Kallman v Veterinary Practitioners Board

NCAT Occupational|2020-10-14|Before: Foreman AM

Introduction

On 17 September 2019, the Respondent, the Veterinary Practitioners Board (Board) resolved to accept a recommendation of the Complaints Committee of the Board (Committee) and found that Dr Mark Kallman, registered as a veterinarian in New South Wales since June 2008, was guilty of unsatisfactory professional conduct in breach of s 35(k) of the Veterinary Practice Act 2003 (NSW) (the VP Act). The Board issued Dr Kallman with a caution and imposed a fine of $1,000.00 (the Decision). The Board issued, by email dated 23 September 2019, a notice to Dr Kallman to the effect of the Decision, together with an invoice in the sum of $1,000.00. The notice drew to Dr Kallman's attention the provisions of s 48 of the VP Act and informed Dr Kallman of his right to apply to the NSW Civil and Administrative Tribunal (the Tribunal) for a review of the Decision.
Dr Kallman applied to the Tribunal, by Administrative Review Application Form dated 15 October 2019, filed 28 October 2019, (the Application) to review the Decision.
The Application was heard by the Tribunal, by Audio Visual Link, on 14 October 2020.

Background

On 10 December 2018, Ms Buckley, an owner of a 13-year old female Maltese Terrier named "Missy", made, by way of a statutory declaration, a complaint against Dr Kallman in respect of his treatment of Missy on 28 and 29 November 2018 (Complaint).

The Respondent's material

The Respondent relied on: 1. The Decision. 2. Section 58 document bundle comprising a 2 page index, 35 tabs and 71 pages (filed 23 December 2019; (Exhibit R1), (the s 58 documents.) 3. A bundle of further documents with a 1 page index, 5 tabs and 59 pages filed 9 April 2020; (Exhibit R2). 4. A report by Dr David Andrew Tabrett, veterinarian, dated 20 March 2020. (Dr Tabrett's Report). 5. A supplementary report by Dr Tabrett dated 30 June 2020 (Dr Tabrett's Munro Report). 6. A further supplementary report by Dr Tabrett dated 13 October 2020 (Dr Tabrett's Goddard Report). 7. Documents at tab B with the s 58 documents styled "Updated Index ..." and behind tabs 4 and 5 filed by the Respondent on 10 July 2020 being respectively a letter of instructions from HWL Ebsworth Lawyers to Dr Tabrett and Dr Tabrett's Munro Report; (Exhibit R3) 8. Document styled "Submissions on behalf of the Veterinary Practitioners Board" dated and filed 13 October 2020 (Respondent's Initial Submissions). 9. Document styled "Submissions on behalf of the Veterinary Practitioners Board" dated and filed 17 December 2020 (RS2) which replaced Respondent's Initial Submissions. 10. USB sticks as follows: 1. USB stick A, dated 10 July 2020 styled Respondent's Documents and Further Documents, containing a soft copy of Exhibits R1 and R2; 2. USB stick B, undated styled Respondent's Further Documents, containing a duplicate soft copy of Exhibit R2; 3. USB stick C, dated 13 October 2020 styled Respondent's Further Documents, containing one 40 page document styled Tab 6 and Tab 7 and 8; the documents comprise an affidavit of Meghan Jeanne Carruthers sworn 13 October 2020; document dated 13 October 2020 styled Expert Report by Dr Tabrett with some numbered and some unnumbered paragraphs; submissions on behalf of the Respondent containing 50 paragraphs dated 13 October 2020 by K Edwards of counsel, including Annexure A "Response to Dr Kallman's points of complaint in the Application for Administrative Review A to N ; Annexure B "Transcription of Clinical Records"; Annexure C "Correspondence between Dr Kallman and the Veterinary Board". 4. USB stick D, undated and styled Respondent's Documents containing s 58 documents index. (These documents separately saved and readily accessible).
An undated document styled "Respondent's List of Authorities" filed 17 December 2020 containing references to five Tribunal and Judicial decisions and noting that two of the decisions were provided by Dr Kallman; and
Oral submissions made by Ms Edwards during the hearing.

The Applicant's material

The Applicant relied on: 1. The Application. 2. Undated statement signed by veterinarian Dr Zoe Coral Munro styled "expert report" filed 11 June 2020; (Exhibit A1). 3. Undated statement signed by veterinarian Dr David Goddard styled "expert report" filed 8 October 2020; (Exhibit A2). 4. Undated document of 23 numbered paragraphs signed by Dr Kallman filed 13 October 2020 styled "Applicant's Application to have the Respondent's Decision Set Aside", marked for identification as AS1. 5. An undated document signed by Dr Kallman styled "Applicant's Submission/ Written Argument Case Law" received by the Tribunal on 10 December 2020, referred to as AS2 (intended by Dr Kallman to replace AS1). The Tribunal observes that the contents of AS2 are not evidence for the purpose of these proceedings. 6. An undated document signed by Dr Kallman styled "Applicant's Reply to the Respondent's Submission dated 17 December 2020" filed with the Tribunal on 5 January 2021, referred to as "ASR"; and 7. Oral submissions made by Dr Kallman during the hearing.

The Transcript

Both parties had the opportunity to consider the transcript of the hearing prior to completing their after-hearing written submissions. The Tribunal also had the opportunity of considering the transcript prior to preparing these Reasons. References to the transcript in these Reasons are in the form TX-Y where T refers to the transcript, X refers to the relevant page(s) in the transcript from which the reference was extracted, and Y refers to the relevant line(s) on that page/those pages.

The Complaint

A summary of the handwritten details of the Complaint is: 1. At around 6:00-6:30pm on Wednesday 28 November 2018 Ms Buckley noticed that her dog, a 13 year old female Maltese terrier named Missy, was struggling to walk. 2. Ms Buckley found a "large tick" attached to Missy's inner left ear and Ms Buckley's partner/husband (Mr Buckley) used 'Wart-off' to remove the tick. 3. The Buckleys attempted to contact their regular vet, Dr Stephen Deist but were informed that he was not on call. They were advised to take Missy to the Clinic. 4. The Buckleys attended the Clinic on the evening of 28 November 2018 and were taken straight to the on-call vet (Dr Kallman). 5. Dr Kallman's "lack of compassion was evident in the first instance questioning" why the Buckleys were not using any tick defence preventative. He (Dr Kallman) "made us feel like this was our fault adding further emotional stress to us both". 6. Missy was "struggling and highly anxious". 7. Dr Kallman gave Missy two injections, one to sedate her and one for the tick venom. 8. Dr Kallman took Missy from Ms Buckley's arms and advised that the best thing to do was to leave her at the Clinic, put her in a cage and cover her with a towel. 9. Ms Buckley was concerned about leaving Missy alone overnight but was informed that it would cost an additional $1,000 to $2,000 for a veterinary nurse to stay overnight. 10. Dr Kallman also said the best thing for Missy was to let the anti-venom and sedative work whilst being in a quiet enclosed environment. 11. Dr Kallman told Ms Buckley to call the Clinic at 9:00 a.m. the following morning. 12. Mr Buckley phoned the Clinic at 9:00 a.m. the following day and was told Missy could be picked up at any time that day and there was "no rush". Mr Buckley advised that Ms Buckley would collect Missy after she finished work. 13. At around 12:00 - 1:00 p.m. Ms Buckley phoned the Clinic to check on Missy. She was advised that Missy "wasn't bad, but she wasn't good either" and was asked "what time will you be collecting her?" Ms Buckley said she was still at work and would be there as soon as possible after 4.00 p.m. 14. Ms Buckley arrived at the Clinic at 4:15 p.m. and spoke to a veterinary nurse who confirmed they had spoken on the phone earlier [it appears this is Ms Robyn Laundy]. 15. Ms Buckley was informed the incurred cost was $630 and made a payment of that amount by credit card. She was then taken to see Missy. 16. Ms Buckley noted that Missy was covered by an orange towel and there was a large sign on her cage that read 'she bites'. 17. The nurse took the towel off the cage and Ms Buckley noticed that Missy was lying in urine and when she picked her up Missy was "floppy and wet with urine". 18. Ms Buckley asked if this was normal and was informed by the vet nurse that Missy could take up to six weeks to heal. 19. Ms Buckley "questioned whether I should be taking her home" and the nurse replied as long as she was kept in a quiet, dark area and kept still. 20. Ms Buckley complained that Missy was covered in urine on her back, legs and torso. The vet nurse used a "cold, wet, damp cloth (not warm), and tried to clean it off". Ms Buckley recorded she "again found not just the veterinarian un-compassionate but the veterinary nurse as well". 21. Ms Buckley took Missy to her car escorted by the nurse and placed her on a towel on the passenger side of the car. 22. On arriving home, Ms Buckley noticed "a croaky noise" through Missy's mouth. Ms Buckley put her in her bed in Ms Buckley's bedroom and cleaned Missy's bottom area with a hot towel where she had been lying in her own urine. Ms Buckley observed Missy closely for the next few hours and moved her onto Ms Buckley's bed "where she usually slept every night". 23. Missy was in the same condition in the morning of 30 November (2018) when Ms Buckley left for work. 24. At some stage Ms Buckley had tried to give Missy water to no avail. Sometime after 10:00pm Mr Buckley had offered Missy some fresh chicken which she did not eat at all "as advised by the vet nurse and a passing comment by the vet (Mark Kallman) as I [Ms Buckley] was leaving on Thursday afternoon". 25. By mid-morning on 30 November, when Ms Buckley was at work, Mr Buckley was extremely worried about Missy's breathing. 26. Mr Buckley took Missy to vet Stephen Deist while she was vomiting and struggling to breath. Missy was euthanized on Dr Deist's advice with Mr Buckley's consent.

Oral issues

During the hearing Dr Kallman said the entire case revolved around differences between his clinical notes and Ms Buckley's complaint: T40-25 to 45.
Ms Edwards responded at T41-11 to 15 that there were two issues: … the first is that Dr Kallman disputes that he discharged Missy to home care and alleges that Mr and Mrs Buckley refused to allow Missy to receive any further care on the clinic and insisted on taking her home … and at T46-1 to 10: "… whether or not Missy was in a fit state to be discharged…". That is, whether Dr Kallman had provided an appropriate level of care to Missy in all the circumstances. This includes not only Missy's "… ability to ambulate, swallow and tolerate food and water …" and her lung involvement.
Dr Kallman agreed that the above matters were the main issues: T52-1 to 4.

Written issues and submissions

In AS2, after the hearing, Dr Kallman submitted there were three issues. 1. Firstly at [14.1] he submitted the Board had failed to properly conduct an inquiry into the Complaint; 2. secondly at [15] he stated the Board's counsel maintained the patient was not referred to another veterinarian and not treated properly with radiographs, oxygen etc, which he claimed were not relevant and never part of the charge or finding; and 3. thirdly at [16], The Board's counsel alleges that it is unprofessional to discharge a non-ambulatory patient and not to have obtained a signed waiver from the pet owner, as well as indicating that his notes do not say anything about the patient being removed.
Dr Kallman submitted that the last two submissions were improperly raised by the Board's counsel.
In RS2, the Board re-stated the issues it saw as relevant: 11. These submissions address the four principal issues which have emerged after evidence, hearing and submissions namely: (a) the meaning of "unsatisfactory professional conduct" pursuant to s35(k) of the VP Act and how such a finding may validly be made (addressing in particular the applicant's assertion that any such conduct must be in breach of a specific "codified standard of care"); (b) the relevance, or otherwise of the Board's internal processes, when the Tribunal assesses if the "correct and preferable decision" was made pursuant to s63 of the Administrative Review Tribunal Act 1997 ("the ADR Act") [sic]; (c) whether there is evidence that Missy was discharged at the insistence of Mrs Buckley; and (d) if Missy was in a clinical condition at the time of discharge such that her discharge was contrary to accepted standards of the veterinary profession and demonstrating a lack of skill, care and judgement contrary to s35(k).
In ASR, Dr Kallman's submissions in reply, he re-stated what he regarded as the issues as follows: 2.1. In [paragraph [11] of RS2], the respondent claims that four particular issues have emerged after evidence, hearing and submissions. This is not true. 2.2. The most relevant issues that have emerged, which are not listed by the respondent, are those enunciated by the Senior Member on 15 October 2020, namely: 2.2.1. There is no Rule or legal requirement that prohibits a veterinarian from discharging a non-ambulatory animal. 2.2.2. The Board failed to conduct an investigation or interview with the complainant, Mrs Buckley, during the time that she was still alive, in order to establish her credibility and the veracity and integrity of her evidence. 2.2.3. The board failed to conduct an interview with me. I have provided my response to these issues in my response dated 5 July 2019. 2.3. In all issues raised by the respondent, the burden of proof remains with the respondent to prove the respondent's charge, I do not bear the burden of proving that the respondent's averments are not true. Where there is insufficient evidence or no evidence to support the respondent's averments, I should be given the benefit of the doubt. 2.4. The only charge upheld by the respondent against me was as follows: The Board finds Dr Kallman guilty of unsatisfactory professional conduct in that his decision to discharge a non-ambulatory dog with tick poisoning demonstrated a lack of skill, judgment or care.
Dr Kallman claimed the latter charge was the only one relevant to the proceedings and all other issues raised by the respondent are irrelevant.

The Tribunal's consideration of issues

Dr Kallman was informed by the Board by email dated 23 September 2019, (page 66 of the s 58 documents), that he had been found guilty of unsatisfactory professional conduct pursuant to a recommendation of the Committee in breach of s 35(k) of the VP Act, he was issued with a caution and fined $1,000. The Board enclosed a copy of the Report of Investigation.
The recommendation of the Committee at page 63 of the s 58 documents, forming part of the Report of Investigation was "… the Board find Dr Kallman guilty of unsatisfactory professional conduct in that his decision to discharge Missy demonstrated a lack of skill, judgment or care."
At the foot of page 63 adjacent to the marginal note "Board Decision" is "… the Board resolved to accept the recommendation from the Complaints Committee."
The Report which comprises pages 61 to 63 of the s 58 documents includes a summary of the complaint, findings of the investigation, particularised allegations, response to the particularised allegations, opinion (of the Committee), Committee recommendation and Board decision.

LUNGS

In the first page of Clinical Records appear the comments at "Demeanour / Behaviour … displaying some lung involvement and hindlimb paresis". "Breathing/coughing/Sneezing noted some lung changes" - O's concerned excessive resp effort but little increase in lung sounds audible" … "Patient admitted, v aggressive and hyperventilating…"
In the second page of Clinical Records at the end of the report for the date of discharge appears - "Major issue is lung involvement and complications from this."
Notwithstanding the references in Dr Kallman's Clinical Records to difficulties with Missy's lungs and breathing, there is no evidence of any treatment by Dr Kallman of Missy's lungs even though Missy was being discharged to go to her owner's home rather than to a veterinary practitioner and the Clinical Notes states Missy would be "better served at home".

Relevant legislation

References in these Reasons to legislation are to provisions of the VP Act unless stated to the contrary. We observe that the Board was constituted by s 76. Some functions of the Board are listed at s 79(2) and include power: … (b) to investigate complaints against veterinary practitioners, (c) to take disciplinary action against veterinary practitioners, (d) to enforce the provisions of this Act and the regulations, including to take proceedings for offences against this Act or the regulations, …
Section 49(1) in Part 5 "Complaints and disciplinary proceedings" expressly enables the Board to "delegate any of its functions under this Part (other than this power of delegation) to a committee established under section 81, or require such a committee to make recommendations to the Board in relation to a complaint."
Section 47 provides that, if after the Board has completed an investigation into a complaint against a veterinary practitioner, the Board is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Board may take any one or more of certain specified actions including "reprimand or caution the veterinary practitioner" and "impose a fine on the veterinary practitioner of an amount not exceeding $5,000".
Section 35 "Definitions", states disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct" and "professional misconduct means … unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner's registration, or any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act.
The definition of unsatisfactory professional conduct specifies 13 categories of conduct, one of which is: "(k) … conduct of a veterinary practitioner that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of veterinary science.
Section 4 defines the "Tribunal" to mean "the Civil and Administrative Tribunal" and s 48(1) states: A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that finding and any action taken by the Board under section 47.

The role of the Tribunal

The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal's processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).

Powers of Tribunal on review

Section 28 of the CAT Act provides "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation."
Pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law. The Tribunal may affirm or vary an administratively reviewable decision of an administrator, or set aside the reviewable decision and either make a decision in place of the reviewable decision or remit the matter for reconsideration to the relevant administrator.
Section 38(2) of the CAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and shall take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: ss 38(4) and (5).
The Tribunal finds the Decision is a decision of an administrator (s 8 of the ADR Act) and is an administratively reviewable decision (s 30(1) and (5) of the CAT Act and s 7 of the ADR Act) over which the Tribunal has administratively reviewable jurisdiction.

Dr Kallman's clinical records

Dr Kallman included a disclaimer (the Disclaimer) printed on his clinical records which form part of the s 58 documents (Clinical Records).
We observe that, unlike all other printing on the Clinical Records, using a readily legible black font, the Disclaimer was printed in a faint reddish or brown, substantially illegible font, occupying some 15 substantive lines, much of which was hidden under larger black typing.
The Board has sought to use certain of the black typing on the Clinical Records as evidence in these proceedings.
Dr Kallman informed the Tribunal during the hearing (T18-36 ff) that he had informed the Board that it could publish the Clinical Records "in no circumstances" and at T19 he claimed an entitlement to confidentiality.
Dr Kallman submitted in AS2: 11.2 … The board has failed to understand that my notes are a reflection of my observations and meant to provide my memory with cues when re-evaluating the patient, and that my notes are not intended to be a forensic document or response to a complaint. The board has misinterpreted my personal observations to my disadvantage and detriment. … 11.4 The board coerced a copy of the notes from Dr Kallman with threats of prosecution for unprofessional conduct and used these notes as proof, despite the notes being marked to the effect that these notes are private and confidential, are compiled as an aide only for the sole and exclusive purpose and benefit of the authors [sic] and were not compiled for third party or legal purposes. The Board ignored the disclaimer in my notes, never discussed my notes with me, and forwarded my notes to Mrs Buckley and the Board's expert without my permission.
Dr Kallman made further submissions in ASR including that "a copy of [his] clinical notes" containing a disclaimer was provided under duress, the apparent duress being that he was threatened for prosecution for "unprofessional conduct".
While Dr Kallman initially claimed the Clinical Records were his aide memoire for his sole and exclusive benefit, and were private and confidential, in ASR, the last documents provided to the Tribunal, he conceded they were clinical notes which he produced to the Board by email on 11 March 2019 in relation to "Buckley Complaint" and he described them as "Notes regarding the case at admission and day of discharge".
The s 58 documents show the Board notified Dr Kallman of Ms Buckley's complaint (and provided him with a copy) and requested several documents of Dr Kallman by email on 3 January 2019. The requested documents included a written response to the complaint including in detail his relevant actions, case history, consent and cost estimate forms, diary and other records and any other material he believed may be relevant to the Board's consideration of the matter. Dr Kallman responded to the Board by letter dated 11 January 2019 stating amongst other matters that he had been advised that he had no obligation to respond "to the complainant's frivolous, vexatious and groundless allegations".
The Board notified Dr Kallman by email dated 21 January 2019 that he was summoned pursuant to s 44 of the VP Act to appear before the Board to produce certain documents for the Committee. The documents required included all his records relating to Ms Buckley's complaint and certain specified documents.
Dr Kallman replied to the Board by letter dated 28 January 2019 to the effect that he wanted the investigation held in abeyance in order for him to make an unspecified application to the "Ombudsman NSW".
On 12 February 2019 the Board notified Dr Kallman by email that he was summoned pursuant to s 44 of the VP Act to appear and produce documents for the Committee at 10 a.m. on 22 February 2019. The documents were those previously requested and then required to be produced.
From 15 February 2019 to 27 February 2019 several letters and emails passed between Dr Kallman and the Board. Dr Kallman's letter of 27 February 2019 included a statement to the effect that the Board should "screen" Ms Buckley's complaint without seeing the Clinical Records or any other information from him. Dr Kallman asserted that a breach of this requirement would violate his "basic human rights" including "the right to silence and the right to not be compelled to provide self-incriminating evidence".
On 1 March 2019 the Board sent an email to Dr Kallman again requiring him to attend before the Board and produce his clinical records. The email informed Dr Kallman of several matters including that any failure by him to comply with a Board notice was a breach of s 44(4) of the VP Act and under sch 3 of the Veterinary Practice Regulations 2013 would be a penalty notice offence incurring a $500 fine.
On 11 March 2019 Dr Kallman sent certain documents to the Board including a copy of the Clinical Records.
The Tribunal observes that: 1. Section 37 (1) states "The regulations may establish a veterinary practitioners code of professional conduct setting out the rules of conduct that should be observed by a veterinary practitioner in carrying on the practice of veterinary science." 2. The Veterinary Practice Regulation 2013 (NSW) (Regulations) comprises the regulations made in accordance with the VP Act. 3. Part 4 of the Regulations styled "Complaints and disciplinary proceedings" substantially comprising regulations 12 and 13, prescribes all clauses of the code of conduct (Code) for the purposes of the definition of "unsatisfactory professional conduct" in paragraph 35(e) of the VP Act. 4. Reg 13 provides that the Code in Schedule 2 of the Regulations is "… a veterinary practitioners code of professional conduct". 5. Reg 15 provides that veterinary practitioners must ensure a detailed record of any consultation, procedure or treatment is made as soon as practicable and must include the results of any diagnostic tests, analysis and treatments.
The Tribunal observes, in relation to Dr Kallman's unsupported claim that he has a basic human right to not be compelled to provide self-incriminating evidence, s 44A(1) provides that self-incrimination is not an excuse from producing a document if required to do so by the Board in any proceedings in respect of a complaint "on the ground that the … document might tend to incriminate the person or make the person liable to a penalty";
The Tribunal observes, in relation to Dr Kallman's multiple failures to promptly comply with the Board's requests for the production of information and documents, the requirements of s 45 that veterinary practitioners, when provided with a relevant notice served on such persons must: (a) provide written information, by the date specified in the notice, and to verify the information by statutory declaration, (b) produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) otherwise assist in, or co-operate with, the investigation of the complaint in the specified manner.

The Board's submissions concerning Dr Kallman.

The Board objected at [9] to factual assumptions by Dr Kallman which were disputed and not otherwise in evidence before the Tribunal. The Board also submitted "The applicant did not provide any evidence by way of statutory declaration or affidavit about his account of Missy's treatment or discharge and accordingly was not cross-examined."

Failure by Dr Kallman to give evidence to the Tribunal

The Tribunal observes that Dr Kallman's failure to provide a statement as to his account of the events involving Missy, Ms Buckley and Mr Buckley at or in communication with staff at the Clinic did not strengthen his position.
The Tribunal also observes that in Spate v Veterinary Practitioners Board of NSW [2017] NSWCATOD 139 (Spate's Case), this Tribunal affirmed a decision of the Board, the Respondent in that matter, that Dr Janet Spate, (Dr Spate), not be registered as a veterinary practitioner for reasons set out in the decision in Spate's Case.
The Tribunal, in Spate's Case, acceded at [68] to the submission of the Board and drew an adverse inference against Dr Spate because of Dr Spate's failure to give evidence to the Tribunal. The Tribunal considered that it was entitled to draw such an inference and relied, at [68], on multiple decisions of the NSW Court of Appeal.
The Tribunal, in Spate's Case noted: 70 … while the applicant was in fact present during the hearing, she did not give evidence to the Tribunal, either orally or by way of statement, and thus was not cross-examined. 71 The Tribunal considers that it was significant that it was deprived of the opportunity to see and hear the applicant. …

Experts' reports

Reports from three veterinary practitioners were tendered in evidence. The practitioners are Dr Tabrett who provided reports for the Board, and Doctors Munro and Goddard who each provided a report at the request of Dr Kallman. All three practitioners agreed on certain matters while Dr Tabrett disagreed with certain submissions by Dr Goddard and Dr Munro and vice versa.
Dr Kallman did not call for Dr Tabrett to be cross-examined as to his reports. The Board did not call for Dr Munro to be cross-examined. The Board did call for Dr Goddard to be made available for cross-examination. However, Dr Goddard did not appear.

Expert reports of Dr Tabrett

Dr Tabrett provided a report dated 20 March 2019, and supplementary reports dated 30 June 2019 and 13 October 2020 in response, respectively, to reports by Dr Munro and Dr Goddard.
We refer to certain opinions from Dr Tabrett's reports throughout these reasons.

Expert report of Dr Munro

Dr Munro's expert report is in evidence and is relied on by Dr Kallman.
There is no dispute that Dr Munro was engaged to work in Dr Kallman's Clinic at all relevant dates. Accordingly, we find on a prima facie basis that Dr Munro cannot be regarded as an independent expert for the purpose of these proceedings except to the extent that her observations are supported by objectively independent expert(s) or conceded by the Board.
We observe that the Board submitted that it objected to Dr Munro's report on the basis that the opinions she expressed were based on factual assumptions which were disputed and not otherwise in evidence before the Tribunal.
Dr Munro stated at [7.1] and [7.2] that she had been provided with certain information and identified four sources of information at [7.3] to [7.6]. She also stated she had been provided with specific information, namely information relating to events within the Clinic and [Missy] and that the Board had ignored the fact that Missy behaved aggressively whilst hospitalized at the Clinic. Regrettably, Dr Munro did not identify the source(s) which provided the information she specifically referred to.
At [17] Dr Munro stated: "The dog backed into the corner of her cage, turning her gaze away to avoid eye contact and baring teeth. The dog was highly aggressive and extremely difficult to handle, and this behaviour continued throughout its hospitalisation. The Applicant responded to this sudden change in the dog's behaviour by avoiding direct eye contact, speaking in soft reassuring tones and slowly approaching the dog by approaching the cage walking backwards. The Applicant calmly reached with the back of his arm to collect the dog. This intensified the patient's aggressive signals, causing it to lunge approximately one third the length of the cage while snapping at the Applicant."
Other than the rather general observation in the second sentence of the above extract, the Tribunal is not aware of the source of Dr Munro's very specific observations in the balance of the above extract.
Dr Munro raised numerous hypotheses and sought to link Missy with same while making further assumptions which are not in evidence such as those from [23.5] to [23.8].
On at least seven occasions Dr Munro stated in her report that she understood that "the client" refused further hospitalization and insisted on taking the dog home; see [25.1] [26.1] [28.1] [29.1] [31.1] [32.1] and [36.1]. This is disputed evidence from one or more unidentified sources and in the Tribunal's view such evidence is unsafe to form the basis of a credible opinion.
Much of what Dr Munro has stated as facts is based on assumptions made by Dr Munro without identifying the source of the assumptions. To the extent that such assumptions rely on anonymous sources, Dr Munro's opinions on which those sources rely are given little or no weight by the Tribunal.

Expert report of Dr Goddard

Dr Goddard's undated expert report was filed with the Tribunal by Dr Kallman on 8 October 2019, six days before the date of the hearing.
There is no dispute that Dr Kallman provided and sought to rely on Dr Goddard's report. There is also no dispute that, on receipt of the report, the Board informed Dr Kallman that Dr Goddard was required to attend the hearing for cross-examination.
During the hearing Dr Kallman informed the Tribunal that he had not informed Dr Goddard that he was required to attend the hearing. Dr Kallman provided no explanation for this omission. The Tribunal allowed Dr Kallman time during the hearing to contact Dr Goddard and inform him of the Board's requirement for cross-examination. When the hearing resumed Dr Kallman was asked about Dr Goddard's attendance. Dr Kallman informed the Tribunal that Dr Goddard was not available for cross-examination. Dr Kallman gave no reason for Dr Goddard's unavailability, nor did he inform the Tribunal whether he had contacted or tried to contact Dr Goddard.
In the circumstances, the Tribunal determined that Dr Goddard's report would be admitted into evidence but given limited weight to the extent that Dr Goddard was not made available for cross-examination and to the extent that its contents were not independently corroborated.
Dr Goddard made numerous observations in his report. We observe that his observations at [11] [12] [14], and [20], as examples, are not supported by the information that he referred to at [8] as his instructions nor by evidence otherwise before the Tribunal. Accordingly, the Tribunal rejects Dr Goddard's uncorroborated observations.
Some of Dr Goddard's observations such as those at [24] in his report commenting on Dr Tabrett's expert report stating "Discharge criteria in my hospital includes: Ability to ambulate; Ability to swallow and consume food and water" being consistent with Dr Goddard's own discharge criteria, are accepted because of the corroboration. We also observe that Dr Munro, who worked at the Clinic, stated at [27] in her report she practices the same discharge criteria which she has adhered to as practice policy at the Clinic.
At [27] Dr Goddard says: "… Dr Kallman's approach to what appeared to be an uncomplicated case of tick paralysis is consistent with current best practice in the general veterinary practice. Dr Tabrett has ignored this and applied the level of care expected in a specialist or emergency centre. Clearly this is not the circumstance at Dr Kallman's practice or in fact in the vast majority of practices throughout rural Australia…"
Dr Goddard's comments at [27] are not supported by evidence. There is no evidence that Dr Goddard is a specialist, nor has Dr Goddard provided any evidence as to the source of his opinion as to the level of care provided in "a specialist or emergency centre". Accordingly, the Tribunal cannot rely on Dr Goddard's expressed opinion as to what transpires in a specialist or emergency centre. In addition, Dr Goddard has not identified any source to justify his expressed opinion as to the "circumstances at Dr Kallman's practice" nor "the vast majority of practices throughout rural Australia".
Dr Tabrett's response at (10) in Dr Tabrett's Goddard Report refers to the AUSTICK 2016 Guidelines (the Guidelines) which he states were produced by a panel of veterinarians and researchers including general practitioners (his emphasis) which he opines "… are relevant to practitioners in all levels of care, primary and referral practice, general practice and emergency." Dr Kallman provided no evidence to the Tribunal which contradicted Dr Tabrett's reports, nor did he express an interest in cross-examining Dr Tabrett. We observe that the Guidelines are annexed to Dr Tabrett's Report. The Tribunal accepts Dr Tabrett's unchallenged opinion concerning the relevance of the Guidelines to general practitioners such as Dr Kallman.

Insistence by Missy's owner(s) on her discharge

At [86] the Board submits " …, [Dr Goddard's] report is founded on the repeated assertion that Missy was discharged at the insistence of her owners. The support provided for the applicant's care is continually premised on that contention." The Tribunal concurs with the Board's submission as there is no credible evidence to the contrary. Having regard to our finding, we reject Dr Goddard's contrary submissions and we reject his opinion(s) based on those submissions.

Missy's arthritis

We observe that Dr Goddard stated at [14]: 14. The patient here was elderly, a 13 years old dog that would be expected to be arthritic. Elderly dogs often struggle to recover from tick toxicosis due to arthritis aggravated by reduced mobility and lying in awkward positions, caused by the illness.
In response, Dr Tabrett stated at [1] in Dr Tabrett's Goddard Report: Missy was 12 years old at the time of presentation. Dr Deist's records of visits from 2015 and 2016 show no evidence of arthritis, no diagnosis of arthritis, nor was Missy prescribed any medications for arthritis. Dr Kallman's clinical records from 28th November 2018 show no evidence for arthritis.
Dr Deist and Dr Kallman's clinical records in evidence do not refer to arthritis. There is no credible evidence before the Tribunal that Missy suffered from arthritis. Accordingly, we find there is no evidentiary basis before the Tribunal to justify Dr Goddard extending his general opinion that "a 13 years old dog … would be expected to be arthritic" to Missy. We reject Dr Goddard's express opinion.

Comments regarding written submissions by the parties

The parties had the opportunity to provide written submissions to the Tribunal after the hearing and with the benefit of a transcript to assist their consideration of matters raised during the hearing. Dr Kallman provided a wide range of submissions, many of which did not touch upon relevant issues and certain submissions on which we have provided comments above. The Board then provided its submissions and replies to Dr Kallman's submissions. The third stage was that Dr Kallman then had the opportunity to provide his reply to the Board's submissions. The Tribunal made it clear to the parties during the hearing, that no evidence, other than that already admitted by the Tribunal during the hearing, would be permitted in the written submissions.
Dr Kallman's submissions in AS2 were stated to be in three parts namely: 1. case law involving excerpts from five judicial decisions. 2. submissions as to the relevance of those five decisions; and 3. specific aspects raised by the Tribunal during the hearing. We will deal with each of those in the above order.

Part I: Case Law

Dr Kallman referred to, and relied on, judgments in the following cases: 1. at [1.1] to Gallagher v Veterinary Practitioners Board of New South Wales [2014] NSWCATOD 132 (Gallagher 1) and at [1.2] to Veterinary Practitioners Board of New South Wales v Gallagher [2015] NSWSC 1233 (sic)(Gallagher 2). 1. Gallagher 1 and Gallagher 2 both relate to the same dispute. In May 2013, the Board found that Dr Gallagher, a registered veterinarian, was guilty of unsatisfactory professional conduct in breach of clauses 4, 5 and 8 of the Code, in respect of her treatment of a dog on 30 September 2012. 2. In September 2013, Dr Gallagher applied to the then Administrative Decisions Tribunal (ADT) (the predecessor of the Tribunal) for an administrative review of the Board's decision. On 1 January 2014, prior to the hearing of the review by the ADT, the Tribunal was established, the ADT was abolished, and 3. Dr Gallagher's application was taken to be an application before the Tribunal. 4. The Tribunal heard Dr Gallagher's application on 28 March 2014 and found (Gallagher 1) there was no breach of cls 4 and 5 of the Code. However, the Tribunal found, there was an unintentional breach by Dr Gallagher of cl 8 of the Code, that it was not appropriate to make a disciplinary finding of professional misconduct, and set aside the decision of the Board. 5. The Board appealed to the Supreme Court from the decision of the Tribunal in Gallagher 1 and also sought orders pursuant to the Supreme Court Act 1970 (NSW). Dr Gallagher (defendant to both the Board's proceedings) and the Tribunal (2nd defendant to the Board's 2nd proceedings), each filed submitting appearances but did not otherwise contest the Board's applications. The combined applications initiated by the Board, comprised Gallagher 2. In Gallagher 2, the Supreme Court, held: 19 There was ample material justifying the Tribunal's decision, in effect, that although there were shortcomings in the arrangements for the care of the dog in question, the circumstances did not justify a finding that Dr Gallagher had breached clause 8, since she had not sufficiently fallen short of the applicable professional standards. However, that did not mean that it could not determine whether such shortcomings otherwise constituted unsatisfactory professional conduct: 20 The Tribunal ultimately concluded - "[67] On the basis of our findings the decision of the Board [that Dr Gallagher was guilty of unsatisfactory professional conduct] is not the correct and preferred decision. Accordingly, the appropriate order is to set aside the decision of the Board." … 21 In setting aside the decision of the Board, the Tribunal had not fulfilled its jurisdictional task. … An application made by a practitioner in respect of whom the Board has made a disciplinary finding for a review is made pursuant to s 48 of the Act. The relevant review is conducted by the NSW Civil and Administrative Tribunal in accordance with the provisions of the Administrative Decisions Review Act 1997 (NSW) (the Review Act). Section 63 of that Act provides as follows - "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, … (3) In determining an application … the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 22 It follows from s 63(1) of the Review Act that the Tribunal must independently "decide what the correct and preferable decision is". It is insufficient simply to conclude that the decision under review was wrong. It must then go on to take one or more of the alternative courses specified in s 63(3). It did not do so. 1. Dr Kallman extracted paragraphs [65] of Gallagher 1 and [19] to [22] of Gallagher 2 at [1.1] and [1.2] of AS2. However, he made no submissions referencing Gallagher 1 or Gallagher 2 anywhere else in AS2 nor did he explain any relevance of Gallagher 1 and Gallagher 2 to his case. 2. In RS2 the Board made express submissions in relation to issues raised in Gallagher 1 and Gallagher 2 at [41] - [46], [49] and [53], in particular rejecting Dr Kallman's unsupported submissions that the Board failed to base its charge and conviction on a codified standard of care. We accept the Board's relevant submissions at those paragraphs and do not need to repeat them. 3. We find that neither Gallagher 1 nor Gallagher 2 assist Dr Kallman in these proceedings. 1. At [2.1] [2.2] [2.3] Dr Kallman referred to what he claimed were numbered paragraphs from a case of Bureau of Health Care Services v Jan H Po/ DVM, State of Michigan Court of Appeals, No 327346, June 23, 2016. However, Dr Kallman provided no copy of any such decision, nor did he identify any legislative or judicial basis for that decision nor indicate how same would in any way be relevant to the application in New South Wales of New South Wales legislation. Accordingly, we find, with respect, that the references to what may well be a valid judicial decision in the State of Michigan in the Unites States of America is irrelevant to these proceedings. 2. At [3.1] Dr Kallman extracted paragraphs 13, 19, 28 - 30, 82, 84 and 124 of the West Australian case of Dekker v Medical Respondent of Australia 2014 WASCA 216.(Dekker) 1. We observe that Dr Kallman did not make any submissions with specific reference to principles which may have applied in Dekker. Rather it appears that Dr Kallman relied solely on the paragraphs extracted from the Court of Appeal decision and assumed that all relevant legislation and / or legal principles applicable to medical practitioners in the relevant factual circumstances in Western Australia in 2002 also applied to veterinary practitioners in New South Wales in 2018. 2. We find that the relevant underlying facts in Dekker are materially different from those in these proceedings. 3. In Dekker the judgment stated the following. We note that some of the paragraphs below were extracted by Dr Kallman in AS2. 6 The Tribunal recorded that the parties had agreed the following facts: 1. The practitioner is a registered medical practitioner. 2. On Saturday 27 April 2002, at some time between 6.15 pm and 6.30 pm, a Toyota Hilux utility vehicle driven by the practitioner and a Land Rover vehicle were involved in a 'near miss' event at a road junction on Cherratta Road, Roebourne, resulting in the Land Rover mounting the embankment at the edge of the road surface and rolling into a ditch abutting Cherratta Road (accident). 3. It was dark at the time of the accident and the headlights of both vehicles were illuminated. 4. The practitioner's stationary vehicle was turning right at the road junction in Cherratta Road …. 5. The circumstances of the 'near miss' event were as follows: (a) the practitioner's vehicle, which was travelling in a northerly direction, slowed down on approaching the road junction and came to a halt at the junction; (b) the second vehicle, which was heading in a westerly direction, approached the road junction from the east at an excessive speed, estimated as 50 60 kilometres per hour; (c) for reasons unknown, the second vehicle veered towards the practitioner's stationary vehicle; (d) the practitioner took evasive action and drove across the junction onto the embankment on the northern side of the road surface, narrowly avoiding a collision; (e) the practitioner's manoeuvre resulted in the second vehicle passing just behind the practitioner's vehicle as it crossed the road junction; (f) subsequent evidence revealed that the second vehicle left the road surface, mounted the embankment on the western side of the junction and rolled into the ditch abutting the road; and (g) the practitioner heard noise of impact but could no longer see the second vehicle. 6. The practitioner did not stop immediately and check the location to see if any people required medical assistance from the practitioner. 7. The practitioner instead left the scene of the accident and drove a short distance to the police station in Roebourne where she reported the 'near miss' event and alerted the police to the possibility that another vehicle had driven off Cherratta Road [7]. 7 The Tribunal also found that: (a) the appellant was aware that the other vehicle may have rolled over when she left to contact the police following the 'near miss' incident [18]; and (b) her instinctive understanding as a medical practitioner at the time she left the scene was that 'there would be a bad injury' [17]. 8 The Tribunal also found that at the time of the incident [40] - [41]: (a) it was dark; (b) the appellant did not have a torch with her; (c) the appellant had no medical equipment or first aid equipment with her; and (d) the appellant did not have a mobile phone with her. … 19 … there was no allegation that there existed some specific professional duty which was generally accepted by practitioners of good repute and competency in the medical profession in 2002 which had any potential application to the circumstances of the case. 20 The appellant gave evidence before the Tribunal. She tendered a witness statement and was cross-examined on it. The witness statement included evidence to the effect that immediately following the accident she was in a state of shock, she was terrified as she thought she had almost been killed, she was unable to think in a coherent manner and that she had feared for her life and personal safety. She said '[t]o the best of my memory I was physically shaking and screaming'. [We observe that some of the evidence was challenged] … 21 … the respondent tendered, as part of its case, the appellant's evidence given in 2005 in relation to a criminal trial arising out of the accident. The respondent submitted that the appellant's evidence before the Tribunal, given some 11 years after the events in question, was unreliable … and that, instead, her evidence from 2005 was 'more likely to reflect the state of affairs as she perceived it, at that time and after the accident' (GB 26). Her evidence in 2005 included evidence to the effect that she was 'petrified' and in a 'state of shock' and was not really in a position to 'take action'. … 28 The Tribunal made no reference to, and the parties in this appeal did not contend, that there were any specific written professional conduct rules applicable in April 2002 prescribing the appropriate conduct of a medical practitioner in the circumstances of the appellant in this case. 29 Further, the Tribunal made no reference to, and the parties in this appeal did not contend, that there was any relevant statutory provision governing the conduct in question. … In conclusion Dr Dekker was successful. At [124] the Court held there was no evidence of a specific professional duty; the rules of natural justice precluded the Tribunal from drawing on its own knowledge and experience to find a specific professional duty: and insofar as the Tribunal merely relied upon a general duty or norm to care for the sick, as applied to the specific circumstances of this particular case, its finding could not be upheld in the absence of evidence; and at [126]; the evidence adduced before the Tribunal was incapable of sustaining the Medical Board's case. We observe that the undisputed evidence in these proceedings is that Dr Kallman carried out at least a partial examination of Missy, before giving her two injections and admitting her into his clinic on 28 November 2018. Dr Kallman's clinical records show that Dr Kallman carried out a further examination of Missy the following day. Having regard to the substantially different factual context of Dr Dekker's involvement with the driver of the vehicle which almost collided with her vehicle in 2002 as detailed above and Dr Kallman's undisputed involvement with Missy and having regard to the lack of evidence as to the applicable law in Western Australia concerning medical practitioners in 2002 and the provisions of the VP Act and the regulations referred to in these reasons, we reject Dr Kallman's submissions to the effect that the decision of the Court of Appeal in Dekker is relevant to these proceedings. 1. At [4.1] Dr Kallman referred to Pillai v Messiter (No 2) (1989) New South Wales Court of Appeals (sic) 16 NSWLR 197 (Pillai) and submitted: "… the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards …). 1. We observe that Pillai involved a matter which referred to "serious misconduct" as defined by Reg 1.07 of the Fair Work Regulations 2009 (Cth). The definition includes conduct such as wilful or deliberate behaviour by an employee that is inconsistent with continuation of a contract of employment, or that causes serious and imminent risk to the health or safety of a person; theft; fraud; assault or intoxication at work. 2. These proceedings involve conduct which in our view is not relevantly comparable to the conduct referred to in Reg 1.07; a Board conviction at the lowest end of the disciplinary finding scale; and the imposition of two penalties which are at the lowest end of the penalties which may be imposed by the Board.
Dr Kallman has provided no relevant submissions as to how the Pillai test could reasonably be compared with the Decision under review.

Part 2: The relevance of the above Case Law

Having regard to our findings as to the lack of relevance of the court decisions referred to at Part 1, we reject Dr Kallman's submissions to the contrary.

Part 3: Specific matters raised by the Tribunal.

Dr Kallman raised six specific submissions. We will deal with each briefly.

First Argument: There is no Rule or legal requirement that prohibits a veterinarian from discharging a non-ambulatory animal:

Dr Kallman's submissions have persistently referred to the relevant charge as one relating to the discharge of "a non-ambulatory" animal. That was not the charge. The charge was that Dr Kallman "discharged a non-ambulatory dog with tick poisoning". (Tribunal's emphasis) The first argument is rejected.

Second Argument: The Board failed to conduct an investigation or interview with the original complainant, Mrs Buckley, to establish her credibility and her evidence

The Tribunal hearing is a re-hearing of the charge by the Tribunal. The result of the re-hearing was the same as the result of the hearing before the Board. The second argument is rejected.

Third Argument: The Board's counsel maintains that the patient was not referred to another veterinarian nor treated properly (with radiographs, oxygen, etc) but this was never part of the charge or the finding.

The third argument is not relevant to the re-hearing by the Tribunal.

Fourth Argument: The Board's counsel alleges that it is unprofessional to discharge a non-ambulatory patient and not to have obtained a signed waiver from the pet owner, as well as indicating that my notes do not say anything about the patient being removed.

We refer Dr Kallman to the words used by counsel for the Board during the hearing at T30 - 41 to 48. The fourth argument is rejected.

Fifth Argument: The Complainant avers that the dog was floppy and covered in urine.

Dr Kallman submitted that the Complainant's fifth argument was not true. Dr Kallman has provided no evidence to the Tribunal to support his submission. In particular, there is no evidence before the Tribunal to the effect that Dr Kallman was present at the relevant time and location, nor has any witness provided relevant evidence contrary to that of Ms Buckley.

Sixth Argument: The Board ignored my competence and experience in treating tick toxicosis cases over the past ten years, and decided based on one case that I am suddenly incompetent and that I have acted unsatisfactorily.

The sixth argument is not relevant to the re-hearing by the Tribunal.

Dr Kallman's submissions in reply (ASR)

Dr Kallman made numerous submissions in reply, many of which were not supported by evidence, some of the submissions were contrary to admitted evidence or our findings, while others were not legally correct. As an example, we note that at [1.1] Dr Kallman refers to RS2 [2] and claims that paragraph is extremely disingenuous: … as it fails to mention a far more significant consequence of a board conviction: the fact that any conviction results in a permanent record, akin to a criminal record, against the convicted veterinarian.
Paragraph [2] in RS2 stated: The applicant, Dr Mark Kallman, is a registered veterinarian and was first registered in NSW on 30 June 2008. On 17 September 2019 the Veterinary Practitioners Board ("the Board") determined that the applicant had engaged in unsatisfactory professional conduct contrary to s35(k) of the Veterinary Practice Act NSW 2003 ("VP Act"). The applicant was issued with a caution (the lowest level of penalty) and a fine of $1000 was imposed.
In ASR Dr Kallman stated: 1.2. Veterinary boards like the respondent, regularly use frivolous, vexatious and groundless complaints as a means to falsely charge, convict and penalise veterinarians. The goal being to eventually destroy a few veterinarians in the profession in order to keep the rest of the profession intimidated. The charges proffered are always incompetent and are typically fabricated or 'purpose-made' in order to fit the particular facts in order to achieve the conviction, as in this case. The board then imposes an insignificant penalty, like a caution and $1000 fine, in an attempt to induce the falsely convicted veterinarian into accepting the penalty without resistance. 1.3, Once the veterinarian has been entrapped with such a record, the board can use this in the future as the means to impose harsher and harsher penalties, and eventually destroy the veterinarian. 1.4. A further effect of such a permanent record is as follows: When applying for certain positions or privileges, a veterinarian may be called on to prove that they have no prior convictions. A veterinarian wishing to practice in another State or country will be called on to disclose any prior convictions. A veterinarian seeking a position unrelated to the practice of veterinary medicine may also be called on to disclose any prior convictions. A recording made in the register of veterinarians can cause a veterinarian severe prejudice and harm in their professional and personal lives at any time into the future.
The Tribunal finds that the contents of RS2 at [2] are statements of fact and law and that evidence of these is before the Tribunal either in accepted evidence such as the s 58 documents or in legislation such as the VP Act.
It appears to the Tribunal that the contents of Dr Kallman's Reply at [1.2] to [1.4] comprise multiple allegations of facts which are not supported by evidence before the Tribunal and legal submissions which are not supported by any authorities such as legislation or relevant judicial or tribunal decisions.
The Tribunal observes that Dr Kallman was informed by the Tribunal on several occasions during the hearing that his submissions had to be based on evidence or authorities before the Tribunal. In his submissions he was required to identify the source(s) of the evidence he was relying on. Where he was relying on legal principles it was necessary to provide the authorities he relied on to support his arguments
At T58-5 and following the Tribunal said: … please remember that with the written submissions we would like to see your authorities. So include references to where the evidence came from. The source of the evidence and include the authorities ….
From T53-48 to T54-6 the transcript includes the Tribunal's following directions: … when making submissions I would urge both parties to ensure that their submissions to the extent that they are based on the evidence, identify the source of the evidence. … the documents that have been admitted into evidence. Where the submissions are based on matters of law then you provide the appropriate extracts from the legislation. And if the authority you are relying on is a judicial or Tribunal authority then when you send in your submissions you will also send in a copy of the whole of each relevant decision in addition to providing details as to the particular paragraphs that you are relying on …
To the extent that submissions by Dr Kallman are not supported as to facts by evidence before the Tribunal and as to submissions as to law which are not supported by relevant authorities provided to and accepted by the Tribunal, the Tribunal declines to accept those submissions.
Having regard to the findings in the immediately preceding paragraphs the relevant contents of RS2 are accepted by the Tribunal and the contents / submissions in Dr Kallman's Reply from [1.2] to [1.4] are rejected.

Costs

Section 48(1) of the VP Act states: A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that finding and any action taken by the Board under section 47.
The general rule in respect of costs incurred in proceedings in the Tribunal is found in s 60 of the CAT Act. Section 60 provides that, other than in proceedings in respect of which there are special circumstances warranting an award of costs, each party shall pay their own costs.
However, at Division 6, Part 4 of Schedule 5 to the CAT Act, clause 26 contains provisions which are exceptions to the general costs rule as follows: 26 Costs in veterinary practitioner proceedings (1) Despite section 60 of this Act, the Tribunal must order costs against a veterinary practitioner in proceedings for the purposes of the Veterinary Practice Act 2003 in any of the following circumstances unless the Tribunal is satisfied that exceptional circumstances exist - (a) if the Tribunal affirms a disciplinary finding against a practitioner in proceedings for the purposes of section 48 of the Veterinary Practice Act 2003, (b) if the Tribunal considers that the matter of the complaint against a veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint. (2) This clause does not limit the power of the Tribunal to order costs in proceedings for a Division decision for the purposes of that Act in other circumstances.
In these proceedings Dr Kallman sought an order at (19.2) in AS2, repeated at (7.2) in ASR, that the Board pay his costs. Dr Kallman provided no evidentiary based substantive submissions as to the existence of any relevant exceptional circumstances to support his proposed order, nor are we aware of any relevant exceptional circumstances which would support that proposed order.
In the circumstances and having regard to the provisions of cl 26, Division 6, Part 4 of Schedule 5 to the CAT Act we find that Dr Kallman should pay the costs incurred by the Board of and incidental to these proceedings.

Decision

Having regard to the undisputed facts, the parties' submissions and our above findings, the correct and preferable decisions of the Tribunal are that the decision under review is affirmed and that Dr Kallman pay the costs incurred by the Board.

Orders 1. The decision under review is affirmed. 2. The Applicant pay the costs of the Respondent, of and incidental to these proceedings, as agreed or assessed on the ordinary basis.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2022

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (3)