Howe v Veterinary Surgeons Investigating Committee (GD) (No 2)

[2005] NSWADTAP 4

Appeal Panel - Internal

CITATION:	Howe v Veterinary Surgeons Investigating Committee (GD) (No 2) [2005] NSWADTAP 4
PARTIES:	APPELLANT Peter Allan Howe RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	039033
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/02/2004
DATE OF DECISION:	02/01/2005
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 - Non Judicial Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	023033
DATE OF DECISION UNDER APPEAL:	05/13/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:
REPRESENTATION:	APPELLANT P Robinson, solicitor RESPONDENT M Wade, solicitor
ORDERS:	The Appellant to pay the costs of the Respondent of the appeal as agreed or assessed from the date of filing the Appellant's original Notice of Appeal (22 May 2003) to the 9 February 2004

1 A reserved decision in favour of the VSIC (the Respondent) upon the original hearing was given on 30 September 2002. On 13 May 2003, the Tribunal delivered a final decision which was supplementary to its decision of 30 September 2002. On that date the Tribunal: "...found Dr Howe (the Appellant) to be guilty of serious misconduct in a professional respect and not of good character...".

2 On 13 May 2003, the Tribune or ordered:

(i) That the name of Peter Allen 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.

(ii) 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)

(iii) ...

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

3 The Appellant appealed against the decision of the Tribunal. The appeal was dismissed on 9 February 2004.

4 The Appellant filed a Holding Appeal in the Court of Appeal on 5 March 2004. That appeal was discontinued under Part 51 rule 6(4) of the Court of Appeal Rules.

5 Under cover of letter dated in 19 March 2004, the solicitors for the Respondent sent to the Registry their written submissions on the question of costs. They were required to furnish Dr Howe's legal advisers with a copy of those submissions and it is assumed for present purposes that they did so.

6 By letter dated 18 June 2004, the Tribunal advised the legal advisers of the Appellant that the Respondent had filed its submissions as to costs on 22 March 2004 and that the Appellant was to file and serve his submissions within 14 days of the date of the letter (18 June 2004).

7 No submissions as to costs have been filed by or on behalf of the Appellant.

8 In the circumstances the Appeal Panel has inferred that the Appellant does not wish to make any submissions as to costs. The merits of the cases strongly support an order against the Appellant for payment of the costs of the appeal of the Respondent. The arguments in support of that proposition are cogently set out in the Respondent's submissions on costs.

9 Accordingly, we order that the Appellant pay the costs of the Respondent of the appeal as agreed or assessed from the date of filing the Appellant's original Notice of Appeal (22 May 2003) to the 9 February 2004.