Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 1: 'Chisel' Findings) (GD)
[2003] NSWADTAP 47
•10/13/2003
Appeal Panel - Internal
CITATION: Lloyd -v- Veterinary Surgeons Investigating Committee (Inquiry 1: 'Chisel' - Findings) (GD) [2003] NSWADTAP 47 PARTIES: APPELLANT
Ronald George Lloyd
RESPONDENT
Veterinary Surgeons Investigating CommitteeFILE NUMBER: 039026 HEARING DATES: 28/07/2003 SUBMISSIONS CLOSED: 07/28/2003 DATE OF DECISION:
10/13/2003DECISION UNDER APPEAL:
Veterinary Surgeons Investigating Committee v Ronald George Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95BEFORE: Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Stephens T - Member CATCHWORDS: bias - defence of honest and reasonable mistake - failure to consider - denial of natural justice - failure to provide access to evidence - error as to status of evidence - effect on creditability of another witness - failure of all Tribunal Members to participate in determination - professional misconduct - charges formulated after resolution as to a prima facie case - professional misconduct - conduct constituting professional misconduct - professional misconduct - duplicity or repetition within the allegations - professional misconduct - failure to give sufficient notification of substance of allegations - professional misconduct - insufficient investigation of complaint - professional misconduct - insufficient weight given to expert evidence - professional misconduct - no committee resolution as to prima facie case - reconsitution of tribunal - failure to recall witnesses MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 40004 of 1998 DATE OF DECISION UNDER APPEAL: 05/09/2003 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Veterinary Surgeons Act 1986
Veterinary Surgeons Regulation 1995CASES CITED: Brennan v Brennan (1953) 89 CLR 129
Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19
Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: ‘Gypsy’ – Findings) [2003] NSWADT 96
Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 1(a) to (e)) [2002] NSWADT 285
Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 2) [2003] NSWADT 136
Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2002] NSWADT 283
Veterinary SurgeonREPRESENTATION: APPELLANT
M Tzannes, Barrister
RESPONDENT
L T Grey, BarristerORDERS: 1 Appeal allowed in part; 2 Findings of misconduct in a professional respect set aside in relation to Allegation 1(a), Particulars, paragraphs 1, 2 and 3, and Allegations 1(b), 1(c) and 2; 3 Inquiry to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Veterinary Surgeons Act 1986 with respect to Allegation 1(a), Particulars, paragraph 4, and Allegation 1(e).
Introduction
1 This appeal is one of six that have been brought by the respondent in professional disciplinary proceedings, Dr Ronald George Lloyd (Dr Lloyd), against conclusions reached in judgments by a veterinary panel of the General Division. The judgments all related to complaints against Dr Lloyd referred initially to the Veterinary Surgeons Disciplinary Tribunal, then to this Tribunal, by the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act).
2 The judgment appealed from in this appeal is Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95 (hereafter ‘Chisel’). The other five judgments against which Dr Lloyd appealed are as follows: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegations 1(a) to (e)) [2002] NSWADT 285 (hereafter ‘Remus 1’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 2) [2003] NSWADT 136 (hereafter ‘Remus 2’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: ‘Gypsy’ – Findings) [2003] NSWADT 96 (hereafter ‘Gypsy’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2002] NSWADT 283 (hereafter ‘Total Eclipse - Jurisdiction’); and Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Findings) [2002] NSWADT 284 (hereafter ‘Total Eclipse – Findings’).
3 Dr Lloyd’s appeal in Total Eclipse – Jurisdiction was successful: see Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19 – hereafter the Total Eclipse Appeal. In consequence, the findings of the Tribunal in Total Eclipse - Findings have been set aside.
4 The appeals against the judgments in Remus 1, Remus 2 and Gypsy have been heard. Judgments on these appeals will be delivered contemporaneously with the present judgment.
5 In Chisel, the subject of the present appeal, the Tribunal made findings in relation to Allegations 1 and 2 of one of the complaints laid by the Committee against Dr Lloyd. These Allegations asserted that Dr Lloyd was guilty of misconduct in a professional respect in the course of his treatment of a dog called Chisel.
6 The Tribunal concluded that, by virtue of its adverse findings, Dr Lloyd was guilty of misconduct in a professional respect in respect of the conduct alleged in Allegations 1 (a), (b), (c) and (e) and Allegation 2. There was, however, no paragraph (d) in Allegation 1, and the final paragraph was (e). In essence, therefore, the determination covers the whole of both Allegations.
Uncontested facts
7 The precise circumstances giving rise to the complaint were much disputed. But the following brief outline describes relevant events that were not contested.
8 On the afternoon of Saturday 24 February 1996, a female Rhodesian Ridgeback dog called ‘Chisel’, who was owned by Mr Sam Girgenti and Mrs Kerry Girgenti, was hit by a car near the Girgentis’ home in Liverpool. As Chisel was in great distress, Mrs Girgenti and her son Sam Girgenti Jnr (hereafter ‘Sam’) took her straightaway to their usual veterinary hospital, which was run by Dr Warren Davis and Dr Wanner. They found it closed, so they took her, in haste, to Dr Lloyd’s surgery at Gill Avenue, Liverpool, which was the nearest to their home. Mr Girgenti arrived there some time later.
9 Dr Lloyd examined Chisel and found injuries to the left front and back legs. He said that surgery might be required on both legs and that he would perform this surgery the following Monday, 26 February. He applied a cast to the front leg and (it would appear) a bandage to the back leg, put stitches in Chisel’s ear, which was lacerated, and administered injections of pain-killers, tranquillisers and antibiotics. He kept her at his Gill Avenue surgery, administering fluids and repeat doses of medications.
10 Early on Monday 26 February, Dr Lloyd transported Chisel to a veterinary hospital at Hoxton Park (of which he was the superintendent). On arrival at the hospital, he formed the view that the front leg would heal with a mobilisation plaster or plaster cast, but that the back leg required surgery. Having administered an anaesthetic, he repaired the fracture, inserting an intramedullary pin into this leg.
11 After the operation, Dr Lloyd advised the Girgenti family that Chisel was ready to be collected late that afternoon, and that they should collect her at his Gill Avenue surgery. He took Chisel back to this surgery, placing her in the front passenger well of his car, a Dodge Charger. Mrs Girgenti and Sam met him there. Dr Lloyd lifted Chisel out of his car and placed her in the station wagon driven by Mrs Girgenti. Mr Girgenti arrived shortly afterwards, in a separate vehicle. Dr Lloyd gave them some instructions as to how Chisel should be cared for during the recovery period.
12 A card recording aspects of Dr Lloyd’s diagnosis and treatment of Chisel on 24 and 25 February was tendered to the Tribunal. There was no hospital sheet relating to the surgery effected on 26 February.
13 On 28 February, as Chisel appeared to be in poor condition, Mrs Girgenti contacted Dr Davis. He called on Dr Lloyd at Gill Avenue and received a description of the treatment that had been carried out. He then examined Chisel at the Girgentis’ home. He formed the opinion that the pin inserted by Dr Lloyd was too long and that specialist surgery on the hind leg might be needed. He contacted a specialist surgeon, Dr Anthony Black, but the fee quoted by Dr Black was considered excessive by the Girgentis. He then contacted the RSPCA Hospital, where Dr Mark Lawrie, the Chief Veterinarian, agreed that the surgery could be performed at the Hospital for a fee acceptable to the Girgentis. Dr Davis arranged for Chisel to be admitted to the Hospital on 1 March.
14 Some time later, Mr Girgenti telephoned Dr Lloyd and asked for the x-rays that Dr Lloyd had taken (or so Mr Girgenti assumed) before performing the operation on 26 February. Dr Lloyd said that this was not possible, as his inexperienced assistant at the hospital, Ms Emma Sterrett, had used an incorrect procedure in endeavouring to fix the two x-ray plates taken pre-operatively after developing them, and had rendered them unusable. Dr Lloyd offered to take new x-rays if Mr Girgenti would bring Chisel back to his surgery. Mr Girgenti declined to do this out of concern for Chisel’s condition.
15 No pre-operative or post-operative x-rays taken by Dr Lloyd were tendered to the Committee, in its investigations, or to the Tribunal. Dr Lloyd and Ms Sterrett’s evidence was that a post-operative x-ray had been accidentally destroyed on account of the same error by Ms Sterrett.
16 Chisel was taken to the RSPCA Hospital on 1 March. Dr Richard Rumsey, who examined her initially, formed the opinion that Dr Lloyd’s operation had proved unsatisfactory. Dr Lawrie advised that a plate should be inserted. On the evening of 1 March, an operation to do this was performed by Dr Rumsey at the Hospital. Chisel remained there for about a month, before being discharged.
17 Mr Girgenti wrote a letter dated 9 May 1996 to the Australian Veterinary Association (AVA), indicating that he and his wife were dissatisfied with Dr Lloyd’s treatment of Chisel. The AVA sent a copy of this letter to the Committee. Further steps taken by the Committee are outlined below.
The Allegations and supporting particulars
18 The text of the two Allegations and the accompanying particulars is as follows (for ease of reference, numbers have been inserted before the various paragraphs of the particulars to Allegation 1(a) and before the sub-paragraphs of the particulars to Allegation 1(e)):-
19 As indicated above, the Tribunal concluded that the charges of misconduct in a professional respect had been proved in respect of each of the Allegations 1(a), (b), (c) and (e) and 2. But three of the particulars supporting these Allegations were found not proven. These were as follows: particular 2(v) to Allegation 1 (a) (failure to take a post-operative radiograph) and particulars (iii) and (xiv) to Allegation 1 (e) (relating respectively to failure to record the anaesthetics administered and any consideration of pain relief).
TAKE NOTICE that the Veterinary Surgeons Disciplinary Tribunal has received a complaint referred to it by the Veterinary Surgeons Investigating Committee that you have been guilty of misconduct in a professional respect within the meaning of Section 22 of the Veterinary Surgeons Act 1986 ("the Act") in relation to your care, treatment and management of the dog "Chisel".
The specific allegations which have been made against you and the particulars of those allegations are as follows:
1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons' Code of Professional Conduct ("the Code") established under Section 23 of the Act and prescribed for the purposes of section 22(c) of the Act, as follows:
2. That, being the Superintendent of a veterinary hospital, you are guilty of misconduct in a professional respect in that in accordance with Section 54 of the Veterinary Surgeons' Act, 1986 you were between 24 February 1996 and 26 February 1996, responsible for the care, control and management of the hospital known as Rutledge Park Veterinary Hospital and failed to ensure that a complete record was made at the time of each veterinary treatment and consultation.
(a) Between 24 February 1996 and 26 February 1996 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science.
Particulars
(1) On Saturday 24 February 1996, Mrs Girgenti and her son consulted you in relation to injuries sustained by a Rhodesian Ridgeback dog, named "Chisel" in a motor vehicle accident. Despite the fact the dog had two fractured legs which you should have taken into account (or if not immediately apparent to you, was a matter which you ought to have taken into account), you attempted to have the dog stand on all four legs and walk which caused the dog's rear leg to collapse and caused great distress to Mrs Girgenti and her son.
(2) After providing initial treatment to the dog you then admitted it to your hospital and subsequently attempted the repair of the comminuted mid-shaft femoral fracture. This operation failed to comply with the then current standards of veterinary science in that:
(i) the fracture fragments were poorly reduced;
(ii) the fracture was inadequately stabilised with a single intramedullary pin;
(iii) you caused overriding and a consequential mal-alignment of the major fragments;
(iv) although not having adequate equipment and experience to handle this particular type of surgery, you did not make any attempts to consult any specialist;
(v) you failed to take a post operative radiograph;
(vi) there was no adequate working up of the dog in that:
* you did not weigh the dog to establish the correct quantity of anaesthetic and other drugs to be administered to it;
* you did not undertake a thorough clinical examination or, if you did you did not make a record of it;
* in particular there is no record of temperature, condition of mucus membrane, of whether you performed an abdominal palpation and/or thoracic auscultation or any consideration you gave to pain relief;
* you did not record a description of the fracture.
(3) On the same day as the day when you operated on the dog, or else on the following day, you transported Chisel from the Rutledge Park Veterinary Hospital back to your surgery at Gill Avenue, Liverpool on the floor of the front passenger's compartment of your motor vehicle thereby increasing the risk of further damage to the leg and of the pin which you had inserted moving, penetrating the skin and causing infection.
(4) You discharged the dog to Mrs Girgenti on 26 February 1996 for her to transport back to the Girgenti's home at a time when the dog should have been kept in hospital and when movement of it should have been kept to a minimum.
(b) On 25 or 26 February 1996 you failed to refer Mrs Girgenti to an appropriately qualified veterinary surgeon when a second opinion or a referral was desirable.
Particulars
Having ascertained the nature of the injury to the dog's rear leg, in a situation where you lacked all of the necessary equipment to perform the required operation to repair it and lack the necessary experience and skills to do so, you should have consulted Mrs Girgenti and advised her of the need for the operation to be carried out by a specialist.
(c) On or about 26 February 1996, being responsible for the professional supervision of lay staff, you failed to ensure that the staff carried out their duties effectively and in compliance with relevant legislation.
Particulars
Before you operated on Chisel you took radiographs of Chisel's two broken legs. You had these developed by a part-time nurse, Emma Sterrett who then put them back into the developer, instead of the fixer causing them to be damaged or destroyed. Accordingly they were not available to you, nor to any subsequent veterinarian nor could they be retained as required by clause 5(12) of the Code.
[Note: There is no (d)]
(e) You failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made.
Particulars
The only record which you made in relation to your treatment of Chisel and consultations with the owners of Chisel between 24 February 1996 and 26 March 1996 were the notes set out on the card which you presented to the Veterinary Surgeons Investigating Committee. Specific information which was not recorded was:
(i) a record of the options which you claim you provided to Mr Girgenti when the dog was first presented to you;
(ii) the transfer of Chisel from your surgery to the hospital;
(iii) the anaestethics (sic) administered;
(iv) your estimate of the dog's weight;
(v) Chisel's discharge;
(vi) the advice which you gave to Mrs Girgenti on discharging the dog to her;
(vii) the information set out in the first paragraph appearing at the top of page 2 of your letter to the Investigating Committee dated 31 July 1996;
(viii) the fate of the damaged or destroyed radiographs;
(ix) any post operative x-rays taken by you;
(x) description of the fracture;
(xi) temperatures;
(xii) condition of mucus membrane;
(xiii) any abdominal palpation and/or thoracic auscultation conducted;
(xiv) any consideration of pain relief;
(xv) the times and dates of the events described above.
Particulars
On 25 February 1996, you transferred the dog Chisel to the hospital and on or about 26 February 1996 performed an operation on the dog's rear leg before returning her to the surgery in Liverpool where she had initially been presented to you. The particulars relating to your failure to make and retain proper records set out in paragraph 1(e) are repeated.
The grounds of the present appeal
20 In outline, the grounds of Dr Lloyd’s appeal, each involving an alleged error of law by the Tribunal, are as follows:-
Ground (1): The Committee, having received an initial letter of complaint from Mr Girgenti, one of the owners of Chisel, did not sufficiently investigate the complaint as required by s 27 of the Act. Notwithstanding this, the Tribunal proceeded with the inquiry.
Ground (2): When providing to Dr Lloyd, as required by s 28(3) of the Act, the opportunity to make written representations and, at a later stage, oral representations regarding the complaint, the Committee did not notify him of the content of Allegations 1(b) (except during the stage of oral representations) or 1(c). Notwithstanding this, the Tribunal proceeded with the inquiry.
Ground (3): The resolution of the Committee, pursuant to s 28(1)(c) of the Act, that there was a prima facie case of misconduct warranting referral to the Tribunal, did not in terms cover Allegations 1(b), 1 (c) or 2. Notwithstanding this, the Tribunal proceeded with the inquiry.
Ground (4): The Committee breached s 28(1)(c) by formulating all the charges against Dr Lloyd after, not before, having made its findings of a prima facie case. Notwithstanding this, the Tribunal proceeded with the inquiry.
Ground (5): During the oral hearing required by s 28(3), the Committee did not permit Dr Lloyd to see an x-ray of Chisel’s hind leg taken at the RSPCA Hospital before the operation performed there on 1 March 1996. This constituted a denial of natural justice, since he could not bring forward radiological evidence to contest the interpretation put on the x-ray in Dr Black’s report to the Committee. Notwithstanding this, the Tribunal proceeded with the inquiry.
Ground (6): In its judgment, the Tribunal treated an account of observations and conduct of Sam Girgenti Jnr, provided chiefly in the initial letter of complaint, as if it were his evidence. Its acceptance of this ‘evidence’, which was in conflict with parts of Dr Lloyd’s evidence, undermined the reliability of some of its findings and had adverse implications for its assessment of Dr Lloyd’s credibility.
21 Dr Lloyd also sought leave to extend the appeal to the merits. The grounds put forward were (a) that the evidence of Mrs Girgenti and the other lay witnesses was demonstrably unreliable, and (b) that insufficient weight was given to the evidence of expert witnesses where it was favourable to Dr Lloyd.
Ground (7): During the course of the hearing, after Mrs Girgenti had given her evidence in chief and been cross-examined, one member of the Tribunal panel was replaced by another. Over objections by counsel for Dr Lloyd, Mrs Girgenti was not recalled for cross-examination. Instead, the new member read a transcript of the earlier evidence given by her. In reaching a number of its findings, the reconstituted panel preferred the evidence of Mrs Girgenti to that of Dr Lloyd. This refusal to recall Mrs Girgenti, in order that her credibility, which was a matter of importance, could be assessed by the new member, constituted a denial of natural justice to Dr Lloyd.
Ground (8): The Tribunal failed to have due regard to the evidence of expert witnesses, where it was favourable to Dr Lloyd, and to the evidence of Dr Lloyd himself. In reaching conclusions adverse to Dr Lloyd despite the presence of this evidence, it manifested an incorrect understanding of the evidentiary requirements for proof of misconduct in a professional respect.
Ground (9): The Tribunal exhibited bias against Dr Lloyd.
Ground (10): The degree of factual error in the judgment was such that it might in fact be a decision, not of the whole Tribunal panel, but of a single member only.
Ground (11): The Tribunal did not consider the defence of honest and reasonable mistake in relation to Allegation 1 (c).
Ground (12): With reference to Allegation 2, the Tribunal erred in ruling that a veterinary surgeon acting in the capacity of a hospital superintendent could be found guilty of professional misconduct pursuant to the Act.
Ground (13): Dr Lloyd was denied natural justice in being found guilty of professional misconduct by the Tribunal in relation to two allegations framed in identical terms – namely, Allegation 1(e) and Allegation 2.
22 In the particular circumstances of this appeal, we considered that this leave should be granted.
The position adopted by the Committee
23 An unusual feature of this appeal is that the Committee, having initially laid the complaint against Dr Lloyd, raised no significant opposition to the appeal by him. Furthermore, in its Reply to the Notice of Appeal, in a written submission and in the hearing before us, it raised additional arguments in support of the appeal.
24 We do not think that, on account of this decision by the Committee, the respondent to this appeal, to refrain from opposing the appellant’s arguments and indeed to provide positive support for some of them, we should simply allow the appeal. Previously, the Committee, in the discharge of its statutory functions, both referred the various allegations in the complaint to the Tribunal and brought forward a considerable quantity of evidence with a view to establishing that they were well founded. In our opinion, we would be failing to discharge the Tribunal’s responsibilities to protect the public interest in professional disciplinary proceedings such as these if we ignored this evidence and allowed the appeal in full simply because the Committee chose not to oppose it.
25 We therefore consider that we are obliged to reach our own independent conclusion as to whether and, if so, to what extent the appeal should succeed, as opposed to simply endorsing the arguments put forward in support of the appeal by both parties to it. In this connection, we would express our agreement, in general terms, with observations made by the Tribunal in Total Eclipse – Findings, at [156 – 173].
26 We have felt at a disadvantage in not receiving submissions opposing the appeal. In preparing this judgment, we have had to conduct our own researches of the relevant law. But we recognise that grounds on which we might affirm the judgment under appeal are to be found in the reasons for judgment themselves. We would add also that, in so far as a number of the grounds of appeal are concerned with legal procedure rather than veterinary science, it is not so important for a professional disciplinary body such as the Committee to present arguments in opposition to the appeal.
The relevant aspects of ‘misconduct in a professional respect’
27 A discussion of the concept of ‘misconduct in a professional respect’, both at common law (in its application to veterinary surgeons) and under various provisions of the Act, appears in Remus 1 at [25 – 33]. We are in general agreement with what is said there, and will not repeat it in these reasons.
28 In judgment on the appeal in Remus 1 (hereafter the Remus 1 Appeal), we have added, at [22 – 24, 105 – 120], some further observations of specific relevance to these appeals.
29 In particular, we have referred in that judgment to the role played by the Act and the Code in extending the common law concept of misconduct in a professional respect. As explained there, a number of provisions of the Code are prescribed for the purposes of s 22(c) of the Act. The result is that a breach of any these provisions is deemed by s 22(c) to be misconduct in a professional respect.
30 The particular provisions of the Code that are relevant to the present appeal are all prescribed for the purposes of s 22(c). They are as follows:-
31 At [55 – 56] in its judgment, the Tribunal pointed out that Clause 20(2)(a) of the Veterinary Surgeons Regulation 1995 (the Regulation) was also relevant to this case. It is as follows:-
5. Professional practice
(2) Professional procedures should always be carried out in accordance with current standards of veterinary science.
(4) A veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable.
(5) A veterinary surgeon should not refuse a request by a client for a referral or second opinion.
(9) A veterinary surgeon responsible for the professional supervision of lay staff must ensure that the staff carry out their duties effectively and in compliance with relevant legislation.
(12) When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation.
32 Each of the thirteen grounds of appeal listed above at [20] will now be separately discussed.
(2) The superintendent of a veterinary hospital must also:
(a) ensure that a complete record is made at the time of each veterinary treatment and consultation (including any x-ray film, radiograph or ultrasound image) and that the record is retained for at least 2 years from when it was made.
Ground (1): Insufficient investigation of the complaint by the Committee
33 In putting forward this ground of appeal, Ms Tzannes and Ms Green, who acted as counsel for Dr Lloyd, relied on the decision of the present Appeal Panel relating to another complaint against him. In the Total Eclipse Appeal, we ruled that an investigation as required by s 27 of the Act had not been conducted by the Committee. The only steps taken by the Committee had been to consider (a) a letter of complaint written to the AVA by a person who did not own the animal involved in the case, (b) Dr Lloyd’s written response to that letter and (c) oral representations made by him to the Committee (see the judgment at [21]).
34 The principal argument on Dr Lloyd’s behalf was that the Committee had sought no statement from any member of the Girgenti family. The only material before it from that source was Mr Girgenti’s initial letter of complaint to the AVA.
35 The Act provides as follows in s 27:-
36 In the present case, evidence as to the material considered by the Committee at the investigatory stage appears in the annexures to an affidavit dated 22 October 2002 by Ms M Linkenbagh, Secretary to the Committee.
27 Investigation by Investigating Committee
(1) The Investigating Committee shall, except as provided by section 26 (4) and (5), cause all complaints against registered veterinary surgeons made to it in accordance with section 26 to be investigated.
(2) Where in the course of the investigation of a complaint against a registered veterinary surgeon:
the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26.
(a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation:
(i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or
(ii) a complaint could be made to it against another registered veterinary surgeon, and
(b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26,
(3) The proceedings of the Investigating Committee shall be held in the absence of the public.
(4) For the purposes of any investigation conducted by it, the Investigating Committee may conduct the investigation in such manner as it thinks fit and is not bound to observe rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.
(5) Without limiting subsection (4), the Investigating Committee may delegate its function of collecting evidence in relation to an investigation to any person that the Investigating Committee considers appropriate.
37 This material comprised at least the following items: (a) the letter of complaint dated 9 May 1996 from Mr Girgenti to the AVA; (b) Dr Lloyd’s reply, dated 31 July 1996, to a letter from the Committee, enclosing this letter of complaint; (c) two letters from the RSPCA to the Committee, dated respectively 11 September and 1 October 1996; (d) a report from Dr Black, dated 24 September 1996, referring to an accompanying x-ray taken by the RSPCA; (e) Dr Lloyd’s case-card relating to Chisel; and (f) oral representations made by him to the Committee on 10 December 1996.
38 In the light of this evidence, we do not accept Dr Lloyd’s argument that no investigation, such as s 27 requires, was conducted by the Committee. Significantly more was done in the present inquiry than in the ‘Total Eclipse’ inquiry. It is not for us to decide whether an investigation is ‘adequate’, in some sense or another. In particular, it is not for us to decide whether further material from the Girgentis was essential in this case. These are matters of professional judgment for the Committee. We could only make the ruling sought by Dr Lloyd if the measures adopted by the Committee could not reasonably be said to constitute an ‘investigation’ of any kind whatsoever.
39 Ground (1) of this appeal is accordingly rejected.
Ground (2): Failure by the Committee to give sufficient notification to Dr Lloyd of the substance of Allegations 1(b), and 1(c)
40 This ground of appeal is based on the procedural requirements laid out in s 28 of the Act, notably s 28(3).
41 The line of argument pressed by counsel for Dr Lloyd depends upon the proposition that all the allegations contained in a complaint ultimately referred to the Tribunal under s 28(1)(c) of the Act must be conveyed to the veterinary surgeon concerned in the course of providing to him or her the opportunity to make written representations and, subsequently, oral representations to the Committee under s 28(3).
42 The following is the text of s 28:-
43 In our judgment in the Remus 1 Appeal , at [39-43], we have reached two conclusions that are directly relevant here. We will not repeat here the reasoning underpinning those conclusions.
28 Decision of Investigating Committee on complaint
(1) The Investigating Committee:
(a) may dismiss any complaint made to it,
(b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following:
(c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly.
(i) by order, caution or reprimand the veterinary surgeon,
(ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon,
(iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon’s continuing education, acquisition of skills and professional supervision, or
(2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct.
(3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.
44 The first of these conclusions is that there is no implicit requirement that all matters raised in a complaint referred to the Tribunal must, as a matter of law, be communicated to the veterinary surgeon concerned before the procedures set out in s 28(3) are carried out.
45 The second conclusion that we have reached in the Remus 1 Appeal is that the requirements of natural justice must still be observed. If, for instance, a wholly new and serious allegation of misconduct were made without any prior warning against a veterinary surgeon at the conclusion of the oral interview required by s 28(3), the surgeon might well be able to claim that no proper opportunity had been provided for him or her to rebut or otherwise answer the allegation.
46 In its judgment in Chisel, at [35 – 41], the Tribunal dealt with the argument now constituting Ground (2) of this appeal, in so far as it applies to Allegations 1(b) and (c). Its conclusion, after having perused the transcript of Dr Lloyd’s interview with the Committee on 10 December 1996, was that the matters covered in these two allegations were sufficiently ventilated with Dr Lloyd. References were made to the existence of specialist practitioners in the relevant field (the topic of 1(b)) and to the need to train and supervise assistant staff (the topic of 1(c)).
47 Although it could not be said that these references were so explicit as to make it quite clear to Dr Lloyd that his performance in these areas was open to challenge, we are inclined, on balance, to endorse the Tribunal’s conclusions. We do not consider that the requirements of natural justice were infringed in the present case so far as Allegations 1 (b) and (c) are concerned.
48 Ground (2) of the present appeal is accordingly rejected.
Ground (3): No Committee resolution as to a prima facie case with respect to Allegations 1 (b), 1(c) or 2
Ground (4): Charges formulated after, not before, the resolution as to a prima facie case
49 It is convenient to deal with these two grounds together.
50 The Committee passed a formal resolution stating that it was satisfied as to the existence of a prima facie case of misconduct against Dr Lloyd, warranting referral to the Tribunal. It did this on a date in February 1997, noting that it had considered the transcript of the interview with him on 10 December 1996.
51 As recorded in the Committee’s minutes, the resolution outlined in the following terms the forms of misconduct comprised in the prima facie case against Dr Lloyd:-
1. Poor surgical technique was used.
2. His surgical facility and management of this case were not to a standard of competence acceptable to the profession.
3. His records were not to the accepted standard.
52 The precise formulation of the charges, in the terms set out at [18] above, occurred subsequently.
53 The argument put for Dr Lloyd in relation to ground (3) was that under s 28(1)(c) the Committee should have been satisfied that there was a prima facie case in respect of each individual allegation referred to the Tribunal. In the absence of evidence that this was the case, the referral was pro tanto invalid.
54 In our judgment in the Gypsy Appeal, at [63 – 74], we have considered a submission formulated in the same terms as Ground (3). We will not repeat here our discussion of the topic, but will restate our conclusions.
55 We are of the opinion that the formal step of declaring itself ‘satisfied’ as to a ‘prima facie’ case, as mandated by s 28(1)(c), is required of the Committee in relation to the substance, at least, of every distinct charge which it resolves, under this same provision, to refer to the Tribunal. Unless this is the case, it cannot be said that it is ‘satisfied’ that there is a ‘prima facie’ case in relation to the ‘complaint’ that is being referred.
56 We are also of the opinion that a failure by the Committee to observe this requirement is of sufficient seriousness to invalidate the referral, so far as it includes a charge or allegation which was not embraced, in substance at least, by the Committee’s resolution.
57 We will now apply these principles to the specific issues raised in Ground (3).
58 We accept the submission on Dr Lloyd’s behalf that the resolution of the Committee in February 1997 does not, in substance, refer to the training and supervision of assistant staff (this being the topic of Allegation 1(c)).
59 On the other hand, the issue of referral, in appropriate circumstances, to a specialist veterinary surgeon – which is the topic of Allegation 1 (b) – is, we consider, sufficiently embraced by item 2 in the passage quoted from the Committee’s resolution. This view of the matter more or less coincides with an opinion expressed by the Tribunal (though not in this specific context) in its judgment in Chisel at [37].
60 Similarly, while there is no reference in the resolution to the duties of superintendents of veterinary hospitals (these being the general subject-matter of Allegation 2), it did refer to record keeping, which is the particular aspect of Dr Lloyd’s professional conduct to which Allegation 2 relates.
61 Furthermore, it appears to have been accepted on Dr Lloyd’s behalf that the resolution made sufficient mention of record keeping to justify referral of Allegation 1(e). It was further argued on his behalf, as Ground (13) of this appeal, that Dr Lloyd was denied natural justice through being confronted with both Allegation 1(e) and Allegation (2), because of the ‘duplication’ between them. It is difficult to see, in these circumstances, how the resolution could be held to refer sufficiently to the former but not the latter allegation.
62 For these reasons, we consider that the Committee’s resolution as to a prima facie case sufficiently embraced the substance of Allegation 2 as well as of Allegation 1(b).
63 In our judgment in the Gypsy Appeal, at [63 – 75], we have also considered a submission formulated in the same terms as Ground (4). Our conclusion, stated at [75], is as follows.
64 In our judgment, it is not necessary that the precise wording of the charges that are ultimately included in the referred complaint should be the specific subject of the Committee’s resolution that a prima facie case exists. No such requirement appears expressly or by implication in s 28(1)(c).
65 The outcome of this consideration of these two grounds of appeal is as follows.
66 We uphold Ground (3), but only in so far as it relates to Allegation 1(c). The Tribunal’s findings of professional misconduct based on this Allegation must on this ground, if not also on other grounds, be set aside.
67 On the other hand, we reject Ground (3) in so far as it applies to Allegations 1(b) and 2. We also reject Ground (4).
Ground (5): Denial of access to the RSPCA x-ray
68 The issue here is whether, on natural justice grounds, it was incumbent on the Committee to enable Dr Lloyd, at or before his interview with the Committee on 10 December 1996, to have access for a significant period to an x-ray that had been taken of Chisel’s hind leg before the operation at the RSPCA Hospital on 1 March 1996. At the interview, the Committee had before it a report on the x-ray prepared by Dr Black, in which he criticised the surgery performed by Dr Lloyd on 26 February. During the interview, the x-ray was shown to Dr Lloyd, but only for a short period of time and not until the interview had been in progress for a significant period.
69 An argument raised by Dr Lloyd at the Tribunal hearing was that the x-ray did not accurately depict the state of Chisel’s leg at the conclusion of the operation that he performed. Instead, it was likely that, in the intervening period between the operation and the taking of the x-ray, the surgical repair that he had carried out had collapsed due to invisible micro-fractures. This interpretation of the x-ray received some support from Dr Dixon, an expert radiologist.
70 We do not accept the submission for Dr Lloyd that this denial of access to the x-ray constitutes a denial of natural justice, either at common law or by implication from the terms of s 28(3). The submission appears to us to enlarge the duty of the Committee to notify Dr Lloyd of the substance of the allegations made against him – in order that, pursuant to s 28(3), he might have the opportunity to make representations in reply – so that it covers also the evidence which, in the course of its investigation, the Committee has obtained in support of those allegations.
71 The assertion to which the x-ray was specifically relevant, as particularised in paragraphs 2(iii) and (iv) of the particulars to Allegation 1(a), was that his choice and mode of use of a single intramedullary pin in repairing the fracture to the hind leg did not comply with current standards of veterinary science. He was aware of the substance of this assertion at the time when he made his representations to the Committee under s 28(3). In our opinion, no denial of natural justice occurred solely because he was not given significant access to a part of the evidence supporting the assertion.
72 For these reasons, we reject Ground (5) of the appeal.
Ground (6): Erroneous treatment of an account of the observations and conduct of Sam Girgenti Jnr as evidence given by him.
73 In its judgment in this case, the Tribunal referred in three paragraphs to evidence being given by Sam Girgenti Jnr (‘Sam’).
74 The first two of these paragraphs are [66] and [67]. They relate to the afternoon of 25 February 1996, when, shortly after Chisel was run over, Mrs Girgenti and Sam brought her to Dr Lloyd’s surgery at Gill Avenue. The text of these paragraphs is as follows:-
75 The third of the three paragraphs is [133]. Here ‘Mr Girgenti jnr’ is said to have given evidence that Dr Lloyd recommended Panadol as the painkiller for Chisel when the Girgentis took her back from Dr Lloyd on 26 February. In fact, such a statement appears in the written evidence of Sam’s father, who is referred to by the Tribunal as ‘Mr Girgenti snr’. We think it likely that in paragraph [133] the reference to ‘Mr Girgenti jnr’ is a typographical error only.
66 Mrs Girgenti and Sam jnr gave evidence. Sam jnr said Dr Lloyd stood the dog up with the result that its weight was borne by all four legs; and attempted to make it walk. Dr Lloyd said in his original reply to the Committee `It was held by the neck with my left hand and supported under abdomen with my right hand.'
67 According to Sam Girgenti jnr, the dog's back leg doubled up under her. He was distressed as he believed the dog's front and back left-side legs were broken. Mrs Girgenti said in her statement for the Tribunal that Dr Lloyd `lifted Chisel up with one hand grabbing the loose skin on her neck and the other underneath her belly.' She said `I remember being shocked at how roughly he did this. As he lifted Chisel one part of her left back leg was not correct, the bottom part went the wrong way, swerved out to the side.' She reports her son as being distraught and saying `Stop doing that. Stop doing that. Can't you see she's in pain.' She said in evidence (ts 24) that she saw a bone start to protrude. She said it did not actually penetrate the skin but she could see the point of the bone through the skin.
76 Returning to paragraphs [66] and [67], there is no doubt that the Tribunal committed an error to the extent that it described its summary of Sam’s observations and conduct at Dr Lloyd’s surgery as if it were Sam’s evidence. In fact the principal sources of this material would appear to have been two short paragraphs in the original letter of complaint by Mr Girgenti to the AVA and (possibly) a segment of the evidence of Mrs Girgenti.
77 We accept the submission for Dr Lloyd, with which the Committee in this appeal expressed concurrence, that this error is enough to undermine the validity of the Tribunal’s factual finding regarding Dr Lloyd’s handling of Chisel at the consultation of 25 February.
78 The Tribunal found, at [68] and [292], that Dr Lloyd handled Chisel ‘roughly’ at this first consultation and that accordingly paragraph 1 of the particulars to Allegation 1(a) was established. Paragraph 1 asserted that, despite knowing, or being a position to suspect, that Chisel had two fractured legs, Dr Lloyd attempted to make her ‘stand on all four legs and walk which caused the dog’s rear leg to collapse and caused great distress to Mrs Girgenti and her son’.
79 In our judgment, the Tribunal’s error regarding Sam’s ‘evidence’ is enough of itself to warrant setting aside these findings.
80 We do not accept the broader submission, however, that the Committee’s error in this regard was enough of itself to undermine unfairly its general assessment of Dr Lloyd’s credibility. At numerous stages of the Chisel inquiry, to say nothing of the companion inquiries, it had both the opportunity and the duty to give careful consideration to the reliability of Dr Lloyd’s evidence. Its error regarding Sam’s role in the proceedings would have had a negligible impact on this much more substantial exercise.
81 We accordingly uphold Ground (6), to the limited extent of ruling that it requires setting aside of the Tribunal’s finding that paragraph 1 of the particulars to Allegation 1(a) had been established.
Ground (7): The Tribunal’s acceptance of Mrs Girgenti’s evidence, without having recalled her for cross-examination after it was reconstituted
82 The issue raised by this ground of appeal was also raised in Dr Lloyd’s appeal against the Tribunal’s judgment in Remus 1. In our judgment in the Remus 1 Appeal, at [61 – 103], we have discussed at length the relevant legal principles and their application to the series of events that occurred in the Tribunal below. We will not repeat that discussion here.
83 In the present appeal, as in like circumstances in Remus 1, the essence of the argument pressed by Dr Lloyd is as follows. Over objections raised on his behalf, the Tribunal, having reconstituted itself pursuant to statutory powers, did not recall a key witness, namely, Mrs Girgenti. The incoming member did not see and hear Mrs Girgenti being cross-examined, but merely read a transcript of her earlier cross-examination. In its judgment, the Tribunal stated that it preferred her evidence to the evidence that he gave on the key issues where they were in conflict. It explicitly relied on her evidence relating to these issues in making findings of misconduct in a professional respect against him.
84 Our conclusion in the Remus 1 Appeal, after weighing as best we can the competing considerations, is that the Tribunal, in not acceding to Dr Lloyd’s request for recall of a key witness, did not comply with its obligation, imposed by s 73(2) of the Administrative Decisions Tribunal Act 1997, to observe the requirements of natural justice.
85 The same conclusion must apply in the present appeal. It follows, in our opinion, that we must set aside any findings by the Tribunal that depend on acceptance of Mrs Girgenti’s evidence, in circumstances where no other evidence sufficiently corroborated her, in preference to that of Dr Lloyd.
86 It also follows that there is no reason to grant leave to extend this appeal to a review of the merits, in so far as such leave was sought on the ground that the evidence of Mrs Girgenti was demonstrably unreliable.
87 The consequence of putting Mrs Girgenti’s version of events to one side, to the extent that it conflicted with Dr Lloyd’s evidence (though not necessarily where other evidence supported Mrs Girgenti), is that the Tribunal’s factual findings underlying two of the particulars of alleged misconduct are potentially open to challenge.
88 The first of these is the Tribunal’s factual finding, at [68] and [292], that Dr Lloyd , at his surgery on 25 February 1996, handled Chisel in the manner described in paragraph 1 of the particulars to Allegation 1(a). Dr Lloyd denied handling Chisel in the manner alleged.
89 We have already held (at [81] above) that the Tribunal’s error regarding Sam’s ‘evidence’ on this matter is enough of itself to warrant setting aside the factual finding. A second reason for so doing is that, as we have just indicated, the evidence of Mrs Girgenti, who was the only other person present at the time, must be put on one side.
90 The second particular of alleged misconduct that must be considered here is paragraph 4 of the particulars to Allegation 1(a). This is in the following terms:-
91 It will be recalled that 26 February 1996 was the day on which, in the morning, Dr Lloyd had operated on Chisel’s hind leg. Dr Lloyd’s evidence regarding the circumstances of his release of Chisel to Mrs Girgenti was summarised by the Tribunal (at [128 – 130]) in the following terms:-
You discharged the dog to Mrs Girgenti on 26 February 1996 for her to transport back to the Girgenti's home at a time when the dog should have been kept in hospital and when movement of it should have been kept to a minimum.
92 The Tribunal also referred to evidence, both from Dr Lloyd and Mrs Girgenti, that he gave her instructions regarding the future care of Chisel. As noted above at [75], it referred (at [133]) to evidence, which it attributed to Sam, but which would appear to have been contained in Mr Girgenti’s statement, to the effect that Dr Lloyd recommended the use of Panadol. It found that there was a conflict between the Girgentis and Dr Lloyd as to the nature and extent of the instructions, but not as to the fact that some specific instructions were given.
128 … Central to Dr Lloyd's explanation of his conduct was his view that he was simply asked to be involved with Chisel on a temporary basis, and that the owners had `insisted' that the dog be returned to them at the earliest opportunity: see Committee interview (pp 38-39) and ts 232.
129 He agreed in cross-examination that it was not the current standard of veterinary practice to discharge an animal straight after surgery (ts 230). He said he was a `bit shocked' by Mrs Girgenti's insistence on taking the dog…
130 … Dr Lloyd said at hearing that he only released the dog to the care of the Girgentis on condition that it go back to Dr Wanner’s Liverpool Veterinary Hospital for management (ts 56)…
93 The Tribunal found, at [138], that the Girgentis never ‘insisted’ that Chisel be returned to them. It also found, at [132], that Dr Lloyd never made it a condition of handing back Chisel that she be placed under the care of Dr Wanner. On the basis of these findings, it recorded its conclusion, at [296], that the assertion in paragraph 4 of the particulars to Allegation 1(a) had been established.
94 The matters on which it relied in making these findings was follows:-
· The statement and oral testimony of Mrs Girgenti (see the Tribunal’s judgment at [136]).
· The fact that the statements and testimony of Mr Girgenti were ‘consistent’ with the evidence of Mrs Girgenti ([136]).
· The argument that, if the basis of the return of Chisel was that she would thereafter be under the care of Dr Wanner, Dr Lloyd would not have given specific instructions about various aspects of home-care ([138]).
· Evidence from Ms Sterrett, who was present at a distance when the Girgentis arrived at Gill Avenue, that there were no signs of ‘forceful discussion or disagreement’ during their discussion with Dr Lloyd, such as might be expected if the owners of an animal wished to do something that was ‘unacceptable to an experienced veterinarian’ ([139 – 141]).
· Inconsistencies in Dr Lloyd’s oral testimony on two matters. The first was as to the occasion when, according to his version of events, he first realised that Mrs Girgenti wished to take Chisel back soon after the operation. The second was as to whether or not he tried to dissuade her from taking Chisel home on the day of the operation. In relation to this second matter, he said initially that he did not try to dissuade her, because, in his words, ‘I formed the opinion after about three minutes of knowing Mrs Girgenti I wasn’t going to dissuade her from anything’, and she had already made it clear that she wanted Dr Wanner to resume care of Chisel. Subsequently, however, he said that he did try to dissuade the Girgentis from taking Chisel back to their home on the day of ‘serious surgery’ ([142]).
· The argument that the fee charged by Dr Lloyd was too low to be consistent with an intention on his part to care for Chisel after the operation ([143]).
95 The issue left for us to determine is whether the Tribunal’s finding that the facts alleged in the relevant paragraph of the particulars had been established should still be sustained if Mrs Girgenti’s statement and testimony are put to one side.
96 In this context, the statements and testimony of Mr Girgenti are of importance. Counsel for Dr Lloyd did not request that he be recalled for cross-examination after the Tribunal was reconstituted. We therefore consider that, having regard to our discussion of the relevant principles in Remus 1 (see in particular [93]), his contribution to the evidence in this case, unlike that of Mrs Girgenti, need not be ruled out of account. This ruling receives support specifically from the High Court decision in Brennan v Brennan (1953) 89 CLR 129 at 137.
97 In his first written statement, Mr Girgenti dealt with the episode as follows:-
98 In a second written statement, responding to a statement prepared by Dr Lloyd, Mr Girgenti reiterated his assertion that Dr Lloyd had said that ‘there won’t be a problem’. Dr Lloyd had denied saying this.
On Monday my wife went to pick Chisel up from Dr Lloyd’s surgery. I went a few minutes later in my own car to pay the bill. My wife was still at the surgery when I arrived. I had a general conversation with Dr Lloyd about the operation and Chisel.
I don’t remember Dr Lloyd saying anything about us going to see our regular vet with Chisel. I was under the impression that if there were any problems I would take Chisel back to Dr Lloyd because he was the one that was handling the matter. I am sure that Dr Lloyd did not mention anything about it being too early to take Chisel home or that further operations or treatment might be needed. I remember him saying to me words to the following effect:
‘Don’t worry about Chisel. I do this sort of thing all the time – there won’t be a problem. If something does happen, come back and see me.
99 In cross-examination, Mr Girgenti said that he had arrived at the surgery after his wife and Sam, that they were talking, or had already spoken, to Dr Lloyd and that, to the best of his knowledge, Chisel had already been transferred to his wife’s vehicle to be taken home. He was then asked whether he had any discussion with Dr Lloyd about painkillers for Chisel. He replied as follows:-
100 In re-examination, the final question, referring to this episode, and his answer were as follows:-
Again, to the best of my knowledge, my wife told me what the painkillers were to be given to the dog and I spoke to Dr Lloyd about payment and paid him the $500 and again he told me there shouldn’t be any problem because he did this all the time, but if there was I could bring the dog back.
101 In the appeal, counsel for Dr Lloyd submitted that, because Mr Girgenti arrived at Dr Lloyd’s surgery some time after Mrs Girgenti, his evidence could not assist at all in resolving the issue now under consideration. He arrived, it was submitted, at the ‘tail end’ of the conversation between Mrs Girgenti and Dr Lloyd.
Q. Was there any mention made at the time that you had your discussions with Dr Lloyd of the possibility of Dr Lloyd keeping the dog in hospital?
A. No, there wasn’t.
102 In our judgment, this understates the probative value of Mr Girgenti’s evidence. This evidence contains no suggestion that Dr Lloyd was releasing Chisel to the Girgentis because his wife had ‘insisted’ that this occur. The statements by Dr Lloyd that Mr Girgenti described suggest the opposite, that is, that Dr Lloyd saw no problems in releasing Chisel, because he had performed what for him was a routine operation and he expected Chisel to recover reasonably quickly so long as she received proper care at home.
103 The question that now arises is a difficult one for us, as an Appeal Panel. In determining the consequences of a ruling that the evidence of a key witness in the hearing below must be put on one side, may we properly decide whether a finding of fact reached below in reliance (chiefly) on this evidence is nonetheless sustainable, on the basis (chiefly) of a written statement of, and the transcript of oral evidence from, another witness? We of course have not had the benefit of seeing and hearing this other witness giving evidence. But no challenge to his general credibility was raised on Dr Lloyd’s behalf, so far as we are aware.
104 Our conclusion, reached with some difficulty, is that as part of the process of working through the implications of the error of law by the Tribunal that we have identified as Ground (7), we can and should take this step.
105 Our further conclusion is that, even when Mrs Girgenti’s evidence is put on one side, the Tribunal’s positive finding in relation to the matters alleged in paragraph 4 of the particulars to Allegation 1(a) should in fact be upheld. It is sufficiently sustained by the evidence of Mr Girgenti, along with the other matters on which the Tribunal relied. In this connection, we note in particular the discrepancies in Dr Lloyd’s own evidence regarding the alleged ‘insistence’ by the Girgentis that the dog should be released to them.
106 It does not follow, however, that we are endorsing at this stage the further step taken by the Tribunal (at [296]) – namely, its concluding that the release of Chisel was ‘premature’ and constituted professional misconduct. This issue requires further consideration on our part.
107 To summarise, therefore, our conclusions in relation to Ground (7):-
· We uphold the submission that the Tribunal erred in law as alleged in Ground (7).
· This provides a second reason (one having already been identified) for setting aside the Tribunal’s finding that the facts alleged in paragraph 1 of the particulars to Allegation 1(a) had been established.
· On the other hand, it does not warrant setting aside the Tribunal’s finding that the facts alleged in paragraph 4 of the particulars to Allegation 1(a) had been established.
Ground (8): Insufficient weight given by the Tribunal to material parts of the expert evidence
108 The issue here is whether the Tribunal should have made findings of misconduct in a professional respect in relation to a number of allegations as to which one or more of the expert witnesses expressed an opinion in favour of such a conclusion, but one or more others opposed it.
109 In our judgment in the Remus 1 Appeal, at [105 – 120], we reviewed the relevant authorities. We will not repeat this exercise here, but will restate the general conclusions that we reached. These are as follows.
110 A finding of professional misconduct should not be made simply on the basis of a preference for the opinion of one expert witness over that of another. In this situation, it cannot be said that a court or tribunal can be ‘comfortably satisfied’ that the practitioner has engaged in conduct deserving of reprobation by fellow-practitioners.
111 We would not go so far as to say, as was submitted on behalf of the Committee, that this conclusion is only justifiable if no practitioner of good repute and competence could approve of the conduct in question. But there must at least be a strong preponderance of expert opinion that the conduct is deserving of reprobation by fellow-practitioners, coupled with acceptance of this opinion by the expert member or members of the tribunal or other body dealing with the matter.
112 In addition to Dr Lloyd, eight veterinary practitioners with relevant experience gave evidence to the Committee and/or the Tribunal. Except where otherwise indicated, they provided written evidence and were cross-examined. They were as follows:-
· Dr Max Zuber, an orthopaedic specialist. The Tribunal stated, at [200], that it relied ‘principally’ on his evidence.
· Dr Anthony Black, also an orthopaedic specialist. As indicated earlier, he merely supplied a short report on the RSPCA’s x-ray to the Committee.
· Dr Warren Davis, a general practitioner. As indicated earlier, he played a role in treating Chisel.
· Dr Mark Lawrie, Chief Veterinarian at the RSPCA Hospital. As indicated earlier, he played a role in supervising the second operation and subsequent treatment at the Hospital.
· Dr Richard Rumsey, a veterinary surgeon employed at the RSPCA Hospital. He carried out the second operation.
· Dr R James Driver, a general practitioner.
· Dr Richard Dixon, a specialist radiologist.
· Dr Warwick Barrett, a general practitioner.
113 The first five in this list were called by the Committee and the remaining three by Dr Lloyd.
114 With the foregoing principles in mind, we will now review the Tribunal’s reliance on the expert evidence of these witnesses, dealing with each of the relevant paragraphs and sub-paragraphs of the particulars in turn.
115 Allegation 1(a), Particulars, para 1. We do not need to consider this paragraph, as we have already held that the factual findings relating to it must be set aside.
116 Paragraph 2 of the particulars to this allegation concerns the professional standards maintained by Dr Lloyd in operating on Chisel’s hind leg. It has six subparagraphs. At [293 – 294], the Tribunal found subparas (i) – (iv) and (vi) to be established, but not (v).
117 Allegation 1(a), Particulars, para 2, subpara (i). This asserted that the fracture fragments in Chisel’s hind leg were ‘poorly reduced’. Dr Black specifically made this assessment in his report on the RSPCA x-ray to the Committee.
118 In response, the principal argument put by counsel for Dr Lloyd was that this x-ray was taken some four to five days after his operation, and that fragments may have become displaced during the period when Chisel was in the care of the Girgentis. In this interpretation of the x-ray, his case received support from Dr Dixon. But Dr Zuber’s opinion was that the fragments shown in the x-ray were more probably caused by the car accident.
119 At [224 – 228], the Tribunal expressed its preference for Dr Zuber’s opinion on this issue. Counsel for Dr Lloyd argued that it erred in so doing, as Dr Dixon was the only experienced radiologist giving evidence.
120 We would not necessarily assume that a specialist radiologist would in all cases be better fitted than an orthopaedic specialist to interpret an x-ray of fragments of bone. But in view of this conflict of opinion from two appropriately qualified specialists, we do not think that the basis for the opinion of Dr Black (who was not cross examined) regarding reduction of the fragments was established to the requisite level of ‘comfortable satisfaction’.
121 For this reason, the Tribunal’s finding that subpara (i) was established must be set aside.
122 Allegation 1(a), Particulars, para 2, subpara (ii). This assertion, that in Dr Lloyd’s operation on Chisel’s hind leg ‘the fracture was inadequately stabilised with a single intramedullary pin’, was of particular significance in this case.
123 Appropriately, the expert evidence addressed two distinct issues bound up in this assertion. These were: (a) whether Dr Lloyd, in choosing to use a single pin rather than a plate or some other stabilising equipment, acted in accordance with current standards of veterinary science; and (b) whether in carrying out the operation, having made this choice, he complied with such standards.
124 As to the first of these issues, it was common ground amongst the expert witnesses, and Dr Lloyd himself did not contest, that plating was a ‘superior method’ (see the Tribunal’s judgment at [242]). More importantly, all five of the expert witnesses called by the Committee considered that, in the circumstances, pinning was not an appropriate technique, because it would not ensure sufficient stability.
125 The reasons put forward for this opinion were (i) that Chisel was a relatively large and heavy dog; (ii) that she had suffered a fracture to her front leg as well as her hind leg, and for this reason alone might well put extra stress on her hind leg during the recovery period; and (iii) that it was a comminuted mid-shaft fracture.
126 Dr Driver appeared to state in cross-examination that he himself preferred plating to pinning, at least when a fracture was comminuted. But he considered that when the larger cost of plating was taken into account, the technique of pinning, when used by someone, such as Dr Lloyd, who had sufficient experience with it, was acceptable in the circumstances of this case.
127 Dr Driver was pressed by counsel for the Committee to say that, in a situation where a better mode of treatment, such as plating, might cost more than an inferior mode, it was inappropriate for a practitioner to opt for the latter without fully advising the client about the available options and their cost. His responses did not directly address this issue. He appeared to assume, in conformity with arguments raised by Dr Lloyd himself, that cheaper alternatives would inevitably have been chosen by clients such as the Girgentis.
128 Dr Dixon said in cross-examination that he knew of satisfactory repairs of fractures in large dogs using intramedullary pins, even where more than one leg had been fractured. But he added that if the dog was not properly cared for in the recovery period, and was permitted to put undue stress on the repair, a plate would undoubtedly provide better protection than a pin, which might well be inadequate.
129 Counsel for Dr Lloyd argued, as just indicated, that it was unsafe to rely on the RSPCA x-ray as giving a true picture of the type of fracture that was apparent to Dr Lloyd in the x-rays, subsequently destroyed in error, that he had taken immediately before his operation. For reasons just outlined, we consider that the benefit of the doubt on this matter must be accorded to Dr Lloyd.
130 It follows that, in the assessment of the expert evidence on this question of whether an intramedullary pin was an acceptable form of stabilisation, it must not be assumed that the fracture involved the degree of fragmentation that might have been inferred from looking at the RSPCA x-ray.
131 In the light of these differences of expert opinion, we consider that it was not proved, to a level of ‘comfortable satisfaction’, that Dr Lloyd failed to comply with current standards of veterinary science in choosing to insert a pin rather than a plate. In so ruling, we take particular account of those authorities, outlined in our judgment in the Remus 1 Appeal, which indicate that if the relevant conduct of a practitioner would be deemed acceptable by a reputable minority of fellow-practitioners, it cannot be held to be professional misconduct.
132 We consider, however, that it does appear to have been professional misconduct on Dr Lloyd’s part to have chosen the technique of pinning, rather than plating, without having explained the implications of this choice to the Girgentis. There was, we should make clear, nothing to suggest that any significant explanation was provided. Dr Lloyd simply indicated in the course of his evidence that at the first consultation he ‘discussed options’, including plating, with Mrs Girgenti.
133 In reaching this conclusion, we take particular account of three factors. These are (a) the predominance of expert specialist orthopaedic opinion to the effect that plating was the superior technique; (b) the consideration that if, as Dr Lloyd himself agreed, he knew at the time of operating that he would be returning Chisel to the Girgentis later that day, it was all the more important for the stabilisation technique that he adopted to provide protection against undue stresses; and (c) the absence of any evidence (including from Dr Driver) denying that the choice of different methods should have been offered to the Girgentis, along with an explanation of their advantages and disadvantages.
134 We cannot, however, treat this conclusion as a basis for affirming the Tribunal’s finding of misconduct in the present context – that is, under Allegation 1(a), Particulars, para 2, subpara (ii). The reason is that this sub-paragraph did not frame the charge of misconduct in these terms. Dr Lloyd was not required to meet an allegation that he failed to comply with current standards of veterinary science through failing to explain the two available techniques of repairing the fracture to the Girgentis and to seek their instructions as to which technique he should use. The charge that he was required to meet – that ‘the fracture was inadequately stabilised with a single intramedullary pin’ – differs significantly in substance.
135 We turn now to the issue of whether, having chosen to insert a pin, Dr Lloyd carried out the operation with adequate skill and care. Some of the expert evidence adduced by the Committee – for example, the opinions of Dr Lawrie and Dr Rumsey – was to the effect that in various respects – for example, in relation to the dimensions of the pin used – the standard achieved was inadequate. Dr Zuber’s opinion was, however that Dr Lloyd did perform the operation adequately.
136 At [255 – 256], the Tribunal rejected Dr Zuber’s opinion on this question and ruled that there was a failure of professional standards in Dr Lloyd’s execution of the surgery.
137 In our opinion, this ruling cannot stand. Having indicated earlier in its judgment that it relied ‘principally’ on Dr Zuber’s expert views, the Tribunal rejected his view on this question, without giving reasons for doing so. It did not at this point pay sufficient attention to the requirement of being ‘comfortably satisfied’ that professional standards had not been met.
138 For these reasons, the Tribunal’s finding that subpara (ii) was established must be set aside.
139 Allegation 1(a), Particulars, para 2, subpara (iii). The assertion in this subparagraph that Dr Lloyd’s operation on Chisel’s hind leg ‘caused overriding and a consequential malalignment of the major fragments’ is dependent, as we see it, on acceptance of Dr Zuber’s interpretation of the RSPCA x-ray, in preference to that of Dr Dixon. For reasons already given, the evidence does not justify this to a level of ‘comfortable satisfaction’.
140 The Tribunal’s finding against Dr Lloyd in relation to this assertion must accordingly be set aside also.
141 Allegation 1(a), Particulars, para 2, subpara (iv). This subparagraph asserted that Dr Lloyd should have consulted a specialist before operating on Chisel because he lacked the experience and equipment required for the operation that should have been performed. It raises very similar issues to Allegation 1(b), and will be discussed below under that heading.
142 Allegation 1(a), Particulars, para 2, subpara (vi). (Subparagraph (v) was not found proven.) This assertion was that there was ‘no adequate working up’ of Chisel before Dr Lloyd’s operation on her hind leg. At [204 – 210], the Tribunal quoted Dr Lawrie’s itemisation of some of the matters not attended to: for example, checking the mucous membranes and conducting a thoracic auscultation. It also referred to the Committee’s contention, at its interview with Dr Lloyd in December 1996, that the dog should have been weighed. On these grounds, it found the assertion established.
143 This was not, however, the opinion of Dr Zuber. The Tribunal, at [213], was critical of this opinion, contending that Dr Zuber ‘did not make links between the nature of the medication, the extent of the injuries and the weight of the animal’, and that he ‘did no comment on the absence of many appropriate features of the work-up’.
144 In view of this dissent from Dr Zuber, we do not think that there was evidence in support of this assertion such as would warrant the Tribunal being ‘comfortably satisfied’. The Tribunal’s positive finding must be set aside.
145 Allegation 1(a), Particulars, para 3. This assertion related to Dr Lloyd’s placing Chisel in the front passenger well of his car when transporting her from his hospital to his surgery at Gill Avenue after the operation. Relying on Dr Zuber’s criticism of this mode of transport in the circumstances (outlined at [271]), the Tribunal found that the assertion of failure to satisfy current standards of veterinary science was satisfied (at [295]).
146 Dr Driver and Dr Barrett both expressed the opinion, however, that this mode of transport was acceptable, though Dr Barrett did say, in cross-examination, that a cage with cushions was preferable (see [283]).
147 Again, we consider that, in view of this difference of expert opinion, the Tribunal had insufficient evidence before it to warrant a positive finding of misconduct. The finding must be set aside.
148 Allegation 1(a), Particulars, para 4. We have already examined the conflicting lay evidence as to the circumstances in which Dr Lloyd released Chisel to the Girgentis on the afternoon of his operation on her. We have found that it was not in consequence of any ‘insistence’ by the Girgentis. We noted that, in one part of Dr Lloyd’s own evidence (later contradicted), he conceded that he did not try to dissuade Mrs Girgenti from, as he alleged, maintaining such ‘insistence’.
149 Dr Zuber and Dr Lawrie both expressed the firm opinion that this release of Chisel occurred too soon after the operation, and that she should have been kept in hospital care for some two to three days.
150 Dr Driver did not expressly deny this. He pointed out, however, that from time to time clients did insist on the early return of their animal after a clinical procedure, and that in this situation a veterinary surgeon had no option but to comply.
151 In our opinion, when the criterion of proof to a level of ‘comfortable satisfaction’ is applied, the expert evidence is of sufficient strength to support the Tribunal’s finding, at [296], that Dr Lloyd’s early release of Chisel to the Girgentis constituted misconduct in a professional respect.
152 Allegation 1(b). The assertion here, similar to that in para 2(iv) of the particulars to Allegation 1(a), was that Dr Lloyd should have referred Mrs Girgenti to ‘an appropriately qualified veterinary surgeon’ because he lacked the necessary experience, skills and equipment to perform the operation that was required.
153 The relevant particular to Allegation 1(a) formed part of the general charge in that Allegation that Dr Lloyd did not comply with the obligation in cl 5(2) of the Code to carry out professional procedures in accordance with current standards of veterinary science. Allegation 1(b) refers to cl 5(4) of the Code. This requires veterinary surgeons to refer clients to ‘an appropriately qualified veterinary surgeon whenever a second opinion or referral is desirable’.
154 Counsel for Dr Lloyd argued in response that at the RSPCA Hospital an operation of this nature was performed by a non–specialist who had less than two years of experience as a practitioner (Dr Rumsey), under the supervision of another non-specialist (Dr Lawrie). It was also argued that, subject only a possible lack of a full range of pins, there was no evidence that Dr Lloyd lacked the necessary equipment to insert either a pin or a plate.
155 In Dr Zuber’s and Dr Black’s opinion, a specialist need not have been called in, and no referral need have been recommended, if Dr Lloyd did indeed possess the necessary equipment. Dr Lawrie thought that Dr Lloyd should have discussed referral with the Girgentis.
156 Having regard to the submissions on Dr Lloyd’s behalf, this evidence does not, in our opinion, provide sufficient support for the Tribunal’s positive findings (at [293] and [296]) in relation to either para 2(iv) of the particulars to Allegation 1(a) or Allegation 1(b). These findings must be set aside.
157 Allegation 1(c). For reasons set out above, at [49 – 66], this Allegation was not properly referred to the Tribunal and on that ground must be set aside.
158 Allegation 1(e). (There was no Allegation 1(d).) This alleges that Dr Lloyd failed to comply with the obligation, set out in cl 5(12) of the Code, to maintain a detailed record of any treatments or consultation carried out.
159 As outlined by the Tribunal at [315 – 324], the particulars set out 15 alleged omissions. Dr Lloyd admitted to nine of them and contested six. The Tribunal found that four out of these six were established. Only items (ii) and (v), relating respectively to anaesthetics and pain relief, were not made out. It held that the Allegation was established and that in consequence Dr Lloyd was guilty of misconduct in a professional respect.
160 Dr Zuber and Dr Lawrie were of the opinion that the records maintained were clearly inadequate. They would not be sufficient to enable another veterinary surgeon to take over the case. Dr Driver conceded that (in the words of the Tribunal at [279]) ‘it was important to record various physical attributes of an animal so as to have a point for later comparison, even if many of those attributes proved to be normal’.
161 In view of Dr Lloyd’s concessions and this preponderance of expert opinion to the effect that inadequate records were maintained, we consider that the Tribunal’s conclusions are not susceptible to challenge.
162 Allegation 2. As explained by the Tribunal at [326 – 331], this Allegation repeated Allegation 1(e) and had the same particulars, but focused on Dr Lloyd’s responsibilities as the superintendent of a veterinary hospital. The Tribunal held that it was established to the same extent as Allegation 1(e). It stated also that fuller treatment sheets which, according to Dr Lloyd, had been maintained at his hospital should not have been destroyed because at the time this occurred he knew that the present complaint had been made against him.
163 But for the error of law asserted in Ground (12) of this appeal, we would endorse the Tribunal’s reasoning in dealing with Allegation 2. But as explained below, we consider that the Tribunal’s finding of misconduct pursuant to this Allegation must be set aside on account of this error.
Ground (9): Bias on the part of the Tribunal
164 In our judgment in the Remus 1 Appeal, at [130 – 133], we reached the conclusion that no compelling argument or relevant authority was put forward to support this ground of appeal in the circumstances of that case. We considered that the argument on Dr Lloyd’s behalf failed to take account of the fact that, without exhibiting bias, a court or tribunal may properly find that a party or witness lacks credibility and may therefore resolve against that person a number of conflicts of testimony.
165 In the present case, the submission that the Tribunal exhibited bias gains some strength from two aspects of its judgment. One is that it made a significant error in treating accounts of conduct and observations of Sam Girgenti Jnr as his evidence. The other is that, despite saying that it relied ‘principally’ on Dr Zuber as an expert witness, it differed from him on the two issues on which he expressed an opinion in Dr Lloyd’s favour.
166 We have taken careful account of these matters. But we still find that there is no reason for differing here from the conclusion that we have reached in the Remus 1 Appeal. There is still no compelling evidence that the Tribunal’s preference for evidence, lay and expert, that runs counter to Dr Lloyd’s interests in these proceedings was actuated by bias.
167 This ground of appeal is accordingly rejected.
Ground (10): Factual error suggesting that the judgment was a decision of a single Tribunal member only
168 We have dealt with, and rejected, this line of argument in the Remus 1 Appeal, at [134 – 136]. In the present case, the grounds for inferring along these lines are stronger on account of the Tribunal’s error regarding Sam Girgenti Jnr’s ‘evidence.
169 Nevertheless, we consider that the explanation of this error, and of any others that might be identified, is most probably the same as in the Remus inquiry. This is that a judgment drafted by one person was not fully checked by the other Panel members for errors of this type.
170 This ground of appeal is accordingly rejected.
Ground (11): Failure to consider the defence of honest and reasonable mistake in relation to Allegation 1(c)
171 This Ground is not significant because we have upheld Ground (3) (no resolution by the Committee that a prima facie case existed) in relation to this Allegation. The Allegation is, in effect, that Dr Lloyd failed to train and supervise Ms Sterrett adequately.
172 We would add only that, since Dr Lloyd conceded to the Committee in his interview that he may have been negligent with regard to Ms Sterrett’s error, the evidence on the matter, as summarised by the Tribunal at [308 –311], may well have been sufficient to support the positive finding that it made, at [312].
Ground (12): Error in ruling that a veterinary surgeon acting in the capacity of a hospital superintendent can be found guilty of professional misconduct pursuant to the Act.
173 This Ground relates to Allegation 2, under which Dr Lloyd was found guilty of misconduct in a professional respect by virtue of having failed, in his capacity as a hospital superintendent, to maintain adequate records. The factual findings supporting a finding of misconduct under Allegation 1(e) were relied on also for this ruling on Allegation 2.
174 The approach of the Tribunal, as explained at [46], [54 – 57] and [329 –331], was to cite cl 20(2)(a) of the Regulation, to find that Dr Lloyd breached this clause (which establishes a criminal offence) and to state that such a breach of the ‘higher tier responsibilities’ applying to hospital superintendents constituted professional misconduct.
175 Counsel for Dr Lloyd and for the Committee pointed out that this involved assuming that a breach of cl 20(2)(a) – which had not in fact been proved for criminal law purposes – should automatically constitute professional misconduct, even though this was not stated anywhere in the Act or the Regulation. In this regard, it was not like a breach of cl 5(12) of the Code, which was the clause relied on in Allegation 2. A breach of cl 20(2)(a) of the Regulation, they submitted, could only constitute misconduct if the common law criterion of ‘conduct deserving reprobation’ was found to have been satisfied. Such a finding had not been made by the Tribunal.
176 In our judgment, this ground of appeal has merit. The Tribunal does not appear to have taken sufficient account of the differences, for present purposes, between the two clauses. In consequence, it omitted to deal with issues that arise under Allegation 2, though not under the similarly phrased Allegation 1 (e).
177 The Tribunal’s conclusion that Dr Lloyd was guilty of professional misconduct under Allegation 2 must be set aside.
Ground (13): Error in finding misconduct pursuant to two allegations (1(e) and 2) drafted in identical terms
178 In our judgment in the Remus 1 Appeal, at [121 – 126], we rejected an argument along these lines. We would be inclined to do the same here. But the matter need not be formally resolved, because, for reasons just given, we have held that the Tribunal’s finding under Allegation 2 must be set aside.
Orders to be made in disposing of this appeal
179 In the foregoing discussion of the thirteen grounds of appeal, we have wholly or partly upheld four (Grounds (3), (7), (8) and (12)) and rejected nine (Grounds (1), (2), (4) – (6), (9) – (11) and (13)).
180 We have examined the impact of these rulings upon the Tribunal’s findings of professional misconduct with respect to each of the paragraphs (or, where appropriate, subparagraphs) of the particulars to the various Allegations. The outcome of this examination is as follows.
181 The appeal is allowed in part, that is, to the extent that the Tribunals’ findings of misconduct in a professional respect are set aside in relation to the following: Allegation 1(a), Particulars, paragraphs 1, 2 and 3; Allegation 1(b); Allegation 1(c); and Allegation 2.
182 The Tribunals’ findings of misconduct in a professional respect remain in relation to the following: Allegation 1(a), Particulars, paragraph 4; and Allegation 1(e).
183 The case is to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Act with respect to these findings. A stay order precluding this, which we granted on 12 June 2003, will cease to operate, according to its own terms, upon the delivery of this judgment.
Concluding observations
184 At the conclusion of our judgment in the Remus 1 Appeal, we have made a number of observations as to how the Committee should interpret and fulfil its obligations under ss 26 – 28 of the Act. A number of those observations are pertinent to the present case.
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