Sutherland v Minister for Agriculture, Food & Fisheries (No 2) - [2015] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against the Veterinary Surgeons Board of South Australia)
SUTHERLAND v MINISTER FOR AGRICULTURE, FOOD & FISHERIES (No 2)
[2015] SADC 22
Reasons for Decision of His Honour Judge Cuthbertson
4 March 2015
ADMINISTRATIVE LAW
Sanctions imposed after a review of the sanctions imposed for unprofessional conduct by Veterinary Surgeons Board of South Australia.
HELD:
1. That the Appellant's suspension on the General Register of Veterinary Surgeons be taken to have been served.
2. That there be no other sanctions.
3. That there be no order as to costs.
District Court Act 1991 s 42F; Veterinary Practice Act 2003 s 62, s 74, s 23, referred to.
Sutherland v Minister for Agriculture, Food & Fisheries [2015] SADC 8; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Clyne v Bar Association (NSW) (1960) 104 CLR 186; Bar Association (NSW) v Evatt (1968) 117 CLR 177; More v Registrar of the Medical Board (No 2) (2002) 219 LSJS 448, considered.

SUTHERLAND v MINISTER FOR AGRICULTURE, FOOD & FISHERIES (No 2)
[2015] SADC 22

I refer to my decision in Sutherland v Minister for Agriculture, Food & Fisheries [2015] SADC 8 wherein I rescinded the orders imposed on the Appellant by the Veterinary Surgeons Board. This judgment sets out the sanctions I impose as a result of that decision pursuant to 42F(b) of the District Court Act 1991 (The ‘Act’).
I heard the parties as to appropriate sanctions on Monday, 16 February 2015.
Relevantly s 42F(b) of the Act states:
42F—Decision on appeal
The Court may, on an appeal—
(a)...
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)...
It is common ground between the parties that as a result of my decision to rescind the orders of the Board, it is appropriate for me to make substitute disciplinary orders which I consider appropriate.
Pursuant to s 62(4) of the Veterinary Practice Act 2003:
62—Inquiries by Board as to matters constituting grounds for disciplinary action
(1)...
(2)...
(3)...
(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 under this Act restricting the respondent's right to provide veterinary treatment or revoke or vary a waiver or modification that applies in respect of the respondent's registration under this Act;
(d)if the respondent has general registration under this Act but not specialist registration—
(i)suspend the respondent's general registration under this Act for a period not exceeding 1 year;
(ii)cancel the respondent's general registration under this Act;
(e)if the respondent has specialist registration under this Act—
(i)suspend the respondent's specialist registration or registration in a particular specialty, or the respondent's general and specialist registration, under this Act for a period not exceeding 1 year;
(ii)cancel the respondent's specialist registration or registration in a particular specialty, or the respondent's general and specialist registration, under this Act;
(f)disqualify the respondent from general registration, specialist registration or registration in a particular specialty, or both general and specialist registration, under this Act;
(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.
I am reminded that proceedings of this nature are entirely protective and there is no element of punishment.[1]
[1] Clyne v Bar Association (NSW) (1960) 104 CLR 186 at 201-202 and Bar Association (NSW) v Evatt (1968) 117 CLR 177.
The Respondent has urged the Court to consider imposing the following sanctions:
1. Censure of the Appellant;
2. Imposition of an order for costs.
The events which lead to the application for disciplinary action against Dr Sutherland occurred between June 2007 and 2010.
It is now some four years that has passed and some seven to eight years since the more serious of the conduct which is the subject of enquiry.
During that time Dr Sutherland has been subject to psychiatric analysis and counselling and has observed a period of suspension of registration imposed by the Board from 14 April 2014 to 13 May 2014.
In my reasons for decision I stated as follows,
[56] It is clear that the Appellant is struggling in his business as a veterinary surgeon and is barely making sufficient income to pay expenses.
[57]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.
Dr Sutherland is struggling under a crushing debt burden and in my view it would be inappropriate to add to it by the imposition of a fine or an order for costs against him.
I am conscious of the fact that Dr Sutherland is in the process of recovering from issues of depression and anxiety and that these issues would be exacerbated by any further financial penalty and are being exacerbated by the long history of these proceedings.
In his final submissions to me Dr Sutherland said,
I was going to say too over the last six years my wife and I are spent, we are spent physically, mentally, emotionally and now financially. We are spent, the tank is empty.[2]
[2] T22 L27.
In my assessment that is a true statement of the physical and mental state of the applicant.
I think it is now important that these matters be brought to an end conclusively and as soon as possible.
The applicant is continuing to struggle financially in a veterinary practice. His ability to keep going is in my estimation highly problematic. He is dealing with his emotional and mental stresses by seeing a psychiatrist.
He is seeing a Dr Bertram on a monthly basis; he is happy with him and is of the view that it is helping him. He has indicated that he desires to continue to seek assistance from Dr Bertram.
In my view the practitioner is no longer mentally ill as was the situation at the time of the conduct which has been found by the Board to be unprofessional.
A month out of practice, consequent upon suspended registration, has already been served and is a reminder to veterinary surgeons and the general public that the right to practice as a veterinary surgeon is a privilege and that the exercise of the privilege requires mental fitness and toughness and an ability to deal with life’s vicissitudes so as to prevent such issues impeding on the ability to conduct a veterinary practice.
In my view it is in the interest of the general public as well as in the interest of Dr Sutherland that he be given the best chance possible to maintain a viable veterinary practice. In those circumstances I am of the view that there is no requirement for any further disciplinary action beyond the period of suspension which has already been served.
In the circumstances no further order is made.
Costs of the Original Investigation
The Respondent has urged me to order that the Appellant to pay costs with respect to the proceedings before the Veterinary Surgeons Board pursuant to s 23 of the Veterinary Practice Act 2003. Any order for costs must be one which I consider to be just and reasonable, having regard to the costs that have been incurred by the Board and the Appellant’s circumstances.
Section 23 of the Act states:
23—Costs
(1)The Board may award such costs against a party to proceedings as the Board considers just and reasonable.
Costs are not to be considered a sanction in this matter. It is open to me to make an award of costs which are just and reasonable as it assists in protecting the public interest.
The Appellant’s financial circumstances are set out in my reasons. Having regard to the costs of the investigation and the Appellant’s financial circumstances, it is my view that any order for costs against him would not be just and reasonable as any cost order is likely to push him into bankruptcy.
I decline to make an order for costs.
Costs of the Appeal
There remains the question of costs of the appeal.
Dr Sutherland has sought an order for costs pursuant to s 42G of the District Court Act. Sub-section 2 of that section reads as follows,
(2) However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
Importantly, an order for costs is not simply to follow the event but is only to be made where there is some unusual or out of the ordinary feature which makes it in the interests of justice to order costs.[3] In my view there is no such unusual or out of the ordinary feature in this case.
[3] See More v Registrar of the Medical Board (No 2) (2002) 219 LSJS 448.
Indeed, most of the issues which led to Dr Sutherland being successful in the appeal were identified by the Respondent in the subject of a cross-appeal.
The Respondent conducted the appeal by placing before me material which assisted me in coming to the conclusion that the appeal should be allowed.
The fact that the Appellant is financially stressed is not a proper basis upon which I can make an order for costs in his favour.
In the circumstances there will be no order as to costs.