Howe v Veterinary Surgeons Investigating Committee (GD)

[2004] NSWADTAP 2

Appeal Panel - Internal

CITATION:	Howe v Veterinary Surgeons Investigating Committee (GD) [2004] NSWADTAP 2
PARTIES:	APPELLANT Peter Allan Howe RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	039033
HEARING DATES:	21/10/2003
SUBMISSIONS CLOSED:	12/18/2003
DATE OF DECISION:	02/09/2004
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191 & Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 156
BEFORE:	Nader J QC - ADCJ (Deputy President); Montgomery S - Judicial Member; McGilvray G - Member
CATCHWORDS:	admissibility of evidence - evidence - fresh evidence - expert witness - objectivity of - leave to extend to the merits - opportunity to be heard - penalty
MATTER FOR DECISION:	Principal 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:	Bunning v. Cross (1977-8) 141 CLR 54 CDJ v VAJ (1998) 197 CLR 172 Council of City of Greater Wollongong v Cowan (1954) 93CLR 435 Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378 Howe v Administrative Decisions Tribunal of NSW & ors [2003] NSWSC 157
REPRESENTATION:	APPELLANT A Stenmark SC, counsel RESPONDENT M Wade, solicitor
ORDERS:	Appeal dismissed

1 This is an appeal under section 112 of the Administrative Decisions Tribunal Act 1997 ("the Act")by Dr Peter Allan Howe ("the Appellant") from an appealable decision of the General Division of the Administrative Decisions Tribunal ("the Tribunal") given on 30 September 2002.

2 The Proceedings, in which disciplinary relief was sought by the Veterinary Surgeons Investigating Committee ("the VSIC"), concerned events in 1996-1997.

3 The complaints made to the Tribunal against Dr. Peter Howe by the VSIC were that:

Dr. Peter Allan Howe had been guilty of misconduct, or serious misconduct, in a professional respect, pursuant to section 26(1)(c) of the Veterinary Surgeons Act 1986.

Dr. Peter Allan Howe is not of good character, pursuant to section 26(1)(c) of the Veterinary Surgeons Act 1986.

4 The contested hearing of the VSIC's complaint took six days from 12 to 19 August 2002. On 30 September 2002, the Tribunal delivered a reserved decision and published its reasons. On 13 May 2003, it delivered a final decision which is supplementary to the decision of 30 September 2002.

5 In its decision of 13 May 2003, the Tribunal said: “... The Complaints concerned the paper work required for the export of a ram’s semen to New Zealand. In Summary, the Tribunal found firstly, that Dr Howe transmitted various false and misleading statements to Dr Gregory (another veterinary surgeon), provided a false certificate to Dr Gregory and certified that various requirements had been met in two Veterinary Certificates in circumstances where he knew or ought to have known that the statements would mislead or were likely to mislead Dr Gregory. If that conduct was repeated and relied upon, it would be likely to damage the international reputation of Australia in relation to animal exports.”

6 On 13 May 2003 the Tribunal: “... found Dr Howe to be guilty of serious misconduct in a professional respect and not of good character...”

7 On 13 May 2003, the Tribunal ordered:

1. That the name of Peter Allan Howe be removed from the register of veterinary surgeons. Dr Howe may apply for restoration of his name to the register after two years from the date this decision comes into effect.

2. Dr. Howe to pay the costs in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with provisions of Division 6 of Part 11 of the Legal Profession Act 1987. (sic)

3. The orders made under s 75(2)(b)(i) and (ii) in relation to Dr. Howe and all witnesses is revoked.

4. Orders 1,2 and 3 do not take effect until 21 days after the Registrar gives notice of the order to Dr Howe.

(These orders have been copied verbatim)

8 An appeal lies against the Tribunal's decision to an Appeal Panel of the Tribunal on any question of law, and with the leave of the Appeal Panel, the appeal may extend to a review of the merits of the appealable decision: subsections 113(1) & (2) of the Act.

9 There are ten lengthy particulars of the two Complaints referred to. They are set forth in full in the decision appealed against and are not repeated here: reference may be made to the decision appealed against. In that decision, each particular is followed by the Tribunal's findings in respect of that particular. Seven of the ten particulars were found to have been established upon the Briginshaw standard.

10 The Appellant, by his notice of appeal dated 22 May 2003, sought to have the appeal determined on questions of law and also upon a review of the merits.

11 The notice of appeal was superseded by an amended notice of appeal dated 29 August 2003. The amended notice of appeal develops the grounds set forth in the original notice.

12 The Appellant relies upon the following alleged errors of law in the Tribunal's decision relating to the admission of evidence of Stephen Terry Dubedat ("Dubedat"): (In the course of summarising the Appellant’s arguments, in order to avoid confusion, our own comments are in italics)

1. Admitting the report of Dubedat of 4 January 1999 and in allowing him to give oral evidence, on the grounds that his evidence was tainted and his report and his findings were improperly obtained.

2. Error in the exercise of its discretion in admitting the report of Dubedat of 4 January 1999 in not taking into account material considerations:

(i) it failed to take into account the highly prejudicial materials attached to the solicitors’ letters of instruction dated 1 October 1998, 10 December 1998 and 17 December 1998: see below p...

(ii) that Dubedat was given a bottle containing a serum sample and asked to take certain matters into consideration and make certain findings;

(iii) the bottle was lost by the VSIC thereby depriving the appellant of the opportunity of having it examined and its contents analysed;

(iv) the bottle and the prejudicial material forwarded to Dubedat by the solicitor's acting for the VSIC formed part of the material to be used by Dubedat to prepare his report and form his opinions;

(v) the Tribunal failed to take into account the fact that Dubedat was given and considered the bottle as part of the material;

(vi) the label was particularly referred to by the solicitor for the VSIC (in the said letters) and in the allegation made by the solicitor that the label had been fabricated by the appellant.

3. Error in the exercise of its discretion in admitting the report of Dubedat of 4 January 1999:
(i) it acted upon a wrong principle, and

(ii) it allowed extraneous matters to guide or affect it in that it relied on s.79 of the Evidence Act and decided that any impropriety could be cured by cross-examination of the maker of the report.

4. Error in the exercise of its discretion in admitting the report of Dubedat of 4 January 1999. It acted on a wrong principle that any impropriety could be cured by submissions with regard to the weight to be given to the report.

5. Error in the exercise of its discretion in its acceptance of Dubedat’s evidence by failing to take into account material considerations in that it failed to take into account concessions made by Dubedat under cross-examination.

This last appears to be, or to include, a reference to the evidence given by Dubedat under cross-examination where he agreed that he took note of comments made by the solicitor retaining him to give an opinion. It is a matter specifically referred to by the Tribunal in paragraph 61 of its reasons for decision and is dealt with below.

The Appellant’s contention that the reception of Dubedat’s evidence offended the common law and the criteria set out in Bunning v. Cross (1977-8) 141 CLR 54 is misconceived. Bunning v. Cross was one of a series of cases that refined exclusion rules, in criminal cases where evidence had been illegally or improperly obtained involving the balancing of competing public interests. It has no application in the present circumstances. Criminal cases, involving as they do penal sanctions, punishment and retribution and where the rules of evidence special to criminal cases must be strictly applied, require different considerations from cases in this Tribunal where any punitive effect that an order may have is not the intended effect of the order, but rather an unintended but unavoidable incident of it.

13 The Appellant submitted that the basis of the objection to the reception of Dubedat's report was that it was contaminated or tainted because it was improperly obtained.

Even if that submission were true, it has not been shown why the evidence should be excluded on the basis that it was improperly obtained. The more appropriate question is whether its reception was fair to the Appellant in all the circumstances .

14 The Appellant explained that submission pointing out that on 1 October 1998 Ms Cassamaty, a solicitor in the employ of Conway McCallum, solicitors for the VSIC, wrote a letter of instruction to Dubedat seeking an expert comparison. She enclosed documents to be compared and stated:

“It is my view that the original document MN97/3231 RJG dated 1 April 1997 has been used to produce the document mn96/9457/rjg, dated 19 December 1996. Would you please advise whether you could give a definitive decision as to the above, and if so the time and cost involved.”

15 The appellant pointed out that on 10 December 1998 Ms Cassimaty sent documents to Dubedat. It was submitted that they were not documents or material needed for the purposes of his expert report but were highly prejudicial and biased making comments about the appellant. In her letter of 10 December 1998 Ms Cassimaty wrote, inter alia:

“... The VISC believe that Dr Howe's report of nineteen December has been fabricated...label on sample bottle may also have been fabricated.”

16 The Appellant notes also that on 17 December 1998 Ms Cassimaty wrote again to Dubedat and enclosed further documents of potential witnesses. The Appellant described the documents forwarded to Dubedat as subjective and highly prejudicial to the Appellant.

17 On 13 August 2002, Mr Wade, the solicitor for the VSIC, tendered Cassimaty's report of 4 January 1999. Objection was taken on behalf of the Appellant and submissions in relation to the tender were made. On 14 August 2002 the Tribunal admitted the report. The Tribunal took the view that whilst Ms Cassimaty's actions were not ‘best practice’, they had no bearing on the admissibility of the report. The Chairperson of the Tribunal, delivering the decision, stated, in relation to Dubedat's report: "... I am satisfied that there is no question about the admissibility of that document. It really is a question of whether the expert is biased, and that can be dealt with in cross-examination and in relation to submissions about the weight of the evidence..." (p.2, 14/8/2002)

18 The Chairperson also said: "... what s.79 of the Evidence Act says is that the evidence must be wholly or substantially based on a person's expert knowledge. If it is alleged that that is not the case, then that can be put to the expert and explored in cross-examination and then it will be up to the Tribunal to determine the weight to be given to that evidence."

19 It is true that the solicitor’s remarks were adverse to the Appellant’s position in the proceedings. There is no doubt that it would have been better if those comments had not been made: but that may be a counsel of perfection. Undoubtedly, counsel pursued the matter both in cross-examination and in submissions to the Tribunal. In any event, the evidence was not rendered inadmissible on account of the matters referred to.

20 We said earlier in these reasons that the Appellant also submitted that the Tribunal failed to take into account material considerations by failing to take into account prejudicial materials attached to the solicitor’s letters of instruction to Dubedat. The Appellant notes that, in its decision of 30 September 2002, the Tribunal refers to the letters of instruction without making specific reference to the prejudicial material forwarded to Dubedat, arguing that the only inference available from the absence of specific reference is that the Tribunal failed to take those matters into consideration.

21 No such inference can be drawn. It is not uncommon for a reference to a letter to be intended as a reference to the letter itself and to any enclosures. Indeed, it is unlikely that the Tribunal would take the trouble to refer to the letters and, at the same time, turn a blind eye, as it were, to the enclosures, especially when the letters and the enclosures loomed so large in the submissions of the Appellant. That submission is rejected.

22 In support of the submission that Dubedat was influenced by extraneous matters, or that he was improperly biased against the Appellant, the Appellant makes specific reference to a passage from the cross-examination of Dubedat.

"The person who wrote the letter made a comment ...

Q. So that was obviously something of which you took note, because you have remarked upon it today?

A. Well yes."

23 The appellant argues that this passage demonstrates that Dubedat "paid attention to and was affected by" Ms. Cassimaty's prejudicial comments.

24 It would be unlikely that Dubedat failed to “note” comments in Ms Cassimaty’s letters. However, it is one thing to “note” something and another to be influenced by it. If experienced counsel took Dubedat by his answer to be admitting that he had been influenced in some way by the letters, why did she not use or follow up with less equivocal words than “note”. Or, was there a lack of conviction on counsel’s part about what Dubedat intended by his answer. If counsel was not confident of what Dubedat really meant by his answer while under her cross-examination, how can it now be contended that the answer should be construed as an admission of having been influenced by the letters?

25 The Tribunal said in its reasons “The Tribunal allowed Mr Dubedat to give his evidence despite Ms Stenmark's objection. Although Mr Dubedat ‘took note’ of the solicitor's views, he gave his evidence in an objective and convincing manner which leads us to believe that his conclusions were not influenced by those views.” This is the kind of judgment the Tribunal, as judges of the facts, was required to make.

26 The Tribunal dealt with the evidence of Dubedat, commencing at paragraph 60, under the heading: Expert evidence on handwriting and questioned documents. It may help to see how the Tribunal went about its task to set it forth in full:

“60 Expert evidence on handwriting and questioned documents. Mr Dubedat provided a written report dated 4 January 1999 and gave oral evidence to the Tribunal. He has nine years experience as a document examiner. Mr Dubedat said that he "took note" of comments made in letters from Conway McCallum, the solicitors who instructed him to provide his expert opinion. A letter to him from the solicitors dated 1 October 1998 stated that "It is my view that the original document MN97/3231/RJG dated 1 April 1997, has been used to produce document MN96/9457/RJG, dated 19 December 1996." A further letter from the solicitors dated 10 December 1998 states that: "The VSIC believe that Dr Howe's report on 19 December 1996 has been fabricated from an earlier report forwarded to him from the laboratory dated 1 April 1997 ..." Ms Stenmark submitted that the Tribunal should give no weight to Mr Dubedat's evidence on the basis that he "took note" of these comments and must have been influenced by them.

61 The Tribunal allowed Mr Dubedat to give his evidence despite Ms Stenmark's objection. Although Mr Dubedat "took note" of the solicitor's views, he gave his evidence in an objective and convincing manner which leads us to believe that his conclusions were not influenced by those views.

62 Mr Dubedat's conclusion, based on an examination of the interim report dated 19 December 1996 (Ql) and an interim report dated 1 April 1997 (S 1) addressed to Dr Howe was that "the bulk of the printed text and signature on Q1 originated from the original printed text and signature on the original of document S 1 or a copy of that document. The details on Q 1, not reproduced from S 1, are the typed text "Laboratory Report" and, "MN96/9457/RJG" in the header, "Our reference MN96/9457/RJG" in the top right hand corner and "19 Dec 1996" in the bottom right hand corner. Mr Dubedat concluded that Q 1 is a composite photocopy document based primarily on the original, or a copy, of S 1 with portions of printed text added, obscuring some of the original text, by some superimposition method (eg photocopy, cut and paste). Some of the findings on which Mr Dubedat based these conclusions were that:

the signature of "RJ Graydon" on S 1 and Q 1 precisely coincide and are in exactly the same relative position on each document;

certain typed words on Q 1 including the reference number is out of alignment with the remainder of the document; and

the entries "Our reference MN96t9457tRJG" and the date "19 Dec 1996" are in a similar font, however this font is different from that used to produce the characters in most of the remainder of the text.

63 In response to questions from Ms Stenmark, Mr Dubedat agreed that a document can be distorted during the photocopying process and that it is always preferable to compare original documents if they are available. He also agreed that it would have been possible for staff at the laboratory to change the font in relation to some of the text before sending out the report.

27 Having regard to the foregoing, we are satisfied that the disputed evidence was relevant and admissible and that the Tribunal considered the matters appropriate to be considered in deciding to admit it as well as in determining what weight to given to it. There is nothing that demonstrates that the Tribunal acted upon a wrong principle or that it allowed extraneous or irrelevant matters to guide or affect it, or that it failed to take into account some material consideration. It formed an opinion of the value of the evidence, which was its task, and decided that it should accept it.

28 Accordingly the ground relating to the admission of the evidence of Dubedat fails.

29 The Appellant submitted that the Tribunal erred in law in making findings and penalty orders in relation to matters outside the particulars. This was a reference to findings that the Appellant dishonestly concocted a consignment note, explained more fully below.

30 The term ‘penalty orders’ is strictly a misnomer in a disciplinary case of this kind, but it may suggest a basis upon which the Appellant wrongly complains that rules normally applicable to criminal cases were not observed such as the reliance on Bunning v Cross.

31 It was correctly submitted that the allegations about the consignment note were not the subject of complaint or particulars.

32 The consignment note is referred to in paragraphs 27, 28, 189 to 194 of the decision appealed against:

“27 Consignment Note. As part of his statement, Dr. Howe provided a consignment note for the delivery of the samples. Dr. Howe had not drawn the VSIC's attention to the consignment note during the course of the course of the investigation. He gave evidence that the consignment note related to the samples that he sent to Orange on 16 Dec 1996. Dr. Howe said he wrote and signed the consignment note himself including his phone number ‘02 6373 3404’ and the date.

28 Incorrect details on consignment note. On the 13 August 2002 the Tribunal obtained evidence from Telstra that Dr. Howe did not have the phone number 02 63733404 until 18 August 1997, some eight months after he says he wrote the details on the consignment note. According to Telstra records, Dr. Howe's phone number on 16 December 1996, when he said he wrote the consignment note, was 063 733 404. It was put to Dr. Howe that he did not write the consignment note on 16 December 1996. Dr. Howe first said he could not explain why he wrote a phone number on the consignment note which he did not have at the time. Dr. Howe then said he could not be sure that he wrote the consignment note on 16 December 1996. Dr. Howe’s final response was that he did fill out the consignment note on 16 Dec 1996. It was put to Dr. Howe that he fraudulently concocted the consignment note for the purposes all of the Tribunal proceedings. He denied having done so."

189. As well as making findings about the conduct particularised in the complaints, we find that Dr Howe of fraudulently concocted the consignment note for the purpose of the tribunals hearing. The evidence in support of this finding is set out in paragraphs [27] and [28].

190. In McBride v Walton, (Supreme Court of NSW, Court of Appeal, 15 July 1994, unreported) Handley J considered whether findings that Dr McBride's evidence demonstrated internal contradictions, inconsistencies, inventions, evasions and falsehoods” could be used in coming to its ultimate conclusions. Handley J held at [119] that the Tribunal had erred by ruling that its “finding could not be taken into account in determining whether present lack of good character had been proved." …

Complaints 9 and 10 as particularised did not refer to the Doctor’s deliberately false evidence before the Tribunal. If the scientific fraud case as particularised had failed or as proved was not sufficiently serious to warrant a removal from the Register the Complainant could not have relied upon the false evidence finding as misconduct which itself warranted removal or elevated the scientific fraud proved above its intrinsic seriousness.
191. And, at [121]:
The fact is that the Tribunal was both entitled and bound to take that finding into account when considering the Doctor's present character. In the end the Tribunal used the finding for a purpose, lawfully available to it.
192 Powell JA said at 236, that:
I am unable to accept the view … that it is never open to a disciplinary tribunal to have regard to matters going to the conduct and character of the subject person unless those matters have been particularised in the relevant complaint.
193. Based on the decisions in McBride (supra) our understanding of the use which can be made of our finding that Dr Howe concocted a consignment note for used in evidence before the Tribunal, is as follows:
- such a finding can only be used if Dr Howe was afforded procedural fairness in relation to the making of that finding;

- such a finding can be used to assess whether Dr Howe is currently not of good character, having found that he was not of good character based on the particulars; and

- such a finding is one of the relevant matters to be taken into account when determining the appropriate orders to be made.

194. We are of the view that before coming to our finding, Dr Howe was afforded procedural fairness. After questioning by the Tribunal about the consignment note, Mr Wade put to Dr Howe that he had fraudulently concocted the consignment note for the purposes of the Tribunal proceedings. In addition, prior to Ms Stenmark making final submissions on behalf of Dr Howe, Mr Wade submitted that the Tribunal should find that Dr Howe had fraudulently concocted the consignment note on an unknown date and that he had lied to the Tribunal when he said that he completed the consignment note on 16 December 1996.” [Our emphasis]

33 We think that the Tribunal identified the relevant authorities. The Tribunal’s reasons show that it was aware of the important but limited use that it could make of an adverse finding not contained in the particulars of the complaints.

34 The Appellant submitted that the Tribunal erred in that it breached the statutory duty imposed by s.73(2) of the Administrative Decisions Tribunal Act ("ADT Act”) and denied the appellant natural justice in that (1) the Appellant was given no opportunity to meet evidence introduced by the Tribunal at the end of the appellant’s evidence that he had concocted a consignment note dated 16 December 1996 (exhibit "E"), and (2) the appellant was given no opportunity to meet evidence introduced by the Tribunal, at the end of the appellant’s evidence, that he had used a telephone in December 1996 which was allegedly not available to him until August 1997.

35 After hearing the appeal, and while considering it, we invited the Appellant to show, if possible, by reference to the transcript of proceedings, such parts of the evidence that support the Appellant's argument in relation to the consignment note and the alleged denial of natural justice. We had in mind that the Appellant might take us to passages that show, for example, that an application was made for an adjournment in order to bring and adduce evidence in respect of those matters, or for some other procedural concession, such as for time to make investigations that might have assisted him to rebut the adverse evidence. If such an application had been rejected the argument that natural justice had been denied might have had some basis. The same invitation was given to the VSIC.

36 The Appellant says that he was denied procedural fairness because he was given no notice that there was a risk of “making findings and penalty orders in relation to matters outside the particulars." We think that the extent to which the matter of the consignment note was ventilated in the course of the Tribunal hearing would have made the appellant aware that he was at risk of having adverse findings made against him in that respect. A finding that he had fraudulently concocted the consignment note or that he had lied to the Tribunal, as was alleged at the hearing by the Respondent, would have been understood by Dr Howe and his counsel to result in possible detriment to Dr Howe.

37 The Appellant says that he was given no opportunity to make submissions in relation to any findings being made against him in relation to exhibit "E". It has not been shown that “no opportunity” was given to the Appellant to make such submissions. There is nothing to indicate that the Appellant’s counsel or the Appellant sought such an opportunity, or that he believed that, if he had done so, he would have been refused.

38 The Appellant says that the Tribunal erred in finding that he had been offered procedural fairness simply because he had been cross-examined about exhibit “E", and because in the course of the Tribunal proceedings a submission had been made by the solicitor for the VSIC that such a finding should be made.

39 That submission proceeds upon a false premise. The purpose of the Tribunal’s expressly referring to those facts (par.194 of reasons) was to show that the Appellant was put on notice that adverse findings were possible: that the proceedings were not silent on the question, and that the matter came to the Appellant’s attention during the hearing and not for the first time in the decision of the Tribunal. The evidence also shows that the Appellant was made aware that the possible adverse findings involved his dishonestly concocting evidence and lying to the Tribunal. This was not a case where a mere falsity of evidence was alleged without it having been made clear that the falsity was attributable to deliberate dishonesty and not to possible mistake or frailty of recollection. The evidence to which the cross-examination was directed was relevant to, and potentially probative in respect of, the Appellant’s honesty or dishonesty in relation to the consignment note. It was unambiguously referable to that matter.

40 It has not been submitted by the Appellant, nor can it be imagined, that he or his counsel thought that the evidence may have been relevant to some issue in the proceedings consistent with an innocent mind and not susceptible of an adverse effect.

41 The Tribunal observed (paragraph 194) that the allegations were put to Dr Howe before Ms Stenmark made her submissions.

42 There was nothing to prevent the Appellant from requesting an opportunity to respond with evidence and/or submissions: or by an application for an adjournment to obtain evidence.

43 Whilst there may have been no express warning of the risk of an adverse finding, that risk was clearly implicit in the proceedings themselves: in the cross-examination and the submission of the VSIC to the effect that an adverse finding of dishonesty in a material respect should be made, both occurring in the course of the hearing.

44 One would expect that the Tribunal, having permitted cross-examination in relation to a matter adverse to the Appellant against the objection of the Appellant’s counsel, had done so for a purpose. The cross-examination and the VSIC’s submission were themselves notice of the possibility of an adverse finding on the issue. The Tribunal might reasonably have expected that, being represented by counsel, if any consideration had been required on the part of the Tribunal to provide procedural fairness, the Appellant would have asked for it. That would have included such concessions as adjournments and leave to adduce evidence.

45 Procedural fairness cannot be reduced to a strict set of formulae. In this case it was not unfair to the Appellant to expect him to have taken the initiative and made application to respond to any adverse evidence if he wished to do so. An unreasonable refusal to grant an application for the purpose would almost certainly have been unfair to the Appellant. We are not aware of any such refusal, express or implied.

46 It was also contended by the Appellant that the Tribunal fell into jurisdictional error in that it correctly recognized its jurisdiction but mistakenly asserted or misapprehended the nature and limits of its power. That contention was stated as follows:

(1) The Tribunal correctly recognized that it had to afford procedural fairness to the Appellant before it could make an adverse finding that he concocted a consignment note for use in evidence before the Tribunal (para-189-193),

(2) The Tribunal mistakenly asserted or misapprehended that it had afforded procedural fairness to the appellant because:

(a) the Appellant had been cross-examined about the consignment note

(b) the solicitor for the VSIC made a submission that they Tribunal should find (that) the Appellant concocted of the consignment note.

47 We hope that we have already said sufficiently clearly that we think that the reference by the Tribunal to cross-examination about the consignment note and to the request by the solicitor for the ASIC for a finding adverse to the Appellant was intended by the Tribunal to demonstrate that the Appellant was put on notice during the hearing that concoction of the consignment note was an issue and that, if so advised, he might have sought do something about it.

48 However, it is opportune to mention here a matter that Dunford J saw fit to refer to in his reasons of 13 March 2003 in the interlocutory matter Howe v Administrative Decisions Tribunal of NSW & ors [2003] NSWSC 157, following remarks of Hutley JA in Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378: “... it is generally desirable that addresses on penalty follow a determination of guilt so that the person accused knows precisely the ambit of the findings to which submissions on penalty need to be addressed.” We would respectfully adopt that advice and add that the same advice applies a fortiori to evidence relating only to penalty: in this case the evidence could relate only to the orders that might have been consequent on findings of guilt. There is a concern that a person required to address a tribunal on penalty before a finding of guilt has been made may be put in an invidious position, perhaps having to address on the basis that he may be found guilty and having to suppose that matters vigorously denied by him may yet be found to be proved.

49 The concern is that what the Tribunal may learn during the ‘sentencing proceeding’ may tend to dispose its mind, even unconsciously, against the Appellant in respect of matters relevant only to the issue of guilt. But Hutley JA’s words were not categorical, only that “it is generally desirable that addresses on penalty follow a determination of guilt”.

50 The Appellant argued that there was jurisdictional error in relation to Particular 2 in that the Tribunal applied the wrong test and placed the onus on the Appellant in finding that, because he failed to produce certain records or data to the Tribunal that such records or data did not exist. That submission was supported by the propositions that there is no onus on of the Appellant [paragraph 96 of the Tribunal’s reasons is referred to as exhibiting a breach of that rule] to do anything or produce any document and that in relation to paragraph 96 the Tribunal made a finding not open to it and speculated about the Appellant’s records. For convenience we set forth the whole of paragraph 96 of the Tribunal’s reasons:

"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 concerned with SM3’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."

51 Contrary to the Appellant’s contention, this finding was not speculation but a conclusion based upon the evidence available to it including the failure of the Appellant to find and produce the records in question. The Appellant said: "If I looked hard, I could find it". It was open to the Tribunal to conclude as it did. The Tribunal, as the fact finding body, was right to apply its common sense and experience in the exercise of judgement.

52 The overriding question is whether the procedures were fair in all the circumstances. It is not appropriate in cases of this kind to apply the inflexible procedures consequential on the principles concerning the onus of proof in criminal trials. There is no justification or requirement for transporting those procedures or those rules to disciplinary proceedings of this kind.

53 It is not unfair in certain circumstances for the Tribunal to expect a respondent to bring forward evidence and, in the absence of his doing so, to draw conclusions adverse to the respondent. Of course, such an expectation would not be appropriate in every instance. It would always be necessary for the respondent to be aware of the possibility of an adverse conclusion upon the issue. The requirements of procedural fairness might vary between cases involving an unrepresented respondent, who may not know that he can seek such an opportunity, and one who is represented by a legal practitioner. The Appellant was represented by counsel. It would generally be appropriate, or even necessary, to inform an unrepresented respondent of the risk faced and to offer him the opportunity to test the evidence and to respond adequately.

54 Whether a particular procedure is fair depends upon the circumstances of the case. As we understand it, the Courts have never attempted to fix rigidly the content of the rules of natural justice.

55 We acknowledge that the foregoing principles are easy enough to state, but that their application in a particular case may be difficult. In this case we think that the procedures of the Tribunal were fair to the Appellant.

56 None of the foregoing is intended to disregard the overriding rule that a professional person cannot be found guilty of an offence unless upon the whole of the evidence the Tribunal is satisfied of his guilt upon the balance of probabilities according to the Briginshaw standard.

Penalty

57 The Appellant says that:

1.the Tribunal failed to take into consideration the other penalty options prescribed by s.32(2) of the Veterinary Surgeons Act;1987.

2.the Tribunal imposed a penalty which in all the circumstances was too severe in that it:

(i) failed to give due consideration to other penalty options prescribed in s.32(2) of the Veterinary Surgeons Act 1987;

(ii) failed to give due weight to the evidence of Professor Edwards, Dr Watts and Messrs Massy and Sleeman called on behalf of the Appellant;

(iii) failed to give due weight to the Appellant’s significant contribution and his work in the artificial insemination field;

(iv) made findings in relation to his veterinary work which were against the weight of the evidence;

(v) failed to give due weight to subjective mitigating factors.

3. The Tribunal erred in making findings in relation to the Appellant’s motives which were against the evidence and the weight of evidence.

58 Section 32 of the Act sets out the orders that the Tribunal may make upon proof of a complaint:

(1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:
(a) an order reprimanding or cautioning the veterinary surgeon,

(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,

(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,

(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,

(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,

(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.

(2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1)(b) or (c) if the Tribunal is of the opinion that:
(a) because the matter of the complaint is of a trivial nature, or

(b) because of the circumstances in which that matter occurred, or

(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.

(3) ...

(4) ...

(5) ...

(6) ...

59 There is no question but that the Tribunal considered the question of what orders under section 32 of the Act should be made. An even cursory reading of the Tribunal’s judgment of 13 May 2003 makes it clear that each option was carefully considered. There is no merit in the Appellant’s first ground of appeal with respect to what it describes as ‘penalty options’. In particular, reference may be had to paragraphs 6, 7, 24 to 47, inclusive, of the Tribunal’s reasons. These paragraphs are too lengthy either to set forth or paraphrase here. They not only demonstrate the falsity of the contention of the first ground of complaint relating to the orders made, but they also demonstrate the sound understanding that the Tribunal had of its duty with respect to the task confronting it.

60 The second ground of complaint concerning the orders made is equally without substance. The paragraphs of the judgment of 13 May 2003 relating particularly to that ground are 8 to 21, inclusive. The Tribunal manifestly considered carefully all of the relevant evidence.

61 We find no error of law with respect to the orders made by the Tribunal on 13 May 2003.

62 The Appellant made submissions in support of his application for the receipt of further evidence. We refer to some, but not all, of those submissions:

63 Reference was made by the Appellant to principles enunciated in CDJ v. VAJ (1998) 197 CLR 172. It was submitted that in that case the High Court held that for further evidence to be received:

(i) the evidence sought to be admitted could not with reasonable diligence have been obtained for use at the trial, and

(ii) that if the evidence had been available at the trial, it is reasonably clear that an opposite outcome would have resulted.

64 The Appellant, adopting the words of Dixon CJ in Council of City of Greater Wollongong v Cowan (1954) 93CLR 435, submitted that in this case the fresh evidence sought to be admitted would place “such a different complexion upon the case that a reversal of the former result ought certainly to ensue”

65 The Tribunal made findings about the availability of a certain phone number for the use of the Appellant at a certain time upon all of the evidence available to it. The Appellant paraphrased them as follows:

(i) the appellant did not have the relevant telephone number available to him in December 1996, and

(ii) he concocted the consignment note.

66 The Appellant describes those findings as crucial to the Tribunals (ultimate) findings and ‘penalty’ imposed.

67 They were certainly findings of significance. However, whether those findings were critical to the point that different findings would have led to different outcomes we cannot say.

68 We understand the Appellant to say that he can obtain evidence from Telstra tending to prove that the findings of the Tribunal were wrong in that respect. The Appellant says that the evidence is fresh, using that term in its technical sense, not as we understand it, because it did not exist at the time of the hearing but because it was “not available at the hearing”.

69 The words “at the hearing” were no doubt chosen carefully by counsel for the Appellant. It may well be that no such evidence was available “at the hearing”. The material question, however, is whether the evidence could, with reasonable effort on the part of the Appellant, have been obtained for use at the hearing. If, in the course of the hearing, it could have been obtained and brought to the hearing, it would not now be fresh in the sense of qualifying to be received now with respect to its freshness. Nothing persuades us that the Appellant sought any opportunity to bring the evidence to the Tribunal, or that there was anything to prevent him from doing so. If an opportunity had been sought at the hearing, fairness might well have demanded that it be given, but that is now an academic question.

70 Accordingly, we think that the application for the reception of fresh evidence fails at the threshold.

71 The application for a review of the merits relies on submissions that for the most part repeat in a different context submissions already rejected by us: e.g., a submission that the review should proceed on the basis of Dubedat’s evidence not being admitted. We do not think that the Appeal Panel should be drawn again into detailed consideration of submissions already rejected in substance.

72 The Tribunal provided a careful and fair hearing to the Appellant. No application for the reception of evidence has been shown to have been refused.

73 The application to consider the appeal on the merits of the case is refused.

74 Accordingly the appeal is dismissed.

75 We are minded to order the Appellant to pay the VSIC’s costs of the appeal, but we will keep an open mind on the question until an opportunity has been given to the Appellant to make submissions.