Background

The first defendant, the Royal Australasian College of Surgeons (RACS), and the second defendant, the Australian Society of Plastic Surgeons Inc (ASPS), together administer a specialist training program in plastic and reconstructive surgery known as the Plastic and Reconstructive Surgical Education and Training Program (the SET Program). The selection process for trainees for the SET Program is conducted by the Australian Board of Plastic and Reconstructive Surgery (the Board).

On 23 March 2022, the plaintiff, Dr Justin Yousef, submitted an application for a position in the SET Program. Part of the application process involved Dr Yousef providing referees from his most recent surgical rotations in the last 2 years.

The Board offered Dr Yousef a training position in the SET program, which he accepted on 26 July 2022. In accepting the offer, Dr Yousef had to sign an acknowledgment stating:

“I understand that I may be subject to dismissal from the SET Program if one or more of the following events take place:

• I knowingly provide false and/or misleading information in my application for selection into SET Plastic and Reconstructive Surgery training;
• …”

After accepting Dr Yousef into the SET Program, the Board became aware that Dr Yousef’s application submitted on 23 March 2022 failed to include referees from his surgical rotations at Wollongong Hospital and Royal Prince Alfred Hospital (RPAH). Dr Yousef was dismissed from the SET Program.

Dr Yousef claimed that he did not include referees from those two surgical rotations because:

1. He did not spend the minimum required time of 10 working weeks at Wollongong Hospital; and
2. None of the consultant plastic surgeons at RPAH worked with Dr Yousef for the minimum required time of 10 weeks to oversee his work, enabling them to provide a valid referral for Dr Yousef.

Dr Yousef commenced proceedings against RACS and ASPS in the Equity Division of the Supreme Court seeking specific performance to be allowed into the SET Program. The matter was placed in the expedited list to ensure a judgment could be obtained prior to the next round of SET Program selections.

The Issue

The primary question before the Court was whether the defendants were entitled to terminate the training agreement, or dismiss Dr Yousef, for failing to provide relevant information in his application.

His Honour considered that in order for the defendants to succeed, they must prove that Dr Yousef consciously or deliberately provided information which he knew was not true or which he knew was apt to lead the Board into error or give it the wrong impression.

This key issue was examined with reference to the failure to disclose referees from Wollongong Hospital and RPAH.

Wollongong Hospital

In relation to Dr Yousef’s omission of referees from Wollongong Hospital, Justice Ball found that Dr Yousef did not knowingly mislead the Board and accepted that Dr Yousef acted reasonably in not identifying this rotation as his most recent plastic and reconstructive surgical term.

His Honour accepted Dr Yousef’s evidence that, after deducting the leave he had taken in February, he would have only worked at Wollongong Hospital for 9 working weeks and, in accordance with application requirements, referees did not need to be disclosed from this surgical rotation.

Royal Prince Alfred Hospital

In relation to Dr Yousef’s omission of referees from RPAH, Justice Ball found that Dr Yousef did knowingly mislead the Board.

His Honour commented that the purpose of the requirement that referees had worked with a candidate for at least 10 weeks was to identify referees who could be expected to have sufficient exposure to the candidate’s work to be able to provide meaningful feedback of interest to the Board. That did not mean that they had to spend every working hour of every working day over a 10 week period with the candidate.

If Dr Yousef’s interpretation was to be taken as correct, it seemed doubtful that any consultant plastic surgeon would have sufficient contact with an applicant to meet the requirement.

It may be, as per Dr Yousef’s allegation, that the assessment of those working at that hospital would not be a true reflection of his abilities, however, that was a question for the Board to assess based on all the material given to it. Dr Yousef must have known that he was being asked to state all his surgical experience and that it was false or misleading in those circumstances not to disclose his term at RPAH.

An important takeaway from this case is that an “omission” bears just as much weight as an “act” when it comes to the intention to mislead. Ultimately, His Honour ordered that the plaintiff’s summons be dismissed with costs.