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Gelderman v Veterinary Surgeons Investigating Committee (GD)

Gelderman v Veterinary Surgeons Investigating Committee (GD)

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Case Copied 24 August 2001 21 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWADTAP 27
Decision Date: 08/24/2001

CaseChat Overview and Summary

Gelderman v Veterinary Surgeons Investigating Committee (GD) was a case heard by the New South Wales Court of Appeal. The appellant, Dr Gelderman, was a registered veterinary surgeon who faced charges of professional misconduct brought against him by the Veterinary Surgeons Investigating Committee. The primary dispute was over the validity of penalties imposed on Dr Gelderman following findings of professional misconduct. The Court of Appeal was tasked with determining the legality and appropriateness of these penalties.

The central legal issues revolved around whether the penalties imposed on Dr Gelderman were justified and within the powers of the Investigating Committee. Specifically, the court had to consider whether the penalties were proportionate to the misconduct found, and if the process leading to the penalties adhered to the necessary legal standards. Another key issue was whether the penalties constituted an unjustifiable interference with Dr Gelderman's professional rights.

The court examined the statutory framework governing the disciplinary actions of the Investigating Committee, as well as relevant case law on penalties and professional misconduct. The Court concluded that the penalties were both justified and proportionate to the misconduct found. The reasoning included that the Investigating Committee had followed a fair process, and the penalties were in line with similar cases and statutory provisions. Consequently, the appeal was dismissed, and the penalties upheld, with the operation of the Tribunal's orders stayed pending the appeal's outcome. The court confirmed the orders, with effect to take place 21 days after notification by the Registrar of the Board of Veterinary Surgeons of NSW to Dr Gelderman.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.