Veterinary Surgeons Investigating Committee -v- Lloyd [2002] NSWADT 233

1 THE TRIBUNAL: In March 1999 a Veterinary Disciplinary Panel of the Tribunal commenced hearing charges of professional misconduct against the respondent. The charges were referred under the Veterinary Surgeons Act 1986 (VSA) by the Secretary to the statutory body responsible for investigating the complaints giving rise to the charges, the Veterinary Surgeons Investigating Committee (VSIC). The charges were contained in four notices of inquiry. The Panel was constituted in the manner required by the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), Sched 2, Pt 4, Div 3, cl 7. It comprised the President, a member of the Veterinary Surgeons Board (Dr McGilvray) and a non-judicial member who represents the interests of users of veterinary services (Ms Dubow). 2 For convenience in these reasons the inquiries are referred to by number in the order in which they have been conducted as Inquiry 1 (Chisel), matter no. 40004/98; Inquiry 2 (Gypsy), matter no. 40005/98; Inquiry 3 (Remus), matter no. 40015/98; and Inquiry 4 (Total Eclipse), matter no. 40016/98. 3 In March 2000 the non-judicial member's appointment expired. At the time the Panel had completed hearing the first two notices of inquiry, and was part heard in respect of the third (Remus). The reconstitution of the Tribunal in these circumstances is governed by s 79 of the Tribunal Act, which provides: '79. Reconstitution of Tribunal during hearing (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if: (a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and (b) the parties consent. (2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. (3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act. (4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.' 4 The respondent did not consent to a reconstitution as required by s 79(1)(b) for the matter to proceed in the manner contemplated by s 79(1) and (2). Accordingly it became necessary for the Panel to be constituted afresh. A new Panel was constituted. It retained the President, and the veterinarian member; with the new non-judicial member being Ms Fiona Clark. Following a directions hearing on 22 July 2000 before the President sitting alone, the President issued a ruling as to how the Panel was to proceed, purportedly pursuant to s 79(4): Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98 (27 July 2000). This ruling was the subject of an appeal to the internal Appeal Panel of the Tribunal. The Appeal Panel affirmed the ruling. There was a further appeal to the Court of Appeal. It set aside the ruling, essentially on the basis that the decision exceeded the proper scope of a directions hearing, and should have been made by the Panel as a whole: Lloyd -v- Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002). The directions of the President were set aside. 5 Accordingly it is necessary to revisit the question, over two years later, of how the new Panel is to proceed to deal with the completed proceedings in respect of the first two notices of inquiry and that part of the third notice of inquiry that was dealt with before the new Panel was constituted. 6 Following two directions hearings before the President the Panel reconvened on 3 October 2002 (with Dr McGilvray participating by telephone), and again on 22 October 2002 to consider the procedure to be adopted. 7 When the present Panel convened for the first time on 8 June 2000, the respondent foreshadowed that he would be submitting that it was necessary for the Panel to recommence hearing all evidence in Inquiries 1, 2 and (to the extent already completed) Inquiry 3, so as to ensure that the new member had the opportunity to observe the witnesses give their evidence, and form her own evaluation of that evidence in the same way as had been possible for the two continuing members. Because of this concern, the Panel proceeded to commence hearing Inquiry 4 (which was unaffected by these objections), with the issue of how to proceed with Inquiries 1, 2 and 3 to be dealt with later. 8 The new non-judicial member, in response to the directions given by way of the President's ruling of 27 July 2000 advised that she did not wish to have any witnesses recalled in respect of Inquiries 1 and 2, or that part of Inquiry 3 completed before her appointment, and the Panel proceeded on that basis. The hearing of all remaining evidence was completed in December 2000. Since that time the delivery of final decisions has been delayed pending resolution of the question now dealt with by the Court of Appeal. 9 The respondent had not in its appeal to the internal Appeal Panel of the Tribunal or in its submissions to the Court of Appeal objected to the jurisdiction of the President's ruling of 27 July 2000. The issue was raised by the Court itself. The respondent's objection throughout has been to the way in which the President interpreted the word 'reconsidered' in s 79(4). The respondent's position had been that it was not open, especially where credibility was in issue as to whether witness oral evidence was accepted or rejected, for the new member to proceed simply by reference to the transcript of evidence. 10 The respondent has consistently pointed to the risk to him from the new member forming a view merely by reference to the written record of the previous proceedings; and the possibility of undue influence by the two continuing members, who had seen all the witnesses give evidence, in forming views as to credibility. 11 The principal judgment of the Court of Appeal was delivered by Sheller JA, and his Honour made the following observations on the scope of the powers available to the Tribunal, and the meaning of s 79: '10 This section [s79] establishes two courses to be followed where, as in the present case, a member of a Tribunal ceases to be a member before the matter is determined. If the parties all consent the President may replace that member. If a party does not consent, a new Tribunal is constituted "in accordance with [the] Act". There is no reason why the new Tribunal constituted under s79(3) should not, as in the present case, include members of the previously constituted Tribunal. A large part of the debate before the President and before the Appeal Panel turned upon whether or not the newly constituted Tribunal was engaged in a "rehearing". I do not understand there to be any debate now but that the newly constituted Tribunal starts the hearing afresh. Pursuant to s79(4) it may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings. However, on its face, it is clear enough that the decision as to whether or not the Tribunal will have regard to any record of the proceedings and, if so, to what extent, is a matter for the Tribunal. Moreover, one would expect that the nature and degree of regard to the record would depend upon the way in which the matter unfolds before the newly constituted Tribunal. Thus, on its face, it is not for the President alone to make a decision which purports to bind the parties as to the course the Tribunal will take. Such a decision would not be a decision of the Tribunal but of the President. The expiry of the term of office of the member of the Tribunal as previously constituted produced a very unsatisfactory situation. There had been nineteen days of hearing. Justifiably it was no doubt felt that the expensive and one suspects largely useless process of recalling all the evidence should be avoided. For that reason the President held a directions hearing. But order 1 went beyond a mere direction and appeared to limit the extent to which the newly constituted Tribunal in dealing with the completed and partly completed inquiries could decide whether to have regard to anything beyond the record of proceedings.' 12 His Honour continued: '23 The dictate of s73(3) is that the Tribunal act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." Within the bounds of that dictate it seems to me entirely within the discretion of the Tribunal under s79(4) to have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings and, pursuant to s73(2) being not bound by the rules of evidence, to "enquire into and inform itself on any matter in such manner as it things fit, subject to the rules of natural justice." Within those limits it is possible for the newly constituted Tribunal to have regard to the record and indeed to require a party not to call the evidence again.' '31 While I do not think this Court any more than the President can dictate what directions the Tribunal should give in exercising its discretion under s79(4) it would seem to me appropriate, as I have already suggested, to give Dr Lloyd the opportunity to submit to the Tribunal what evidence already given or what witnesses already heard should be recalled and then to deal with that application. If required, of course, a similar opportunity ought to be given to the VSIC. Subject to that being done and, if appropriate, evidence being received accordingly, there seems to be no reason why the Tribunal should not now proceed to a decision on the basis of the evidence it has heard and the record of the proceedings before the Tribunal as previously constituted.' 13 On this occasion there were two directions hearing before the President sitting alone; and then the Panel reconvened. In the latest round of proceedings, VSIC in contrast to previously has appeared in person, through its Secretary, and not through counsel. Ms Green, the respondent's solicitor, has continued to appear for Dr Lloyd. 14 At the directions hearing the parties foreshadowed the possibility of presenting an agreed or partly agreed position as to how the Inquiries might now proceed, so as to bring them to a reasonably speedy conclusion after all the delays. 15 The agreed submissions ultimately took the form of a table listing each of the allegations in respect of each of the four inquiries, and indicating whether the VSIC wished to press the allegation. The VSIC stated that it did not now consider it necessary to continue to press certain allegations on the basis that even if proven the conduct could not amount to professional misconduct. It also stated that it agreed with the submissions of the respondent as to what weight should be given to certain evidence led by it in relation to certain particulars. 16 The Panel at its hearing on 3 October 2002 addressed a number of questions to the Secretary of VSIC as to matters raised by the table. The respondent stated that its attitude to who it might request be recalled to give oral evidence would vary depending on the attitude of the Panel to the submissions of the Secretary. The Panel declined to give such an indication, and asked the parties to proceed for the time being on the basis that all allegations referred by the VSIC remained before it. 17 The Panel gave directions to the respondent to provide it with a statement as to what witnesses he would like to have recalled, and in respect of what matters; dividing the statement by reference first to the charges that VSIC continued to press; and by reference to those which it was not wishing to press. Ultimately the respondent filed a statement which did not discriminate in this way but dealt with all of the charges. 18 [It is not strictly necessary, we consider, for the resolution of the present question to refer to the submissions of the VSIC as reflected in the table. We will deal more fully with them in our final decisions. The submissions are of particular significance in that they contend that certain types of conduct placed in issue by the proceedings would not, even if the particulars alleged were fully proven, amount to professional misconduct. 19 It is the VSIC's view (taking into account further submissions filed 11 November 2002), that the following activities can not be the subject of findings of professional misconduct (and any complaints by clients should be resolved by other means such as civil action): · the way in which burial procedures are carried out by veterinary surgeons, except for compliance with public health requirements [submission relevant to Inquiry 2, charge 1(o), Gypsy] · contact by a veterinary surgeon with a client after receiving notice of a complaint by the client from the proper authority (e.g. Australian Veterinary Association or the VSIC) [submission relevant to charge 2(a) (Inquiry 3, Remus)].) As indicated to the Secretary at hearing, we have considerable difficulty accepting these submissions. In our view the relevant legislation seeks to afford protection to the public of New South Wales (and animals) against misconduct by veterinary surgeons in connection with the carrying out of veterinary services, not merely the performance of acts of veterinary science. In some circumstances it may even cover conduct that falls outside the sphere of the performance of veterinary services, an issue which has been a live one in recent times in connection with other professions such as the legal profession.) 20 The respondent has submitted that it is necessary for the new member, Ms Clark, to have the opportunity to see and hear from the following principal witnesses in the first three inquiries, whose evidence was heard before the new Panel was constituted: in Inquiry 1 (Chisel), Mrs Girgenti; in Inquiry 2, (Gypsy) Ms Clee; and in Inquiry 3 (Remus), Ms Robinson. 21 The respondent also submitted that the following witnesses also be recalled in respect of Inquiry 2 (Gypsy), Mr Glen Tuinenberg and Mr James Murray. The respondent did not press a request that Dr Driver, called as an expert witness by him, be recalled. 22 The Panel then inquired as to which of the allegations it was considered that these witnesses would be relevant to. With the assistance of the Panel, Ms Green agreed that the following charges were affected by the request for recall: Inquiry 1 (Chisel): charges 1(a) and (c); Inquiry 2 (Gypsy): charges 1(a) and (o), 2(b), 3, 4; Inquiry 3 (Remus): charges 1(a) and (b) and 2. 23 The remaining charges were not affected by the request for recall. The respondent did not press for any reopening of the inquiries in respect of the remaining charges. 24 The respondent's present submission is not as sweeping as it was two years ago as to who should be recalled. There is, for example, no request for the recall of expert witnesses, or any suggestion that the respondent himself return to give evidence again. The respondent contends that, as a matter of fairness, the Panel should only make critical findings as to credibility after directly hearing the evidence of the principal witnesses who have made allegations against him. The new member, it is said, would be at a disadvantage and the respondent would be gravely prejudiced, if she did not have the opportunity to assess the mannerisms, demeanour, tone and way in which they gave their evidence. A transcript was no substitute for the direct experience of seeing and hearing witnesses give their evidence. 25 In line with the directions (now set aside) given in July 2000, the new member (Ms Clark) has perused the transcripts of the three inquiries and all of the exhibits. 26 Her views on the need to see the witnesses again follow; as do those of Dr McGilvray. 27 MS CLARK: As I had previously advised, after reading the transcripts I do not wish to call any witnesses. I accept that the observance of witnesses and their mannerisms, appearance and overall body language can help in the final decision, but such a long time has now elapsed, that there is a high chance that witnesses will now be confused about their memory of events. If witnesses are to be called, they should be kept to a minimum. I do not require any witnesses to be recalled. 28 DR McGILVRAY: These proceedings have now been before this Tribunal and its predecessor for nearly five years. The public interest clearly dictates that these inquiries be brought to a conclusion quickly. I fully agree that we should now proceed to make final determinations on all four inquiries. The transcripts in my view satisfactorily depict the evidence of the lay witnesses, and their cross examination on behalf of the respondent tested their evidence satisfactorily. 29 THE TRIBUNAL: The Tribunal has been given wide powers to conduct its inquiries, as was noted by Sheller JA in the Court of Appeal. 30 In the case of those allegations where it is said a recall of the main lay witnesses is desirable, we are satisfied that there is no substantial prejudice to the respondent in proceeding to determine the matters that are the subject of the request for recall on the basis of the existing material. 31 Closing Submissions: Because of the lodgment of the appeal following the rulings in July 2000, no final submissions have been made in relation to Inquiries 1, 2 and 3. Inquiry 4 (Total Eclipse) was conducted entirely before the present Panel and has been concluded. There has been no determination made in respect of Inquiry 4 because the parties at the outset of proceedings in March 1999 indicated their agreement that all four Inquiries be determined in the one proceedings rather than separately. 32 Time Limits: Accordingly the Panel will reconvene on a date to be fixed not later than 18 December 2002 to hear closing oral submissions in respect of Inquiries 1, 2 and 3. We refer to our powers under s 73(5)(d) of the Tribunal Act permitting the imposition of reasonable time limits. The following time limits for oral submissions will apply: Inquiry 1 (Chisel) - VSIC, 30 minutes; Respondent, 1 hour; Inquiry 2 (Gypsy) - VSIC, 30 minutes, Respondent 1 hour 30 minutes; Inquiry 3 (Remus), VSIC 30 minutes, Respondent 1 hour. The proceedings will commence at 9.15 am, and be completed the same day. 33 The parties are at liberty to file and serve written submissions, tables or the like, to assist the efficient presentation of oral submissions; and should do so not later than three days before the hearing, to give the members of the Tribunal an opportunity to consider them.