Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 2: 'Gypsy' Findings) (GD)

[2003] NSWADTAP 48

Appeal Panel - Internal

CITATION:	Lloyd -v- Veterinary Surgeons Investigating Committee (Inquiry 2: 'Gypsy' - Findings) (GD) [2003] NSWADTAP 48
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	039028
HEARING DATES:	28/07/2003
SUBMISSIONS CLOSED:	07/28/2003
DATE OF DECISION:	10/13/2003
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Ronald George Lloyd (Inquiry 2: ‘Gypsy’ – Findings) [2003] NSWADT 96
BEFORE:	Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Stephens T - Member
CATCHWORDS:	bias - 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 - 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 - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	40005 of 1998
DATE OF DECISION UNDER APPEAL:	05/09/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Poisons Act 1966 Poisons and Therapeutic Goods Regulation 1994 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19 Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95 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 Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Findings) [2002] NSWADT 284
REPRESENTATION:	APPELLANT M Tzannes, Barrister RESPONDENT L T Grey, Barrister
ORDERS:	1 Appeal allowed in part; 2 Findings of misconduct in a professional respect set aside in relation to Allegations 1(j), 1(m), 1(n), 1(o), 2(a), 2(b), 2(c), 3 and 4; 3 Finding of misconduct in a professional respect varied in relation to Allegations 1(l) ; 4 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 Allegations 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(k) and (as varied) 1(l).

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 2: ‘Gypsy’ – Findings) [2003] NSWADT 96 (hereafter ‘Gypsy’). 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 1: ‘Chisel’ – Findings) [2003] NSWADT 95 (hereafter ‘Chisel’); 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 Chisel have been heard. Judgments on these appeals will be delivered contemporaneously with the present judgment.

5 In Gypsy, the subject of the present appeal, the Tribunal made findings in relation to Allegations 1-4 inclusive 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 during and after his treatment of a horse called Gypsy.

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 each of the 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 26 December 1995, Ms Sharon Clee, the owner of Gypsy, rang Dr Lloyd at his surgery and asked for veterinary advice. She had previously consulted the Randwick Equine Centre. She said to Dr Lloyd that Gypsy had shown symptoms of diarrhoea and weight loss over a period between six weeks and three months. She suggested that he might be suffering from giardia, as a septic tank in a neighbouring property had recently overflowed into her property and she herself had recently been infected with giardia while on a trip to Asia. In a later phone call, apparently on the same day, Dr Lloyd suggested a medication called Dimetridazole. On 30 December, Ms Clee called at his surgery to collect a container with some of this medication. He told her to give one quarter of the amount in the container to Gypsy each day. She administered this dose on 3, 4 and 5 January 1996.

9 On 6 January, she called at Dr Lloyd’s surgery and told him that Gypsy’s condition appeared to be deteriorating. He told her not to administer the fourth and final dose.

10 On 8 January, she was very worried that Gypsy was losing a great deal of weight, was off his feed and appeared to be very weak. She rang Dr Lloyd to advise him of these developments. He sent his horse handler, Mr James Murray, who was not a qualified veterinary surgeon, to go to Ms Clee’s property and administer two injections of Dexamethasone to Gypsy. Mr Murray did this.

11 On 9 January, being still very concerned, Ms Clee rang Dr Lloyd and arranged to take Gypsy to his veterinary hospital at Hoxton Park. Dr Lloyd examined Gypsy and found him to be ataxic and anaemic, to be suffering from diarrhoea and to have a high temperature. He drenched the horse and administered various medications.

12 He repeated these measures, with some variations, on 10 and 11 January. During this period he kept Gypsy in a paddock with two or three horses on his own. According to Ms Clee, when she visited the paddock on 10 January with her fiance, Mr Glenn Tuinenburg, Gypsy was tethered in a way that prevented him from reaching a water trough. She released him, whereupon he went straight to the trough and drank a good deal of water. Dr Lloyd denied that Gypsy was tethered.

13 On 12 January, at about 7.20 a.m., Gypsy was found to have died.

14 Dr Lloyd said that he performed an autopsy on 12 January, without first having obtained Ms Clee’s consent or advised her of Gypsy’s death. He told Ms Clee of the death and the autopsy that afternoon, when she was arriving at his surgery to see how Gypsy was faring. He told her that he had found indications of cancer of the liver and stomach and that he would provide her with a report on the autopsy. According to her evidence, he offered to show her some samples from the autopsy (though Dr Lloyd denied this). He offered to attend to the burial of Gypsy, and she accepted this offer.

15 On 12 or 13 January, Dr Lloyd instructed Mr Murray to carry out the burial, at a site near a dam on Dr Lloyd’ property. Mr Murray, with the assistance of Mr Laurence Briggs, a horse handler, buried the carcass on 13 January, using a shovel. Dr Lloyd inspected the site after they had completed the burial. He was satisfied with their work. He thought that the depth of the soil over the top of the grave was a few inches.

16 On 18 January, having previously rung Dr Lloyd, Ms Clee went to his Liverpool surgery to pay his bill.

17 On the afternoon of 22 January, Ms Clee went with Mr Tuinenburg to Dr Lloyd’s property to ask about the autopsy report. He was not there, so they went to visit the site where Gypsy had been buried. They found, to their shock and distress that the horse’s carcass was above ground and clearly visible. It was tied to a tree by a rope.

18 On the morning of 23 January, Ms Clee, Mr Tuinenburg and Ms Nathalie Taimuri (a friend of theirs) visited Dr Lloyd’s surgery in Liverpool. They expressed their dissatisfaction with the failure to bury the carcass properly. Ms Clee said that she wished to witness the re-burial, which Dr Lloyd said he would arrange to take place that afternoon, with the use of a bobcat. At or before 2.45 p.m., Dr Lloyd rang her and said that she should come any time before 3.30. But when she arrived for this purpose at about 3 p.m., in company with Mr Tuinenburg and his parents, they discovered that Gypsy had already been buried. This provoked significant hostility, and something of an altercation, between Mr Tuinenburg (and/or his parents) and Dr Lloyd.

19 On or about 9 February 1996, Ms Clee wrote a letter of complaint to the Committee, indicating that she was dissatisfied with Dr Lloyd’s diagnosis, care and treatment of Gypsy, and with his conduct after Gypsy’s death. Further steps taken by the Committee are outlined below.

The Allegations and supporting particulars

20 The text of the four Allegations and the accompanying particulars is 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:

(a) On or about 26 December 1995 after consulting with a client, you failed to ensure that a detailed record of the consultation was made.

Particulars

A few days before 30 December 1995, Sharon Clee consulted you by telephone about treatment required for her horse, "Gypsy". In a subsequent telephone conversation you advised using the drug Dimetridazole and arranged for her to collect a supply of it from you for her to administer to Gypsy. You made no record of those telephone consultations.

(b) On or about 30 December 1995 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the substance.

Particulars

On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee for her to administer to the horse known as "Gypsy". You did not provide her with adequate written instructions as to any dosage requirements. You did not provide her with any written instructions as to the route of administration nor any withholding period that was relevant to the use of that substance.

(c) On or about 30 December 1995 you failed to ensure that conditions imposed by legislation relating to dispensing and handling restricted drugs were strictly complied with.

Particulars

On 30 December 1995 you supplied the drug "Dimetridazole" (a restricted substance) to Sharon Clee to administer to the horse " Gypsy" in a quantity exceeding that required for 3 days' treatment. You did not:

(a) record the name, strength, quantity or the date on which it was supplied;

(b) record the species of animal nor the name and address of the animal's owners nor;

(c) keep the record of the supply of that substance at your hospital, surgery or office;

although you were required by regulation 59 of the Poisons Regulation 1994 to make and keep such records.

(d) On or about 30 December 1995, after treating an animal and consulting with a client you failed to ensure that a detailed record of the treatment and the consultation was made.

Particulars

On 30 December 1995 Sharon Clee attended your surgery and you dispensed to her a quantity of the drug Dimetridazole and gave her advice about administering that drug to her horse Gypsy. You made no record of that attendance nor dispensing the drug nor of the advice you gave to her.

(e) On 30 December 1995 you failed to carry out professional procedures in accordance with then current standards of veterinary science.

Particulars

On 30 December 1995 you supplied the drug Dimetridazole to Sharon Clee for her to administer to her horse Gypsy although you had not then examined the horse and had not previously used that drug.

(f) On or about 30 December 1995 you supplied a substance that was in Schedule 4 to the Poisons List to a client without ensuring that the substance was correctly labelled.

Particulars

On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee. There was no information, warning nor other statement about:

(i) the quantity of the drug;

(ii) the fact that this drug was listed in Schedule 4 of the Poisons List (other than "Caution S4");

(iii) what to do in the event of anyone coming into contact with or swallowing the drug;

on any label on the container in which it was supplied.

(g) On or about 6 January 1996 after consulting with a client you failed to ensure that a detailed record of the consultation was made.

Particulars

On 6 January 1996 Sharon Clee consulted you at your surgery about the deteriorating condition of the horse Gypsy. You advised her not to give the last dose of the drug Dimetridazole to the horse. You made no record of that consultation.

(h) On or about 8 January 1996 after treating an animal and consulting with a client, you failed to ensure that a detailed record of the treatment and consultation was made.

Particulars

On 8 January 1996, Sharon Clee rang you about the further deteriorating condition of the horse Gypsy. You sent James Murray to the location where the horse then was, to administer an injection to the horse. The injection was given. You made no record of the telephone conversation nor of the administration of the injection.

(i) On 8 January 1996 you failed to carry out professional procedures in accordance with then current standards of veterinary science.

Particulars

On 8 January 1996 after several days during which Sharon Clee's horse Gypsy had, to your knowledge, been in a deteriorating condition such that you had advised her on 6 January 1996 not to give her horse the last dose of the drug Dimetridazole which you had previously supplied to her, you instructed a person who was not registered under the Veterinary Surgeons Act 1986 nor otherwise qualified to administer an injection of the drug Dexamethasone to that horse without you being present. At that stage you had not:

- examined the horse;

- taken any steps other than talking to the horse's owner to establish a diagnosis;

- previously used the drug other than in the treatment of that same horse over the previous few days.

The drug Dexamethasone was a Schedule 4 drug on the Poisons List.

You did not in any way supervise the giving on the injection.

(j) On or about 8 January 1996 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the substance.

Particulars

On 8 January 1996 you supplied a quantity of the drug "Dexamethasone" to James Murray for him to administer to the horse known as "Gypsy". You did not provide him with any written instructions as to any dosage requirements, as to the route of administration nor any withholding period that was relevant to the use of that substance.

(k) Between 9 January 1996 and 12 January 1996 after treating ani (sic) animal and consulting with a client you failed to ensure that a detailed record of this treatment was made.

Particulars

On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded:

(a) diagnosis;

(b) clinical signs;

(c) some treatments;

(d) previous history;

(e) consultation with University of Sydney, Camden;

(f) work up.

(l) Between 26 December 1995 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science.

Particulars

Between about 26 December 1995 and 12 January 1996, you were providing treatment to Sharon Clee's horse, Gypsy. Although you had many consultations with her, and were aware of the poor condition of her horse, at no time before 9 January 1996 did you suggest to her that you should examine her horse. You did not undertake any steps apart from talking to her to establish a diagnosis. You did not advise her that there could be other conditions affecting her horse than the condition which she had suggested to you (namely, that it was the effect of a giardiasis bug), you did not advise her about the possibility of tests being conducted, such as biochemistry, full blood count, and abdominocentesis nor offer her referral to a specialist.

(m) Between 9 January 1996 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science.

Particulars

Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection.

(n) On 10 January 1996 you failed to consider the welfare of an animal when practicing veterinary science.

Particulars

On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to water trough and kept his muzzle in it continuously for a period of about 10 minutes.

(o) On 12 January 1996 you failed to carry out professional procedures in accordance with the then current standards of veterinary science.

Particulars

On 12 January 1996, the horse Gypsy having died whilst in your care, you agreed with the horse's owner that you would bury the carcass in the paddock, using a bobcat.

You then caused the carcass to be buried in a shallow grave which was not adequately covered as a result of which the horse's owner saw the uncovered carcass and was greatly distressed.

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 throughout January 1996 responsible for the care, control and management of the hospital and:

(a) failed to ensure that a complete record was made at the time of each veterinary treatment and consultation.

Particulars

On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded;

(a) diagnosis;

(b) clinical signs;

(c) some treatments' previous history;

(d) consultation with University of Sydney, Camden;

(e) work up.

(b) failed to ensure that an animal admitted to the hospital for accommodation or treatment was examined daily or more frequently if the circumstances required.

Particulars

On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to a water trough and kept his muzzle in it continuously for a period of about 10 minutes. Gypsy had not been examined by you or by any other employee of your hospital for a lengthy period.

(c) failed to ensure that an animal admitted to the hospital for accommodation or treatment which showed signs of an infectious or contagious disease was effectively isolated from all animals not so effected.

Particulars

Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection.

3. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to Section 22(a) of the Act, on or about 8 January 1996 you permitted or required an unregistered person employed by you to practice veterinary science.

Particulars

On 8 January 1996, James Murray a person employed by you but not registered under the Veterinary Surgeons Act 1986 at your direction injected a horse known as "Gypsy" with the drug "Dexamethasone".

4. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to section 26(1)(c) of the Veterinary Surgeons Act 1986, between 12 January 1996 and 23 January 1996 you did not conduct yourself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general.

Particulars

On 12 January 1996 you informed the owner of the horse "Gypsy" that you had conducted an autopsy on "Gypsy" that morning, that you had found tumor nodules on the horse's stomach and that "his liver was gone". You said that you had kept a sample of the tumors to show Sharon Clee and that you would keep the samples. On 18 January 1996 when Sharon Clee asked for a sample, you told her that it had been thrown out. You promised to send her one but despite many subsequent requests, did not do so.

On 23 January 1996 when Sharon Clee advised you that she would arrange to bury "Gypsy" properly, you informed her that you had arranged for the horse to be buried that day in your paddock. She agreed to this on the condition that Sharon Clee was present during the burial. You promised to telephone her to let her know the time to be present during the burial. At approximately 2:45 pm on that day you telephoned her and requested that she be in attendance at 3:30 pm. Although Sharon Clee was present in your surgery from about 3:00 pm, when she was taken to the new grave by your receptionist, she discovered that the new grave was completely covered up.

You subsequently offered the explanation that the bobcat which was used in burying the horse could not wait for Sharon Clee to " turn up".

During that conversation with Sharon Clee, Glenn Tuinenburg and Nathalie Taimura, who were obviously distressed at the death of the horse "Gypsy" and the circumstances of the first attempt to bury the horse, you referred to the horse's carcass as "the whole gory lot".

During the discussion in your surgery at about 3:00 pm at which Sharon Clee and her finance's (sic) parents were present, there was an argument during which you invited Glenn Tuinenburg to take off his glasses and hat and fight you, at which point Nathalie Taimura offered to call the police.

21 In a ‘Table Setting Out Agreed Facts and Other Matters’, filed on 3 September 2002, Dr Lloyd admitted, in some instances with qualifications, the factual content of the particulars to the following Allegations: 1(a) – (i) inclusive, 1(k) and 3. He did not formally admit any of the Allegations.

22 As indicated above, the Tribunal concluded that the charges of misconduct in a professional respect had been proved in respect of all of the above Allegations.

The grounds of the present appeal

23 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 Ms Clee, the owner of Gypsy, 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 all the Allegations. In particular, it failed in this way in relation to Allegations 1(c), (j), (m) and (n). 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(c), 1(j), 1(m), 1(n), 2(a), 2(b), 2(c) or 4. 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): In its judgment in Chisel, the Tribunal treated an account of certain observations and conduct of Mr Sam Girgenti Jnr, the son of the initial complainant, as if it were evidence given by Mr Girgenti. Its acceptance of this ‘evidence’, which was in conflict with parts of Dr Lloyd’s evidence, had adverse implications for its assessment of Dr Lloyd’s credibility.

Ground (6): During the course of the hearing, after the witnesses had given their evidence in chief and been cross-examined, one member of the Tribunal panel was replaced by another. Over objections by counsel for Dr Lloyd, neither Ms Clee, Mr Tuinenburg nor Mr Murray was recalled for cross-examination. (Mr Murray had been called as a witness by Dr Lloyd.) Instead, the new member read a transcript of the earlier evidence given by these witnesses. In reaching a number of its findings, the reconstituted panel preferred the evidence of Ms Clee and/or Mr Tuinenburg to that of Dr Lloyd and/or Mr Murray. This refusal to recall lay witnesses, in order that their credibility, which was a matter of importance, could be assessed by the new member, constituted a denial of natural justice to Dr Lloyd.

Ground (7): 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 (8): The Tribunal exhibited bias against Dr Lloyd.

Ground (9): 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 (10): The Tribunal erred in holding, with reference to Allegation 1(o), that (a) the burial of an animal is a professional procedure falling within the practice of veterinary science and (b) that a breach of cl 9 of the Veterinary Surgeons’ Code of Professional Conduct (‘the Code’) will of itself constitute misconduct in a professional respect.

Ground (11): The Tribunal erred in holding, with reference to Allegation 4, that a breach of cl 9 of the Code will of itself constitute misconduct in a professional respect.

Ground (12): The Tribunal erred in ruling, with reference to Allegation 2, that a veterinary surgeon acting in the capacity of a hospital superintendent could be found guilty of professional misconduct solely on account of a breach or ‘serious’ breach of cl 20 of the Veterinary Surgeons Regulation 1995 (‘the Regulation’).

Ground (13): The Tribunal erred in its interpretation of s 22(a) and s 44(1)(k) of the Act, with reference to Allegation 3.

Ground (14): Dr Lloyd was denied natural justice in being found guilty of professional misconduct by the Tribunal in relation to a number of allegations framed in identical or similar terms.

24 Dr Lloyd also sought leave to extend the appeal to the merits. The grounds put forward were (a) that the evidence of Ms Clee and the other lay witnesses called by the Committee was demonstrably unreliable, and (b) that insufficient weight was given to the evidence of expert witnesses where it was favourable to Dr Lloyd.

25 In the particular circumstances of this appeal, we considered that this leave should be granted.

The position adopted by the Committee

26 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.

27 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.

28 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].

29 We have felt at a disadvantage in not receiving submissions opposing the appeal. In preparing this judgment, we have had to conduct its 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’

30 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.

31 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.

32 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(1)(c) to be misconduct in a professional respect.

33 Several of the provisions of the Code that are relevant to the present appeal are prescribed for the purposes of s 22(1)(c). They are as follows:-

2. Animal welfare

(1) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science.

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.

(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.

6. Drugs, antibiotics and other chemical or biological substances

(3) A veterinary surgeon must not supply, issue or dispense to a client any substance that is included in Schedule 1, 3 or 4 to the Poisons List without ensuring that the substance is correctly labelled.

(4) A veterinary surgeon who supplies or arranges for the supply to an animal of a substance included in Schedule 1, 3 or 4 to the Poisons List must ensure that the person who dispenses the substance is provided with written instructions as to any dosage requirement, route of administration or withholding period that is relevant to the use of the substance.

Note. Section 8 of the Poisons Act 1966 deals with the Poisons List.

7. Legislative responsibilities

To ensure that a veterinary surgeon is able to practise veterinary science in a safe and competent manner, the surgeon must acquire and maintain a sufficient knowledge of all laws that affect the practice of veterinary science, including:

(a) laws regulating the supply, dispensing and storage of poisons and therapeutic substances, and

(b) laws regulating and controlling the use, keeping and disposal of radioactive substances and radioactive apparatus for therapeutic purposes. ...

34 With reference to cl 6 and cl 7, it should be added that the relevant statutory requirements are set out in Poisons Act 1966 and in the Poisons and Therapeutic Goods Regulation 1994. The text of the relevant provisions is set out in the Tribunal’s judgment at [93 – 98]. It need not be reproduced here.

35 A further provision of the Code, cl 9, is not prescribed for the purposes of s 22(1)(c) of the Act. It is as follows:-

9. Professional relationships

When practising veterinary science, a veterinary surgeon has an obligation to conduct himself or herself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general. ...'

36 A further statutory extension of the concept of professional misconduct appears in s 22(a) of the Act. It is as follows:-
' 22. Misconduct in a professional respect

Without limiting the meaning of the expression 'misconduct in a professional respect', a registered veterinary surgeon shall be deemed to be guilty of misconduct in a professional respect if the veterinary surgeon:

(a) permits or requires an unregistered person employed by the veterinary surgeon to practise veterinary science except where that person acts in accordance with this or any other Act,
37 At [73] in its judgment, the Tribunal pointed out that cl 20 of the Veterinary Surgeons Regulation 1995 (the Regulation) was also relevant to this case. The relevant parts of it are as follows:-
20. Duties of superintendent of veterinary hospital

(1) The superintendent of a veterinary hospital who is nominated in accordance with section 54 of the Act is responsible for the care, control and management of the hospital.

(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 is made, ...

(b) ensure that any animal admitted to the hospital for accommodation or treatment is examined daily or more frequently if the circumstances require, ...

(f) ensure that any animal admitted to the hospital for accommodation or treatment which shows signs of an infectious or contagious disease is effectively isolated from all animals not so affected, and

(g) ensure that sufficient competent staff are present when elective surgery is being performed and when animals are being prepared for any such surgery, and

(h) ensure that clauses 21--25 are complied with, ...

Maximum penalty: 4 penalty units.

Note. Section 54 of the Act enables the licensee of a veterinary hospital to nominate the superintendent of the hospital '

38 Each of the fourteen grounds of appeal listed above at [23] will now be separately discussed.

Ground (1): Insufficient investigation of the complaint by the Committee

39 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]).

40 In the present case, the principal argument on Dr Lloyd’s behalf was that the Committee had not interviewed the initial complainant (Ms Clee), or any of the other lay witnesses (including Mr Murray).

41 The Act provides as follows in s 27:-

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:

(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,

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.

(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.

42 In the present case, evidence as to the material considered by the Committee at the investigatory stage – that is, until the Committee resolved, in September 1996, to refer the complaint to the Tribunal – appears in the annexures to an affidavit dated 22 October 2002 by Ms M Linkenbagh, Secretary to the Committee.

43 This material comprised at least the following items: (a) the undated letter of complaint from Ms Clee to the Committee; (b) Dr Lloyd’s reply, dated 20 May 1996, to a letter from the Committee, enclosing this letter of complaint; (c) a report from Dr Jill Maddison, of the Randwick Equine Centre; (d) statutory declarations by Ms Clee, and, it would seem, by Mr Tuinenburg and by each of his parents; (e) Dr Lloyd’s case-card relating to Gypsy; and (f) oral representations made by him to the Committee on 19 August 1996.

44 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 interviews with the lay witnesses were 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.

45 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 the Allegations, notably Allegations 1(c), (j), (m) and 1(n)

46 This ground of appeal is based on the procedural requirements laid out in s 28 of the Act, particularly s 28(3).

47 In putting this ground of appeal forward, counsel for Dr Lloyd argued that because the initial letter of complaint from Ms Clee was the only material before him when he made the written representations envisaged in s 28(3) (that is, in his letter of 20 May 1996), he could not determine what professional failings alleged against him were of genuine concern to the Committee. It was also argued that, even after the interview with the Committee on 19 August 1996, in which he made the oral representations envisaged in s 28(3), he was still insufficiently put on notice of the matters raised in Allegations 1(c), (j), (m) and 1(n).

48 In its broadest form, the line of argument pressed by counsel for Dr Lloyd depended 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).

49 The following is the text of s 28:-

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:

(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

(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.

(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.

50 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.

51 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.

52 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.

53 We will now consider whether such an opportunity was indeed provided to Dr Lloyd in relation to each of the allegations specifically referred to in this ground of appeal.

54 In its judgment in Gypsy, at [40 – 57], the Tribunal dealt with this question. Its conclusion, after having perused the transcript of Dr Lloyd’s interview with the Committee on 19 August 1996, was that the matters covered in Allegations 1(c), (j) and (n) were sufficiently ventilated at the interview with Dr Lloyd. It declared itself satisfied that Dr Lloyd was also sufficiently on notice of Allegation 1(m), because Ms Clee referred to the incident in question in her letter to the Committee and a copy of this letter was sent to Dr Lloyd.

55 At [40 – 43], the Tribunal pointed out that during the interview, references were made to alleged failures of record keeping, though not specifically in the context of the requirements of poisons regulations (this being the specific topic of Allegation 1(c)). We agree with the Tribunal’s conclusion that, since these regulations were prominent in the interview, as also was an allegation of general inadequacy of record keeping, he was sufficiently on notice of the content of Allegation 1(c).

56 At [44 – 46], the Tribunal pointed out that during the interview, references were made to Dr Lloyd’s alleged misconduct in instructing Mr Murray, an unqualified person, to administer an injection of a restricted substance. It was not specifically put to him, however, that he did not provide adequate written instructions, as required by poisons regulations (this being the specific topic of Allegation 1(j)).

57 In this instance, we do not agree with the Tribunal’s conclusion. In our view, the fact that the poisons regulations were prominent in the interview, as also was the allegation that it was improper and indeed illegal to entrust an unauthorised person with this task, was not sufficient to put Dr Lloyd on notice of the content of Allegation 1(j). A failure to satisfy statutory requirements as to the provision of written instructions is an entirely different professional shortcoming to the giving of instructions to an unregistered person to engage in the practice of veterinary science. Sufficient notice was not given merely because a set of alleged facts, embracing both of these alleged shortcomings, was put to him in the interview.

58 We agree with the Tribunal’s conclusion, at [55 – 57], that the subject-matter of Allegation 1(n) – failure to ensure that Gypsy had access to water while at Dr Lloyd’s property – was sufficiently raised with Dr Lloyd, both in Ms Clee’s letter of complaint, and in the interview of 19 August 1996.

59 At [54], the Tribunal quoted the reference to Allegation 1(m) – exposing other horses to the risk of contagion through contact with Gypsy – in Ms Clee’s letter of complaint. She wrote: ‘As far as anyone knew, he was contagious, he was with other horses?’ The Tribunal added that Dr Lloyd did not reply to this comment in his letter of 20 May 1996 to the Committee, and the matter was not raised at the interview.

60 In these circumstances, we cannot agree with the Tribunal’s conclusion, at [57], that Dr Lloyd was ‘clearly on notice’ of the content of Allegation 1(m). It was not enough, in our view, that the issue was briefly mentioned in Ms Clee’s letter. The important point is that Dr Lloyd was never told, in the course of the procedures specified in s 28(3), that it was an issue of concern to the Committee.

61 For the foregoing reasons, Ground (2) of the present appeal is upheld in relation to Allegations 1(j) and 1(m). The Tribunal’s findings of misconduct based on these two Allegations must on this ground be set aside.

62 Ground (2) of the appeal is dismissed in relation to Allegations 1(c) and 1 (n).

Ground (3): No Committee resolution as to a prima facie case with respect to Allegations 1(c), 1(j), 1(m), 1(n), 2(a), 2(b), 2(c) or 4

Ground (4): Charges formulated after, not before, the resolution as to a prima facie case

63 It is convenient to deal with these two grounds together.

64 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 that it referred to the Tribunal in its resolutions passed in September 1996. It was argued that in the absence of evidence to this effect, the referral was pro tanto invalid.

65 Up to a point, we accept this argument. We consider 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 done, it cannot be said that the Tribunal is ‘satisfied’ that there is a ‘prima facie’ case in relation to the ‘complaint’ that is being referred.

66 The grounds for this ruling may be illustrated by reference to an extreme example. Conceivably, a complaint referred to the Tribunal could contain an allegation of very serious misconduct – for example, that a practitioner had deliberately left a very sick animal to die – side by side with an allegation of distinctly less serious misconduct – for example, that the practitioner had insufficiently briefed himself or herself as to recent advances in some aspect of veterinary surgery. If the Committee, after investigating both allegations, declared itself satisfied that there was a prima facie case only in relation to the second of these allegations, its failure to resolve likewise in relation to the first would undoubtedly invalidate any referral of the complaint to the tribunal if it purported to include the first allegation.

67 To hold otherwise would deny to the practitioner concerned all the safeguards that the investigatory process established by ss 27 and 28 are designed to provide. It would potentially give free rein to those carrying out the administrative task of preparing the referral documents and submitting them to the Tribunal to enlarge at will the scope of the complaint authorised by the Committee’s resolution.

68 The principles and authorities considered in our discussion of comparable issues, though not this specific issue, in the Total Eclipse Appeal at [35 – 57] appear to us to require this conclusion inevitably.

69 We consider also 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.

70 In so ruling, we respectfully differ from conclusions reached in this case by the Tribunal at first instance. The Tribunal dismissed objections to its jurisdiction formulated more or less in the same terms as Ground (3) of this appeal.

71 In its judgment, at [48], the Tribunal stated that the Committee’s task, after conducting its investigation, was ‘to determine whether the complainant makes out a ‘prima facie case’ of professional misconduct at least in some respects’ (our emphasis). It formulated the Committee’s duty as that of reaching ‘a state of satisfaction in relation to the complaint as a whole (our emphasis) that meets the standards set out in s 28(1)(c)’.

72 At [51], the Tribunal stated that the Committee, in its final resolution in this matter, had referred to ‘issues that it had identified using its special expertise’. The Committee was not, in the Tribunal’s opinion, ‘thereby seeking to dismiss the seriousness of the other matters raised by Ms Clee; or somehow limit the scope of the referred complaint’.

73 In our judgment, these statements fail to acknowledge the importance of the investigation that the Committee is required to make. If it could refer allegations to the Tribunal without both giving proper consideration to the outcome of its investigation and formally resolving, at least in substance, that there was evidence to support the allegation, the investigation could well be considered futile.

74 Our judgment in the Total Eclipse Appeal and the leading authorities to which we there refer clearly view the role of the Committee in this way. By contrast, the Tribunal, notably in its observations at [51], appears to have considered it sufficient for the Committee merely to refer to issues that it identified by virtue of its special expertise, while confirming implicitly, through its silence, that other issues identified by the lay complainant were also to be considered ‘serious’.

75 On the other hand, our response to Ground (4) is that it is not necessary for the precise wording of the charges that are ultimately included in the referred complaint to 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). To impose it would make it impossible for the wording of any charge to be refined, or indeed merely clarified, subsequent to the Committee’s resolution.

76 We will now consider the application of these principles to the present case.

77 During September 1996, the Committee passed a formal resolution to the effect that, having considered the transcript of the interview of 19 August and ‘the documentation received in this matter Dr Lloyd ‘was guilty of misconduct in a professional respect. It further resolved, at the same meeting, to refer the complaint to the Tribunal.

78 The former resolution outlined in the following terms the forms of misconduct found to have been committed by Dr Lloyd:-

1. Dr Lloyd supplied the drug Dimetridazole, a Schedule 4 drug,

(a) without examining the horse,

(b) without having previously used the drug, and

(c) requested a lay person to administer an S4 drug to the same horse and still without an examination.

2. Dr Lloyd maintained inadequate records

3. There was inadequate consultation with the owner and inadequate offers of options available to work up the case.

4. There was inadequate burial of the horse which was subsequently uncovered causing great distress to the owner.

79 A further comment followed this resolution and preceded the subsequent resolution to refer. It was as follows:-
The Committee also discussed whether point 4 could also be a breach of an Act regarding water resources.
80 In December 1996, the Committee considered draft charges that had been prepared by its lawyers. It made only minor amendments.

81 It also resolved that any charges relating to Dr Lloyd’s role as superintendent of a veterinary hospital should be deleted. The expressed reason was that, because horses are not small animals, the regulations relating to superintendents did not apply. As indicated, however, by the Tribunal in its judgment at [58-59], the Committee would seem to have reversed this decision at a later stage, since Allegation 2 comprises charges of this nature. The precise sequence of events is unclear.

82 The final formulation of the charges, in the terms set out at 20 above, occurred subsequently. They were then referred to the Tribunal, on behalf of the Committee, by a nominal complainant. Their substantive content was not further considered by the Committee.

83 In these circumstances, we do not accept a submission on Dr Lloyd’s behalf that no allegation was properly referred simply because the resolutions of September 1996 did not use a phrase used in s 28(1)(c), namely ‘prima facie case’. It is evident that the first resolution of September 1996 embodied a conclusion by the Committee that there was at least a prima facie case.

84 We do however accept the argument that the resolutions passed in September 1996 did not, in substance, include the content of six of the eight allegations listed in Ground (3) of this appeal. These are Allegations 1(j), 1(m), 1(n), 2(b), 2(c) and 4. Even though the substance of all of these, except 1(j), was covered in Ms Clee’s initial letter of complaint, that is not sufficient to comply with s 28(1)(c), for the reasons that we have given.

85 On the other hand, we consider that the remaining allegations listed in Ground (3) – Allegations 1(c) and 2(a) – were sufficiently included in clause 2 of the resolution. These two allegations relate, in different ways, to record keeping. Clause 2 of the resolution stated: ‘Dr Lloyd maintained inadequate records.’

86 The outcome of this consideration of these two grounds of appeal is therefore as follows.

87 We uphold Ground (3), in so far as it relates to Allegations 1(j), 1(m), 1(n), 2(b), 2(c) and 4. The Tribunal’s findings of professional misconduct based on these Allegations must on this ground be set aside.

88 On the other hand, we reject Ground (3) in so far as it applies to Allegations 1(c) and 2(a).

89 We also reject Ground (4) of the appeal.

Ground (5): Damage to Dr Lloyd’s credit through erroneously treating, in a companion inquiry, an account of a person’s observations and conduct as the evidence of that person.

187 The principal argument put in the appeal on behalf of Dr Lloyd and the Committee can be crystallised as follows. With these two elements of s 44(1)(k) established, the onus lay on the Committee to establish, to the ‘comfortable satisfaction’ of the Tribunal, that another veterinary surgeon was in fact available, or (possibly) that Dr Lloyd was unreasonable in his belief that no other surgeon could be found who was available. This followed from a strict reading of s 44(1)(k), coupled with the evidentiary requirements of disciplinary proceedings such as these (see our judgment in the Remus 1 Appeal, at [105 – 120]).

188 At [570], the Tribunal addressed the issue of availability of other surgeons. It stated merely that ‘there were numerous veterinary practices’ in the neighbourhood, that ‘it was open to [Dr Lloyd] to enquire of other veterinarians’ and that ‘he gave no consideration to the possibility’.

189 We agree with counsel’s submission. It appears to us that the Tribunal’s discussion of this matter fell short of what was required. As far as we can discern, no evidence was tendered in relation to the actual availability of veterinary surgeons in the neighbourhood at the relevant time, nor to the question whether it was, or would have been, unreasonable for Dr Lloyd to assume that none was unavailable.

190 For these reasons, Ground (13) is upheld, and the finding based on Allegation 3 must be set aside.

Ground (14): Error, involving denial of natural justice, in finding misconduct pursuant to allegations drafted in identical terms

191 In our judgment in the Remus 1 Appeal at [121 – 126], we rejected an argument along these lines. We see no reason for doing otherwise here.

Orders to be made in disposing of the appeal

192 We have upheld, wholly or in part, seven of the fourteen grounds. These are Grounds (2), (3), (6) and (10) – (13). We have rejected six of the grounds: (1), (4), (5), (8), (9) and (14). In relation to the remaining ground, Ground (7), we have determined that, while the principle on which it is based is correct, acceptance of this principle does not warrant our setting aside any finding that is not liable to be set aside on one or more other grounds.

193 A consequence of applying these rulings to the separate Allegations on which the Tribunal made findings of misconduct in a professional respect against Dr Lloyd is that a number of these findings must be set aside. These are the findings made pursuant to the following Allegations: 1(j), 1(m), 1(n), 1(o), 2(a), 2(b), 2(c), 3 and 4.

194 The findings made pursuant to the following Allegations of misconduct in a professional respect are unaffected: Allegations 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i) and 1(k).

195 The finding of misconduct in a professional respect made pursuant to Allegation 1 (l) is affirmed, but only on the following factual basis: that in the period between 26 December 1995 and 9 January 1996, (i) Dr Lloyd did not suggest to Ms Clee that he should conduct a full examination of Gypsy, but established and acted on a diagnosis of giardia merely by talking to her; and (ii) he did not sufficiently emphasise to her that, despite her apparent conviction to the contrary and in view of his own belief that giardia was unlikely to be the correct diagnosis, there might well be conditions other than giardia affecting Gypsy.

196 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 the findings outlined in the two preceding paragraphs. 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

197 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.