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Lloyd v Veterinary Surgeons Investigating Committee

Lloyd v Veterinary Surgeons Investigating Committee

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Reported Decision:
65 NSWLR 245

Court of Appeal

CITATION:
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
28 November 2005

JUDGMENT DATE:

21 December 2005

JUDGMENT OF:
Spigelman CJ at 1; Handley JA at 19; Tobias JA at 25

DECISION:
(1) Appeal allowed; (2) Set aside the decision of the Appeal Panel of 10 January 2005; (3) In lieu thereof remit the proceedings in ADT Appeal Panel No 049044 of 2004 for rehearing in conformity with the decision of this Court; (4) Costs in this Court reserved; (5) Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings; (6) Direct the appellant to file and serve any written submissions he wishes to make with respect to any question of costs on or before 24 January 2006, the respondent to file and serve any submissions in reply on or before 3 February 2006 on the basis that all questions of costs will be determined by the Court upon the papers

CATCHWORDS:
ADMINISTRATIVE LAW – Administrative Decisions Tribunal – Appeal Panel – Disciplinary proceedings – Whether appellant's right of appeal from Tribunal to Appeal Panel extended to merits review – Whether appellant denied procedural fairness – STATUTORY CONSTRUCTION – Whether extension of appeal to merits review under s 113(2)(b) of Administrative Decisions Tribunal Act dependant upon appeal raising question of law – Proper construction of transitional provisions in ADT Act – Purposive construction to avoid lacuna or gap in legislative scheme – Veterinary Surgeons Act 1986 s 34 – Administrative Decisions Tribunal Act 1997 ss 112, 113, 119, 120, cl 37 Sch 5

LEGISLATION CITED:
Administrative Decisions Legislation Amendment Act 1997
Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Amendment Act 2004
Supreme Court Act 1970
Veterinary Surgeons Act 1986

CASES CITED:
Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93
Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Brandusoiu v Commissioner of Police [1999] NSWADTAP 8
Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27
Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3
Manly Council v Malouf (2004) 61 NSWLR 394
Mayhew v A [1999] NSWADTAP 1
VOAW v Minister for Immigration and Multicultural Affairs [2003] FCAFC 251
Walsh v Law Society of New South Wales (1999) 198 CLR 73

PARTIES:
Ronald George Lloyd
Veterinary Surgeons Investigating Committee

FILE NUMBER(S):
CA 40997/03, 40090/05

COUNSEL:
A: Mr C C Branson QC
R: Mr L T Grey

SOLICITORS:
A: Hermann & Green
R: Tress Cox Solicitors

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal - Appeal Panel

LOWER COURT FILE NUMBER(S):
ADT 40004; 40005 & 40015/98

LOWER COURT JUDICIAL OFFICER:
Acting Judge M Chesterman, Deputy President; P Goode, Judicial Member; T Carter, Non Judicial Member

CA 40997/03; 40090/05

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWCA 456
Decision Date: 21 December 2005

CaseChat Overview and Summary

The appellant, a veterinary surgeon, sought to appeal a decision of the Administrative Decisions Tribunal (ADT) to the ADT Appeal Panel. The dispute concerned the nature of the appeal available under the *Administrative Decisions Tribunal Act 1997* (NSW) (ADT Act) following disciplinary proceedings. The Appeal Panel had dismissed the appeal on the basis that it did not raise a question of law, and the appellant contended this was an error. The case was heard by Spigelman CJ, Handley and Tobias JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the appellant's right of appeal to the Appeal Panel extended to a review of the merits of the ADT's decision, and whether the appellant had been denied procedural fairness. The Court was required to construe provisions of the ADT Act, particularly section 113(2)(b) and transitional provisions, to determine the scope of the appeal rights and the proper application of the legislation to the appellant's circumstances.

The Court considered the statutory construction of the ADT Act, applying a purposive approach to avoid a lacuna in the legislative scheme. It was held that section 113(2)(b) of the ADT Act, when read in conjunction with other relevant provisions and the transitional arrangements, did not limit the appeal to questions of law. The Court found that the Appeal Panel had erred in its interpretation of the legislation and that the appellant was entitled to a merits review. The Court also addressed the procedural fairness argument, finding no denial in the circumstances.

The Court of Appeal allowed the appeal, set aside the decision of the Appeal Panel, and remitted the matter to the Appeal Panel to be heard according to law.

Orders

Orders of the court

may be appealed”. Section 34 does not say that an order “may be appealed”. It is expressed in terms of the identification of the persons who may appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 November 2005
JUDGMENT DATE:	21 December 2005
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 19; Tobias JA at 25
DECISION:	(1) Appeal allowed; (2) Set aside the decision of the Appeal Panel of 10 January 2005; (3) In lieu thereof remit the proceedings in ADT Appeal Panel No 049044 of 2004 for rehearing in conformity with the decision of this Court; (4) Costs in this Court reserved; (5) Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings; (6) Direct the appellant to file and serve any written submissions he wishes to make with respect to any question of costs on or before 24 January 2006, the respondent to file and serve any submissions in reply on or before 3 February 2006 on the basis that all questions of costs will be determined by the Court upon the papers

CATCHWORDS:	ADMINISTRATIVE LAW – Administrative Decisions Tribunal – Appeal Panel – Disciplinary proceedings – Whether appellant's right of appeal from Tribunal to Appeal Panel extended to merits review – Whether appellant denied procedural fairness – STATUTORY CONSTRUCTION – Whether extension of appeal to merits review under s 113(2)(b) of Administrative Decisions Tribunal Act dependant upon appeal raising question of law – Proper construction of transitional provisions in ADT Act – Purposive construction to avoid lacuna or gap in legislative scheme – Veterinary Surgeons Act 1986 s 34 – Administrative Decisions Tribunal Act 1997 ss 112, 113, 119, 120, cl 37 Sch 5
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Amendment Act 2004 Supreme Court Act 1970 Veterinary Surgeons Act 1986
CASES CITED:	Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Manly Council v Malouf (2004) 61 NSWLR 394 Mayhew v A [1999] NSWADTAP 1 VOAW v Minister for Immigration and Multicultural Affairs [2003] FCAFC 251 Walsh v Law Society of New South Wales (1999) 198 CLR 73
PARTIES:	Ronald George Lloyd Veterinary Surgeons Investigating Committee
FILE NUMBER(S):	CA 40997/03, 40090/05
COUNSEL:	A: Mr C C Branson QC R: Mr L T Grey
SOLICITORS:	A: Hermann & Green R: Tress Cox Solicitors

LOWER COURT JURISDICTION:	Administrative Decisions Tribunal - Appeal Panel
LOWER COURT FILE NUMBER(S):	ADT 40004; 40005 & 40015/98
LOWER COURT JUDICIAL OFFICER:	Acting Judge M Chesterman, Deputy President; P Goode, Judicial Member; T Carter, Non Judicial Member