Veterinary Practitioners Board of New South Wales v Johnson
[2009] NSWADT 308
•10 December 2009
CITATION: Veterinary Practitioners Board of New South Wales v Johnson [2009] NSWADT 308 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Veterinary Practitioners Board of New South Wales
Terrence Alfred JohnsonFILE NUMBER: 093178 HEARING DATES: 16 and 20 November 2009 SUBMISSIONS CLOSED: 27 November 2009
DATE OF DECISION:
10 December 2009BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: professional discipline - veterinary practitioner - jurisdiction - jurisdictional fact - relevant considerations - procedural fairness - bias - suspension from practice pending determination - stay application - Veterinary Practice Act 2003 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules 1998
Veterinary Practice Act 2003CASES CITED: Ansell v Wells (1982) 43 ALR 41
Applicant Veal of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Avon Downs Pty Limited v Federal Commissioner of Taxation (1949) 78 CLR 353
Barwick v Law Society of NSW [2002] NSWADTAP 21
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Ebner v Official Trustee [2007] HCA 3; (2000) 205 CLR 337
Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Hot Holdings Pty Limited v Creasy [2002] HCA 51; 210 CLR 438
Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 1; (2002) 209 CLR 597
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Pergamon Press Ltd [1971] Ch 388
Sean Investments v MacKellar (1981) 38 ALR 363 Williamson v The Director General of the Department of Transport [2000] NSWADT 165REPRESENTATION: APPLICANT
RESPONDENT
P Strickland, SC
J Smith, barristerORDERS: 1. The Amended Application for Original Decision Disciplinary Finding and order dated 4 September 2009 is an Application for an Original Decision
2. The requirements in Rule 14 of the ADT Rules 1998 are dispensed with
3. The application by Dr Johnson to the Tribunal for a review of the Board’s decision to suspend his registration is to be dealt with as part of the proceedings in relation to the Board’s application for an original decision
4. The decision of the Veterinary Practitioners Board to suspend Dr Johnson’s registration is stayed pending determination of the application for original decision on the following conditions:(a) Dr Johnson file and serve all documents recording the days on which his employees worked during the period 19 September 2008 to 24 September 2008; the cage cards for cat 1and the documents requested by the Board in relation to Complaint 2, within 3 days of receiving these reasons for decision; and(b) Dr Johnson complies with the conditions on his registration that he must work with another full time veterinary practitioner or within a group practice
5. Matter to be re-listed on 14 December 2009 at 10.00am for further directions.
REASONS FOR DECISION
Background
1 Dr Johnson is a registered veterinary practitioner who, until his recent suspension, was practising in northern New South Wales. On 10 December 2008, the Veterinary Practitioners Board received a complaint about Dr Johnson’s treatment of a cat. Essentially, the allegations were that Dr Johnson left the practice when the cat was in distress, told the owner that the cat had died on Sunday evening when she had died the previous Friday and falsified treatment records after the cat had died. We will refer to this cat as cat 1 and to the complaint as complaint 1. Four months later, on 1 April 2009, the Board received a second complaint about another cat. The allegations were that Dr Johnson lied about the circumstances of the cat’s death and how the body was disposed of. We will refer to this cat as cat 2 and to the complaint as Complaint 2.
2 The Board delegated the function of investigating the complaints against Dr Johnson to a Complaints Committee comprising three members of the Veterinary Practitioners Board and two people representing the interests of clients: Veterinary Practice Act 2003 (VP Act) ss 49, 81, 82(1)(c). On 2 June 2009 the Board resolved to place conditions on Dr Johnson’s registration that he must work with another full time veterinary practitioner or within a group practice. The Board informed Dr Johnson of that condition in writing on the same day.
3 On 25 June 2009, the Board met to consider the recommendations of the Complaints Committee in relation to both complaints. The minutes of that meeting state, in part, that:
The Board considered the recommendations of the Complaints Committee and resolved to apply to the Tribunal for Dr Johnson’s registration to be suspended indefinitely.
4 On 3 July 2009, the Board applied to the Tribunal for an original decision that Dr Johnson’s registration be cancelled. Two months later, on 3 September 2009, the Board rescinded the decision made on 25 June to apply to the Tribunal for Dr Johnson’s registration to be suspended indefinitely. The reason for rescinding that decision was that the Board had failed to make a decision that it was satisfied that Dr Johnson was guilty of professional misconduct as required by s 47(4) of the VP Act. Section 47(4) provides that:
(4) If the Board is satisfied that the veterinary practitioner is guilty of professional misconduct, the Board:
(b) may suspend the veterinary practitioner’s registration pending the determination of the matter by the Tribunal.(a) must apply to the Tribunal for a disciplinary finding against the veterinary practitioner under Division 3, and
5 It is not in dispute that before applying to the Tribunal for an original decision under s 47(4), the Board must be satisfied, as a question of fact, that the veterinary practitioner is guilty of unprofessional conduct or professional misconduct. That state of satisfaction is a ‘jurisdictional fact’, without which the Tribunal has no power to determine the application: Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]. The Board was entitled to rescind the decision because it was infected by jurisdictional error: Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.The High Court defined jurisdictional error in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177:
… jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.
6 This principle applies equally to administrative decision makers such as the Board. At the same meeting at which the Board rescinded its previous decision it also decided that Dr Johnson was guilty of professional misconduct. With the consent of Dr Johnson, the Board filed an amended application with the Tribunal on the same day as the meeting. The Board concedes that it should have filed a new application if the Tribunal did not have jurisdiction to determine the first application. Its failure to do so was said to be a procedural irregularity which does not deprive the Tribunal of jurisdiction. According to Dr Johnson, the first application was invalid and any amendment to invalid proceedings does not make them valid. The proceedings are incompetent and should be dismissed. Alternatively, Dr Johnson submitted that the proceedings should be dismissed because the Board did not take into account relevant evidence when making its decision and/or did not afford Dr Johnson procedural fairness during the investigation process.
7 On 20 October 2009 the Board suspended Dr Johnson’s registration pending determination of the matter by the Tribunal: 47(4)(b). One of the reasons for that decision was that Dr Johnson had admitted that he had not been complying with the condition that he must work with another full time veterinary practitioner or within a group practice. On 2 November 2009, Dr Johnson applied for a review of the suspension decision and for a stay of that decision: s 48. Section 48(2)(a) provides that:
(a) an application by the veterinary practitioner to the Tribunal for a review of the Board’s decision to suspend may be dealt with by the Tribunal as part of the proceedings in relation to the Board’s application instead of as an application for review, and in so dealing with the veterinary practitioner’s application, the Tribunal may grant a stay of the suspension.(2) If the Board has applied to the Tribunal under section 47(4) and has suspended the registration of the veterinary practitioner concerned under that subsection:
8 Dr Johnson’s primary submission was that the Board had no power to make the suspension decision because it had not made a valid application to the Tribunal for a disciplinary finding: s 47(4)(a). Alternatively, Dr Johnson submitted that the suspension be dealt with as part of the proceedings and stayed pending the determination of the proceedings.
Issues and conclusions
9 The issues and the ultimate conclusions the Tribunal has reached are:
1. Does the Tribunal have jurisdiction to determine the Board’s amended application for an original decision? Yes.
2. Does the Tribunal have jurisdiction to determine Dr Johnson’s application for a review of the Board’s decision to suspend his registration? Yes.
3. Does the Tribunal lack jurisdiction to hear the application because:
(a) the Board failed to take into account a relevant consideration when deciding that Dr Johnson was guilty of professional misconduct; and/or
4. Should the Tribunal deal with the application as part of the proceedings and stay the Board’s decision to suspend Dr Johnson’s registration? Yes, but with conditions.(b) the Board failed to afford Dr Johnson procedural fairness? No.
Does the Tribunal have jurisdiction to determine the Board’s amended application for an original decision?
10 Dr Johnson’s submission was that there is only one proceeding relevant to this issue and those are the proceedings that were filed on 3 July 2009. The amendments in September were just that: amendments. Consent to make those amendments was sought and granted. Directions were made in accordance with that consent. Neither the Board nor the Tribunal can act as if the amended application is a new application. The error is not merely a procedural irregularity. The relevant jurisdictional fact remains the Board’s satisfaction that Dr Johnson is guilty of professional misconduct prior to the application for an original decision being lodged. As there was no such satisfaction at that time the proceedings are incompetent.
11 The flaw in this submission is that the earlier application was made without the necessary statutory authority and because that lack of authority constitutes a jurisdictional error, there was no valid application before the Tribunal: Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As the amended application was made at a time when there was no valid application in relation to the same matter before the Tribunal, the Board applied to the Tribunal for the amended application to be treated as a fresh application and for the word ‘amended’ in the title of the application to be deleted. That application should be granted because:
(a) there was no valid application before the Tribunal when the amended application was filed;
(b) any breach of the Rules or Practice Notes can and should be remedied;
(c) there is no appreciable prejudice to Dr Johnson and that course accords with the objects of both the VP Act and the Administrative Decisions Tribunal Act 1997 ( ADT Act ).
12 No valid application. As there was no valid application before the Tribunal when the amended application was filed on 4 September 2009, that application, to have any effect, must be characterised as a fresh application. Describing the application as an ‘amended’ application does not alter the substance of the application which is that it was an application for an original decision.
13 Breach of Rules or Practice Notes. Section 42(b) of the ADT Act provides that a person is to apply for an original decision in the manner and within the time prescribed by the rules of the Tribunal or the enabling enactment. Rule 14 of the Administrative Decisions Tribunal Rules 1998 provides as follows:
(1) For the purposes of section 42 (b) of the Act, an application to the Tribunal for an original decision must:
(a) be in or to the effect of the approved form, and
(b) be duly completed, and
(c) be lodged at the Registry, and
(d) be accompanied by the applicable fee (if any) for the application.
(2) An application for an original decision need not specify the Division to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified, the Registrar may complete the application form accordingly.
(4) This rule does not apply to a referral to the Tribunal by the Ombudsman of a legal question for an advisory opinion under section 35C of the Ombudsman Act 1974.(3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application.
14 The 4 September 2009 application was made on the approved form as required by s 42(b) of the ADT Act and Rule 14, except that it was styled as an ‘Amended’ Application. It did not comply with the requirement in Rule 14 that it be accompanied by the appropriate filing fee. In addition, it breached Practice Note 17 in that the affidavit as to jurisdiction was not attached to the application. The Board remedied that situation on the filing of Mr Lynch’s 27 October 2009 affidavit.
15 Rule 4 provides that:
The Tribunal, the President or a Divisional Head may dispense with compliance with any requirement of these rules, either before or after the occasion for compliance arises.
16 I dispense with the procedural requirements with which the Amended Application did not comply in accordance with this provision because there is no appreciable prejudice to Dr Johnson in doing so.
17 Prejudice to Dr Johnson. Both parties have proceeded on the basis of the amended application filed on 4 September 2009. I agree with the Board's submission that there is no appreciable prejudice to Dr Johnson if the amended application is regarded as the originating application. The Board's error does not affect the substance of the allegations made against Dr Johnson. His reply to the application for original decision is responsive to the 4 September 2009 amended application. Requiring the Board to start again, thereby causing unnecessary delay, would be contrary to the objects of the ADT Act and the VP Act. Those objects include, for example, enabling ‘proceedings before the Tribunal to be determined in an informal and expeditious manner’ and ensuring ‘that acceptable standards are required to be met by veterinary practitioners so as to meet the public interest and national and international trade requirements’: ADT Act, s 3(c); VP Act, s 3(c).
18 The substance of the complaint and the matters to be litigated would be exactly the same. As both parties have proceeded on the basis that the 4 September 2009 application is, in effect, the originating process, Dr Johnson has not incurred any appreciable additional costs as a result of the amendment.
19 Conclusion. The Amended Application for Original Decision Disciplinary Finding and order dated 4 September 2009 is an Application for an Original Decision.
Does the Tribunal have jurisdiction to determine Dr Johnson’s application for a review of the Board’s decision to suspend his registration?
20 On 20 October 2009 the Board suspended Dr Johnson’s registration pending determination of the matter by the Tribunal, pursuant to s 47(4).
21 According to the Board, the pre-condition for the exercise of its power to suspend Dr Johnson under s 47(4) is that ‘the Board is satisfied the veterinary practitioner is guilty of professional misconduct’. The Board came to that view on 3 September 2009 and again on 20 October 2009. Consequently it has addressed itself to the question which s 47(4) formulates: Avon Downs Pty Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
22 As the amended application is to be treated as an application for an original decision, it follows that the Tribunal also has jurisdiction to review the suspension decision. Alternatively, even if the suspension decision was made without power, the Tribunal has jurisdiction to review it: ADT Act, s 6(3).
Does the Tribunal lack jurisdiction to hear the Application because the Board failed to take into account a relevant consideration when deciding that Dr Johnson was guilty of professional misconduct?
23 Material facts. The Board will have made a jurisdictional error if it failed to take into account a ‘relevant consideration’ or a ‘material fact’ which it was bound to take into account in the circumstances: Sean Investments v MacKellar (1981) 38 ALR 363 at 375 per Deane J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J. Dr Johnson submitted that the Board did not have a fair and balanced report from the Complaints Committee which made reference to all relevant material. For example, the report states a preference for the evidence of Dr Johnson’s staff but does not mention that some staff members gave evidence which was consistent with Dr Johnson’s version of events. The report also mentioned that Dr Johnson did not attend the hearing on 13 March 2009, but did not mention that his counsel attended and sought and obtained an adjournment. Dr Johnson’s submission was that it was not enough for the Board to read the report of the Complaints Committee when making its decision. Either the Board should have read all the material themselves or had a balanced summary of all the material before it.
24 In Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Gibbs CJ made the following observation at p 30-31:
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
25 Mason J made the point at p 40 that:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
26 Background. The minutes of the Board meeting held on the 25 June 2009 are set out at page 231 of Mr Lynch’s affidavit of 27 October 2009. The report provided to the Board by the Complaints Committee set out a series of recommendations including the following:
In relation to the complaint by [Complainant 1] the Complaints Committee prefers the evidence of [Complainant 1] and of past and present members of staff at Dr Johnson's practice, including the evidence that [cat 1] had not been euthanised. The Complaints Committee considers that Dr Johnson has not been honest in his records which state that [cat 1] was euthanised.
In relation to the complaint of [Complainant 2], the Complaints Committee prefers the evidence of [Complainant 2] and of past and present members of Dr Johnson’s practice.. . .
27 The recommendations then set out the provisions of the VP Act which Dr Johnson was said to have breached.
28 Identification of the evidence. The Complaints Committee heard evidence from two of Dr Johnson’s employees, Wendy King and Sharryn Edwards, who said that they were present when cat 1 died on Friday afternoon. Dr Johnson’s evidence was that he ‘euthanised’ cat 1 the following Sunday, 21 September. Dr Emma Harding, a locum who worked one or two days a week at the practice, printed out notes on animals that had passed away during her locum period. Her notes of 25 November contain an entry “new visit” and the date 16 September 2008. No other relevant information is recorded about the treatment of cat 1 on that print out. In response to the Board’s request to provide relevant documents, Dr Johnson provided some notes on cat 1 which were printed out on 27 January 2009. This print out contained several further entries in addition to those recorded on Dr Harding’s print out. If that version of events is correct then Dr Johnson was still treating cat 1 on Monday 22 September. Complainant 1 gave evidence that Dr Johnson told her that he had put cat 1 to sleep the previous day, Sunday 21 September.
29 The material facts which Dr Johnson submitted should have been taken into account by the Board was the evidence of employees which supported, or did not contradict, one aspect of Dr Johnson’s version of events in relation to complaint 1. In relation to the allegation that Dr Johnson had falsified entries in relation to cat 1 some time after 24 November, evidence was given by a former employee, Wendy King that she had never seen Dr Johnson touch the history computer. According to Dr Johnson, this is evidence favourable to him which was not referred to in the report to the Board. When asked whether there had been any occasions where Dr Johnson would come back and add to a history that one of the nurse’s had already entered, another employee, Gay Throsby, said, “I don’t know. No, I doubt it.” Dr Johnson also referred to evidence given by Jess Nicholson who, when shown Dr Johnson’s version of the notes about cat 1’s treatment, said she remembers entering that information from tape recordings that Dr Johnson had made. Sharryn Edwards also gave evidence that Dr Johnson does not know how to use the computer very well although he would know how to get into it if he needed to. She also said that because Jess Nicholson’s initials, “JN”, appear at the bottom of the entry, it is likely that she entered the data. On the basis of this evidence, Dr Johnson says that it is not the case that employees all gave evidence inconsistent with his evidence.
30 According to the Board, Dr Johnson’s submissions are incorrect because:
(a) the evidence that Dr Johnson says was omitted from the report was not a material fact which it was bound to consider;
(c) even if the Board was bound to consider the facts and they were significant, the Complaints Committee members are also Board Members and the statutory function of the Complaints Committee is to assist the Board and to make recommendations to it: VP Act , s 81(1) and s 49(1)(b).(b) even if it was bound to consider those facts, the facts were insignificant or insubstantial; and
31 Material facts that the Board was bound to consider. There is no statutory or other requirement that the Board consider each piece of relevant evidence. Neither the evidence to which Dr Johnson referred, nor the fact that the report stated that Dr Johnson did not attend the hearing on 13 March 2009, are material facts which the Board was bound to consider.
32 Facts were insignificant or insubstantial. Even if the Board was bound to consider those facts, neither that evidence nor the fact that Dr Johnson’s lawyer attended the hearing on 13 March, is significant or substantial. That evidence goes no further than not being inconsistent with one aspect of Dr Johnson’s evidence.
33 Constitution of the Board. The Board submitted that Dr Johnson has not provided any authority for the proposition that there is jurisdictional error where some but not all members of the decision-making body are aware of all the evidence. However the fact that three members of the Complaints Committee are also Board Members would not overcome a failure by the Board to take into account a relevant fact or consideration it was bound to take into account. As there was no such failure in this case, the question does not arise.
34 Conclusion. The report provided to the Board did not fail to bring to its attention a material fact that it was bound to consider. The omission of a reference to the evidence of staff members which was not inconsistent with one of Dr Johnson’s assertions was not a matter which constitutes jurisdictional error.
Does the Tribunal lack jurisdiction to hear the Amended Application because the Board failed to afford Dr Johnson procedural fairness?
35 Dr Johnson’s submission is that the VP Act provides that the Board may only apply to the Tribunal for an original decision after a complaint has been properly made, notified and investigated and the investigation has not been affected by a denial of procedural fairness.
36 The requirements of procedural fairness and the extent to which a breach of procedural fairness renders an application to the Tribunal for a disciplinary finding invalid depends, among other things, on the terms of the VP Act: Applicant Veal of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [10], [23]. Dr Johnson did not submit that the Board had breached any of the express requirements in the VP Act which provide for procedural fairness. Rather, it was his submission that the Board had breached other requirements of procedural fairness which, although not expressly provided for in the VP Act, nevertheless apply. It was not in dispute that compliance with the statutory requirements does not exhaust the steps the Board must take to accord procedural fairness to Dr Johnson.
37 The general rule is that where a person's interests are affected by a decision, that person should be given an opportunity to respond to adverse information which is credible, relevant and significant to the decision to be made: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, per Brennan J at 629. While every detail of the evidence given in the absence of a party is not required to be put to that party, the substance or gravamen of that evidence should be disclosed: Re Pergamon Press Ltd [1971] Ch 388, Lord Denning MR at 400; Sachs LJ at 405; Buckley LJ at 407; Ansell v Wells (1982) 43 ALR 41 at 46.
38 The ways in which Dr Johnson says the Board did not afford him procedural fairness were by not providing:
(a) a complete copy of the transcript of evidence given by witnesses;
(b) particulars of the allegations in the 5 March 2009 letter from Mr Lynch;
(d) details of an allegation that he left cat 1 without treatment for a number of days.(c) a copy of the report given by the Complaints Committee to the Board; and
39 Transcript. The Board provided Dr Johnson with a copy of a redacted version of the transcript of evidence of proceedings on 12 June 2009 but said that it was nonsensical because several portions had been deleted and there were no names identifying the speakers. When giving Dr Johnson the redacted version of the transcript, the Board did not tell him that the deletions had been made pursuant to s 41(3) of the VP Act. That provision states that:
41 Board to notify person against whom complaint is made
(1) Written notice of the making of a complaint, the nature of the complaint, the type of unsatisfactory professional conduct or professional misconduct that the Board considers may be indicated by the complaint and the identity of the complainant is to be given by the Board to the veterinary practitioner against whom the complaint is made, as soon as practicable after the complaint is made.
(2) Any such notice must invite the veterinary practitioner to make, within such period (being at least 7 days) as the Board specifies in the notice, such representations in writing to the Board with respect to the complaint as the veterinary practitioner thinks fit.
(3) The Board need not give notice or may exclude from the notice any information required to be included under subsection (1) if, in the opinion of the Board, the giving of the notice or the inclusion of the information will or is likely to:
(a) prejudice the investigation of the complaint, or
(c) place the complainant or another person at risk of intimidation or harassment.(b) place the health or safety of a person at risk, or
40 Conclusion. I have read the redacted version of the transcript and agree that it is somewhat difficult to follow. Nevertheless, the Board disclosed to Dr Johnson that it had received information from members of his current and former staff. The substance of those allegations is contained in the redacted portions of the transcript of their evidence. Even if Dr Johnson was unable to glean the substance of those allegations from the transcript, the Board is entitled to exclude information that, in its opinion, will lead to one or more of the outcomes in s 41(3). Dr Johnson did not submit that the Board was not entitled to exclude the information pursuant to that provision.
41 Allegations in March 2009 letter. Dr Johnson submitted that the Board has failed to particularise complaints it made in a letter dated 9 March 2009. The complaints notified in that letter were:
animal cruelty and failure to consider the welfare of animals in your care;
failure to attend to an animal in the hospital;
over sedation of animals in the hospital;
discrepancies in hospital records (the [Complaint 1] record dated September 2008);
failure to communicate with a client [Complainant 1];
inadequate records;
inadequate workup to diagnosis of patients’ problems;
misplacement of a deceased patient’s body.concurrent use of non-steroidal anti-inflammatory (Metacam) and steroidal anti-inflammatory (Desason) in addition to administering these drugs well in excess of recommended dosage;
42 Conclusion. Dr Johnson requested particulars of these complaints but they have never been provided. However, in the September application the Board did not proceed with the allegations in this letter to the extent that they were in addition to the allegations contained in the two complaints. Consequently, failure to particularise the remainder of the matters in the 9 March 2009 letter does not constitute a breach of procedural fairness.
43 Copy of the report. The report does not contain any allegation of substance that had not already been disclosed to Dr Johnson. The fact that the Board did not give Dr Johnson a copy of that report does not constitute a breach of procedural fairness.
44 Allegations not put to him. One of the people who alleged that Dr Johnson left cat 1 without treatment for a number of days asked for that information to be kept confidential ‘in the interest of job security and harassment potential’. The Board is entitled to exclude information that, in its opinion, will lead to one or more of the outcomes in s 41(3). Dr Johnson did not submit that the Board was not entitled to exclude the information pursuant to that provision. Nevertheless that allegation cannot be relied on if it has not been put to him.
45 Bias. Dr Johnson submitted that the decisions of the Board on both 25 June and 2 September involved a denial of procedural fairness because of perceived bias of Mr Lynch. The perceived bias was said to arise from an article in the May edition of the Board’s publication, ‘Boardtalk’ under the heading ‘From the Registrar’s Desk’. The inference to be drawn from that publication is that Mr Lynch thought that veterinarians who engage lawyers at an early stage of the complaints process were hiding the truth. That situation applied to Dr Johnson who had engaged both a solicitor and a barrister to represent him. Dr Johnson also submitted that the chairman of the Board, Dr McGilvray, endorsed the comments of Mr Lynch. Dr McGilvray refers indirectly to Mr Lynch’s comments in the same publication and says, “The stage for legal involvement is at the serious professional misconduct level. This is when the Board determines at the end of the initial enquiry that the veterinarian is not practising to the standards for one reason or another and may be guilty of serious professional misconduct.”
46 Test for bias. It is a rule of procedural fairness that the repository of power not only be but be seen to be unbiased. The test for the appearance of bias is whether a fair minded lay observer might reasonably apprehend that the repository of power might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee [2007] HCA 3; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [7]. The kind of bias alleged is that the Board has certain ‘preconceptions existing independently of the case’: Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 372 per Dawson J. In Hot Holdings Pty Limited v Creasy [2002] HCA 51; 210 CLR 438, the High Court decided that a peripheral involvement in the preparation of a recommendation by an officer who might have an interest in the outcome of the matter did not invalidate the Minister’s decision. Dr Johnson sought to distinguish the case of Hot Holdings because, in his submission, Mr Lynch's role did have an impact on the appearance of justice.
47 Mr Lynch is the Registrar of the Board. Contrary to Dr Johnson’s initial assumption, he was not a Member of the Complaints Committee. He was present at the hearings on 13 March and 23 June and asked questions of witnesses. He wrote letters to Dr Johnson and his solicitors and he went to Dr Johnson’s practice to obtain records and to inspect his supply of pharmaceuticals. The Board submitted that while Mr Lynch was involved in the evidence gathering process, he was not involved in the decision making process. According to Dr Johnson, a reasonable bystander would assume that Mr Lynch was part of the Complaints Committee and participated in the decision making process.
48 Conclusion. Dr Johnson has failed to establish that Mr Lynch had any involvement in the decision making process. It is not the appearance of an involvement that must be established but the appearance of bias on the part of the decision maker. Under s 76 of the VP Act, the Board is constituted as a body corporate. Section 77 deals with the membership of the Board requiring that 6 of its 8 members must be veterinary practitioners. Section 79 deals with the functions of the Board which include investigating complaints and taking disciplinary action against veterinary practitioners. Section 80(1) provides that the Board can employ a Registrar, but the only function the Board may delegate to the Registrar or any other member of staff is the investigation of a complaint or a function relating to the investigation of the complaint: VP Act, s 82. While the Act contemplates that the Registrar will have a statutory role to investigate complaints, that person does not have any role in either making recommendations to the Board in relation to a complaint, or in making any decision in relation to a complaint: s 49. There is no evidence for Dr Johnson’s assertion that it can be inferred that Mr Lynch ‘was at least partly responsible for the contents of the report’. The Board’s decisions made on 3 September and 20 October were made by the Board and were not tainted by any preconceptions held by the Registrar.
49 In relation to the allegation that Dr McGilvray was biased, the comment he made in ‘Boardtalk’ would not lead a fair minded lay observer to reasonably apprehend that the Board might not bring an impartial mind to the resolution of the question to be decided.
Stay application
50 Introduction. Dr Johnson has applied for a review of the decision to suspend his registration and for a stay of that decision. In accordance with s 48(2)(a) that application will be dealt with as part of the proceedings in relation to the Board’s application. The reasons for the suspension were the two complaints that had been made against him and Dr Johnson’s admission that he had not complied with the conditions imposed on him that he must work with another full time veterinary practitioner or within a group practice, effective from 3 June 2009.
51 Non-compliance with conditions. Dr Johnson filed an affidavit dated 16 November 2009 setting out the measures he had taken to comply with the conditions imposed by the Board. He also gave oral evidence by telephone. He acknowledged that he had received a facsimile from the Board on 2 June 2009 imposing the conditions on his licence and said that he understood that he was to comply with those conditions. Dr Johnson agreed that he continued to practice after 3 June without complying with the conditions, apart from a period of about 2 weeks in mid June when he was on leave. He conceded that his decision not to comply with the conditions was a deliberate one and that he had flouted the authority of the Board. Dr Johnson said that his reasons for doing so were that he thought the conditions were ‘terribly unfair and totally unworkable’. In a letter to the Board dated 23 June, he acknowledged that he was not complying with the conditions. He also agreed that it was not until 2 September, some 3 months after he had been notified of the conditions, that he signed an agreement with a locum service in an effort to find a person who would work with him so that the conditions could be satisfied. He said he also made inquiries of a veterinary practitioner to see whether she was available to work with him so that the conditions could be met. Although he had received phone messages from that person he said he did not produce them in answer to a summons for documents related to his inquiries because he did not think they were relevant.
52 Dr Johnson conceded that it is part of the Board’s function to enforce provisions of the VP Act: s 79(d). He frankly admitted to the Board on 23 June 2009 that he had breached the conditions imposed on his registration and it took the Board four months to take any action in respect of those breaches. In any event, Dr Johnson says he expressed contrition about the breaches in cross-examination and it was never suggested that he was not sincere in that expression. Dr Johnson submitted that although his attitude to the conditions placed on his licence is regrettable, the public interest would be protected if he were allowed to continue to practise because he now has some insight into his behaviour. Dr Johnson is well aware that if he was permitted to continue to practice subject to conditions, and those conditions were breached, his registration would be suspended.
53 Request of documents. In December 2008, the Board served a notice on Dr Johnson to produce contemporaneous records in relation to his treatment of cat 1. Dr Johnson says that he provided all the records he had on a single occasion. Dr Johnson also agreed that it was put to him by a member of the committee when he was giving evidence that an employee had said that cat 1 died on Friday 19 September and that that evidence was contrary to Dr Johnson’s evidence. When Dr Johnson was asked at the hearing to send the Board the cage card and the time sheets showing the dates the employees were working, he said, ‘Yeah, sure. We might skip the ... we might keep the time books, because they might become very good evidence in the court case, when people are under cross-examination.’ Dr Johnson refused to send the time sheets to the Board that day, saying, ‘There’s nobody there at my office today. And also, I have them under lock and key, these books. Because I figure they’re going to be very important.’ He agrees that he still has not produced those documents to the Board. In oral evidence, Dr Johnson said that he has made an error by not providing the Board with those records.
54 When asked why he had not provided the cage card to the Board he initially said he did not know. He then said he thought the records had been supplied. Ms McIntyre, the solicitor acting for the Board, gave evidence that the cage card is not among the documents the Board has given her and it is her understanding that Dr Johnson has not provided it to the Board. While Dr Johnson admitted that he has made some errors of judgement he says he provided all the documents to the Board that he considered relevant. He admits that he has not provided any documents in relation to the second complaint and that that was an error of judgment.
55 I am satisfied on the basis of all the evidence that Dr Johnson has not provided the employee records, the cage card in relation to complaint 1 or any documents in relation to complaint 2 to the Board. He has deliberately not complied with the Board’s requests to provide those documents and has belatedly conceded that he has made in error of judgement by not providing some of those documents.
56 Response to inspectors. Mr Lynch’s evidence as to what happened when he and a Board member went to Dr Johnson’s practice on 29 May 2009 is set out in his affidavit of 30 October 2009. Dr Johnson’s evidence is that although he was at his practice when Mr Lynch arrived to inspect his records and pharmaceutical supplies, his solicitor had told the Board that that day was not suitable. He said he found the conduct of the officer who attended to be offensive and he had a personal matter to attend to. He understands now that the officers were acting under a statutory power but says that regrettably he did not appreciate that fact at the time.
57 The Tribunal’s power to stay the suspension decision arises from s 60 of the ADT Act which states that:
(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.(c) the public interest.
58 A stay may be ordered subject to conditions: ADT Act, s 62.
59 Secure the effectiveness of the determination. The phrase ‘to secure the effectiveness of the determination of the application’ has been interpreted to mean that a stay would not be granted unless there was some kind of irreparable loss or harm that would be caused in the interim, that could not be rectified by the Tribunal: Williamson v The Director General of the Department of Transport [2000] NSWADT 165 at [15]. Dr Johnson is a bankrupt. His assets are vested in his trustee in bankruptcy and he no longer has any control over them. His only source of income is from his veterinary practice. Unless a stay is granted, he says he will not be able to afford legal representation at the final hearing.
60 Interests of any person who may be affected by the determination. Dr Johnson is the person who will be most directly affected by the determination. His interests will be served if a stay is granted. It is in Dr Johnson’s interests to be able to continue to work as a veterinary practitioner so that he can generate income.
61 Board’s submissions. The Board submitted that Dr Johnson will be unable to continue to practice even if granted a stay because he will not be able to pay for the pharmaceuticals he needs. Dr Johnson estimated that he owes in the vicinity of $80,000 to two pharmaceutical suppliers. Despite that debt, he said he has been obtaining pharmaceuticals from another supplier. In a 12 month period Dr Johnson estimated that he would buy approximately $180,000 worth of pharmaceuticals and that it is essential that he have an adequate supply to operate his practice. He maintains that if he were permitted to practice he could afford to buy the supplies because his business would generate enough income to allow him to do so. He denied that there would be a risk that he would not be able to purchase pharmaceutical supplies if he were permitted to continue to practice. For the purpose of these proceedings, I accept that evidence.
62 Public interest. According to the Board it is not in the public interest for Dr Johnson to be permitted to continue to practice as a vet because:
(a) the allegations against him are serious;
(c) he has not complied with the conditions imposed on him.(b) he has not been honest in his dealings with the Board; and
63 Seriousness of allegations. The seriousness of the allegations against Dr Johnson are relevant when considering whether it is in the public interest to allow him to practice pending the Tribunal’s decision. As the Appeal Panel said in Barwick v Law Society of NSW [2002] NSWADTAP 21:
‘The public would expect to be protected from any practitioner found guilty of the conduct proven (at [34]).’
64 Dr Johnson submitted that the objects of the Act are relevant when considering the public interest. Those objects, in s 3, are:
(a) to promote the welfare of animals,
(b) to ensure that consumers of veterinary services are well informed as to the competencies required of veterinary practitioners,
(d) to provide public health protection.(c) to ensure that acceptable standards are required to be met by veterinary practitioners so as to meet the public interest and national and international trade requirements,
65 The most salient of these, according to Dr Johnson, is the welfare of animals and, indirectly, their owners.
66 Dr Johnson submitted that Complaint 1 involved one animal in September 2008 and even if the Committee’s conclusions were correct, there is nothing to suggest that that incident was anything more than isolated and out of the ordinary. In those circumstances it is unlikely to recur. The false records and false representation allegations do not impact on the welfare of animals. The allegations in relation to Complaint 2 were not about the treatment of a living animal, but rather the disposal of a corpse. While the events upset Complainant 2, at worst they can be seen as a clumsy attempt to cover up an innocent mistake. Finally, it is not alleged that any breach of the conditions imposed on Dr Johnson’s registration has led to any risk to the public interest.
67 Possible conditions on stay. In re-examination, for the first time, Dr Johnson expressed a willingness to work as a locum for someone else if his registration was restored. The Board submitted that that evidence should be given little weight because there was no evidence as to whom might employ him, what work he would do or whether he would be supervised. In addition, he has not given any undertaking to inform a potential employer of the findings that have been made against him or of any conditions on his registration.
68 Conclusion. If the suspension is not stayed, Dr Johnson’s career as a veterinary practitioner will effectively come to an end before he has the opportunity to defend himself in proceedings before the Tribunal. A stay is necessary to ‘secure the effectiveness’ of the hearing. In determining whether a stay should be granted, public interest considerations must be weighed against Dr Johnson’s interests. The allegations against him relate mainly to dishonesty and wilfully disregarding lawful directions and conditions made or imposed by the Board. There is a single allegation involving the welfare of cat 1 in September 2008. On balance, it will not be contrary to the public interest to allow Dr Johnson to continue to practice provided he abides by the conditions on his registration to work with another full time veterinary practitioner or within a group practice. In addition he should file and serve the documents that the Board has requested. These conditions will help to ensure that the welfare of animals is not compromised pending the determination of these proceedings.
2. The requirements in Rule 14 of the ADT Rules 1998 are dispensed with.1. The Amended Application for Original Decision Disciplinary Finding and order dated 4 September 2009 is an Application for an Original Decision.
3. The application by Dr Johnson to the Tribunal for a review of the Board’s decision to suspend his registration is to be dealt with as part of the proceedings in relation to the Board’s application for an original decision.
4. The decision of the Veterinary Practitioners Board to suspend Dr Johnson’s registration is stayed pending determination of the application for original decision on the following conditions:
(a) Dr Johnson file and serve all documents recording the days on which his employees worked during the period 19 September 2008 to 24 September 2008; the cage cards for cat 1and the documents requested by the Board in relation to Complaint 2, within 3 days of receiving these reasons for decision; and
5. Matter to be re-listed on 14 December 2009 at 10.00am for further directions.(b) Dr Johnson complies with the conditions on his registration that he must work with another full time veterinary practitioner or within a group practice.
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