Sutherland v Minister for Agriculture, Food & Fisheries
[2015] SADC 8
•6 February 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against the Veterinary Surgeons Board of South Australia)
SUTHERLAND v MINISTER FOR AGRICULTURE, FOOD & FISHERIES
[2015] SADC 8
Reasons for Decision of His Honour Judge Cuthbertson
6 February 2015
ADMINISTRATIVE LAW
Review of finding of unprofessional conduct by Veterinary Surgeons Board of South Australia – Whether the Board has power to suspend the operation of an order contingent upon future conduct - Whether the Board has power to order interest on costs and fine imposed by the Board – Whether the Board took into account irrelevant and inadmissible material - Whether order for costs of $50,000 was just and reasonable - Whether fine of $10,000 was manifestly excessive.
HELD:
1. The Board has no power to suspend the operation of an order suspending a prohibition from practice contingent on future good behaviour.
2. The Board has no power to order interest on an order for costs or a fine.
3. The Board erred in taking into account allegations of misconduct which were not proceeded with.
4. An award against the appellant of $50,000 on account of costs was unjust and unreasonable.
5. A fine of $10,000 was manifestly excessive.
6. Parties to be heard as to appropriate sanctions.
Veterinary Practice Act 2003 (SA) s 23 & s 62; District Court Act 1991 (SA) s 39, s 40, 42E & 42F; Offenders Probation Act (1913 - 1971) (SA) s 4; Supreme Court Act 1935 (SA) s 30C; Spent Convictions Act 2009 (SA) s 10; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Weaver v Law Society (NSW) (1979) 142 CLR 201, considered.
SUTHERLAND v MINISTER FOR AGRICULTURE, FOOD & FISHERIES
[2015] SADC 8Introduction
The appellant is, at all relevant times, a veterinary surgeon holding registration on the general register of veterinary surgeons pursuant to the Veterinary Practice Act 2003 (SA) (the ‘Act’).
By complaint dated 4 April 2013 to the Veterinary Surgeons Board of South Australia the respondent alleges that the appellant was guilty of unprofessional conduct. A hearing was conducted commencing on 1 November 2013 before the Veterinary Surgeons Board of South Australia. On 25 February 2014 the Board delivered findings in which it concluded that the appellant was guilty of unprofessional conduct and imposed sanctions.
The appellant had admitted the factual allegations contained in paragraphs 1, 2, 3, 4, 8, 9 and 11 of the complaint. Allegations in paragraphs 5, 6, 7, and 10 were not proceeded with.
Sanctions imposed by the Board included the following:
1. A censure to be published on the Board’s website and in the Board’s newsletter.
2. A fine of $10,000.
3. Suspension of registration on the general register for 8 months with all but 4 weeks of the suspension being suspended for 5 years subject to a good behaviour bond for that period (I am informed that the appellant has already served the 4 weeks suspension).[1] Any further finding of unprofessional conduct to lead to the balance of the period of suspension to be served. The suspension from the general register to commence on 14 April 2014 to 13 May 2014.
4. An order that the appellant pay the respondent $50,000 on account of costs.
5. An order that the appellant pay interest on the fine and costs.
[1] See T5.
The appellant, who is not now legally represented, has appealed against the findings and orders of the Board.
By notice dated 6 June 2014 the respondent has filed a Notice of Cross-Appeal against the findings and various orders made by the Board.
Due to the fact that the appellant’s grounds of appeal were not professionally drawn and the fact that the cross-appeal asserted various errors made by the Board which, if accepted, might lead to a reconsideration of all the orders made by the Board, I found it convenient to deal with the cross-appeal before dealing with the appeal.
Grounds of Cross Appeal
The grounds of the cross-appeal are as follows:
1. The Board had no power to suspend the operation of an order that the appellant’s registration on the general register be suspended.
2. The Board had no power to order the appellant to pay interest on the costs order and fine imposed by the Board.
3. The Board erred in taking into account a conviction in the District Court of South Australia for a criminal offence.
4. The Board erred in taking into account the allegations in particulars 5, 6, 7 and 10 of the complaint in circumstances where those particulars had been withdrawn and no evidence tendered in relation thereto.
The respondent seeks orders that the findings and orders of the Board be rescinded, that the orders made as to the fine and costs and interest thereon be rescinded and that this Court substitute its own decision as to the proper disciplinary action to be taken.
If the respondent is correct in its submissions and the decision as to the proper disciplinary action to be taken was to become a matter for me there would be no need to hear the appeal of the appellant.
Accordingly, I shall first consider the grounds of cross-appeal of the respondent.
I bear in mind the provisions of s 42E of the District Court Act 1991 (SA).
Principles to be considered on appeal
42E—Conduct of appeal
(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 reasons.
1. Whether the Board had power to order that the operation of the order suspending the appellant’s registration on the general register be suspended.
Section 62(4)(d) of the Veterinary Practice Act 2003 provides that the Board may,
(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;
It is the respondent’s contention that while there is a specific power provided in the Act for suspension of the respondent’s registration on the general register no express power is provided for suspending the operation of the order of suspension contingent upon future circumstances.
The only issue can be whether the Board has an implied power to suspend the operation of orders suspending the registration on the general register.
It is submitted by the respondent that s 62(5) gives specific powers to the Board in certain circumstances to qualify orders it makes, including under s 62(5)(b) that an order have effect at a specified future time but that this provision does not authorise the making of suspended orders analogous with a suspended sentence in criminal proceedings in South Australia.
I agree with the submission.
In my view there is no power in the Board to suspend orders it makes analogous with the suspended sentence provisions in criminal proceedings in South Australia[2] contingent upon future events.
[2] See s 38 of Criminal Law (Sentencing) Act 1988 (SA).
The power to suspend a sentence in a criminal matter came into operation in South Australia by virtue of s 4(2a) of the then newly enacted Offenders Probation Act (1913 – 1971) (SA) in March 1970. Prior to that it was not possible for the Supreme Court of South Australia to suspend sentences that it imposed. If the Supreme Court of South Australia lacked the implied power in sentencing to impose a suspended sentence then it is unlikely that the Veterinary Surgeons Board, a creature of the Veterinary Practice Act, would have such an implied power.
The fact that the legislature in s 62(5) found it necessary to list circumstances that the Board might stipulate as conditions governing the application of a disqualification or prohibition under sub-section 4 the Act confirms that it was considered that there were no implied powers surrounding the power to suspend and / or cancel registration under sub-section 4. If the implied powers existed there would be no need for s 62(5).
I note also the reasons expressed by Doyle CJ in Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145. In that case a licensed security agent, under the Security and Investigation Agents Act (1995) (SA) was convicted in the Magistrates Court of Assault. Disciplinary orders were sought pursuant to s 29 of that Act and the District Court, on the hearing of the complaint, granted an adjournment of the proceedings for a period of one year stating that, if at the end of that period,
“there had been no more trouble, we will not cancel the licence”.[3]
[3] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 146.
This is akin to the procedure recognised in the criminal law in South Australia as a “Griffiths remand”.
Doyle CJ held that the decision of the District Court to adjourn for the purpose of considering whether further misconduct by the agent had occurred during the period of the adjournment was not a proper exercise of the discretion to adjourn proceedings. He pointed out that the proceedings in the District Court were not in the nature of criminal proceedings and what had occurred was inappropriate in disciplinary proceedings.
The decision made by the Court appears to me to be like the sort of decision that might be made by a Court in sentencing proceedings, of the type often called a “Griffiths remand”; see Griffiths v The Queen (1977) 137 CLR 293 at 306 per Barwick CJ. Such an approach is not appropriate in disciplinary proceedings. The considerations are different. A decision to defer sentence in criminal proceedings is based very much on considerations of reform and on prospects of rehabilitation. Such matters are of little relevance in disciplinary proceedings, when the focus is on the protection of the public.[4]
[4] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 149.
His Honour concluded,
I realise that it is exceptional for a Court to review and reverse a decision to adjourn proceedings. In my opinion the decision that the Court made is with respect, erroneous in principle, in the circumstances of this case. I wish to emphasise that my view is not that disciplinary proceedings could never be adjourned for the sort of purpose for which they were adjourned in this case, but that in the circumstances of this case there are no proper grounds for doing so.[5]
[5] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 150.
In my view the Board had no power to suspend the operation of part of its order suspending the respondent’s registration on the general register of veterinary surgeons as the proceedings are disciplinary and not criminal proceedings.
The respondent should have had his registration suspended for such period as the Board thought appropriate having regard to the disciplinary nature of the proceedings. If further conduct requiring disciplinary action was to occur, disciplinary action should be determined on its merits at the relevant time as the subject of a new complaint and not by a previously made but suspended period of suspension of registration automatically applying by virtue of some order made by this Board.
I would therefore quash the order of the Board imposing a suspension of registration on the general register for eight months together with the rest of the order.
2. Whether the Board has power to order the appellant to pay interest on the costs order of $50,000 and fine of $10000.
On 17 March 2014 at a hearing before the presiding member of the Veterinary Surgeons Board an order was made that pending the resolution of an application by the respondent for more time to pay the $10,000 fine imposed by the Board and the $50,000 contribution to the Minister’s costs that interest run at the Supreme Court rate.
The Act contains no express power to impose interest in relation to either fines or costs.
Fines
The power to impose a fine is contained in s 62(4)(b) of the Act. Sections 62(7), (8) & (9) provide powers incidental to the imposition of fines.
The Act is silent on the question of whether interest may be awarded on unpaid fines.
Costs
The power to award costs is contained in s 23 of the Act.
The Act is silent on whether there is any power to award interest on an award for costs.
The power for the superior Courts to award interest both pre-judgment and post-judgment is expressly provided in s 30C of the Supreme Court Act 1935 (SA) and sections 39 and 40 of the District Court Act 1991 (SA).
It has not been argued that there is an inherent power in the Board to make orders as to interest on orders for costs. In my view the Board has no inherent or implied or incidental power to order the appellant to pay interest on the order for costs or on the fine. I quash the orders for costs and the order for interest on the costs and the fine.
3. Whether the Board erred in taking into account a conviction in the District Court of South Australia for a criminal offence.
It is asserted that the Board erred in law by relying on the District Court finding of guilt in criminal proceedings as a ground for suspending Dr Sutherland’s registration on the general register contrary to the Spent Convictions Act 2009 (SA) s 10(d)(iii) of the Act.
As the matter was raised by neither party before the Board and the error at best was a technical mistake which would not have caused any error in relation to the ultimate finding that there was proper cause for disciplinary action and the basis for it, I do not propose to deal with it. The issue is entirely theoretical.
4. Whether the Board erred in considering and making findings in respect of particulars 5, 6, 7 & 10 of the complaint in circumstances where those particulars had been withdrawn and no evidence tendered in relation thereto
The relevant particulars are as follows:
5. Operating a veterinary clinic without Council approval and meeting minimum standards set by the Board
5.1 On 20 May 2009, The Respondent submitted with the District Council of the Copper Coast (“the Council”) a development application seeking permission to establish a veterinary clinic at 3 Digby Street, Kadina.
5.2 On 16 June 2009, the Respondent took out an advertisement in the YP Country Times announcing that “Dr Kym’s Vet Services” would have an open day on 5 July 2009 with an official opening on 6 July 2009.
5.3 Prior to the official opening of the Respondent’s veterinary practice on 6 July 2009, a staff member of the Council, Ms Fiona Barr, had advised the Respondent that no approval had been granted as the necessary approvals and/or referrals required under the Development Act 1993 had not yet been obtained and that the veterinary clinic could not operate until such time as they were. Ms Barr further identified, and raised with the Respondent, concerns that the proposed veterinary practice did not meet minimum acceptable standards for veterinary premises as endorsed under the Act, namely:-
(i)the lack of a basin with hot and cold running water and fixed drainage in each consulting area;
(ii)the lack of storage for veterinary instruments and facilities for their sterilisation;
(iii)the lack of secure storage for drugs as required under the Controlled Substances Act 1984;
(iv)the lack of facilities for any excreta, putrescibles waste, soiled bedding and carcasses to be stored in such a way and disposed of at intervals to avoid the generation of odours, offensive appearance and those materials becoming a hazard to health; and
(v)the lack of adequate facilities for cooling, heating and ventilation in any area in which any kennel, cage or stall is situated.
5.4 Despite the intimations by Ms Barr that no approval for the proposed veterinary clinic had been granted and the concerns raised by her that the proposed clinic did not meet minimum acceptable standards for veterinary premises, the Respondent proceeded to open and operate the practice from 6 July 2009.
5.5 Further concerns were raised, namely that:
(i)the veterinary practice did not have telephone contact details and adequate arrangements for obtaining after hours service; and
(ii)the veterinary practice did not have appropriate facilities in place as required under the Board’s Code of Practice for the Operation of Boarding Establishments despite taking out advertisements offering a boarding service.
6. Conduct in relation to Mr Rodger Pidgeon
6.1 At all material times Mr Rodger Pidgeon was the owner of a dog by the name of Rascal.
6.2 Between 2 and 5 September 2009, the Respondent provided veterinary treatment to the dog Rascal.
6.3 On 5 September 2009, Mr Pidgeon elected to have the dog Rascal euthanized on the Respondent’s advice and recommendations.
6.4 At approximately 9.15 am on a morning in about June 2010, the Respondent attended at the residence of Mr Pidgeon, in the company of another person, to demand the payment of a bill relating to the treatment of the dog Rascal. Specially, at approximately 9.15 am on the said occasion, the Respondent attended at a residential premise [sic] located at 14 Scotland Street, Wallaroo, in the company of another male, Leroy Morris, and spoke to a female occupant of the house, Ms Kirsty Nourse. The respondent asked to speak with Mr Roger Pidgeon, but upon being advised that Mr Pidgeon was not present at the address the Respondent became angry and shouted at Ms Nourse and demanded information about Mr Pidgeon. The Respondent requested Ms Nourse to “tell Roger that if he pays the money today it’ll all be over”. On that occasion, the Respondent presented in an angry state and smelt of alcohol.
6.6 The Respondent’s actions, particularly his attendance at the premises with Leroy Morris, were designed to intimidate and instil fear.
7. Failure to spay the cat Pudden
7.1 At all material times Ms Sonya Retallick was the owner of a female cat by the name of Pudden.
7.2 On 9 April 2010, Ms Retallick brought Pudden, together with four other cats, into the Respondent’s Kadina veterinary practice for the purpose of desexing Pudden, together with two other female cats, were to undergo feline spaying, a procedure which involves the surgical removal of a female cat’s ovaries and uterus.
7.3 The Respondent recorded in his records as having performed “all routine spays” on the female cats brought in by Mrs Retallick on 9 April 2010.
7.4 On 10 April 2010, Ms Retallick brought the cat Pudden back to the Respondent’s Kadina veterinary practice after the cat had chewed through her stitches. On that occasion, the Respondent restitched the cat Pudden. No notes or records were made by the Respondent in relation to this procedure.
7.5 On 11 October 2010, the cat Pudden delivered four kittens.
7.6 On 12 October 2010, Ms Retallick attended at the Respondent’s Kadina veterinary practice and informed him that the cat Pudden had given birth to four kittens. After some discussion, the Respondent agreed to refund the amount paid for the spaying of the cat Pudden, and to have the procedure done by another clinic. Despite this, the Respondent has yet to reimburse Ms Retallick as agreed.
7.7 The failure to reimburse Ms Retallick as promised was unethical and improper as it was conduct likely to reflect adversely on the veterinary profession.
7.8 The spaying of the cat Pudden was performed by the Respondent in a manner which was negligent and / or incompetent.
10. Failure to assess the dog Choke and to administer adequate pain relief in a timely manner
10.1 At all material times Mr Jake Farquhar and Mrs Jody Farquhar were the owners of a dog by the name of Choke.
10.2 At about 8.30 am on 28 July 2010, Mr and Mrs Farquhar brought the dog Choke into the Respondent’s veterinary practice after observing that the dog was not walking properly and appeared to be in considerable pain. Mr and Mrs Farquhar left the dog choke with the Respondent, requesting the Respondent to administer painkillers to the dog. The Respondent assured Mr and Mrs Farquhar that he would.
10.3 At approximately 1.30 pm on 28 July 2010, after she had not heard from the Respondent, Mrs Farquhar telephoned the Respondent to enquire into the condition of the dog Choke. During the telephone conversation the Respondent advised Mrs Farquhar that he had not yet looked at or assessed the dog Choke and that he would do so within the next 20 minutes.
10.4 At about 2.00 pm on 28 July 2010, the Respondent telephoned Mrs Farquhar and advised that there was an issue with three discs in the dog Choke’s back and that the dog would have to be euthanized. When Mrs Farquhar asked whether the dog Choke had been administered painkillers, the Respondent simply told her that the dog had just come out of the anaesthetic and that she could come and collect the dog and bring it back the following Monday to be destroyed. The Respondent further stated to Mrs Farquhar that other than taking the dog Choke to see a specialist in Adelaide, which would costs [sic] approximately $10,000, there was nothing else he could do for it.
10.5 At about 5.30 pm on 28 July 2010, Mrs Farquhar telephoned the Respondent’s veterinary practice to enquire into the condition of the dog Choke, but her call was unanswered.
10.6 In the morning of 29 July 2010, Mrs Farquhar attended at the veterinary practice of the Respondent to collect the dog Choke. Mrs Farquhar found the dog Choke lying on a urine soaked blanket without any food or water. When Mrs Farquhar went to pick it up, the dog Choke yelled in pain and she insisted that the dog Choke be provided with painkillers before she took it home. Mrs Farquhar was advised by Ms Christine Pengilly, a nurse at the veterinary practice, that the Respondent would not be in that day as he was getting married. Ms Pengilly subsequently managed to contact the Respondent, who instructed her to administer pain medication to the dog Choke and to tell Mrs Farquhar that “if that dog leaves the clinic it’s not to fucking come back! This is my wedding day and I do not need this stuff”.
10.7 At about 12.00 pm on 29 July 2010, Mrs Farquhar received a telephoned [sic] call from Ms Pengilly advising her that she administered pain medication to the dog Choke on the instructions of the Respondent. Ms Pengilly further told Mrs Farquhar that the Respondent had instructed her to advise Mrs Farquhar that she could not collect the dog Choke until Monday, and that if she took the dog from the practice that day she was not ever to bring the dog, or any other animals, back there again.
10.8 The Respondent’s conduct caused undue pain to the dog Choke and significant distress to Mrs Farquhar.
Whilst the withdrawal of a complaint does not prevent a Board charged with enquiring into unprofessional conduct from enquiring into it (see Weaver v Law Society (NSW) (1979) 142 CLR 201 at 207), the fact of the matter is that the Board did not enquire into it.
No evidence was placed before the Board in relation to paragraphs 5, 6, 7 & 10 and no notice was given to the appellant that he should be in a position to make submissions in relation to these allegations.
The matters were dealt with in paragraphs 3.84 to 3.86 of the Board’s finding.
Whilst recognizing that certain allegations were not pursued the Board stated,
Nevertheless, the Board is entitled to take cognisance of the fact that there must have been some complaints to the Board in relation to the matters set out in paragraphs 5, 6, 7 and 10. This is of concern to the Board also.[6]
[6] See paragraph 3.86.
The Board erred in having regard to matters that were not the subject of complaints before the Board and in respect of which the appellant had no notice that they were to be a subject of consideration by the Board.
It is unclear the extent to which the Board took these matters into account in arriving at its finding of unprofessional conduct and the extent to which the finding influenced the extent of the sanction imposed on the appellant. What is clear is that the Board did take this into account and expressed its concern in relation thereto.
The orders made by the Board should be quashed and the matter looked at afresh for this reason.
The question of the $50,000 costs order and the $10,000 fine
The order made by the Board that the appellant pay the sum of $50,000 by way of costs and a fine of $10,000 are not directly the subject of any cross appeal.
The issue, however, comes within the grounds of appeal of the appellant.
2. Severe and unfair punishment by the VSBSA.
This ground of appeal raises the question of excessive penalty.
The power to award costs is circumscribed by the requirement that they must be such “as the Board considers just and reasonable”.
In my view the award of $50,000 for costs in this matter is neither just nor reasonable.
No assessment was made by the Board as to how the costs could be justified in the context of this investigation given the extent of the necessary investigation and the fact that the appellant had pleaded guilty.[7]
[7] See T7.
Further, no assessment was made as to the capacity of the appellant to pay.
The Board was not therefore in a position to assess whether the costs of $50,000 were “just and reasonable”.
There was no material before me upon which I could assess the justness and reasonableness of what, on its face, seems to be an extraordinary amount for costs in a disciplinary proceeding in the Veterinary Surgeons Board. Due to the effluxion of time since the orders were originally made I permitted the applicant to submit up-to-date financial details. (See letter of appellant and enclosures dated 12 December 2014)
Section 42E(1) of the District Court Act grants me discretion to receive such evidence.
It is clear that the appellant is struggling in his business as a veterinary surgeon and is barely making sufficient income to pay expenses.
As at December 2014 the appellant owes $303,000 together with a further $220,000 for home loans. His income is approximately $22,000 per month gross, out of which he has to pay his wife, who works as his receptionist and nurse and also to take his drawings.
To impose a further $60,000 by way of liability for fines and costs on the appellant would undoubtedly force him into bankruptcy and prevent his practice as a veterinary surgeon.
This is not the result that was envisaged by the Board and it would be an excessive sanction given that the most serious of the allegations against him were committed whilst suffering a mental disability.
The fine of $10,000 and the costs order of $50,000 are manifestly excessive and inhibit the appellant from continuing the practice of veterinary surgeon and do not therefore promote the regulation of the appellant’s veterinary practice.
I have noted the submission of the respondent that the quantum of costs was agreed by the appellant. I cannot make orders in relation to matters which might privately be agreed between the parties. I can, however, make orders in relation to orders made by the Board which are the subject of appeal.
Leaving aside any private agreement between the parties the Board has made an order that the appellant pay the sum of $50,000 by way of costs pursuant to s 23 of the Act. The Board may only make an order under s 23 if it considers the cost to be “just and reasonable”.
In my view the fact that an appellant may have agreed an amount for costs is some evidence but is not conclusive evidence that such costs are “just and reasonable”.
In my view such a high amount as $50,000 for costs, in the context of the appellant’s financial situation and precarious position in relation to his practice, made such an award unjust and unreasonable.
I quash the orders for fine and costs.
Orders
I will hear the parties as to appropriate orders as to sanctions pursuant to s 42F(b) of the District Court Act.
1
4
1