MUFFERT
[2022] WASAT 115
•8 DECEMBER 2022
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for leave made under s 24(4a) of Veterinary Surgeons Act 1960 (WA) - Where Veterinary Surgeons Act 1960 (WA) repealed by Veterinary Practice Act 2021 (WA) prior to final determination of application
Whether application continues under repealed Veterinary Surgeons Act 1960 (WA) - Whether Interpretation Act 1984 (WA) s 37(1) applies to save operation of s 24(4a) of Veterinary Surgeons Act 1960 (WA) -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). Under s 24(4) of the Veterinary Surgeons Act 1960 (WA) (1960 Act):
A person whose name has been removed from the Register or whose registration is suspended may apply to the Board for the restoration of the name of that person to the Register or for the order for suspension to be varied —
(a)if the name of that person was so removed or the registration was suspended by reason of —
(i)conviction of an offence; or
(ii)a determination of an authority outside the State,
after the expiration of 12 months from the date of the order concerned or of a previous such application whichever is the later; and
(b)in any other case, at any time.
However, s 24(4a) of the 1960 Act provided that:
An application under subsection (4) cannot be made without first applying for and obtaining the leave of the State Administrative Tribunal if the person's name was removed or the suspension was imposed as a result of a proceeding before the State Administrative Tribunal commenced by an allegation under section 23.
At the time the applicant made the Application, the 1960 Act was in force. Before the Application could be finally determined, however, the Veterinary Practice Act 2021 (2021 Act) had come into force (on 18 June 2022). The 2021 Act repealed the 1960 Act.[1] The repeal of the 1960 Act necessarily raised the question whether s 24(4a) of the 1960 Act continued to have any operation. There is no equivalent leave requirement, under the 2021 Act, for a person seeking to have their name included in the Register, following removal of their name from the Register.
[1] Section 201 of the 2021 Act.
Although the Board was named as a respondent to the Application when it was initially filed, the Board was removed as a party by order of the Tribunal and the Application proceeded ex parte. The applicant corresponded with the Board in relation to the question whether the requirement for the leave of the Tribunal still subsisted. The Board's position was that it considered that the requirement for leave continued to apply. In those circumstances, the applicant pressed the Application.
Three questions arise for determination on the Application:
(a)Prior to the repeal of the 1960 Act, was the applicant under an obligation to obtain the leave of the Tribunal before making an application to restore her name to the Register?
(b)If so, did that obligation continue to exist notwithstanding the repeal of the 1960 Act and if so, does the Tribunal have jurisdiction to deal with the Application under the 1960 Act?
(c)If the answer to question (a) and question (b) is yes, should leave be granted to the applicant to apply to the Board for the restoration of her name to the Register?
For the reasons which follow, we are satisfied that:
(a)the applicant was under an obligation, under s 24(4a) of the 1960 Act, to apply for, and obtain, the leave of the Tribunal before she was entitled to apply to have her name restored to the Register;
(b)that obligation was not affected by the repeal of the 1960 Act, by virtue of s 37(1)(d) of the Interpretation Act 1984 (WA) (Interpretation Act), and the repeal of that Act did not affect proceedings in the Tribunal in respect of that obligation, pursuant to s 37(1)(f) of the Interpretation Act; and
(c)we would grant leave to the applicant to make an application to have her name restored to the Register.
Nothing in the grant of leave should be understood to constitute an indication as to whether or not the applicant's name should be restored to the Register. That will be a matter for decision by the Board.
Factual background
The facts upon which the applicant was found to have been guilty of unprofessional conduct as a veterinary surgeon, which resulted in her name being removed from the Register were set out in the Tribunal's orders dated 8 October 2020, a copy of which is annexed to these reasons.
As we have said, the removal of the applicant's name from the Register took effect from 15 November 2020. The consequence is that the applicant's name has been removed from the Register for just over two years.
In support of her application under s 24(4a) the applicant filed an affidavit sworn 11 February 2022. The Tribunal invited the applicant to file a further affidavit in which she provided some explanation for the conduct which resulted in her name being removed from the Register. The applicant filed a further affidavit sworn 3 June 2022 in which she addressed the circumstances in which her unprofessional conduct as a veterinary surgeon occurred. In addition, in the course of the hearing of the Application, counsel for the applicant, on her instructions, provided some clarification of the evidence given by the applicant in the latter affidavit.
There being no contradictor to the Application, we accept the evidence of the applicant in her affidavits, as clarified by her counsel at the hearing. We refer to aspects of the evidence below.
The relevant legislative framework
Before turning to consider the three questions for resolution, it is convenient to say something about the legislative framework.
The 2021 Act does not deal expressly with the situation in which a person whose name was removed from the Register under the 1960 Act seeks to have their name restored to the Register.
Further, under the 2021 Act, the situation that arose in this case will no longer arise. If the Tribunal orders that a veterinary surgeon's registration as a veterinary surgeon is cancelled, the Tribunal must also make an order that the veterinary surgeon be disqualified from applying for registration indefinitely or for a particular period specified in the order.[2]
[2] Section 102(2)(c) of the 2021 Act.
At the end of any such specified period, the veterinary surgeon then would be required to apply for registration pursuant to Pt 2 of the 2021 Act. The grant of that application would depend on the Board being satisfied that the applicant for registration met the requirements of the 2021 Act[3] including that the applicant was a fit and proper person to be registered.[4]
[3] Section 10 of the 2021 Act.
[4] Section 18 of the 2021 Act.
While the 2021 Act repealed the 1960 Act, Pt 16, Div 2 of the 2021 Act sets out various transitional provisions pertaining to the 1960 Act. Three aspects of those provisions warrant particular mention.
First, the 2021 Act provides that an application for registration as a veterinary surgeon, which was made under the 1960 Act but not determined by the commencement of the 2021 Act, is taken to be an application for registration under the 2021 Act.[5] Further, a certificate of registration under the 1960 Act is taken to be registration under the 2021 Act.[6] In other words, registration, relevantly, of a veterinary surgeon, is now dealt with entirely under the 2021 Act.
[5] Section 209 of the 2021 Act.
[6] Section 210 of the 2021 Act.
Secondly, investigations and inquiries commenced under the 1960 Act, but not completed by the commencement of the 2021 Act, continue as if they were an investigation or inquiry into a complaint under the 2021 Act.[7] Further, proceedings in the Tribunal commenced by an allegation made to the Tribunal under the 1960 Act but not determined by the commencement of the 2021 Act are taken to have been commenced, and must be dealt, with under the 2021 Act.[8] In short, in respect of allegations that a veterinary surgeon engaged in conduct that would warrant disciplinary action, investigations and proceedings in respect of those allegations continue and are to be determined under the 2021 Act.
[7] Section 211 of the 2021 Act.
[8] Section 212 of the 2021 Act.
An application for leave under s 24(4a) of the 1960 Act is not a proceeding commenced by an allegation. Nothing in the transitional provisions in the 2021 Act expressly deals with the question of what legislation governs an application for leave under s 24(4a) of the 1960 Act which was made, but not determined, prior to the commencement day for the 2021 Act.
Thirdly, the 2021 Act expressly provides that except to the extent that Div 2 of Pt 16, or regulations made under s 224(2) of the 2021 Act, expressly provide differently, the Interpretation Act applies in relation to the repeal of the 1960 Act.[9] We note that no relevant regulations have been made under s 224(2) of the 2021 Act.
[9] Section 223 of the 2021 Act.
Section 37 of the Interpretation Act relevantly provides:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears —
…
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
…
(f)affect any … legal proceeding … in respect of any such right, … obligation, liability …
and any such … legal proceeding may be instituted, continued or enforced, … as if the repealing written law had not been passed or made.
Section 37 is consistent with the well-established common law principle that absent a clear contrary intention, an Act that changes the law ought not to be understood as applying to facts or events that have already occurred so as to confer, impose or otherwise affect substantive rights or liabilities which the law had defined by reference to past events.[10] Like its cognate provisions (such as s 7 of the Acts Interpretation Act 1901 (Cth)), s 37 of the Interpretation Act, and the common law presumption, give effect to a principle protective of accrued entitlements and obligations derived from statute.[11]
[10] Rowley v Chief of Army (2017) 255 FCR 176at [56] (Rowley) and the cases cited therein.
[11]Attorney General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [108].
There is no doubt that the effect of s 37 of the Interpretation Act is that the repeal of the 1960 Act does not affect what was done or suffered under that Act, relevantly the fact that the applicant's name was removed from the Register. The question for present purposes is whether s 37 continues the requirement in s 24(4a) of the 1960 Act for the applicant to obtain the Tribunal's leave prior to applying to the Board to have her name restored to the Register.
In our view, that requirement will continue to apply only if the applicant can be said to have been under an obligation to obtain the leave of the Tribunal before applying to have her name restored to the Register, and if the 2021 Act does not manifest an intention contrary to the continuation of that obligation.
We turn, then, to the first of the three issues for determination.
(a) Prior to the repeal of the 1960 Act, was the applicant under an obligation to obtain the leave of the Tribunal before making an application to restore her name to the Register?
The ordinary meaning of the word 'obligation' includes 'a binding requirement as to action; duty' and 'the binding power or force of a promise, law, duty, agreement, etc'.[12]
[12] Macquarie Dictionary Online (2022).
There are few cases in relation to the meaning of 'obligation' in s 37 of the Interpretation Act or its cognate provisions. Such authorities as there are support the conclusion that the word 'obligation' in the section is to be given its ordinary meaning.[13]
[13] See, eg, Aitken v South Hams District Council[1995]1 AC 262 at 271; Rowley at [59].
In some cases, the concept of an obligation is discussed in terms corresponding, or reciprocal, to a right.[14] However, there does not appear to be any reason why an obligation should be considered only to arise when a corresponding right also exists. Statutory obligations may be imposed without any correlation to a corresponding right.[15]
[14] See, eg, Travel Compensation Fund v Travel Guide Pty Limited (in liq) (1997) 72 FCR 371 at 377 (Lehane J).
[15] See, eg, Rowley at [59].
The terms of s 24(4a) of the 1960 Act were expressed in mandatory language. An application by a veterinary surgeon to restore their name to the register 'cannot be made without first applying for and obtaining the leave' of the Tribunal. In our view, that provision required a veterinary surgeon who had been suspended as a result of a proceeding before the Tribunal commenced by an allegation under s 23 of the 1960 Act to take particular action - namely to apply for and obtain the leave of the Tribunal - before applying to the Board to restore their name to the Register. If a veterinary surgeon applied to restore their name to the Register, without first having obtained the leave of the Tribunal, the Board would not be able to deal with that application and would be entitled to dismiss it, and in that sense, to enforce the requirement for the applicant to obtain the Tribunal's leave. In our view, that requirement to apply to the Tribunal for the grant of leave can properly be characterised as a binding requirement created by s 24(4a), and thus an obligation for the purposes of s 37(1)(d) of the Interpretation Act.
(b) If so, did that obligation continue to exist notwithstanding the repeal of the 1960 Act and if so, does the Tribunal have jurisdiction to deal with the Application under the 1960 Act?
The operation of s 37(1) of the Interpretation Act is subject to the manifestation of a contrary legislative intention in the repealing Act (that is, in the 2021 Act). A contrary intention must be clear in order to dispense with the saving effect of provisions such as s 37.[16]
[16] See, eg, Dossett v TKJ Nominees Pty Ltd (2003)218 CLR 1at [54]-[55].
In our view, nothing in the 2021 Act manifests an intention that the savings effect of s 37 should not apply to the obligation under s 24(4a) to obtain the Tribunal's leave before applying for registration.
As we have discussed, neither the 2021 Act itself, nor the transitional provisions, deal expressly with the situation where a veterinary surgeon, whose name was removed from the Register under the 1960 Act, seeks re-registration. Moreover, the fact that the 2021 Act contemplates that in the event of a cancellation of a person's registration, the Tribunal will specify the period before which the person can apply for registration again, speaks against any implication, in the 2021 Act, of an intention that the obligation under s 24(4a) should not have any continuing effect. After all, the practical effect of the obligation in s 24(4a) is that the Tribunal will, by the grant of leave, signal whether sufficient time has passed before which a person may apply for reregistration. Without the continued operation of s 24(4a), a person who was disqualified immediately prior to 18 June 2022 could seek registration under the 2021 Act immediately after its commencement on 18 June 2022, without effectively serving any period of disqualification before doing so.
There being no contrary intention manifested in the 2021 Act, s 37(1)(d) of the Interpretation Act has the effect that the obligation on the applicant under s 24(4a) of the 1960 Act was not affected by the repeal of that Act. Furthermore, by virtue of s 37(1)(f) of the Interpretation Act, the repeal of the 1960 Act did not affect any legal proceeding in respect of that obligation to obtain leave. The present Application is such a legal proceeding.
We are therefore satisfied that the Tribunal continues to have jurisdiction under s 24(4a) of the 1960 Act to determine the Application.
(c) If the answer to question (a) and question (b) is yes, should leave be granted to the applicant to apply to the Board for the restoration of her name to the Register?
We turn, then, to the question of whether leave should be granted to the applicant, under s 24(4a) of the 1960 Act, to apply to the Board for the restoration of her name to the Register.
The operation of s 24(4a) was considered by the Tribunal in Soemartopo.[17]As the Tribunal there noted, an application under s 24(4a) does not require the Tribunal to determine whether an applicant's name should be restored to the Register. The issue for the Tribunal is simply whether leave should be granted for the applicant to apply to the Board for restoration of their name to the Register.[18]
[17] Soemartopo [2010] WASAT 172 (Soemartopo).
[18] Soemartopo at [8].
Section 24 does not stipulate the criteria for the grant of leave. Whether leave should be granted will depend on all of the circumstances of a particular case. Considerations which may be relevant will include (but not necessarily be limited to):
(a)the time since the order leading to de-registration was made;
(b)the nature of the conduct which led to the removal of the applicant's name from the Register;
(c)the applicant's previous disciplinary history, and character, prior to their name being removed from the Register; and
(d)the conduct of the applicant since de-registration, and any evidence of rehabilitation.
Having regard to these considerations, we draw the following conclusions.
(a) The time since the order leading to de-registration was made
As noted, it has been just over two years since the applicant's name was removed from the Register. Disqualification for that period is a substantial penalty in itself. The evidence established that the disqualification has resulted in considerable financial hardship for the applicant. We note that that period of disqualification is double the minimum period of disqualification which applies under s 24(4) in circumstances where the disqualification arose from a party's commission of a criminal offence. That lengthy comparative period of disqualification favours the grant of leave.
(b) The nature of the conduct which led to the removal of the applicant's name from the Register
As the Tribunal in Soemartopo noted, s 24(4) of the 1960 Act expressly contemplated that the person whose name was removed from the Register might have their name restored.[19] While in some cases, the conduct leading to de-registration might be of such a character that it suggests permanent unfitness to undertake the responsibilities of a veterinary surgeon, there will be other cases where the conduct is serious enough to warrant removal from the register, but not permanently.
[19] Soemartopo at [9].
In the present case, the conduct which led to the finding that the applicant had engaged in unprofessional conduct as a veterinary surgeon was, at its heart, conduct involving dishonesty, in that the applicant misled the Board in response to its inquiries as to who had conducted certain surgical procedures. Honesty is an essential requirement for practice as a veterinary surgeon. Without it, the public can have no confidence in a veterinary surgeon personally, or in the profession generally. Further, the conduct in this case was not an isolated event. It involved four instances of misleading the Board, and three of those involved false statutory declarations. The nature of that conduct is very serious. If considered in isolation, we would have had some reservations as to whether leave should be granted for the applicant to make an application for restoration to the Register after only two years.
However, the evidence of the applicant in her second affidavit, as clarified by her counsel, identified that the applicant's dishonesty was not motivated by personal or financial gain, but rather was attributable to a desire not to implicate other veterinary surgeons, or staff of the relevant practice, in dishonest conduct themselves, and to her feeling under some pressure from two more senior veterinary surgeons (including her former de facto partner, who was also her business partner) not to correct the misinformation supplied to the Board. That explanation does not excuse the applicant's conduct, but goes some way to understanding her conduct. Furthermore, we bear in mind that while the applicant was not a young person at the time of the conduct in question, she was still a relatively junior veterinary surgeon and certainly was inexperienced in the management of a veterinary practice.
Absent that explanation as to the context in which the applicant engaged in the unprofessional conduct, we would have been loath to grant leave. However, the additional information provided has persuaded us to the view that the nature of the conduct is not so serious as to preclude an application for restoration to the Register at this stage.
(c) The applicant's previous disciplinary history, and character, prior to her name being removed from the Register
There was nothing in the evidence before us to suggest that the applicant had any prior disciplinary history. That being the case, the unprofessional conduct which led to her de-registration may be regarded as out of character.
That conclusion is also supported by a number of references provided in support of the Application, largely from people aware of the applicant's de-registration, and including from other veterinarians, which attest to the applicant's suitability for veterinary practice, commitment to the profession and general good character.
That evidence supports the grant of leave to permit the applicant the opportunity to apply for registration.
(d) The conduct of the applicant since de-registration, and her commitment to the profession
Since the removal of her name from the Register, the applicant has had occasion to reflect on her conduct, and is the wiser for that reflection. In her affidavit she expressed her deep shame for the conduct leading to her de-registration. We note that the veterinary practice in which the applicant and her former partner were involved is shortly to be sold, and in future, she will no longer be working with him. While de-registered, the applicant has also undertaken some professional development. It will, of course, be a matter for the Board, in response to any application by the applicant for restoration of her name to the Register, to make its own assessment of the evidence relevant to her contrition and remorse, and to her rehabilitation.
During the period of de-registration the applicant has worked in a different industry but remains committed to working in the profession for which she clearly has a passion.
These are all factors which support the grant of leave. Again, we express no view as to the weight which should ultimately be attached to them by the Board.
Given the seriousness of the unprofessional conduct, we have not found the question whether to grant leave to be an easy one. However, taking into account all of the circumstances, we are satisfied that leave should be granted. We emphasise, again, that the grant of leave does not constitute any expression of opinion as to whether an application to the Board should succeed. The grant of leave simply permits the applicant to put forward her case for registration, and for the Board to undertake its own assessment of the evidence to determine whether restoration of her name to the Register should be permitted.
Orders
The Tribunal orders:
1,The applicant has leave, pursuant to s 24(4a) of the Veterinary Surgeons Act 1960 (WA) to apply to the Veterinary Surgeons' Board of Western Australia for restoration of her name to the Register.
Annexure - Orders of the Tribunal dated 8 October 2020
On the application of the parties to settle the proceedings determined by Member Natasha Owen-Conway at mediation on 7 October 2020.
The Tribunal notes:
The applicant alleged that there is proper cause for disciplinary action against the first and second respondents under section 23(2a) of the Veterinary Surgeons Act 1960 (Act).
The facts and matters agreed by the parties are contained in Annexure A.
The Tribunal is satisfied that proper cause exists for disciplinary action against each of the respondents.
The Tribunal orders:
To give effect to the agreed terms of settlement, it is on 7 October 2020 ordered that:
1.the first respondent is guilty of unprofessional conduct as a veterinary surgeon;
2.pursuant to s.23(2aa)(e) of the Act, the name of the first respondent, Vandenbergh Veterinary Group Pty Ltd, be removed from the Register of Veterinary Surgeons, Western Australia with effect on 15 November 2020;
3.the second respondent is guilty of unprofessional conduct as a veterinary surgeon;
4.pursuant to s.23(2aa)(e) of the Act, the name of the second respondent, Anne-Maria Muffert, be removed from the Register of Veterinary Surgeons, Western Australia with effect on 15 November 2020; and
5.by no later than 31 December 2020, the first and second respondents pay the applicant's costs of this application fixed and agreed in the amount of $10,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
IH
Research Associate to the Honourable Justice Pritchard
21 DECEMBER 2022
0
5
4