POLGLAZE v THE VETERINARY PRACTITIONERS BOARD OF NSW

LEGISLATION CITED: Veterinary Practice Act 2003, s 91C

Calvin v Carr [l980] AC 57 CASES CITED: Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Hope v Bathurst City Council [l980] HCA 16; l44 CLR 1

PARTIES: Dr Kevin Polglaze - Applicant/Appellant The Veterinary Practitioners Board of NSW - Respondent

COUNSEL: Ms M Allars - Applicant/Appellant Ms M Perry QC & Mr B O'Donnell - Respondent

SOLICITORS: Mahony Dominic Lawyers - Applicant/Appellant Dibbs Barker Lawyers - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 347

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 298388/2009

BEAZLEY JA BASTEN JA HANDLEY AJA

WEDNESDAY 3 FEBRUARY 2010 DR KEVIN POLGLAZE v THE VETERINARY PRACTITIONERS BOARD OF NSW

APPEAL - leave to appeal - statutory construction - no error of law identified - no procedural error - further review not warranted.

PROFESSIONS - Veterinary Practitioners - unsatisfactory professional conduct - duty to give estimate of cost - whether meaning of "veterinary services" question of law.

PROFESSIONS - discipline - finding of unsatisfactory professional conduct - failure to give estimate of cost - Briginshaw principle not applicable because matter not of sufficient gravity - principle not applicable because primary facts not in dispute. HEADNOTE

Clause 16(b) of the Veterinary Practitioners Code of Professional Conduct provides that a practitioner must "where it is practicable to do so and before providing veterinary services … inform the person responsible for the care of the animal of … (b) the estimated cost of those services." The Board found that the applicant had breached this provision and was therefore guilty of unsatisfactory professional conduct. The applicant's appeal to the Administrative Appeals Tribunal, and his further appeal on a question of law to the Supreme Court were dismissed. On an application for leave to appeal HELD: (1) A proposed ground of appeal that the Tribunal in its fact-finding had not applied the Briginshaw test failed because the relevant primary facts were not in dispute, and also per Basten JA because the relevant finding was not of sufficient gravity to attract the principle; (2) The proposed ground of appeal that the Tribunal had erred in law in its construction of "veterinary services" in cl 16(b) of the Code failed because the meaning of ordinary words in a statute is a question of fact: Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1, 7-8; Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 389, 394 applied; (3) The proposed ground of appeal that the Board had exceeded its jurisdiction by upholding a complaint without having complied with s 42 failed on the facts and because any defect in the proceedings before the Board had been cured by the merits appeal to the Tribunal: Calvin v Carr [1980] AC 574 applied; (4) Leave to appeal would therefore be refused. ORDER

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. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 298388/2009

BEAZLEY JA BASTEN JA HANDLEY AJA

WEDNESDAY 3 FEBRUARY 2010 DR KEVIN POLGLAZE v THE VETERINARY PRACTITIONERS BOARD OF NSW

JUDGMENT 1 HANDLEY AJA: This is an application for leave to appeal from a decision of Johnson J in the Common Law Division who had dismissed an appeal by a veterinary practitioner from a decision of the Administrative Decisions Tribunal (the Tribunal) which found him guilty of an act of unsatisfactory professional conduct and imposed a fine of $200 and a reprimand and made orders as to costs. 2 The applicant originally appealed as of right but now accepts that he needs leave to appeal. The right of appeal from the Tribunal to the Supreme Court is conferred by s 91C of the Veterinary Practice Act 2003 (NSW) (the Act) and is limited to "any question of law". 3 The proposed arguments on appeal to this Court may be summarised as follows: (1) The Tribunal failed to direct itself in accordance with the well-known Briginshaw test. (2) The Tribunal erred in law in finding that the practitioner had breached cl 16 of the Veterinary Practitioners Code of Professional Conduct in Schedule 2 of the Veterinary Practice Regulation 2006 (the Code) by failing to inform Ms Burn, that the further injection to sedate her dog would attract an increased charge. The point turns on the meaning of "veterinary services" in that clause.

(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.

10/02/2010 - Deleted a case cited anddeleted last sentence in para 7 - Paragraph(s) para [7]

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.