Kevin Polglaze v Veterinary Practitioners Board of NSW and Anor

(b) the Plaintiff did not advise Miss Burn during the course of the procedure on 12 September 2007 that the unusual reaction of the dog meant that he would be making an additional charge. 6 The Board found that the Plaintiff had engaged in unsatisfactory professional conduct and determined to caution him, as well as imposing a fine of $300.00 and hearing costs of $400.00. 7 On 7 May 2008, the Plaintiff applied to the Tribunal for a review of the decision of the Board. The hearing before the Tribunal took place on 21 July 2008, with the Tribunal comprising her Honour Magistrate Hennessy, (Deputy President), Dr T Carter (veterinary surgeon) and Ms F Clarke (lay member). The Tribunal reserved its decision, which was handed down on 15 August 2008. 8 The Tribunal observed that the Board had found that the Plaintiff had failed to comply with the provisions of clause 16 of the Veterinary Practitioners Code of Professional Conduct ("the Code") (see [28] below) in two respects. The Tribunal said at [6]: "According to the Board, Dr Polglaze failed to comply with this provision in two respects. He did not give a 'realistic' estimate for the services when he spoke to Miss Burn on the phone and he did not tell her, before he administered the second dose of sedative, that the cost would be more than he originally quoted." 9 The Tribunal turned then to consider whether, either in the phone call to Miss Burn or during the course of the home visit, the Plaintiff failed to comply with clause 16 of the Code, and was consequently guilty of unsatisfactory professional conduct. The Tribunal summarised the accounts of Miss Burn and the Plaintiff concerning what was said during the phone call. Neither Miss Burn nor the Plaintiff gave oral evidence before the Board or the Tribunal, and thus the Tribunal determined this issue by reference to the written accounts of the two persons. 10 Given the issues raised on the appeal, it is appropriate to set out the Tribunal's reasons for its critical decisions at [14]-[17]: " Findings re phone call

14 There is a direct conflict between Miss Burn's and Dr Polglaze's version of what was said in the phone call. Miss Burn says that she has a distinct memory that the amount of $155 was a definite price and she wrote it down. Dr Polglaze has a file note which indicates that the price was an estimate and says that he never gives a firm price. We had no opportunity to test these conflicting versions. To make a finding adverse to Dr Polglaze, we must be satisfied 'on the balance of probabilities' that Miss Burn's version is correct. We are not satisfied that an experienced practitioner would tell a client in advance of performing a procedure on an animal that he did not know, that the price would be a set amount. On balance, given Dr Polglaze's evidence about his usual practice and the file note of the conversation, we accept that he said that the amount was an estimate. We are not suggesting that Miss Burn was not telling the truth. She obviously had the impression that the amount mentioned was a fixed price. We are not satisfied that Dr Polglaze added that the cost could vary if it takes longer, or involves more drugs. If that is what he had said, Ms Burn would not have understood the amount to be a fixed price. Furthermore, Dr Polglaze admitted that, had he been given all relevant information, he would [have] been able to emphasise more the possibility of a variation in the amount. In our view, Dr Polglaze did not emphasise the possibility of variation, he merely said that that the amount was an estimate.

15 It follows from this finding that Dr Polglaze did not fail to comply with cl 16 of the Code in relation to what was said in the phone call. He gave Miss Burn an estimate of the cost of his services. Contrary to the Board's characterisation of this provision, there is no obligation on a veterinary surgeon to provide a 'realistic' estimate or to elaborate on the meaning of an estimate.

Providing a further estimate of fees during the procedure

16 The second alleged breach of the Code in relation to fees was said to be that Dr Polglaze did not tell Miss Burn before he administered the second dose of sedative, that the cost would be more than he originally estimated. Miss Burn said that Dr Polglaze had ample opportunity to tell her of any additional costs during the time he was at her home, but chose to tell her when she was at her most vulnerable, that is after Gretal had passed away. Dr Polglaze agreed that he did not mention price again until after the procedure was over but said that it was not practicable for him to do so because it was a stressful situation for Miss Burn and it was not appropriate to raise the issue of costs in those circumstances.

17 In our view cl 16 relates both to estimating the cost before any veterinary service is provided and estimating the cost of any additional service that may be needed. We are satisfied that Dr Polglaze's failure to advise Miss Burn before administering the second sedative that the original cost estimate would increase constitutes a breach of cl 16 of the Code. Dr Polglaze had plenty of time to tell Miss Burn that the cost would increase and she was not so distressed that it was impracticable for him to do so." 11 Having regard to the finding of unsatisfactory professional conduct in one respect only, which the Tribunal characterised as "a relatively minor breach" of clause 16, the Tribunal (at [18]) determined that a caution and a lesser fine of $200.00, together with the Board's hearing costs of $400.00 ought be ordered against the Plaintiff, together with an order that he pay the Board's costs of the proceedings before the Tribunal.

Statutory Provisions 12 The appeal to this Court is brought against a "review decision", and not an "original decision", of the Tribunal. Accordingly, s.91C VP Act governs the appeal. Section 91C provides: "91C Right to appeal to Supreme Court against review decision of Tribunal

(1) A party to any proceedings in which the Tribunal has made a review decision may appeal to the Supreme Court against the decision of the Tribunal.

(2) An appeal under this section to the Supreme Court: (a) may be made on any question of law, and

(b) with the leave of the Supreme Court, may extend to a review of the merits of the order or other decision concerned." 13 It will be observed that s.91C(2) provides for appeal as of right to the Court on any question of law, and by way of review of the merits of the order or other decision concerned with the leave of the Court. In this case, the Plaintiff presses, in the alternative, an appeal via each of these statutory avenues. 14 Section 91F provides for appeal on questions of law: "91F Appeals on questions of law

(1) If an appeal under this Part is restricted to questions of law, the Supreme Court is to determine the appeal and may make such orders as it thinks appropriate in light of its determination. (2) The orders that may be made by the Supreme Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Tribunal, and

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

(3) Without limiting subsection (2), in any appeal against an original decision the Supreme Court may, in respect of the veterinary practitioner concerned: (a) make any order that could have been made under section 51, or

(b) vary any decision made by the Tribunal." 15 Section 91G provides for appeal extending to a review of the merits: "91G Appeals on the merits

(1) If an appeal under this Part extends to a review of the merits of a review decision or original decision, the Supreme Court is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material,

(2) The Supreme Court may exercise all the functions that are conferred or imposed by or under this Act or the Administrative Decisions Tribunal Act 1997 on the Tribunal to make the decision concerned.

(3) In determining any such appeal, the Supreme Court may decide: (a) to affirm the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside."

Question of Law 16 Section 91C(2)(a) VP Act provides for appeal, as of right, against the decision of the Tribunal "on any question of law". In Director of Public Prosecutions v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402, I observed at 411 [58]-[60]: "There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394; Sood v R [2006] NSWCCA 114 at paragraph 30.

The formulation 'question of law' employs general words capable of application at different levels of generality: Attorney General for NSW v X (2000) 49 NSWLR 653 at 660 (paragraph 25). The expression 'question of law' is wider than 'error of law': Attorney General for NSW v X at 677 (paragraph 124).

A mixed question of fact and law does not fall within the description of 'question of law alone': Williams v The Queen (1986) 161 CLR 278 at 287, 314; Attorney General for NSW v X at 663 (paragraph 44)." 17 The phrase "on any question of law" is narrower than the phrase "involving a question of law": B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187 at [47]. 18 Given the issues in this appeal, it is helpful to note the observations of Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ in Collector of Customs v Agfa-Gevaert Ltd [1995]-[1996] 186 CLR 389 at 394-395 with respect to the distinction between questions of fact and questions of law (certain footnotes omitted): "The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v FCT [(1956) 96 CLR 47] , Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said [at 51] : 'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.'

In Collector of Customs v Pozzolanic Enterprises Ltd [(1993) 43 FCR 280] , the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon 'value judgement[s] about the range of [an] Act' which, the Court said, necessarily raised questions of law [at 289] .

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic [at 287] , after referring to many cases, the Court identified five general propositions:

'1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

The meaning of a technical legal term is a question of law.

The effect or construction of a term whose meaning or interpretation is established is a question of law.

The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.'

In Pozzolanic [at 288] , the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact." 19 In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, Basten JA (Giles JA and Bergin J agreeing) said at [17]-[19]: "17 It will still be necessary to distinguish questions of law from questions of fact. That should be undertaken in the manner addressed by Mason JA (when on this Court) in a passage in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, quoted with approval in the joint judgment in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26] to the following effect: '[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law. The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact.'

18 The use of the word 'reasonably' as qualifying open or possible has been criticised as a 'distraction': see Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90-91, in a passage quoted with approval by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 421-422 and by Spigelman CJ in Attorney-General (NSW) v X at [60]-[61]. The preferable language may be that adopted by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138: '[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.'

19 Whatever the precise language used in particular circumstances, it is well understood that the test is intended to be the same. As Phillips JA noted in relation to review of a tribunal decision, 'we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily' (at p 91). The same may be said in relation to the characterization of the supposed error. It is according to this test that the Appellant must establish error in the present case."

Grounds of Appeal in Further Amended Summons 20 The grounds of appeal pressed at the hearing were expressed in the following terms in the Further Amended Summons: "1. The Tribunal erred in law in applying the wrong standard of proof. Particulars: The Tribunal failed to apply the Briginshaw standard of proof. 2. The Tribunal erred in law by misconstruing clause 16 of the Veterinary Practitioners Code of Professional Conduct. Particulars: The Tribunal erred in finding that clause 16 required the [Plaintiff] in the present case to provide the estimated costs of any veterinary services before the said services were performed and to provide an updated estimate during the performance of the said service. 3. The Tribunal's decision was irrational or so unreasonable that no reasonable or rational decision-maker could have made it. 4. [Not pressed]. 5. The Court review the merits of the Tribunal's decision that the plaintiff failed to comply with clause 16 of the Veterinary Practitioners Code of Professional Conduct. Particulars:

(a) the provision of the further sedative by the plaintiff was not a separate or additional veterinary service, but formed part of the one service;

(b) in the alternative, it was not practicable for the plaintiff to comply with clause 16 of the Code." 21 Mr Strickland SC pressed Grounds 1, 2 and 3 as questions of law under s.91C(2)(a) VP Act, and Ground 5 in support of the application for leave under s.91C(2)(b) of the Act.

Statutory Scheme Under the VP Act and Regulation 22 Before turning to consider the grounds of appeal, it is appropriate to set out certain provisions of the VP Act, the Veterinary Practice Regulation 2005 ("the VP Regulation") and the Code contained in Schedule 2 of the VP Regulation. The Code may be characterised as delegated legislation: s.37 VP Act; clause 13 VP Regulation. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Ltd at 398. The normal purpose of subordinate legislation is to give effect to the provisions of the parent statute: State of New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307 at 320. Subordinate legislation is typically designed to carry into effect the expressed intention of the legislature in ways incidental to the execution of the statute itself: State of New South Wales v Macquarie Bank Limited at 321. It is appropriate to look to the statute and delegated legislation to ascertain the overall statutory scheme: Coleman v Gray (1994) 55 FCR 412 at 423; Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266 at 274 [17]. 23 Section 3 VP Act sets out the object of the statute: "3 Object of Act

The object of this Act is to regulate the provision of veterinary services for the following purposes:

(b) to ensure that consumers of veterinary services are well informed as to the competencies required of veterinary practitioners,

(c) to ensure that acceptable standards are required to be met by veterinary practitioners so as to meet the public interest and national and international trade requirements,

(d) to provide public health protection." 24 The definition of "unsatisfactory professional conduct" in s.35 VP Act contains the following: "unsatisfactory professional conduct means any of the following:

(e) any failure by a veterinary practitioner to comply with a provision, prescribed by the regulations for the purposes of this paragraph, of the code of professional conduct in effect under section 37,

…" 25 Section 37 VP Act provides for the Code to be established by the VP Regulation: "37 Veterinary practitioners code of professional conduct

(1) 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 Board may make recommendations to the Minister with respect to the code." 26 Clause 12 VP Regulation provide for specified breaches of the Code to be "unsatisfactory professional conduct":

"12 Meaning of 'unsatisfactory professional conduct '

For the purposes of paragraph (e) of the definition of unsatisfactory professional conduct in section 35 of the Act, the following clauses of the code of conduct are prescribed: (a) clause 15 (Records), (b) clause 16 (Fees for veterinary services), (c) clause 19 (Special interest areas), (d) clause 21 (Inducements)." 27 Clause 13 VP Regulation provides for the Code: "13 Veterinary practitioners code of professional conduct

For the purposes of section 37 of the Act, the code of conduct set out in Schedule 2 is established as a veterinary practitioners code of professional conduct." 28 The Code includes the following provisions:: " Schedule 2 Veterinary practitioners code of professional conduct

The basic principles of professional conduct for a veterinary practitioner are:

(a) a primary concern for the welfare of animals, and

(b) the maintenance of professional standards to the standard expected by: (i) other veterinary practitioners, and

A veterinary practitioner must, where it is practicable to do so, obtain the informed consent of the person responsible for the care of an animal before providing veterinary services to the animal. … 16 Fees for veterinary services

A veterinary practitioner must, where it is practicable to do so and before providing veterinary services in relation to an animal, inform the person responsible for the care of the animal of: (a) the likely extent and outcome of the veterinary services, and

(b) the estimated cost of those services. …"

Submissions of Parties 29 Mr Strickland SC submitted that the Tribunal had erred in the findings made at paragraph [17] of the Tribunal judgment (set out at [10] above) because it did not apply the correct standard of proof. He submitted that the Tribunal was required to make findings according to the standard of proof specified in Briginshaw v Briginshaw (1938) 60 CLR 336. 30 Ms Katzmann SC submitted that these were civil proceedings and that the Tribunal was correct to apply the civil standard of proof, the balance of probabilities. Ms Katzmann SC submitted that the decision in Briginshaw did not create a third standard of proof, but was concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard: Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 170-171. Whilst accepting that, in a disciplinary case of this nature, the considerations in Briginshaw were material, and that the Tribunal did not advert to them in its reasons, Ms Katzmann SC observed that neither party drew the Tribunal's attention to them and that, had they done so, it is difficult to see what difference it would have made to the decision that the Tribunal reached. The Plaintiff had elected not to appear before the Complaints Committee of the Board and did not testify before the Tribunal.

Decision 31 At common law, only two standards of proof exist - the ordinary civil standard of proof upon a balance or preponderous of probabilities and the criminal standard of proof beyond reasonable doubt: B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 460-461; Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-549 [47]-[51]. 32 The Tribunal at [8] observed, correctly, that the standard of proof by which it must be satisfied was the civil standard, proof based on the balance of probabilities. The Tribunal did not advert to the Briginshaw principle insofar as it had application to a merits review of the disciplinary finding against the Plaintiff. However, counsel before the Tribunal had not adverted to the Briginshaw principle in submissions. The Plaintiff's argument that error of law is demonstrated is not assisted by the fact that his counsel below did not contend that the Briginshaw principle had any particular role to play in this case. 33 Resolution of this ground is also assisted by an examination of the Tribunal's findings. At paragraph [14] (set out at [10] above), the Tribunal made factual findings both for and against the Plaintiff. It should be borne in mind that the proceedings before the Complaints Committee of the Board and before the Tribunal were conducted on the papers. The Plaintiff elected not to appear to make submissions or give evidence in either forum. Nor was it submitted before either body that Miss Burn ought be required to give oral evidence and be cross-examined. 34 A fair reading of the Tribunal's decision does not support this ground. I reject the first ground of appeal.

Ground 2 - The Tribunal Erred in Law by Misconstruing Clause 16 of the Code

Submissions of Parties 35 In support of this ground, Mr Strickland SC submitted that the Tribunal erred in law in two ways. Firstly, it interpreted clause 16 of the Code incorrectly in finding that clause 16 required the Plaintiff to provide a cost estimate before the provision of the service and an updated estimate, if necessary, during the performance of the service. Further, or alternatively, he submitted that the Tribunal erred in law in failing to take into account a relevant consideration, namely that the Plaintiff provided only a single veterinary service to Miss Burn, namely the euthanasia of the dog "Gretal". He submitted that the Tribunal could only find that the Plaintiff had breached clause 16 of the Code if it found that the further sedation was a separate service, but it made no such finding nor can such a finding be implied in the decision. 36 Mr Strickland SC submitted that the Plaintiff had complied with the requirements of clause 16 of the Code, properly construed. He submitted that the Plaintiff had provided to Miss Burn the estimated cost of the veterinary services (euthanasia of the dog) before he provided those services. The fact that there may have been a change in circumstances requiring the use of additional sedatives, and a longer period of time for the services, did not alter this position. After all, Mr Strickland SC submitted, the requirement of clause 16 is to provide an estimate of cost and this requirement envisaged that circumstances may change thereafter. 37 Insofar as the Tribunal may have concluded that the Plaintiff was providing more than one veterinary service because further drugs were to be administered to the dog as sedatives, the Plaintiff submitted that an erroneous construction of the term "veterinary services" had been adopted. It was erroneous to construe clause 16 as requiring the Plaintiff to provide a form of updated estimate during the performance of the relevant service. 38 Mr Strickland SC submitted that, once the Tribunal had found that the Plaintiff had given an estimate of the cost of his services before providing those services, the Tribunal ought to have set aside the entire decision of the Board as no breach of clause 16 had been established. He submitted that the Plaintiff could only be found guilty of a failure to comply with clause 16 if it was found that the further sedation was in fact a separate veterinary service. Mr Strickland SC submitted that the Tribunal made no such finding, nor could such a finding have reasonably been made. 39 Mr Strickland SC submitted that clause 16 should be read strictly given that any failure to comply with the clause constituted unsatisfactory professional conduct under the VP Act. 40 He submitted that if there was a lacuna in the Code, then the Code should be amended, but that it was not open to the Tribunal to construe the Code in a manner adverse to the Plaintiff in the circumstances of this case. 41 Under the umbrella of Ground 2, a further error of law was submitted by the Plaintiff. Mr Strickland SC submitted that in paragraph [17] of its judgment, the Tribunal had failed to make a critical intermediate finding so as to constitute an error of law. He submitted that the Tribunal had not made a critical finding that the second sedative constituted a second or additional "service" within clause 16 of the Code. The Plaintiff submitted that the failure to make this finding constituted error of law: Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at 348-350 [74], [78]. 42 Ms Katzmann SC submitted that the Tribunal held at paragraph [17] that clause 16 required an estimate to be given before any service was provided, and a further estimate when any additional veterinary service was contemplated and before the Plaintiff embarked on providing it. She submitted that this construction of the Code conforms with its legislative purpose: s.33 Interpretation Act 1987. A purpose of the Code is the protection of the consumer, and clause 16 is designed to provide the consumer with the best possible information about cost to enable the consumer to make decisions about whether or not to agree to both initial treatment and additional treatment. Ms Katzmann SC submitted that it would not serve this purpose if a veterinary surgeon could provide any estimate at the outset (no matter how unrealistic it may turn out to be) and, without advising the consumer of the financial impact of them, proceed to provide additional veterinary services productive of significant additional costs and expect the consumer to pay them. 43 The Board submitted that the obligation contemplated in clause 16 is a continuing one, otherwise there would be no need for the clause "before providing veterinary services …". Ms Katzmann SC submitted that the rest of clause 16 is plainly prospective in its terms. 44 Ms Katzmann SC pointed to the factual circumstances of this case in support of the construction of clause 16 advanced by the Board. She submitted that a practical application of clause 16 may be perceived readily in this case. The Tribunal found that the Plaintiff had provided an estimate for veterinary services to Miss Burn. The Plaintiff attended Miss Burn's residence for the purpose of euthanasing the dog. A sedative was administered by the Plaintiff to the dog. It became apparent to the Plaintiff that a further sedative was required. In his submission to the Board's Complaints Committee, which was in evidence before the Tribunal, the Plaintiff stated that, with Miss Burn's consent, he prepared another sedative which contained a combination of two drugs, one to sedate and inhibit pain and one to inhibit possible side effects from the first combination, and he administered this further sedative to the dog (Exhibit PDS1, page 19). Thus, the Board submitted, the Plaintiff had time to obtain informed consent from Miss Burn for this additional service, but did not provide an estimate of cost for the additional service when it was clear that further cost would be involved as a result of the changed circumstances. 45 Ms Katzmann SC submitted that these circumstances were readily accommodated by a sensible construction of clause 16 of the Code, bearing in mind that it was designed to operate in the practical world of veterinary practice. 46 In additional written submissions furnished after the hearing, by leave, Ms Katzmann SC submitted that, although the Tribunal did not expressly state (at [17]) that the administration of the second sedative constituted the provision of a second service, it was unquestionably an unexpressed finding of fact. The failure of the Tribunal to make an express finding to this effect did not constitute error of law: Williams v Bill Williams Pty Limited [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26]; B & L Linings Pty Limited v Chief Commissioner of State Revenue at [134]. Mr Strickland SC responded to this submission by contending that care must be taken in relying upon the cited parts of the judgment of Mason JA in Williams v Bill Williams Pty Limited (at 557) as part only of his Honour's judgment had been approved (or even considered) in Vetter v Lake Macquarie City Council and B & L Linings Pty Limited v Chief Commissioner of State Revenue. The Plaintiff submitted that the better analysis of the Tribunal's judgment is that the failure of the Tribunal to make a critical finding whether there was one or two services provided, meant it simply failed to take into consideration that critical matter, so as to constitute error of law.

Decision 47 In substance, the Plaintiff contends that the Tribunal erred in law in its construction of clause 16 of the Code in that the facts arising from the evidence meant necessarily that the Plaintiff had complied with the requirements of clause 16, and thus the Tribunal's contrary finding was wrong in law: Australian Gas Light Company v Valuer General (1940) 40 SR(NSW) 126 at 138; Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156. The Plaintiff submits that this case fell within the fifth proposition identified in Collector of Customs v Agfa-Gevaert Ltd at 395 (cited at [18] above). 48 It is necessary to construe clause 16 of the Code. 49 The contemporary approach to statutory interpretation is literal but not literalistic, and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 [115]. 50 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 51 The term "veterinary services" is not defined in the VP Act or VP Regulation. It has been observed that the term "services" has a wide meaning: IW v City of Perth [1996-1997] 191 CLR 1 at 11; Port of Geelong Authority v The Ship Bass Reefer (1992) 109 ALR 505 at 518. It is necessary to give the provision a purposive construction: s.33 Interpretation Act 1987. 52 According to The Macquarie Dictionary, the word "service" means, amongst other things, "1. An act of helpful activity. 2. The supplying or supplier of any articles, commodities, activities etc, required or demanded. … 6. The performance of duties as a servant; occupation or employment as a servant … 12. (Oft. Pl.) The performance of any duties or work for another; helpful activity: medical services. …". 53 The word "practicable" is defined in The Macquarie Dictionary to mean "1. Capable of being put into practice, done, or effected, psp. with the available means or with reason or prudence; feasible. 2. Capable of being used or traversed, or admitting of passage: a practicable road". 54 The Plaintiff contends that, in the circumstances of this case, the "veterinary service" to be provided by the Plaintiff was the euthanasing of the dog and that, on this approach, the Plaintiff had complied with the requirements of clause 16 of the Code. I do not accept this submission. There is no doubt that the Plaintiff gave an estimate with respect to the provision of certain veterinary services for the purpose of euthanasing the dog. However, it became apparent that those veterinary services would not suffice, and additional veterinary services were required. The Plaintiff so informed Miss Burn but failed to provide to her an estimate of the cost of those additional veterinary services. It was a matter for the Tribunal to consider what the "veterinary services" were in this case. The Tribunal applied this statutory term to the primary facts. Applying the principles set out in the authorities cited at [18]-[19] above, this is not a case where the facts as found are necessarily outside the statutory description so that a finding that a breach of clause 16 has occurred is wrong in law. 55 It is important to bear in mind the necessity to read fairly the Tribunal's decision in assessing this ground of appeal. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.

56 In my view, a fair reading of paragraphs [14]-[17] makes clear that the Tribunal has found that the second sedative constituted a second or additional service for the purpose of clause 16 of the Code, and that the obligation to provide an estimate in accordance with that provision applied at that point of time. The use of the term "additional service" by the Tribunal in the first sentence of paragraph [17] of the decision reinforces this conclusion, although the Tribunal did not repeat the term in the second and third sentences of that paragraph. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the Tribunal's decision. The Tribunal has not erred in law because of the alleged deficiency of its reasons: Soulemezis v Dudley (Holdings) Pty Limited) (1987) 10 NSWLR 247 at 277-281. With respect to the competing submissions referred to at [46] above, I note that Mahoney JA, in Soulemezis v Dudley (Holdings) Pty Limited at 265D-G, recites the complete passages from the judgment of Mason JA in Williams v Bill Williams Pty Limited at 557, and observes that this statement of authority was not affected by the High Court's reversal of the decision in Bill Williams Pty Limited v Williams (1972) 126 CLR 146. 57 It was open to the Tribunal to conclude that the facts as found involved a breach of clause 16 of the Code by the Plaintiff. This is not a case where the facts as found fall entirely outside the provisions of clause 16, properly construed. 58 The Plaintiff identified to Miss Burn the likely extent and outcome of the veterinary services to be provided by him and the estimated cost of those services. However, it became apparent to the Plaintiff that the veterinary services which he had identified to Miss Burn would not suffice. It was necessary for him to provide additional veterinary services in the form of further sedation using two drugs, being a different sedation formula to that which was the subject of the estimate given by him to Miss Burn. The change in circumstances were such that the Plaintiff sought the consent of Miss Burn for the provision of these veterinary services to the dog: clause 7 of the Code. This practical analysis of what occurred emphasises the basis upon which the Tribunal's finding was open to it. It was practicable for the Plaintiff, before providing these additional veterinary services, to inform Miss Burn of the likely extent and outcome of the additional services and the estimated cost of those services. In seeking Miss Burn's consent to the provision of these additional services, the Plaintiff complied with his obligations under clauses 7 and 16(a) of the Code, but failed to comply with the obligation to provide the estimated cost of those additional services for the purpose of clause 16(b) of the Code. 59 The fact that the Tribunal included a veterinary practitioner is a not insignificant factor when considering submissions on this appeal, concerning the practical consequences of the competing constructions advanced with respect to relevant provisions of the Code. The Courts have recognised the significant role played by specialist members of professional bodies and tribunals: Kalil v Bray [1977] 1 NSWLR 256 at 258, 260-262; Bowen-James v Delegate of the Director General of the Department of Health (1992) 27 NSWLR 457 at 481-482. 60 In my view, the construction advanced by the Board (see [42]-[43] above), promotes the purpose or object of clause 16 of the Code viewed in its statutory context. That context includes the object of the VP Act (s.3) and the basic principles of professional conduct for a veterinary practitioner, including the maintenance of professional standards to the standard expected by users of veterinary services and the public (clause 1 of the Code). 61 Nor has the Plaintiff established that the Tribunal failed to take into account a relevant consideration. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker, and not the Court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 41. The considerations which a decision maker is bound to take into account are discerned from a reading of the statute. These considerations may be stated expressly in the statute or may arise by implication: Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [81], [301]. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the statute rather than the particular facts of the case that the Tribunal is called upon to consider: Minister for Immigration and Multicultural Affairs v Yusuf at 347-348 [73]. I do not accept the Plaintiff's submission that the Tribunal failed to have regard to a relevant consideration. This submission is dependent upon a conclusion that there was a single "veterinary service" in this case, namely, euthanasing the dog. I am satisfied that the Tribunal did not reach this conclusion and that it was open to the Tribunal to reach the conclusion that it did. 62 No error of law has been demonstrated. Ground 2 has not been made good.

Submissions of the Parties 63 Mr Strickland SC submitted that error of law was demonstrated in paragraph [17] of the Tribunal's decision. He submitted that the finding in the last sentence of that paragraph that the Plaintiff had plenty of time to tell Miss Burn that the cost would increase, and that she was not so distressed that it was impracticable for him to do so, was so unreasonable that no rational decision maker could have made it. He pointed to paragraphs 48 and 100 of the written submissions made to the Tribunal on the Plaintiff's behalf (Exhibit A) which contended, amongst other things, that it was impracticable for him to provide an updated estimate of costs during the performance of the services:

(a) as the original estimate was based upon the whole procedure taking 15 minutes;

(b) because the dog reacted in an atypical manner to the sedative given, and the whole procedure took almost one hour;

(c) because the Plaintiff could not give a running estimate of the increased costs where the final cost was unclear until the services were complete; and

(d) because Miss Burn was going through a distressing process during the euthanasia. 64 Ms Katzmann SC submitted that the Tribunal's conclusion at paragraph [17] was open on the evidence, and could not be considered irrational or so unreasonable that no reasonable or rational decision maker could have made it. She submitted that there is nothing irrational in a conclusion that, during a period of nearly an hour, when both the Plaintiff and Miss Burn were at the same place and when there was no impediment to verbal or written communication, it was practicable for the Plaintiff to provide Miss Burn with the additional information about his fees, that he would have known but she did not. Ms Katzmann SC submitted that the question of Wednesbury unreasonableness usually applies to cases of judicial review of abuse of discretionary powers: Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 at 42-44; Minister for Immigration v Eshetu [1999] 197 CLR 611 at [122]-[126]. It is a finding to be made "in extremis": BHP Billiton Direct Reduced Iron Pty Limited v Deputy Commissioner of Taxation [2007] FCA 1528 at [148]. 65 Ms Katzmann SC submitted that such a finding was not justified in the present case. A reasonable tribunal, applying the appropriate statutory criteria, could have come to this view and the ground of appeal had not been made out.

Decision 66 It is not at all clear that a ground based on Wednesbury unreasonableness is available where the decision under appeal is that of a tribunal exercising statutory functions following a contested hearing, rather than a challenge to the exercise of discretion by a decision maker. A perverse finding of fact by a Court does not constitute error of law: Azzopardi v Tasman UEB Industries Limited at 156-157. 67 However, I will deal with Ground 3 on its merits. Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin (1989-1990) 170 CLR 1 at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79]. 68 In my view, the challenged finding of the Tribunal was open to it on the material before it. The arguments advanced in support of this ground by the Plaintiff involve, in reality, a repeat of the arguments advanced before the Tribunal which did not find favour with that body. The recital of facts at [58] above demonstrates that the Tribunal's finding was open to it. The stringent test for Wednesbury unreasonableness has not been made out. 69 I reject Ground 3.

Ground 5 - The Claim for Merits Review 70 At the hearing, I allowed the Plaintiff to further amend the Amended Summons to include Ground 5 which seeks leave for the Court to proceed by way of merits review under s.91C(2)(b) VP Act. The Board objected to this amendment being made, however, I was satisfied that the ground could be argued and considered by the Court at the scheduled hearing.

Submissions of the Parties 71 Mr Strickland SC submitted that, if the Court rejected the Plaintiff's other grounds of appeal, leave was sought for the Court to review the merits of the decision on the basis that the Tribunal made an unreasonable finding for the reasons relied upon in support of Ground 3 (see [63] above). He submitted that the Tribunal overlooked certain matters relied upon by the Plaintiff, namely, that the original estimate was based upon the whole procedure taking 15 minutes, that the dog reacted in an atypical manner to the sedative given so that the whole procedure took almost one hour, and that the Plaintiff could not give a running estimate of the increased costs where the final cost was unclear until the services were complete. Further, he submitted that it was not practicable to provide an updated estimate due to the grief and distress of Miss Burn at the relevant time. 72 Mr Strickland SC submitted that the Tribunal did not consider the first three factors referred to in the preceding paragraph. In relation to the fourth factor, he submitted that there was clear evidence that the Plaintiff was aware that Miss Burn was distressed during the euthanasia process. 73 Mr Strickland SC submitted that leave ought be granted to the Plaintiff, and that the Court should decide what the correct and preferable decision is for the purpose of s.91G(1) having regard to the material before the Court. Having done so, he submitted that the Court ought decide to set aside the decision of the Tribunal, and to order in substitution for it, that the complaint against the Plaintiff be dismissed: s.91G(3) VP Act. 74 Ms Katzmann SC submitted that the Plaintiff ought not be granted leave under s.91C(2)(b) VP Act for the appeal to extend to a review of the merits of the decision. 75 Although the written submission relied upon by the Plaintiff before the Tribunal raised the matters now emphasised on this appeal (see [63] above), Ms Katzmann SC noted that the oral submissions of the Plaintiff's counsel before the Tribunal had referred only to the submission that "It's not practicable when he's - when we're in a very sensitive and distressing situation of a much loved pet being euthanased" (Exhibit PDS1, page 61, lines 40-45). The Board submitted that the Tribunal should not be criticised for not referring to the factors now emphasised by the Plaintiff, when his own counsel at first instance did not advert to these matters in oral submissions. 76 Ms Katzmann SC submitted that, in any case, the first and second factors (the basis for the original estimate and the atypical reaction of the dog to the sedatives) are irrelevant to the question whether it was practicable to provide an estimate for additional services. As to the third factor (the final costs of services will often be unclear), Ms Katzmann SC submitted that this will always be the case and constitutes the reason why clause 16 of the Code requires an estimate to be given. The Tribunal had regard to the fourth factor, Miss Burn's grief. 77 Ms Katzmann SC submitted that, once the Plaintiff had determined that an additional sedative was required, he was able to provide a further estimate. He knew what it would cost and Miss Burn was present and able to be informed. As mentioned above, the Plaintiff told her that a further sedative was required. The Board submitted that, if it was practicable to inform Miss Burn that a further sedative was required, it was practicable to tell her that the administration of this additional service would involve an extra charge. 78 Ms Katzmann SC submitted that it was irrelevant whether Miss Burn was distressed at the time. In any event, there was every chance she would be more distressed after her dog died, especially when confronted with a bill twice the size of the one she had expected, and in circumstances in which the Plaintiff had already been paid the estimated fee. 79 Ms Katzmann SC submitted that there is no proper basis to disturb the Tribunal's finding on this issue.

Decision 80 It is a matter for the Court to determine whether leave ought be granted, in the circumstances of the case, against the background of the appellate pathway leading to this Court under s.91C VP Act. It might be thought that this Court would not grant leave lightly to undertake a merits review on factual matters, given the role and membership of the bodies which have considered the issues falling for consideration under the VP Act. 81 The Board includes veterinary practitioners with specialist knowledge and expertise and is entrusted with functions including investigation of complaints and the taking of disciplinary action against veterinary practitioners: ss.77, 79 VP Act. When the Tribunal sits on appeal from a decision of the Board, it includes a member who is a veterinary practitioner: clause 7(2)(b), Part 4, Schedule 2, Administrative Decisions Tribunal Act 1997.

82 I have rejected the Plaintiff's other grounds of appeal. Thus, I have concluded that no error of law has been demonstrated in the construction of clause 16 of the Code. I have rejected Ground 3 which contended that the Tribunal's finding was unreasonable or irrational in the Wednesbury sense. For the purpose of considering the grant of leave, I should consider the strength of the Plaintiff's case for merits review if leave was granted. 83 I accept the submissions of the Board with respect to the factors relied upon by the Plaintiff in this respect. In its decision, the Tribunal adverted to the matters which had been emphasised by the Plaintiff's counsel in oral submissions. The fact that the Tribunal did not refer to factors set out in a 14-page written submission does not, in my view, demonstrate that these matters, to the extent that they were relevant, were not considered by the Tribunal. Following the hearing on 21 July 2008, the Tribunal reserved its decision, which was handed down on 15 August 2008. It might be concluded that the Tribunal had regard to the written and oral submissions for the purpose of preparing its reserved decision. 84 In any event, I accept the Board's submission that the matters now emphasised by the Plaintiff did not advance his case in any material way. The Plaintiff was at Miss Burn's residence for the sole purpose of providing veterinary services with respect to her dog. Miss Burn was present at all times. This is not a case where the veterinary practitioner was engaged in a busy veterinary practice, treating different animals over a period of time with competing demands upon him in that respect. Nor is it a case where the owner of the animal was absent and/or difficult to contact so that the provision of information by way of estimated cost of the additional services may not readily be provided. It is important not to lose sight of the reality of veterinary practice, with the various differentials which may impact upon the practitioner's practical ability to comply with the obligation under clause 16 of the Code. The use of the term "practicable" in the legislation acknowledges that the particular circumstances of the case might mean that compliance with clause 16 may not be required. These factors may be taken into account on the "practicable" issue within clause 16 (see [53] above). However, there was no such difficulty in this case. It was practicable for the Plaintiff to inform Miss Burn of the estimated cost of the additional veterinary services. He spoke to her to outline the nature of the additional services to be provided for the purpose of obtaining consent. In the circumstances of this case, it is difficult to see how the Tribunal could have reached a conclusion that it was not practicable for the Plaintiff to comply with the requirements of clause 16(b). 85 The Tribunal was conscious of the fact that the Plaintiff had provided an estimate for the veterinary services, and characterised his failure to provide an estimate for the additional veterinary services as being a "relatively minor breach" of clause 16. 86 In circumstances where I do not consider that there is a reasonably arguable basis that the Tribunal's decision was erroneous, nor that the Tribunal had failed to have regard to evidence which could materially affect the outcome of the appeal, I am not persuaded that the Plaintiff ought be granted leave under s.91C(2)(b) for the appeal to extend to a review of the merits of the Tribunal's decision. 87 I refuse the Plaintiff leave under s.91C(2)(b) VP Act for the appeal to extend to merits review of the Tribunal decision. Ground 5 is rejected.

Conclusion 88 I have rejected each of the grounds of appeal relied upon by the Plaintiff. I make the following orders:

(b) the decision of the Tribunal is affirmed in all respects;

(c) the Plaintiff is to pay the First Defendant's costs of the proceedings in this Court;

(d) I make no order as to costs of the Second Defendant. **********

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