(3) The Veterinary Practitioners Board (the Board) failed to comply with ss 41 and 42 of the Act by finding the applicant guilty of a form of unsatisfactory professional conduct which had not been the subject of the original complaint. The Board thereby exceeded its jurisdiction and this error was not cured by the appeal to the Tribunal.
4 I would reject the proposed Briginshaw ground. The primary facts found by the Board and the Tribunal were really not in dispute. There was no dispute that he had not given Ms Burn a revised estimate of his charges when he obtained her consent to administer the second sedating injection to her dog.
5 This was the substratum of fact on which the finding of unsatisfactory professional conduct was based. In those circumstances there is really no basis for application of the Briginshaw test. In any event I would not readily accept that the Tribunal, which hears many disciplinary cases against members of the professions, would fail to direct itself in accordance with that test.
6 The challenge to the Tribunal's finding that cl 16 (b) of the Code had been breached depended on the submission that the meaning of "veterinary services" in that clause was a question of law.
7 While the construction of a legislative provision as a whole is a question of law, the meaning of ordinary words in such a provision is a question of fact. This is established by Hope v Bathurst City Council [l980] HCA 16; l44 CLR 1, 7-8 in the judgment of Mason J. That case concerned the meaning of the word "business" in the statute.
8 In my judgment the meaning of "veterinary services" in cl 16 of the Code is not a question of law, just as the meaning of dog in the Dog Act is not a question of law. Whether a particular animal is or is not a dog and whether something is a veterinary service or not are questions of fact. I would therefore reject the second proposed ground of appeal.
9 The third ground is that the Board exceeded its jurisdiction by failing to comply with ss 41 and 42. The point taken is that the Board found the practitioner guilty of a form of unsatisfactory professional conduct which had not been the subject of the complaint against him. This turns initially on the meaning of s 42(2) of the Act which provides:
"If during an investigation of any one or more complaints it appears to the Board that there is a matter in respect of which another complaint could have been made against the veterinary practitioner concerned, the Board may deal with the matter in its investigation as if a complaint had been made about the matter."
10 Section 42(5) provides:
"If the Board deals with a matter in accordance with subsections (3) and (4) as if a complaint had been made in relation to the matter, the Board is to comply with section 41 (with appropriate modifications) in relation to the matter."
11 Section 41 requires sufficient notice of a complaint to be given to the practitioner. The original complaint by Ms Burn is set out on pages 11-13 of the combined appeal book. The only complaint upheld by the Board and the Tribunal is that the practitioner failed to inform Ms Burn of the increased cost associated with the administration of a second sedating injection. This was raised fairly and squarely in the original complaint.
12 It follows therefore that the charge on which the practitioner was found guilty by the Board and the Tribunal was "not a matter in respect of which another complaint could have been made against him". It was already encompassed within the complaint made by Ms Burn to the Board. The proposed third ground fails at the threshold.
13 Any deficiencies in the Board's proceedings would have been cured by the appeal to the Tribunal which was a full merits appeal. The point is well established and one can cite in support, not only Calvin v Carr [l980] AC 574, but also the decision of this Court in Clisdell v Commissioner of Police (1993) 31 NSWLR 555. A number of Federal Court decisions have also been referred to which support the same proposition.
14 I would add that it is not clear that a new question of law can be raised for the first time in this Court on an appeal from a decision on an appeal under s 91C of the Act. That section gives a right of appeal from the Tribunal to the Supreme Court on a question of law. If that right is not invoked in respect of a question of law that question will not be before the Supreme Court. If so it may be that it cannot be brought forward for the first time in this Court. It is not necessary to express a final view on that matter.
15 For those reasons I propose that the application for leave to appeal be dismissed with costs.
16 BEAZLEY JA: I agree with the reasons of Handley AJA and would only add that, in my opinion, the Board complied with the provisions of s 41(1) of the Act by giving written notice, not only of the making of the complaint, but also of the type of complaint that the Board considered was indicated. Thus there was no failure, in any event, to comply with the processes specified by the Act.
17 BASTEN JA: I agree with the reasons which have been given that in this case leave should be refused. The case turned on an assessment of conduct of the veterinary practitioner in estimating the costs of the services. The obligation to do so arose under cl 16 of the Code which is found in sch 2 of the Veterinary Practice Regulation 2006. The substantive issue involves the application of cl l6 of that Code. That provision gives rise to no significant question of law. The appeal to this court is brought from the judgment of Johnson J in the Common Law Division. His Honour accepted a view which was favourable to the applicant, namely, that a question of law did arise with respect to the construction of the term "the veterinary services" in cl 16. In my view there was no question of law, for the reasons which Handley AJA has indicated.
18 The argument that the Tribunal failed to comply with the Briginshaw principles should be rejected, not only for the reasons Handley AJA has given, but because in my view those principles do not apply routinely just because the matter involves a complaint of disciplinary misconduct or unsatisfactory professional conduct.
19 The facts which were in issue in this case did not give rise to any matter of gravity with respect to the character or behaviour of the practitioner. It is therefore not to be assumed that there was any requirement on the Tribunal to be satisfied to the level of comfort which the Briginshaw principle requires.
20 Finally, I would note that this would involve a third level of review of the original decision if leave were to be granted. This was a case which ultimately was a matter of practice which could properly be determined by veterinary practitioners. It was the subject of merit review in the Tribunal, and the matter is not one of such significance as would warrant either the expense or the resources which are required when a third level of review is sought. That is a factor which must be taken into account in considering whether this Court should grant leave. I therefore agree with the Court that leave should be refused.
21 BEAZLEY JA: The order of the Court is that the summons for leave to appeal and the appeal are dismissed and the applicant is to pay the respondent's costs of the proceedings in this Court.