Registrar of the Veterinary Surgeons Board (SA) v Mooney & the Veterinary Surgeons Board (SA) (No 2) - [2009] SADC 69

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE VETERINARY SURGEONS BOARD (SA) v MOONEY & THE VETERINARY SURGEONS BOARD (SA) (No 2)
[2009] SADC 69
Judgment of His Honour Judge Tilmouth
22 June 2009
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE
Discussion of options for disposition following a finding of unprofessional conduct on appeal and the appropriate disciplinary measures.
Veterinary Practice Act 2003 (SA) s3, s61(1)(c), s66; District Court Act 1991 (SA) Part 6, Sub-division 2, s42F, s42G; Veterinary Practice Act s23, s62(4); Kovalev v Minister for Immigration and Multicultural Affairs (2002) 100 FCR 323, referred to.
Craig v Medical Board of South Australia (2000) 79 SASR 545; Moore v Registrar of Medical Board (No 2) (2002) 219 LSJS 448; [2001] SADC 141, applied.

REGISTRAR OF THE VETERINARY SURGEONS BOARD (SA) v MOONEY & THE VETERINARY SURGEONS BOARD (SA) (No 2)
[2009] SADC 69
Preliminary

The court delivered judgment in this matter on 5 June 2009 finding Dr Mooney committed an act of unprofessional conduct within the meaning of s 3 and s 61(1)(c) of the Veterinary Practice Act 2003 (SA).[1] This consisted in taking an x-ray of a horse on 16 February 2006 without being the holder of a licence under the Radiation Protection and Control Act 1982 (SA). The gravamen of the unprofessional conduct resides in the fact that Dr Mooney had been found guilty of a number of similar offences in the past. The court indicated it would postpone the question of disposition which is now called upon to consider.
[1] [2009] SADC 62
Disposition
Rights of appeal are conferred by s 66 of the Veterinary Practice Act, however the powers of disposition are vested under Part 6 Sub-division 2 of the District Court Act 1991 (SA), powers exercised by the court sitting in its administrative and disciplinary division. By s 42F thereof, the court may (a) affirm the decision on appeal, (b) rescind the decision and substitute one the court considers appropriate or (c) remit the matter to the original decision maker for consideration, the Veterinary Surgeons Board of South Australia in this case.
The court exercises an unfettered discretion to deal with discipline or to remit matters. It should ensure which course is most appropriate in all the circumstances of a particular case: Kovalev v Minister for Immigration and Multicultural Affairs.[2] In this particular instance both parties urged the court to dispose of the matter rather than remit it. From the point of view of the Registrar, proceedings had been protracted enough already. There was some delay between the laying of the complaint and final resolution, so she was anxious to put proceedings to an end. For his part Dr Mooney (who again was self-represented) was of a similar mind as he was desirous of knowing where he stood. Whilst on some occasions it would be appropriate to remit disciplinary issues to a specialist tribunal, this is not one of them. The court therefore proposes not to take that course.
[2] (1999) 100 FCR 323 at [13-14] per French J
The power to discipline
In exercising the power to substitute its own decision, the court is confined to the powers available to the Veterinary Surgeons Board. Those powers derive from s 62(4) of the Veterinary Practice Act, which is necessary to set out in full in order to appreciate the options available to the court. That section reads:
(4)     If, after conducting an inquiry under this section, the Board is satisfied that there is proper cause for taking disciplinary action against the respondent, the Board may, by order, do one or more of the following:
(a)     censure the respondent;
(b)require the respondent to pay to the Board a fine not exceeding $10 000;
(c)if the respondent is a veterinary surgeon—impose conditions on the respondent's registration restricting the respondent's right to provide veterinary treatment;
(d)if the respondent is registered on the general register but not on the specialist register—
(i)suspend the respondent's registration on the general register for a period not exceeding 1 year;
(ii)    cancel the respondent's registration on the general register;
(e)     if the respondent is registered on the specialist register—
(i)suspend the respondent's registration on the specialist register or in a particular specialty, or on both the general register and the specialist register, for a period not exceeding 1 year;
(ii)cancel the respondent's registration on the specialist register or in a particular specialty, or on both the general register and the specialist register;
(f)disqualify the respondent from being registered on the general register or specialist register or in a particular specialty or on both the general register and the specialist register;
(g)prohibit the respondent from carrying on business as a veterinary services provider;
(h)prohibit the respondent from occupying a position of authority in a trust or corporate entity that is a veterinary services provider.
It can be seen that there are free standing powers to censure or fine (subject to an upper limit of $10,000): ss 4(a) and (b), and to disqualify or prohibit the veterinary surgeon from holding registration under the Act: ss 4(f) and (g). There are additional powers in the case of veterinary surgeons who happen to be registered at the time of the disciplinary action, to suspend or cancel registration: ss 4(c) and (d).
It so happens that Dr Mooney has not been registered under the Veterinary Practice Act since 30 December 2008. The court was informed the Veterinary Surgeons Board took the view that he was not a fit and proper person to be registered and declined to renew his registration, as it was entitled to under s 32. The court was also told he had failed to meet the requirements of s 36(2)(b) obliging him to return prescribed information in relation to courses for continuing veterinary practice education. The Board exercised its statutory discretion not to re-register him, for those reasons and because the appeal to this court was outstanding.
Discipline – the merits
In the circumstances of this case then, the discrete misconduct by Dr Mooney comprised of taking unauthorised x-rays in the context of a number of prior offences under the Radiation Protection and Control Act. Dr Mooney has also been before the Board on other occasions, the first of them in 1996 and the last in 2001. These related to professional misconduct of a different kind - essentially the inadequate treatment of animals. He received a variety of penalties for these, ranging from sanctions, conditions that he undertake specified courses, fines and on the most recent appearance, a six month suspension of registration was imposed, suspended on the condition that “he was not found guilty of non-professional conduct within a period of two years from 16 November 2004”. These penalties became incrementally more severe over time.
The court sitting in the shoes of the Board is precluded from suspending or cancelling registration or from imposing any conditions, because they are only available if in fact he is registered. There is another consideration. Dr Mooney has an application for re-registration on foot, but it is not known how long it would take for that to be determined or what the outcome would be. If it turned out to be a protracted exercise, then any period of disqualification or prohibition the court imposes, might be rendered nugatory, particularly if it corresponded with the time frame required to resolve the application for registration.
As against that, since he is unregistered, a means of income is denied to him. That places Dr Mooney in somewhat of a difficulty, in being in a position to repay any fine that might be imposed. He told the court he held assets by way of a house: the value is not known. The implication was that it might be available to assist in paying a fine. Matters are compounded by the application on behalf of the appellant for costs, both of the hearing before the Board and on Appeal.
It is not possible to tailor disciplinary action which can either forebode or ignore the outcome of the application for re-registration. The court must do the best it can to impose a penalty which befits the professional misconduct concerned. In that respect it must be born in mind that these are civil proceedings. The disciplinary action is not primarily designed to punish, but to protect the relevant profession and maintain public confidence, by emphasising to the veterinary profession and the public that the impugned conduct is not acceptable: Craig v Medical Board of South Australia.[3]
[3] (2000) 79 SASR 545 at [57] per Doyle CJ (Williams and Martin JJ agreeing)
In the difficult circumstances of this case the court therefore proposes to proceed by way of both disqualification and a fine, in the hope that this will provide a fair and just sanction in the rather unique circumstances. Dr Mooney would be well advised to reconsider the following advice of the Board:[4]
Nevertheless, Dr Mooney’s failure to comply with the statutory obligations to obtain the required permit has resulted in considerable inconvenience for him and others. With hindsight, he may well reflect that his antipathy to the regulatory authority responsible for the issuing of permits to operate x-ray machines has caused him to take what can only be described, at best as an unwise approach, and at worst a foolish or even obtuse attitude to the regulatory requirements.
[4] Appeal Book p 83
In all the circumstances the court determines that Dr Mooney should be required to pay a fine of $6,000, and that he is to be disqualified pursuant to s 62(4)(f) from being registered in any capacity under the Veterinary Practice Act, for a period of three months, effective immediately. Dr Mooney should be allowed six weeks in which to pay the fine or such other further period as the Registrar of the Board may determine.
Costs orders
The power to award costs, derives from two completely different statutory sources. Pursuant to s 23 of the Veterinary Practice Act the Board may award such costs against a party as it considers just and reasonable. Under ss 23(2) a party dissatisfied with the amount so fixed may request a Master of the Supreme Court to review that order after taking a taxation of costs. This assumes such costs are in the nature of party and party legal costs, rather than for example costs of investigation or administration.
In the table of penalties previously imposed on Dr Mooney provided by Ms Olssen, it appears the Board regularly made orders for costs. She advised the court that total costs involving both sets of proceedings were roughly in the order of $15,000. The hearing by the Board occupied one day, and there was a pre-hearing conference, as well as drafting the complaint and preparation of the case. In all the circumstances given the quantum involved in previous orders made by the Board, the court orders costs against Dr Mooney for the proceedings before the Board of $5,000. Dr Mooney should be allowed three months in which to pay these costs or such other further period as the Registrar may determine.
Matters stand quite differently when it comes to costs in this court. The power to award costs is governed by s 42G of the District Court Act. This provides “no order for costs is to be made unless the court considers such an order to be necessary in the interests of justice”. The “default” position therefore is to deny entitlements to costs, even to successful parties. This limitation applies except when an unusual or out of the ordinary feature makes it necessary in the interests of justice to order costs: Moore v Registrar of Medical Board (No 2).[5]No such consideration was identified in this case. Accordingly there will be no order as to costs of the appeal.
[5] (2002) 219 LSJS 448; [2001] SADC 141 at [16-17] Judge Smith
The orders of the court therefore are as proposed.