Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: ‘Remus' Allegation 2) (GD) [2003] NSWADTAP 49

[2003] NSWADTAP 49

Appeal Panel - Internal

CITATION:	Lloyd -v- Veterinary Surgeons Investigating Committee (Inquiry 3: ‘Remus’ – Allegation 2) (GD) [2003] NSWADTAP 49 [2003] NSWADTAP 49
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Invesitigating Committee
FILE NUMBER:	039027, 039037
HEARING DATES:	12/06/2003, 28/07/2003
SUBMISSIONS CLOSED:	07/28/2003
DATE OF DECISION:	10/13/2003
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95, 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 Ronald George Lloyd (Inquiry 3: Findings: ‘Remus’ – Allegation 2)[2003] NSWADT 136, Veterinary Surgeons Investigating Committee v Ronald George Lloyd (Remus: Inquiry 2) (Preliminary order 12 May 2003), 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
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 - procedural fairness - professional misconduct - conduct constituting professional misconduct - reconsitution of tribunal - failure to recall witnesses
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	40004, 40005, 40015 and 40016 of 1998
DATE OF DECISION UNDER APPEAL:	06/06/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95 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 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; 2 Finding of misconduct in a professional respect in relation to Allegation 2 set aside; 3 Inquiry to be remitted to the Tribunal for consideration of what order, if any, should be made under s 32(3) of the Veterinary Surgeons Act 1986 with respect to the fifth paragraph of the particulars to Allegation 2.

Introduction

1 This appeal (which brings together two separate notices of 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 specifically dealt with in this appeal is Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 2) [2003] NSWADT 136 (hereafter ‘Remus 2’). 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 1: ‘Chisel’ – Findings) [2003] NSWADT 95 (hereafter ‘Chisel’); 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. In consequence, the findings of the Tribunal in Total Eclipse - Findings have been set aside.

4 The appeals against the judgments in Remus 1, Chisel, and Gypsy have been heard. Judgments on these appeals will be delivered contemporaneously with the present judgment.

5 In Remus 2, the principal subject of the present appeal, the Tribunal made findings in relation to Allegation 2 of one of the complaints laid by the Committee against Dr Lloyd. This Allegation asserted that Dr Lloyd was guilty of misconduct in a professional respect following his treatment of a dog called Remus.

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 the first four of five paragraphs of the particulars relating to Allegation 2.

7 The precise circumstances giving rise to the complaint were much disputed. But the following brief outline describes events which were not contested.

8 On 25 February 1997, Mrs Suzanne Robinson consulted Dr Lloyd at his surgery regarding her dog Remus, a Weiramaner. On 7 March, Mrs Robinson brought Remus back to Dr Lloyd’s surgery, as the treatment that Dr Lloyd had prescribed had not been effective. He agreed to keep Remus overnight in his veterinary hospital (the Gill Avenue Veterinary Hospital). Over the next few days, Remus’s condition got worse and he died in the hospital early in the afternoon of 11 March.

9 On 17 March 1997, Mrs Robinson wrote a letter to the Australian Veterinary Association (the AVA) expressing dissatisfaction with Dr Lloyd’s handling of the case. On or about 25 March, Dr Lloyd received notification of this complaint. During the ensuing days, Dr Lloyd spoke to Mrs Robinson by telephone on at least two occasions. The number and the content of these conversations are matters of dispute.

10 Shortly after 14 April, Mrs Robinson received from Dr Lloyd’s veterinary hospital an invoice for his professional services. She did not pay the account. The Tribunal’s judgment in Remus 2 outlines as follows (at [38 – 39]) the further steps taken by Dr Lloyd and the hospital staff:-

38 By letter dated 22 October 1997 (Ex R18) the Accounts officer (Ms Bennett) of the Gill Avenue Veterinary Hospital sent a letter to Mr and Mrs Robinson, explaining that possibility and threatening both of them with a 'CRA' listing if they did not pay the bill. The latter it was agreed was a reference to the credit industry debt default listing service, then known as the Credit Reference Association of Australia. Such a listing may affect the ability of an individual to obtain credit from banks, credit providers and other subscribers in the future.

39 In addition, on 1 November 1997, Dr Lloyd handwrote a note (Ex R19) on the letterhead, 'Gill Ave Vet', to Mrs Robinson as follows: 'Your complaint about my treatment of your dog 'Remus' had no relationship to the unpaid a/c. If not paid in 7 days from 1.11.97 the ACRA will be notified & I will take legal proceedings to recover this debt. Regards, R. Lloyd.'

11 These events, which form the factual subject-matter of Allegation 2, were not dealt with in the Committee’s investigation of Mrs Robinson’s complaint regarding Dr Lloyd’s treatment. They were not mentioned in the Committee’s communications with Dr Lloyd during this investigation. But they did form part of the notice of inquiry lodged initially by the Committee in the Veterinary Surgeons Disciplinary Tribunal, then in this Tribunal, pursuant to s 28(1)(c) of the Act. Mrs Robinson’s written statement and oral evidence in the Tribunal hearing relating to Remus included her version of all aspects (disputed and undisputed) of these events, as did the written and oral evidence of Dr Lloyd.

12 In its first judgment relating to this inquiry, Remus 1, at [304 – 308], the Tribunal declined to make findings on Allegation 2. It did this even though it had heard the evidence relating to this Allegation. The reason for its not making findings stemmed from the fact that, at a late stage of the hearing, Dr Lloyd had raised a procedural objection.

13 The ground of this objection was that, as just indicated, the Committee’s investigation of Dr Lloyd’s treatment of Remus, and its requests to Dr Lloyd that he should submit first written, then oral, representations, to it, pursuant to s 28(3) of the Act, did not include the matters covered by Allegation 2. It followed, Dr Lloyd argued, that prescribed statutory procedures had not been followed, and he had been denied natural justice, in relation to this allegation.

14 The Tribunal accepted this argument. At [309 – 310] in its judgment in Remus 1, it indicated, however, that it would consider adding a new allegation, in the same terms as Allegation 2, to the complaint already before it and making a determination on this allegation. Without reconvening, it subsequently took these steps, without hearing further evidence and despite objections by Dr Lloyd. It gave to Dr Lloyd an opportunity to file written submissions within 14 days, but no submissions were filed. In acting in this way, it invoked powers conferred on it by s 30 of the Act.

15 The Tribunal stated its findings on Allegation 2 at the end of its judgment in Remus 2. At [58], it concluded that a finding of misconduct in a professional respect should be entered in respect of the conduct described in the first four paragraphs of the particulars relating to this Allegation.

16 The Tribunal stated at [57] that the conduct described in the fifth paragraph of the particulars was ‘sufficiently unacceptable to warrant the making of the complaint’, within the meaning of s 32(3) of the Act, but did not amount to misconduct in a professional respect in its own right.

17 The text of Allegation 2 and the accompanying particulars is as follows:-

2. 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 late March 1997 and late 1997 you did not conduct yourself in a manner in accordance with the professional standard expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general.

Particulars

After Suzanne Robinson had sent a complaint to the Australian Veterinary Association Limited, in relation to your treatment of Remus, you were notified by the Australian Veterinary Association Limited of that complaint in late March 1997.

Between the time when the Australian Veterinary Association Limited advised you of the complaint and mid April 1997, you telephoned Suzanne Robinson at her place of work and told her that you wanted her to drop the allegations regarding Remus. She refused.

A few days later, you rang her again and insisted on having a meeting with her. You told her that you wanted to make some kind of deal. She informed you that she did not want to see you.

Nevertheless, you rang her again and on a Sunday morning said that you wanted to see her, that day. You told her that you would come to her home and speak to her. You told her that you could be at her home in 10 minutes time but that alternatively, she could ring you and make an appointment to see you at your surgery and again offer to assist her financially.

Subsequently, despite your being aware of the fact that the complaint had been passed on to the Veterinary Surgeons Investigating Committee and was being investigated, you threatened to report Suzanne Robinson to the Credit Reference Association for the non payment of your invoice relating to the treatment of Remus.

18 It will be seen that the particulars in the first four paragraphs, in relation to which the Tribunal made a finding of professional misconduct, relate to the telephone conversations between Dr Lloyd and Mrs Robinson after Dr Lloyd had been notified of Mrs Robinson’s letter of complaint to the AVA. The particulars in the fifth paragraph, in relation to which the Tribunal held that professional misconduct had not been established but that the conduct was ‘unacceptable’, relate to Dr Lloyd’s subsequent attempts to procure payment of his account for treatment of Remus.

The grounds of the present appeal

19 Dr Lloyd filed a notice of appeal (no. 039037) contesting the Tribunal’s finding of professional misconduct in this inquiry (Remus 2). This finding is explicitly based on the first four paragraphs of the particulars to Allegation 2. He also filed a notice of appeal (no. 039027) challenging the validity of (a) certain procedural steps taken in this inquiry and (b) a further group of procedural steps taken in this and in the inquiries in Remus 1, Chisel and Gypsy. As outlined at [66 – 67] below, on 12 June 2003 we granted a stay order in response to those aspects of the latter notice of appeal that related to all four inquiries. Dr Lloyd did not challenge the Tribunal’s conclusion regarding the wholly distinct matters outlined in the fifth paragraph of the particulars to Allegation 2.

20 In outline, the grounds of appeal (leaving aside those which prompted the stay order), each involving an alleged error of law by the Tribunal, are as follows:-

Ground (1): During the course of the hearing, after Mrs Robinson 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 Robinson was not recalled for cross-examination. Instead, the new member read a transcript of the earlier evidence given by her. In reaching its findings regarding the telephone conversations between Mrs Robinson and Dr Lloyd, the reconstituted panel preferred her evidence to the evidence that he gave. This refusal to recall Mrs Robinson, 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 (2): 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 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 (3): The Tribunal exhibited bias against Dr Lloyd.

Ground (4): In resolving, after delivering its judgment in Remus 1, to proceed to a determination on Allegation 2 without reconvening, the Tribunal denied to Dr Lloyd the opportunity to seek to recall witnesses. Furthermore, the time allowed for further written submissions – 14 days – was unduly short, and the Committee was not expressly given the opportunity to file a submission. For these reasons, the procedure adopted was unfair to Dr Lloyd.

Ground (5): The findings on Allegation 2 were explicitly based on cl 9 of the Veterinary Surgeons’ Code of Professional Conduct (hereafter ‘the Code’), which is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995. The opening clause of the Allegation was in fact drafted in terms virtually identical to those of cl 9. The circumstances were not such, however, as to attract the operation of this clause.

21 Dr Lloyd also sought leave to extend the appeal to the merits. The ground put forward was that the evidence of Mrs Robinson was demonstrably unreliable. In consequence, the Tribunal’s findings were against the weight of the evidence.

The position adopted by the Committee

22 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.

23 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.

24 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].

25 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’

26 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.

27 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.

28 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 of these provisions is deemed by s 22(c) to be misconduct in a professional respect.

29 The provision of the Code that is relevant to the present appeal – namely cl 9 –is not, however, prescribed for the purposes of s s 22(c). This is a matter of significance in our consideration of Ground 5 of this appeal.

30 Clause 9 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.

31 Each of the five grounds of appeal listed above at [20] will now be separately discussed.

Ground (1): The Tribunal’s acceptance of Mrs Robinson’s evidence, without having recalled her for cross-examination after it was reconstituted

32 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.

33 In the present appeal, as 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 Robinson. The incoming member did not see and hear Mrs Robinson 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 its finding of misconduct in a professional respect against him.

34 Our conclusion in Remus 1, after weighing as best we can the competing considerations, was that the Tribunal, in not acceding to Dr Lloyd’s request for recall of Mrs Robinson, 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.

35 The same conclusion must apply in the present appeal. It follows, in our opinion, that we must set aside those findings by the Tribunal that depend on acceptance of Mrs Robinson’s evidence, in circumstances where no other evidence corroborated her, in preference to that of Dr Lloyd.

36 It also follows that there is no reason to grant leave to extend this appeal to a review of the merits. This is because Dr Lloyd’s application for such leave was based solely on a submission that the evidence of Mrs Robinson was demonstrably unreliable.

37 The consequences of putting Mrs Robinson’s evidence to one side, to the extent that it conflicted with Dr Lloyd’s evidence (though not where other evidence supported Mrs Robinson), are of major importance in this appeal. This is because the only evidence available to establish the truth of the particulars relied on by the Tribunal in making its finding of misconduct under Allegation 2 was the evidence of Mrs Robinson. The finding stemmed entirely from the content of conversations between these two individuals, with no other person being present.

38 Mrs Robinson said in her evidence that between late March and mid-April 1997, there were four telephone conversations between her and Dr Lloyd. Three of them took place more or less as outlined in the second, third and fourth paragraphs of the particulars (the text of which is at [17] above). The fourth, occurring between the second and the third of the conversations outlined in the particulars, comprised only a request by Dr Lloyd, who had rung her, that she should meet him at his surgery on her way home from work on a specified day, and her agreement to do so. She said that she did not in fact go to meet him.

39 Dr Lloyd agreed that he spoke on the telephone to Mrs Robinson during the relevant period. But his version of the contact between them differed significantly. His evidence on this was summed up as follows in the judgment of the Tribunal, at [24]:-

As to the Particulars, Dr Lloyd stated that he telephoned Mrs Robinson on two occasions after being notified of her complaint. He denies that there was a third occasion as asserted by the Particulars (the Sunday morning call). As to the contents of the two conversations, he gave no account of the first conversation. He said that in the second conversation he offered to visit Mrs Robinson at her home or to make her an appointment to visit his surgery to discuss the death of the dog and his treatment.
40 At [25], the Tribunal identified as follows the differences between the two accounts:-
Dr Lloyd denies Mrs Robinson's assertion that Dr Lloyd told her in the first conversation that he wanted her to drop the allegations against him regarding Remus. Dr Lloyd denies Mrs Robinson's assertion that in the second conversation he offered to do a deal with her in exchange for her dropping the charges. Dr Lloyd denies outright Mrs Robinson's allegation that he called her by phone on a Sunday morning, and told her he could be at her place in 10 minutes or, alternatively, that she could ring him and make an appointment to see him at the surgery, or that he offered to assist her financially.
41 At [29 – 33], the Tribunal gave a more detailed account of Mrs Robinson’s evidence. At [35], it stated expressly that it accepted this account.

42 When this account of the conversations is put to one side, and Dr Lloyd’s version substituted, it becomes clear that no basis remains for a finding of misconduct in a professional respect. We would not disagree with the proposition, stated by the Tribunal at [20], that after a client has made a complaint against a veterinary surgeon, it would ‘almost always be inappropriate’ for the surgeon to contact the client. But a conversation to discuss what happened to the animal that had been treated – which is what Dr Lloyd described – would not infringe professional standards to the extent necessary to constitute misconduct, even though it might well be ‘inappropriate’.

43 In a sentence of considerable significance for the present appeal, the Tribunal seemed to accept this view. At [23], responding to a submission on Dr Lloyd’s behalf that there was no evidence to support a finding of misconduct, the Tribunal stated: ‘This might be the case if the Tribunal rejected Mrs Robinson’s evidence on the matters in dispute’.

44 Since, for the procedural reasons outlined above, Mrs Robinson’s evidence must be rejected, our view that there remain no grounds for a finding of misconduct would seem to accord with the opinion that the Tribunal would have formed in a like situation.

45 For these reasons, we uphold Ground (1) of the appeal. This is sufficient to dispose of the appeal. But in case we are wrong in our ruling that Mrs Robinson’s evidence must be put to one side, we will express our views on the remaining four grounds of appeal.

Ground (2): 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

46 In our judgment in the Chisel Appeal, at [80], we have reached the conclusion that this ground of appeal, standing alone, has little merit. There is no reason for differing from this conclusion here. The ground of appeal is accordingly rejected.

Ground (3): Bias on the part of the Tribunal

47 In our judgment in the Remus 1 Appeal, at [130 – 133], we reached the conclusion that no compelling argument was advanced, and no relevant authority, was put forward to support this ground of appeal. There is no reason for differing from this conclusion here. The ground of appeal is accordingly rejected.

Ground (4): Unfair procedure following the Tribunal’s decision to lay the charge in Allegation 2 on its own motion

48 This ground of appeal relates to the procedure adopted by the Tribunal after it had resolved to bring a new charge against Dr Lloyd in the terms of Allegation 2.

49 As we understand it, three aspects of this procedure were claimed on his behalf to be unfair to him. These are as follows: (1) the Tribunal did not permit him to adduce further evidence; (2) it gave him only 14 days within which to lodge any further submissions; and (3) it did not give any corresponding opportunity to the Committee to lodge further submissions.

50 In her written submission on Dr Lloyd’s behalf, Ms Green argued that although the charge contained in Allegation 2 was in the same terms as its predecessor, it was ‘essentially a new charge’. No reason for this proposition was advanced other than that, in its original form, it had been ‘attacked by the defence as being a charge as to which the Tribunal had no jurisdiction’, whereas in its later incarnation it was ‘a charge that was not affected by a jurisdictional issue’.

51 We fail to see why this distinction is of significance. No authority was cited to support Ms Green’s argument. We understand that the merits of Allegation 2 had been fully canvassed, through evidence and argument, during the hearing of the Remus inquiry. In such event, we do not see why the Tribunal could not rely on the material already before it (subject only to the separate issue, already discussed, of the Tribunal’s failure to recall Mrs Robinson for cross-examination) in order to make a determination on Allegation 2 as formulated in a fresh complaint.

52 This conclusion is sufficient in our view to justify rejection of the ground of appeal. We consider that it was not necessary for the Tribunal, having exercised its powers under s 30 of the Act, to permit the merits of the Committee’s case under Allegation 2 to be reopened, either at a further hearing or through the receipt of additional submissions.

Ground (5): Inapplicability of cl 9 of the Code

53 As we understand the arguments put forward for Dr Lloyd (with some support from the Committee), there were three reasons why the conduct alleged against him could not lead to a finding of professional misconduct founded on cl 9 of the Code.

54 One of these is based on the proposition that, for reasons outlined at [28 – 29] above, proof of a breach of cl 9 does not inevitably lead to a finding of misconduct. This is because cl 9, unlike a number of other provisions of the Code, has not been prescribed for the purposes of s 22(c) of the Act.

55 The second reason is that the Tribunal, having quoted cl 9 (at [44]), described it as ‘reflecting the common law position’. This, in Ms Green’s submission, was incorrect and constituted a significant error of law.

56 The third reason put forward by Ms Green was that the Tribunal took no account of the opening words of cl 9 – ‘When practising veterinary science…’. It did not consider the possibility that the conduct identified in Allegation 2 might fall outside the scope of the practice of veterinary science, and therefore outside the scope of cl 9.

57 We agree with the submission that the Tribunal, in proceeding to make its finding of professional misconduct based on the first four paragraphs of the particulars (see its judgment at [47]), did not deal at all with these matters.

58 Our specific conclusions are as follows. In the first place, if, as appears to be the correct interpretation of its judgment, the Tribunal based its finding of misconduct on a proven breach of cl 9, it should have discussed these matters and given reasons why none of them stood in the way of such a finding.

59 Secondly, for reasons set out at [127 – 163] in our judgment in the Gypsy Appeal (see in particular [162 – 163]), we consider that the conduct alleged against Dr Lloyd does not fall within the practice of ‘veterinary science’ and therefore cannot constitute misconduct under cl 9 of the Code. Undoubtedly, this conduct was connected with the practice of veterinary science, as are numerous other aspects of a veterinary surgeon’s relationships with his or her clients. But when engaging in the alleged conduct (assuming for this purpose that this was properly proved against him), he was not, as we see it, ‘practising veterinary science’ within the meaning of cl 9.

60 Finally, if the finding of the Tribunal was of misconduct at common law, it should have made this clear and should have shown an awareness that a breach of the standard imposed in cl 9 cannot be assumed, without further consideration, to constitute common law misconduct.

61 For these reasons, we consider that Ground (5) is made out.

Conclusion

62 For the reasons set out in this judgment, this appeal succeeds. Paragraph 1 of the Tribunal’s determination, declaring that Dr Lloyd is guilty of misconduct in a professional respect in relation to Allegation 2, must be set aside.

63 As indicated above, at [16] and [19], the appeal did not challenge a finding by the Tribunal (made in its judgment at [57]) that the conduct of Dr Lloyd alleged in the fifth paragraph of the particulars, while not amounting to professional misconduct, was ‘unacceptable’ within the meaning of s 32(3) of the Act. The conduct in question was his threatening to report Mrs Robinson to the Credit to the Credit Reference Association. Dr Lloyd did not deny such conduct, and it was indeed well established by documentary evidence. As we see it, neither of the two grounds of appeal that we have upheld (Grounds (1) and (5)) would warrant overturning this finding if it were in fact the subject of appeal.

64 Under s 32(3) of the Act, if ‘the matter of a complaint’ is not proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers the relevant conduct to be ‘sufficiently unacceptable to warrant the making of the complaint’, it may make an order against the veterinary surgeon under s 32(1)(a) (reprimand or caution) or (f) (payment of specified costs relating to the hearing) or both. As we see it, an order of this nature remains open to the Tribunal with respect to the matters alleged in the fifth paragraph of the particulars to Allegation 2.

65 Accordingly, the present inquiry should be remitted to the Tribunal for consideration of what order, if any, of this nature should be made.

66 As indicated at [19] above, one of the orders sought by Dr Lloyd in these appeal proceedings was an urgent interim order staying further proceedings in this inquiry (Remus 2), and in three associated inquiries (Remus 1, Chisel and Gypsy). The ground of this application was that it was inappropriate for the Tribunal to determine what orders, if any, should be made by way of ‘sentence’ or ‘penalty’ under s 32 of the Act until the appeals contesting its adverse findings against him in these four inquiries had been heard and determined. The Tribunal had fixed a date for the hearing of these matters under s 32, which preceded the hearing date of this appeal (28 July 2003) by two weeks.

67 On 12 June 2003, we granted a stay order as sought by Dr Lloyd.

68 This order will cease to operate, according to its own terms, upon the delivery of this judgment and the accompanying judgments relating to the appeals in Remus 1, Chisel and Gypsy.