Lloyd v Veterinary Surgeons Investigating Committee (Discriplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) (No 2) (GD)

[2005] NSWADTAP 15

Appeal Panel - Internal

CITATION:	Lloyd v Veterinary Surgeons Investigating Committee (Discriplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) (No 2) (GD) [2005] NSWADTAP 15
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	049044
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	04/13/2005
DATE OF DECISION:	04/20/2005
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208
BEFORE:	Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Carter T - Non Judicial Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	40004, 40005 and 40015 of 1998
DATE OF DECISION UNDER APPEAL:	09/22/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Veterinary Surgeons Act 1986
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18 Burton v Anderson, unreported, Court of Appeal (CA 40030/92), 28 October 1994 Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 Citadin Pty Ltd (No 20) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 Di Suvero v New South Wales Bar Association (LSD) [2001] NSWADTAP 37 DO v University of New South Wales (GD) [2003] NSWADTAP 9 French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54 Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 Howe v Veterinary Surgeons Investigating Committee (No 2) (GD) [2005] NSWADTAP 4 Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) (GD) [2005] NSWADTAP 2 New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208
REPRESENTATION:	APPELLANT B Green, solicitor RESPONDENT M Wade, solicitor
ORDERS:	1. The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed, excluding costs relating to the Appellant’s application for an urgent stay heard on 25 October 2004; 2. There will be no order for costs on this application by the Respondent.

Introduction

1 This decision relates to the costs of an appeal by Dr Ronald George Lloyd, a registered veterinary surgeon, against disciplinary orders made against him by a Veterinary Disciplinary Panel of the Tribunal in a decision dated 22 September 2004 (Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208).

2 These disciplinary orders were the outcome of protracted proceedings brought against Dr Lloyd by the Veterinary Surgeons Investigating Committee (‘the Committee’). They took the form of an order suspending Dr Lloyd from practice for a period of nine months and a further order placing restrictions on his practice for a period of at least 15 months if he were to return to practice. In so ordering, the Tribunal rejected a submission from the Committee (supported by Dr Lloyd) that a reprimand, coupled with compulsory audits of Dr Lloyd’s practice and an educational requirement, would constitute a sufficient sanction.

3 The Tribunal also ordered that Dr Lloyd pay the Committee’s costs as agreed or assessed.

4 The Tribunal’s power to make these disciplinary orders and the costs order was conferred by s 32(1) of the Veterinary Surgeons Act 1986 (‘the VS Act’). Dr Lloyd’s appeal was instituted pursuant to s 34(1) of this Act.

5 We heard the appeal on 6 December 2004. In a judgment delivered on 10 January 2005 (Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) (GD) [2005] NSWADTAP 2), we dismissed it, holding that no error of law had been demonstrated in the reasoning of the Tribunal. We also made an order postponing from 1 January 2005 to 1 May 2005 the date before which one of the disciplinary orders – suspension of Dr Lloyd from practice – was required to take effect.

6 At the hearing, no applications were made to us regarding the costs of the appeal or of an earlier hearing of 25 October 2004, at which Dr Lloyd had obtained from us an order staying the operation of the disciplinary orders pending the disposition of the appeal. In our decision of 10 January 2005, we allowed to each party a period of 28 days in which to file and serve an application for costs, with supporting submissions. We directed that any submissions in response were to be filed and served within a further 28 days and that if no application was filed, there would be no order for costs.

7 On 14 February 2005, the Committee’s solicitors filed an undated application and written submissions, prepared by Mr Wade, seeking an order in the Committee’s favour for ‘costs in relation to’ our decision of 10 January 2005. The submissions made no mention of the hearing of 25 October 2004.

8 On 16 February 2005, Dr Lloyd’s solicitors filed submissions in response, prepared by Ms Greene.

Infringement of time limit for applying for costs

9 A preliminary objection taken by Ms Greene was that if the Committee’s application and submissions had been filed later than 7 February 2005, which was the latest date permitted by our order, they were out of time and should be rejected on that ground alone. In fact, this time limit was exceeded by seven days. This infringement of the time limit by the Committee occurred without any mention of the matter or any explanation being advanced.

10 We instructed the Registry to obtain supplementary submissions from the parties addressing this issue, along with another issue outlined below. In his supplementary submission, filed on 7 April 2005, Mr Wade explained that due to an error, for which he apologised, he did not appreciate that our order required any application for costs by the Committee to be made within the specified period. He formally requested that the application should nonetheless be entertained by us.

11 In the supplementary submissions by Ms Green, filed on 13 April 2005, her response on this issue was that Mr Wade’s misapprehension was based on a rather improbable interpretation of our order and that 28 days was a sufficient period for the preparation of an application for costs.

12 We are prepared to accept the Committee’s application for costs, despite its lateness. We accept the arguments put by Mr Wade to the effect that (a) the scale of his ‘administrative error’ in not observing the time limit was outweighed by the ‘underlying interest’ in reaching a just determination of all aspects of Dr Lloyd’s appeal, including the question of costs, and (b) that the error was not serious enough to occasion prejudice to Dr Lloyd.

The source of our power to award costs in this case

13 The second issue on which we sought supplementary submissions was whether our power to make an order regarding the costs of this appeal derived from s 32 of the VS Act or from s 88 of the Administrative Decisions Act 1997 (hereafter ‘the Tribunal Act’). This issue did not receive attention in the submissions originally filed.

14 For the purposes of this judgment, the relevant parts of the former section are as follows:-

32 Tribunal’s powers when complaint proved

(1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders: …

(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,

(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists, …

(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.

(2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1) (b) or (c) if the Tribunal is of the opinion that:

(a) because the matter of the complaint is of a trivial nature, or

(b) because of the circumstances in which that matter occurred, or

(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.

15 The relevant provisions of s 88 of the Tribunal Act are subsections (1) and (3), which state as follows:-

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

16 It would appear that the existence of a costs power in s 32(1)(f) of the VS Act is sufficient to satisfy the requirement in s 88(3) of the Tribunal Act ‘that the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs’.

17 The important distinction between the costs power conferred by s 32(1)(f) of the VS Act and that conferred by s 88(1) of the Tribunal Act is that an applicant under the latter provision must show that ‘there are special circumstances warranting an award of costs’. The standard presumption that a successful party is prima facie entitled to his or her costs does not apply.

18 As far as we are aware, this issue has not been resolved in any decision dealing with an appeal by a registered veterinary surgeon under s 34(1) of the VS Act. In Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 at [44], the Appeal Panel referred to the issue, but did not determine it, and made no order for costs. In Howe v Veterinary Surgeons Investigating Committee (No 2) (GD) [2005] NSWADTAP 4, the Panel ordered that costs be paid by the appellant veterinary surgeon, but did not identify the provision under which it made this order.

19 In Mr Wade’s supplementary submissions, he put forward the argument that, since we had dismissed Dr Lloyd’s appeal on the ground that no error of law had been shown, the range of orders open to us were limited to those authorised by s 114 of the Tribunal Act, which deals specifically with appeals that are ‘restricted to questions of law’. This range of possible orders, in his submission, did not include an order for costs under s 32 of the VS Act such as could be made by the Tribunal in a veterinary disciplinary proceeding at first instance, or indeed by an Appeal Panel, acting under s 115 of the Tribunal Act, in an appeal which following a grant of leave had been extended to the merits.

20 Understandably, Ms Green raised no opposition to this aspect of Mr Wade’s submissions, since it amounted to a concession that the Committee was required to establish ‘special circumstances’ in order to succeed in this application.

21 In this situation, it is not necessary for us to rule on the correctness of Mr Wade’s reasoning. We accept, for the purposes of this application, that any order for costs that we make must be pursuant to s 88(1) of the ADT Act and must therefore be based on the existence of ‘special circumstances warranting an award of costs’.

The requirement of ‘special circumstances warranting an order for costs’

22 General principles. Mr Wade referred us to observations on the meaning of ‘special circumstances’ in Brooks Maher v Cheung [2001] NSWADT 18 at [11 – 14]. They were quoted and approved by the Appeal Panel in Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 at [13].

23 These are firstly to the effect that ‘special circumstances’ means ‘circumstances which are out of the ordinary, without having to be extraordinary or exceptional’ (Brooks Maher at [14]). They indicate also that it is not enough to show ‘special circumstances’. The circumstances that are found to be ‘special’ must also ‘warrant’ an award of costs.

24 In New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174, at [14], the Tribunal referred to submissions made to it as to the meaning of the phrase ‘special circumstances so warrant’ in s 171E(2) of the Legal Profession Act 1987. This is a provision empowering the Tribunal to award costs in disciplinary proceedings against legal practitioners. The Tribunal expressed no disagreement with these submissions. It stated that, according to them, the phrase required

…something unusual or different about the case to take the matter out of the ordinary course, according to which the presumption that there be no costs order would be expected to apply, which renders that ordinary course apparently less appropriate or fair. But that does not require that the case be extremely unusual, uncommon or exceptional.

25 In a number of cases, it has been suggested that ‘special circumstances’ should be easier to establish against an unsuccessful respondent in appeal proceedings than against a party who has failed at first instance. In Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31, for instance, an Appeal Panel in a case brought in the Retail Leases Division of the Tribunal stated at [13]:-

It may be that more use of costs orders should be made where there is an appeal and it is dismissed. At the appeal level, there would seem to be a stronger case for recognising the complexity of retail leases disputes and their commercial character as relevant factors amounting to ‘special circumstances’.

26 The cases applying s 88(1) provide illustrations of established categories of ‘special circumstances’. Two such categories were referred to in Mr Wade’s submission.

27 No real prospect of success. The first of these categories is where the grounds put forward by a party to proceedings have no tenable basis in fact or in law and are therefore without merit. With specific reference to appeal proceedings, the Tribunal’s Practice Note No 12 (4 March 2003) includes the following in a list of some examples of ‘special circumstances’:-

… where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.

28 In Citadin (No 2), the specific ground on which costs were awarded to the successful respondent was summarised as follows at [23]:-

In the present case the appeal was dismissed as disclosing no sufficiently arguable questions of law. It was reasonable for the respondents to engage counsel given the financial significance of the dispute and the factual and legal complexity inherent in retail leases disputes.

29 The phrase ‘sufficiently arguable’ was explained further at [2]:-

… there were no questions of law identified by the notice of appeal that were sufficiently arguable to warrant further consideration of the appeal.

30 By contrast, in French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54, the Appeal Panel, in a case in the Equal Opportunity Division, observed at [29] that, as indeed was indicated by the Panel in Citadin (No 2), the interpretation of ‘special circumstances’ in retail leases cases, where the parties are involved in a commercial dispute, should differ from its interpretation in an equal opportunity case. Taking account also of the fact that the appellant in the case before it had no legal representation and was therefore not well qualified to analyse legal questions, the Panel concluded as follows, at [31]:-

The mere failure of the appellant to identify a question of law is not a “special circumstance” which, by itself, would justify an order for costs.

31 In DO v University of New South Wales (GD) [2003] NSWADTAP 9, an Appeal Panel decision dealing with a case within the General Division, the Panel, at [27], repeated the proposition that in appeals from retail leases decisions, which have a ‘commercial character’, the appellant should generally be ordered to pay costs ‘where the errors of law are not reasonably arguable’. It then said: ‘The Appeal Panel has been more circumspect in the approach that should be taken on this issue in respect of failed appeals in the public law and equal opportunity area.’

32 Mr Wade drew our attention to a statement of the Appeal Panel in a case within the Legal Services Division. In Di Suvero v New South Wales Bar Association (LSD) [2001] NSWADTAP 37 at [26], the Panel said:-

If an informant in a professional discipline proceeding substantially succeeds there would in our view have to be quite exceptional circumstances to deprive the informant of a full costs order.

33 As Ms Green pointed out, however, this statement was made with reference to costs orders under s 171E(1) of the Legal Profession Act 1987. She argued that since this provision, unlike s 171E(2), contains no requirement of ‘special circumstances’, it is of no assistance in interpreting s 88(1) of the Tribunal Act.

34 Mr Wade contended this appeal fell within the category of ‘special circumstances’ that we have just described. Not only had Dr Lloyd been entirely unsuccessful, but he had failed to satisfy the threshold requirement of establishing an error of law in the Tribunal’s decision. His Notice of Appeal and the accompanying grounds put forward by him did not demonstrate reasonable prospects of success.

35 In opposition to these assertions, Ms Green contended that the considerations raised in the appeal were such as to ‘properly raise questions of errors of law’. She submitted that we recognised this when on 25 October 2004 we granted to Dr Lloyd a stay of the Tribunal’s disciplinary orders pending disposition of the appeal. Another indicator of the merit of the appeal was, she claimed, that, as indicated above, the disciplinary orders made by the Tribunal were more severe than those sought by the Committee in its submissions to the Tribunal. Ms Green referred also to two specific arguments raised in the appeal, which we will identify and discuss later in this judgment.

36 A further argument raised by Ms Green was that since in each of three previous appeal proceedings within this matter Dr Lloyd had been entirely successful but had not obtained any award of costs, it would be ‘unfair if in this, his only unsuccessful appeal, costs were to be awarded against him’.

37 A ‘significantly late variation’ to a party’s case. The second category of ‘special circumstances’ identified in Mr Wade’s submissions was where a party has made a ‘significantly late variation’ to its case. He relied here on a statement in Charteris (No 2) at [36]:-

Party conduct which results in avoidable costs being incurred by the other party is a special circumstance that may give rise to a costs order against the non-compliant party. In the Tribunal, events such as non-compliance with directions, failure to produce witnesses giving rise to requests for adjournments, and significant late variations to cases (as alleged here) may give rise to costs orders against the party in default.

38 Mr Wade’s submissions included a suggestion that, if the Tribunal did not consider that there were special circumstances warranting a full costs order, this particular feature of the conduct of Dr Lloyd’s appeal would by itself warrant a partial costs order, at least to the extent of 80%.

39 The specific facts on which Mr Wade relied in this connection were these. Dr Lloyd’s representatives filed and served a Notice of Appeal on 19 October 2004 and served written submissions (dated 8 November 2004) on 29 November 2004. They then filed and served a document headed ‘Appellant’s Amended Grounds of Appeal & List of Authorities’ on 6 December 2004, the day of the hearing of the appeal. In Mr Wade’s submission, the late service of this last document prejudiced the Committee’s ability to respond to it properly.

40 In response, Ms Green denied that the Committee had been inconvenienced or put to unnecessary expense in the conduct of the appeal. She pointed out that the appeal had been fully heard on the first available date, within the time frame that had been allocated to it.

Our conclusions

41 The approach to be adopted in applying s 88(1). In our judgment, the question whether ‘special circumstances’ as required by s 88(1) of the Tribunal Act exist in this matter depends on whether it can properly be said that Dr Lloyd’s appeal ‘was without any real prospect of success’.

42 In applying this criterion, we take the view that an appellant’s failure to identify a ‘sufficiently arguable’ error of law in the decision appealed against provides good grounds for asserting that the criterion is satisfied. But it does not determine the issue finally against the appellant, particularly when he or she is unrepresented and lacks legal qualifications. This is our interpretation of the cases cited above at [26 – 28].

43 Equally, we do not believe that where an appellant has demonstrated to the satisfaction of an Appeal Panel that one or more errors of law exist, it follows necessarily that the appeal was one with a ‘real prospect of success’. It may still be apparent from the outset that the outcome of the litigation will not be altered irrespective of whether any of these errors are established.

44 We are left with no explicit guidance as to whether, in deciding whether to award costs against a veterinary surgeon who has unsuccessfully appealed against disciplinary orders made under the VS Act, we should adopt the relatively liberal approach that has been developed in retail lease appeals, or should be ‘more circumspect’ (to quote the phrase used by the Appeal Panel in DO v University of New South Wales (GD) [2003] NSWADTAP 9 with reference to appeals in ‘the public law and equal opportunity area’).

45 We consider, however, that it would seem anomalous to interpret ‘special circumstances’ too narrowly in the context of proceedings under the VS Act. This is because at first instance a costs order may be made against a veterinary surgeon under s 32(1)(f) of the VS Act, alongside one or more disciplinary orders, without any need to establish ‘special circumstances’. A further supporting consideration is that, since a veterinary surgeon who successfully defends disciplinary proceedings under the Act derives no benefit from s 32(1)(f), he or she must, we presume, establish ‘special circumstances’ under s 88(1) of the Tribunal Act in order to make any claim at all for costs. In both of these situations, arising as they do under an evidently anomalous and unsatisfactory group of provisions regarding costs, a narrow interpretation of ‘special circumstances’ has the effect of heightening the anomalies.

46 Taking account of these general observations, our view is that the appeal instituted by Dr Lloyd in this case should be taken to fall within the description ‘an appeal without any real prospect of success’. In order to explain this conclusion properly, we must outline in general terms the grounds of the appeal and the reasons on which we based our decision to dismiss it.

47 The grounds of the appeal. In our judgment on the appeal (Lloyd v Veterinary Surgeons Investigating Committee (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) (GD) [2005] NSWADTAP 2) at [21], we gave the following summary of the grounds of appeal put forward by Ms Cohen of counsel, who represented Dr Lloyd:-

The errors of law alleged by Ms Cohen related principally to the following aspects of the Tribunal’s decision: (1) its ruling that, despite a significant lapse of time and evidence suggesting that circumstances affecting Dr Lloyd’s practice had changed significantly, its findings of misconduct within the period from 1995 to 1997 provided a sufficient basis for its conclusion in September 2004 that he was currently unfit to practise as a veterinary surgeon; (2) the ‘punitive’ effect that its orders would have on him; and (3) its interpretation and application of the provisions regarding ‘public interest’ in s 32(2) of the VS Act.

48 The reason why Ms Cohen highlighted errors of law derives, as we pointed out at [14 – 15], from s 113(2) of the Tribunal Act. Under this provision, as interpreted by the Tribunal, an appellant, while possessing a right of appeal on any question of law, must identify one or more errors of law that are at least arguable before any consideration can be given to granting leave for the appeal to extend to the merits.

49 On each of these three matters, the submission of Mr Wade for the Committee was that no error of law existed. We accepted this submission. We will now comment briefly on our treatment of each of these matters.

50 Lapse of time and change of circumstances. In relation to this matter, Ms Cohen submitted to us that, in the light of a deal of evidence that had been put to the Tribunal, it could not properly make its finding that Dr Lloyd was currently unfit to practise as a veterinary surgeon. In brief, this evidence was to the effect that financial and personal pressures affecting Dr Lloyd during the period of his misconduct were no longer present, that his present-day veterinary practice was well organised and that he had acknowledged his past shortcomings.

51 Ms Cohen submitted also that the Tribunal had failed to take proper account of the Court of Appeal’s decision in Burton v Anderson (unreported, CA 40030/92, 28 October 1994). In this case, the Court set aside an order of the Veterinary Surgeons Disciplinary Tribunal, imposing a three-month suspension from practice on a veterinary surgeon found guilty of misconduct. It did so on the ground that nearly three years had elapsed between the suspension and the hearing of the appeal, during which time the practitioner had continued in practice without complaint.

52 This issue of the weight to be attached to Burton v Anderson was one of the two issues to which Ms Green, in her submissions to us, specifically referred in contending that the appeal was not without merit (see [35] above]).

53 Our conclusion was that no error of law was discernible. In our judgment on the appeal, we said at [36] that we ‘more or less’ accepted Mr Wade’s submissions on this matter. We summarised the bulk of these submissions as follows at [35]:-

He submitted further that, in relation to both the lapse of time and the change in Dr Lloyd’s circumstances, the Tribunal had in fact taken all relevant factors into account. It had given due consideration to the lapse of time in its discussion of Burton v Anderson , and at other parts of its judgment it had referred to all the factors that according to Ms Cohen indicated a change in circumstances. It was not sufficient for her to persuade us that on the balance of the evidence a different conclusion regarding Dr Lloyd’s current fitness to practise was or might be preferable.

54 At [37 –42] we made further observations on particular aspects of the Tribunal’s judgment, all of which in our opinion supported our conclusion. At [43], we tested this conclusion against authoritative statements of legal principle defining the concept of error of law. This exercise again provided support for our conclusion.

55 ‘Punitive’ impact of the Tribunal’s orders. As to the second error of law alleged by Ms Cohen, we set out our initial response at [54]:-

We have already held that the Tribunal’s finding that Dr Lloyd is currently not fit for practice on an unrestricted basis is not open to challenge in this appeal. It follows that we cannot accept one of the principal arguments advanced by Ms Cohen, namely, that the Tribunal’s orders must inevitably be characterised as solely punitive in effect, and unwarranted for that reason, because they cannot be justified by reference to protection of the interests of animals, members of the public or members of the profession of veterinary surgeons.

56 We went on to point out at [56] that disciplinary orders may ‘legitimately seek to prevent similar misconduct by other practitioners, through embodying an element of general deterrence and through publicly reaffirming the standards of practice that apply within the profession’. We added at [57] that ‘in a protective jurisdiction such as this, any sanctions imposed on a practitioner on grounds of misconduct will inescapably have a punitive effect on him or her’. For each of these propositions, we cited authority.

57 We then made it clear, at [58 – 60], that in our opinion the Tribunal’s judgment had displayed full awareness of the various considerations that should apply when disciplinary orders are to be made against veterinary surgeons, including the consideration that a punitive effect may often be present.

58 We then dealt with an argument by Ms Cohen that the sanctions imposed by the Tribunal would effectively cause Dr Lloyd to be deregistered. The reason that she put forward was that Dr Lloyd, being already more than 50 years old, would almost certainly be unable to obtain employment as a veterinary surgeon once his period of suspension for nine months had elapsed.

59 Our response, at [61], was to agree with Ms Cohen that ‘the practical impact of the sanctions of suspension from practice and subsequent restrictions on practice was a matter that the Tribunal was obliged to take into account’. But, we said, it was clear from the judgment that the Tribunal did so adequately.

60 Finally, we rejected at [64] an argument by Ms Cohen, relating to her assertion of a ‘punitive impact’, that the Tribunal erred in imposing more severe sanctions than those recommended by the Committee. We pointed out that, as is well recognised, the Tribunal is not in any way bound by the views of the Committee on this issue.

61 Interpretation of s 32(2) of the VS Act. The third ground on which, in Ms Cohen’s submission, the Tribunal erred in law concerned its interpretation and application of the provisions regarding ‘public interest’ in s 32(2) of the VS Act. This subsection is reproduced at [14] above.

62 At [66], we outlined Ms Cohen’s arguments in this context as follows:-

At its highest, Ms Cohen’s submission under this heading was to the effect that (a) there was a significant public interest in the services of a practitioner of 30 years’ experience (such as Dr Lloyd) remaining available to the public, particularly when (as the evidence showed) he made those services available at low cost to clients of limited means in regions where other practitioners were relatively scarce; (b) that it was therefore ‘in the public interest’ that he should be allowed to continue to practise veterinary science; and (c) that by virtue of s 32(2)(c) of the VS Act this consideration alone required the Tribunal to desist from imposing an order of suspension from practice under s 32(1)(b).

63 In her submission to us on the present application, the second specific point made by Ms Green in defending the merits of the appeal (see [35] above) was that the positive evidence submitted to the Tribunal regarding the current state of his practice rendered ‘challengeable’ its decision on ‘public interest’.

64 Our rejection, at [67 – 73], of this ground of appeal in its various aspects stemmed from our conclusion that the Tribunal had properly interpreted and applied s 32(2) in accordance with the following statement of principle, which we set out in our judgment at [68]:-

Correctly interpreted, s 32(2) requires that before suspending or deregistering a veterinary surgeon, the Tribunal must determine whether any public interest considerations in favour of his or her being permitted to remain in practice outweigh the evident public interest in ensuring that all those who are permitted to practise are fit to do so.

65 The specific point made by Ms Green is not enough in itself to establish that, contrary to our decision on the appeal, the Tribunal in fact erred in law. In our view, it does not weigh significantly in the decision that we now have to make, which is whether the appeal had a ‘real prospect of success’.

Conclusion

66 In the light of this review of the principal features of our decision on the appeal, we conclude that the absence of any error of law in the reasoning of the Tribunal was sufficiently evident at the outset to warrant categorising the appeal as one ‘without any real prospect of success’.

67 As this review shows, no point of law arose on which the relevant statutory provisions or case law raised difficulties of ascertainment. There was no issue in relation to which the Tribunal was alleged to have made a finding without any evidence at all to support it. On a number of issues, it was claimed that the Tribunal failed to take all relevant considerations into account. In relation to each of these issues, however, the terms of its judgment showed that this was not the case.

68 We agree with Ms Green that, on the face of it, our decision to grant a stay in October 2004 may appear to be in conflict with a conclusion that the appeal lacked merit. That decision was however reached after no more than a preliminary examination of the grounds then put forward on the appeal. It was based also on our view of where the balance of convenience lay. It could not be the case that if the Tribunal decides, in determining an interlocutory application for a stay of execution, that there may be arguable grounds to support an appeal, it is thereby precluded from determining, after a full examination of those grounds, that the appeal in fact had no real prospect of success.

69 We cannot attach any weight to Ms Green’s argument that it would be ‘unfair’ for Dr Lloyd to pay the costs of this appeal because he has obtained no orders for costs in three previous appeals in which he was successful.

70 For these reasons, we uphold the Committee’s claim that, on account of this appeal having no real prospect of success, there are ‘special circumstances warranting an order for costs’ in its favour. Having made this finding, we order that Dr Lloyd should pay the costs applied for.

71 These costs should be confined to the costs of the appeal itself. The application did not expressly extend to the costs of the application for a stay, in which Dr Lloyd was in fact successful.

72 We do not accept the second ground advanced by Mr Wade for ruling that ‘special circumstances’ existed. We agree with Ms Green that the late filing of an amended notice of appeal caused no significant prejudice or inconvenience.

73 There will be no order for costs on this application.