Veterinary Practitioners Board of New South Wales v Kovac [2025] NSWCATOD 118 | Case summary

Veterinary Practitioners Board of New South Wales v Kovac [2025] NSWCATOD 118 | Case summary | Zoe

[29]

On 18 December 2018 a complaint was made against Dr Kovac to the Board by the owner of a dog named Monty about veterinary treatment of Monty (the Monty complaint). On 7 February 2019 a complaint was made to the Board about Dr Kovac by the owner of a dog named Lucy about veterinary treatment of Lucy (the Lucy complaint) (together, the Monty and Lucy complaints, or the complaints).
In 2019 the Board commenced investigations under the VP Act into the Monty and Lucy complaints. In December 2019 the Board made a determination regarding Dr Kovac's conduct relating to the Monty complaint. Following assertions of procedural irregularities and correspondence between the parties, in March 2020 the Board determined to commence a fresh investigation under the VP Act into both complaints.
In May 2020, the Board established a three person committee under the VP Act, which was tasked with the investigation and determination of the Monty and Lucy complaints (described by the parties, and in these reasons for decision, as the Complaints Committee or the Committee).
On 29 April 2022, the Complaints Committee issued its report into the investigation of the Lucy complaint. The Committee found that Dr Kovac was guilty of unsatisfactory professional conduct and professional misconduct, and decided to apply to NCAT for disciplinary findings against the veterinary practitioner.
On 5 May 2022, the Complaints Committee issued its report into the investigation of the Monty complaint. The Committee found that unsatisfactory conduct and professional misconduct was proved, decided to apply to NCAT for disciplinary findings against Dr Kovac, and recommended that consideration be given to suspension or cancellation of his registration.
On 29 November 2024,the Board lodged the Disciplinary Application with NCAT, stating as "the grounds" that the Board has determined to prosecute the complaint attached against Dr Kovac "upon the recommendations of the Complaints Committee established in accordance with sections 49 and 81 of the Act, and in accordance with sections 47 and 50 of the Act alleges that the Respondent has been guilty of unsatisfactory professional conduct and professional misconduct within the meaning of section 35 of the Act". Particulars of eight separate complaints were attached.

[54]

In conducting an investigation and making a determination about a complaint, the Board is not bound by the rules of evidence (s 43) and has the power to issue summonses and take evidence (s 44). A failure to attend or provide evidence including documents is subject to a maximum penalty of 20 penalty units (ss 44(4), (5)). Section 44(6) provides that, in s 44, "a reference to the Board includes a reference to a committee of the Board exercising functions in relation to a complaint". Section 44A provides protection from self-incrimination in certain circumstances but does not excuse the person from answering questions or providing documents required by the Board.
Section 47 ("Decision after investigation of complaint") provides, at s 47(1), that after the Board has completed an investigation into a complaint against a veterinary practitioner, the complaint is to be dealt with in accordance with s 47. Under s 47(2), if the Board is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Board may (a) apply to NCAT for a disciplinary finding against the practitioner "under Division 3", or (b) take any one or more of the following disciplinary/regulatory actions which are set out s 47(2)(b)(i) to (vii).
Under s 47(3), if the Board is satisfied the practitioner is guilty of professional misconduct of a kind that is of a sufficiently serious nature to justify the suspension or cancellation of a practitioner's registration, the Board must apply to NCAT for a disciplinary finding against the practitioner under Div 3.
Division 3 of the VP Act (headed "Applications to Tribunal for disciplinary findings") contains s 50 ("Board may apply to Tribunal for disciplinary finding") which provides that the Board may, in accordance with s 47, apply to NCAT for disciplinary findings under Div 3 against a practitioner with respect to any complaint against the practitioner. Section 51 contains NCAT's powers to make orders when a complaint is proved, including orders for the cancellation of the practitioner's registration, suspension of registration for up to 12 months, a fine of up to $25,000, amongst other potential orders.

[58]

The Board queries whether NCAT is the appropriate forum to decide the issues raised by Dr Kovac in the Miscellaneous Application. It is submitted that, while NCAT has to be satisfied of the existence of the statutory precondition (being findings of the Board (or delegate) of unsatisfactory professional conduct or professional misconduct under s 47(2)(a) of the VP Act), NCAT does not appear to have the statutory power to examine the validity of, or declare void, any such findings. That is a remedy properly sought in the supervisory jurisdiction of the Supreme Court of NSW under s 69 of the Supreme Court Act 1970 (NSW).
The Board says that once disciplinary proceedings are commenced in NCAT, the Tribunal begins afresh to make findings as to the conduct of the practitioner concerned. The previous findings of the Board (or delegate) as to the practitioner's conduct, including the process underlying that determination, are supplanted. The Board contends the determination of the Board (or delegate) to commence Tribunal proceedings as a result of its findings as to the practitioner's conduct therefore has no real effect on the practitioner's legal rights because the relevant decision-maker affecting his rights will be NCAT in determining the proceedings on the material before the Tribunal, citing Health Care Complaints Commission v Hill [2022] NSWCA 270 as analogous.
The Board says the approach of Courts in administrative review cases such as Kim v Minister for Immigration and Citizenship (2008) 168 FCR 578; [2008] FCAFC 73 (Kim), approved by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174), is instructive. Those cases are cited for the proposition that, when conducting administrative (or merits) review, the power of a tribunal extends not only to the review of a decision which is in fact made lawfully, but also to the review of a decision which is only purported to be made but which is not authorised by law.
As we understand the Board's position, it is submitted that NCAT is in a similar position and can (and should) proceed to determine the disciplinary proceedings, without entertaining Dr Kovac's challenge to NCAT's jurisdiction based on assertions of non-compliance, or substantial non-compliance, with statutory procedures contained in the VP Act. The Board contends that NCAT cannot "look behind" the findings made by the Board (or delegate) under s 47(2)(a) of the VP Act that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct.
The Board also submits that, to the extent there may have been any deficiency in the statutory process before NCAT proceedings were commenced, any such issue (including any lack of procedural fairness) can, and will, be dealt with by NCAT in the course of the Tribunal proceedings, within which Dr Kovac is required to be afforded natural justice.
In response, Dr Kovac submits that NCAT is an appropriate forum to decide the grounds raised in the Miscellaneous Application, and that non-compliance with antecedent statutory steps in dealing with a complaint prior to the commencement of Tribunal proceedings will deny NCAT jurisdiction where the non-compliance is sufficiently substantial.
Counsel for Dr Kovac contends that grounds 1 and 2 do not seek to challenge the merits of the decision of the Board (or purported delegate) under s 47(2)(a) of the VP Act as to its state of satisfaction that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct in respect of the Monty and Lucy complaints. Rather, both grounds (in different ways) are focused on the Board's failure to conform to statutory steps antecedent to the decisions made under s 47(2)(a), which procedural failures flow through to infect the pathway to NCAT's jurisdiction (which travels through ss 47(2)(a) and 50 of the VP Act).
As to ground 1, counsel for Dr Kovac says the central question is whether the Committee's investigation of the Monty and Lucy complaints were properly delegated to it under s 49(2)(b) of the Interpretation Act. If not, there a failure in the procedural pathway to NCAT which deprives it of jurisdiction. NCAT's jurisdiction is invoked by an application from the Board for disciplinary findings under s 50 of the VP Act. For there to be an application under s 50, there must be relevantly: a complaint (s 38(1)); an investigation of the complaint by the Board (s 42); if the complaint gives rise to matters not within the terms of complaint the Board is to give notice to the practitioner in accordance with s 41 (with appropriate modification); and a decision, after investigation by the Board, that it is satisfied the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. The Board may then apply to NCAT for a disciplinary finding against the practitioner under Div 3 of Pt 5 of the VP Act.
Dr Kovac also notes that a failure to properly delegate powers relating to steps in the determination of a complaint antecedent to commencing disciplinary proceedings in NCAT was an issue considered by the Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 (DXW) (determining that by reason of various defects in the Legal Services Commissioner's purported delegation of its functions to deal with a complaint to the Law Society Council, NCAT did not have jurisdiction to determine the disciplinary charges brought by the Council under the relevant legislative scheme following an investigation of the complaint pursuant to that purported delegation).
As to ground 2, Dr Kovac submits that the principles established in the High Court's decision in Barwick v Law Society of New South Wales (2000) 169 ALR 236; [2000] HCA 2 (Barwick), and subsequently applied in multiple decisions, are important. Irrespective of whether the requirement that the decision-maker (in this case the Board or its properly appointed delegate) is to be satisfied of the practitioner's guilt of one or both disciplinary offences of unsatisfactory professional conduct or professional misconduct is characterised as either a condition precedent or as a procedural requirement, non-compliance with it necessarily deprives NCAT of jurisdiction where the non-compliance is substantial.
Cases referred to by Dr Kovac (including decisions which have applied the High Court's approach in Barwick) include: Law Society of New South Wales v M [2000] NSWADT 137; Veterinary Surgeons Investigation Committee v Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1(a) to (e)) [2002] NSWADT 285 (Remus) at [308]; Law Society of New South Wales v Carver [2003] NSWADT 158 (Carver); NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110 (Cserhalmi); and Mitry v Council of the NSW Bar Association [2001] NSWCA 273 (Mitry) at [115]-[116], [150], [166]-[167].
Dr Kovac submits that, while each statutory scheme relating to occupational discipline will be different, fundamentally the question is about whether defects in process laid out by the regulatory scheme are of such a nature to deprive NCAT of jurisdiction. Not every departure from the procedural requirements of Pt 5 of the VP Act will result in a lack of jurisdiction, citing Barwick at [53] and cases which have applied the approach in Barwick. However, it is submitted that it would be inconsistent with the legislative purpose of the VP Act to conclude that NCAT has jurisdiction to deal with matters brought before it in complaints six to eight of the Disciplinary Application in circumstances where procedures established by Pt 5 of the VP Act have been substantially bypassed.
Dr Kovac contends that the question is not whether the decision by the Board/Committee under s 47(2)(b) of the VP Act is beyond power. Rather the question is whether NCAT has jurisdiction in the sense of an "authority to decide" the matter before it in circumstances where that authority is derived from a statutory pathway under Pt 5 of the VP Act. Grounds 1 and 2 raise questions about whether NCAT has authority to decide the matters assigned to it under the VP Act by reason of procedural deficiency in the statutory pathway under the VP Act by which the matters comes before NCAT.
If NCAT's authority to decide a matter is conferred to it by certain enabling legislation (here, the VP Act), then it follows that it has a duty - which is its "first duty" - to satisfy itself that it has jurisdiction under the VP Act (ie to satisfy itself whether a claim made to it is within its limited authority): Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [132] per Leeming JA. It follows that if NCAT has a duty to satisfy itself whether it has jurisdiction under the VP Act, then it can decide for itself that question and accordingly NCAT is the proper forum in which to determine the matters raised by grounds 1 and 2 of the Miscellaneous Application.

[64]

In the context of a statutory disciplinary scheme concerning legal practitioners, the High Court in Barwick determined that a necessary process of investigation was absent in the matter before it, inconsistent with the legislative purpose, resulting in such a departure from the statutory requirements in that case, the relevant tribunal was held to be deprived of jurisdiction.
The High Court considered whether a failure to follow the procedures prescribed by Div 5 of Pt 10 of the now repealed Legal Practice Act 1987 (LP Act 1987), in the absence of any complaint of denial of procedural fairness, affected the jurisdiction of the NSW Legal Services Tribunal under Div 8 of Pt 10 of that Act. Section 167 (contained in Div 8 of Pt 10) stated that proceedings may be instituted in the Tribunal "with respect to a complaint against a legal practitioner" by an information laid "in accordance with this Part". The scheme of Pt 10 involved successive stages of complaint and Tribunal hearing, noting that a complaint will not always result in the laying of an information. Division 5 of Pt 10 included provisions to the effect that a Council must conduct an investigation into each complaint referred to it by the Legal Services Commissioner or initiated by the Council, and that the Commissioner was to monitor investigations conducted by a Council.
The solicitor in question sought an order of prohibition against the Tribunal claiming that it lacked jurisdiction to hear the allegations particularised in the information filed in the Tribunal by the Law Society Council. The solicitor contended that, although the LP Act 1987 required that complaints should be investigated under Div 5 of Pt 10 by an appropriate authority, such as the Law Society Council, before Tribunal proceedings were instituted under Div 8 of Pt 10, this had not occurred with respect to two complaints made against him.
The key facts are set out at [25] of the joint judgment of Gleeson CJ, Gaudron and McHugh JJ. In brief, the Law Society Council resolved to initiate a complaint against the solicitor in respect of several allegations, and immediately following that resolution, resolved to initiate disciplinary proceedings in the Tribunal in respect of those allegations.
In upholding the solicitor's objection to jurisdiction, their Honours in the joint judgment observed that the Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) rejected the distinction between mandatory and directory provisions as the test for resolving an issue such as that before the Court: at [49]. Their Honours stated:

[68]

The approach in Barwick has been applied in different occupational disciplinary contexts in NSW, including in relation to veterinary practitioners and architects.
In Remus, in the context of older NSW legislation governing the discipline of veterinary practitioners, the former NSW Administrative Decisions Tribunal (ADT) (a predecessor tribunal to NCAT) found that one of the charges (or allegations) against the veterinary practitioner (Dr Lloyd) was affected by procedural error and was not validly before the Tribunal. The procedural concerns were that the issues raised by that charge were not included in the original complaint, and were not before the Veterinary Surgeons Investigating Committee when it made its finding as to a prima facie case, which preceded the initiation of Tribunal proceedings.
At [308], the ADT said this was an instance to use the words of Gleeson CJ, Gaudron and McHugh in Barwick at [63] where the procedure required of the Investigating Committee by the now repealed Veterinary Surgeons Act 1986 (NSW) (VS Act 1986) was "substantially bypassed". The ADT said at [307] that, in terms of the statutory scheme, Dr Lloyd did not have the opportunity to have this element of the case against him considered by the Investigating Committee (by reference to s 28 of that Act). It may be that the Investigating Committee might not have referred the issue to the ADT, or it might have sought to deal with the issue itself by imposition of one of the orders available to it under s 28(1)(b). That sub-section provided that if the complaint was not sufficiently serious to warrant its being referred to the Tribunal, the Investigating Committee may caution or reprimand the veterinary surgeon or impose conditions on registration.
In Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: 'Total Eclipse' - Jurisdiction) [GD] [2003] NSWADTAP 19 (Total Eclipse Appeal Decision), the ADT Appeal Panel found that because of shortcomings in the disciplinary investigation into a different complaint about the same veterinary practitioner, the Tribunal's processes had not been regularly invoked, with the result that the ADT at first instance had no jurisdiction to make the disciplinary finding it had made. A feature of this matter was that the Veterinary Surgeons Investigating Committee supported Dr Lloyd's appeal on jurisdiction, conceding that his objection to jurisdiction at first instance had been well founded. Those grounds of objection to jurisdiction were that a number of prerequisites to the assumption of jurisdiction, laid down in ss 27 and 28 of the VS Act 1986, had not been fulfilled (see Total Eclipse Appeal Decision at [4]).
The Appeal Panel found that several procedural errors had been made by the Investigating Committee prior to commencement of disciplinary proceedings in the ADT. One of those procedural failures was that, before making its referral to the ADT, the Investigating Committee did not conduct a genuine investigation of the complaint as required by s 27(1) of the VS Act 1986. That section provided that the Investigating Committee shall "cause all complaints against registered veterinary practitioners made to in accordance with section 26 to be investigated". The Appeal Panel found that the Investigating Committee did not take a number of steps by way of inquiry that it should have taken eg did not take a statement from the complainant or from the pet's owner, nor did it obtain an expert's report. The Investigating Committee proceeded solely on the basis of the original complaint, Dr Lloyd's written response to it and oral representations made by him.
The Appeal Panel rejected the approach taken by ADT at first instance, which had expressed the view that this ground did not raise a question of jurisdiction: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283 at [23]. At [26] of that first instance decision, the ADT had said that its role was not to conduct a judicial review into the adequacy of the antecedent investigation; if the practitioner had wanted to take that point, he should have sought judicial review of the decision to prosecute the complaint. In disagreeing with the ADT at first instance, the Appeal Panel held that the ADT did have jurisdiction to investigate whether a real investigation with the characteristics impliedly required by the statute had taken place. The appeal was allowed on the basis that no proper investigation had taken place (see Total Eclipse Appeal Decision at [47]-[49]). The result was that the ADT was deprived of jurisdiction to conduct the disciplinary proceedings referred to it.
The Appeal Panel also considered other procedural errors made by the Investigating Committee. Procedural error was found in circumstances where Dr Lloyd was not provided with the opportunity to give written representations to the Investigating Committee in breach of an express statutory requirement. Although the Committee gave an opportunity to the veterinary practitioner to appear before it to make oral representations, as required by s 28(3) of the VS Act 1986, 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 the written representations by the Committee before deciding whether to provide the opportunity to the practitioner to appear and make oral representations - did not take place: Total Eclipse Appeal Decision at [23]-[24].
At first instance the ADT had concluded at [51] that the Investigating Committee's failure in this regard did not render invalid its exercise of the power of referral to the ADT. The reason was that, on the true interpretation of all the procedural requirements laid down in the VS Act 1986, this particular requirement, even though expressed in mandatory terms, was not 'cardinal' or 'fundamental'. The ADT at first instance considered that the failure to observe this requirement may have compromised the VS 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 ADT held to be a fundamental requirement - of providing an opportunity to Dr Lloyd to make oral representations: Total Eclipse Appeal Decision at [30]-[31].
The ADT at first instance had also distinguished the case of Barwick because of the 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 ADT at first instance held at [50] that the situation before it was not as fundamental as in Barwick.
On appeal, counsel for both parties submitted that it is very important the procedural aspects of the investigation laid down in the VS Act are complied with. Counsel for the Investigating Committee (in support of Dr Lloyd's appeal) advanced a broad argument, based on policy considerations, for treating strict compliance with procedural steps laid down in the VS Act as essential to the validity of subsequent proceedings in the ADT. A further argument advanced was that it was illogical for the ADT at first instance to treat as fundamental the requirement in s 28(3) that a practitioner be given an opportunity make oral representations to the Committee, while simultaneously treating the requirement of receiving written representations, set out in the same sub-section, as non-fundamental. In the submission of both counsel, both these requirements, being stated in s 28(3) to be steps that the Committee "must" take, must be categorised as fundamental: Total Eclipse Appeal Decision at [41].
The ADT Appeal Panel found that the two separate procedural steps in s 28(3) of the VS Act 1986 (oral and written representations to the Investigating Committee) must both be classified as "fundamental", and that this conclusion received direct and strong support from the NSW Court of Appeal's judgments in Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70 (Murray). There, the Court held that a failure by the Legal Services Commissioner to provide a legal practitioner with a copy of a complaint made against him under Pt 10 of the LPA 1987, and to give him an opportunity to respond rendered subsequent proceedings in the ADT invalid (even though noting to this effect was explicitly stated in the governing legislation): see discussion of Murray in Total Eclipse Appeal Decision at [42]-[43]; [54]-[56].
The Appeal Panel stated that it saw no way in which, consistently with the Court of Appeal's decision in Murray, that non-observance of an express statutory requirement designed to ensure procedural fairness during the investigatory stage of a professional disciplinary matter - such as the statutory requirement not observed in the case before it - could be held not to invalidate subsequent legal proceedings. Moreover, the Appeal Panel said it was fortified in this conclusion by the High Court's judgments in Barwick and by the policy arguments advanced with regard to the important role of the investigatory process in the veterinary disciplinary scheme then in force: Total Eclipse Appeal Decision at [56].
The Appeal Panel appears to have accepted the submission put by counsel for both parties to the effect that Barwick should not be distinguished because the Barwick decision was not dependent on the involvement of the Legal Services Commissioner as a monitor of investigations as carried out by the professional associations. This aspect of the disciplinary regime contained in Pt 10 of the LP Act 1987 was only one of the factors relied on by the High Court: Total Eclipse Appeal Decision at [40].
In a matter concerning an architect, in Cserhalmi the ADT found that it was deprived of jurisdiction in disciplinary proceedings before it because the NSW Architects Registration Board had not made a finding that it was satisfied that the architect was, or was not, guilty of conduct warranting discipline. The Board had resolved to prosecute the complaint in the ADT but without expressing a view as to the merits of the allegations. The making of such a finding was a pre-requisite to the exercise of jurisdiction by the ADT.
After considering the authorities of Project Blue Sky, Barwick and Mitry in some detail (see [35]-[42]), the ADT seemed to accept that the principles stated in cases such as Barwick and Mitry, "relating as they do to a professional disciplinary regime having similar features and based similarly on a principle of co-regulation", are of direct relevance: Cserhalmi at [54]. The ADT noted the joint judgment in Barwick at [53] where the High Court said that not every departure from the statutory procedures laid down in Pt 10 of the LP Act 1987, and in particular Div 5, will result in a lack of jurisdiction for the Tribunal (at [39]). The focus of attention should be, according to their Honours, "whether there was an investigative stage which permitted the requirements of Div 5 to be satisfied, and the legislative purpose of the Division to be satisfied".
The ADT upheld the architect's objection to jurisdiction. At [59], the ADT concluded that ss 43(2) and (3) of the Architects Act 2003 (NSW) are intended to define exhaustively the circumstances in which the Architects Registration Board may make an application to the ADT under s 46. A finding as to whether unsatisfactory professional conduct or professional misconduct had occurred was required. The ADT further concluded (at [60]) that, in accordance with the principles laid down in Barwick, it was the legislative intention of Pt 4 of that Act that if an application is made to the ADT in breach of the conditions in ss 43(2) and (3), the application should be deemed invalid and the ADT should lack jurisdiction to entertain it.

[86]

Turning to the deponent's evidence in the Baguley Affidavit, it is clear that Mr Baguley is employed by the Board in the role of Registrar. The position description for his role was annexed to the affidavit. The Registrar is responsible for assisting the Board in implementing its functions and responsibilities as set out the VP Act. Relevantly, under the heading "Technical Competencies" and the third sub-heading, "Communication", the Registrar is expected to maintain effective communications with the Board, Complaints Committee and various other parties including users of veterinary services and "other stakeholders".
Mr Baguley's evidence is that part of his role is to implement the decisions made by the Board, a critical part of which, is to write correspondence to various individuals and entities on behalf of the Board. He says that in the present case, several steps were required to carry out the Board's resolution on 21 April 2020, including sending correspondence to members of the Complaints Committee, as well as to the legal representatives for Dr Kovac. In accordance with the usual practice of the Board in serious matters, Mr Baguley says he personally sent that correspondence on behalf of the Board.
Mr Baguley's evidence is that he corresponds on behalf of the Board by way of both letters and electronic mail (relevant originating email addresses were provided). All correspondence contains his name, title and signature (or signature block in the case of emails) and his email signature block includes the address and contact information for the Board.
We are satisfied, on the basis of the unchallenged affidavit evidence, that it is part of the Registrar's role to sign correspondence and other documents for the Board and this is the usual practice of the Board. We are satisfied that, by virtue of the responsibilities of his role, the Registrar is authorised to provide evidence of delegation by the Board by its usual practice described by Mr Baguley in affidavit evidence.

[88]

Dr Kovac refers to the Board's power under s 82 of the VP Act to delegate functions, submitting that because the VP Act does not provide for how a delegation is to be made and evidenced, ss 49(1) and (2) of the Interpretation Act are relevant. Under s 49(2)(b) of the Interpretation Act, a delegation "shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose".
Dr Kovac submits that the April 2020 Board minutes are insufficient to evidence the relevant delegation (or purported delegation) by the Board because they are not signed, and those minutes appear to ratify a previous decision made by the Board prior to the Board meeting.
He also submits that the 23 April 2020 Email to the Committee, and the 14 May 2020 Registrar's letter, are insufficient as evidence of the purported delegation because the Registrar lacked authorisation to provide such evidence; and further, the 14 May 2020 Registrar's letter does not specify when the delegation occurred, and on an appropriate narrow interpretation, cannot constitute a proper delegation.
The Board submits that the Board's delegation of its Pt 5 VP Act functions in respect of the Monty and Lucy complaints to the Complaints Committee occurred at the Board meeting on 21 April 2020 where the decision was "ratified", relying on the Board minutes and supported by the March 2020 Board email (sent to the Board prior to the Board meeting). The Board further submits that those documents, in addition to the 23 March 2020 Legal letter, the 23 April 2020 Email to the Committee, and the 14 May 2020 Registrar's letter, are evidence of the delegation for the purposes of s 49(2)(b) of the Interpretation Act.
The Board contends that the requirement for a delegation to be in writing only requires the existence of a document in writing, whether created contemporaneously or at a later point in time, which "evidences the essential fact", citing Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2 quoting with approval Canniffe v Howie [1925] ST R Qd 121 at [126]-[127]. The Board further bases its submission in this respect on consideration of a line of authorities originating with the Statute of Frauds, contending that no further formality other than a written document should be required. The Board also relies on Williams v Nicoski [2003] WASC 131 at [295] where a notice in writing was required to be "sufficiently clear and unambiguous".
The Board further contends that a delegation "evidenced by...writing", for the purposes of s 49(2)(b) of the Interpretation Act, could be provided across a number of documents, rather than in a single document.

[91]

Disciplinary proceedings in NCAT may only be commenced under the VP Act, following an investigation, if the Board has made a finding of unsatisfactory conduct or professional misconduct against a practitioner (ss 47(1), (2)). In this matter the Complaints Committee conducted the investigation and made the relevant findings, not the Board.
The Board is established under the VP Act and it is therefore necessary to first consider relevant VP Act provisions when examining the functions of the Board, including in assessing how the Board is to exercise its functions and conduct its operations: see Project Blue Sky at [69]-[70] as to general principles of statutory construction. We referred earlier to ss 82 and 49 of the VP Act, relevant to the Board's delegation of Pt 5 statutory functions to a committee established under s 81.
We accept Dr Kovac's submission that, because the VP Act does not provide for the operational requirements of a delegation by the Board under the VP Act, it is appropriate to look to the Interpretation Act to determine those operational requirements because two statutes should be construed consistently in a way that best achieves a harmonious result: see eg Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [78] citing Project Blue Sky at [381]-[382].
There does not appear to be any conflict between the VP Act and the Interpretation Act for present purposes. The VP Act provides the Board with the power to delegate its functions in certain circumstances, and we are satisfied the Interpretation Act operates to govern how that delegation can occur and provides other relevant operational or facilitative requirements.
Section 49(2)(b) of the Interpretation Act, in providing the option of "or be evidenced, by" writing, contemplates a scenario whereby written evidence of a delegation may be provided separately to the fact of delegation (ie the making of the decision to delegate statutory functions). Section 49(2)(b) also provides, where the exercise of delegation is by a body, for "a person authorised by the body for that purpose" to provide written evidence of the delegation, essentially recognising a body, such as the Board, is different in nature to an individual who is readily able to sign an instrument which delegates his or her statutory functions to a delegate.
Section 49(2)(b) of the Interpretation Act therefore permits a person authorised by the Board for that purpose to provide evidence in writing of the Board's delegations. The Interpretation Act imposes no temporal requirement on the evidence of delegation. It follows that evidence of a delegation in writing can be provided some time after the Board has made a decision to delegate the exercise of its functions. This might occur, for example, in circumstances where minutes of a Board meeting may not be finalised until, or following, the next Board meeting at which there may be an opportunity for such minutes to be adopted or confirmed by a Board.

[112]

In respect of the 7 September 2020 letter from the Committee, Dr Kovac says this letter was no more than a request for comment and information.
Dr Kovac submits the regime established by Pt 5 of the VP Act creates a balance between public protection and professional, individual rights and interests, setting out a number of procedural safeguards such that strict compliance with those safeguards is required. He submits the requirements as to notification under s 41 of the VP Act are substantive, critical and essential requirements that have not been met in this case.
In respect of the first alleged failure, Dr Kovac submits that the 27 November 2020 letter was a summons issued to him under s 44 of the VP Act that could not have also included s 41 notification. He also submits that a summons is not an appropriate vehicle for s 41 notification given the nature of a summons including because breach of a summons issued under the VP Act has a civil penalty provision (ss 44(4), (5)) as a consequence. He further submits the letter is inadequate notice under s 41 because the letter did not identify a "complainant".
Dr Kovac further submits, that in the circumstances and given the timing of the investigation into the Monty and Lucy complaints, NCAT cannot be satisfied that the Committee could have held the requisite views as to the potential nature of Dr Kovac's conduct in respect of the further matters when the purported notification occurred. He also submits a temporal requirement should be read into the statutory process, for fairness reasons, with the effect that no summons could issue before notification was received by a practitioner.
The Board submits that the VP Act does not require the giving of a s 41 notice before a s 44 summons can be issued, particularly because it cannot be known at what stage new matters may arise during an investigation. The Board further submits that there is no requirement for a summons and notification to be provided in separate documents and that the requisite s 41 notification of the further matters was provided to Dr Kovac via the 27 November 2020 letter and repeated by the 8 February 2021 letter.
In respect of the second alleged failure, Dr Kovac submits the power to extend the investigation into the Monty complaint belonged to the Board and was not within the Committee's functions, assuming that the Committee was delegated investigation functions under Pt 5 of the VP Act for the matters that now form the basis of complaints one to five of the Disciplinary Application.

[116]

For the purposes of the statutory notification required by s 41, the VP Act does not require adherence to a process whereby "further matters" that arise in the course of an existing investigation be made as, and treated as, new complaints(s) separate to the complaint already under investigation. That is a process that could presumably be adopted, for example the Board (or Committee) could make a complaint regarding the allegations that form the basis of the "further matters", or a third party could lodge such a complaint with the Board.
Instead, ss 42(3)-(5) allow for an alternative process with respect to "further matters" whereby, under s 42(3), the Board (or delegate) can "deal with the matter in its investigation as if a complaint had been made about the matter". Section 42(5) then requires the Board (or delegate) to "deal" with new matters under ss 42(3) and (4) "as if a complaint had been made in relation to the matter" and provides that s 41 notification requirements are to be appropriately modified.
Section 41(1) of the VP Act, without modification, requires written notice to be provided to a practitioner as soon as practicable following the making of a complaint of: (1) the making of a complaint; (2) the nature of the complaint; (3) the type of unsatisfactory professional conduct or professional misconduct that the Board considers may be indicated by the complaint; and (4) the identity of the complainant. Section 41(2) of the VP Act without modification requires the written notification to include an invitation to the practitioner to make written representations "with respect to the complaint" within a specified period of at least seven days.
It is necessary to determine the "appropriate modification" for a specific s 41 notification requirement in respect of the further matters before considering whether the Committee complied with that notification requirement and we turn first to consider the requirements of s 41(2).
We think that, by way of "appropriate modification" of s 41(2) the written notice of the further matters should invite Dr Kovac to make written representations to the Complaints Committee (as delegate of the Board) with respect to those further matters within a specified period of at least seven days. This is because we consider "the further matters" are equivalent to "the complaint" when applying the alternative process for dealing with the further matters under ss 42(4) and (5) instead of via a new and separate "complaint".
In contrast to a letter from the Board to Dr Kovac of 4 January 2019, regarding the original Monty complaint, that advised: "[a]s part of this investigation and in accordance with the Act (s 41(2)) you are invited to submit a written response to this complaint", neither the 27 November 2020 letter, nor the 8 February 2021 letter, provided an opportunity to Dr Kovac to make written representations to the Complaints Committee regarding the further matters within a specified period of at least seven days. The letter of 7 September 2020 also did not provide the required opportunity to provide written representations to the Committee. There is nothing contained in any of the letters of 7 September 2020, 27 November 2020, nor 8 February 2021 which can be construed in this way.
None of the letters relied on by the Board as evidence that the requisite statutory notification had been given to the practitioner of the further matters provides an invitation to make written representations. Therefore, none of those letters satisfies the "appropriately modified" notification requirements of s 41(2) of the VP Act for the further matters.
As a result, we consider that Dr Kovac was not provided with the requisite notice of, including an opportunity for written response to, the further matters because the Complaints Committee (as delegate of the Board) failed to comply with s 41(2).

[119]

In our view, it is an appropriate approach to consider whether, consistently with the approach in Barwick, the failure of the Complaints Committee (as delegate of the Board) to comply with an express requirement of s 41(2) in relation to the further matters involved a "substantial bypassing" of the procedures laid down in Pt 5 of the VP Act, in light of the legislative purpose of Pt 5, such as to deprive NCAT of jurisdiction in relation to those further matters.
We do not agree with the Board's submission that the failure to comply with s 41(2) is not substantial because Tribunal proceedings, in which NCAT is required to apply the rules of natural justice (s 38(2), NCAT Act) may rectify any potential consequential detriment to a practitioner by giving the practitioner an opportunity to address any previous procedural unfairness. Rather, we agree with Dr Kovac's submission that strict compliance with procedural safeguards in Pt 5 is required. The statutory notification requirements which by the practitioner concerned is to be provided with an essential opportunity to make written representations in relation to the allegations put is not an empty formality, nor it is a procedural safeguard which can be treated as optional by the Board or its delegate.
Further, we note that the Board has not pointed to any other correspondence sent by the Board or the Committee which might be relied upon as attempting to rectify the deficiency in the purported s 41 notification. The Board does not rely on any other correspondence, for example, issued contemporaneously with the purported s 41 notification, in which the Board or Committee specifically invited the practitioner to make written representations in relation to the further matters prior to his attendance at a compulsory interview with the Committee in February 2021.
As set out earlier in these reasons in respect of issue (1), the VP Act provides a statutory pathway in Pt 5 by which an application for disciplinary findings may be brought to NCAT, namely that: the practitioner is on notice of the complaint and its type and nature, and has an opportunity to make written representations; an investigation process is to occur; and a determination is to be made. At the end of the pathway an application to NCAT may (or must) be made in specific circumstances.
The statutory requirement to provide notification, including an opportunity for a practitioner to respond in writing, is an express requirement under Pt 5 of the VP Act designed to ensure procedural fairness during the investigation stage of a professional disciplinary matter and is therefore fundamental.
We consider that strict compliance with the express requirements of s 41 of the VP Act regarding an expansion of a complaint is necessary in disciplinary proceedings of this nature. The circumstances here are not dissimilar to the scenario considered by the ADT Appeal Panel in the Total Eclipse Appeal Decision where the Investigating Committee, insofar as it failed to invite the veterinary surgeon to provide written representations to the Committee with respect to certain allegations, was in breach of an express statutory requirement in the VS Act 1986. Such procedural deficiency was held to have deprived the ADT of jurisdiction in disciplinary proceedings in relation to those allegations.
Relevantly here, the alternative process adopted by the Committee in relation to the further matters was to send a letter, which failed to contain one of the essential elements of a s 41 statutory notification (being the invitation to provide written representations on the further matters) before further investigation steps should occur. The Committee failed to give Dr Kovac the opportunity, at the stage in the investigation required by Pt 5, to make written representations as to the further matters. This meant that a step in the process contemplated by Pt 5, namely consideration of written representations by the Committee, shortly after being notified of the further matters under s 41(1) (and before other investigatory steps were taken) did not occur.
We therefore agree with Dr Kovac that there has been substantial non-compliance with statutory procedures contemplated by Pt 5 of the VP Act with respect to the further matters. We consider that, consistently with Barwick, the application to NCAT made in respect of those further matters (complaints six to eight) is rendered invalid such that NCAT is deprived of jurisdiction to hear and determine complaints six to eight.

[121]

Dr Kovac has been partially successful on the Miscellaneous Application. He has been successful in respect of ground 2, but unsuccessful in respect of ground 1. He sought costs in the event he was successful on the basis there were special circumstances sufficient to depart from the usual rule, under s 60(1) of the NCAT Act, that parties pay their own costs.
Dr Kovac submits that special circumstances exist, in part, because the Miscellaneous Application concerned "novel and complex" questions of statutory construction, citing The Owners - Strata Plan No 55773 v Roden (Costs) [2020] NSWCATAP 197 and The Owners - Strata Plan No 58068 v Cooper (Costs) [2020] NSWCATAP 198. It is further submitted that there were no Court or NCAT decisions that had considered the matters arising in this application, and that the issue of jurisdiction was of greater complexity than NCAT's previous decision in DXW (referred to earlier in these reasons for decision).
Dr Kovac also put forward a further matter to support a determination that special circumstances exist in respect of ground 1 of the Miscellaneous Application, namely that Dr Kovac had put the Board on notice of the issue of delegation from around 27 June 2022, which was "well before" the Disciplinary Application was lodged with NCAT.
In its written submissions the Board contended that it would be appropriate for costs of the Miscellaneous Application to be determined on the basis that the application raises discrete issues. The Board sought costs in the event it was successful on the Miscellaneous Application. In oral submissions at the hearing the Board agreed with Dr Kovac's submission that there needs to be special circumstances for a costs order and submitted that, in the event the Board was successful on the Miscellaneous Application, the costs of such application should be reserved and determined as part of the disciplinary proceedings.
The usual costs rule in NCAT proceedings is that the parties are to bear their own costs unless there are special circumstances justifying an award of costs: s 60 of the NCAT Act.
In substantive disciplinary proceedings under the VP Act the general 'default' position as to costs in s 60 of the NCAT Act is displaced in certain circumstances by operation of cl 26(1) of Sch 5 to the NCAT Act. That clause provides:

[128]

The onus is on the party seeking an order for costs to satisfy NCAT that there are special circumstances warranting an award of costs in the party's favour. "Special circumstances" do not have to be extraordinary or exceptional, it is sufficient if they are out of the ordinary: Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [108]. Even where special circumstances exist, NCAT must still decide that a costs order in favour of a party is warranted.
Section s 60(3) provides factors we are to have regard to in deciding whether special circumstances exist that warrant an award of costs. Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist: see The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]-[13].
Given Dr Kovac was unsuccessful in respect of ground 1 of the Miscellaneous Application, the issue of notice provided to the Board regarding delegation is not relevant to the determination of costs of the Miscellaneous Application.
While Dr Kovac succeeded on ground 2 of the Miscellaneous Application, the issues arising (including the preliminary jurisdiction question of whether NCAT has authority to decide such ground) were not sufficiently novel or complex to support a finding that special circumstances exist. While a review of authorities and statutory construction was required, this is not enough, without more, to warrant an award of costs in favour of the practitioner. We refuse Dr Kovac's application for costs on the Miscellaneous Application.
While the Board initially sought its costs on the Miscellaneous Application, the Board submitted at the hearing on 16 June 2025 that the question of costs could be deferred and dealt with as part of the substantive proceedings. In our view, it is appropriate for us to determine the Board's application for costs of the Miscellaneous Application.
While the Board was successful in respect of ground 1, we do not consider special circumstances exist to warrant an award of costs in favour of the Board in relation to that ground, or generally on the Miscellaneous Application. The Board has not put forward any real basis on which costs should be awarded in its favour on the basis of special circumstances for the purposes of s 60 of the NCAT Act. Accordingly we refuse the Board's application for costs on the Miscellaneous Application.
We therefore consider there should be no order as to costs in respect of the Miscellaneous Application.

Veterinary Practitioners Board of New South Wales v Kovac [2025] NSWCATOD 118;

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