Lloyd v Veterinary Surgeons Investigating Committee

[2002] NSWCA 224

CITATION:	LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE [2002] NSWCA 224
FILE NUMBER(S):	CA 40705/01
HEARING DATE(S):	26 June 2002
JUDGMENT DATE:	16 July 2002
PARTIES :	Ronald George Lloyd - Appellant Veterinary Surgeons Investigating Committee - Respondent
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 32; Ipp AJA at 33

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S) :	ADT 40004; 40005; 40015; 40016/98
LOWER COURT JUDICIAL OFFICER :	Appeal Panel

COUNSEL:	D Dickinson - Appellant S J Burchett - Respondent
SOLICITORS:	Herman & Green - Appellant Conway MacCallum - Respondent
CATCHWORDS:	ADMINISTRATIVE LAW - Administrative Decisions Appeal Act 1997, ss 25, 73, 79, 119(1) - Veterinary Disciplinary Panel - expiration of period of office of member - substitution of new member in matter already heard but not determined - whether entitled to a hearing de novo - record of proceedings - powers of judicial member sitting alone - direction of President as to procedure on rehearing beyond power and void - issues of procedural fairness and natural justice raised
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Supreme Court Act 1970
DECISION:	1. Appeal allowed; 2. Set aside the orders made by the Appeal Panel and in lieu thereof make orders; (a) Appeal allowed; (b) Directions of the President of 27 July 2000 set aside.; 3. No order as to costs.

CA 40705/01
ADT 40004, 40005, 40015, 40016/98

SHELLER JA
HODGSON JA
IPP AJA

LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE

The appellant appealed from a decision of the Administrative Decisions Tribunal Appeal Panel of 15 August 2001 which upheld the validity of three directions made by the President on 27 July 2000. The appeal was limited, pursuant to s119(1) of the Administrative Decisions Tribunal Act 1997 (the Act), to a question of law.

The Veterinary Disciplinary Panel was hearing four sets of charges against the appellant when the period of office of one member expired. The evidence on the first and second charges was complete. The third charge was part heard and evidence on the fourth charge had not begun.

A new member was substituted and the President gave directions as to how the Panel should approach the resolution of the charges before them. The new Panel was to proceed by having regard to the record of proceedings relating to the hearing of the first, second and third notices of inquiry. The record of proceedings was to be referred to the new member. Finally, the parties were invited to make oral submission on any request to the President by the new member for the recall of witnesses.

The appellant contended that he was entitled to a hearing de novo and that this involved the evidence being recalled. He argued that there was no power vested in the President (or in any member of the Tribunal) to determine the procedure to be followed on the hearing of the reconstituted Tribunal. Further, the procedure determined by the President for the hearing of the reconstituted Tribunal offended against the rules of natural justice and gave rise to procedural unfairness.

HELD (per Sheller JA, Hodgson JA and Ipp AJA concurring)

1. Section 79 of the Act establishes two courses to be followed where a member of a Tribunal ceases to be a member before the matter is determined. If the parties all consent the President may replace that member. If a party does not consent, a new Tribunal is constituted in accordance with the Act. There is no reason why the new Tribunal should not include members of the previously constituted Tribunal.

2. The interpretation of s79 of the Act is not aided by reference to decisions of other courts where one judge had replaced another in the course of proceedings.

3. Within the bounds of s73(3) of the Act, it is within the discretion of the Tribunal under s79(4) to have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings. Within those limits it is possible for the new Tribunal to have regard to the record and not to require a party to duplicate that record by calling the evidence again.

4. The President, sitting alone, could not direct the procedure to be followed by the new Tribunal. The President's directions in this regard were beyond power and void. It is important that the Tribunal itself decides what regard it will have to any record of the proceedings before the previously constituted Tribunal and the extent to which witnesses will be recalled. Proper practice requires that the parties indicate to the Tribunal what witness they wish to have recalled and that the Tribunal then give its ruling on whether it should be. Section 79(4) does not permit such a decision to be made by a judicial member of the Tribunal alone, except to the extent, if any, that it raises a question of law.

5. Given that the direction made by the President was beyond power, it was unnecessary for the Court to make a ruling as to whether the procedure determined by the President offended against the rules of natural justice and gave rise to procedural unfairness.

Legislation
Administrative Decisions Tribunal Act

1997

Supreme Court Act

1970

ORDERS

1. Appeal allowed;
2. Set aside the orders made by the Appeal Panel and in lieu thereof make orders
(a) Appeal allowed:
(b) Directions of the President of 27 July 2000 set aside.

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CA 40705/01
ADT 40004, 40005, 40015, 40016/98

SHELLER JA
HODGSON JA
IPP AJA

16 July 2002

LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE

Judgment

1 SHELLER JA: Ronald George Lloyd appeals from a decision of the Administrative Decisions Tribunal Appeal Panel of 15 August 2001. The respondent is the Veterinary Surgeons Investigating Committee. The appeal is brought pursuant to s119(1) of the Administrative Decisions Tribunal Act 1997 (the Act) and accordingly is limited to a question of law. The Appeal Panel comprised

· the Deputy President, her Honour Judge Latham,

· a non-judicial member who was also a member of the Board of Veterinary Surgeons of New South Wales, and

· a lay member.

Accordingly the Appeal Panel was a specified tribunal within the meaning of s48(1) of the Supreme Court Act 1970. The appeal comes pursuant to s48(2) to this Court.

2 Before the Appeal Panel was an appeal against three directions made by the President of the Administrative Appeals Tribunal, his Honour Judge O’Connor, on 27 July 2000. The Appeal Panel dismissed the appeal and confirmed the President’s directions.

3 The Veterinary Disciplinary Panel was hearing four sets of charges numbered 40004, 40005, 40015 and 40016 of 1998 against Dr Lloyd when the period of office of one member expired. The evidence on the first and second charges was complete. The third charge was part heard. Evidence on the fourth charge had not begun. A new member was substituted. Following this reconstitution the President gave these directions:

“1. The new Panel to proceed by having regard to the record of proceedings (including exhibits) relating to the hearing of the first, second and third notices of inquiry by the Veterinary Disciplinary Panel as previously constituted.
2. That the record referred to in direction 1 be referred to the new Member.
3. The parties be invited to make oral submissions on any request to the President by the new Member for the recall of witnesses, either for the purpose of hearing part or all of their evidence afresh or for the purpose of seeking clarification by way of questions; and further directions be made by the President.”

4 Dr Lloyd practises as a veterinary surgeon. In April 1998 the Veterinary Surgeons Investigating Committee filed four notices of complaint relating to his treatment of different animals during four periods: December 1995 to January 1996, February 1996, February 1997 and February to March 1997. In March 1999 the Tribunal’s hearing of these complaints began. The Tribunal comprised Judge O’Connor as President, Dr G McGilvray, a veterinary surgeon and member of the Board of Veterinary Surgeons of New South Wales and Ms Y Dubow, the lay member and not a veterinary surgeon. The hearing ran for about nineteen days during three periods in March 1999, November 1999 and February 2000. On 13 March 2000 and before the matter had been determined, Ms Dubow’s term of appointment as a member of the Administrative Decisions Tribunal expired.

5 Part 3 of the Act concerns the organisation of the Tribunal for the hearing of matters brought before it. Section 19 provides that the Tribunal is to exercise its functions in the Divisions specified in Schedule 1 except when constituted by an Appeal Panel. One such Division is the General Division. Section 20 provides that each Division is to be composed of the members assigned to the Division by Schedule 2. Schedule 2 Pt 4 deals with the General Division. Clause 7 of Schedule 2 provides for the constitution of the Tribunal by a Veterinary Disciplinary Panel and provides for the makeup of that panel. Section 21 of the Act provides that the President is assigned to each Division and that a Divisional Head is assigned to the Division in respect of which he or she is appointed as such. Subject to that the President is to assign each member to one or more Divisions.

6 Section 22 of the Act provides for the constitution of the Tribunal for particular proceedings. Subsection (1) provides that in exercising any of its functions the Tribunal is to be constituted by one or more Division members of the Division to which the function concerned is allocated. Subsection (2) provides that the President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Subsection (3) provides that in constituting the Tribunal for the purposes of any particular proceedings regard is to be had, amongst other things, to the degree of public importance or complexity of the subject matter of the proceedings. Section 24 provides for the constitution of the Appeal Panel of the Tribunal. Section 25 is as follows:

“ Functions of President
(1) The President is (subject to this Act and the rules of the Tribunal) to direct the business of the Tribunal.
(2) The President is to facilitate the adoption of good administrative practices in the conduct of the business of the Tribunal.
(3) The President may determine the places and times for sittings of the Tribunal.”

7 Chapter 6 of the Act deals generally with the procedure of the Tribunal. Part 2 of that Chapter is headed “Other procedural matters”. Section 73 in Pt 2, so far as relevant, provides as follows:

“(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
…
(5) The Tribunal:
(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing – may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and
(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
(6) A judicial member may:
(a) hold a directions hearing in relation to any proceedings before the Tribunal, or
(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.”

8 Section 78 in Pt 2 provides:

“ Tribunal divided in opinion
(1) If the Tribunal is constituted by more than 1 member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.
(2) However, a question of law (including the question whether a particular question is a question of law) arising in proceedings constituted by 1 or more judicial members is to be decided in accordance with the opinion of the judicial member or the majority of the judicial members.
(3) If the members are equally divided in their opinion, the opinion that prevails is:
(a) the opinion of the President if the President is sitting, or
(b) if the President is not sitting, but 1 or more other judicial members are sitting – the opinion of the judicial member or most senior judicial member (as the case may be) sitting, or
(c) if only non-judicial members are sitting – the opinion of the most senior member sitting.”

9 Critical to understanding this appeal is s79 in Pt 2 which provides as follows:

“ Reconstitution of Tribunal during hearing
(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:
(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and
(b) the parties consent.
(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.
(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.”

10 This section establishes two courses to be followed where, as in the present case, a member of a Tribunal ceases to be a member before the matter is determined. If the parties all consent the President may replace that member. If a party does not consent, a new Tribunal is constituted “in accordance with [the] Act”. There is no reason why the new Tribunal constituted under s79(3) should not, as in the present case, include members of the previously constituted Tribunal. A large part of the debate before the President and before the Appeal Panel turned upon whether or not the newly constituted Tribunal was engaged in a “rehearing”. I do not understand there to be any debate now but that the newly constituted Tribunal starts the hearing afresh. Pursuant to s79(4) it may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings. However, on its face, it is clear enough that the decision as to whether or not the Tribunal will have regard to any record of the proceedings and, if so, to what extent, is a matter for the Tribunal. Moreover, one would expect that the nature and degree of regard to the record would depend upon the way in which the matter unfolds before the newly constituted Tribunal. Thus, on its face, it is not for the President alone to make a decision which purports to bind the parties as to the course the Tribunal will take. Such a decision would not be a decision of the Tribunal but of the President.

11 The expiry of the term of office of the member of the Tribunal as previously constituted produced a very unsatisfactory situation. There had been nineteen days of hearing. Justifiably it was no doubt felt that the expensive and one suspects largely useless process of recalling all the evidence should be avoided. For that reason the President held a directions hearing. But order 1 went beyond a mere direction and appeared to limit the extent to which the newly constituted Tribunal in dealing with the completed and partly completed inquiries could decide whether to have regard to anything beyond the record of proceedings.

12 Dr Lloyd’s contention at all times was that he was entitled to a hearing de novo and that this involved the evidence being recalled. The grounds of appeal as filed were:

“1. The Appeal Panel erred at law in finding that section 79(3) of the Administrative Decisions Tribunal Act 1997 (NSW) (‘The Act’) conferred on the President of the Administrative Decisions Tribunal (‘the Tribunal’) the power to reconstitute the Tribunal in proceedings numbered 40004, 40005 and 40016 [sic] of 1998 (‘the Proceedings’) without hearing the Proceedings afresh;
2. The Panel erred at law by omitting to place sufficient emphasis on considerations of natural justice in a matter involving substantial questions of credit by upholding His Honour’s directions of 27th July 2000.”

13 One of the orders sought was that the proceedings in the three inquiries heard or part heard be heard de novo. Another, in the alternative, was that Dr Lloyd be entitled to recall the witnesses on those three charges he nominated within fourteen days of the order.

14 The learned President, in his reasons for judgment, posed the issue “before the new Panel” as “how it should carry out its responsibility to ‘reconsider’ the first three matters in circumstances” where one of the members was not a member of the previous panel. Attention was drawn to several decisions of various courts where one judge had replaced another in the course of proceedings. With due respect, I do not find such cases of great assistance in understanding the statutory scheme found in s79 of the Act. The President observed that Dr Lloyd did not oppose the incorporation of the previous record into the new proceedings or the retention of the two members whose appointments remain current. “But subject to those concessions, the respondent contends that a full hearing de novo should occur.” This contention led the President to examine the meaning of the word “reconsider”. He noted the various guides to conduct of the Tribunal found in s73 of the Act, for example, the requirement that the Tribunal act as quickly as practicable. He considered matters of procedural fairness.

15 Counsel for the Committee submitted that it was open to the Tribunal to adopt whatever procedure was most practical unless there were overriding considerations of prejudice to one of the parties justifying another course. It was said that significant inconvenience would be caused to witnesses and the parties if the proceedings were recommenced from the beginning. The President said:

“35 I am required to balance the need for expedition, the need to avoid unnecessary expenditure of public resources, the requirements of procedural fairness especially having regard to the potentially serious consequences of these proceedings for the respondent, and the public interest in the due administration of justice. I am also required to ensure that the new member is able to contribute fully to the difficult decision-making exercise that lies ahead.”

16 At the conclusion of his reasons, the President said:

“38 In my view, the appropriate course is to invite the new member to identify those witnesses as to the events in issue who she would like to have recalled to assist her understanding of their evidence or in assisting her view as to their credit. The recall may be for the purpose of seeking clarification or putting questions to them, or for rehearing their evidence in whole or in part.
39 The evidence in relation to issues of veterinary practice in relation to each of the notices of inquiry is complex. While the evidence is complex, it is of a kind which ought to be capable of being understood substantially by reference to the transcript and the exhibits; and through the assistance of the specialist member, Dr McGilvray.
40 Credit, in the sense of forming a view as to the honesty or truthfulness of a witness, has not been raised in relation to the expert witnesses in this case. There have, of course, been challenges to their degree of expertise and to some of their opinions.
41 In relation to the adequacy of relying wholly on the transcript to understand the evidence of the witnesses called as experts, there have been some occasions in the proceedings when the experts called have sought to illustrate their findings and opinions by reference to visual material such as x-rays. It may be that the new member would be assisted by a viva voce recapitulation of some of that evidence.
42 In my view, again the appropriate course is to invite the new member to identify those witnesses who she would like to have recalled to assist her understanding, either for clarification or to rehear part or whole of their evidence.
43 In this instance in my view the appropriate course to adopt is to incorporate the record of the previous proceedings into these proceedings, and to invite the new member, Ms Clark, to review the record with a view to advising me, as the presiding member, as to whether there are any witnesses she would like to have recalled.
44 I would then proceed by conveying Ms Clark’s views to the parties, and inviting oral submissions on them. I would then proceed to rule as to the extent to which previous evidence ought to be revisited.
45 This approach is, I consider, reasonably consistent with that adopted in the authorities drawn to my attention.”

The directions I have quoted followed. Paragraph 44 of his reasons indicates that the President saw it as his function to rule as to the extent to which previous evidence could be revisited.

17 The appeal to the Appeal Panel was pursuant to Chapter 7 Pt 1 of the Act. Part 1 operates to provide internal appeal rights from an “appealable decision”. Relevantly, s112(1) provides that for the purpose of Pt 1 an appealable decision is a decision of the Tribunal made in proceedings for an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under Pt 1. Section 113 provides for a right of appeal on any question of law but an appeal only with the leave of the Appeal Panel in the nature of a review of the merits of the appealable decision. The appeal was put as an appeal on a question of law. No objection was taken to its competence.

18 Dr Lloyd’s appeal points were:

· The President was in error in not giving proper meaning to the Tribunal’s obligations to reconsider proceedings pursuant to s79(3) of the Act. It was submitted that the subsection was in mandatory terms and that it was not open to any individual Tribunal member to determine what, if any, aspect of the proceedings were to be reconsidered.

· The President was in error in finding that s79(3) and (4) did not provide any statutory constraint on the discretion of the new panel in relation to the way it conducted its proceedings.

· The President was in error in finding that because two of the three members of the panel remained the same there was a safeguard against injustice.

· The President failed to have regard or proper regard to issues of procedural fairness and natural justice.

· The President was in error in finding that many of the conflicts of evidence might be capable of resolution by reference to other techniques.

· The President was in error in finding the evidence in relation to the issues of veterinary practice ought to be understood substantially by reference to the transcript and exhibits and through the assistance of Dr McGilvray.

· The President was in error in finding the appropriate course was to invite the new panel member to identify those witnesses as to events in issue who she would like to hear have recalled to assist her understanding.

· The President was in error in finding that an appropriate course would involve the new panel member indicating to him who she would like to have recalled and the President then in turn inviting oral submissions on those persons to be recalled.

19 The Appeal Panel said that three broad grounds of appeal were pressed at the hearing of the appeal. They were that:

1 On a proper construction of s79(3) of the [Act] the reconstituted Tribunal was required to hear the proceedings afresh.
2 There was no power vested in the President (or in any member of the Tribunal under the Act) to determine the procedure to be followed on the hearing of the reconstituted Tribunal.
3 The procedure determined by the President for the hearing by the reconstituted Tribunal offended against the rules of natural justice and gave rise to procedural unfairness.

20 The Appeal Panel embarked upon a discussion of the construction of s79(3) and said:

“In effect, the President saw nothing in the construction of s79 which constrained the Tribunal’s discretion under subsection (4) to have regard to any record of any evidence taken in the proceedings.
The President’s approach to the construction of s79 was correct.”

21 After further reference to authority and other sections in the Act, the Appeal Panel said:

“18 Returning then to the construction of section 79, within the context of Part 2 of Chapter 6, its terms ought to be construed consistently with the objects of the Act, as expressed by section 3 and by the provisions of the Part in which it appears. While the search for the grammatical meaning of the words in their proper context is the starting point, should that meaning not promote the purpose or object underlying the statute, a construction that would promote the purpose or object is to be preferred; s33 of the Interpretation Act 1987 (NSW) and see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423.
19 Moreover, each word in the Part and in s79 must be given some meaning and effect (see Commonwealth v Baume (1905) 2 CLR 405 at 414; Beckwith v R (1976) 135 CLR 569; Trade Practices Commission v Gillette Co (No 2) (1993) 118 ALR 280 at 290) and a term used a number of times within section 79 should bear a consistent meaning throughout the provision.
20 Bearing these principles firmly in mind, we are of the view that the word ‘consideration’ cannot be equated with ‘hearing’. The word ‘hearing’ is used a number of times in Part 2 (ss73(5), 75, 76) to denote the presentation of evidence (by the calling and examination of witnesses and/or by the tendering of affidavits and exhibits) and argument by the respective parties to the proceedings. The word ‘hearing’ appears in the heading to s79 but the heading to a provision is no more than a guide and does not form part of the provision for the purposes of construction. In any event, the legislature made a deliberate choice to refrain from the use of the term ‘hearing’ within the body of the section and employed instead the term ‘consideration’ in subsection (1). We are of the view that, for this reason and for the reasons which follow, the President was correct in ascribing to ‘consideration’ a broader connotation than ‘hearing’.”

22 The Appeal Panel concluded as follows:

“28 Accordingly, the President did not err in finding the discretion vested in the Tribunal under subsection (4) ‘at large …, subject always to considerations of procedural fairness and natural justice’ (para 26 of the decision).
29 There is one important distinction between the terms of subsections (2) and (4), apart from the former being mandatory and the latter discretionary. Subsection (2) requires the Tribunal to have regard to any evidence and decisions previously made, whereas subsection (4) speaks only of ‘any record of the proceedings … including a record of any evidence’. It suggests that, in the absence of the parties consent to the reconstitution, it is not permissible for the Tribunal to have regard to any decisions made by the previous Tribunal. The reconstituted Tribunal must, in those circumstances, arrive at its own decisions, but it may do so after taking account of the record of the previous proceedings, without the need to hear the evidence afresh. This distinction is entirely consistent with the fact that the consent of one or both of the parties to the reconstitution was not forthcoming.
30 The President did not err in his construction of s79(3). Accordingly, this ground of appeal fails.”

23 The dictate of s73(3) is that the Tribunal act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” Within the bounds of that dictate it seems to me entirely within the discretion of the Tribunal under s79(4) to have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings and, pursuant to s73(2) being not bound by the rules of evidence, to “enquire into and inform itself on any matter in such manner as it things fit, subject to the rules of natural justice.” Within those limits it is possible for the newly constituted Tribunal to have regard to the record and indeed to require a party not to call the evidence again.

24 However, the question remains whether the President, sitting alone, could direct the procedure to be followed. That was the second head of appeal which the Appeal Panel considered. It said:

“31 The appellant claims that there is no power available to the President, or to any member of the Tribunal, under the [Act] to direct the procedure to be followed at the hearing before the reconstituted Tribunal. This ground of appeal may be dealt with shortly.
32 The proceedings on 21 July 2000, which gave rise to the President’s directions of 27 July 2000, was a directions hearing held under s73(6) of the Act. As paras 4 and 5 of the reasons make clear, the Tribunal had been reconstituted and had begun to hear evidence in relation to the fourth notice of inquiry as and from 8 June 2000. The parties were given the opportunity to make written and oral submissions on the procedure to be followed in relation to the first three notices of inquiry.
33 There is nothing in s79, in Part 2 of Chapter 6, or in the Act, which precludes the application of the procedural provisions of hearings by a reconstituted Tribunal. Given the specific power to hold directions hearings, coupled with the broad powers in Part 2 of Chapter 6 referred to above, in particular section 73(1), (2) and (5), s76 and s83, this ground of appeal must also fail.”

25 Section 83 of the Act enabled the Tribunal to call, examine, cross-examine and compel any witness to answer questions. It also enabled the Tribunal to issue a summons to compel the attendance of a person.

26 With due respect, particularly bearing in mind that a Tribunal may consist as here of a judicial member, a professional member and a lay member it is important that the Tribunal itself decides what regard it will have to any record of the proceedings before the previously constituted Tribunal and the extent to which witnesses should be recalled. Proper practice requires that the parties indicate to the Tribunal what witness, or evidence, they wish to have recalled and that the Tribunal then give its ruling on whether it should be. In my opinion, s79(4) does not permit such a decision to be made by the judicial member of the Tribunal alone, except to the extent, if any, that it raises a question of law. There is nothing in s73(6) which enables the judicial member alone to rule on the admission or rejection of evidence. Even s78(2) contemplates that where a question of law arises in proceedings it is to be decided by the Tribunal, albeit in accordance with the opinion of the judicial member or the majority of the judicial members. In short, the President’s directions were beyond power and void.

27 The third matter that the Appeal Panel dealt with was whether the procedure determined by the President offended against the rules of natural justice and gave rise to procedural unfairness. Again several authorities were referred to. This question does not arise in light of my view as to the efficacy of the President’s directions.

28 I am satisfied that the power of the President to give the directions was squarely before the Appeal Panel and I am equally satisfied that as a matter of law it erred in concluding that the President had such a power. This ground was not raised in the original grounds of appeal filed on behalf of Dr Lloyd but no opposition was taken to Dr Lloyd being permitted to amend to include such a ground and I proceed on the basis of that amendment. Clearly the ground raised a matter of law.

29 In my opinion the following orders should be made:

1. Appeal allowed;
2. Set aside the orders made by the Appeal Panel and in lieu thereof make orders
(a) Appeal allowed;
(b) Directions of the President of 27 July 2000 set aside.

30 The Appeal Panel made no order as to costs. The main thrust of Dr Lloyd’s submissions, namely that he was entitled, as the President said in the passage I have quoted, to have a full hearing de novo or a hearing afresh to use the language of the notice of appeal, failed. In my opinion, there should be no order for costs in this appeal.

31 While I do not think this Court any more than the President can dictate what directions the Tribunal should give in exercising its discretion under s79(4) it would seem to me appropriate, as I have already suggested, to give Dr Lloyd the opportunity to submit to the Tribunal what evidence already given or what witnesses already heard should be recalled and then to deal with that application. If required, of course, a similar opportunity ought to be given to the Committee. Subject to that being done and, if appropriate, evidence being received accordingly, there seems to be no reason why the Tribunal should not now proceed to a decision on the basis of the evidence it has heard and the record of the proceedings before the Tribunal as previously constituted.

32 HODGSON JA: I agree with Sheller JA.

33 IPP AJA: I agree with Sheller JA.

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