Lehmann v The Registrar of the Veterinary Surgeons Board of SA - [2014] SADC 201

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against the Veterinary Surgeons Board of South Australia)
LEHMANN v THE REGISTRAR OF THE VETERINARY SURGEONS BOARD OF SA
[2014] SADC 201
Judgment of His Honour Judge Tilmouth
2 December 2014
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - VETERINARY SURGEONS - QUALIFICATION, REGISTRATION AND DISCIPLINE
Consideration of the circumstances in which a specialist Tribunal may properly bring its own expert knowledge to bear on the decision making process and of the principles of natural justice pertaining thereto.
Appeal allowed - certain critical findings made on unproven and untested assumptions. Orders of the Veterinary Surgeons Board of South Australia rescinded. Not appropriate to remit in the circumstances.
Veterinary Practice Act 2003 (SA) ss 5, 23(1), 45, 45(a), 45(b), 61(2)(a), 62(1), 62(2), 66(2), 62(4); Veterinary Practice Regulations 2005 (SA) r 6, r 6(f); District Court Act 1991 (SA) ss 42D, 42E(3), 42F, 42F(b), 42H, 42H(2); Craig v Medical Board of South Australia (2001) 79 SASR 545, [41]-[46]; Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; Klement v Commissioner for Consumer Affairs [2011] SADC 111, [43]; Sellars v South Australian Police (2012) 279 LSJS 141, [9]; General Medical Council v Spackman [1943] AC 627, 636; (I) [1911] AC 179, 182; Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601, 628; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161; Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457, 481; Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339, 345; Fung v Wilde (1986) 41 sasr 232, 242; Chan v Medical Board of South Australia (1986) 41 SASR 434, 447; R v Tolson (1889) 23 QBD 168, 193; Thomas v The King (1937) 59 CLR 279, 292; Mayer v Marchant (1973) 5 SASR 567; Bergin v Stack (1953) 88 CLR 248; Zarb v Kennedy (1968) 121 CLR 283; Jiminez v The Queen (1992) 173 CLR 572; 581-2; Lim Chin Aik v The Queen [1963] AC 160; CTM v The Queen (2008) 236 CLR 440; R v Clarke (2008) 100 SASR 363; Norcock v Bowey [1966] SASR 250; Proudman v Dayman (1941) 67 CLR 536, 540; Power v Huffa (1976) 14 SASR 337, 344, referred to.
Director of Public Prosecutions v George (2008) 102 SASR 246, [184] ; Registrar of the Veterinary Surgeons Board of South Australia v Mooney [2009] SADC 62; Twist v Randwick Municipal Council (1976) 136 CLR 106, 109; FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 409-410; Heatley v Tasmanian Racing and Gaming Commission (1997) 137 CLR 487, 513-414, 516; Dixon v Commonwealth (1981) 61 ALR 173, 179; Bakewell v MacPherson Unreported, Supreme Court of South Australia, Full Court, 25 September 1992; BC 9200236, at BC26; Kioa v West (1985) 159 CLR 550, 587, 628; Kalil v Bray [1977] 1 NSWLR 256, 265; Vakauta v Kelly (1989) 167 CLR 568, 577-579, 586-588; Moore v The Registrar of the Medical Board (2002) 219 LSJS 448, [15], applied.
He Kaw Teh v The Queen (1985) 157 CLR 523; R v Sault Ste. Marie [1978] 2 SCR 1299, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Use by members of a Tribunal of their own expert knowledge" and "opinions considered"

LEHMANN v THE REGISTRAR OF THE VETERINARY SURGEONS BOARD OF SA
[2014] SADC 201
The proceedings

This is an appeal by Dr Helen Lehmann from certain determinations and orders made against her by the Veterinary Surgeons Board of South Australia on 6 November 2013. The grounds of appeal focus upon issues of procedural fairness. For reasons that follow, her appeal must be allowed on several bases, and most of those determinations and orders must be set aside.
Statutory context
The Veterinary Surgeons Board of South Australia (the Board) is a creature of s 5 of the Veterinary Practice Act 2003 (SA). By virtue of s 62(2) thereof, it is charged with the responsibility of enquiring into the subject matter of complaints made against veterinary surgeons. Such complaints may be brought by the Registrar of the Board (the Registrar), the Minister responsible for administration of the Act, or a person aggrieved by the conduct of the veterinary surgeon, as provided for by s 62(1) of the Veterinary Practice Act.
In this instance it was the Registrar who brought a complaint against Dr Lehmann. That being so, both parties agree the appeal is properly brought against the Registrar, as opposed to the Board itself, since s 66(2) of the Veterinary Practice Act confers a right of appeal in the ‘complainant or the respondent in the proceedings’.
The underlying purpose of disciplinary proceedings such as these, is not to punish, but rather to protect the public by making determinations designed to assure the public that proper professional standards are maintained: Craig v Medical Board of South Australia.[1]
[1] (2001) 79 SASR 545, [41]-[46].
Before taking disciplinary action, the Board is first required to be satisfied there is proper cause for doing so, as required by s 62(4) of the Veterinary Practice Act. There is however no obligation to inquire, or to inquire further, into complaints considered ‘frivolous or vexatious’: s 62(2) Veterinary Practice Act, that is to say one that is groundless: Dey v Victorian Railways Commissioners.[2]
[2] (1949) 78 CLR 62, 91.
Unprofessional conduct is defined in s 3 thereof as including:
unprofessional conduct includes—
(a)     improper or unethical conduct in relation to professional practice; and
(b)     incompetence or negligence in relation to the provision of veterinary treatment; and
(c)     a contravention of or failure to comply with—
(i)    a provision of this Act; or
(ii)a code of conduct or professional standards prepared or endorsed by the Board under this Act; and
(d)     conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law;
Once unprofessional conduct is proven, the Board may then exercise discretionary powers of censure, to impose fines not exceeding $10,000 per complaint, as well options to impose conditions upon registration, and disqualification or prohibition from carrying on business as a ‘veterinary service provider’, as prescribed by s 62(4) of the Veterinary Practice Act. Nevertheless a finding of proper grounds for taking disciplinary action does not compel the Board to take any one of those courses. That is to say the power to take disciplinary action conferred by the words ‘the Board may, by order, do one or more of the following’, in s 62(4) of the Veterinary Practice Act: Director of Public Prosecutions v George: [3]
… may properly be construed as vesting courts with a discretionary power to make such an order when it considers it appropriate to do so, and to refrain from making such an order when it considers such an order to be inappropriate.
[3] (2008) 102 SASR 246, [184] per White J, Doyle CJ and Vanstone J agreeing at [80] and [170].
The underlying facts
Dr Lehmann removed the femoral head of the left hip of a kelpie dog ‘Gale’, when it ought to have been performed on the right hip. She then proceeded to operate on the right hip by removing the right femoral head. These events took place on 30 November 2012 at her surgery in the Clare Valley. The need to operate arose because the dog had dislocated its right hip. It was taken to the surgery for that purpose by its handler, an employee of its owner, a Corporation conducting farming operations near Clare. The surgery was scheduled to be performed by another veterinary surgeon, Dr Heath. Dr Heath is another employee of the dog’s owner. By chance she was called away at the last minute leaving it unexpectedly to Dr Lehmann to operate.
Her clinical notes made soon afterwards with respect to the preceding procedures and the operation itself, so far as presently relevant, were these:[4]
[4] AB33, the symbol TTO refers to ‘Talk to owner’, ‘HLL’ are Dr Lehmann’s initials.
HISTORY: Gale took own bandage off this morning and was found whimpering in cage with leg out of joint again.
brought into clinic with leg held medially and down. X-rays pre-FMEA
0.3mL methadone given SC
Premed 0.4mls acp given at 2.15pm and, induced with 3mls Alfaxan, isofluorane maintenance.
Durogesic 5ug patch applied prior to op.U
Xray revealed luxation of leg which looks to be sitting above pelvis. Could not find xray marker so did not mark which leg. Incised in carniolateral approach to left femur -, femoral head felt in place within acetabulum so verified that this was the correct leg due to skin damage from bandage. Realised after freeing femoral head that this was the incorrect limb and performed FHE as had damaged attachments to acetabulum. Routine closure with 3/0 pds in muscles and supramid 2/0 in skin. Clipped and scrubbed RIGHT hindlimb and removed luxated femoral head with osteotome. Routine closure once again, Noroclav and Metacam given perioperatively and Temgesic given at 4pm.
HLL TTO and explained operated on incorrect leg initially and that this will impede recovery time – may keep Gale in hospital for longer and initiate physio on both hindlimbs.
Good recovery but Gale quite sleepy until around 9am as Temgesic wore off. Repeated Temgesic dose at 10pm and offered food which she ate.
01 Dec 2012 Eating and drinking this morning but no urination overnight and unable to weight bear on either hindlimb – taken out with towel but no urination.
Advised owner going well.
Drip has been chewd out so left off as no need for iv access at present.
12pm – bright and happy, wagging tail and drinking.
5pm – Carried out to lawn, she then stood on Left hindlimb to urinate and managed this well. Begin oral metacam and Noroclav.
02 Dec 2012 – Gale able to move around a little and urinated on lawn – TTO and advised …
The charges
The complaint taken by the Registrar on 30 August 2013, was laid before the Board alleging proper cause for disciplinary action against Dr Lehmann for unprofessional conduct on three bases.[5] The first was negligent treatment, particularised by the failure to identify the correct hip before commencing ‘unnecessary and unauthorised surgery’, and by the failure to take post-operative x-rays to ensure the surgery was adequate and as a check on recovery. A second count charged her with failing to advise Gale’s owner, before 9 January 2013, that the left femoral head was removed from the wrong hip, in that she ought to have made the dog’s owner aware of the full extent and nature of her error following surgery. The third and final count charged the failure to advise the Board itself between 8 February and 10 March 2013, of certain prescribed information, specifically that she had settled a claim with the dog’s owner by the payment of compensation of $3,000 on 8 February 2013, as required by s 45 of the Veterinary Practice Act.
[5] AB 14-16.
In the result the Board censured Dr Lehmann with respect to counts 1 and 2 and imposed a combined fine of $4,000. With respect to the third count, it fined her $2,500, amalgamating what it considered to be two breaches of s 45. It further ordered her to pay costs of $3,000 ‘to the Board within 60 days’, based on costs agreed between the parties, plus a further sum of $500 relating – as will become apparent – to the alleged second breach of s 45 of the Veterinary Practice Act.[6] In addition the Board ordered her to undergo a ‘course of further training in taking x-rays and reading such x-rays’.[7]
[6] AB 12-13.
[7] AB 13.
The appeal
Dr Lehmann appeals against most of these orders and she contests the factual basis upon which they were made. An order was made by a Master of this Court on 5 December 2013 staying the operation and implementation of all these orders pending determination on appeal, pursuant to s 42D of the District Court Act 1991 (SA).
As the Veterinary Practice Act is otherwise silent as to the nature of appeals thereunder, and as to the powers of disposition, the jurisdiction and powers of the Court are therefore regulated by Part 6, Division 2 of the District Court Act. In particular the Court is required by s 42E(3) thereof to:
… give due weight to the decision being appealed against and not depart from the decision except for cogent reasons.
The phrase ‘cogent reasons’ was interpreted in this way in Registrar of the Veterinary Surgeons Board of South Australia v Mooney: [8]
[26] The adjective “cogent” describes an argument or reason clearly expressed and persuasive, compelling or convincing. There is no reason to read into the statute any more or less than it prescribes. In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ remind us that “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.
[27] Obviously, then something more than mere disagreement with the decision below is required. Likewise unconstrained merits review would not be authorised. However providing “cogent reason” exists, the power to interfere is engaged. There is no threshold requirement to detect error, or to conclude the decision below was “unreasonable or plainly unjust … or that … a substantial wrong has in fact occurred”: House v The King, before intervention is justified. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) Brennan J suggested on example of a cogent reason was when a decision would “work an injustice in a particular case”.
[8] [2009] SADC 62; refer also to Klement v Commissioner for Consumer Affairs [2011] SADC 111, [43], Sellars v South Australian Police (2012) 279 LSJS 141, [9].
The powers of disposition are those contained in s 42F of the District Court Act:
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Proceedings before the Board
The case proceeded before the Board in the first instance on the basis of the clinical record of the operation quoted above, together with correspondence passing between her and the owners of the animal and between them and the Registrar. In a letter of explanation dated 1 February 2013, Dr Lehmann wrote this:[9]
On the morning of 30 November 2012, I was initially alerted to the requirement for surgery on Gale by one of our Veterinarians at the clinic. At that time, I was some distance away at the Yorke Peninsula scanning mares.
I anticipated that I would be assisted during the operation by another vet who had provided recent treatment to Gale and therefore had an understanding of Gale’s medical history and the dislocation. Unfortunately the other veterinarian was called away and unable to assist with the surgery.
As Gale was lifted onto the table I noticed the adhesive residue from the bandage which had been placed to attempt to keep her dislocation in place. This adhesive was on the left side of her body and also on the cranial aspect of the left leg. This is what led to the operation having been performed on the incorrect leg.
[9] AB 23.
Unfortunately, after a medical review in January of 2013, a considered opinion was reached that the dog was not likely to return to its role as a working dog, so the owner opted to euthanize, rather than make it available as a pet. It was accepted by the Registrar that this was not a necessary medical consequence of the surgery performed by Dr Lehmann, that it was a decision made on purely commercial grounds.[10] In fact Dr Lehmann suggested to the owner that it would make a ‘nice pet for someone based on the good nature of the dog’.[11]
[10] AB 26, 31 & 48, [15].
[11] AB 31.
Repeatedly in her correspondence with the owners and with the Board, she expressed her deep regret and sadness at the turn of events, for which she severally apologised. Subsequently she voluntarily undertook CPD courses in relation to the treatment of hips and joints of dogs and in other courses.[12]
[12] AB 28, 32, 47.
Proceedings before the Board
Dr Lehmann first appeared before the Board on 2 September 2013. It had before it a ‘Briefing Note’ dated 20 September 2013, submitted by the Registrar, which read in material part:[13]
The Respondent admits in full the factual allegations particularised in the Amended Complaint, as well as the three charges of unprofessional conduct.
Whilst acknowledging that it is ultimately a matter of discretion for the Board, the parties submit that it is open to it, having regard to the circumstances of the matter, to finalise the matter in the following terms:
1. Make a finding that there is proper cause for disciplinary action against the Respondent in that she is guilty of unprofessional conduct.
2. Censure the Respondent, pursuant to s.62(4)(a) of the Act.
3. Order that the Respondent pay to the Complainant the sum of two thousand and five hundred dollars ($2,500) by way of costs, pursuant to s 23(1) of the Act.
[13] AB 17.
It was the consistent position of the Registrar during the course of proceedings before the Board, that censure was appropriate. Counsel for the Registrar submitted:[14]
… the case … is not a case in which the magnitude of Dr Lehmann’s conduct is such that it warrants suspension or cancellation … this is not a matter in which Dr Lehmann’s fitness and propriety or competence to continue to practice is in question’.
[14] AB89-90.
He further submitted that:[15]
… having regard to the various steps … [she] … has taken to address – the complaints made against her … that she has been remorseful … has no antecedents whatsoever … that she has now admitted to her error at the earliest opportunity … it is open to the Board to finalise the matter today by way of the administration of a censure to Dr Lehmann.
[15] AB90.
For her part it was pointed out that Dr Lehmann had been a practicing veterinarian for 16 years in the Clare Valley, after graduating from the University of Glasgow, ‘without any previous incidents’.[16] She contributed charitably to the local Community.[17] It was contended on her behalf that all that was required was a reprimand.[18] It is now proposed to consider in detail the course of each charge in turn.
[16] AB 100.
[17] AB 102.
[18] AB 106.
Count 1 – Negligent operation – the proceedings before the Board
The solicitor for Dr Lehmann made this submission in relation to this first count:[19]
Dr Lehmann initially operated on Gayle’s left hip, largely due to a handover issue. She had assisted another vet at the practice with the x-ray of the leg. At that stage they could not locate the x-ray markers to fix to the x-ray machine, which would have denoted which of Gayle’s legs featured in the x-ray film, which was the right leg, on the x-ray film itself.
She acknowledges that the error in operating on the wrong leg was her fault, as she was not fully informed. The x-ray film didn’t disclose which leg was dislocated, so she made an incorrect assumption based on where the bandage remnants were on the dog’s leg.
[19] AB 93.
Notwithstanding the consensus between the parties, the Board expressed some misgivings as to the pre-operative interpretation of the x-rays. As the hearing progressed the Board expressed further misgivings as to other issues detailed later in these reasons, and which ultimately led to a postponement of the hearing. Upon resuming on 8 October, a statement of agreed facts was submitted to the Board, which so far as relevant to count 1, read:[20]
1.On 30 November 2012 Dr Lehmann surgically removed the left femoral head on working dog “Gale” in error. Gale was experiencing joint pain and could not weight bear on her right leg, and was due to have her right femoral head surgically removed.
2.Dr Lehmann realised her error after commencing the surgery but prior to removing the left femoral head. She had damaged the ligaments in trying to reach the left femoral head and believed that Gale was likely to experience a better recovery if she proceeded to remove the femoral head.
3.After she removed the left femoral head, Dr Lehmann immediately proceeded to remove the disabled right femoral head.
…
5.Dr Lehmann did not take post-operative x-rays of the operation sites to ensure that the bi-lateral removal of the femoral heads was adequate. Such practice had not formed part of her training – either at university or “on the job”. Dr Lehmann used daily palpitation and manipulation to check for grinding, to ascertain whether surgery had been successful.
[20] AB 47.

One Board Member, a qualified veterinarian,[21] then proceeded to directly question Dr Lehmann’s version of events relating to the x-rays viewed by her before operating. The inquiry arose and proceeded in this way:[22]
[21] The Board was presided over by an experienced practicing solicitor and further constituted by a lay Member.
[22] AB 132-133.
PRESIDING MEMBER: Thank you for providing us with these x-rays. I’m sorry to do this to you, but having looked at what are now legible copies, which is why we wanted to see them, Dr Smith has some questions to ask of Dr Lehmann. I don’t expect her to answer him across the table, but they’re clinical questions, so you have to take instructions.
…
We’ve got some x-rays which are marked “left” and “right” …
DR SMITH: And this doesn’t have left and right markers. Now, just for clarification, these are digital x-rays, they’re not reproduced from a plain radiograph?
DR LEHMANN: That’s correct.
DR SMITH: Right, thank you. And I would assume the dog is placed in dorsal recumbency for the x-ray.
DR LEHMANN: Yes.
DR SMITH: It’s on its back, because it’s pretty hard to position a dog for this on its (indistinct) in that position. On that basis, I don’t know if you’re aware that it’s actually quite easy to tell which is left and right on an x-ray, because – excuse the graphical explanation, but if that was on an x-ray, you can actually see that’s the left and that’s the right.
So you don’t actually need markers to actually identify which is left and right with digital, because – the old-fashioned x-rays could be inverted and you might not be aware of which way you’re looking at them, but digital x-rays do actually present you a straight-out thing.
So there’s just a bit in the history saying, “Unable to find the marker to indicate which hip,” and on a digital x-ray it can actually be determined without the need for markers to do so.
PRESIDING MEMBER: I think it gives rise to the question, Ms Jackson, which will be the final question we will ask, I think – is whether in fact Dr Lehmann looked at these x-rays or whether she just relied on the assumption that she derived from where the residue of the elastoplasts was, because it seems from – and I’m not a vet either, as you know, but it seems from Dr Smith’s explanation that it’s readily apparent which hip it was from this x-ray, so one is forced to wonder whether the x-rays were looked at before the procedure was commenced.
Proceedings were then adjourned to enable instructions to be taken on the issue. Upon resumption a few minutes later the following exchanges took place:[23]
MS JACKSON: My instructions are that, when the x-rays were initially taken, Dr Lehmann was assisting Dr Heath, and this was the first opportunity that – this was the first moment that Dr Lehmann had had any care for the dog’s treatment – of that dog Gayle. She’d had nothing to do with the dog’s care previously.
She was standing holding the dog while the x-ray was taken, and Dr Heath then subsequently put the film – plate in the processor a couple of metres away and she – at that stage Dr Lehmann was expecting to assist Dr Heath with the surgery. Dr Heath said words to the effect of, “Yes, the hip’s still out,” and Dr Lehmann glanced – sorry, Dr Heath said words to the effect of, “The hip’s still out.” Dr Lehmann says that she just glanced at the screen, and this was where she failed, because at that stage she was still expecting to be doing the surgery with Dr Heath.
Then Dr Heath was subsequently called away on another clinical matter and Dr Lehmann proceeded without then familiarizing herself properly with the dog’s history, which I’m instructed she would have done had she anticipated initially that she was going to be doing the surgery by herself, because she hadn’t had any intervention with the dog’s care previously. My instructions from Dr Lehmann are, “That’s where I failed.”
PRESIDING MEMBER: So the fact that there’s no “L” and “R” on this is a bit of a furphy, isn’t it?
MS JACKSON: Yeah, it could …
PRESIDING MEMBER: So in a way it doesn’t matter. If you don’t look at it, it doesn’t matter really, does it? Okay. Unless there’s anything else …
[23] AB 134-135, Ms Jackson is the solicitor for Dr Lehmann.
Ultimately the Board, in effect, reserved its decision to ‘consider the matter’.[24]
[24] AB 136.
Two issues of moment arise from the quoted exchanges putting aside the propriety of questioning a party other than through counsel. First it is implicit that the Board – or Dr Smith at least - assumed it was a straightforward exercise to detect which was the left and right side and therefore x-ray markers were not required, whereas if the image could be inverted ‘you might not be aware of which way you’re looking at them’. This assumption was in fact erroneous. The position was that explained by Mr Abbott for Dr Lehmann during the appeal:[25]
The view of Dr Smith in the board was that the tags are not needed because it's an X-ray and it's on a computer screen and you can't effectively flip the computer screen. The position of my client then and now is that there is a procedure for flipping that image and it's only a one-button press of the computer system to flip that image electronically. Just as an application of good practice it's still appropriate to use the left and right markers. In any event, on this occasion the nurse there looked for the markers, she couldn't find the markers and so the X-ray was performed without those markers on it. The X-ray was performed by a Dr Heath who is a vet and was working at the surgery at the time. Dr Heath is also employed by BTG Australia, the owner of the dog, and performs veterinary services for that company.
[25] T8.32-9.9.
Hence the supposed absence of markers was beside the point, as Dr Lehmann had the capacity to flip the x-ray image had she wanted to. More to the point, Dr Lehmann did not misread the x-ray, because her attention was diverted from that exercise by the residue of the adhesive bandage on the left leg. It was this and not a misinterpretation of the x-ray that led her to think that was the correct leg. This course of events is precisely what she recorded in her notes quoted earlier, ‘could not find x-ray markers so did not mask which leg’ and it is what she wrote in her letter of 1 February 2013 – also quoted earlier ‘(T)his adhesive … on the left side of her body … is what led to the operation having been performed on the incorrect leg’.
In fact her position was consistent on this question as illustrated by what her solicitor initially put to the Board on the topic:[26]
She acknowledges that the error in operating on the wrong leg was her fault, as she was not fully informed. The x-ray film didn’t disclose which leg was dislocated, so she made an incorrect assumption based on where the bandage remnants were on the dog’s leg.
[26] AB 93.
The second observation is that the remark of the Presiding Member, ‘this is a bit of a furphy’, judging from an objective reading of the transcript was obviously taken by Ms Jackson as meaning the issue had dissipated. Had she thought otherwise, she was in a position to correct the erroneous factual assumption postulated by the Board, principally through Dr Smith. Moreover, there was nothing express or that could be remotely implied, that adverse consequences were contemplated by these exchanges, or that Ms Jackson had effectively conceded the issue.
Count 1 – The reasons of the Board
The reasons of the Board were published on 6 November 2013. The Board gave effect to the false, unproven and untested assumption that ‘there is no prospect of accidentally flipping over a digital x-ray’, when there was in fact such a prospect.[27] The Board further concluded:[28]
4.6Not only has Dr. Lehmann, through her Counsel, evidently sought to mislead the Board as to the reason for her operating on the wrong hip, she has also made this same false statement in her clinical records. This is a further aggravating factor.
[27] AB 10, 4.3.
[28] AB 11, 4.6.
This conclusion was founded on the view that this represented a departure from the previous position assented on behalf of Dr Lehmann, and a perceived concession that ‘the lack of left or right markers on the x-ray…was simply a “furphy”’.[29]
[29] AB 10-11, 4.4.
As has been demonstrated, there was no such false statement in her records, no departure of position and no relevant concession was made by her solicitor. These conclusions clearly premise the outcome of count 1, as is apparent from what the Board said in imposing the fine of $4,000 ‘based on the Statement of Agreed Facts (as expanded upon during the course of submissions on 8 October 2013)’.[30]
[30] AB 12, 5.4.
Count 1 – The role of specialist Tribunals
It is fundamental that disciplinary bodies having ‘legal authority to determine questions affecting the rights of subjects’, are subject to the principles of natural justice: Twist v Randwick Municipal Council,[31] FAI Insurances Ltd v Winneke.[32] These principles oblige the decision-maker to give reasonable notice of the matters to be considered and the corresponding opportunity to respond: Heatley v Tasmanian Racing and Gaming Commission,[33] FAI v Winneke.[34] Such obligations ordinarily require the party affected to be advised of issues the Tribunal is considering, and informed of the nature and content of any material from which adverse findings might be based: Dixon v Commonwealth.[35]
[31] (1976) 136 CLR 106, 109.
[32] (1982) 151 CLR 342, 409-410.
[33] (1977) 137 CLR 487, 513-414, 516.
[34] Above, 383-384.
[35] (1981) 61 ALR 173, 179.
These obligations become particularly acute when professional reputations are in question: Bakewell v MacPherson,[36] just as they do when a Tribunal has before it information obtained from some other source likely to affect the outcome of the decision to be made: Kioa v West.[37]
[36] Unreported, 25 September 1992 (Supreme Court of South Australia, Full Court; BC9200236, at BC26.
[37] (1985) 159 CLR 550, 587 (Mason J), 628 (Brennan J)
That is not to say a Tribunal, as a specialist Tribunal, cannot act on its own understanding of matters, however before doing so it was obliged to furnish fair and concise notice and the fair opportunity to correct or contradict that understanding. Viscount Simon LC expressed the position as follows in General Medical Council v Spackman:[38]
It’s members may usefully bear in mind the language of Lord Loreburn, L.C., in Board of Education v Rice where, dealing with the decision of an administrative body the Lord Chancellor said that “they must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial … They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”.
[38] [1943] AC 627, 636; (I) [1911] AC 179, 182.
It has been long recognized that domestic Tribunals are entitled to act upon their own knowledge of the facts in issue. In Australian Workers Union v Bowen (No 2),[39] Dixon J said:
It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself.
[39] (1948) 77 CLR 601, 628.
Consistently with this statement, the capacity of expert or professional members of a Tribunal or Board to make use of expert knowledge in judging matters before them was acknowledged in Kalil v Bray,[40] by Moffitt P, with some important reservations:
Where a tribunal of experts is empowered to judge matters within their expertise, it would be a denial of a dominant reason for so constituting the tribunal, that they, or a superior court, deny to them the use of their expert knowledge in judging the matter before them.
…
However, lest what has been said should lead to any unqualified and unannounced use of expert knowledge by an expert tribunal. I should emphasize that the subtle demands of justice required of any tribunal should not be overlooked. There are considerable dangers in an expert tribunal using expert knowledge in respect of which there is a genuine difference of view within the body of the profession concerned. The issue should then be dealt with by evidence. In any event it is best that the subject matter of expert opinion considered relevant by the expert tribunal be clearly brought to the attention of the parties at the appropriate time.
This decision was followed by successive decisions of the New South Wales Court of Appeal in Hall v New South Wales Trotting Club Ltd,[41] Maloney v NSW National Coursing Association Ltd,[42] and Bowen-James v Delegate of the Director-General of the Department of Health.[43]
[40] [1977] 1 NSWLR 256, 265.
[41] [1977] 1 NSWLR 378.
[42] [1978] 1 NSWLR 161.
[43] (1992) 27 NSWLR 457, 481.
White J observed in Kruger v Pharmacy Board of South Australia,[44]
The constitution of the Pharmacy Board indicates that the members of the Board are entitled to take into account (but not substitute for evidence) their own expert knowledge … and of the kind of departure from accepted professional standards that amounts to ‘unprofessional conduct’. Whilst members of the Board are entitled to use their expertise, they should not substitute expertise for evidence.
Matheson J expressly agreed with this position in Fung v Wilde.[45] The same passage was quoted with approval by Cox J in Chan v Medical Board of South Australia,[46] who then added:
There is authority, then, for the view that a body such as this Tribunal may in certain circumstances, with adequate safeguards to the person charged, use its own professional knowledge as a substitute for the evidence of witnesses. The restraint that natural justice requires – the equity and good conscience of the matter – is procedural rather than evidentiary … there are the recent statements in this Court that a Tribunal of this kind may not use its own expertise, relevant or not as a substitute for evidence.
[44] (1979) 22 SASR 339, 345.
[45] (1986) 41 SASR 232, 242.
[46] (1986) 41 SASR 434, 447.
It must follow then that the Board erred in giving effect to its own view of the facts concerning the x-ray without supporting evidence, by acting on an unproven and untested assumption concerning the pre-operative x-ray facility and without making it sufficiently clear that it was considering making adverse findings in respect of it. It necessarily follows there is ‘cogent reason’ to depart from the decision of the Board on that aspect of count 1.
Count 1 – Subsequent operation on the correct hip
The same may be said about another misgiving expressed by the Board in relation to the decision to proceed and operate on the correct hip. No complaint about this procedure was made by the Registrar. It surfaced as ‘an issue for the Board’ during the hearing, as articulated in the reasons in terms of:[47]
… issues relating to the clinical decision by Dr Lehmann to proceed to operate on the second hip when she realised she had operated on the wrong hip.
[47] AB 95-96, 1.61.
Counsel for the Registrar Mr Nguyen, made no such suggestion either. In point of fact he expressly informed the Board that it was ‘the Registrar’s position that Dr Lehmann was entitled to go onto the right hip, because that was the procedure that she was authorized to do’.[48]
[48] AB 96.
Even so the Board persisted with the issue during the first day of the hearing during his submissions:[49]
PRESIDING MEMBER: There’s also the issue which I don’t think has been resolved as to the – immediately operating on the other leg and not taking an x-ray even when she – sorry, the other hip – and not taking a post-operative x-ray in accordance with usual practice even when she realized that she’d operated on the wrong hip and had moved immediately to operate on the correct hip, if I can use that terminology.
It’s one thing to say it’s not routine to take a post-operative x-ray; it’s another thing to say, “I didn’t take one even when I knew I’d operated on the wrong hip and proceeded to operate on the other hip as well.” I would suggest that that’s a significant issue.
[49] AB 108.
Following an adjournment of some twenty minutes, matters soon returned to this question as agitated by the presiding Member:[50]
PRESIDING MEMBER: There is a concern clinically that, when she had operated on the wrong hip, Dr Lehmann perhaps should have not moved on to operate on the other hip. She should have given this animal the best chance of survival by referring the animal on to a specialist orthopaedic surgeon rather than moving straight on to the correct hip and doing the operation and hoping for the best, which seems to have been what’s happened.
I mean, obviously we’ll take submission in relation to that, but the board is concerned about that and we’re entitled to obviously have our expert member of the board articulate those things. So I’d like to hear from the parties as to what you think we might do about that, because the board is concerned. It’s not mentioned in the complaint, but the board is concerned that the complaint does not cover everything.
[50] AB 112.
After dealing with another question, counsel submitted this on behalf of Dr Lehmann:[51]
MS JACKSON: With respect to the issue about the decision to proceed onto the right hip, I’m instructed that we’re not prepared to proceed with the plea on the basis that this is incorporated. It doesn’t form part of the particulars of negligence and it is a matter that the respondent may well choose to obtain expert evidence in relation to.
[51] AB 113.
Immediately thereafter the following exchanges occurred:[52]
MS JACKSON:    I would call upon the board in this circumstance to say, well, if they do want to expand it to deal with that, then to allow the respondent to withdraw the plea and ---
PRESIDING MEMBER: I don’t think that would be inappropriate, Ms Jackson, but you’ll appreciate that this board has concerns from a clinical perspective. Given the role of this board in these proceedings, they have to be raised. Do you have anything to say about that, Mr Nguyen?
MR NGUYEN:     It would appear obvious, presiding the matter, the matter cannot be finalized today, given that the board has requested further documents.
PRESIDING MEMBER: Yes.
MR NGUYEN:     In the period of the adjournment the registrar will take the matter back and seek guidance from the complaints committee with respect to that and, if need be, the complaint will need to be amended accordingly.
PRESIDING MEMBER: I suppose it’s a matter for the registrar, and I’m not trying to bully the parties into doing that, but, as I said, if there’s a clinical issue which the registrar and yourself – neither of whom are vets, obviously – have missed, we have the expertise on this side of the table and so we must raise it.
But I suppose that’s a matter – I don’t think this board – I’m not sure whether this board has the power to direct the registrar to expand the scope of the complaint in respect to either matter, but the board isn’t bound by the Rules of Evidence and I think there’s at least one thing we know about; about the second section 45 breach.
[52] AB 113.
At the resumed hearing on 8 October, the Presiding Member immediately expressed ‘some difficulties’ with the statement of agreed facts submitted to the Board in the meantime, two relating to the decision to operate on the correct hip. These read:[53]
3.After she removed the left femoral head, Dr Lehmann immediately proceeded to remove the disabled right femoral head.
4.Dr Lehmann regrets not contacting Gale’s owner prior to continuing with the surgery to the right femoral head, as she believed that it was in the dog’s best interests to proceed with the surgery given that Gale was lame and could not weight bear on her right leg in any event.
Dr Smith articulated the concern of the Board in this way: [54]
DR SMITH: Yes, exactly that. The nature of a dislocated hip is that all the ligaments are torn, ruptured, and the standard practice in that situation is to attempt to relocate the hip to see if it will sit. As it happened with the right hip, in this situation the reason given for proceeding with the femoral head excision was that the ligaments were ruptured.
Was it considered at that time that perhaps relocating the hip and treating it as a subluxated hip at that point or, alternatively, considering – if not up to that sort of surgery itself, considering a toggle pin or some similar surgery that would have rescued that hip rather than doing an excision?
[53] AB 47.
[54] AB 118-119.

Proceedings were adjourned shortly thereafter to allow both sides to consider their positions. Upon resumption, it was submitted the decision to proceed to the second hip was made as a matter of clinical judgment for these reasons:[55]
MS JACKSON: … by the time Dr Lehmann appreciated her mistake with her approach to the left femoral head, the muscles were too badly damaged to even do a hip and toggle-type procedure. She had done more damage than could have achieved an optimal outcome with that.
She was aware of the hip and toggle procedure and indeed that was reinforced to her in the course that she subsequently did (indistinct) the dog. That was again – formed part of that. And once again even having that refresher in that course, she appreciated that. By the time she knew she had made a mistake in surgery, too much damage had been done here.
[55] AB 128.
In its reasons, the Board referred briefly to this explanation, and then observed ‘(N)o evidence on this point was called’.[56] It is not immediately apparent whether it took this aspect of the matter into account when imposing the fine of $4,000, apart from its indication noted earlier, that its resolution of counts 1 and 2 was ‘based on the Statement of Agreed Facts (as expanded upon during the course of submissions on 8 October 2013).[57] Since the combined fine cannot be sustained for the reason already given, it is unnecessary to resolve the issue, except to indicate that a reassessment of an appropriate fine, could not proceed on the basis that it was wrong to operate on the correct hip, in the absence of evidence on that topic.
[56] AB 9, 3.9-3.10.
[57] AB 12, 5.4.
Count 1 – Failure to take a post operative x-ray
The third particular of count 1 was ‘failing to undertake post-operative x-rays to check on progress of such surgery.[58] The Registrar’s counsel did not mention this during his initial submission. However it was admitted on behalf of Dr Lehmann:[59]
It’s an element of the charge of unprofessional conduct by way of negligent treatment that she ought to have taken post-operative x-rays to ensure that the bilateral removal of the femoral heads was adequate. I’m instructed that training for this type of surgery is effectively conducted on the job. Whereas there is some teaching done at university, there is no practical experience of the surgery until one is actually in practice.
De Lehmann initially worked at the Clare Valley Veterinary Service under its then principal Tim Lawrie. He showed her how to do the operation and she supplemented this knowledge with textbooks and surgery manuals. It was not Dr Lawrie’s practice to conduct post-operative x-rays as a matter of course, so Dr Lehmann’s understanding was based on what she had been taught and observed, and that was that x-rays would only be taken if there was some clinical indication for doing so.
After the surgery Dr Lehmann physically manipulated the dog’s leg on a daily basis during her recovery at the clinic to ensure that there was no crunching or grinding. The joints appeared to be moving smoothly, so she did not believe that post-operative x-rays were warranted.
[58] AB 15, 1.63.
[59] AB 94-95.
These assertions were not contradicted or disputed by the Registrar. Nevertheless the Board later raised the spectre of ‘usual practice’ of taking a post-operative x-rays.[60] Ms Jackson returned to the issue during the second phase of the hearing by accepting there was a higher duty of care to take a post-operative x-ray, because she had made a mistake,[61] a concession made in the context of an agreed fact that was then before the Board concerning this issue:[62]
5. Dr Lehmann did not take post-operative x-rays of the operation sites to ensure that the bi-lateral removal of the femoral heads was adequate. Such practice had not formed part of her training – either at university or “on the job”. Dr Lehmann used daily palpation and manipulation to check for grinding, to ascertain whether the surgery had been successful.
[60] AB 108.
[61] AB 128.
[62] AB 47, [5].
All the same the Board found Dr Lehmann guilty of unprofessional conduct on this account:[63]
4.8Despite this, her failure to take further x-rays when she realized she had operated on the wrong hip, or after she had completed the procedure on the other hip as well is difficult to understand. This was hardly a routine situation. Post-operative x-rays would have been clinically mandated in the circumstances and may well have assisted the post-operative care and management of the animal.
4.9There will be a further finding that there is proper cause for disciplinary action against the respondent and that she is guilty of unprofessional conduct.
[63] AB11-12, [4.8]-[4.9].
Although it is not expressed in so many words, this stance must have contributed to the imposition of the fine of $4,000. The consideration that Gale was euthanized ‘due to the conduct of Dr Lehmann’ cannot be substantiated for the reasons mentioned earlier.[64] The fact of the matter is that the dog was regrettably put down for economic reasons and that it was not part of the complainant’s case that it was otherwise. This aspect of the Board’s finding must therefore be quashed as unsubstantiated by the evidence.
[64] AB 8, [3.8].
Count 2 – Post-operative disclosure
The precise terms of the charge was the failure to ‘advise the dog’s owner or its employees’ that the wrong hip had been operated on, that the left femoral was removed, and to disclose ‘the full extent and nature of her error’.[65] As seen from the clinical note, Dr Lehmann in fact rang Dr Heath shortly afterwards and explained to her that she had ‘operated on incorrect leg initially …’.[66] Dr Heath was an employee of the owner. Even though Dr Heath knew the full extent of what transpired, she did not feel ‘… it was her place to fully inform the company’, whereas Dr Lehmann had mistakenly believed the owner’s senior veterinary surgeon Dr McTighe, was made aware of the error.[67] After the operation she had also spoken to the dog’s handler, another employee of the owners, ‘I advised the outcome of the operation’.[68] She additionally explained in her letter to the owners of 1 February 2013 that she believed the handler ‘to be Gale’s owner and I was not aware at the time that I needed to communicate the situation more clearly’ and ‘(T)o date, I am still completely unaware of the organizational structure of [the owner] and to whom we should be reporting to at any level as our clinic has never been given this information’.[69]
[65] AB 39, [2.2]-[2.3].
[66] AB 33.
[67] AB 99.
[68] AB 24.
[69] AB 24.
Before Christmas 2012, Dr Heath requested Dr Lehmann contact Dr McTighe. She tried twice unsuccessfully before Christmas, finally speaking to her on January 7 or 8, 2013. This topic was also dealt with by way of the statement of agreed facts.[70]
9.Shortly after the surgery, BTG employee Dr Heath was aware of the full nature and extent of the error. In early December 2012 Dr Heath asked Dr Lehmann to contact BTG chief veterinarian Dr Maggie McTighe, and inform her of the problems with the surgery. Dr Lehman advised Dr Heath that she would do so.
10.In December 2012 Dr Lehmann attempted to telephone Dr McTighe, without success.
11.Dr Lehmann spoke with Dr McTighe on 7 January 2013 and erroneously believed that Dr McTighe was then aware of the error with the surgery. She did not advise Dr McTighe that the dog’s left hip had been operated on and that the left femoral head had been removed.
12.BTG management became aware of Dr Lehmann’s error in the removal of the left femoral head when Gale was assessed by veterinarian Dr John Koch at the Clare Animal Hospital on 9 January 2013.
[70] AB 48 [9]-[12].
It was submitted to the Board that although Dr Lehmann had telephoned the dog’s handler afterwards and told him ‘she had operated on the wrong leg initially and then went on and operated on the right leg … she acknowledges that she didn’t fully explain that the left femoral head had been removed’.[71] The Registrar accepted she had notified the handler at the time of discharge and that Dr Heath ‘a mutual employee … was aware of the extent of the error’. He submitted the gravamen of the complaint was that she failed upon eventually speaking directly to Dr McTighe, to ‘mention … that the left femoral head had been removed.[72] He articulated the complaint on the basis that:[73]
She ought to have at the very least and as a matter of course contacted persons holding positions of authority in the company that owned the dog, such as the manager of the property where the dog was kept or one of a number of veterinary surgeons employed by that company, to advise them of her error and to discuss options with respect to the after-care of the dog.
It was not until 8 January this year, some six weeks after the surgery that Dr Lehmann spoke directly to Dr McTighe, … Specifically, she failed to mention to Dr McTighe that the left hip had been operated on and that the left femoral head had been removed.
[71] AB 98-99.
[72] AB 84.
[73] AB84.
The Board concluded that Dr Lehmann ‘sought to conceal or at least minimize the enormity of what she had done’, that the ‘initial failure to make full disclosure … must be seen as a factor aggravating the seriousness of the negligence and unprofessional conduct’, and that had ‘full disclosure been made … this animal’s chances of recovery and ... survival might have been improved’.[74]
[74] AB 8, 3.4 - 3.6.
There was no evidence before the Board supporting the latter conclusion, as the Board itself acknowledged:[75]
No evidence or agreed facts were available to the Board on this issue but an inference as to the possibility or even likelihood of a better outcome is available.
[75] AB 8, 3.7.
Indeed it ran contrary to the agreed fact that it ‘was not a necessary consequence of the outcome of the surgery performed by Dr Lehmann ... that the dog be euthanized’ and for that matter the Board’s concerns were not articulated by it during the hearings.[76] Furthermore the Board went beyond the substance of the complaint which was the failure to fully explain the events to Dr McTighe. Dr Lehmann had already made full disclosure to Dr Heath, who would understand the events in her capacity of a veterinarian, so the initial failure to make full disclosure simply cannot be sustained. The conclusion of the Board also fails to acknowledge that Dr Lehmann understood Dr Heath passed the information on, which was a reasonable assumption in the circumstances. The sting in the complaint then could only have related to providing the complete picture to Dr McTighe, only because Dr Heath asked her to do so, and which Dr Heath already knew anyway.
[76] AB 48, 15.
Given these circumstances there is no foundation in the evidence for the conclusion that Dr Lehmann concealed, ‘or at least minimized the enormity of what she had done.[77] The fact of the matter is that she made a full disclosure to an employee of the owner shortly afterwards. Her failure was to do the same to Dr McTighe. That finding cannot therefore stand. She ought to have been disciplined on the limited basis that she failed to tell Dr McTighe on 8 January that the left femoral head had been removed, as she was asked to.
[77] AB 8, [3.4].
For these reasons the conclusion reached by the Board cannot be sustained; they are not supported by the underlying facts, to a large measure they run contrary to facts placed before the Board and they went beyond the ambit of the charged allegations against her. These conclusions furnish additional reasons why the combined fine must be set aside. Given that she is already admonished, there is no call for any further penalty on this account. Since the complaint was pressed against Dr Lehmann by the Registrar on the footing that censure was appropriate, no lesser fine ought be substituted in respect of those two counts, although the censure should stand.
Count 3 – Disclosure of information to a claim
Count three charged unprofessional conduct in the failure to provide the Board within 30 days of 8 February 2013 ‘prescribed information’ in relation to a claim made by the owner for the payment of $3,000, being the estimated cost of buying and training a replacement dog.[78] The obligation to report derives from Section 45 of the Veterinary Practice Act, which reads:
[78] AB 26.
45 – Information relating to claims against veterinary surgeons to be provided.
If a person has claimed damages or other compensation from a veterinary surgeon or other person for alleged negligence committed by the veterinary surgeon in the course of providing veterinary treatment, the veterinary surgeon must—
(a) within 30 days after the claim is made; and
(b) within 30 days after any order is made by a court to pay damages or other compensation in respect of that claim or any agreement has been entered into for payment of a sum of money in settlement of that claim (whether with or without a denial of liability),
provide the Board with prescribed information relating to the claim.
Maximum penalty: $10,000.
Regulation 6 of the Veterinary Practice Regulations 2005 (SA) furnishes the content of prescribed information as follows:
6 – Prescribed information – claims against veterinary surgeons.
For the purposes of section 45 of the Act, the following information is prescribed:
(a)    the nature of the veterinary treatment that is alleged to have been carried out negligently;
(b)   full details of the alleged negligence;
(c)    details of the place at which the negligence is alleged to have occurred;
(d)   the time at which and the date on which the negligence is alleged to have occurred;
(e)    full details of the injury or loss suffered or allegedly suffered by the claimant as a result of the alleged negligence;
(f)    if an order has been made by a court to pay damages or other compensation in respect of the claim or an agreement has been entered into for payment of a sum of money in settlement of that claim, details of the order or agreement (including the amount ordered or agreed to be paid).
It is regulation 6(f) that was in question here.
Quite apart from the definition of ‘unprofessional conduct’ quoted earlier, the failure to comply with any provision of the Veterinary Practice Act amounts in and of itself to proper cause for taking disciplinary action pursuant to s 61(2)(a) of the Veterinary Practice Act. This provides:
61—Cause for disciplinary action
…
(2) There is proper cause for disciplinary action against a veterinary services provider if—
(a)the provider has contravened or failed to comply with a provision of this Act; or
The case almost certainly proceeded before the Board on the unstated assumption that s 45 of the Veterinary Practice Act created an offence of strict responsibility. There is a presumption at common law that proof of intent is required before a person can be held guilty of a grave criminal offence: He Kaw Teh v The Queen,[79] applying R v Sault Ste. Marie.[80] In that latter case the opinion of the court was delivered by Dickson J, who classified offences into three categories:[81]
1.Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
[79] (1985) 157 CLR 523.
[80] [1978] 2 SCR 1299.
[81] [1978] 2 SCR, pp 1325-1326.
An offence under s 45 of the Veterinary Practice Act probably comes within either categories 2 or 3 according to these definitions.
At common law an honest and reasonable belief in the existence of circumstances, which if true, would make the act charged an innocent one, furnishes a good defence to cases coming within categories 1 and 2: R v Tolson,[82] Thomas v The King,[83] Mayer v Marchant.[84] On the other hand a statutory offence which on its proper construction imposes absolute liability, is one which excludes both the requirement of mens rea and also defences of honest and reasonable mistake: Bergin v Stack,[85] Zarb v Kennedy,[86] Jiminez v The Queen,[87] Lim Chin Aik v The Queen.[88] A defence of mistake is available in a serious statutory offence of strict responsibility, unless excluded by express language or by necessary implication: CTM v The Queen,[89] R v Clarke.[90] Such regulatory offences are usually found in motor vehicle and road traffic legislation, policing, welfare, health and the like. An example is to be found in Norcock v Bowey.[91]
[82] (1889) 23 QBD 168, 193.
[83] (1937) 59 CLR 279, 292.
[84] (1973) 5 SASR 567.
[85] (1953) 88 CLR 248.
[86] (1968) 121 CLR 283.
[87] (1992) 173 CLR 572; 581-2.
[88] [1963] AC 160.
[89] (2008) 236 CLR 440.
[90] (2008) 100 SASR 363.
[91] [1966] SASR 250.
The classic statement of the defence of mistake is that contained in Proudman v Dayman:[92]
It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.
The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like, the Legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.
Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation.
The defence cannot however apply to a mistake of law: Power v Huffa.[93]
[92] (1941) 67 CLR 536, 540 per Dixon J.
[93] (1976) 14 SASR 337, 344.
Mr Nguyen pitched the case for the Registrar on this footing, so far as the failure to report the claim made by Gale’s owner was concerned:[94]
Pursuant to the legislation, Dr Lehmann ought to have notified the board and provided prescribed information to the board and provided prescribed information to the board with respect to that claim by 10 March. She clearly failed to do so. Admittedly, she did subsequently provide that information, albeit rather belatedly, via letter to the registrar dated 2 April and she only did so after the registrar had notified her of the complaint made against her and sought an explanation as to why she had failed to provide the necessary information.
[94] AB 85.

The letter of 2 April referred to therein, attached ‘the relevant documents’ except for her letter to the owner of 4 March 2013, which the Board already had beforehand.[95] Her solicitor described the omission as simply ‘an oversight’.[96] The explanation for not reporting the settlement to the Board in the first instance was that she was unaware of the obligation. That being a mistake of law it would not assist her. Once becoming so aware, she considered the Board was already appraised of the necessary details, because of correspondence the owners had sent to it, detailing the broad nature of the claim, including the payment of $3,000 compensation.
[95] AB 18 and 32.
[96] AB 100.
Not satisfied with this explanation, the Presiding Member probed Mr Nguyen as to whether the claim had settled. When told that it had, she suggested twice that this constituted ‘another breach of section 45 as it requires a second notification following resolution of the claim’.[97] So much may be accepted, as s 45(a) of the Veterinary Practice Act mandates the provision and information relating to a claim, whereas s 45(b) mandates additional disclosure of a court order or agreement ‘for payment of a sum of money in settlement’. All that was missing was a formal copy of the terms of settlement. It might be noted that the Registrar had made no request for a copy of the agreement, knowing there had been a settlement. There was no reason to suppose it would not have been provided had it been sought.
[97] AB 106-107.
Returning to the course of the hearing, an adjournment was then taken to consider the position, as Ms Jackson unsurprisingly had no instructions on the point. During the adjournment a copy of the settlement agreement was given to Mr Nguyen.[98] He thereupon acknowledged ‘technically there has been another breach of section 45’.[99] Ms Jackson indicated on behalf of Dr Lehmann a preparedness ‘to have the complaint expanded to deal with that today’, and she repeated it was understood by Dr Lehmann that the Registrar was aware the claim had settled.[100] The proceedings were shortly thereafter adjourned again to enable the Registrar to consider what course should next be taken. After consultation with the complaints Committee and ‘exercising her prosecutorial discretion’ the Registrar declined to amend the complaint to add a second allegation of failing to disclose, having formed the view it was ‘not in the public interest to make the suggested amendments to the complaint’.[101]
[98] AB 110.
[99] AB 111.
[100] AB 112.
[101] AB 46.
Regulation 6(f) of the Veterinary Practice Act is not all that precise or exacting in the requirement to furnish ‘details of the order or agreement’. It does not require the provision of either in documentary form, at least in so many words. It appears tolerably clear from what Mr Jacobi, counsel for the Registrar, said on appeal, that as a matter of practice, a copy of the order or agreement is usually required. It might be a wise precaution for veterinary service providers to do so. The only additional information not furnished in this instance (before the provision of the formal agreement itself), was that there was no admission of liability, otherwise the Board was aware of the other essential attributes of the settlement itself.
It was accepted the Registrar was aware the claim had settled.[102] Despite the interim briefing note indicating that no application to amend the charges would proceed, the Board remained perplexed ‘… why there is not an amended complaint that addresses the second breach of section 45’.[103]
[102] AB 12, AB 48, 21.
[103] AB 123.
The following exchange of significance followed between counsel for the Registrar and the Board:[104]
[104] AB 124-126.
MR NGUYEN: Notwithstanding that, Madam Chair, both the registrar and the committee members were of the view that the breach was a technical breach and therefore were of the view that it would not add to the overall substance of the complaint, and therefore it was on that basis that the election was not to proceed with amending the complaint.
PRESIDING MEMBER: Well, I’m afraid the board has a bit of an issue with that, because we’ve got complaint that’s laid in June which – and I know Dr Lehmann went overseas, so we didn’t have a preliminary hearing for some time. A complaint is laid in June which includes an allegation of a breach of section 45, and that apparently didn’t precipitate any action on the part of Dr Lehmann, nor did it precipitate any action on the part of the registrar.
So the board takes the view that the provisions of the act should be observed. I suppose another way of dealing with section 45 – and I’d welcome submissions in relation to this – is, it seems to me that section 45 is actually an offence which would ordinarily be prosecuted in the Magistrates Court. Is that correct?
MR NGUYEN: That’s correct, yes.
PRESIDING MEMBER: I suppose that’s another way of dealing with it.
MR NGUYEN: The board should be aware that if you are thinking of – contemplating that, that may actually limit the scope of the disciplinary powers that you can …
PRESIDING MEMBER: Yes, absolutely. I’m aware of that but, as I said, the board takes this seriously, Mr Nguyen, and I thought I’d made that clear last time. Perhaps you could consider that.
But one other way of dealing with it is that we don’t address the second breach of section 45 today at all and the board or the registrar, or whoever makes the decision, can go away and think about whether there might be a prosecution in the Magistrates Court in relation to the second breach.
MR NGUYEN: Madam Presiding Member, I wonder whether or not – given paragraph 22 of the statement of agreed facts, I was hoping that the board would proceed on the basis that they would take that into consideration, without actually being the subject of an amendment complaint, because by virtue of – including paragraph 22 of the statement of agreed facts, Dr Lehmann has accepted that there was a breach, albeit a technical breach.
PRESIDING MEMBER: Ms Jackson said last time; page 41 of the transcript:
‘My instructions are that the registrar was aware that the claim had settled but concedes Dr Lehmann had not provided all the information as is required under section 45.’
And that is a very proper concession, if I may say so:
‘We are prepared to have the complaint expanded to deal with that today, or in due course in written submissions, if that is how the board prefers to proceed’.
That was the board’s expectation; that at the very least there would be an amendment of the complaint to encompass that second breach of section 45. As I said, we accept the submissions that you’ve made in the briefing note in relation to the clinical issues but, I’m sorry, I’m still nonplussed in relation to that.
So perhaps you can go away and have a think about that. Section 45 is something that can be dealt with in another place if necessary, so maybe we don’t need to take that much further, but you might like to consider whether the registrar is, after Ms Jackson’s offer, prepared to expand the terms of the complaint today. If not, that’s a matter for the registrar, of course, but there are other venues available …
The reference therein to paragraph 22, was a reference to the statement of agreed facts:[105]
22.Dr Lehman regrets not advising the Board of the terms of the claim made by BTG. However, that failure, having regard to the circumstances of the matter, was a technical breach of s.45 of the Veterinary Practice Act 2003.
[105] AB 48, 22.
The second hearing of 8 October was then adjourned for a second time. Upon further resumption thirty-five minutes later, counsel for the Registrar indicated that ‘after much consideration’ and ‘in an effort to finalise the matter today’:
… and by consent seeks leave to amend the complaint that’s currently before the board dated 30 August by including a fourth count, very similar to count 3, but in this respect: it’s a failure to advise the board of the settlement of the claim.
It was put on Dr Lehmann’s behalf that the claim settled in March, and that she understood she had already satisfied the reporting requirements in her letter to the Board of 2 February 2013.[106] Although she did not say so expressly, it is evident that Ms Jackson consented to this procedure for the sake of finalising the matter. The amendment was not reduced to writing as it should have been, although the Board referred to ‘a new paragraph’ in its reasons.[107]
[106] AB 130-131.
[107] AB 6, 2-9.
Regrettably, matters did not rest there. Even though the Registrar accepted the second breach of s 45 was technical, and even though no additional penalty was sought with respect to it, the Board nevertheless considered ‘a second instance of a breach of s 45 was not a mere technicality … it is a serious matter’.[108] It went on to record:[109]
2.7 Whether she sought advice on this is not known. However, a second instance of breach in so short a period of time cannot be ignored. The fact that Dr. Lehmann acted in breach of Section 45 on two occasions is a matter of concern to the Board.
[108] AB 4, 1.11.
[109] AB 5, [2.7].
These conclusions rested on the preceding findings:[110]
2.2 The Board is of the view that if, as her Counsel intimated, Dr. Lehmann’s failure to notify the Board of the claim pursuant to Section 45(a) of the Veterinary Practice Act was due to her ignorance of that provision of the legislation, from at least the date of service of the original form of the Complaint against her, Dr. Lehmann was aware of the provisions of Section 45 and, thus, could no longer plead ignorance in relation thereto.
2.3 The Board finds that from at least the date of service of the original form of Complaint, Dr. Lehmann was, or should have been, aware of the provisions of Section 45 of the Veterinary Practice Act and thus should have immediately understood her obligations and, pursuant to Section 45(b) of the Act, notified the Board of what is now understood to have been a settlement of that claim on or about the 9^th of May 2013.
2.4 This is no mere technical breach. Whatever arguments Dr. Lehmann might have available to her in relation to her first breach of Section 45(a), were not available to her in relation to the second breach of Section 45(b).
The Board proceeded to fine her $1,000 for breaching s 45(a) of the Veterinary Practice Act on the original count 3 and $1,500 for breaching s 45(b) thereof, the unformulated ‘second breach’.
[110] AB4, 5.
It was accepted that Dr Lehmann simply misunderstood the obligation to advise the Board of any claim and that in any event she believed she had complied by the provision of the substantial details by means of various correspondence sent to the Board. They were not intentional and were accepted by the Registrar as ‘technical’. The claim for compensation was made on 8 February 2013, but the Board was not so advised before 10 March, that is not within the required 30 days. It was accepted by the Registrar that the required information was duly provided ‘rather belatedly, via letter to the Registrar dated 1 April’ after being notified of the obligation.
Since the failure to disclose was entirely unintentional and since Dr Lehmann had understood there was substantial compliance because of information the Board already had, there was no proper basis to fine her $1,000 on account of the first breach, especially bearing in mind that the Board was proposing to impose fines to 40 per cent of the maximum available to it in relation to other aspects of the case. For similar reasons, the second breach of the disclosure provisions were not serious at all. Dr Lehmann genuinely understood that she had complied with the disclosure obligations. It is ambiguous as to what the regulations actually required and the Registrar was untroubled by the information she already had. Should she have wanted a copy of the agreement it would have been immediately provided. The breach if there was one, was not only technical, it was trivial.
It was submitted on appeal that the finding of professional misconduct founded on this second breach of s 45 should be set aside as arising from misplaced insistence by the Board that it should proceed in that way. No doubt both sides felt under some pressure to appease the Board and submit to the proposal to ‘amend’, for the sake of expediency. It appears from a fair reading of the transcript that Dr Lehmann consented to the course only in order to bring proceedings to an end. In that way she can be said to have waived insistence on due or formal process: Vakauta v Kelly.[111]
[111] (1989) 167 CLR 568, 577-579, 586-588.
Be that as it may, in the circumstances the combined fines of $2,500 for those breaches must be quashed, as the conclusion that they were other than mere technicalities, is not supported by the underlying material placed before the Board. The finding of unprofessional conduct on the basis of the supposed second breach of s 45 of the Veterinary Practice Act cannot stand for additional reasons. In the first place it is far from clear that the failure to provide a copy of the settlement agreement falls within the description of ‘details of the … agreement’ prescribed by regulation 6(f), particularly given the information the Board had anyway. Furthermore, it appears that a defence of mistake may be open to her, and yet this was not explored.
Given the above matters there is no utility to be served in remitting the matter. First, the Registrar was of the view that the public interest was not served by bringing the charge. Second, it does not in the circumstances it does not meet the threshold requirement of amounting to ‘proper cause for taking disciplinary action’, required by s 62(4) of the Veterinary Practice Act. Third, in the entire context of the case it has now become a frivolous and vexatious complaint within the meaning of s 62(2) thereof. Fourth because it appears that the situation only arose ‘from a misunderstanding between the parties’, such that a proper disposition of the matter was to require an attendance before the Registrar ‘in order to clarify the … misunderstanding’ as contemplated by s 62(3) thereof.
Costs before the Board
It must follow from the above conclusions that the order for the payment to the Registrar of $3,000 by way of costs must be quashed. There was an agreement between the parties that the appropriate level of costs was $2,500. The power to order costs is expressly conferred in s 23(1) of the Veterinary Practice Act. The Board uplifted this figure only because of the further hearing of 8 October, which arose through no fault on the part of Dr Lehmann. This second appearance came about only because the Board itself propounded an unsustainable view of the facts in relation to the x-ray image, and because of importunities to submit to a second breach of s 45, for the sake of final resolution. As Lord Atkin famously remarked ‘(C)onvenience and justice are often not on speaking terms’: General Medical Council v Spackman.[112]
[112] Above 638 per Lord Atkin.
Order for further training
The Board imposed a condition that Dr Lehmann undergo a course of further training in taking x‑rays and reading x-rays, even though ‘probably no such course was available’.[113] Making that order in the proven circumstances was unnecessary. First and foremost as has been seen, misreading the x-ray was not the source of the problem. Given the quite extensive steps and courses she has taken since and the procedures now employed in the practice, such a condition was both unnecessary and now futile.[114] That condition will therefore be rescinded.
[113] AB 13, 5.8.
[114] Details of these are to be found at AB47(7), AB39-44, AB49 (23-29), AB563-76, AB101-102.
Costs on appeal
Power to order costs on appeal to the District Court are conferred by s 42H of the District Court Act 1991, but they are not awarded ‘unless the court considers such an order to be necessary in the interests of justice’: s 42H(2). It has been said that there must be ‘some unusual or out of the ordinary feature of the contest which demonstrates that it is, in the interests of justice, a party becomes entitled to an order for costs’: Moore v The Registrar of the Medical Board.[115] Ordinarily it might be expected that misconduct of a party in the conduct of the appeal itself, could give rise to an exceptional order for costs. This however is not such a case.
[115] (2002) 219 LSJS 448, [15].
The conduct of the Registrar was largely supportive of Dr Lehmann. The Registrar resisted the extended course of events and presented fair and measured submissions to the Board. The same may be said of the conduct of the appeal. It is therefore inappropriate to award costs against the Registrar, despite the somewhat unorthodox turn of events initiated by the Board.
Orders
For all of the above reasons, there are cogent reasons to depart from the decision of the Veterinary Surgeon’s Board dated 6 November 2013 on multiple grounds. Pursuant to s 42F(b) of the District Court Act the decision is therefore rescinded, and the following decisions substituted in lieu therefore:
1. Rescind the findings that:
1.1the sheepdog ‘Gale’ was euthanized due to the conduct of Dr Lehmann (para 3.8),
1.2Dr Lehmann sought to conceal or at least minimise the enormity of what she had done and this was an aggravating aspect of unprofessional conduct, (paras 3.4 and 3.5), and that
1.3.Dr Lehmann misled the Board and made a false statement in her clinical notes (para 4.6).
2.Rescind the fine imposed in respect of counts 1 and 2 of the complaint dated 30 August 2013, otherwise affirm the finding of unprofessional conduct with respect thereto and the censure thereon (para 5.4).
3.Rescind the fine of $1,000 with respect to s 45(a) of the Veterinary Practice Act, otherwise affirm the finding of unprofessional conduct, and refrain from making any further orders (paras 2.13 – 5.7).
4.Rescind the finding of unprofessional conduct and the fine of $1,500 with respect to the second alleged breach of s 45(b) of the Veterinary Practice Act, and refrain from making an order of remission (paras 2.13, 15.7).
5.Rescind the order for the Registrar’s costs of $3,000 and in lieu thereof substitute the sum of $2,500 (paras 5.5 and 5.6).
6.Rescind the order to undergo a course in taking and reading x-rays (para 5.8).
7.There will be no order for the costs of the appeal. The stay previously granted is hereby discharged.