only or the primary limitation upon what would otherwise be a provision of very wide reach. Secondly, it means that any construction which would produce the result that acts or omissions, otherwise within the terms of a particular proscription, are excluded from the reach of the provision concerned because of the general qualifier "any professional activity" would have the potential at least to frustrate the objects of the provision and thus should be approached with caution.
186 It is only s 10 of the Fair Trading Act that has no particular policy setting identified in it, save perhaps for the question-begging one of proscribing misleading and deceptive conduct in any professional activity. It is the very generality of provisions such as this that provoke prognostications as to the range of unintended consequences potentially yielded by a wide construction of the only qualifier which is present. As Santow J pointed out, it was concerns of this kind that led the High Court to offer a rather tight construction of the expression "in trade or commence" in Concrete Constructions. However, for reasons which follow, I do not think that such concerns should produce a construction whereby the expression "any professional activity" is limited to an activity which, of its nature, bears a trading or commercial character.
187 First, and by way of a rather obvious starting point, since the defined term "trade or commerce" is, by Concrete Constructions, limited to activities or transactions which, of their nature, bear a trading or commercial character, any construction of the definition which produced no more than the same result would fly in the face of the apparent legislative intention. It is true that the Fair Trading Act was passed some four years before Concrete Constructions was decided, but it could not be suggested that that judgment gave to the term "trade or commerce" a meaning wider than that which the legislature might have had in contemplation. On any view, as a matter of ordinary language, there does seem to be something suspect about the proposition that the inclusion of the expression "any professional activity" into the meaning of "trade or commerce" does no more than to confirm that the activity in question must bear a trading or commercial character.
188 In Prestia, Santow J recognised the force of the considerations just referred to, but took the view that the narrower interpretation did not "involve the absurdity that the expanded definitions of trade or commerce added nothing to what would otherwise be connoted by those terms." (40 NSWLR at 189) His Honour continued:
Rather, these amendments were directed to remove any universal
exception in favour of professionals from the obligations in s 42. Such a
universal exception would be based on the notion that the professions are of
their nature callings incapable of being in trade or commerce. Such a
proposition was expressly rejected by the 1976 Report of the Trade Practices
Review Committee (the Swanson Report) when it stated that it regarded as
unrealistic the proposition that members of the professions are not part of the
business community (at 1030, 1034). If that rejection be right as a matter of
interpretation of the law, then the definitional extension in the Act to embrace
professions, was merely clarificatory rather than reversing what would
otherwise have been the case. If so, the gap between s 52 of the
Commonwealth Act and the State legislation may be less than first supposed,
consistent with their substantively uniform, though complementary, operation.
I accept that the perception that the professions, or at least the traditional professions, did not operate "in trade or commerce" most probably explains the adoption of the expanded definition in the Fair Trading Act (NSW) in 1986. To Holman (decided in 1979) might be added Fawke v Holloway [1986] VR 411 (decided in December 1985). That circumstance does not, however, justify imposing upon the definition a meaning that would go no further than "trade or commerce" in a professional setting. The legislature (in either or both of NSW and WA) might have said that the expression "trade or commerce" included "the trading or commercial activities of any professional person, firm or company". That was not done. Rather, the term adopted was any professional activity. I do not consider that perceptions as to the non-trading character of the traditional professions should of itself be treated as sufficient to limit the connotation of that broad definition to the trading or commercial context.
189 Secondly, it is not as though, unless limited in the terms proposed in Prestia, the expression "any professional activity" would have to be read literally as referable to everything done by a professional or in the practice of a profession. The jurisprudence of Concrete Constructions, suitably adapted, would inform the construction of that expression no less than it does the construction of "trade or commerce". Thus purely instrumental functions, such as the giving of hand signals in traffic or the location of books in the office library, should not be regarded as professional activities, even when done by professionals in the course of their work. It is to put the same concept in different words to insist, as did Lindgren J in Plimer, that a professional activity be such as is unequivocally and distinctively characteristic of the carrying on of a profession. Thus, to use, and to adapt, the example proffered by Branson J in the same case, the practice of double entry bookkeeping should not be regarded as a professional activity for no reason other than that professional firms, along with many other businesses, might use that system.
190 Thirdly, there is no reason to believe that a judicially-introduced limitation of the kind proposed in Prestia would itself provide an unambiguous connotation in practical situations which arise. Taking the example of solicitors, what activities are contemplated as bearing a trading or commercial character? Would they include the activities involved in any professional engagement with a client? Would they include, for example, the activities involved in the provision of safe-keeping for former clients’ wills? Would they include the activities involved when a law society refers a member of the public to a practitioner who is prepared to act pro bono? Taking the example of any professional group, would they include the provision of professional qualifications for inclusion in a directory? Taking an example closer to the facts of the present case, would they include the activities involved when a medical specialist makes arrangements for a patient to undergo a procedure at a public hospital? I pose these miscellaneous questions merely to demonstrate that one should hesitate before introducing an unlegislated gloss upon an otherwise uncomplicated, relatively clear, expression upon no ground other than that it represents what the legislature probably would have said had it turned its mind to the problem. In many such cases, and in my view in this case, the court would not be removing the potential for ambiguity; rather, it would only be shifting the location of the debate to a different, and no less problematic, arena.
191 Fourthly, while admittedly, because of its very width, s 10 has the potential to present difficulties if not limited in some way, other provisions of the Fair Trading Act, which, by their terms, operate in confined settings (ie those referred to in par 184 above), provide no obvious reason to give the qualifier "any professional activity" anything other than its natural reading. The introduction of a further limitation, that the professional activity must bear a trading or commercial character, would bring confusion, where presently there is none. To take an example, s 12(2), as relevantly modified, provides that a person shall not, in any professional activity, in connection with the disposal, or possible disposal, of an interest in land, represent that the person has an affiliation which the person does not have. If the architect who had recently designed a refit for the kitchen of a house standing on a parcel of land, but having no commercial relationship with the intending buyer, informed the buyer that he or she (the architect) was a member of a respected professional body, when such was not the case, would that representation have been made not only in a professional activity but also in such an activity which bore a trading or commercial character? I can see no justification for introducing this additional layer of complication. I am disposed to think that to do so would be to prescribe a remedy which, if no worse than the malady, would clearly be no better.
192 For the foregoing reasons, I am unable to agree with the view expressed in Prestia that, in the Fair Trading Act, the expression "any professional activity" is confined to such an activity which bears a trading or commercial character. How, then, should that expression be construed in the context of its use in the Fair Trading Act? It is perhaps surprising that the legislature should have chosen to use an expression of such potentially wide application, and to have done so by way of specific modification of the provisions of the Trade Practices Act, without any reference to the matter either in the Second Reading Speech or in any of the accompanying parliamentary materials. But that seems to have been the case, both in NSW and in WA. The court is, in the circumstances, thrown back upon first principles in its task of construing this expression.
193 As mentioned above, the expression "any professional activity" does not extend to purely instrumental or mundane activities by which professionals or their staff execute their daily tasks. A professional activity is one that is unequivocally and distinctly characteristic of the carrying-on of a profession. This requirement prompts the question which is perhaps at the heart of the matter in the present case: is the concept of the carrying on of a profession limited to engagement in professional practice, whether as a principal or as an employee, or does it extend to functions of the kind carried on by the College? Here it is important to consider the underlying denotation of the word "professional". At base, a profession is "an occupation in which a professed knowledge of some subject, field, or science is applied; a vocation or career, especially one that involves prolonged training and a formal qualification ....". Thus "professional" is "[o]f, belonging to, or proper to a profession .... [r]elating to, connected with, or befitting a (particular) profession or calling; preliminary or necessary to the practice of a profession .... [e]ngaged in a profession, esp. one requiring special skill or training ...." (OED, 2nd ed). These senses of the noun and of the adjective are not limited to engagement in professional practice.
194 Is there anything in the terms, structure or objects of the Fair Trading Act that would make it inappropriate to give the expression "any professional activity" the kind of meaning referred to in the previous paragraph? Save to contend for the limitation proposed in Prestia, counsel for the College did not point to anything. To say that the Act was substantially concerned with trading and trading-like transactions would be to do no more than to beg the question presently for determination. The definition of "trade or commerce" is expanded, and it is expanded to include not only any professional activity but also any business activity. The word "business" includes a trade or profession. Any businesslike activity of a professional firm or person would be a "business activity". That the expression "professional activity" means something further again does seem to be a grammatically appropriate conclusion.
195 For the above reasons, I would not construe the expression "any professional activity" more narrowly than is implicit in the requirement that the activity in question be unequivocally and distinctly characteristic of the carrying-on of a profession, giving to the latter concept a connotation which is not limited to engagement in professional practice. I do not think that there is any legitimate basis, as a matter of construction, for excluding from the expression the activities of associations of professionals such as the College, if the facts otherwise fit the natural construction which I favour. Against this broad conclusion, I turn to the circumstances of the College as revealed in the evidence in the present case.
196 Here certain things are clear. First, the nature of the calling, vocation or pursuit both of the appellant and of the persons who constituted the body which she sought to join was "professional" in even the narrowest sense of the word. This proceeding does not present an occasion for the exploration of the limits of that word in its possible application, for instance, to footballers, film stars and others. Secondly, the College was a professional body whose members were concerned to advance knowledge and to maintain standards in dermatology; and to do so selflessly. Thirdly, the establishment of standards of learning, and the enforcement of those standards through its training program, were significant elements of the College’s overall activities. They were not merely incidental. In these two latter respects, I refer, for example, to the passages in the training handbook set out in par 55 above. Fourthly, in the transactions presently relevant, the College acted as such. That is to say, this was not a case in which there was no more than an instrumental act or omission by a subordinate functionary. The representations which the trial Judge found to have been misleading or false were made in a formal publication of the College and were addressed to the cohort of persons with whom the College intended to have dealings. Fifthly, the training program, and the selection process within it, were tightly-organised, systematic and ongoing activities of the College. There was nothing ad hoc about them, or about the publication of the handbooks in which the representations were made.
197 As to the particular activities or transactions in the course of which the representations in issue were made, the first group concerned the selection and interview processes. Here the question for the selection panel was who was the practitioner best equipped to take advantage of the limited opportunities for training as a registrar at the four Western Australian hospitals where that training was to occur. That question had both a content and a context which were unambiguously professional. The assessment and selection were done by professionals and on professional grounds. Likewise with the second group of activities relating to the appeal process (although, in the particular facts of the case, this group must be regarded as notional, since the appellant’s very complaint was that there was no meaningful appeal). Had it occurred, a review on appeal of the selection committee’s original choice of candidate would have taken its colour from that choice. It too would have been a professional activity.
198 I take the view that the activities or transactions in the course of which the record-keeping representation and the meaningful appeal representation were made were unequivocally and distinctly characteristic of the carrying on of the profession of dermatologists. I consider that it would be quite artificial to regard them otherwise. Those activities were professional activities within the extended meaning of "trade or commerce" in the Fair Trading Act, and the trial Judge was in error not to have held so.
SECTIONS 10 AND 12 OF THE FAIR TRADING ACT
199 For reasons set out in pars 90-94 above, it should be held that, in making the record-keeping representation, the College contravened s 10, ands pars (b) and (l) of s 12, of the Fair Trading Act. As to the meaningful appeal representation, as mentioned above, it should be taken that the trial Judge held that that representation was wrong, and therefore was both misleading and false. By making it, the College engaged in misleading conduct contrary to s 10 of the Fair Trading Act.
200 Paragraph (b) of s 12(1) of the Fair Trading Act provided that a person should not, in any professional activity, in connection with the supply or possible supply of services, falsely represent that the services were of a particular standard, quality or grade. In that Act, "services" was defined so as to include "any rights ..., benefits, or facilities that are, or are to be, provided, granted or conferred in [any professional activity]". It seems tolerably clear that the right to have a meaningful appeal against the decision of a selection committee in the circumstances of the present case should be regarded as a right or benefit within the terms of this definition. The meaningful appeal representation was, in the circumstances, made in connection with the supply, or possible supply, of that right or benefit. Further, I consider that that representation conveyed the sense that the right or benefit in question was of a particular standard or quality within the terms of s 12(1)(b) of the Fair Trading Act. The purport of the representation was that a disappointed applicant such as the appellant would have been afforded an opportunity to challenge the decision of the selection committee by means of a process, and within a time-frame, which permitted a reconsideration of that decision on the merits, and the achievement, if appropriate, of an outcome which was just and workable in practice; ie an outcome which would involve a change in the recommendation which the College made to the hospital as to the identity of the trainee registrar in dermatology to be appointed in a particular year. To the extent that there was an appeal process in place at all, manifestly it did not have these features. It was not of the standard or quality stated in the meaningful appeal representation. In the circumstances, that representation was false and, in making it, the College contravened s 12(1)(b) of the Fair Trading Act.
201 For the same reasons, the meaningful appeal representation should be held to be a false or misleading one, and to concern the existence of any right, within the terms of par (l) of s 12(1) of the Fair Trading Act. By making that representation, the College should be held to have contravened that paragraph.
SECTION 18 OF THE FAIR TRADING ACT
202 In holding that s 55A of the Trade Practices Act required proof beyond reasonable doubt, the trial Judge followed Trade Practices Commission v J & R Enterprises Pty Ltd (1991) 99 ALR 325, 337-339. In that case, O’Loughlin J said (at 338-339):
Conduct that amounts to a breach of s 55A constitutes the commission of an offence -- that is, a breach of s 79 -- attracting, in the case of a corporation, a fine not exceeding $100,000. On the other hand, no penal consequences attach to conduct that amounts to a breach of s 52 -- only civil consequences flow. It stands to reason therefore that the "risk" (to use a neutral word) of the public being misled must be the greater, not the lesser, to constitute a breach of the provisions of s 55A. Having regard to the context in which the word "liable" appears in s 55A and bearing in mind the nexus between that word and the word "likely" in s 52, I am of the opinion that the onus that the Crown must face in proving the commission of a breach of s 55A is explained by saying that the Crown must satisfy the court beyond reasonable doubt that the company's conduct was such that there was an actual probability that the public would be misled.
In the present case, the trial Judge held that it had not been established, beyond reasonable doubt, that the conduct in which the College engaged – with respect either to the record-keeping representation or to the meaningful appeal representation – was liable to mislead the public as to the nature etc of any services.
203 It was submitted on behalf of the appellant that J & R Enterprises had been decided the way it was because of the then terms of s 79 of the Trade Practices Act, by which a breach of s 55A amounted to the commission of an offence. Section 79 was subsequently amended such that a contravention of s 55A was, at the time of the making of the representations which were relevant in the present case, no longer an offence. It was submitted, therefore, that his Honour was in error to have required the appellant to make good her factual case beyond reasonable doubt. This submission is only partly well-founded. Section 78 of the Trade Practices Act made contravention of s 55A an offence until an amendment which commenced on 15 December 2001. Thus, if the College were to be proceeded against for contraventions of s 55A constituted by representations appearing in the 2001 training handbook, the factual case would have had to be proved beyond reasonable doubt. To that extent, his Honour did not err in the way he dealt with the applicant’s case under s 55A. In relation to subsequent years, however, counsel were correct in their submission that proof beyond reasonable doubt was no longer required.
204 However, at all relevant times, by the terms of s 69 of the Fair Trading Act, a contravention of s 18 of that Act was (and still is) "a crime". The facts necessary to establish a contravention of s 18, therefore, had to be proved beyond reasonable doubt. Thus, although the trial Judge may have been partly mistaken in his view as to s 55A of the Trade Practices Act, his conclusion that the facts required to make good a contravention of that provision had not been established beyond reasonable doubt applies equally in the context of s 18 of the Fair Trading Act. The appellant did not contend that his Honour was in error not to have been persuaded of those facts beyond reasonable doubt. In the circumstances, his Honour was not in error not to have found that the College had contravened s 18 of the Fair Trading Act.
SECTIONS 52, 53 AND 55A OF THE TRADE PRACTICES ACT
205 Since the other members of the court take the view that the record-keeping representation and the meaningful appeal representation were made "in trade or commerce" within the meaning of the Trade Practices Act, it will be necessary to deal with the operation of ss 52, 53 and 55A of that Act in the circumstances. Section 52, and pars (aa) and (g) of s 53, operate in the same way, and produce the same results, as do s 10, and pars (b) and (l) of s 12 (respectively), of the Fair Trading Act. I would reach the same conclusions under these provisions of the Trade Practices Act as I did in relation to the corresponding provisions of the Fair Trading Act.
206 The operation of s 55A of the Trade Practices Act requires a slightly more involved consideration. As noted above, the position with respect to the onus of proof is the same here as under s 18 of the Fair Trading Act in relation to the representations appearing in the 2001 training handbook. Thus I do not consider that any error has been shown in his Honour’s disposition of the appellant’s case to the extent that it relied upon those representations. However, when the corresponding representations were made in the handbooks for 2002, 2003 and 2004, it was the civil onus of proof which should have been applied to the case under s 55A, and his Honour was in error not to have done so (within the context of the provisional findings which he relevantly made). The question which presently arises, therefore, is whether it was established on a balance of probabilities that, when it made the representations in question in those years, the College engaged in conduct that was liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services. As noted elsewhere in these reasons, his Honour found, for the purposes of s 53(aa) of the Trade Practices Act, that the College supplied services when it engaged in the conduct to which the record-keeping representation was relevant. I have reached a like conclusion (albeit for the purposes of s 12(b) of the Fair Trading Act) in relation to the conduct surrounding the making of the meaningful appeal representation. Carrying those conclusions into the context of s 55A, the remaining questions are whether the two representations related to the nature, the characteristics, the suitability for their purpose or the quantity of those services and whether those representations were liable to mislead the public. Based on the findings referred to above, it should be held that the record-keeping representation and the meaningful appeal representation dealt at least with "the suitability for their purpose" of the services to which those representations related. I am also disposed to think that they dealt with the subject of the "characteristics" of those services.
207 However, I consider that it would be artificial to treat the representations as though they were addressed to "the public". I accept, of course, that the concept of "the public" is, in an appropriate context, narrower than the world at large, and narrower even than all persons who, for example, live or work within a particular area. I would accept that a representation might be regarded as being addressed to the public in the relevant sense notwithstanding that the potential users of the services in question were, in the nature of things, few in number. I have in mind, for example, a representation made in an advertisement for services of a very specialised kind. It would be the generality of the range of persons to whom the representation was addressed, rather than the practical likelihood of many of them being interested in acting upon the representation, that would justify the conclusion that it was addressed to the public: see Lee v Evans [1964] HCA 65; (1964) 112 CLR 276 and J & R Enterprises 99 ALR at 347-348. However, in the present case the representations were not made to the public at all. They were made to medical practitioners who enquired about, or showed an interest in, becoming Fellows of the College, and even then only to such practitioners as had passed the Part 1 examination or its equivalent. In this respect I would add that, in their endeavour to persuade us that s 55A was activated in the circumstances of the present case, counsel for the appellant referred to no evidence as to the public availability of the training handbooks, or to the public accessibility of the College’s web site, from which the appellant downloaded at least some of those handbooks; and his Honour made no findings on these questions. In the circumstances, I do not think it has been established as a matter of fact that the representations upon which the appellant sued were addressed to the public for the purposes of s 55A of the Trade Practices Act. For those reasons, I would dismiss so much of the appellant’s case as relies upon that section.
THE APPELLANT’S CASE IN CONTRACT
208 There are, with respect, two concerns that I have with the reasoning by which the trial Judge came to the conclusion that the transactions whereby the appellant lodged appeals from the decisions of the selection committee were not accompanied by a mutual intention to create legal relations. The first relates to his Honour’s assimilation of the position of the College to that of a voluntary association. There are two problems which arise here. First, the College was not a voluntary association: it was a company. On appeal, counsel for the College submitted that, as a group of practising professionals whose interest in the College was not by way of shareholding, the members of the College, collectively, had the characteristics of a voluntary association, and no difference was made by the formal circumstance that the College was incorporated. It might be asked, however, if not for the assumed absence of incorporation, why should it be relevant, and why did his Honour observe, that the College was a voluntary association? This brings me to the second point, namely, that this was not a case involving an attempt to enforce the compact existing as between members of an association, whether incorporated or not. With respect to his Honour, I do not consider that the situation existing as between such an association and an outsider (such as the appellant in the present case) should be regarded as "a fortiori" what his Honour apparently regarded as the paradigm case of one in which the parties to an arrangement would not intend to create legal relations (ie the members of such an association apropos the compact existing between them). I consider that his Honour was in error to have had recourse to the supposed analogy of the internal relations existing between members of a voluntary association for the purpose of resolving the question whether there was an intention to create legal relations on the facts presented by the case before him.
209 My second concern is with the purposes for which his Honour deployed his conclusion that the College "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." Resolution of the question whether the parties in a particular case intended to create legal relations "requires an objective assessment of the state of affairs between the parties" (Ermogenous, 209 CLR at 105). Elsewhere in his reasons, the trial Judge recognised that an objective approach was required, but in the passage to which I have just referred, which was somewhat critical in his Honour’s determination of the matter, his Honour appears, with respect, to have adopted a subjective approach, and to have taken account of the uncommunicated intentions of the College. No such unfettered ability to substitute unconventional outcomes as his Honour referred to was implied by the objective state of affairs existing between the parties. Indeed, the outcomes which were available to an appeals committee, upon the conclusion of an appeal, were specified in very conventional terms in the training handbook in each of the relevant years. I have set out, and refer to by way of example, the provisions which appeared in the 2002 handbook, in par 82 above. In the light of provisions of this kind, his Honour’s observation, set out at the start of this paragraph, could only have been a reference to a view which the College took, and which was uncommunicated as at the time when the contracts, in other respects taken to have been complete, were entered into.
210 Before dealing with the question of an intention to create legal relations, I should reiterate, and emphasise the significance of, the concession by the College to which I have referred at par 136 above. The only basis upon which the College contended on an appeal that a contract in the terms alleged by the appellant had not come into existence was that the transactions in question were not accompanied by an intention to create legal relations. The appellant’s case in contract was otherwise accepted. In the result, we must proceed on the basis, as alleged by the appellant, that, each time she lodged an appeal, she brought a contract into existence which contained the implied terms to which I have referred in par 133 above. As so pleaded, and accepted by the College, the appellant’s case necessarily was that the lodgment of an appeal by her in each of the relevant years amounted to the acceptance of an offer previously made by the College. Neither did the College place any reliance upon the appellant’s failure to pay what the College asserted was the full appeal fee in relation to her unsuccessful application in 2003. It must also be accepted, since it was conceded by the College, that the contract, if there was one in each of the relevant years, was breached in the ways alleged by the appellant.
211 On appeal, the appellant accepted that, in Ermogenous, "the High Court has rejected the use of presumptions to establish an intention to create legal relations" (the terms of the appellant’s outline of submissions). The College noted the concession by the appellant "that the question is not to be resolved by reference to presumptions" (the terms of the College’s submissions). Thus the appellant did not rely upon Edwards, and did not propose that the present case was one in which, by reason of its commercial or business context, the College bore the onus of proving an absence of intention to create legal relations.
212 I shall approach the question by reference to the consistent position adopted by the parties, referred to in the previous paragraph. In doing so, I would not wish it to be taken that I would necessarily accept the correctness of that position. The principle for which Edwards stands (ie that, in a business context, and where the requirements of a contract are otherwise established, the person proposing that the parties did not intend to create legal relations bears the onus of so proving) has stood the test of time, is consistently referred to in the standard texts on contract law and has the authority of the English Court of Appeal (see Orion Insurance Co PLC v Sphere Drake Insurance PLC [1992] 1 Lloyds Rep 239). I would pause before regarding it as self-evident that in Ermogenous – a proceeding concerned not with business affairs but with the engagement of a member of the clergy – the High Court had, without reference either to Edwards or to the cases dealing with commercial situations, dispensed with the presumption. While I note that, in Pirt (a case decided before Ermogenous), Murray J, with the agreement of Ipp and Owen JJ, took the view that the principle referred at most to the locus of the evidentiary onus, I also note that, in Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWSC 235, the NSW Court of Appeal referred to the presumption as a strong one, which would "only be rebutted with difficulty" [at 48]).
213 There is a further reason why the question in the present case should not be resolved by reference to the principle in Edwards. As I have noted, the trial Judge held that the agreements between the appellant and the College did not relate to business affairs. The appellant did not challenge that conclusion. I see no reason to doubt its correctness. Indeed, I am disposed to the view that the agreements here were sui generis and were not in any event agreements of the kind to which the principle in Edwards should be applied.
214 The general context within which the College’s promise was made was provided by the training program as a whole. For the College, that program was clearly a subject of the greatest importance. It was the means by which the College established and maintained standards within the profession. The annual handbooks were both detailed and comprehensive, and left the reader in no doubt as to the importance of the matters covered thereby or as to the significance of the obligations undertaken by, and of the standards expected of, practitioners. From the viewpoint of an individual practitioner participating (or seeking to participate) in the program, undoubtedly the subject matter of the transactions covered was weighty. For him or her, to undertake the training program involved a major commitment in time and energy. The purpose was to embark upon a new and more demanding career. The opportunity costs involved in undertaking a program of this kind are obvious. For the parties in the present case, therefore, the context was a businesslike one. For the College, training was a significant function and clearly one of the reasons for which it existed. For the appellant, training was the means by which she would, eventually, change the way she worked. It is, in my view, quite improbable that the parties to an agreement made in such a setting would not intend their agreement to be binding in law.
215 The agreement between the appellant and the College which the trial Judge held was not accompanied by an intention to create legal relations involved an appeal from the decision of the selection committee. In each case the appellant paid a fee of not insubstantial proportions, in return for which the College promised that there would be an appeal with the characteristics alleged by the appellant. Where one party makes, and the other party accepts, a money payment as consideration for a promise by the other to provide some service or to bestow some benefit, the proposition that each intended the promise to be taken seriously and to carry the conventional legal consequences does seem rather obvious. This is not a case with unusual or idiosyncratic features. Here the parties were at arm’s length. Their only relationship was that constituted by the training program as a whole and by the appellant’s status as a provisional trainee. That the disinterested bystander would think that the appellant would pay, and that the College would accept, a fee in the sum of $1,500 or $5,000 (plus GST in each case) without any intention that the College would, as a matter of law and not only in honour, be obliged to perform its promise seems quite improbable.
216 Likewise, the terms of the appendix in the training handbook each year, by which the appeal process was outlined, strongly bespoke an intention to create legal relations. This was, of course, the College’s own document. In the preamble to the appendix, it was said that grievances could be addressed "in a properly constructed and formal manner". The College recognised "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". Persons participating in the appeal were described as "parties". The College solicitor was to be legal adviser to the appeals committee. The subject matter of an appeal was identified, in the conventional legal sense, as "grounds". One of the limited grounds upon which an appeal could be brought was that "an error in law or in due process" had occurred. The appendix contained an onus of proof provision. The appellant was entitled to be assisted by another person, "who may be a legal representative". The procedure for the conduct of an appeals committee hearing was set down in some detail in the appendix, and broadly followed what would be appropriate for a quasi-judicial tribunal. The appeals committee had wide powers, including the capacity to revoke the decision from which an appeal was brought. Generally, the appendix displayed a systematic and businesslike approach to the disposition of the appeals with which it dealt. It had all the hallmarks of a document which provided for the legal, and not merely for the informal, regulation of such appeals.
217 For the reasons set out above, I take the view that the transaction by which the appellant lodged her appeal in each of the relevant years was accompanied by a mutual intention to create legal relations. Any objective assessment of the terms of the agreements alleged, and of the circumstances surrounding their making, could, in my view, lead to no other conclusion. I consider that the appellant has made good her case in contract down to the point where the question of loss or damage must be considered. It is to that question, and to the issue of remedies generally, that I next turn.
DAMAGES AND OTHER REMEDIES
218 The submissions made on behalf of the appellant with respect to damages were confined to the loss and damage which it was contended she suffered by reason of the absence of what was described as "a proper and genuine appeals process". The question is, therefore, whether, in the light of the findings set out, the appellant is entitled to damages under s 79 of the Fair Trading Act by reason of the making of the meaningful appeal representation, and/or to damages for breach of contract. On the statutory claim, I shall for the sake of simplicity confine myself to s 79, but my reasons apply equally to the situation arising under s 82 of the Trade Practices Act, of which the other members of the court have held the appellant may avail herself in the circumstances. I shall deal with s 87 of that Act separately.
219 The appellant claimed damages in three respects. First, she claimed to have been denied the opportunity to establish her merit before an appeals committee as the best candidate for the single position of trainee registrar in dermatology in each of the relevant years. Secondly, she claimed that the conduct of the College, in relevant respects, had caused her anxiety and distress, and that she was entitled to be compensated therefor, either by way of general damages or by way of aggravated damages justified by what was said to have been a contumelious disregard of her rights by the College. Thirdly, the appellant claimed damages in respect of what was described as "out of pocket expenditure" incurred by her in the lodgement, and in her attempts to prosecute, the internal appeals.
220 The claim for damages for loss of opportunity may be dealt with shortly. This claim, quite obviously, could at most be relevant with respect to the appellant’s cause of action for breach of contract. But it could not be sustained on the facts in the present case. The appellant cannot use the concept of a "loss of opportunity" as though she were prevented from participating in a contest in which, had she participated, she would have had an opportunity to succeed, and thereby to derive benefits. Rather, as noted elsewhere, at least by the time of the hearing of the appeal the appellant had made it quite clear that she did not contend that, in any of the relevant years, she would most likely have been held by the College to be the practitioner best qualified to take up the single position of trainee registrar in dermatology which was then available. Indeed, in a finding which was not challenged on appeal, the trial Judge said: "Objectively viewed, the persons selected in each of the years in which [the appellant] lodged appeals had relevant qualifications unable to be matched by her record." I would hold, therefore, that the appellant lost nothing in the way of a foregone opportunity by reason of the appeals not having been meaningfully conducted as promised by the College.
221 Turning to the appellant’s claim for damages for anxiety and distress, the trial Judge dealt with that claim as a matter first of general damages and secondly of aggravated damages. Under the first heading, his Honour was not satisfied that the appellant had made out any case for damages with respect to anxiety and distress. Under the second heading, his Honour held that, even if the College’s conduct had been in trade or commerce, the appellant had not established that "anxiety and stress" were caused to her by such of that conduct on which she relied. On appeal, it was submitted on behalf of the appellant (correctly, with respect) that his Honour had not provided any reasons for these conclusions. It was pointed out that the appellant had given evidence on the subject of the anxiety and distress which she claimed to have suffered, and that she was not cross-examined on that evidence.
222 We were referred to so much of the evidence before the trial Judge as related to the matter of anxiety and distress. For present purposes, it is sufficient to refer to pars 299-301 of the appellant’s witness statement dated 28 March 2006, which read as follows:
I remained profoundly emotionally distressed for the entire 2003 as the College did not conduct the appeal process and further it declined me feedback in that year. Mediation held in October 2003 in Adelaide was itself a stressful experience. I had to leave my two young daughters behind and nothing worthwhile happened in that process. I lost both in terms of my time and money. At the time the College tried to probe me in an unwarranted manner for an issue that could have been dealt in a more reasonable and courteous way.
The year 2004 continued to add to my agony. After the College did not respond to any communications for nearly 4 months (December 2002 to March 8, 2003) even after being given notice by my counsel, I was forced to commence legal proceedings against the College. This decision was very stressful and I had to wait for the whole year (2004) for appearing before the appeals committee in December 2004. I was quite pleased with the Court’s directions in October 2004, however, I was very stressed following the first ever directions hearing held by the College’s appeal committee.
During the directions hearing the appeals committee attitude was very unfriendly, self-serving and it had no consideration whatsoever for an applicant who had travelled all the way from Perth and who had her first opportunity to be heard after more than two years since she lodged her appeal. In fact the College’s secretary, Dr Shumack’s attitude in insisting forcefully that I must pay for the cost of the transcript was very negative. It was not the money part – it was the attitude that really hurt me. The whole episode was emotionally very distressing.
It will be seen that the appellant’s claim at least potentially speaks both under the Fair Trading Act and in contract. Under the Act, relying upon the meaningful appeal representation, the appellant lodged her appeals, and attempted to prosecute the first one. Had the representation not have been made, she would not have lodged any appeal, and would not have suffered the anxiety and distress which, she claims, were associated with the appeals which she did lodge. Under contract, the applicant’s anxiety and distress may, if her factual case is accepted, be viewed as resulting at least substantially from the failure of the College to provide a meaningful appeal process, as promised. Both in the statutory and in the contractual context, however, legal questions arise which must be answered favourably to the appellant if she is to sustain her claim in relevant respects. It is to those questions that I next turn.
223 In support of the appellant’s claim for damages for anxiety and distress (to which I shall refer as "anxiety damages") under the Trade Practices Act, her counsel relied upon the judgment of the NSW Court of Appeal in Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131. It was there held that aggravated damages, including anxiety damages, were available under s 87 of that Act. However, the Fair Trading Act contains no analogue of s 87 of the Trade Practices Act. Section 79 of the Fair Trading Act corresponds with s 82 of the Trade Practices Act. It reads as follows:
(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part II (sections 11 and 11A excepted), Part III, Part V or Part VI, may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.(2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.
Also relevant is s 5(5) of the Fair Trading Act, which provides:
In this Act:
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
Recourse to s 5(5) gives s 79 the following reading:
A person who suffers injury by conduct of another person ... may recover damages in respect of that injury by action against that other person ....
In the present case, therefore, the question is whether the anxiety and distress experienced by the appellant amounted to "injury" in the statutory sense.
224 An affirmative answer to that question is suggested by Holt v Biroka Pty Ltd (1988) 13 NSWLR 629, 637. However, it was apparently not contested in that case that "mental distress and vexation" fell within the relevant connotation of "injury" in the NSW equivalent of s 5(5). The matter was touched upon in Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494. Although there was, in that case, no claim for damages in respect of non-economic detriment, in their joint judgment McHugh, Hayne and Callinan JJ noted that s 82 of the Trade Practices Act (the analogue of s 79 of the Fair Trading Act) contained "no stated limitation of the kinds of loss or damage that may be recovered..." (196 CLR at 509 [34]). Their Honours also noted that s 82 was "not confined to economic loss", referring in this regard to s 4K of the Trade Practices Act (the analogue of s 5(5) here). In the course of holding that the damages which a party sustained by reason of the misleading conduct of a second party were the measure of the extent by which the first was worse off as a result of the conduct, their Honours said (at 515 [53]):
Nor do we accept that the extension by s 4K of loss or damage to "injury" leads to any different conclusion. It may be that "injury" in s 4K is intended to refer to injury to the person but we do not need to decide if that is so. Even if "injury" is to be given some wider meaning than personal injury, we do not accept that a person suffers injury simply because a hoped for advantage does not materialise. The central inquiry is what consequence has the contravention of the Act had on the party in question. That requires comparison between the position in fact of the party which alleges loss and the position that would have obtained had there been no contravention.
225 In Marks, Gummow J also dealt with the construction of s 82 of the Trade Practices Act. His Honour said (at 526 [93]):
It was suggested in argument that s 4K was concerned with the inclusion of damages for personal injury, thereby apparently providing some ground for the controversy which eventually was resolved in Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 and Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. There is nothing in its text to indicate that "injury" is so confined. Section 4K performs quite a different function in disentangling the various elements compounded in the concise language of s 82. "Injury" is used in s 4K in the sense of "actionable wrong".
Gummow J also said (at 527 [96]):
Section 4K indicates that the phrase "loss or damage" performs two functions in s 82. It refers to the injury which constitutes the wrong and, as a component of the phrase "the amount of any loss or damage", it identifies the measure of compensation. Gates was concerned with the latter not the former. The analogy in respect of tort was expressed in terms of "measure of damages" Gates [1986] HCA 3; (1986) 160 CLR 1 at 6-7, 14-15. And, as will appear, in s 87(1A) the phrase "loss or damage" is used first to identify injury and then the measure of compensation for it. Failure to appreciate these distinctions may be conducive to imprecise analysis of the operation of ss 82 and 87 in a given case.
The judgment of the other member of the majority in Marks, Gaudron J, did not touch upon the present question.
226 Although the question whether the term "injury" in s 4K of the Trade Practices Act meant something wider than personal injury was left open in the joint judgment in Marks, the matter was taken further by a unanimous High Court in Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388. The court said (at 407 [45]):
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] HCA 69; (1998) 196 CLR 494; at 513 [46] per McHugh, Hayne and Callinan JJ, CLR 526–7 [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.
Their Honours’ reference, with apparent approval, to pars [93] – [96] of the judgment of Gummow J in Marks provides the most authoritative judicial support for the proposition that "injury" in s 4K of the Trade Practices Act is not confined to personal injury, but may extend to any detriment (indirect though that support undoubtedly was).
227 In the Full Court of this court, the authority most directly relevant in present respects is Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31. In their judgment in that case, both Gummow J (at 43) and Cooper J (at 47) drew attention to the reference in s 82 of the Trade Practices Act to "the amount of the loss or damage". Although Demagogue itself did not involve an award of damages for non-economic detriment, Cooper J stated that, under s 82, "it is the quantum or assessment of the loss or damage suffered in monetary terms which must be demonstrated"; and Gummow J implied as much. To the extent that these observations might be read as confining s 82 to actions for the recovery of economic loss, I do not, with respect, think that they can stand alongside the judgments in Marks and Murphy to which I have referred.
228 In its dictionary meaning, the word "injury" covers much more than a personal (ie bodily) injury. It extends to "harm, detriment or damage" (OED, 2nd ed). The notion of "injury in trade" is well established in the common law. That legislation of the nature of the Trade Practices Act and the Fair Trading Act might have adopted the term "injury" in a sense that was confined to personal injury seems quite unlikely.
229 Returning to the positions of the parties in the present case, I have referred to the position of the appellant in par 219 above. The respondent’s position was stated in its outline as follows:
Although damages may be awarded for distress under section 82 if there is an appropriate causal link established, the learned Trial Judge was not in error in finding that there was no such evidence to support such a claim...
Although the basis of the concession contained in the subordinate clause of this proposition was not developed on behalf of the College, the authorities to which I have referred appear to sustain the conclusion that it was wisely made.
230 That leaves the question of causation. Contrary to the submissions of the College, the trial Judge did not find that there was no evidence to support the claim for anxiety damages. Under the heading of "general damages", his Honour expressed the unqualified (and, with respect, unexplained) conclusion that the appellant had not "made out any case for damages" of this kind. I would not regard that conclusion as the result of an analysis of the evidence or as based on a view about causation. Likewise, under the heading "aggravated and or/exemplary damages" his Honour referred to the submissions of the parties and concluded, without elaboration, that the appellant had not "established that anxiety and stress were caused to her" by the conduct of the College on which she relied. In neither case did his Honour refer to those parts of the appellant’s evidence that I have set out in par 222 above, upon which she was not, we were assured, cross-examined.
231 I would accept the appellant’s proposition that, absent the making of the meaningful appeal representation, she would not have lodged or prosecuted any of her internal appeals. To the extent that the anxiety and distress which she suffered came about because of her participation in the processes of those appeals, there could not be any serious contest about the proposition that it was caused by the representation. In the words of s 79, it was an injury "by conduct" of the College.
232 Not all of the matters set out in the paragraphs of the appellant’s witness statement which I have extracted in par 222 above constituted evidence of anxiety and distress as a result of participation in the appeals as such. The references to the court proceedings did not. However, allowing for this qualification, I consider that some injury in the sense of s 79 was suffered by the appellant, and that appropriate compensation therefor would be an award of damages in the sum of $2,500.
233 It was not suggested that anxiety damages were any less available under s 87 of the Trade Practices Act than under s 82 of that Act (or its Fair Trading Act analogue, s 79). Indeed, as mentioned above, Collings Construction was decided by reference to s 87. The award of anxiety damages which I would make might, in the light of the conclusion of the other members of the court on the "trade or commerce" point, equally have been made under s 87 (in the form that it took at all times relevant to the making of the representations upon which the appellant sued). Although s 87 referred to "compensation" in terms, I do not think it called up any wider concept of loss and damage than did s 82, at least to the extent relevant for present purposes. In the circumstances, I would not make an award any different from that set out above with reference to s 79 of the Fair Trading Act. I would note simply that that award might equally have been made under s 82 or s 87 of the Trade Practices Act.
234 The appellant’s claim for anxiety damages for the College’s breach of contract falls for resolution by reference to Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344, 365. If the appellant did sustain loss and damage of the kind referred to in her witness statement, and if that came about as a consequence of the breach, nonetheless the relevant promise made by the College was not that the appellant would be provided with an anxiety-free environment within which to prosecute her appeals. The situation does not, therefore, fall within the exceptional category to which Mason CJ referred in Baltic Shipping. In the circumstances, the claim in contract for anxiety damages should fail.
235 The appellant claimed compensation for the out-of-pocket expenses which she was, she claimed, obliged to incur in connection with the lodgement of her three internal appeals, and with her attempts to prosecute the first appeal. During the hearing of the appeal, her counsel handed up a schedule of these expenses. The schedule, read with the appellant’s written response to questions addressed to her by the College pursuant to orders made by the trial Judge on 3 May 2006, discloses the making of expenditures according to the following categories (including goods and services tax in each case):
(a) Items admitted by the College (items Nos. 17, 19, 22, 33, 34, 36, 38, 52, 55 and 58) in the sum of $10,684.92.
(b) Legal fees and expenses payable to the legal practitioner engaged by the appellant (items Nos. 20, 24, 25, 29, 31, 37, 47, 53, 54, 60 and 67) in the sum of $58,139.38.
(c) Air fares (items Nos. 30, 32 and 51) in the sum of $4,495.72.
(d) Items left unexplained by the appellant’s written response (items Nos. 21 and 35) in the sum of $203.00.
I shall consider each of these categories in turn.
236 Category (a) consists of expenses which the College accepts were incurred by the appellant in connection with her internal appeals. There could be no doubt that the appellant lodged her appeals, and prosecuted the first one, in reliance upon the meaningful appeal representation. Had the representation not been made at all, clearly appeals would not have been lodged, and these expenses would not have been incurred. Accordingly, I would allow the sum of $10,684.92 as damages under s 79 of the Fair Trading Act.
237 Category (b) consists of legal fees and expenses. The appellant engaged a legal practitioner to represent her in connection with the internal appeals. I consider that this was a reasonable step for her to have taken. The use of legal representation will not always be a reasonable step when the proceedings of domestic tribunals are concerned, but here there was a measure of procedural complexity, and possibly uncertainty, due in large measure to the fact that this was, it seems, the first occasion upon which such an appeal had been lodged and that it was the appellant’s appeal itself which revealed the inadequacy of the College’s procedures and institutions in relevant respects. In point of principle, therefore, I would allow so much of the fees and disbursements of the appellant’s legal practitioner as can be shown to have been reasonably necessary for the prosecution of the internal appeals.
238 However, it was submitted on behalf of the College that the appellant had not established that the payments to the practitioner in fact related to her internal appeals rather than, for example, to a complaint which she made to the Commission on the subject of her difficulties with the College, or that, to the extent that they did so relate, that the amounts paid had been reasonably necessary. These were legitimate objections on the part of the College. To resolve them requires an examination of the evidence upon which the appellant relied in relevant respects. Her counsel handed up a lengthy list of the numbered pages in the appeal book to which we might refer, but otherwise made no submission of any assistance to us.
239 All of the items on the appellant’s schedule of expenses which related to legal fees and disbursements are endorsed "legal expenses – appeal". As will appear, in at least one respect this endorsement is plainly wrong. In most other respects, insufficient detail is provided to permit the court to make any assessment of whether the outgoings in question were reasonably necessary.
240 The schedule of outgoings indicated that the appellant made payments to her practitioner as follows:
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Item No.
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Date of payment
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Amount
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20
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11 March 2003
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$2,506.50
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24
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6 June 2003
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$5,000.00
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25
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27 June 2003
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$5,000.00
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29
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2 July 2003
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$5,000.00
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31
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7 November 2003
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$2,200.00
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37
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1 December 2003
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$2,420.00
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47
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30 June 2004
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$1,500.00
|
|
53
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16 December 2004
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$2,500.00
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54
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17 December 2004
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$1,000.00
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60
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11 March 2005
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$2,500.00
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67
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30 June 2005
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$28,512.88
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In the written response to the College’s questions to which I have referred, the appellant said that she could not "locate" the practitioner’s invoice with respect to item No. 20. She said that, on 30 June 2006, the practitioner rendered a comprehensive invoice covering the period from December 2002 to February 2005. This appears to have been in the same form as a like invoice dated 9 March 2006. Both comprehensive invoices were in evidence. Rather than refer to the invoice (if any) to which each payment in the above table related, the appellant said, in the written response, "refer response to claim number 20". Thus, to justify the expenses in relation to which she sought damages, the appellant relied not upon the invoice that related to each outgoing, but upon a comprehensive invoice rendered well after the event. The latter consisted simply of a list of dated items, almost always noted as a "letter" to or from someone, together with the corresponding fee, always in a multiple of $200.
241 As it happens, there were in evidence before the trial Judge some of the original invoices that appear to have been rendered by the practitioner to the appellant. The first was dated 6 June 2003, and seems to correspond to the outgoing which is item No. 24 on the appellant’s schedule. The component of work covered by the invoice was identified only as "advices". The second was dated 27 June 2003, and seems to correspond to the outgoing which is item No. 25 on the appellant’s schedule. Again, the component of work covered by the invoice was identified only as "advices". It is not possible to relate these invoices to the items of work referred to as "letters" in the comprehensive invoice. The third was dated 3 November 2003, and seems clearly to relate to item No. 31 on the appellant’s schedule of outgoings. The invoice refers to a "conference with yourselves and mediation with the College (excluding travel costs)" said to have occurred on 17/18 October 2003. There is a corresponding item, similarly described, in the comprehensive invoice of 30 June 2006. There was in fact a mediation, in connection with the appellant’s internal appeal, in Adelaide at about this time. The fourth was dated 25 November 2003, and refers to the drawing and settling of the appellant’s complaint to the Commission, and to a conference at the premises of the Commission in Canberra. The invoice was in the sum of $2,420.00, the sum which the appellant paid on 1 December 2003 (item No. 37).
242 I would not allow items Nos. 24 and 25. The appellant made no statement in her written response, and the trial Judge did not find, that these "advices" were solely for the purposes of her internal appeals. The fact that the invoices were effectively superseded by a comprehensive invoice to which they cannot be related makes them, and the comprehensive invoice itself, an unsound basis upon which to conclude that the outgoings in question were reasonably necessary for the lodgement and prosecution of the appeals.
243 I would allow item No. 31. The original invoice is in evidence, it corresponds both with the comprehensive invoice and with the evidence as to the legal work which, it may be inferred, was being performed in connection with the first appeal at the time in question.
244 I would not allow item No. 37. Manifestly, this item does not relate to any of the internal appeals, and should not have been included in the appellant’s claim for damages.
245 That brings me to the other items on the appellant’s schedule, those for which there appears to have been no original invoices in evidence. The first was item No. 20. In the written response to the College’s questions to which I have referred, the appellant said that there was a payment of $2,500 to the practitioner "for legal fees", together with $6.50 by way of bank cheque fee. She said that the expenditure was "solely for the purposes of the appeal". The payment in question was the first made by the appellant for services provided by her practitioner. To the extent that the payment bears any relation to the comprehensive invoice, I would infer, by reason of the timing, that the earliest entries on the latter are the relevant ones. They were:
December 2002 Advices and attending to brief $1200.00
12 December 2002 Letter to Dr Stephen Lee, Honorary $400.00 Secretary, Australian College of
Dermatologists (ADC)
12 December 2002 Letter to solicitors for ADC, $400.00
Russell Kennedy
20 December 2002 Letter to Russell Kennedy $400.00
20 December 2002 Letter to Dr EG Stewart-Wynne, $400.00
Royal Perth Hospital, Perth
It will be seen that no combination of these entries yields the sum of $2,500 which the appellant paid on 11 March 2003. On the face of it, therefore, the invoice does not relate to, and does not justify, the appellant’s claim that the payment was reasonably necessary for the prosecution of her appeal. Neither does the court (unassisted as we were by any submissions on behalf of the appellant) have any way of knowing whether the sum of $400 for each of the letters referred to above was reasonable in the circumstances. There was a letter from the practitioner to Dr Lee which, although undated, may be inferred to have been sent on or shortly before 12 December 2002. It was a little more than one page in length. It referred to the appeal which the appellant had lodged, suggested that it would be appropriate for her to commence training pending the determination of the appeal, and requested the provision of certain materials. There was no letter to Russell Kennedy dated on, or about, 12 December 2002, but there was a letter from that firm which bore that date. That letter was also a little over a page in length, and responded to the requests set out in the practitioner’s letter to Dr Lee. The practitioner’s letter of 20 December 2002 was a page in length, and took issue with that response in a number of respects. The letter to Dr Stewart-Wynne – also a page in length – suggested that the appellant should be employed at the hospital as an additional registrar in training. There is no satisfactory evidentiary base to conclude, in favour of the appellant and without any relevant findings by his Honour below, that the sums marked on the comprehensive invoice against these items were no more than was reasonably necessary in the circumstances. And that difficulty is additional to the one earlier referred to, namely, the lack of any clear computational relationship between the sum actually paid by the appellant and the invoice rendered more than three years later. I would not allow item No. 20.
246 Item No. 29 relates to a payment in the sum of $5,000 made on 2 July 2003. As with items Nos. 24 and 25, with respect to this item also the appellant, in her written response, referred to the way she had dealt with item No. 20. However, she made no statement that the work to which item No. 29 related was solely for the purposes of the appeal. For that reason as well as for the reasons expressed above in relation to item No. 20, I would not allow this item.
247 There are five further items on the schedule in relation to which, it seems, no original invoices were in evidence. In each case, in her written response, the appellant asked the reader to refer to her response to item No. 20. In no case, however, has she stated that the expenditure was solely for the purposes of the appeal. It is not possible to relate the expenditures which the appellant made with respect to these items (the first of which was made on 30 June 2004, and the last of which was made on 11 March 2005, with the sum of $28,512.88 remaining outstanding) to the comprehensive invoice. On that invoice, the final item is dated only "Dec 02 – Feb 05" and is said to be "further conferences (30 hours @ $396 per hour)". The charge for that item was $11,738.60. It is impossible to relate that item to the outlays in fact made by the appellant, as disclosed in the schedule. Further, save for the item to which I have just referred, every item on the comprehensive invoice is in multiples of $200. By contrast, the applicant’s schedule discloses that three of the four remaining items to which I have referred were not in multiples of that order (they being, respectively, in the amounts of $1,500 (item No. 47), $2,500 (item No. 53) and $2,500 (item No. 60)). It seems inescapable, as a matter of arithmetic, that the comprehensive invoice does not accurately represent the payments in fact made by the appellant over the period to which it relates. For these reasons, and because of the obviously unsatisfactory nature of the appellant’s evidentiary case generally, I would not be prepared to hold either that the outgoings referred to in this paragraph related only to the appeal or that, to the extent that they did, they were no more than was reasonably necessary in the circumstances and might legitimately be claimed from the College by way of damages.
248 For the above reasons, the only item in category (b) which I would be prepared to allow is item No. 31, an expenditure in the amount of $2,200 made on 7 November 2003 upon the practitioner’s invoice dated 3 November 2003.
249 Category (c) covers air fares. It is clear from the appellant’s written response that the items in this category include the fares of the appellant’s husband when he accompanied the appellant to a mediation (item No. 30) and later to a directions hearing (item No. 51) in connection with the appeal. The appellant justified the inclusion of her husband’s fares in the schedule on the basis that the stress of the proceeding was such that she required his emotional support on the occasions in question. She also used him for what she described as "administrative support". The trial Judge made no finding about whether the appellant’s husband’s presence was reasonably necessary at the mediation and the directions hearing. I can understand that the appellant would have felt comforted by the presence of her husband, but I do not think the evidence is sufficient to support a finding, in the absence of findings by his Honour, that the "emotional support" aspect of that presence was reasonably necessary, such that the College should be required to pay for it. As for the "administrative support" aspect, the concept (particularly when propounded by someone who was legally assisted at the time) is altogether too vague to found an award of damages.
250 Item No. 32 is described as air fares in connection with the attendance of the appellant and her husband at the offices of the Commission in Canberra. This attendance related not to the internal appeal but to the appellant’s complaint to the Commission. The item should not be allowed.
251 As to category (d), items Nos. 21 and 35 remain, as I have said, unexplained. For that reason, they should not be allowed.
252 For the sake of completeness, I note that, while I have approached the matter of compensation for the appellant’s out-of-pocket expenses by reference to s 79 of the Fair Trading Act, I do not believe that any different result would have been arrived at under s 82 or s 87 of the Trade Practices Act.
253 The appellant also sought declarations and injunctions. As to the former, what was sought were declarations that the conduct of the College had been in contravention of the Trade Practices Act or the Fair Trading Act in various respects. I do not consider that anything would be gained by the making of declarations along these lines. Such declarations would be unnecessary for the complete and final adjudication of the matters which the appellant raised in her application. The legal basis of the appellant’s entitlement to damages, and of the extent to which she has not established such an entitlement, will appear sufficiently from the court’s reasons.
254 Neither do I consider this an appropriate occasion for the making of an injunction. In relation to the years about which the appellant litigated, the events in controversy are well and truly closed, and there is no further act or step on the part of the College, the restraint of which could legitimately advance the appellant’s position.
DISPOSITION OF THE APPEAL
255 For reasons set out above, I would order that the appeal be allowed, that the orders made by the trial Judge be set aside and that the College pay damages under s 79 of the Fair Trading Act. Those damages should consist of the sums of $2,500, $10,684.92 and $2,200 referred to in my reasons above. Additionally, the appellant sought interest upon so much of any award of damages as represented her out-of-pocket expenditure. The College was not heard to contest that claim (assuming always that damages of that kind would be awarded), and I can see no reason why an appropriate award of interest should not be made. This will require a calculation under s 51A of the Federal Court of Australia Act (1976) (Cth), by reference to the sums of $10,684.92 and $2,200 referred to above. That calculation will require account to be taken of the different times at which the expenditures included in those sums were made. The appellant should bring in short minutes of an order to give effect to her entitlement to interest.
256 Following the normal course, I consider that the appellant should have
her costs of the proceeding below and of the appeal.
However, we were not
addressed specifically on the subject of costs at either level, in which
circumstances I would stay the operation
of any costs order which is made for a
period of 28 days to allow either party to make such application as she or it
may be advised.
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I certify that the preceding two hundred and twenty-five (225) numbered
paragraphs are a true copy of the Reasons for Judgment herein
of the Honourable
Justice Jessup.
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Associate:
Dated: 9 May 2008
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Counsel for the Appellant:
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Mr D Williams QC & Mr S Bhojani
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Solicitor for the Appellant:
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David Rawlinson
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Counsel for the Respondent:
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Mr R E Birmingham QC
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Solicitor for the Respondent:
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DLA Phillips Fox
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Date of Hearing:
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Date of Judgment:
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