MUFFERT - [2022] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VETERINARY SURGEONS ACT 1960 (WA)
CITATION:   MUFFERT [2022] WASAT 115
MEMBER:   PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
DR J RICHARDSON, SENIOR SESSIONAL MEMBER

HEARD:   5 DECEMBER 2022
DELIVERED          :   8 DECEMBER 2022
PUBLISHED           :   21 DECEMBER 2022
FILE NO/S:   VR 93 of 2021
BETWEEN:   ANNE-MARIA MUFFERT
Applicant

Catchwords:

Vocational regulation - Regulation of veterinary surgeons - Application for leave to apply to Veterinary Surgeons' Board of Western Australia for restoration of name to Register of Veterinary Surgeons of Western Australia - Where Tribunal previously ordered applicant's name be removed from Register - Application for leave made under s 24(4a) of Veterinary Surgeons Act 1960 (WA) - Where Veterinary Surgeons Act 1960 (WA) repealed by Veterinary Practice Act 2021 (WA) prior to final determination of application

Whether application continues under repealed Veterinary Surgeons Act 1960 (WA) - Whether Interpretation Act 1984 (WA) s 37(1) applies to save operation of s 24(4a) of Veterinary Surgeons Act 1960 (WA) - Whether applicant was under obligation to obtain leave of Tribunal before making application to restore name to Register prior to repeal of Veterinary Surgeons Act 1960 (WA) - Meaning of obligation in s 37(1)(d) of Interpretation Act 1984 (WA) - Whether obligation survived repeal of Veterinary Surgeons Act 1960 (WA) - Whether Tribunal has jurisdiction to deal with application under Veterinary Surgeons Act 1960 (WA) - Whether leave should be granted to applicant to apply to Board for restoration of name to Register - Considerations relevant to grant of leave

Legislation:

Acts Interpretation Act 1901 (Cth), s 7
Interpretation Act 1984 (WA), s 37, s 37(1)(d), s 37(1)(f)
Veterinary Practice Act 2021 (WA), s 10, s 18, s 102(2)(c), s 201, s 209, s 210, s 211, s 212, s 223, s 224(2), Pt 2, Pt 16, Div 2
Veterinary Surgeons Act 1960 (WA), s 24, s 23, s 24(4), s 24(4a)

Result:

Leave granted

Category: B

Representation:

Counsel:

Applicant

J A Robertson

Solicitors:

Applicant

Williams & Hughes

Case(s) referred to in decision(s):

Aitken v South Hams District Council [1995] 1 AC 262
Attorney General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Rowley v Chief of Army (2017) 255 FCR 176
Soemartopo [2010] WASAT 172
Travel Compensation Fund v Travel Guide Pty Limited (in liq) (1997) 72 FCR 371

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 7 October 2020, the Tribunal ordered, by consent, that the applicant's name be removed from the Register of Veterinary Surgeons of Western Australia (Register) with effect from 15 November 2020. That penalty was imposed on the basis of an agreed finding that the applicant had been guilty of unprofessional conduct as a veterinary surgeon.
In the present proceedings, the applicant seeks the leave of the Tribunal in order to be able to apply to the Veterinary Surgeons' Board (Board) for the restoration of her name to the Register (Application).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASAT 115
Decision Date: 8 DECEMBER 2022

CaseChat Overview and Summary

The applicant, Dr Muffert, sought leave to apply to the Veterinary Surgeons' Board of Western Australia for the restoration of her name to the Register of Veterinary Surgeons of Western Australia. This followed the Tribunal's previous order to remove her name from the Register. The application for leave was made under section 24(4a) of the Veterinary Surgeons Act 1960 (WA). However, before the final determination of this application, the Veterinary Surgeons Act 1960 (WA) was repealed by the Veterinary Practice Act 2021 (WA). The primary legal issue was whether the application continued under the repealed act, and if so, whether the obligation to obtain leave of the Tribunal before making an application to restore her name to the Register survived the repeal of the Veterinary Surgeons Act 1960 (WA). The court had to consider whether section 37(1) of the Interpretation Act 1984 (WA) applied to save the operation of section 24(4a) of the repealed act and whether the Tribunal had jurisdiction to deal with the application under the repealed act.

The court held that the application for leave continued under the repealed act and that the obligation to obtain leave of the Tribunal before making an application to restore her name to the Register survived the repeal of the Veterinary Surgeons Act 1960 (WA). The court found that section 37(1) of the Interpretation Act 1984 (WA) did not apply to save the operation of section 24(4a) of the repealed act, as it only applied to obligations that were in existence at the time of repeal. However, the obligation to obtain leave of the Tribunal before making an application to restore her name to the Register was not in existence at the time of repeal, as it was a pre-condition to making the application. The court further held that the Tribunal had jurisdiction to deal with the application under the repealed act, as the application was made before the repeal, and the Tribunal's jurisdiction was not dependent on the continued existence of the act. Finally, the court granted leave to the applicant to apply to the Board for restoration of her name to the Register, considering the circumstances of the case and the relevant considerations in granting leave.

The final orders of the court were that leave be granted to the applicant to apply to the Board for restoration of her name to the Register of Veterinary Surgeons of Western Australia, and that the Registrar of the Tribunal certify the order in the form of an authorisation to apply for the restoration of her name to the Register.

Orders