Gelderman v Veterinary Surgeons Investigating Committee (GD)

[2001] NSWADTAP 27

Appeal Panel

CITATION:	Gelderman -v- Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27
PARTIES:	APPELLANT Diederick Gelderman RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	009032
HEARING DATES:	01/03/2001
SUBMISSIONS CLOSED:	03/01/2001
DATE OF DECISION:	08/24/2001
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Dr Diederik Gelderman [2000] NSWADT 117
BEFORE:	Latham M - DCJ (Deputy President); Britton A - Judicial Member; Mayo-Ramsay R - Member; Thompson R - Member
CATCHWORDS:	penalty
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993089
DATE OF DECISION UNDER APPEAL:	08/09/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Medical Practitioners Act 1938 Veterinary Surgeons Act 1986
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Dr Diederick Gelderman [2000] NSWADT 117 Mayhew -v- A [1999] NSWADTAP 1 Lloyd -v- Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Clynne -v- NSW Bar Association (1960) 104 CLR 186 NSW Bar Association -v- Evatt (1986) 117 CLR 177 Law Society of NSW -v- Foreman (1994) 34 NSWLR 408 Childs -v- Walton (Court of Appeal, 13 November 1990, unreported) Health Care Complaints Commission -v- Litchfield (1997) 41 NSWLR 630 Buttsworth -v- Wlaton (unreported, Court of Appeal, 19 December 1991) Skinner -v- Beaumont 1974 2 NSWLR 106 Law Society of NSW -v- Walsh (Court of Appeal, 15 December 1997, unreported) Burton -v- Anderson (unreported, NSW Court of Appeal, 28 October 1994) Briginshaw -v- Briginshaw (1938) 60 CLR 336 United Bond Fabrics -v- Roseman [2000] NSWADTAP 13 Ileris and Comcare [1999] AATA 647 Shulver -v- Sherry (1992) 28 ALD 570 Casey -v- Repatriation Commission (1995) 39 ALD 34 Ex patre Bott (1933) 50 CLR 228 Minister for Immigration and Ethnic Affairs -v- Pochi (1980) 4 ALD 139 A & B -v- Director of Family Services [1996] ACTSC 48 Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 Sullivan -v- Dept of Transport (1978) 20 ALR 323 Priddle -v- Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506
REPRESENTATION:	APPELLANT P Dwyer, barrister RESPONDENT M Money, solicitor
ORDERS:	1 Appeal dismissed; 2 Orders 1 and 2 of 9 August 2000 confirmed, to take effect 21 days after notice of confirmation by the Registrar of the Board of Veterinary Surgeons of NSW to Dr Gelderman.

1 This is an appeal by Dr Diederick Gelderman, a registered veterinary surgeon, against the decision of the Veterinary Disciplinary Panel of the General Division of the Tribunal (the Tribunal) in Veterinary Surgeons Investigating Committee -v- Dr Diederick Gelderman [2000] NSWADT 117 (the original decision).

2 The original decision concerned a complaint to the Tribunal made by the Veterinary Surgeons Investigating Committee (VSIC) in respect of Dr Gelderman. By notice of inquiry dated 14 May 1999, the VSIC called upon Dr Gelderman to show cause why he should not be found guilty of misconduct in a professional respect, within the meaning of s 22 of the Veterinary Surgeons Act 1986 (the Act), for his treatment of two dogs ”Tara” and “Ronagh” throughout February and March 1997.

3 The Tribunal found that Dr Gelderman had been guilty of misconduct in a professional respect and pursuant to s32 of the Act made the following orders:

1. That the Respondent be suspended for 3 months from practice.
2. That the Respondent be suspended for a further 3 months from practice as hospital superintendent.
3. That the Respondent attend 20 hours continuing education in clinical procedures related to diagnosis and treatment as approved by the Veterinary Surgeons Board.
4. For the next 6 months the respondent is to ensure that the new superintendent of the respondent's veterinary hospital is to comply with any arrangement for monitoring the performance of the hospital required by the Veterinary Surgeons Board.
5. That the Respondent pay the Applicant's costs of $12,000 within 28 days.
4 Counsel for Dr Gelderman, Mr Dwyer, advised the Appeal Panel that Order 5 has been complied with; no issue is taken with Orders 3 and 4. Orders 1 and 2 are the subject of this appeal. Before turning to the grounds of the appeal, it should be noted that the respondent to the appeal took no effective part in the proceedings, other than submitting an appearance. The respondent’s Reply to the Notice of Appeal merely reserved the right to make submissions in reply to any submission by Dr Gelderman that a lesser penalty than $5000 was appropriate, in lieu of orders 1 and 2. The reasons for this approach are explained below.

Background to Orders 1 and 2
5 Following the issue of the notice of inquiry by the VSIC on 14 May 1999, and apparently in preparation for the hearing of the complaints on 9 August 2000, the parties consulted on a number of issues and formally exchanged documents upon which they intended to rely. One result of these “negotiations” was the tendering before the Tribunal of an agreed statement of facts and joint submissions as to the recommended penalty. However, the Tribunal received into evidence the documentary material upon which reliance would have been placed had the matter proceeded to hearing, in addition to a disciplinary history recording a reprimand and a caution, in relation to two complaints against Dr Gelderman, occurring in 1996.

6 The parties recommended a fine of $5000, in addition to the payment of the VSIC’s costs in a prescribed amount. The Tribunal’s decision at para 11 records the fact that, in so doing, the parties nevertheless acknowledged that the recommendation could not bind the Tribunal in the discharge of its function under the Act.

7 Dr Gelderman’s counsel below made submissions to the Tribunal on the appropriate nature of the recommended penalty, in view of the steps taken by his client to improve his practice and strengthen his professional education in the period since the complaints. These submissions were supported by two documents. The Tribunal then retired to consider the evidence and submissions.

8 On resumption, the Tribunal informed the parties that it was not satisfied that the recommended penalty was adequate in all the circumstances. It invited further submissions and heard evidence from Dr Gelderman. The Tribunal asked him a number of questions, which were answered. The Tribunal retired again. When it returned, the orders the subject of this appeal were made.

Appeal Panel’s Jurisdiction
9 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides that a party may appeal “on any question of law” and with the leave of the Appeal Panel, may extend [the appeal] to a review of the merits of the appealable decision.”

10 It is well established that “it is necessary for the appellant ... to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. See generally: Mayhew v A [1999] NSWADTAP 1 and Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3.” ; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8.

11 The Panel received some material from Dr Gelderman and he gave evidence, in the event that we gave leave to extend the appeal to a consideration of the merits. The distinction between an appeal on a question of law and an appeal on the merits is particularly important in the circumstances of this case. Unless Dr Gelderman establishes an error of law, we are not at liberty to review the penalty imposed by the Tribunal below, even if it is a penalty which we may have declined to impose at first instance.

Dr Gelderman’s Submissions
12 The errors of law identified by Dr Gelderman can be summarised as follows: first, the Tribunal erred in its interpretation and application of s 32(2) of the Act, in that it failed to give adequate regard to, or gave insufficient weight to, the words “public interest”, and second, that the Tribunal erred in that s 73(2) of the Tribunal Act, in the circumstances of this matter, required the Tribunal to adjourn the proceedings to allow further evidence to be placed before it.

The “Public Interest” Requirement Under s 32(2) of the Act.
13 Turning to the first of these submissions, we understand Mr Dwyer to argue that the purpose of any orders made pursuant to s 32 of the Act is the protection of the public; Dr Gelderman’s record since April 1997 (the date of the most recent complaint) establishes that his misconduct will not be repeated; as such the decision to suspend Dr Gelderman from practice is not necessary in order to achieve the protection of the public; in these circumstances such an order is punitive in character, and as such, is at odds with the Tribunal’s protective jurisdiction.

14 Section 32(2)(c) of the Act provides that the Tribunal must not make an order to suspend a veterinary surgeon from practice (or remove his/her name from the register of veterinary surgeons), if the Tribunal is of the opinion that “… it is in the public interest that the veterinary surgeon be allowed to continue to practice veterinary science.”

15 It is useful at this point to briefly examine the relevant principles that govern the making of orders in disciplinary proceedings against a member of a profession.

16 It is well established that disciplinary proceedings are concerned with the protection of the public; their purpose is entirely protective, it is not punitive: Clynne v NSW Bar Association (1960) 104 CLR 186 at 201-202 ; NSW Bar Association v Evatt (1986) 117 CLR 177 at 183-184 ; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 440-441 ; Childs v Walton (Court of Appeal, 13 November 1990, unreported) at 13 ; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-638. The impact of any order on the practitioner, the subject of the disciplinary proceedings, is irrelevant: Clynne v NSW Bar Association at 201-202 ; Health Care Complaints Commission v Litchfield at 637-638.

17 In determining whether a practitioner found guilty of misconduct should be permitted to continue to practice, the Tribunal must, amongst other things, balance the public interest in allowing competent practitioners to practice, against the likelihood of a repetition of the offence. “The public interest in allowing the practitioner to continue to practice must be weighed against the public interest in protecting patients from any repetition of the conduct exhibited in the case” : Buttsworth v Walton (unreported, Court of Appeal, 19 December 1991) at 15.

18 Mr Dwyer referred to the Court of Appeal decision in Skinner v Beaumont 1974 2 NSWLR 106. That case dealt with an appeal from a practitioner against a decision to remove his name from the register of medical practitioners on the ground that he had been convicted of the offence of conspiring to procure the miscarriage of various women. The Court of Appeal held that the public interest referred to in s29(2) of the Medical Practitioners Act 1938 ( which in all material respects is identical to s32 of the Act) did not require disqualification or suspension, rather a reprimand was sufficient.

19 In that decision Hutley JA (at 109 ) said :“One public interest requires that competent doctors who are willing to practice should be allowed to do so, unless there are countervailing public interests. The likelihood of repetition of the offence would be the most countervailing public interest.”

20 In our view Skinner can be distinguished from the case at hand. In Skinner, when the matter came before the Court of Appeal, the law had changed, permitting therapeutic abortions to be carried out in public hospitals, making unnecessary the referral of women to unregistered abortionists, the conduct which gave rise to Dr Skinner’s conviction. Consequently as a result of external and objective factors, the Court of Appeal could be satisfied to an extremely high standard that Dr Skinner’s misconduct would not be repeated. That is to say, the protection of the community had been achieved by legal developments, which came about between the dates of the commission of the offences and the disciplinary proceedings. Hutley JA said (at 109), “ the fact that the occasion when the appellant might be tempted will not recur (our emphasis) appears to me to be decisive.”

21 In this case there is nothing to suggest that, as a result of legal developments, progress in any other field, or some other external factor, the Disciplinary Panel could be confident that the danger of negligence in Dr Gelderman’s veterinary practice has been eliminated for the indefinite future.

22 However it is clear from the authorities that an assessment of the likelihood of a repeat of the offending behaviour is not the sole issue before the Disciplinary Panel in its determination as to whether it is the public interest to make an order to suspend (or remove) a veterinary surgeon from practice. While the purpose of orders made in disciplinary proceedings is the protection of the public, protection of the public is not confined to the protection of the public from similar defaults by the practitioner the subject of the disciplinary proceedings, but extends to the protection of the public against similar defaults by other practitioners: Law Society of NSW v Foreman at 441. “ In this sense any penalty has an element of general deterrence, publicly marking the seriousness of what the instant solicitor has done”: Law Society of NSW v Foreman per Mahoney JA at 441, referred to in Law Society of NSW v Walsh (Court of Appeal, 15 December 1997, unreported) per Beazley JA at 3.

23 Indeed, in determining appropriate orders, protection of the public against further misconduct by the offending practitioner, “is not the sole, and in some cases may not be the determining factor” : Law Society of NSW v Foreman per Mahoney JA at 440

24 In Health Care Commissioner v Litchchield at 637 the Court of Appeal referred to the relevance of disciplinary proceedings to the maintenance of professional standards:
Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.

25 It is clear from the authorities that deterrence, both general and personal, is a key principle in guiding disciplinary tribunals and courts on the appropriate sanction to impose. While it may reflect a somewhat pessimistic view of human nature, common sense and experience of the world tell us that a measure of deterrence is necessary in both the criminal and the purely protective, disciplinary spheres. That was recognised by the Court of Appeal in Foreman.

26 While this is a protective jurisdiction, if any sanctions at all are imposed upon the practitioner, they “will inescapably have a punitive consequence for the practitioner.” (Foreman per Kirby P at 413.) If, in order to secure the protection of the community, it is necessary in the public interest to impose sanctions upon a practitioner, it is an unfortunate collateral effect that the practitioner is, in effect, punished. But the person ultimately responsible for his or her misfortune is, of course, the practitioner in question.

27 It seems to us that Mr Dwyer, in effect, urges on us a very limited and unsatisfactory rendition of the meaning of “protective jurisdiction”.

Lapse of Time
28 Mr Dwyer argues that the Tribunal gave insufficient weight to a highly relevant factor, namely Dr Gelderman’s conduct in the period following the most recent complaint the subject of the Tribunal’s inquiry (April 1996) and the Tribunal’s decision (the intervening period).

29 It is clear from the authorities that in determining whether there is a likelihood that the practitioner will repeat the behaviour which gave rise to the complaint of misconduct, the conduct of the practitioner since the date of the last offence is relevant. The Court of Appeal in Health Care Complaints Commission v Litchfield at 637 said:
Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience.

30 Mr Dwyer asserts the Tribunal erred in failing to apply the Court of Appeal decision in Burton v Anderson (unreported, NSW Court of Appeal, 28 October 1994). He contends that Burton is authority for the proposition that, where there has been a significant lapse of time between the misconduct, the subject of the disciplinary proceedings, and the decision of the relevant court or tribunal, and there has been no default on the part of the practitioner in that period, an order to suspend the practitioner, can only be seen as punitive. As such, any such decision is not in keeping with the Tribunal’s protective jurisdiction. Mr Dwyer concedes that the Tribunal referred in its decision to Burton v Anderson but asserts they incorrectly applied that decision.

31 A close reading of the decision in Burton v Anderson shows that Kirby P only reluctantly agreed with the reasons given by Priestley JA (with whom Handley JA agreed). He said (at 7-8):

The high professional standards of veterinary surgeons must be maintained to ensure that such serious, repeated and prolonged professional misconduct, amounting to seriously incompetent attention, do not occur. What is at stake is not just the good reputation and standards of veterinary surgeons. Nor is it the sensibilities of the owners of animals such as the dog Lisa. It is the protection of the animals who come into the care of veterinary surgeons from incompetence and neglect which extend unnecessarily their pain and suffering… On the face of it the appeal should be dismissed without disturbance of the Tribunal’s orders…
But that leaves the passage of three years, the intervening practice, mainly on his own, the uncontested evidence of numerous operative and like procedures and the absence of further evidence of complaint, which would surely have been brought to our notice had there been any.
I regard the matter as marginal. I am most reluctant to disturb an order which I consider to have been right when it was made… In the result, most reluctantly, I am not prepared to dissent from the course which other members of the court favour…
32 Priestley JA did not discuss in very much detail at all his view that the suspension should be lifted. He clearly exercised a discretion, but certainly did not set out to establish a principled argument for the position Mr Dwyer now argues. It obviously depends on all the circumstances. In our view, no error was made by the Tribunal as it took the delay into account as one factor among several. This was the appropriate course, and was, in fact, the course which was followed by the Court of Appeal in Burton v Anderson.

33 We do not accept that Burton v Anderson can be elevated, as suggested by Mr Dwyer, to authority for the proposition that an order to suspend can only be seen as punitive, where there has been a considerable lapse of time between the misconduct and the tribunal’s decision, and no complaints have been levelled against the practitioner in that period. While relevant, the Tribunal is obliged, as it did, to consider all relevant circumstances.

34 In the original decision (at paras 37- 55) the Tribunal set out in some detail the factors it took into account in determining that the recommended penalty was not sufficient in the public interest. These included:

(i) The gravity of the conduct admitted by Dr Gelderman;
(ii) Dr Gelderman’s disciplinary history;
(iii) Dr Gelderman's experience and status;
(iv) Improvements that have been pursued by Dr Gelderman since 1997.
35 The Tribunal expressly acknowledged that any order made should not be punitive but it was appropriate that it contain an element of deterrence :
In our view a fine is not an appropriate sanction in cases involving experienced practitioners with a prior adverse record where the misconduct is as serious as that admitted in this case. Sanctions should be used which focus, if practicable, on the conduct that has given rise to the proceedings. While they should not be punitive, they should take a form, which is likely to operate as a deterrent to other practitioners, and reflect broader community values in relation to the importance of the welfare of animals and the need to uphold the confidence of the community in standards of veterinary practice.

36 We can discern no error on the part of the Tribunal in taking the approach that it took. This ground of appeal fails.

The Tribunal’s Obligations Under s 73(2) of the Tribunal Act.
37 Section 73(2) provides that :
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

38 Dr Gelderman’s submission was that, in view of the Tribunal’s broad inquisitorial powers, it bore a responsibility to indicate to the parties its lack of satisfaction with the evidence produced before it on the question of penalty, and should have adjourned the proceedings to allow further evidence, including evidence of peer review, to be called. Reduced to its essence, the submission alleges that Dr Gelderman was denied procedural fairness by the imposition of a penalty other than that recommended by the parties, when no opportunity was granted to him to call further evidence to address the Tribunal’s concerns and no clear notice of its intention to impose the penalty it imposed was given to him. The submission assumes that, had Dr Gelderman been permitted to place further material (of the nature placed before us) before the Tribunal, it would necessarily have reached a different conclusion on the question of penalty. In the course of his submissions to us, Mr Dwyer contended that the Tribunal had acted on the basis of “inexact proofs”, contrary to the standard required by Briginshaw v Briginshaw (1938) 60 CLR 336.

39 The principles relating to the observance of the rules of natural justice and of procedural fairness in the context of tribunals, not bound by the rules of evidence, were the subject of comment in United Bond Fabrics v Roseman [2000] NSWADTAP 13. It is appropriate that we set these out in full :-

In Ileris and Comcare [1999] AATA 647 a useful summary of the authorities and the principles to be extracted therefrom appear in the course of a decision which examines the effect of s 33(1) of the AAT Act. In brief, they are :-
A provision which allows a tribunal to disregard the formal rules of evidence dispenses with the need for material to meet strict criteria of admissibility before it becomes evidence in the proceedings. The material must nonetheless be relevant to the issues in the proceedings in the sense that it is capable of establishing the existence or non-existence of relevant facts.

Shulver v Sherry (1992) 28 ALD 570 ; Casey v Repatriation Commission (1995) 39 ALD 34
Such a provision does not justify any departure from the requirement to observe procedural fairness or the rules of natural justice. Procedural fairness obliges the tribunal to give a fair opportunity to a party to meet material, adverse to that party’s interests, which has been admitted into evidence, by testing that evidence in cross-examination and/or by calling evidence to contradict it and/or being heard in respect of it by way of submissions.

Ex parte Bott (1933) 50 CLR 228 ; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 ; A & B v Director of Family Services [1996] ACTSC 48 ; Casey.
Section 73(2) of the ADT Act represents a legislative statement of 2 above.
An extensive statement of the requirements of procedural fairness in the context of a tribunal not bound by the rules of evidence appears in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 4.
“In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.”

40 When regard is had to the course of the proceedings in the instant matter and, in particular, to the course of the hearing giving rise to the decision of 9 August 2000, the Panel is not persuaded that Dr Gelderman was not given a fair opportunity to meet material adverse to his interests, in that he was permitted to present and give evidence and was heard in respect of it by way of submissions. As has already been noted above, the hearing before the Tribunal was wholly confined to the question of penalty ; the material before the Tribunal was tendered by consent, including two documents tendered by Dr Gelderman, which supported the submissions made on his behalf relating to improvements in his practice and additional professional training. Dr Gelderman and his legal representatives were quite specifically informed that the Tribunal was not satisfied that the recommended penalty was adequate in all the circumstances, that is, they were under notice that the Tribunal was minded to impose a greater penalty than anticipated. The Tribunal quite clearly extended to Dr Gelderman the opportunity to address its concerns (see para 14 of the decision). He did not seek an adjournment. He was legally represented at all stages of the proceedings. His legal representatives knew in advance of the hearing that penalty was the only issue ; thus, the Tribunal was entitled to assume that the matter had been prepared on that basis and that all the material relevant to that question, which Dr Gelderman wished to place before the Tribunal, was before it. If Dr Gelderman’s legal representatives were of the view that the Tribunal was in danger of determining a penalty on the basis of “inexact proofs”, it was incumbent on them to say so.

41 The Tribunal’s broad inquisitorial powers do not impose upon it an obligation to run a party’s case. A similar submission to that made here was met with the following in Sullivan v Dept of Transport (1978) 20 ALR 323 :
The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478 ; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the [Administrative Appeals Tribunal] Act [1975 (Clth)] nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. (at 343)

42 We are of the view that the Tribunal gave Dr Gelderman a reasonable opportunity to present his case on the question of penalty. There was no denial of procedural fairness in the circumstances outlined above. This ground of appeal also fails.

Orders
43 The appeal is dismissed. The operation of orders 1 and 2 made by the Tribunal was stayed by the lodgement of the appeal : s 32(6) of the Act. Having determined the appeal against Dr Gelderman, we confirm orders 1 and 2, and order that they take effect 21 days after notification of their confirmation by the Registrar of the Board of Veterinary Surgeons of NSW to Dr Gelderman.

44 The only remaining question is whether an order for costs on the appeal should be made in the circumstances of this case. The legal representatives of the VSIC submitted that they should recover the costs of the appeal in the event that Dr Gelderman was unsuccessful. Costs orders are rare in this jurisdiction, although the VSIC has argued that the Act which regulates appeals from disciplinary proceedings displaces s 88 of the Tribunal Act. Without deciding that issue, we are of the view that no order as to costs should be made in the particular circumstances of this case, primarily on the basis that the appeal was contested to a very limited extent.