BURTON v ANDERSON

LAW REFORM - Veterinary Surgeons' Disciplinary Tribunal - appeals from - need to substitute requirement to seek specific stay - need for expedition of hearing of appeals.

ANIMALS - veterinary surgeons - professional misconduct - repeated failure of veterinary surgeon locum to detect unborn puppies in Rottweiler female dog producing first litter - dog subjected to prolonged pain over seven days before being put down - autopsy discloses septicaemia and peritonitis - Veterinary Surgeons' Disciplinary Tribunal finds professional misconduct - orders suspension of veterinary surgeon for three months and extensive re-training upon re-admission to practice - veterinary surgeon appeals to Supreme Court - appeal has the effect of providing stay of operation of Tribunal's orders - appeal hearing delayed for three years - fresh evidence tendered as to intermediate professional experience and financial impact of suspension - held: (1) The Tribunal's decision was unexceptionable upon the findings which it made and the material available to it at the time its orders were made; (1) However, the Court of Appeal should take into account the lapse of three years since the orders were made and the fact that the veterinary surgeon had practised, as such, uninterrupted for that period; (3) In the circumstances the orders proper to be made at the time of the Court of Appeal's orders were those made by the Tribunal, with the substitution of a reprimand for the order of suspension for three months.

ANIMALS - welfare - cruelty and prevention of pain to animals - function of veterinary surgeons in relation thereto - purposes of high standards of veterinary surgeons' profession - function of Veterinary Surgeons' Disciplinary Tribunal and of the Court of Appeal on appeal therefrom.

LAW REFORM - veterinary surgeons - appeal from Veterinary Surgeons' Disciplinary Tribunal - entitlement to effective stay of orders upon lodgement of appeal under Veterinary Surgeons' Act 1986, s32(9) - suggestion by Kirby P of the need to require that any stay of orders made by the Tribunal for the protection of the public and of animals should only be granted by specific order of the Tribunal or of the Supreme Court.

WORDS AND PHRASES- "penalty" - "shall not take effect".

Veterinary Surgeons' Act 1986, s22, s14, s15, s26, s27, s29, s30, s32, s34. ORDERS (1) Appeal dismissed; but

(2) Vary the orders of the Veterinary Surgeons Disciplinary Tribunal as follows:

The Court administers a reprimand to the appellant for the professional misconduct proved.

The Court directs that the following conditions shall apply and be observed by the appellant in relation to his practice of veterinary science: (a) The appellant's clinical practice shall be supervised by a veterinary surgeon appointed by the Veterinary Surgeons' Board of New South Wales for a period of six months from 28 October 1994.

(b) During the said period the practitioner shall accept the appointed veterinary surgeon mentor for advising and counselling the appellant in relation to his clinical practice.

(c) The appellant shall attend upon the appointed veterinary surgeon and consult with him during the said period at least at monthly intervals at times nominated by him and shall apprise him of his current clinical management and treatment of animals in his practice.

(d) The appellant shall give the appointed veterinary surgeon access to all his patient record cards and must produce to him any other record kept by him touching on or concerning his management, care and treatment of animals at his practice whenever its production is sought by him.

The appellant shall undertake a twelve (12) months period of re training from 28 October 1994 in relation to clinical practice generally and particularly in fields of Radiology, Abdominal Surgery, Clinical Pathology and Anaesthesia.

The nature and method of re-training as referred to in O.3 shall be determined by the Board of Veterinary Surgeons of New South Wales in its discretion and any determination or requirement made or imposed by the Board may be varied or lifted when it is satisfied that such action is appropriate.

The appellant shall attend upon the Board at such times, at such places and in such manner as the Board may direct for purposes of carrying out the re-training programme and for giving reports to the Board in relation to his progress in that programme and further, the appellant shall comply with all instructions of the Board in that regard.

The appellant shall pay the costs of the respondent of this appeal.

Kirby P Before the Court is an appeal against the suggested severity of an order made by the Veterinary Surgeons Disciplinary Tribunal (the Tribunal) in respect of the appellant, Dr Raymond Burton, a registered veterinary surgeon.

COMPLAINTS OF PROFESSIONAL MISCONDUCT BE A VETERINARY SURGEON

The Tribunal, for the proceedings, was constituted by Wall DCJ and by two veterinary surgeons, who are members of the Board of Veterinary Surgeons of New South Wales. That Board is constituted by s4 of the Veterinary Surgeons Act 1986 ("the Act"). The Tribunal is constituted by s25 of the Act. The procedure for determining complaints against a registered veterinary surgeon is laid down by s26 of the Act. An Investigating Committee constituted by s24 of the Act examines the complaint. Relevantly, the Committee, and if it requires, the Tribunal, investigate and decide a complaint of "misconduct in a professional respect" brought against a veterinary surgeon.

Dr Burton was born in 1959. He graduated from the University of Sydney in 1983 as a Bachelor of Veterinary Science. Following his graduation, he was employed by a registered veterinary surgeon in a general practice between 1984 and 1985. Between 1986 and 1989, he worked on a full-time basis in a practice dealing with small animals. From 1989, until the events giving rise to these proceedings, he worked continually at different places as a locum, replacing other veterinary surgeons then on their holidays. During this time he worked in six veterinary practices.

The complaint giving rise to these proceedings was laid by the Investigating Committee pursuant to s27(2)(a)(ii) of the Act. It arose out of the Committee's investigations concerning Dr Burton's professional activities in relation to a female dog "Lisa" owned by Mr and Mrs Gary Phelps.

(1) on about 9 July 1990 and 10 July 1990 made an incorrect diagnosis regarding the existence of further puppies in the bitch "Lisa";

(2) on 11 July 1990 failed to perform exploratory surgery when critical signs indicated;

(3) on 16 July 1990 failed to perform surgical procedures, including ova-hysterectomy, correctly on "Lisa"; and

(4) on 16 July 1990 failed to remove foetal fragments from the vagina of "Lisa".

Dr Burton disputed the complaint of misconduct in a professional respect as charged and particularised. The Tribunal assembled. It conducted its hearing over 8 days. On 19 December 1991, the Tribunal published its reasons for determination. It found that the complainant had proved the complaint to its comfortable satisfaction. Dr Burton was guilty of professional misconduct.

The Tribunal then proceeded to make orders under s32(1)(b) and s32(4) of the Act. It ordered that Dr Burton be suspended from practice as a veterinary surgeon for a period of 3 months upon the expiry of 21 days after notice by the Registrar; that it be a condition of his entitlement to re-commence practice at the end of the period of suspension that he should thereafter undertake a 12 month period of re-training in relation to clinical practice and particularly in nominated fields; that the nature and method of the re-training should be determined by the Board of Veterinary Surgeons as it considered appropriate; Dr Burton should comply with the instructions of the Board and pay the costs of the proceedings. Certain incidental orders were also made.

Within the period allowed, Dr Burton appealed to this Court from the foregoing orders of the Tribunal. The sole ground of appeal was that:

"The Tribunal erred in imposing a sentence that was too severe in all the circumstances".

The notice of appeal sought orders that the decision of the Tribunal be set aside and that this Court should substitute for the Tribunal's decision a decision which this Court considered to be appropriate.

In most legal process, and in most proceedings arising from disciplinary determinations, the filing of an appeal against an order validly made by a court or tribunal does not operate as a stay of the operation of that order. The appeal does not prevent the execution of the orders which are normally taken to be valid until they are lawfully set aside. See The Annot Lyle (1886) 11 PD 114 (CA),116; Alexander and Ors v Cambridge Credit Corporation Ltd and Anor (1987) 9 NSWLR 310; 10 ACLR 42 (CA). Whilst a wide right to provide a stay is normally allowed to the primary decision maker or to the appellate court, where special considerations apply such a stay may be refused. Instances include where the public law is involved, ie where part of the purpose of the order under appeal is to enforce the criminal law or to protect the public. See eg Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 (CA), 131f.

Nevertheless, there is a peculiar provision in the Act which alters the effect of an appeal from the Tribunal to this Court. The right of appeal is provided by s34(1) of the Act. The appeal is confined by s34(1)(b) to a point of law or in

respect of any "penalty" imposed. Provision is made for the receipt of fresh evidence by s34(3) but only if the Supreme Court "is satisfied that there were good reasons for the evidence not having been given on the hearing before the Disciplinary Tribunal". The Supreme Court is then enjoined by s34(4), on an appeal, to make "such order as it thinks proper having regard to the merits of the case". The foregoing provisions are relatively orthodox. However, there is in s32(9) of the Act a provision which is completely novel. It has no equivalent, so far as I am aware, in other professional disciplinary legislation:

"32(9) If within that period of 21 days the registered veterinary surgeon duly gives notice of appeal to the Supreme Court, the order:

(a) shall not take effect at the expiration of that period but shall, where the Supreme Court confirms the order without variation, and unless it otherwise orders, take effect on the day on which the order is confirmed; or

(b) shall not take effect at the expiration of that period nor shall it take effect at any other time where the Court allows the appeal, or dismisses the appeal but varies the order of the Disciplinary Tribunal."

The consequence of s32(9) of the Act is, in effect, to confer upon a veterinary surgeon, who is subject to orders of the Tribunal, a privilege to secure a stay of the operation of those orders by the simple expedient of giving notice of appeal within the 21 days appointed. The structure of s32(9) is then, in effect, to restrain the Supreme Court's hand until after it has heard the appeal and made the order appropriate to it.

Unfortunately, in the present case, once Dr Burton's appeal was filed the complainant did not move this Court for expedition of the hearing of the appeal. The slightest reflection upon the consequences of s32(9) of the Act would have enlivened this Court's concern to ensure that the Tribunal's orders, of a protective character, were not frustrated. The Court would have ordered a high measure of expedition. Instead, because no application was made to the Court and this being, so far as I am aware, the first appeal to the Supreme Court from the Tribunal, time was simply allowed to pass. Naturally enough, Dr Burton, the beneficiary of the operation of s32(9) of the Act took absolutely no steps to secure expedition. He simply continued to practise as a veterinary surgeon despite the fact that that the Tribunal, including two of his professional peers, after a fully contested hearing, had solemnly determined that he was not fit to continue to do so, deserved suspension and required an extensive period of professional re-training.

The position that has been brought about by this combination of an inappropriate statutory provision, dilatory pursuit of the appeal at least by the complainant and no other facility or person with motivation to protect the public's interest needs urgent review. It is my respectful view that s32(9) of the Act should be amended to provide that orders of the Tribunal continue in force unless and until an appropriate stay or other order is made either by the Tribunal or by the Supreme Court. This would bring the Act governing veterinary surgeons into line with the legislation governing other professions. There is no reason of principle why veterinary surgeons alone should have a unilateral statutory entitlement to a stay by the mere act of appeal and despite a finding of the statutory body designed to protect the public. The public in this regard includes not only the human owners of animals, but other veterinarians and the like who must be relied upon, in the nature of things, to initiate and prosecute complaints against veterinary surgeons. It also includes the animals themselves. One of the ultimate purposes of ensuring and maintaining high standards of professional care on the part of veterinary surgeons is to prevent cruelty and pain to animals.

Such cruelty and pain is not simply wrong because humans feel it to be so. It is wrong because the animals cared for by veterinary surgeons are sentient creatures, sharing with human beings a capacity to suffer pain both by action and neglect.

The case against Dr Burton which was upheld by the Tribunal is fully described in the Tribunal's admirable reasons. Like Priestley JA, I am of the view that no error is shown in the reasons for the orders made, at the time they were expressed. On the contrary, they are careful, detailed and contain clear findings to resolve the many conflicts of evidence which were tendered to the Tribunal by Dr Burton. Putting it shortly, the Tribunal was not impressed with the evidence of Dr Burton. It formed a favourable impression of Mr and Mrs Phelps (the owners of the subject dog) and other witnesses called by the nominal complainant whom it found to be witnesses of truth: "The Tribunal was favourably impressed with the content of their evidence and their manner and demeanour in the witness box. The Tribunal considered their evidence to be strong. Each of them impressed as an honest witness doing his/her best to tell the truth as they recollected it and was careful in relation to detail. The Tribunal considered that their evidence had an internal consistency overall which did not give rise to conflicts and was logically probable in the objective circumstances of the case. "

The Tribunal accepted the opinions expressed by Drs Zammit and Bradley, called by the nominal complainant, and their criticisms of Dr Burton's clinical management of the dog:

"Tt is the view of the Tribunal that their opinions and criticism reflect the opinion which would be generally held by competent veterinary surgeons of good repute and standing in the profession."

The complaint about the treatment of the dog "Lisa", a Rottweiler, arose out of the aftermath to the dog's first litter. "Lisa" was taken to the Kurri Kurri clinic where Dr Burton was then practising as a locum on 8 July 1990. She was found to be restless, having contractions and straining. A vaginal examination was performed by Dr Gelderman, then on duty. An injection of calcium and oxytocin was given to stimulate contraction. Dr Gelderman advised the owners to take the dog home, to keep an eye on her and to telephone the next day if no pups were born. They were told that she would then need a Caesarean section.

The Phelps took the dog home. They observed her still straining during the next day and evening. The first puppy was delivered at 6.00 pm. By the morning of 9 July 1990 six further puppies were delivered, one still-born.

However, Lisa appeared to continue straining. At 8.30 am on the 9th July the Mr Phelps telephoned Dr Gelderman. He was then advised that his locum, Dr Burton, would call and examine Lisa early that day.

Shortly afterwards, Dr Burton duly attended. He was given a history that Lisa was straining and in apparent distress and exhaustion. Dr Burton took the dog's temperature. He did an internal examination. He advised the owners that there were no more puppies in the uterus and nothing to worry about. He gave the dog a relaxant injection. The owners were told to keep the dog under observation. In respect of this consultation, the Tribunal found no breach of proper standards.

At 5.30 pm on 9 July 1990 the owners telephoned Dr Burton to report that Lisa continued to show evidence of straining. Shortly afterwards, Dr Burton visited the Phelps. He did a farther examination. Again the owners were reassured.

On Monday 10 July 1990 two further dead puppies were born. Dr Burton was again called to the Phelps' home. He took Lisa to his surgery where X-rays were taken. The dog was returned to the owners by the receptionist. Dr Burton advised them that the X-rays had shown that there were no more puppies.

On 10 July 1990 three more dead puppies were found in Lisa's whelping box. The dog was extremely dehydrated. Dr Burton was again called. He again attended at the Phelps' home. He took Lisa to his clinic. He advised that she would need hospitalisation with intravenous fluids. Further X-rays were taken.

On the 13th July the owners again took Lisa back to Dr Burton's surgery. Dr Burton advised that more X-rays would be taken, including an ultrasound. On 14 July 1990 Lisa, at home, passed still further pieces of decayed puppies.

Still further pieces of bone and hair and tissue were removed from the dog's vagina on the evening of 16 July 1990. Dr Burton arranged to come out and collect the dog. He told Mr and Mrs Phelps that the dog would need to be hospitalised again. Unsurprisingly, the owners were dissatisfied by this stage with Dr Burton's treatment of the dog. They went to the clinic to pick her up. An employee went into another room and was absent for about 10 minutes. She returned without the dog, she told Mr Phelps that the dog had been "put down", that Dr Gelderman wanted to perform an autopsy and that he was just about ready to perform it.

Mr Phelps said that he did not want Dr Gelderman or any veterinary surgeon at the practice to perform the autopsy. He made arrangements with Dr Louise Trist, veterinary surgeon at another practice, to perform the autopsy. Dr Trist did so. On examination, she found that Lisa's body appeared dehydrated, with evidence of diarrhoea. When the abdomen was opened there was evidence of peritonitis and puss. There were adhesions. The cause of death was given as toxaemia/septicaemia following peritonitis.

Although the case was hard-fought before the Tribunal, it was not (and could not be) contested in this Court as to the factual findings. Upon those findings, it is clear that there were serious deficiencies in the performance by Dr Burton of his several clinical examinations of the dog; of the X-rays he took and of the treatment. As the Tribunal observed, it was not difficult to accept the evidence of the owners and the witnesses called by the complainant. The objective evidence of the continued passing of dead puppies and fragments provided the clearest possible indication of the carelessness on the part of the practitioner. It fully justified the finding of a failure in proper professional attention. It sustained the Tribunal's determination and characterisation of Dr Burton's conduct as falling short of proper professional standards. The prolonged suffering of the dog, Lisa, in the circumstances described, can be readily imagined. The high professional standards of veterinary surgeons must be maintained to ensure that such serious, repeated and prolonged professional misconduct, amounting to seriously incompetent attention, do not occur. What is at stake is not just the good reputation and standards of veterinary surgeons. Nor is it only the sensibilities of the owners of animals such as the dog Lisa. It is the protection of the animals who come into the care of veterinary surgeons from incompetence and neglect which extend unnecessarily their pain and suffering.

Like the Tribunal, I regard this as a very serious case. The orders of the Tribunal, which, I repeat, include two senior members of the veterinary surgeons' profession who are also members of the Board, have not been shown to involve

error. Nor was the "penalty" (as s34(1)(b)(ii) of the Act puts it) excessive to the facts Found. On the face of it the appeal should be dismissed without disturbance of the Tribunal's orders.

However, Dr Burton placed before this Court evidence concerning his continued practice over nearly three years since the orders of the Tribunal were pronounced. He also tendered affidavits which deposed to the marginally viable nature of his practice; his vulnerable financial circumstances; the extremely modest profit which he made from the practice; the dependence upon him of his wife and two young children and his belief:

"that if I was forced to close my practice for 3 months, not only would I suffer severe financial hardship but the closure would have a serious effect on the viability of the practice ".

Dr Burton also deposed to the performance of numerous surgical procedures, the administration of anaesthesia, the undertaking of clinical radiology and pathology examinations and the absence of other complaints against him. He deposed that, in the past three years, he had not lost an animal whilst under anaesthesia. He recounted the successful performance of numerous laparotomies, Caesarean sections and other exploratory examinations of female dogs since the order of the Tribunal.

I am not impressed by the financial evidence. Every order of removal or suspension of a professional person from the statutory roll or register necessarily has a serious financial consequence. Parliament must be taken to have known this when providing that such orders may be made in proper cases. The Tribunal would have been fully conscious of this when it made its order in the present case. It was aware that the appellant had a wife and one child dependent upon him, at that time. It was also aware that the appellant's practice had been mainly as a locum and that he was relatively junior in the profession.

This Court can safely assume that the two veterinary surgeons on the Tribunal, at least, would have been alive to the marginal character of veterinary practice of a person such as Dr Burton. I do not consider that the additional financial evidence would warrant this Court's disturbing the decision of the Tribunal as to "penalty", which has not been shown to have been wrong when made.

But that leaves the passage of 3 years, the intervening practice, mainly on his own, the uncontested evidence of numerous operative and like procedures and the absence of further evidence of complaint, which would surely have been brought to our notice had there been any.

I regard the matter as marginal. I am most reluctant to disturb an order which I consider to have been right when it was made. I am especially reluctant to do so where the intervening facts have only really arisen because of an unfortunate statutory provision which gave Dr Burton the privilege to secure a stay simply by lodging an appeal, whatever its merits.

It is appropriate to take into account this passage of time, the intervening experience and the fact that the respondent did not move (as he could, and in my view should have) to expedite the hearing of the appeal.

In the result, most reluctantly, I am not prepared to dissent from the course which the other members of the Court favour. Had the appeal come before the Court in the ordinary time, and still more with the expedition which was proper to its issues, I entertain little doubt that the appeal would have been dismissed without variation of the Tribunal's orders.

I agree to the orders which Priestley JA has proposed.

Priestley JA On 19 December 1991 the Veterinary Surgeons Disciplinary Tribunalof New South Wales published its reasons for determination of a complaint against Dr RA Burton, a veterinary surgeon registered under the Veterinary Surgeons Act 1986. The complaint had alleged that Dr Burton was guilty of misconduct in a professional respect in regard to his treatment of a Rottweiler bitch.

The Tribunal consisted of his Honour Judge Wall QC as Deputy Chairman and Drs I Denney and P Johnson as members. There had been a long hearing before them and their reasons for determination were full and meticulous. The Tribunal found the complaint against Dr Burton proved.

They ordered his suspension from practice for three months. They also made it a condition of his entitlement to recommence practice that after the expiration of the period of suspension he undertake a twelve month period of re-training in relation to clinical practice generally and in certain specified fields. Ancillary orders were made. Dr Burton was ordered to pay the costs of the hearing.

On 17 January 1992, pursuant to s32 of the Act, Dr Burton filed a notice of appeal on the grounds of severity only. S32 operates so that once an appeal is filed, there is an automatic stay of the orders of the Tribunal. The result in the present case has been that Dr Burton, notwithstanding the Tribunal's findings, continued to practice while awaiting the hearing of his appeal. From what the parties told the court when the appeal came on for hearing on 28 September 1994, Dr Burton followed out the appeal procedures in the ordinary way. He made no application for expedition of the hearing; those acting for the complainant made no application for expedition.

When the matter came on for hearing, Dr Burton sought leave to file an affidavit in which he gave evidence of facts in support of an assertion that for the order of suspension now to be enforced would cause him considerable hardship. It also appeared that there had been no complaints about his performance as a practitioner in the period between the Tribunal's determination and the hearing of his appeal.

The court indicated some concern about what appeared to be the anomalous situation which had arisen. There was some discussion with counsel along the lines that as matters had turned out it might be both practical and fair for the court, at the conclusion of the appeal, which is in the nature of a full re-hearing, to vary the Tribunal's orders by in some way postponing the suspension until the result of the training was known, with a view, if that result was satisfactory, to not enforcing the suspension order.

Upon this being indicated as a possibility, counsel asked for an opportunity to obtain instructions from their clients. This was granted and later counsel told the court that the parties, subject to the court's approval, were agreed that the orders of the Tribunal should be varied, the principal variation being that in place of a suspension the court should administer a reprimand to Dr Burton for the professional misconduct found against him by the Tribunal.

There then followed some discussion of the propriety of the course of action proposed. The court reserved its decision.

In my view, it would be proper for the court to make the orders proposed by the parties. The effect of the orders is that the Veterinary Surgeons Board of New South Wales will for a proper period supervise the clinical practice of Dr Burton and have control of his re-training in the areas envisaged by the Tribunal in its orders. The public interest in the competence of veterinary surgeons should by

that method be fully satisfied. The hardship which would fall upon Dr Burton if the order of suspension were implemented will be avoided. Although the orders bringing about these results have been agreed and proposed by the parties, they can only take effect by order of this court. It is this court which will have decided the matter and implemented the orders suggested by the parties because this court thinks they are appropriate.

The fact that the orders which, in my view, should be made, vary the decision of the Tribunal, is not any indication that I disagree with the Tribunal's reasons or its orders. In my respectful opinion, at the time they were made, they were unexceptionable. The reason for varying them is that for a period approaching three years since they were made, Dr Burton continued in practice without complaint. During that period the shadow of the suspension order hung over him. In the light of the difference in his circumstances now from what they were in December 1991, it seems to me to be consistent with the public interest that the orders proposed by the parties, following the discussion with the court, should be made.

There was some argument concerning costs, but it seems to me that the proper order is that Dr Burton should pay the complainant's costs of the appeal.

In my opinion the court should, pursuant to s39(9)(b) of the Veterinary Surgeons Act, dismiss the appeal but vary the Tribunal's orders by making the orders proposed by the parties, as follows:

The court administers a reprimand to the appellant for the professional misconduct proved.

The court directs that the following conditions shall apply and be observed by the appellant in relation to his practice of veterinary science:

(a) The appellant's clinical practice shall be supervised by a veterinary surgeon appointed by the Veterinary Surgeons Board of New South Wales for a period of six months from 28 October 1994.

(b) During the said period the practitioner shall accept the appointed veterinary surgeon mentor for advising and counselling the appellant in relation to his clinical practice.

(c) The appellant shall attend upon the appointed veterinary surgeon and consult with him during the said period at least at monthly intervals at times nominated by him and shall apprise him of his current clinical management and treatment of animals in his practice.

(d) The appellant shall give the appointed veterinary surgeon access to all his patient record cards and must produce to him any other record kept by him touching on or concerning his management, care and treatment of animals at his practice whenever its production is sought by him.

The appellant shall undertake a twelve (12) months period of re training from 28 October 1994 in relation to clinical practice generally and particularly in fields of Radiology, Abdominal Surgery, Clinical Pathology and Anaesthesia.

The nature and method of re-training as referred to in O.3 shall be determined by the Board of Veterinary Surgeons of New South Wales in its discretion and any determination or requirement made or imposed by the Board may be varied or lifted when it is satisfied that such action is appropriate.

The appellant shall attend upon the Board at such times, at such places and in such manner as the Board may direct for purposes of carrying out the re-training program and for giving reports to the Board in relation to his progress in that program and further, the appellant shall comply with all instructions of the Board in that regard.

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The appellant shall pay the costs of the respondent of this appeal. Handley JA I agree with Priestley JA.

(1) Appeal dismissed; but (2) Vary the orders of the Veterinary Surgeons Disciplinary Tribunal as

The Court administers a reprimand to the appellant for the professional misconduct proved.

The Court directs that the following conditions shall apply and be

observed by the appellant in relation to his practice of veterinary science:

(a) The appellant's clinical practice shall be supervised by a veterinary surgeon appointed by the Veterinary Surgeons' Board of New South Wales for a period of six months from 28 October 1994.

(b) During the said period the practitioner shall accept the appointed veterinary surgeon mentor for advising and counselling the appellant in relation to his clinical practice.

(c) The appellant shall attend upon the appointed veterinary surgeon and consult with him during the said period at least at monthly intervals at times nominated by him and shall apprise him of his current clinical management and treatment of animals in his practice.

(d) The appellant shall give the appointed veterinary surgeon access to all his patient record cards and must produce to him any other record kept by him touching on or concerning his management, care and treatment of animals at his practice whenever its production is sought by him.

The appellant shall undertake a twelve (12) months period of re training

from 28 October 1994 in relation to clinical practice generally and particularly in fields of Radiology, Abdominal Surgery, Clinical Pathology and Anaesthesia.

The nature and method of re-training as referred to in O.3 shall be

determined by the Board of Veterinary Surgeons of New South Wales in its discretion and any determination or requirement made or imposed by the Board may be varied or lifted when it is satisfied that such action is appropriate.

The appellant shall attend upon the Board at such times, at such places

and in such manner as the Board may direct for purposes of carrying out the re-training programme and for giving reports to the Board in relation to his progress in that programme and further, the appellant shall comply with all instructions of the Board in that regard.

The appellant shall pay the costs of the respondent of this appeal. Counsel for the Appellant (Dr R Burton): Mr GA Rich

Counsel for the Respondent (Dr J Anderson): Mr CL Lonergan