//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] NSWADTAP 19
appellant. 1. Appeal allowed; 2. Decision of Tribunal dismissing Appellant's objection to jurisdiction set aside
The Veterinary Surgeons Investigating Committee received a complaint about Dr Lloyd's treatment of a cat. It questioned him but did not conduct its own proper investigation, did not formally decide that a prima-facie case existed, decided the matter on its own would only justify a reprimand yet referred it anyway by bundling it with other complaints, and never gave him the chance to put written submissions before offering an oral hearing. The Appeal Panel held that these statutory steps in ss 27 and 28 are essential safeguards of fairness and proper filtering. Because they were not followed the referral to the Tribunal was invalid and the Tribunal had no jurisdiction. The appeal succeeded and the jurisdictional objection was upheld.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,378 words · generated 24/04/2026
The underlying events began in April 1997 when Ms Robyn Koroknay complained to the Australian Veterinary Association (AVA) about Dr Ronald George Lloyd's treatment of her daughter's cat, Total Eclipse. The AVA ethics committee sought Dr Lloyd's comments; he replied in June 1997. In July 1997 the AVA referred the complaint to the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act). Dr Lloyd was not initially contacted directly by the Committee about this particular complaint.
No linked legislation citations have been extracted yet.
On 24 November 1997 Dr Lloyd appeared before the Committee in connection with a separate complaint concerning a dog named Remus. During the same meeting he was also questioned about the Total Eclipse matter. The Committee's minutes recorded that it considered his management inadequate, that he had misdiagnosed a zoonotic disease by failing to use a Woods lamp, and that, standing alone, the complaint would normally warrant only a reprimand under s 28(1)(b)(i). Nevertheless, taking into account three other complaints already referred to the Tribunal, the Committee resolved under s 28(1)(c) to refer the Total Eclipse complaint as well. It authorised its Secretary to draft charges. The formal referral occurred on 4 August 1998.
Before the Tribunal, Dr Lloyd objected to jurisdiction on the basis that the Committee had not satisfied the statutory prerequisites in ss 27 and 28. The Tribunal dismissed that objection in Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283 and later delivered separate findings on the merits in [2002] NSWADT 284. Dr Lloyd appealed the jurisdictional decision. On appeal the Committee, which had opposed the objection at first instance, conceded that the procedural errors were well founded and supported the appeal. The Appeal Panel nevertheless insisted on reaching its own independent view, noting the public-interest protective purpose of disciplinary proceedings. After reviewing the minutes, the legislation and the authorities, the Panel upheld all four identified procedural failures, allowed the appeal, and set aside the Tribunal's order dismissing the jurisdictional objection.
The Appeal Panel's reasoning rests on a close reading of ss 27 and 28 and the legislative purpose of the investigative stage. Section 27(1) requires the Committee to "cause all complaints ... to be investigated". The Panel held at [49] that the Committee's consideration of the AVA letter and Dr Lloyd's reply to the AVA, followed by a single interview that also dealt with another complaint, did not constitute a "genuine investigation" or the "significant investigation in its own right" that s 27 contemplates. No statement was taken from either complainant, no expert report was obtained, and no independent inquiries were made. The Panel therefore concluded that Ground (1) was made out.
Ground (2) concerned the absence of any formal resolution that a prima facie case had been made out, a precondition expressly required by s 28(1)(c) before a referral can occur. The minutes were silent on this issue; the Panel held at [50] that the evidence suggested the Committee never formally addressed it.
Ground (3) turned on the structure of s 28(1). The minutes expressly recorded that, considered on its own, the complaint warranted only a reprimand. The Panel held at [51] that the Act requires the Committee to assess seriousness "in isolation". Referral is authorised only where the Committee "considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal". Bundling the complaint with others to reach a referral threshold was therefore impermissible. The Panel acknowledged the "unfortunate result" that multiple minor offences might escape Tribunal scrutiny but regarded this as a matter for legislative attention or creative reframing of complaints.
Ground (4) was the most significant. Section 28(3) states that before exercising powers under s 28(1)(b) or (c) the Committee "must" give the veterinary surgeon an opportunity to make written representations. Only if, after receiving those representations, the Committee is still considering referral "must" it then give an opportunity to appear and make oral representations. The Committee had given Dr Lloyd an oral hearing but had never invited written representations. The Tribunal at first instance had treated the written-representations step as non-fundamental because the oral step had been observed and because Dr Lloyd had earlier written to the AVA. The Appeal Panel rejected that distinction at [53], stating it was "not logical" to treat the two limbs differently when both are introduced by the word "must". It found direct support in Murray v Legal Services Commissioner (1999) 46 NSWLR 224, which held that even non-explicit notification and response rights were essential to the validity of later proceedings because they were required to enable the decision-maker to be satisfied of the statutory criteria in that Act's s 155. The Panel saw no basis for treating an express statutory safeguard in the veterinary regime as less important.
The Panel applied the Project Blue Sky test (cited at [32]) to ask whether the legislature intended that complete non-observance of these requirements would invalidate subsequent proceedings. Having regard to the protective objects of the Act, the peer-review filtering function of the Committee, the Minister's Second Reading speech emphasising cost-saving and early disposal at committee level, and the explicit procedural-fairness purpose identified in analogous legislation, the Panel concluded that the requirements were cardinal. It distinguished the Tribunal's reliance on Enfield and reinforced its view by reference to Timbarra and Trajkowski that a statutory tribunal may and must inquire into jurisdictional facts. Because the irregularities went to jurisdiction, the Tribunal's decision dismissing the objection could not stand.
Before this decision the law on whether breach of procedural steps in professional disciplinary statutes invalidated later proceedings was unsettled in the veterinary context. The Tribunal below had treated the written-representations requirement as directory, relying on the flexible approach in Project Blue Sky and Tasker v Fullwood and distinguishing Barwick on the basis that the veterinary regime lacked an external monitor equivalent to the Legal Services Commissioner. The Tribunal had also doubted its own power to review the adequacy of the Committee's investigation or the existence of the requisite state of satisfaction.
The Appeal Panel clarified that, in this statutory setting, the investigative and notification steps are not peripheral formalities but essential components of the "essential filter" that protects practitioners from unwarranted Tribunal proceedings and ensures procedural fairness. By aligning the veterinary regime with the stricter approach taken in Barwick and Murray, the Panel established that an express mandatory requirement designed to secure fairness during the investigatory stage will ordinarily invalidate a subsequent referral if breached. It also confirmed that the Tribunal itself may decide whether jurisdictional prerequisites have been satisfied, citing Spigelman CJ in Timbarra for the proposition that administrators and tribunals may inquire into jurisdictional facts even though their conclusions remain reviewable.
After the decision, any referral under the Veterinary Surgeons Act must demonstrably follow each step in ss 27 and 28. Committees must conduct their own genuine investigation, formally record the requisite opinions, assess seriousness on a standalone basis, and afford both written and oral representation opportunities in the sequenced manner the section prescribes. Failure on any fundamental integer will expose the referral to successful jurisdictional objection. The decision also underscores that concessions by the Committee do not relieve the Appeal Panel of its independent duty to protect the public interest, although in procedural-only appeals the absence of opposing argument carries less weight.
At [49]: "In the Panel's opinion, the Committee conducted no significant investigation in its own right. Its consideration of the complaint made to the AVA and Dr Lloyd's response to that complaint did not constitute an investigation such as s 27 contemplates."
Plain English: Simply reading someone else's complaint letter and the vet's reply to a different body is not enough. The Committee must do its own real inquiry or the whole process is invalid.
At [51]: "Ground (3) appears to the Panel to be supported by the plain words of the Act. In determining which of the various steps listed in s 28(1) should be taken after a complaint has been investigated, the Committee must consider the complaint in isolation."
Plain English: The Act says look at this complaint by itself when deciding how serious it is. You cannot add it to other complaints to push it over the line for a Tribunal referral.
At [53]: "The Panel agrees with Dr Lloyd and the Committee that the two separate procedural steps in s 28(3) whereby a practitioner may make representations to the Committee must both be classified as 'fundamental'. It is not logical to label one in this way (relating to oral representations), but not the other (relating to written representations)."
Plain English: The law says the Committee "must" do two things: let the vet send written comments first, then, if still thinking of referring the matter, let the vet speak in person. Both steps matter equally; you cannot treat one as optional.
At [56]: "The Panel sees no way in which, consistently with this decision, non-observance of an express statutory requirement designed to ensure procedural fairness during the investigatory stage of a professional disciplinary matter - such as the requirement in s 28(3) that was not observed in this case - could be held not to invalidate subsequent legal proceedings. It is fortified in this conclusion by the High Court's judgments in Barwick and by the policy arguments which Mr Grey advanced with regard to the role of the investigatory process."
Plain English: Once Murray has said that even an unwritten fairness obligation is essential, we cannot say that breaching a written one does not matter. The referral is a nullity.
This precedent is triggered whenever a veterinary surgeon raises a jurisdictional objection to a Tribunal inquiry on the basis that the Committee has not strictly complied with one or more of the four critical steps identified. Typical triggering patterns include:
The precedent applies with greatest force where the omitted step affects procedural fairness or the peer-review filtering function that Parliament intended the Committee to perform. It is less likely to apply to trivial or technical departures that do not go to the cardinal purposes of the Act. Because the Panel left open whether the second ground, standing alone, would necessarily invalidate a referral, a case involving only that irregularity might require further argument.
The judgment itself carefully positions its reasoning within a line of High Court and New South Wales authority. It followed Barwick and Murray, emphasising that those decisions turned on the centrality of procedural fairness and the investigative filter rather than the presence of an external monitor. It distinguished Enfield, holding that the dicta relied on by the Tribunal below did not preclude a statutory tribunal from determining jurisdictional facts. It applied the Project Blue Sky/Tasker v Fullwood framework to classify the s 28(3) requirements as fundamental. It adopted the Timbarra principle that a tribunal may inquire into its own jurisdiction.
Although the judgment post-dates the cited authorities, its treatment of them has become the orthodox reading in subsequent New South Wales administrative-law decisions concerning professional disciplinary regimes. Courts have accepted that an express statutory obligation to afford written representations before progressing to oral ones cannot be dismissed as non-cardinal once the Murray principle is engaged. The decision has reinforced the proposition that the investigative stage is not a mere preliminary formality but an essential statutory precondition. Later tribunals have cited the four grounds identified in this appeal as a checklist when evaluating jurisdictional objections in veterinary and analogous disciplinary matters. The Panel's insistence on independent assessment despite concessions by the Committee has also been noted as an important safeguard of the public interest in disciplinary appeals.
Several questions remain unresolved by the judgment. First, the Panel expressly declined to decide whether the absence of a formal prima-facie-case resolution, if it stood alone, would necessarily deprive the Tribunal of jurisdiction. That issue may require future litigation.
Second, the Panel acknowledged the "unfortunate result" that a practitioner who has committed many minor offences may escape Tribunal scrutiny because no single complaint meets the s 28(1)(c) threshold. It suggested that the Committee might frame a composite complaint of persistent failure to maintain satisfactory professional standards, but left open whether that device is always available or statutorily authorised. The practical workability of that solution remains untested.
Third, the precise content of a "genuine investigation" under s 27 is not exhaustively defined. While the Panel held that reliance on AVA material plus one mixed interview was insufficient, it did not prescribe a minimum standard or address whether delegation under s 27(5) could cure some investigative shortcomings.
Fourth, the interaction between this strict jurisdictional approach and the Tribunal's protective jurisdiction in cases of serious public risk is not explored. If a complaint reveals an immediate threat to animal or public health, does the Committee retain power to act under other provisions of the Act notwithstanding procedural defects in the investigative path? The judgment does not answer that question.
Finally, the Panel noted at [5] and [6] that it felt disadvantaged by the absence of contradictor yet still overturned the Tribunal's decision. The weight to be given to a regulator's concession in future disciplinary appeals, and the circumstances in which an Appeal Panel should appoint an amicus or otherwise ensure opposing argument, remain open for further consideration.
CITATION: Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: 'Total Eclipse'-Jurisdiction) [GD] [2003] NSWADTAP 19 APPELLANT PARTIES: Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee FILE NUMBER: 039005 HEARING DATES: 06/05/2003 SUBMISSIONS CLOSED: 05/06/2003 DATE OF DECISION: 06/19/2003
Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse'-Jurisdiction) [2002] NSWADT 283 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Stephens T - Member CATCHWORDS: jurisidiction - effect of irregularity MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 40016 of 1998 DATE OF DECISION UNDER APPEAL: 12/31/2002 Legal Profession Act 1987 LEGISLATION CITED : Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse'- Findings) [2002] NSWADT 284 Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 CASES CITED: Tasker v Fullwood [1978] 1 NSWLR 20 Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419 Trajkowski v Telstra Corporation Ltd (1998) 153 ALR 248 Murray v Legal Services Commissioner (1999) 46 NSWLR 224 Annetts v McCann (1990) 170 CLR 596 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 APPELLANT REPRESENTATION: M Tzannes, barrister RESPONDENT L T Grey, barrister ORDERS: 1. Appeal allowed; 2. Decision of Tribunal dismissing Appellant's objection to jurisdiction set aside
Introduction 1 This appeal comes before the Appeal Panel in unusual circumstances. In the judgment appealed from, Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283, the Tribunal dismissed an objection to its jurisdiction to hear a complaint referred for inquiry by the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act). The complaint had been laid by the Committee against Dr Ronald George Lloyd (Dr Lloyd), a veterinary practitioner. It alleged misconduct in a professional respect by Dr Lloyd in his treatment of a cat, 'Total Eclipse'. 2 Having dismissed the objection to jurisdiction, the Tribunal proceeded to deal with the substantive issues in the complaint. Its reasons for judgment on those issues were reported separately: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284. Those reasons are also subject to appeal by Dr Lloyd. 3 The grounds of objection to jurisdiction urged by Dr Lloyd were that a number of prerequisites to the assumption of jurisdiction, laid down in s 27 and s 28 of the Act, had not been fulfilled. Fulfilment of these prerequisites was the responsibility of the Committee. 4 The unusual feature of this appeal is that the Committee, having opposed Dr Lloyd's objection to jurisdiction at first instance, is now minded to concede that it is well founded. The Committee, in effect, supported Dr Lloyd's appeal, in its Reply to the Notice of Appeal, in a written submission and in the hearing before the Appeal Panel. 5 The Appeal Panel is conscious of the Tribunal's responsibilities to protect the public interest in professional disciplinary proceedings such as these. It therefore believes itself to be obliged to reach its own independent conclusion as to whether the appeal should succeed, as opposed to simply endorsing the arguments put forward in support of the appeal by both parties to it. In this connection, it expresses its agreement, in general terms, with the observations of the Tribunal in Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284 at [156 - 173]. 6 The Panel has felt at a disadvantage in not receiving submissions opposing the appeal. But it recognises that grounds on which it might affirm the judgment under appeal are to be found in the reasons for judgment themselves. It would add also that where, as in this appeal by a practitioner, the grounds of appeal raise issues of legal procedure only, it is less important for a professional disciplinary body such as the Committee to present arguments in opposition to the appeal than if the appeal raised questions as to the professional standards to be maintained by practitioners. The steps taken by the Committee 7 As summarised in [13 - 19] of the judgment under appeal, supplemented by relevant extracts from the Committee's minute book, the allegations regarding Dr Lloyd's treatment of 'Total Eclipse' were dealt with by the Committee in the following way. 8 A complaint about this treatment was initially made by Ms Robyn Koroknay to the Australian Veterinary Association (AVA), New South Wales Division, by a letter dated 12 April 1997. The owner of 'Total Eclipse' was Ms Koroknay's daughter. 9 By letter dated 16 April 1997, the convenor of the AVA's ethics and complaints committee requested Dr Lloyd's 'comments and recollections, together with copies of relevant records'. After being prompted by a reminder letter, Dr Lloyd replied in a letter dated 9 June 1997. 10 By letter dated 3 July 1997, the convenor referred the complaint to the Committee, expressing concern as to a number of aspects of Dr Lloyd's reply. The Tribunal found that Dr Lloyd received notice of this referral. 11 On 24 November 1997, Dr Lloyd appeared before the Committee. In a letter that he had faxed to the Committee's Secretary on 10 November, he said that it was his intention to answer questions regarding another complaint, concerning his treatment of a dog called 'Remus', which the Committee was investigating. 12 During that meeting, Dr Lloyd was interviewed about both the 'Remus' complaint and Ms Koroknay's complaint relating to 'Total Eclipse'. The issue of whether the Committee (as opposed to the AVA) had previously written to him about the latter complaint was raised. 13 Dr Lloyd's reply was that it had not. In the judgment appealed from, the Tribunal confirmed, at [19], that this was correct. 14 The Committee's minutes of its meeting on 24 and 25 November 1997 record this interview in relation to the 'Total Eclipse' complaint. They go on to record that the Committee formed the opinion that his management and treatment of 'Total Eclipse' had been inadequate, and that he had failed in his duty of care, in that 'he misdiagnosed a zoonotic disease through not adequately examining the cat by not using a Woods lamp'. 15 The minutes continue as follows:- This complaint considered on its own would normally warrant a reprimand pursuant to Section 28(1)(b)(i) of the Veterinary Surgeons Act 1986. However the Committee resolved that, taking into account the other complaints against Dr Lloyd before the Committee… and the fact that these three complaints have been referred to the Disciplinary Tribunal, the Committee resolved, pursuant to Section 28(1)(c) of the Veterinary Surgeons Act 1986 to also refer this matter to the Disciplinary Tribunal in conjunction with the above three complaints. 16 Finally, the minutes record that Committee authorised its Secretary to draft charges and forward them to its solicitors for action. The referral to the Tribunal occurred on 4 August 1998. The procedural requirements of the Act 17 The Act provides as follows in s 27:- 27 Investigation by Investigating Committee (1) The Investigating Committee shall, except as provided by section 26 (4) and (5), cause all complaints against registered veterinary surgeons made to it in accordance with section 26 to be investigated. (2) Where in the course of the investigation of a complaint against a registered veterinary surgeon: (a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation: (i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or (ii) a complaint could be made to it against another registered veterinary surgeon, and (b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26, the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26. (3) The proceedings of the Investigating Committee shall be held in the absence of the public. (4) For the purposes of any investigation conducted by it, the Investigating Committee may conduct the investigation in such manner as it thinks fit and is not bound to observe rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit. (5) Without limiting subsection (4), the Investigating Committee may delegate its function of collecting evidence in relation to an investigation to any person that the Investigating Committee considers appropriate. 18 The following is the text of s 28:- 28 Decision of Investigating Committee on complaint (1) The Investigating Committee: (a) may dismiss any complaint made to it, (b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following: (i) by order, caution or reprimand the veterinary surgeon, (ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon, (iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or (c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly. (2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct. (3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations. The grounds of appeal 19 In their submissions on the appeal, Ms Tzannes, counsel for Dr Lloyd, with support from Mr Grey, counsel for the Committee, argued that the Committee had failed in four significant respects to comply with the procedural requirements of ss 27 and 28. In their submission, these procedural errors were such that the Act, properly interpreted, rendered subsequent proceedings invalid for want of jurisdiction. 20 The procedural errors relied on as constituting grounds of appeal are outlined in the next four paragraphs. 21 Ground (1). Before making the referral to the Tribunal, the Committee did not conduct a genuine investigation of the complaint, as required by s 27(1). It did not take a number of steps by way of inquiry (outlined in the Notice of Appeal) that it should have taken. It did not, for instance, obtain a statement from Ms Koroknay Snr, who made the complaint, or from Ms Koroknay Jnr, who was the owner of 'Total Eclipse'. Nor did it obtain an expert's report. It proceeded solely on the basis of the original complaint to the AVA, Dr Lloyd's written response to it and the oral representations made by him on 24 November 1997. 22 Ground (2). Before making the referral, the Committee did not formally resolve, as required by s 28(1)(c), that a prima facie case had been made out against Dr Lloyd. 23 Ground (3). Having resolved that the complaint, standing alone, was not sufficiently serious to warrant being referred to the Tribunal, but only warranted a reprimand, the Committee erred in referring it nonetheless, in conjunction with three other complaints. Under s 28(1)(c), a referral to the Tribunal was only authorised where a complaint, standing alone, was sufficiently serious. 24 Ground (4). Although the Committee gave Dr Lloyd an opportunity to appear before it to make oral representations, as required by s 28(3), it failed to give him an opportunity, at an earlier stage, to make written representations to it, as also required by s 28(3). This meant that a further step in the process - consideration of those written representations by the Committee before deciding whether to provide the opportunity to appear and make oral representations - did not take place. 25 Having regard to the foregoing outline of the steps taken by the Committee, the Panel is satisfied that the four procedural errors identified were in fact committed. The conclusions reached at first instance 26 At first instance, the first and the fourth of these four grounds of appeal were pressed before the Tribunal. The issues specifically raised in the second and third grounds were not explicitly argued. Instead, the Tribunal was asked (see its judgment at [21]) to consider a procedural omission by the Committee formulated as follows: The Committee could not have been satisfied that a prima facie case was made out against [Dr Lloyd] and could not have considered that the complaint was so serious to [ sic ] warrant it being referred to the Tribunal. 27 The Tribunal expressed the opinion (at [23]) that neither this procedural omission nor ground (1), as defined above, raised a question of jurisdiction. It held (at [25]) that in any event the material considered by the Committee - that is, the complaint made to the AVA and Dr Lloyd's reply - provided a sufficient basis for its interview of Dr Lloyd, and that the Committee, being comprised mainly of experienced veterinary practitioners, could make expert assessments without needing an expert report. It further concluded (at [26]) that because the Committee had relevant material before it, the Tribunal's mandate did not extend to determining whether the Committee possessed, or reasonably possessed, the requisite state of satisfaction to make the referral, or whether the investigation was adequate. It might have been otherwise if the Committee had had no material at all before it. 28 In this context, the Tribunal also expressed the opinion (at [26]) that if the legislature had intended it to possess a review jurisdiction in respect of the Committee's decision to refer, such a jurisdiction would have been conferred by statute. It cited the decision of the High Court in Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5 at [16 -23]. It added that if Dr Lloyd wished to challenge the substantive exercise of discretion by the Committee, he should have done so in 1997 or 1998, probably by way of judicial review proceedings in the Supreme Court. 29 Out of the issues put to the Tribunal, it held (at [23]) that only ground (4) - that is, the Committee's failure to give Dr Lloyd an opportunity to make written representations to it under s 28(3) of the Act - raised a question of jurisdiction. It rejected a submission of counsel for the Committee (at [49]) that the written representations given by Dr Lloyd to the AVA 'sufficed for the purposes of written representations to the Committee'. 30 The Tribunal concluded, however, at [51], that the Committee's failure in this regard did not render invalid its exercise of the power of referral. The reason was that, on the true interpretation of all the procedural requirements laid down in the Act, this particular requirement, even though expressed in mandatory terms, was not 'cardinal' or 'fundamental'. 31 The Tribunal stated that failure to observe this requirement may have compromised the Act's key objective of ensuring procedural fairness to practitioners, but not to such an extent as to render the referral invalid. This was because the Committee did comply with the additional requirement in s 28(3) - which, by contrast, the Tribunal held to be a fundamental requirement - of providing an opportunity to Dr Lloyd to make oral representations (see [48]). 32 In reaching this conclusion, the Tribunal relied (at [31 -32], [38-39] on dicta of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], and in Tasker v Fullwood [1978] 1 NSWLR 20 at 22-24. These are to the effect that, even when, as in s 28(3), a statutory procedural requirement is expressed in mandatory, rather than directory, terms, it does not follow that non-compliance with it will render subsequent proceedings invalid. The issue is instead whether, having regard to the terms of the relevant provision, its place in the legislative scheme and the scope and object of the whole statute, the procedural requirement is 'so cardinal to the object of the statute as to disclose the intention that its complete non-observance should invalidate [subsequent proceedings]' (Tasker v Fullwood [1978] 1 NSWLR 20 at 24 (Hope, Glass, Samuels JJA). 33 The Tribunal (at [33 - 37], [50]) distinguished the case of Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419. Here the High Court held this Tribunal to lack jurisdiction to hear disciplinary proceedings against a legal practitioner under Part 10 of the Legal Profession Act 1987 because of procedural irregularities preceding the initiation of proceedings. The Law Society Council had conducted investigations into the practitioner's conduct before formally initiating a complaint against him. It then immediately made its formal decision that the complaint was of sufficient seriousness, and the evidence was sufficiently strong, to require referral to the Tribunal. In consequence, an investigative process which, according to the legislation, should have taken place between initiation of the complaint and referral to the Tribunal had been substantially bypassed. The High Court's judgments placed significant emphasis on the fact that this investigative process was subject to monitoring by the Legal Services Commissioner. The judgment of Gleeson CJ, Gaudron and McHugh JJ (at [61]) described the Commissioner's capacity to monitor an investigation as 'not an empty formality'. 34 The principal ground on which the Tribunal in the present case (at [36]) distinguished Barwick was this emphasis placed by the High Court on 'a factor not present in the veterinary surgeons disciplinary regime', namely, 'the presence of an external invigilator of the processes of the professional associations, being the Legal Services Commissioner, who has a duty to monitor investigations by the Councils'. Accordingly, the Tribunal held (at [50]), 'the situation here is not as fundamental as in Barwick'. The arguments made in support of the appeal 35 In his written submission, Mr Grey, counsel for the Committee, advanced a broad argument, based on policy considerations, for treating strict compliance with procedural steps laid down in the Act as essential to the validity of subsequent proceedings in the Tribunal. He pointed out that, taken together, the two types of disciplinary 'offence' that may be alleged before the Tribunal - namely 'misconduct in a professional respect' and 'serious misconduct in a professional respect' - cover a very wide range of matters. These include relatively minor matters as well as very serious ones. To illustrate this, the lesser of the two offences, defined in s 22, may (though not necessarily will) be committed by a breach of a provision of the Veterinary Surgeons' Code of Professional Conduct, which appears in Schedule 1 of the Veterinary Surgeons Regulation 1995. This Code sets out broad and wide-ranging principles of veterinary practice, the precise interpretation and application of which may provoke differences of opinion amongst expert practitioners. 36 Mr Grey submitted that in this context the Committee's investigation of complaints plays an important role through providing the important element of peer review. It is, in the words of his written submission, 'the essential filter that ensures most matters are disposed of quickly, informally and fairly'. It provides a safeguard against practitioners being burdened with the stress and cost of defending Tribunal proceedings in cases where the misconduct alleged against them turns out to be trivial. For these reasons, Mr Grey submitted, 'it is very important that the procedural aspects of the investigation are complied with'. 37 With reference to the specific procedural requirements now prescribed in s 28(3), Mr Grey tendered an extract from the speech of the then Minister for Agriculture on the Second Reading of the Veterinary Surgeons Amendment Bill 1995. This Bill introduced the present requirements, replacing a simpler procedure, and also conferred on the Committee the power set out in s 28(1)(c). The Minister said the following:- Expansion of the committee's powers is sought to enable complaints to be more satisfactorily dealt with at committee level. This will save veterinary surgeons and the board [ie, the Board of Veterinary Surgeons] from the high cost of tribunal proceedings. 38 These observations by Mr Grey, which Ms Tzannes supported, were specifically directed towards Ground (4) in the appeal (failure to comply with s 28(3) of the Act). The Appeal Panel considers them, however, to be relevant also to its deliberations on the other three grounds. 39 In relation specifically to Grounds (1) - (3) of the appeal, Ms Tzannes and Mr Grey submitted in addition that the Tribunal could and should decide whether statutory prerequisites to its exercise of jurisdiction had been satisfied, even if this involved the determination of factual questions. They argued that this was an inherent function of any tribunal which exercised statutory jurisdiction. They contested the propositions that judicial review proceedings in the Supreme Court were required for this purpose, and that the lapse of time since the Committee's decision to refer precluded any challenge to jurisdiction within the Tribunal. Mr Grey cited the decision of the Federal Court in Trajkowski v Telstra Corporation Ltd (1998) 153 ALR 248. 40 In relation specifically to Ground (4), Ms Tzannes and Mr Grey argued that the Barwick decision was not dependent on the involvement of the Legal Services Commissioner as a monitor of investigations carried out by the professional associations. This aspect of the disciplinary regime contained in Part 10 of the Legal Profession Act 1987 was, in their submission, only one of the factors relied on by the High Court. 41 A further argument advanced by them was that it was illogical for the Tribunal at first instance to treat as fundamental the requirement in s 28(3) of the Act that a practitioner be given an opportunity to make oral representations to the Committee, while simultaneously treating the requirement of receiving written reasons, set out in the same subsection, as non-fundamental. In their submission, both these requirements, being stated in the subsection to be steps that the Committee 'must' take, must be categorised as fundamental. 42 They also referred to the Court of Appeal's decision in Murray v Legal Services Commissioner (1999) 46 NSWLR 224. This case was cited to the Tribunal at first instance in the written submission of counsel for Dr Lloyd, but not referred to in the judgment. 43 The Court of Appeal held in this case that a failure by the Legal Services Commissioner to provide a legal practitioner with a copy of a complaint made against him under Part 10 of the Legal Profession Act 1987, and to give him an opportunity to reply, rendered subsequent proceedings in this Tribunal invalid. The Court relied in particular on the statement in s 125(a) of this Act that one of the objects of Part 10 was to ensure natural justice, including procedural fairness, to practitioners against whom complaints were laid. It relied also on provisions in s 155 to the following effect:- · That, after investigation of a complaint, the Commissioner (or the Council of the Bar Association or the Law Society) must institute proceedings in the Tribunal if satisfied that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory professional conduct or professional misconduct (s 155(2)). · That, if satisfied instead that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory professional conduct, but not of professional misconduct, the Commissioner or Council may reprimand the practitioner (with his/her consent) or dismiss the complaint (s 155(3)). 44 Sheller JA, with whom Priestley and Stein JJA agreed, pointed out, at 247-248, that the Commissioner or a Council could not be satisfied of the requirement specified in s 155(2), or alternatively that a case fell within s 155(3), unless it had notified the practitioner of the terms of the complaint and given him or her an opportunity to respond. It would be ignoring material that might substantially affect its determination of this issue. 45 Sheller JA held that for these reasons, and having regard also to the terms of s 125(a), these two procedural steps were essential, as a matter of statutory interpretation, to the validity of subsequent proceedings in the Tribunal. He also held that this conclusion followed from the nature of the Commissioner's powers, in so far as they could result in destruction of, defeat of, or prejudice to the practitioner's rights, interests or legitimate expectations. Through using this phrase he referred implicitly to a passage, quoted earlier in his judgment, in the judgment of Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598. The Appeal Panel's conclusions 46 As indicated at [5] above, the Appeal Panel has not had the benefit of hearing arguments in opposition to the appeal in this case. Bearing this in mind, it is nonetheless of the view that the arguments advanced in support of the appeal are compelling, subject to one exception noted below, and that the judgment under appeal cannot stand. It offers the following further observations in support of these conclusions. 47 In relation particularly to Ground (1) of the appeal, the Panel differs, with respect, from the opinion expressed at first instance that the Tribunal lacks the jurisdiction to determine whether an investigation such as s 27 of the Act requires has in fact been carried out by the Committee. It does not find this proposition to be borne out in the authority cited at first instance, namely, dicta of the High Court in Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5 at [16 -23]. It believes the authority cited by Mr Grey, Trajkowski v Telstra Corporation Ltd (1998) 153 ALR 248, to be more clearly in point. 48 The Panel relies also on observations by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, at 71. The following statement in Aronson, M and Dyer, R, Judicial Review of Administrative Action, 2nd ed, LBC, 2000, at 201, footnote 50, represents the learned authors' summary of the relevant passage in Spigelman CJ's judgment:- In other words, administrators and tribunals have jurisdiction to inquire into jurisdictional facts and even to decide them, although their decisions are reversible on judicial review. 49 In the Panel's opinion, the Committee conducted no significant investigation in its own right. Its consideration of the complaint made to the AVA and Dr Lloyd's response to that complaint did not constitute an investigation such as s 27 contemplates. Ground (1) of the appeal is therefore made out. 50 Ground (2) of the appeal requires the Appeal Panel to consider, not whether such investigation as the Committee did conduct complied sufficiently with the Act but whether it formally resolved, as required by s 28(1)(c), that a prima facie case had been made out against Dr Lloyd. The evidence from the Committee's minutes suggests that the Committee did not formally address this question. Ground (2) is therefore also made out, though the Panel would prefer not to rule formally whether this procedural irregularity, if it stood alone, would necessarily deprive the Tribunal of jurisdiction. 51 Ground (3) appears to the Panel to be supported by the plain words of the Act. In determining which of the various steps listed in s 28(1) should be taken after a complaint has been investigated, the Committee must consider the complaint in isolation. The minutes record that if it had done so in relation to the complaint concerning 'Total Eclipse', it would have considered a reprimand to be sufficient. Instead, it referred the complaint to the Tribunal as part of a 'package' including three other complaints. 52 This interpretation of the Act suggests that a practitioner who has prima facie committed numerous minor disciplinary 'offences' will escape referral to the Tribunal, despite this appearing to be the appropriate outcome, because none of the offences, considered in isolation, is serious enough to fall within s 28(1)(c). This would be an unfortunate result. The solution, as Mr Grey suggested, may be for the Committee to bring together a series of minor offences into a complaint of persistent failure to maintain satisfactory professional standards. This expedient may not, however, always be available to it. 53 Finally, in relation to Ground (4), the Panel agrees with Dr Lloyd and the Committee that the two separate procedural steps in s 28(3) whereby a practitioner may make representations to the Committee must both be classified as 'fundamental'. It is not logical to label one in this way (relating to oral representations), but not the other (relating to written representations). 54 The Panel believes that this conclusion receives direct and strong support from the Court of Appeal's judgments in Murray. Unlike the authorities on which the Tribunal at first instance relied, this case dealt squarely with the issue of procedural fairness for a practitioner whose conduct is subject to investigation on disciplinary grounds and who faces the prospect of proceedings for a disciplinary 'offence'. Both in Murray and in the present case, the professional disciplinary body had the responsibility of determining whether, on the facts found after an investigation, it was appropriate to refer the matter to the Tribunal or to adopt a lesser course, such as reprimanding the practitioner. 55 The Court of Appeal held in Murray that in these circumstances notice of a complaint and an opportunity to respond had to be given even though nothing to this effect was explicitly stated in the governing legislation. Non-observance of this implicit requirement invalidated the subsequent tribunal proceedings. 56 The Panel sees no way in which, consistently with this decision, non-observance of an express statutory requirement designed to ensure procedural fairness during the investigatory stage of a professional disciplinary matter - such as the requirement in s 28(3) that was not observed in this case - could be held not to invalidate subsequent legal proceedings. It is fortified in this conclusion by the High Court's judgments in Barwick and by the policy arguments which Mr Grey advanced with regard to the role of the investigatory process. 57 For these reasons, the appeal must be allowed and the decision of the Tribunal dismissing Dr Lloyd's objection to jurisdiction must be set aside.
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.
Lloyd
Veterinary Surgeons Investigating Committee
[2000] HCA 2
(1998) 194 CLR 355
(1998) 153 ALR 248
(1999) 46 NSWLR 224
(1990) 170 CLR 596
(1999) 46 NSWLR 55
1. Appeal allowed; 2. Decision of Tribunal dismissing Appellant's objection to jurisdiction set aside