Howe v Veterinary Surgeons Investigating Committee (GD)

[2003] NSWADTAP 14

Appeal Panel - Internal

CITATION:	Howe -v- Veterinary Surgeons Investigating Committee (GD) [2003] NSWADTAP 14
PARTIES:	APPELLANT Dr Peter Allan Howe RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	039033
HEARING DATES:	27/05/2003
SUBMISSIONS CLOSED:	05/27/2003
DATE OF DECISION:	05/29/2003
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191; Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 156
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; McGilvray G - Member
CATCHWORDS:	interim order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	023033
DATE OF DECISION UNDER APPEAL:	05/13/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Veterinary Surgeons Act 1986
CASES CITED:	Barwick -v- Law Society of New South Wales (LSD) [2002] NSWADTAP 21 Robb and Rees v The Law Society of the Australian Capital Territory (unreported, Fed Ct, 21 June 1996) New South Wales Bar Association v Stevens [2003] NSWCA 95 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 Devries v Australian National Railways Commission (1993) 177 CLR 472 Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 CDJ v VAJ [1998] HCA 67 Law Society of New South Wales -v- Young (No.2) (LSD) [2001] NSWADTAP 19 Z -v- University of A, Dr D & B (No.4) [2002] NSWADT 14 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 Howe v Administrative Decisions Tribunal of New South Wales & ors [2003] NSWSC 157
REPRESENTATION:	APPELLANT P Robinson, solicitor RESPONDENT M Wade, solicitor
ORDERS:	1. The application is dismissed; 2. The decision in relation to the costs of the application is reserved; 3. Matter to be re-listed before the President for directions.

1 The appellant, Dr Howe, a registered veterinary surgeon, has been found guilty of professional misconduct by a Veterinary Disciplinary Panel of the General Division of the Administrative Decisions Tribunal (the Tribunal) exercising jurisdiction conferred by the Veterinary Surgeons Act 1986 (the Act), Part 4, Division 4. The findings in relation to guilty were the subject of a decision delivered on 30 September 2002. The Tribunal also issued 'proposed final orders' of a kind permitted to be made pursuant to s 32 of the Act. The proposed final orders were the subject of a further hearing on 9 December 2002, with written submissions closing on 13 January 2003. The proposed final orders were confirmed in a decision issued on 13 May 2003.

2 The orders were that the name of Dr Howe be removed from the register of veterinary surgeons (as permitted by s 32(1)(c) of the Act). The Tribunal further ordered that he may apply for restoration of his name to the register after two years from the date its decision came into effect (as permitted by s 32(4) of the Act). The Tribunal also made orders as to costs (as permitted by s 32(1 )(f) of the Act); as to the revocation of suppression orders made pursuant to s 75 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act); and declared that these orders were not to take effect until 21 days after the 'Registrar' gives notice of the order to Dr Howe (reflecting the requirement of s 32(6) of the Act).

3 The Registrar for the purpose of s 32(6) is the Registrar of the Board. Consequently the Tribunal's orders will, if the Registrar gave notice on 13 May 2003, commence to operate as from Wednesday 4 June 2003.

4 The Act gives, as relevant to this case, the veterinary surgeon a right of appeal against orders made under s 32 to the Appeal Panel of the Tribunal: s 34(1). The appeal procedure and the grounds of appeal are governed by the Tribunal Act, Chapter 7, Part 1.

5 On 22 May 2003 the appellant lodged an internal appeal to the Appeal Panel of the Tribunal pursuant to s 113(1) of the Tribunal Act. There is an unfettered right of appeal in relation to questions of law, while an appeal may extend to the merits with the leave of the Panel: s 113(2).

6 The Notice of Appeal set out 9 alleged errors of law in the reasoning of the Tribunal on the question of guilt. The notice sought the leave of the Appeal Panel to extend the hearing to the merits. It set out 15 reasons for extending the appeal to the merits.

7 The notice was accompanied by an Application to the Appeal Panel for an Urgent Interlocutory Order. That Application is the subject of this decision.

8 Section 116 of the Tribunal Act provides:

'116. Appeal does not stay decision

Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision.'

9 The order sought was expressed as being a 'stay of the decision of the Tribunal dated 13 May 2003, whereby his name is to be removed from the Register of Veterinary Surgeons for two years.' It transpired at hearing that a stay of two of the three substantive orders was sought, i.e. the order of deregistration; and the order revoking the suppression orders. The appellant did not seek a stay of the costs order and indicated a preparedness to give an appropriate security for costs pending determination of the appeal.

10 In this instance Dr Howe has been found guilty of misconduct of great seriousness. He has been found to have issued a veterinary certificate, as required by Australian export laws, guaranteeing that the sperm of a ram had been tested and was free from brucellosis. The sperm was intended for export and use in sheep-breeding in New Zealand. Brucellosis is an infection that causes infertility and it is spread by semen. Ovine brucellosis can if detected cause entire flocks of sheep to be quarantined, leading to potentially serious financial consequences for farmers. Australia and New Zealand have arrangements under which there are accredited brucellosis free flocks. The giving of such certificates is a key aspect of the quality assurance standards observed by Australia in its international trade in animal and agricultural products.

11 The Department of Agriculture placed this complaint before the Veterinary Surgeons Investigating Committee. It has consistently expressed concern that any lapse in the standards of certification of export sperm could place Australia's reputation at risk internationally, and affect trade generally in reproductive materials.

12 The case put against Dr Howe by the Committee was contained in the initiating application, headed' Application for Original Decision: Referral of Complaint under Veterinary Surgeons Act 1986, Section 28(1)(c)'. The application referred to the Tribunal two complaints, one alleging misconduct or serious misconduct by Dr Howe (as to which, see s 26(1)(c) of the Act); the other alleging that Dr Howe is not of good character (as to which, see s 26( 1)( e) of the Act).

13 The application then sets out ten 'Particulars of Complaint'. On closer scrutiny it becomes apparent that the Particulars have two separate parts. The first part recites as particulars assertions of fact relating to Dr Howe's conduct and the surrounding circumstances, that is particulars in the usual sense in which that term is used.

14 The second part then makes allegations as to how those particulars, if proven, contravene specific standards applying to registered veterinary surgeons (the standards being drawn from the Act, the Code of Conduct made pursuant to the Act or the common law) and it is said thereby establishing the primary complaints.

15 Of the ten 'Particulars of Conduct' seven were found proven by the Tribunal being Particulars 2, 3, 4, 5, 6, 7 and 9. These Particulars relate to the following events, in summary:

16 As to 2: Giving of a certificate on or about 14 April 1997 in connection with the intended export of the semen (the Certificate) that the ram had been subjected to tests with negative results for brucella ovis using the complement fixation test while it was being held for two months in quarantine at Dr Howe's artificial insemination centre at Mudgee, when that had not occurred and Dr Howe should have been realised would have been relied upon for export purposes.

17 As to 3: Forwarding on or about 29 April 1997 a consignment of pellets of the semen accompanied by the Certificate to Dr Gregory of Livestock Breeding Seryices of Jerilderie (referred to herein as the Export Service which was retained by the prospective exporter in Tasmania to arrange the export of the semen) in circumstances where Dr Howe knew or should have known that it was erroneous in several respects.

18 As to 4: In response to a query from the Export Service stating in a fax sent on or about 21 May 1997 that a test had been conducted at or about the time the ram entered quarantine in December 1996, when he knew or should have known that its contents were erroneous in several respects.

19 As to 5: On the same day making a statement by letter to the Exporter Service to similar effect as the fax, when he knew or should have known that its contents were erroneous in several respects.

20 As to 6: On the same day sending to the Export Service by fax the Certificate when he knew or should have known that its contents were erroneous in several respects.

21 As to 7: On the same day in response to further queries sending by fax to the Export Service a document purporting to be a laboratory report (the Laboratory Report) from the NSW Department of Agriculture laboratory at Menangle purporting to be an interim report relating to the testing of the ram, said to have been issued on 19 December 1996. Dr Howe was alleged to have forged the Laboratory Report (or to use the word preferred in the proceedings to have 'concocted' it).

22 As to 9: On or about 25 June 1997 sending a fax to the Export Service asserting that certain procedures had been followed by Dr Howe in relation to the testing of the ram, when he knew or should have known that its contents were erroneous in several respects.

23 As noted the second part of the 'Particulars' involved allegations of specific forms of professional misconduct. There was some variation as between the Particulars as to which allegations were made. In summary the allegations included the following: that Dr Howe had contravened various standards such as those relating to the giving of certificates, misleading the Export Service, engaging in conduct likely to damage the international reputation of Australia, engaging in conduct likely to mislead the government agencies in Australia and New Zealand overseeing such exports, failing to observe the standards generally expected of veterinary surgeons by the community, and in relation to each Particular engaging in conduct that was dishonest.

24 In the case of the particulars found proven the "Tribunal also found all allegations made out, and the primary complaints established.

25 In addition to the above findings, the Tribunal also gave weight in the making of its findings as to guilt and orders to conduct on Dr Howe's part that came to notice in the course of the hearing. Dr Howe had sought in order to prove the genuineness of the making of tests by him on or about 16 December 1996, prior to reception into quarantine, by relying on a consignment note dated 16 December 1996. He said that the consignment note proved that he had sent samples to the Department of Agriculture at Orange that day, which had given rise in turn to the Laboratory Report.

26 The note contained a contact fax number for Dr Howe. The Tribunal questioned whether Dr Howe could have had such a fax number at that time, as it contained a number sequence which had, it was suggested, only been introduced in the Australian telecommunications system at a later time (the system that shows a two digit area code followed by an eight digit local number). The Tribunal found that the number 'did not have the phone number ... until 18 August 1997': Veterinary Surgeons Investigating Committee -v- Howe [2002] NSW ADT 191 (Howe (No 1), reasons for decision, para [28]. Dr Howe denied that he had fraudulently concocted this note.

27 The Tribunal dealt with the consignment note in connection with Particular 2 at paras [94] - [96]:

94. Dr Howe provided a consignment note to the Tribunal in support of his allegation that he had sent the sample for testing at Orange on 16 December 1996. Dr Howe was unable to provide any credible explanation to the Tribunal as to why he wrote a phone number on that consignment note which was not allocated to him until eight months later. We do not accept Dr Howe's evidence that he filled out the consignment note on 16 December 1995. Similarly, we do not accept his evidence that he sent any samples to the laboratory at Orange, or to any other laboratory, on that date.

95. Neither the laboratory at Orange, nor the EMAI laboratory at Menangle, has any record of receiving a sample from Dr Howe in December 1996. Dr Howe could not explain why, if he sent the samples to Orange, the person he spoke to on the phone could not assist him when he allegedly phoned to make inquiries. Similarly, Dr Howe could not explain why, if he sent the samples to Orange, he received an interim report from another laboratory, EMAI at Menangle.

96. In addition, Dr Howe could not provide any records from his files or research data supporting his allegation that he took any samples from SM3 on that day or that he received any result from the EMAI. Given Dr Howe's research experience and his concern with 8M3's fertility, he would have had a record of all tests he requested and the results if they had been carried out. His assertion that "If I looked hard, I could find it" is unconvincing. Given the seriousness of these complaints, Dr Howe would have found his records of the testing if such records existed.

28 The significance of this matter is that it bore on the findings in relation to misconduct in respect of not having conducted a test, and more significantly, on the penalty imposed. It was seen as a matter going to present fitness to continue in practice.

29 In its penalty decision, Veterinary Surgeons Investigating Committee -v- Howe (No.2) [2003J NSW ADT (13 May 2003) (Howe (No 2), the Tribunal made the following references to the consignment note.

'34. There is no dispute that several of the circumstances on which the complaints were based overlap. However, Dr Howe was not involved in a single act of deception. He committed several dishonest acts culminating in an act of deception in the course of the Tribunal proceedings, namely the presentation in evidence of a concocted consignment note.

39. In the VSIC's view, Dr Howe has clearly demonstrated to the Tribunal by his conduct with respect to the fabricated consignment note that no such reformation of character has occurred.

30 We have drawn attention to the reasons as they relate to the consi2nment note because of its connection to one of the issues raised by the notice of appeal, discussed below.

Criteria relevant to Staying the Operation of Disciplinary Orders
31 In Barwick -v- Law Society of New South Wales (LSD) [2002] NSW ADT AP 21, a case dealing with the application for stay of similar disciplinary orders, the Appeal Panel referred to five criteria as relevant to the exercise of the discretion to stay such an order, namely:

(i) Arguability of the grounds of appeal
(ii) The seriousness of the misconduct found
(iii) The likely prejudice to public confidence both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay
(iv) The means available to mitigate the prejudice alleged
(v) The expedition with which the appeal can be heard.
32 These criteria were drawn from the observations of Finn 1 in Robb and Rees v The Law Society of the Australian Capital Territory (unreported, Fed Ct, 21 June 1996). Finn l's tests were recently referred to with approval by the Court of Appeal in New South Wales Bar Association v Stevens [2003] NSWCA 95 (24 April 2003; Spigelman CJ, Meagher, Sheller J1A) and see esp per Spigelman CJ at [83]-[104].

33 There the Court of Appeal found that a judge had erred in deciding to grant a stay a statutory decision to cancel the practising certificate of a barrister. The judge had erred in that he had exercised his discretion on the basis of considerations relevant only to civil proceedings.

34 There is a 'public interest dimension' to the question of the grant of stays in disciplinary proceedings. It sets the standards applicable to the exercise of the stay discretion apart from those relevant to private litigation. The public interest dimension is that of protection of the public. The protection of the public is a consideration of high importance in the criminal law and in disciplinary proceedings: see further per Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 cited with approval by Spigelman CJ at [103].

35 The object of professional discipline generally is protection of the public, and in the case of veterinary practice there is a further objective of great significance, the protection of the welfare of animals.

36 The following analysis adopts the criteria used by Finn J, which also provided the framework for the submissions made by Ms P Robinson, who appeared for Dr Howe.

(i) Arguability of grounds of appeal
37 Some care must be exercised in approaching this question. The final hearing of the points of appeal should not be brought forward into the environment of a preliminary hearing.

38 The errors alleged in the notice of appeal seek primarily to challenge the Tribunal's ruling allowing in the evidence of a forensic document expert relating to the Laboratory Report. It was said that the Tribunal erred in allowing the evidence to be received in circumstances where a brief had been given by the instructing solicitors which may have unduly influenced his opinion. The points of appeal relevant to this objection are points 1, 2, 3, 4(a) and 7. The Tribunal overruled this objection, which might be characterised as the 'supine expert' objection. The Tribunal commented favourably on the strength and quality of the expert's evidence, and found proven the allegation that Dr Howe had forged the report by selectively combining two unrelated documents to produce a composite false document: see reasons for decision [60]-[64]. We doubt the prospects of success of this group of points of appeal.

39 Of the other 4 points of appeal, two challenged the way in which the evidence of two other witnesses for the Committee was dealt with by the Tribunal. It is well recognised that challenges to the way in which a primary trier of fact deals with evidence are very difficult to establish as involving errors of law: see for example Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479. Their Honours observed that it is not sufficient to justify interfering with the trial judge's finding that 'the appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact'. An Appeal Panel does not have the advantage that the trier of fact has in being able to observe the witnesses give their evidence: see generally Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 and 281 per McHugh JA. The Appeal Panel has applied the principles laid down in the Court of Appeal and the High Court as to the importance of not lightly interfering with the fact-finding process of the trial judge or the primary tribunal: see, for example, Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSW ADT AP 8 at [39]-[63].

40 In this instance there is a challenge to the evidence given by an officer at the Department of Agriculture responsible for signing laboratory reports that he was on leave and could not have signed the Laboratory Report on the date shown (Ground 5(b». There is also a challenge to a more junior officer involved in the process of issuing laboratory reports (Ground 5(c» of an extremely tenuous kind.

41 The other two objections are more generalised objections to aspects of the fact-finding process. The vagueness of one of them, Ground 4(b), is reflected in its formulation: 'The Tribunal made findings not open to it and speculated in relation to the appellant's records'. At the present hearing it emerged that what was being referred to were observations made by the Tribunal that the appellant had failed to produce records that he claimed he had supporting his version of events. The relevant passage was quoted earlier in these reasons. This does not seem like a strongly arguable point of appeal.

42 Finally in Ground 5(d) the objection is that the Tribunal took account of irrelevant considerations and about which the evidence was 'to the contrary' in para [120] of its reasons. This is either a weight of evidence or relevant considerations objection. We have scrutinised para [120]. On its face it appears to deal with matters relevant to a disciplinary proceeding (rejecting submissions of counsel for Dr Howe as to Dr Howe's state of knowledge of certain systems relevant to the fabricated report and the absence or otherwise of a private pecuniary motive for engaging in such conduct).

43 Of the points raised at hearing one of those found in the reasons for seeking extension of the appeal to the merits seemed to us to have the most present apparent strength. We have referred above to the Tribunal's reference to the consignment note issue, and the crucial nature of the evidence it received as to the timing of the roll-out of the 10-digit telephone numbering system.

44 Dr Howe has now produced advice from senior officers of Telstra dated 15 and 16 May 2003 which may be inconsistent with the evidence from Telstra that the Tribunal relied upon. Dr Howe's evidence was that he recalls putting the 10-digit number on the consignment note. The advice he has obtained from Telstra supports the possibility that he had been issued that number in November 1996, even though the connection itself did not commence to operate until some time after January 1997.

45 If sustained that evidence is more favourable to Dr Howe than that relied upon by the Tribunal. It could possibly affect the conclusions formed by the Tribunal on the question of guilt in relation to Particular 7 and on the question of present fitness as addressed in the penalty decision.

46 The Appeal Panel has acknowledged that subject to strict pre- conditions an Appeal Panel on a question of law appeal might have cause to consider further evidence, at least to the extent of assessing whether it is significant enough to direct the original tribunal to consider it.

47 Dixon CJ observed in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444:

'If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence ... could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely at to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.'
48 See further CDJ v VAJ [1998] HCA 67 and Law Society of New South Wales -v- Young (No.2) (LSD) [2001] NSWADTAP 19.

49 The tests posed by Dixon CJ give some indication of the difficulty of succeeding on this ground. Nonetheless it does appear at the moment to be a reasonably arguable ground of appeal.

50 It is unnecessary to deal in detail with the submissions of Mr Wade for the prosecutor on the other grounds.

51 As to the consignment note issue, Mr Wade submitted that even if the evidence which Dr Howe now seeks to bring forward proves accurate, there was much other evidence before the Tribunal negative to Dr Howe and which firmly supported its finding in relation to the Laboratory Report and other aspects of the conduct in issue in relation to December 1996.

(ii) The seriousness of the misconduct found
52 There can be no doubt that the misconduct found was of great seriousness. It involved a senior practitioner in a trusted position in relation to sensitive international documentation engaging in fabrication and dishonesty as to the tests he had done and the issuance of certificates and the making of other statements. This proposition was not disputed by Ms Robinson for Dr Howe.

(iii) The likely prejudice to public confidence both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay
53 Mr Wade referred to the nature of the conduct proven and the need for members of the community to have confidence in the authenticity and accuracy of the contents of certificates and statements, and the carrying out of the procedures upon which the certificates rely.

54 Ms Robinson on the other hand pointed to the effect of the immediate operation of the orders on Dr Howe personally and on his practices. He has two practices, a large animal practice at Mudgee (which includes a quarantine facility to which the ram in question was sent for testing and clearance) with 1 employee; and a small animal practice at Umina on the Central Coast. The latter practice is, we were informed, his main source of income. It has 10 employees who include registered veterinarians. Dr Howe is the licensee and supervisor of the practice. We were told that because of knowledge of these proceedings Dr Howe's reputation had already suffered badly in the Mudgee District and he was not getting any significant work in respect of large animals, the focus of that practice. Dr Howe spends most of his time at the Umina practice. Ms Robinson said that Dr Howe would be financially destroyed if the orders came into effect immediately, and he would be forced to layoff all staff at Umina.

55 These are possibilities that should, we consider, have been contemplated by Dr Howe ever since formal investigation, and more significantly, a formal notice of inquiry was initiated against him. These are consequences which necessarily follow from the making of disciplinary orders involving deregistration. In the present instance Dr Howe has been on notice since 30 September 2002 of the orders likely to be made against him. They were confirmed in May 2003. He has had several months in which to contemplate the potential impact of the orders and. the need, possibly, to make arrangements for the future of the practices to cover, at least, the two years he would be unable to practise.

56 Dr Howe's personal concerns must be set against the public interest in ensuring that practitioners found to have grossly misconducted themselves not be allowed to continue to deal with the public.

57 In this regard Ms Robinson pointed to the unblemished record of Dr Howe since admission to the profession in 1972 until the time of the events in question, 1996. Since then she said there had since been one complaint against him (in respect of diagnosis of a small animal at Umina), presently under investigation. This record was acknowledged by the Tribunal below in its reasons. It nevertheless saw as of greater significance the dishonesty found against Dr Howe, and his lack of remorse or contrition.

58 We see no good reason at this preliminary stage of the appeal process to question the Tribunal's conclusions in this regard.

(iv) The means available to mitigate the prejudice alleged
59 It is clearly not desirable that a practitioner exercising a right of appeal be left in the situation where if successful on appeal he or she has no practice to return to. This concern led to a

discussion at hearing between the Appeal Panel and the parties as to whether it might be possible to leave Dr Howe with some limited connection to his practices such that if he succeeded in the appeal the practices were still there to return to.

60 Dr Howe is a licensed to conduct a veterinary hospital (see Act, Part 6) and is also in the case of Umina the 'superintendent' (the manager nominated by the licensee, who can nominate himself or herself: see Act, s 54).

61 Only registered veterinary surgeons may be a licensee or a superintendent. If deregistered, Dr Howe loses both statuses.

62 One option that commended itself to the Appeal Panel as a possible approach which might minimise the prejudice of his deregistration for the Umina community and the staff at the practice, without putting the wider public interest at risk, was to leave Dr Howe as a 'licensee' but prevent him from practising in any way pending determination of the appeal. Another possibility which commended itself was to have the 'licence' somehow held in trust by a veterinarian of standing nominated by the Board of Veterinary Surgeons pending the outcome of the appeal. Under both of these approaches there would be a requirement that a new approved supervisor be installed.

63 Following discussion at hearing the Committee indicated that none of these were practical options having regard to the specific requirements set out in the Act and related regulations. We do not pursue the question further in these reasons.

(v) The expedition with which the appeal can be heard.
64 There are no unusual delays in the listing of appeals for hearing in the Tribunal. The appeal can be brought on as quickly as the timetable agreed by the parties allows. This factor counts against grant of a stay order.

Conclusion as to Order 1
65 In summary the factors examined weigh against grant of a stay. There is one point of appeal which may have some merit (the consignment note information, yet to be allowed into evidence and yet to be tested). The others appear at this stage to be weak. The public interest considerations strongly favour maintenance of the Tribunal orders.

66 We are not satisfied that the discretion to grant an order staying Order 1 of the Tribunal's decision should be granted.

Order 3
67 There are somewhat different issues arguably relevant to the question of whether Order 3 (the suppression orders) should be stayed. The formal order was as follows:

The orders made under s 75(2)(b)(i) and (ii) in relation to Dr Howe and all witnesses is revoked.
68 The provisions of s 75 presently relevant are:
'75. Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make anyone or more of the following orders:
...
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).'
69 Dr Howe says that once there is wider knowledge of these proceedings, his reputation will be effectively destroyed and his ability to return to practice destroyed. In particular it is said that he will no longer be able to pursues his first 'love', research. It is said that Dr Howe has been a leader in research into male-mediated infertility in animals. The Tribunal questioned in its reasons the strength of these submissions in respect of his research in recent years.

70 There is a significant countervailing public interest in transparency of legal proceedings, and in being provided with information in relation to providers of services, especially providers of professional services, who are the subject of disciplinary proceedings. There is a public right to know about these things. As the Appeal Panel noted in Z -v- University of A, Dr D & B (No.4) [2002] NSWADT 14:

[8] Section 75(1) of the Tribunal Act reflects the general principle that justice should be administered openly, whether in a court or in a tribunal. In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 Kirby P (as he then was) said the following:

"... by our tradition, the open administration of justice is the rule. Statutory derogation from opennes is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construted. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice: see Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 133, 135-136; 29 ALR 228 at 233 - 234, 236: see also Re Armstrong and State of Wisconsin (1972) 7 CCC(2d) 331; CB v The Queen (1982) 62 CCC (2d) 107."

See also John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, particularly at 143.

[9] Consistent with the remarks quoted above, McHugh JA (as he then was) made the following observation in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476:


"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule."
71 The investigation of the complaint against Dr Howe was conducted, appropriately, confidentially as were the initial processes before the Veterinary Surgeons Investigating Committee. Charges of gravity should only be laid with care and prosecuted fairly and professionally. There is nothing in this case to suggest that these standards were departed from in any way. The point at which the public would ordinarily become apprised of serious disciplinary allegations which, if proven, might lead to an order of deregistration would be the opening of proceedings before the public tribunal. In this instance the discretion given by s 75 of the Tribunal Act was exercised favourably to Dr Howe. He has now been the subject of serious, adverse findings. The public interest in being apprised of these proceedings is now clearly much greater.

72 At hearing the Committee indicated that it did not object to a stay order being granted in relation to Order 3, thereby permitting the suppression orders to continue.

73 We have given the competing considerations close consideration, but are now of the view that the public interest in open justice is greater than the interests in reputation advanced by Dr Howe, now the subject of a finding of disgraceful conduct (to use the adjective found in the common law formulation of professional misconduct). Moreover we note that there are now two decisions of the Supreme Court published without restriction bearing on the present case, in which Dr Howe is referred to by name and where reference is made to the adverse findings against him and the nature of the orders: see Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120; and Howe v Administrative Decisions Tribunal of New South Wales & ors [2003] NSWSC 157.

74 Had the primary application been granted (stay of Order 1), our view may have been otherwise.

Costs
75 The Committee alluded to the high costs it had already occurred. (There have been Supreme Court and Court of Appeal proceedings also mounting objections to the Tribunal's order- making process.) As noted earlier there was no application to stay the costs order of the Tribunal.

Order
1. The application is dismissed.

2. The decision in relation to the costs of the application is reserved.

3. Matter to be re-listed before the President for directions.