Yovichevich v The Royal Australian and New Zealand College of Radiologists [2007] NSWSC 449

New South Wales Supreme Court

CITATION : Yovichevich v The Royal Australian and New Zealand College of Radiologists [2007] NSWSC 449

HEARING DATE(S) : 19/03/2007, 11/04/2007

JUDGMENT DATE : 17 May 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Claim for damages against College founded on breach of duty (in respect of conduct of examinations and review thereof) - claim for loss of income - plaintiff neither a registered practitioner nor fellow of the College - no reasonable cause of action disclosed - claim not viable

LEGISLATION CITED : Health Insurance Act 1973 (Cth) Medical Practice Act 1992 (NSW)

PARTIES : Stanko Yovichevich The Royal Australian and New Zealand College of Radiologists

FILE NUMBER(S) : SC 20429/04

Mr J. W. Shaw (Pl) (19/03/2007) COUNSEL : In Person (Pl) (11/04/2007) Mr A. Ogborne (Def)

SOLICITORS : Tress Cox Lawyers (Def)

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISON

ASSOCIATE JUSTICE MALPASS

17 MAY 2007

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

JUDGMENT 1 HIS HONOUR: The plaintiff presents as having overseas qualifications as a radiologist. He has sought admission to practice as a radiologist both in New Zealand and Australia. He has never been a registered medical practitioner in New South Wales (within the definition provided in s.99 of the Medical Practice Act 1992 (NSW)) (the Act) or elsewhere in Australia. 2 The defendant is a company limited by guarantee. It is a professional organisation within the meaning of s.3D(5) of the Health Insurance Act 1973 (Cth) and is one of the entities or persons able to certify that a medical practitioner meets the criteria for practice as "a specialist" within the meaning of s.3(1) of that Act. 3 The plaintiff has sat for examinations conducted by the defendant (for the purpose of being admitted to fellowship of the defendant so as to qualify him to practise as a radiologist). He has had a number of unsuccessful attempts at passing Radiology. The passing of the examinations is a qualification that has to be met to enable admission as a fellow of the defendant. Registration is also a qualification. 4 The defendant has a review process. Prior to 18 November 1999, it had not been pursued by the plaintiff. 5 On 18 November 1999, he did seek a review and reconsideration of his radiology examination results. The plaintiff does not accept what was done by the defendant in relation to that application. 6 He brought proceedings in this Court by way of a Statement of Claim claiming damages (including loss of income since 1997). Broadly speaking, the alleged cause of action has been described as being of the nature of breach of duty to undertake a review and/or in the conduct of examinations. The alleged breach of duty is said to have given rise to economic loss, which would be recoverable only if he had been entitled to practise medicine as a specialist. 7 The defendant made an application for summary relief. The application was heard by Adams J. His Honour delivered judgment on 30 November 2005. 8 Adams J was of the view that there were pleading problems. As he was also of the view that the plaintiff may be able to make good the defects, leave was given to file and serve an Amended Statement of Claim complying with the Rules as to the allegations of material facts and giving appropriate particulars. 9 The plaintiff (acting in person) also brought proceedings in the Federal Court. The nature of the claim made therein has been described as a mandatory injunction (to the effect that he be given back a fellowship of the College). The nature of the case advanced in that Court was similar to that sought in this Court. However, there was no claim for damages. An application for summary relief was heard by Conti J. He granted the relief sought by the defendant. He saw the proceedings as being misconceived in law. 10 An Amended Statement of Claim was filed (pursuant to the leave granted by Adams J). The defendant has brought a further application for summary relief. It is contended that the amended process does not address all of the defects. 11 The application came on for hearing on 19 March 2007. The parties were legally represented. The evidence was received and the Court entered into the process of hearing submissions. The defendant had completed submissions in chief. The plaintiff had commenced submissions in response thereto. At this time, I raised the question as to whether or not a particular defence (being one of futility) should be heard first as a separate issue. 12 The relevant issue raised by the defence was whether or not the plaintiff's failure to be registered as a medical practitioner in New South Wales was fatal to the prospects of success of his proceedings in this Court. 13 There was a consensus to what had been proposed and short minutes were prepared. Directions were given as to the making of submissions on the issue. Further hearing of the application was adjourned to 11 April 2007. 14 Submissions were not made in accordance with the directions. By 11 April 2007, the plaintiff had withdrawn the retainer of his legal representative (Mr Shaw). On that day, the plaintiff appeared unrepresented (his son performed the role of spokesman). As at that time, written submissions had not been prepared on his behalf. 15 There was agreement between the parties to the effect that the plaintiff should be given further time to make written submissions. Further short minutes were prepared and directions were made in accordance with them. The intention was that the issue should be determined on the papers (if it was possible to do so). 16 The Consent Orders contained the following:- "3. Notes that the parties consent to Malpass As J determining the defendant's notice of motion dated 14 June 2006 without further appearance, subject to the Court requiring further appearances." 17 Pursuant to that Consent Order, I have proceeded to deal with the separate question on the papers and without requiring further argument from the parties.