Registrar of the Veterinary Surgeons Board of SA v Mooney - [2009] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
REGISTRAR OF THE VETERINARY SURGEONS BOARD OF SA v MOONEY AND THE VETERINARY SURGEONS BOARD OF SA
[2009] SADC 62
Judgment of His Honour Judge Tilmouth
5 June 2009
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
The Registrar brought disciplinary proceedings against the respondent alleging unprofessional conduct on the basis that he took x-rays of a horse without being licensed to do so. The Board dismissed the complaint.
Held: The Board erred in considering the allegation of unprofessional conduct in isolation rather than in the context of previous convictions for doing the same thing.
Observations as to the process of intervention conferred by Part 6 Division 2 of the District Court Act 1991.
Veterinary Practice Act 2003 s 61(1)(c); Radiation Protection And Control Act 1982 (SA); District Court Act 1991 (SA); District Court (Administrative and Disciplinary Division) Amendment Act 2000 (SA); Dental Board of South Australia v Reilly (2007) 251 LSJS 346; [2007] SASC 389; Mauro v Hooper [2008] SASC 159; Papps v Medical Board of South Australia (2008) 101 SASR 504; [2008] SASC 204; House v The King (1936) 55 CLR 499; Cransson v The King (1936) 55 CLR 509; Clarke v Burns [2008] SADC 148; Clarke v Commissioner of Police [2006] SADC 109; Clarke v Commissioner of Police (No 2) [2009] SADC 42, referred to.
Re R (a Practitioner in the Supreme Court) [1927] SASR 58; Reyes v Dental Board of South Australia (2002) SASC 239; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied.
Ziems the Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; New South Wales Bar Council v Cummins (2001) 52 NSWLR 279, discussed.
The Queen v Byrnes & Hopwood (1995) 183 CLR 501, considered.

REGISTRAR OF THE VETERINARY SURGEONS BOARD OF SA v MOONEY AND THE VETERINARY SURGEONS BOARD OF SA
[2009] SADC 62
Introduction

The Registrar of the Veterinary Surgeons Board of South Australia claims the respondent veterinarian Dr Graeme Mooney committed unprofessional conduct. The focus of the claim is the unlawful use of a machine to x-ray a horse. This is an appeal against a decision of the Board finding that this was not unprofessional conduct.
Factual Background
Dr Mooney was a veterinarian licensed until 30 December 2008 to practice under the Veterinary Practice Act 2003[1] and has been since 1964. There are two veterinary practices at Port Lincoln, one essentially catering for domestic animals. His practice specialised in larger animals, particularly horses and covered a significant portion of the Eyre Peninsula. He is an equine specialist.
[1] Hereafter "the Act"
In March 1989 he was convicted of being the owner of an ionising radiation apparatus (or x-ray machine) without being registered, contrary to s 32(1) of the Radiation Protection and Control Act 1982 (SA).[2] He was convicted in the Magistrates Court at Port Lincoln on 9 February 2004 of two similar offences and three further offences of operating an x-ray machine without being licensed, committed between December 2002 and March 2003. He was fined $2,500 plus court fees. The three operating offences carry a maximum penalty under s 31 of the Radiation Act of a fine of $10,000 for each offence. A forfeiture order was made with respect to the x-ray machine involved.
[2] Hereafter "the Radiation Act"
The sentencing Magistrate indicated that he took into account Dr Mooney’s pleas of guilty, his co-operation with official inquiries and the fact that he invested $4,000 to purchase the equipment and consequently that “as a result of this conduct, he put himself at a distinct disadvantage in providing veterinary services within the city and surrounding areas”.[3]
[3] Environment Protection Authority v Graeme John Mooney [2004] SAMC at [7]
Following those convictions Dr Mooney applied for a licence to operate an ionising radiation apparatus. This was refused. He lodged a further application on 4 March 2005 and was again refused in June 2005. A reconsideration of that refusal was disallowed on 28 July 2005 by the Radiation Protection Committee as constituted under the Radiation Act.
In October 2005 a Dr Forest was licensed to operate radiation equipment in the knowledge that she was intending to act as a locum in Dr Mooney’s veterinary practice. She remains in that situation at the present time. Dr Mooney purchased another x-ray machine in December 2005 when he was reminded that it could not be used unless operated by a licensed person.
The proceedings before the Board
A complaint was lodged by the appellant against Dr Mooney alleging that on 16 February 2006 he operated an ionising radiation apparatus to take an x-ray of a thoroughbred horse, when he was not licensed to do so. The Act constituted a Veterinary Surgeons Board of South Australia. This Board bears the statutory duty to hear and determine proceedings with respect to disciplinary action against veterinarians, the grounds for which include unprofessional conduct: s 61(1)(c). The Board duly conducted an enquiry into the complaint during May 2008. It delivered reasons dismissing the complaint on 17 November 2008.
The fact of the convictions under the Radiation Act as detailed above was not disputed before the Board. It was in addition, an accepted fact that Dr Mooney attended the thoroughbred horse Kane Smytzer on a property known as “Emu Downs” on 16 February 2006 and that he x-rayed the horse a number of times with the x-ray equipment belonging to the practice.[4] He was called out because the horse was lame and he considered it to have been in serious trouble. In fact he was of the view that it “might have to be put down”.[5] An examination drove him to the conclusion that the leg could be fractured as the x-ray revealed there was a line through the hock. He advised further x-rays should be taken.
[4] Transcript p 5-6
[5] Transcript p 28.29
The gravamen of the complaint of unprofessional conduct was using the x-ray equipment on 16 February 2006 without holding a licence as required by the Radiation Act. However it was made clear at the hearing before the Board by Ms Olsson for the Registrar, that this occasion should not be seen in isolation removed from its context. The complainant’s case was that seen against the background of six previous convictions under the Radiation Act, the further unauthorised use of x-ray equipment was particularly serious.
Ms Olsson argued:[6]
… as against the background of previous contact with this agency and with the courts, he has not learnt, I will be submitting, from that experience and has continued to just flout … the legislative requirements …
And again towards the end of her presentation:[7]
… in a nutshell it is the case for the Registrar that the acts of Dr Mooney, both on this particular occasion and having regard to his previous dealings … show … a person who has disregard for authority and law and has acted in his own interest in a professional sense, and that … there would be no doubt … that he has violated and fallen short of the standard of professional conduct observed of or approved by members of the profession of good repute and competency.
[6] Appeal Book p 32
[7] Appeal Book p 43-44
In response it was put to the Board by his counsel that the 1989 conviction related to a machine kept in a surgery at Birdwood, which was not operational. He eventually decided to relocate his practice from the Adelaide Hills to Port Lincoln, which he had been visiting regularly for a number of years beforehand. In relation to the 2003 convictions, it was claimed these were committed when he was in the process of permanently establishing himself there. He acquired the machine at considerable expense in the expectation of applying for a licence. He did not pursue the application because he thought it would be refused. His counsel Ms Nelson QC suggested this attitude was generated by a misapprehension on his part of the likelihood of the licence being granted or otherwise.
In an endeavour to overcome the problem, he employed Dr Forest who commenced working for him part-time. When this particular call was received she was not in the area. He understood from the horse owners in question that the situation was urgent. They owned a large number of expensive thoroughbred horses. Kane Smytzer was one of them.
Counsel for the appellant then took the Board through a number of cases concerning the meaning of unprofessional conduct. She conceded an appropriate test was one of conduct “reasonably held to violate or fall short to a substantial degree from the professional standards observed or approved of my members of the professional of good repute and competency”, based on the enduring decision of Re R (A Practitioner in the Supreme Court).[8]She submitted the proven facts did not qualify as such misconduct. Counsel further urged that this was an isolated incident giving Dr Mooney little choice other than to assist the animal in an emergency. Although she conceded he should not have breached the law, counsel concluded with the contention that “it is not appropriate for this tribunal to elevate that one trifling breach of the law to something which impunes his ability to carry out his profession …”.[9]
[8] [1927] SASR 58 at 60
[9] Transcript p 50
The reasons for decision of the Tribunal
After reciting the uncontentious facts, the Board proceeded to examine the authorities bearing upon the definition and meaning of “unprofessional conduct” as referred to in s 3 of the Act, in terms unexceptional. In the end it came to the conclusion “the Board does not find Dr Mooney has been guilty of unprofessional conduct”.[10]
[10] Appeal book p 84
The case for the appellant was predicated on the view that two underlying considerations led the Board to take this course. The first was that Dr Mooney had not been negligent in anything done by him on 16 February 2006 and that no harm was done by taking the x-ray. This is reflected in two passages in the reasons. The first being:[11]
In the case presently before us there has been no suggestion that Dr Mooney performed the x-ray procedure in a negligent or dangerous manner. Indeed, it appears that the safety measures required when operating such equipment were implemented by him. There is also no suggestion that his actions in undertaking the x-ray procedure either harmed or endangered the health of the horse.
[11] Transcript p 7.6, Appeal Book p 80
The second passage marching in the same direction, appears in the final two paragraphs of the reasons of the Tribunal:[12]
There is no evidence suggesting that Dr Mooney performed the x-ray task negligently or in a manner that placed either animals or humans in danger.
The operation of an x-ray machine by Dr Mooney in these circumstances where he did not have the requisite permit is certainly not desirable behaviour. However, in the absence of any evidence about harm caused to animals of persons by his actions, it does not, in the Board’s opinion amount to conduct which falls short of, to a substantial degree, the standards of professional conduct required to be observed by members of the veterinary profession of good repute and standing. It was not conduct which, in the Board’s opinion, amounts to improper conduct in relation to professional practice as required by the statutory definition of “unprofessional conduct” in the Veterinary Practice Act 2003.
For the reasons outlined above, the Board does not find Dr Mooney has been guilty of unprofessional conduct. The complaint is dismissed.
[12] Transcript p 10.9-11.1, Appeal Book p 83-84
The appellant contends the second basis determining the course of the Board’s resolution of the matter, relates to conduct outside the scope of professional misconduct. After quoting two passages from Ziems the Prothonotary of the Supreme Court of New South Wales[13] and Reyes v Dental Board of South Australia,[14] the Board made this observation of Ziems:[15]
While the case dealt with a barrister and as was submitted by Ms Nelson, cases involving unprofessional conduct and lawyers should be considered in a different category of other cases of unprofessional conduct because of the unique relationship lawyers are required to have with their colleagues and the Bench which arguably requires a much higher standard of professional conduct than that which might be required of other professions, it is nevertheless, a case, which in the Board’s opinion suggest that to find someone guilty of unprofessional conduct on the basis of personal misconduct is difficult and not lightly done.
[13] (1957) 97 CLR 279 at 290, Appeal Book p 81
[14] (2002) SASC 239
[15] Appeal Book p 82
Finally it made the further observation:[16]
It could be said that the action of x-raying animals in the course of providing a veterinary service falls within the first of the Spiegelman categories, that is, it is an act sufficiently closely connected with actual practice.
This was a reference to the judgment of Spiegleman CJ in New South Wales Bar Counsel v Cummins,[17] discussed later in these reasons.
[16] Appeal Book p 83
[17] (2001) 52 NSWLR 279
The appellate jurisdiction of the District Court
The appeal to this court is founded on the grounds of error, by regarding Dr Mooney’s conduct as occurring in a private or personal capacity, in considering there was no misconduct because no negligent harm was caused and because the intentional use of the x-ray equipment was not considered to amount to unprofessional conduct. This appeal, filed on 16 December 2008, seeks orders allowing the appeal, setting aside the order of dismissal, substituting a finding that Dr Mooney is guilty of unprofessional conduct and for the imposition of such other disciplinary sanctions as the court considers appropriate.
The predecessor to the District Court Act 1991 (SA)[18] was the Local and District Criminal Courts Act 1926 (SA). This was wholly repealed by s 3 of the Statutes Repeal and Amendment (Courts) Act 1991. The “Administrative Appeals” division of the court was erected under s 7 of the DCA. As of 1991 the jurisdiction and powers of the court were conferred by legislation outside the Act. The designation “the Administrative and Disciplinary Division” was inserted in lieu of the “Administrative Appeals Division”, by schedule 3 to the Land Agents Act 1994, in keeping with the new jurisdiction it conferred with respect to disciplinary proceedings under the Land Agents Act.
[18] Proclaimed to come into operation as from 6 July 1992, hereafter "DCA"
Under s 8(5) of the DCA, all proceedings before the court other than in its Criminal Division are civil proceedings. The present provisions of the DCA governing with administrative appeals are contained within Part 6 Division 2, by Act 4 of 2000 s 7, of the District Court (Administrative and Disciplinary Division) Amendment Act 2000 (SA) when ss 42A-42H were inserted for the first time. Thus the powers of intervention and disposition were by and large conferred by the DCA. The appellate jurisdiction itself remained conferred under special statute.
By s42E the court is clothed with the power of intervention on these grounds:
Conduct of appeal
42E(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.
The words “cogent reason” circumscribing the power of intervention in s 542E(3), are unique to South Australia. They later appear in the Dental Practice Act 2001 (SA) s 66(5) and the Medical Practice Act 2004 (SA) s 65(6), in each case furnishing powers of review to the Supreme Court on precisely the same terms as s 42E. There have been a number of appeals that Court under those sections, yet in none has the meaning of “cogent reason” fallen for consideration: Dental Board of South Australia v Reilly,[19] (“appealable error”), Mauro v Hooper[20] (the failure to articulate reasons led to “cogent reasons to depart from the Board’s finding”), and Papps v Medical Board of South Australia,[21] (“do not adequately explain how the Board used the material before”). In 2004 the Freedom of Information Act 1991 was amended by Act no.16 of that year to give similar powers of review in the District Court, from decisions made there under s 40(7).
[19] (2007) 251 LSJS 346; [2007] SASC 389 at [79]
[20] [2008] SASC 159; BC2008040548 at [36]
[21] (2008) 101 SASR 504, [2008] SASC 204 at [7]
Very little attention has been given to the meaning or operation of the s 42E criteria in this court. In the main it appears as if most judges have treated appeals under Part 6 Division 2, as being by way of rehearing. That is to say demonstrable error of law or fact or undisclosed error producing a result “unreasonable or plainly unjust”, must appear before intervention was justified: House v The King[22] and Cransson v The King.[23] The first case giving any attention to the meaning of “cogent reason” was Moore v Registrar of Medical Board.[24]It was there suggested that “in order to interfere … it is not necessary [to] identify some error in [the] exercise of discretion as required by House v The King[25] …the only constraint was that “cogent reason …” was present.
[22] (1936) 55 CLR 499 at 505
[23] (1936) 55 CLR 499 at 505
[24] (2002) 215 LSJS 133; [2001] SADC 106 at [43]
[25] (1936) 55 CLR 499 at 504-505, Judge Smith
In Clarke v Burns[26] the same judge considered appeals to this court were in the nature of re-hearings in the sense that the court is to determine whether the decision appealed against is correct at the time of the appeal. Once again Judge Smith concluded “the statute entitles this court to exercise its own discretion but only depart from the decision appealed against for “cogent reasons”. I respectfully agree. His Honour repeated those views in Clarke v Commissioner of Police[27] and in Clarke v Commissioner of Police (No 2).[28]
[26] [2008] SADC 248 at [19-20]
[27] [2006] SADC 109
[28] [2009] SADC 42
The adjective “cogent” describes an argument or reason clearly expressed and persuasive, compelling or convincing. There is no reason to read into the statute any more or less than it prescribes. In Project Blue Sky Inc v Australian Broadcasting Authority[29] McHugh, Gummow, Kirby and Hayne JJ remind us that “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.
[29] (1998) 194 CLR 355 at [78]
Obviously, then something more than mere disagreement with the decision below is required. Likewise unconstrained merits review would not be authorised. However providing “cogent reason” exists, the power to interfere is engaged. There is no threshold requirement to detect error, or to conclude the decision below was “unreasonable or plainly unjust … or that … a substantial wrong has in fact occurred”: House v The King,[30] before intervention is justified. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[31] Brennan J suggested on example of a cogent reason was when a decision would “work an injustice in a particular case”.
[30] (1936) 55 CLR 499 at 505
[31] (1979) 2 ALD 634
Conduct in private capacity

The appellant complains the Board erred in making findings wrongly regarding Dr Mooney as engaging in conduct of a private or personal kind. The Registrar particularly seizes upon the observation that a finding of unprofessional conduct “is difficult and not lightly done”. It is unclear whether towards the latter part of its reasons the Board gave effect to that observation. Apart from the quoted passages, it does not come back to the issue upon dismissing the complaint.
Duggan J in Reyes v Dental Board of South Australia[32] held that the ambit of unprofessional conduct was not restricted to acts or omissions occurring in the direct performance of professional tasks or duties. The concept went wider to include (a) acts sufficiently closely connected with actual practice or absence of qualities which are incompatible with, or essential for, the conduct of practice. In so ruling he applied New South Wales Bar Association v Cummins.[33]
[32] (2002) 83 SASR 551 at [33]
[33] (2001) 52 NSWLR 279
During the course of his judgment in that case Spigelman CJ said:[34]
There is authority in favour of extending the terminology ‘professional misconduct’ to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of ‘professional misconduct’ overlaps with and, usually it is not necessary to distinguish it from, the terminology of ‘good fame and character’ or ‘fit and proper person’.
[34] At [56], Mason P and Handley JA agreeing
The Board’s observations quoted earlier, to the effect that the action of taking an x-ray could be said to fall “within the first of the Spieglmann categories”,[35] strongly suggests if anything, that it made a finding that “it is an act sufficiently closely connected with actual practice”.[36] That being so, it was not demonstrated the Board fell into error or that any identifiable cogent reason emerges justifying departure from the Board’s decision.
[35] Appeal Book p 83
[36] Appeal Book p 83
It must be said however that if the Board had made a finding that what Dr Mooney did on 16 February 2006 occurred in a private or personal capacity, it would clearly have been wrong. There was no evidence suggesting Dr Mooney was acting in any other than a professional capacity. The service he provided was plainly of a professional veterinary nature. The Board identified no underlying facts to support any other conclusion. Furthermore, no such claim or submission was made that this was a personal endeavour by his counsel before the Board, and Dr Mooney who represented himself before this court, made no such claim either.
Unprofessional conduct?
It can be seen from the passages in the Board’s reasons also quoted above, the dual considerations that there was no suggestion the subject x-ray was performed in a negligent or dangerous manner and that no harm was done, controlled the final conclusion that unprofessional conduct was not established. For the present purpose the fact that he was not otherwise negligent or caused no harm may be accepted. In so proceeding, it is apparent the Board took the incident of 16 February and made its determination in isolation based solely on those events. It can be acknowledged that the Board duly recited the history of the previous incursions committed by Dr Mooney in the earlier part of its reasons:[37]
It is the Registrar’s position that Dr Mooney has had previous contact with the agencies responsible for the administration of the Radiation Protection and Control Act and with the Courts in relation to breaches of that legislation by Dr Mooney and yet he does not appear to have learnt from those experiences. In Ms Olsson’s submissions Dr Mooney has continued to flout the legislative requirements.
This Board is therefore required to consider whether Dr Mooney’s actions in undertaking an x-ray of a thoroughbred horse in circumstances when he was not licensed to operate that x-ray equipment (as required by the Radiation Protection and Control Act 1982) are sufficient to constitute unprofessional conduct for the purposes of the Veterinary Practices Act 2003.
[37] Appeal Book p 78
These passages appear on the first reading to indicate the Board was considering the particular conduct alleged in the context of the background breaches. But on re-examining the reasons as a whole, it is clear enough that the Board ultimately considered that complaint in complete isolation from the prior conduct. This fault surfaces towards the end of the Board’s deliberations upon reaching its ultimate conclusion in the passages quoted earlier.
There were wider and significant policy issues the Board was required to bear in mind. The Radiation Act provides a regime for the use of radiation equipment by professional people in prescribed classes. Veterinary surgeons are one such class. Its purpose is to control the use of x-ray machines because of the harmful effects of radiation. Hence the use of such machines is prohibited to other than accredited users in prescribed occupations. This purpose is expressed in the long title of the Radiation Act which reads:
An act to provide for the control of activities related to radioactive substances and radiation apparatus and for protecting the environment and the health and safety of people against harmful effects of radiation: and for other purposes.
The Act defines “unprofessional conduct” in s 3 in these non-exhaustive terms:
Unprofessional conduct includes –
(a)     improper or unethical conduct in relation to professional practice; and
(b)     incompetence or negligence in relation to the provision of veterinary treatment; and
(c)     a contravention of or failure to comply with –
(i)    a provision of this Act; or
(ii)     a code of conduct or professional standards prepared or endorsed by the Board under this Act; and
(d)conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law;
These definitions incorporate the common law test of unprofessional conduct defined in Re R A Practitioner referred to above. Such conduct is not limited to incompetence or negligence and yet the Board appears to have decided the complaint exclusively on those grounds. The impugned conduct of Dr Mooney was not so much dependent upon illegally using an x-ray on a one-off occasion in the pressure of the circumstances, but rather that he did so in the knowledge that he had been convicted of the other offences in the past. Seen in that context, the particularised act – whatever the exigencies were – was both an intentional and a contumelious disregard of the provisions of the Radiation Act.
The test of improprietary is an objective one, consisting “in the breach of the standards of conduct that would be expected of a person in the position of [the veterinary surgeon] by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case”: The Queen v Byrnes & Hopwood.[38]
[38] (1995) 183 CLR 501 at 514-515
Put another way, what was done by Dr Mooney, could only be objectively regarded as “disgraceful or dishonourable by his professional brethren of good repute and competency”: In Re (A Practitioner of the Supreme Court).[39]Furthermore as explained in Reyes v Dental Board of South Australia,[40] an allegation of unprofessional conduct must be considered against the total context. This the Board did not do in this instance.
[39] (1927) SASR 58 at 60
[40] Above at [48]
Miscellaneous issues
During the course of the appeal and subsequently in a written submission, Dr Mooney put various matters to the court pertaining to his relationship with the particular clients concerned, his difficulties with the authorities concerning the requirements for obtaining authorisation under the Radiation Act and as to subsequent restrictions on his ability to practice. Such matters are irrelevant to the present decision. The court is constrained to deliberate on the appeal “on the evidence or material before the original decision-makers” relevant to the complaint: s 42E(2)(b). It remains to be seen whether such matters might conceivably become relevant as to the final disposition of the appeal and the nature of the appropriate disciplinary action.
Conclusion and orders
There can be no doubt that by committing the act of taking an unlawful x-ray in February 2006, given the convictions for having done the same thing on three previous occasions, and two other convictions for related offences, constituted unprofessional conduct. The impinged conduct was also improper in relation to professional practice, because this was a professional service and because veterinarians may only qualify for authorisation to operate x-ray machines, because of their capacity as veterinarians.
On that account there are cogent reasons for setting aside the decision of the Board and substituting in its stead, a finding that by taking x-rays of the hock of the horse Kane Smytzer on 16 February 2006 without being licensed to do so, Dr Mooney committed an act of unprofessional conduct.
As the parties agreed to postpone their submissions concerning the disposition of the appeal until after the court delivered its reasons on the aspect of unprofessional conduct, the matter will be adjourned to a date convenient to both, so that can occur.