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…

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: [2002] NSWCA 224
Decision Date: 16 July 2002

CaseChat Overview and Summary

The applicant, Lloyd, appealed to the Supreme Court of New South Wales (Court of Appeal) against a decision of the Appeal Panel of the Veterinary Surgeons Investigating Committee. The dispute concerned the validity of a direction issued by the President of the Committee regarding a rehearing of a matter that had already been heard by a disciplinary panel, but not yet determined. The core of the dispute revolved around whether the substitution of a new member onto the disciplinary panel after the initial hearing, but before determination, entitled the applicant to a de novo hearing.

The Court of Appeal was required to determine whether the direction of the President, which mandated a rehearing of the matter, was valid and lawful. Specifically, the court had to consider whether the President had the power to issue such a direction, and if not, whether the direction was void. Central to this was the question of whether the applicant had been afforded procedural fairness and natural justice, particularly in light of the substitution of a panel member and the subsequent direction for a rehearing. The court also considered the powers of a judicial member sitting alone and the implications of the expiration of a panel member's term of office.

The Court of Appeal found that the direction of the President of 27 July 2000 was beyond his power and therefore void. The court reasoned that the Administrative Decisions Appeal Act 1997 did not grant the President the authority to direct a rehearing in the circumstances presented. The substitution of a member onto the panel after the hearing had commenced, but before determination, did not automatically necessitate a de novo hearing, and the President's intervention in directing such a rehearing was an unlawful exercise of power. The court applied principles of administrative law concerning the scope of statutory powers and the requirements of procedural fairness.

The appeal was allowed, and the orders made by the Appeal Panel were set aside. In lieu thereof, the Court of Appeal ordered that the directions of the President of 27 July 2000 be set aside. There were no orders as to costs.

Orders

Orders of the court

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.

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 [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.