Veterinary Surgeons' Board of Western Australia v Alexander
[2014] WASC 486
•18 DECEMBER 2014
VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA -v- ALEXANDER [2014] WASC 486
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 486 | |
| Case No: | GDA:15/2013 | 22 MAY 2014 | |
| Coram: | JENKINS J | 18/12/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA KURT ALEXANDER ALEXANDER |
Catchwords: | Appeal Disciplinary proceedings Alleged errors of law Second appeal in same disciplinary proceedings Not in interests of justice to grant leave to appeal |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105 Veterinary Surgeons Act 1960 (WA), s 23 Veterinary Surgeons Regulations 1979 (WA), reg 28 |
Case References: | Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Palser v Grinling [1948] AC 291 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175 The Veterinary Surgeons' Board of Western Australia and Alexander [2013] WASAT 148 Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & others [1979] FCA 132; (1979) 27 ALR 367 Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KURT ALEXANDER ALEXANDER
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : DR B DE VILLIERS (MEMBER)
- DR A VIGANO (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)
Citation : THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2013] WASAT 148
File No : VR 50 of 2009
Catchwords:
Appeal - Disciplinary proceedings - Alleged errors of law - Second appeal in same disciplinary proceedings - Not in interests of justice to grant leave to appeal
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105
Veterinary Surgeons Act 1960 (WA), s 23
Veterinary Surgeons Regulations 1979 (WA), reg 28
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P D Quinlan SC & Mr G M Abbott
Respondent : In person
Solicitors:
Appellant : Tottle Partners
Respondent : In person
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Palser v Grinling [1948] AC 291
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175
The Veterinary Surgeons' Board of Western Australia and Alexander [2013] WASAT 148
Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & others [1979] FCA 132; (1979) 27 ALR 367
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
1 JENKINS J: This is an appeal by the Veterinary Surgeons' Board of Western Australia (the Board) from a decision of the State Administrative Tribunal (SAT) dismissing disciplinary proceedings brought by the Board against Dr Alexander (the respondent), a veterinary surgeon.
2 This is the second appeal which the Board has brought from the decisions of SAT in the same disciplinary proceedings. On 28 November 2011, SAT delivered its original decision dismissing the Board's application: The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175. The Board appealed that decision.
3 On 19 April 2013, Pritchard J dismissed all but one of the grounds of appeal: Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136. In relation to the one ground of appeal that was upheld, her Honour found that when SAT determined the disciplinary proceedings relating to the sterilisation of cats on 6 June 2008 at a private residence near Margaret River (the cat surgeries), that SAT had erred in law by failing to take into account a relevant consideration, namely the evidence of experts, or if SAT had taken into account the evidence of the experts, it had failed to give adequate reasons for its findings. Pritchard J remitted that part of the disciplinary proceedings to SAT to reconsider in accordance with her reasons. Her Honour's reasons should be read in order to understand the factual background to this appeal.
4 On 9 September 2013, SAT delivered its reasons for dismissing that portion of the disciplinary proceedings which had been remitted to it: The Veterinary Surgeons' Board of Western Australia and Alexander [2013] WASAT 148. The decision was made on the basis of the evidence and submissions received in the original hearing before SAT, as well as further written submissions from the parties. The Board now appeals from that decision.
Grounds of appeal
5 The Board relies on the following grounds of appeal:
1. Having found that it was established that the respondent's conduct was unprofessional (Reasons, [30]), the learned Tribunal erred in law in concluding that the conduct must be 'considerably or significantly' short of the required standard of conduct (Reasons, [31]) before finding that the respondent was guilty of unprofessional conduct as a veterinary surgeon, pursuant to s 23(2a) of the Veterinary Surgeons Act 1960.
2. Having found that it was established that the respondent's conduct was unprofessional (Reasons, [30]), the learned Tribunal erred in law in concluding that it 'must feel an actual persuasion that the conduct requires disciplinary sanction' (Reasons, [31]) before finding that the respondent was guilty of unprofessional conduct as a veterinary surgeon, pursuant to s 23(2a) of the Veterinary Surgeons Act 1960.
3. In the alternative, the learned Tribunal erred in law in concluding that, in order to be satisfied that the respondent's conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency, it was necessary for the conduct to be:
(a) 'considerable, solid or big' (Reasons, [30]); or alternatively
(b) 'considerably or significantly short of the required conduct' (Reasons, [31]),
to amount to unprofessional conduct as a veterinary surgeon, pursuant to s 23(2a) of the Veterinary Surgeons Act 1960.
The Tribunal ought to have found that the respondent was guilty of unprofessional conduct as a veterinary surgeon where the respondent's failure to observe the relevant professional standards was real, or of substance, and not insubstantial or nominal.
4. Having found that it was established that the relevant standard of conduct was that, in the absence of an emergency, the procedures the subject of the proceedings should have been performed in a registered veterinary clinic or hospital (Reasons, [23], [30)) and that that standard had not been met (Reasons, [30]), the learned Tribunal erred in law in concluding the appellant has failed to establish clearly the standard applicable to those procedures.
Particulars
- (a) The learned Tribunal failed to take into account a relevant consideration it was bound to take into account, namely its own finding that relevant standard of conduct was that, in the absence of an emergency, the procedures the subject of the proceedings should have been performed in a registered veterinary clinic or hospital.
(b) The learned Tribunal took into account an irrelevant consideration, namely that the previous disciplinary orders in relation to the respondent's conduct were made in relation to the metropolitan area and regional cities in Western Australia.
(c) The learned Tribunal took into account an irrelevant consideration, namely that mobile veterinary services have been offered on a wide basis in Western Australia for many years.
5. Having found that the relevant standard of conduct was that, in the absence of an emergency, the procedures the subject of the proceedings should have been performed in a registered veterinary clinic or hospital (Reasons, [23], [30]) and that that standard had not been met (Reasons, [30]), the learned Tribunal erred in law in taking into account an irrelevant consideration, being the respondent's subjective appreciation as to the standard required of him (Reasons [35]).
Particulars of the Board's application
6 In the SAT proceedings, the Board relevantly alleged, pursuant to the Veterinary Surgeons Act 1960 (WA) (the Act) s 23(2a), that Dr Alexander was guilty of unprofessional conduct as a veterinary surgeon in that:
1. ...
(1) On or about 13 June 2006, the respondent performed surgery to sterilise a female Shih Tzu dog owned by Ms Krystal O'Keefe, which surgery was performed by the respondent on the kitchen table in the respondent's residence notwithstanding that:
(a) the respondent's residence was neither a registered veterinary hospital nor a registered veterinary clinic under the Act; and
(b) suitable facilities in a registered veterinary hospital or a registered veterinary clinic were available to the respondent to perform the surgery.
(2) The respondent's conduct set out in paragraph (1), to a substantial degree, violated or fell short of, the standard of professional conduct observed, or approved of, by registered veterinary surgeons of good repute and competency because:
(a) when surgical facilities are available to a veterinary surgeon in premises registered as a veterinary hospital or as a registered veterinary clinic under the Act; and
(b) there are no circumstances which make the surgery an emergency,
the veterinary surgeon should perform surgeries of the nature of that the respondent performed in premises that are either registered as veterinary hospital or as a registered veterinary clinic under the Act.
(3) In the circumstances set out in paragraphs (1) and (2) above the respondent thereby is guilty of unprofessional conduct as a veterinary surgeon pursuant to section 23(4) of the Act.
2. After the commencement of Proceedings VR 187 of 2007, the parties participated in mediations conducted on 15 November 2007 and 20 December 2007 at which the applicant and the respondent agreed the terms upon which the proceedings could be settled by a minute of consent orders dated 20 December 2007.
3. In order to give effect to the agreed terms of settlement of Proceedings VR 187 of 2007, on 3 January 2008 the Tribunal ordered that:
(1) The respondent is guilty of unprofessional conduct as a veterinary surgeon in that the respondent's conduct in performing veterinary surgery in premises that were not registered as either a veterinary hospital or as a registered veterinary clinic under the Act when:
(a) surgical facilities were available to the respondent in premises registered as veterinary hospital or as a registered veterinary clinic under the Act; and
(b) there were no circumstances that made the surgery an emergency,
to a substantial degree, violated or fell short of, the standard of professional conduct observed, or approved of, by registered veterinary surgeons of good repute and competency.
(2) The respondent undertakes to the applicant and the Tribunal that he will refrain from undertaking any veterinary surgery in any premises in the Metropolitan area or Regional Cities in Western Australia that is not a registered Veterinary clinic or a registered veterinary hospital as defined by the Act; and
(3) There be no orders as to the costs.
4. Consequently the respondent undertook to the applicant and the Tribunal that he would refrain from undertaking any veterinary surgery in any premises in the Metropolitan area or Regional Cities in Western Australia that is not a registered Veterinary clinic or a registered veterinary hospital as defined by the Act ('Undertaking').
…
8. Further, on or about 30 June 2008, the respondent performed surgeries to sterilise 2 female tortoise shell cats owned by Ms Rebecca Cool ('Cat Surgeries'), which Cat Surgeries were performed by the respondent in Ms Cool's residence in Bramley River Road, Margaret River, notwithstanding that:
(1) Ms Cool's residence was neither a registered veterinary hospital nor a registered veterinary clinic under the Act;
(2) suitable facilities in a registered veterinary hospital or a registered veterinary clinic were available within the town of Margaret River at which the Cat Surgeries could have been performed; and
(3) the Cat Surgeries did not involve any emergency circumstances.
9. The respondent's conduct set out in ... paragraph 8 above, fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency because:
(a) when surgical facilities are available in premises registered as veterinary hospital or as a registered veterinary clinic under the Act; and
(b) there are no circumstances which make the surgery an emergency,
the veterinary surgeon should perform surgeries of the nature that the respondent performed in premises that are either registered as veterinary hospital or as a registered veterinary clinic under the Act and in the event that a veterinary surgeon does not have access to those facilities he or she should not, other than in the case where an emergency circumstance dictates, perform the surgery.
10. In the circumstances set out in paragraphs ... 8 and 9 above, the respondent thereby is further guilty of unprofessional conduct as a veterinary surgeon pursuant regulation 28(2)(c) of the Veterinary Surgeons Regulations 1979 (Regulations) and to section 23(4) of the Act.
11. By reason of the matters set out in paragraphs 1, 2, 3 and 4 above, the respondent knew or ought to have known that he was engaging in conduct that was unprofessional conduct as a veterinary surgeon pursuant to section 23(4) of the Act ... when he performed the Cat Surgeries, and that conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
12. In the circumstances set out in paragraph 11 above the respondent thereby is further guilty of unprofessional conduct as a veterinary surgeon pursuant to regulation 28(2)(c) of the Regulations and section 23(4) of the Act.
The law relating to appeals from the decisions of SAT
7 This appeal is brought pursuant to the State Administrative Tribunal Act 2004 (WA) (the SAT Act) s 105(1) which provides that a party to a proceeding in SAT may appeal from a decision of SAT in the proceeding, but only if the court to which the appeal lies gives leave to appeal. Further, the SAT Act s 105(2) provides that such an appeal can only be brought on a question of law.
8 In order to determine an appeal brought pursuant to s 105(1), the first issue is whether the appeal raises a question of law. If it does not, the appeal must be dismissed. If the appeal does raise a question of law, leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing). If the appeal court does not believe that it is in the interests of justice to grant leave to appeal, it follows that the appeal must be dismissed. The opposite is also true.
9 In Paridis, Buss JA said that the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 [16] should be taken into account in considering whether to grant leave under the SAT Act s 105(1). Those guidelines included the importance of the question of law, either generally or to the would-be appellant in the particular case, that there was a real or significant argument to be put on that question of law at least to the extent that there was sufficient doubt about it to justify the grant of leave, and that to allow the error to go uncorrected would impose substantial injustice. However, Buss JA said that those guidelines are not rigid or exhaustive and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice.
10 Senior counsel for the Board acknowledged that those guidelines and the overriding interests of justice meant that it would be open to an appeal court to find that although a question of law may be decided in favour of an appellant, it was not in the interests of justice to grant leave to appeal because of considerations unique to that matter, including the length of time the proceedings have been on foot, the significance of the alleged breaches of professional conduct, the nature of the disciplinary action sought by the Board, whether the alleged unprofessional conduct is ongoing and whether any matter of legal principle raised by the appeal can be corrected without giving leave to appeal.
What is a question of law?
11 A ground of appeal which alleges that SAT has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law, as does a ground that SAT took into account an irrelevant consideration: Paridis [57]; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [53]. A tribunal will also make an error of law if it asks itself the wrong question or identifies the wrong issue: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.
The statutory framework relating to disciplinary proceedings against veterinary surgeons
12 The Act s 23 relevantly states:
(2a) The Board may allege to the State Administrative Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon.
(2aa) If, in a proceeding commenced by an allegation under subsection (2a), the State Administrative Tribunal is satisfied that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon, the Tribunal may -
(a) reprimand the veterinary surgeon;
(b) require the veterinary surgeon to give an undertaking to refrain from such conduct as may be specified by the Board;
(c) fine the veterinary surgeon an amount not exceeding $1 000;
(d) order the suspension of the registration of that veterinary surgeon for such period not exceeding 12 months, as the Tribunal thinks fit;
(e) order the removal of the name of that veterinary surgeon from the Register;
(f) order the imposition of conditions as to the registration of that veterinary surgeon or restrictions on the practice of veterinary surgery by that person.
…
(4) Without limiting the meaning of the expression, unprofessional conduct as a veterinary surgeon, a registered veterinary surgeon is guilty of such unprofessional conduct if that person -
(a) is an habitual drunkard; or
(b) is habitually addicted to drugs; or
(c) contravenes any of the provisions of section 26A(2) or (3); or
(d) advertises in any way in respect of the profession of a veterinary surgeon otherwise than in accordance with the regulations, or so advertises in contravention of the regulations; or
(e) does not observe the standards of professional conduct as prescribed; or
(f) contravenes any condition or restriction imposed on or in relation to the registration of that person as a veterinary surgeon.
- Section 26A(2) and (3) are not relevant.
13 The Board also alleged that the respondent was guilty of unprofessional conduct as a veterinary surgeon pursuant to the Veterinary Surgeons Regulations 1979 (WA) (the Regulations) reg 28(2)(c). Regulation 28 relevantly states:
(1) For the purposes of section 23(4) of the Act, this regulation sets out the standards of professional conduct to be observed by registered veterinary surgeons.
(2) A registered veterinary surgeon engages in unprofessional conduct if he or she -
(a) contravenes any provision of the Act or these regulations; or
(b) is convicted of an offence under -
(i) the Animal Welfare Act 2002; or
(ii) the Biosecurity and Agriculture Management Act 2007; or
(iii) the Exotic Diseases of Animals Act 1993; or
(iv) the Poisons Act 1964; or
[(v) deleted]
(vi) the Veterinary Chemical Control and Animal Feeding Stuffs Act 1976;
or
(c) otherwise falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
15 Read with s 23(2aa), it is clear that SAT may discipline a veterinary surgeon if it is satisfied that he or she is guilty of unprofessional conduct as a veterinary surgeon. Neither the Act nor the Regulations say that they provide an exclusive definition of 'unprofessional conduct as a veterinary surgeon'. The Act s 23(4) provides an inclusive definition which expressly states that it does not limit the meaning of the expression. The Regulations reg 28(2) states the standards of professional conduct which are prescribed for the purpose of s 23(4).
16 In order to determine whether a veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon for the purpose of s 23(2)(a), it would often be convenient to commence by considering whether the Board had proved one of the matters in s 23(4). This, in turn, may require a consideration of whether any of the matters in reg 28(2) had been proved.
17 If the Board had not proved one of those requirements, it says that the veterinary surgeon could still be found guilty of unprofessional conduct for some other reason. It relies on two matters to support this contention:
(1) that s 23(2a) and s 23(2aa) enable SAT to discipline a veterinary surgeon for unprofessional conduct as a veterinary surgeon. The Board says is a broader concept than conduct which falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency, which is the standard of behaviour prescribed by reg 28(2)(c); and
(2) that the opening phrase of s 23(4) specifically purports not to limit the meaning of the expression, unprofessional conduct as a veterinary surgeon.
18 The first basis for the Board's contention is inconsistent with the interpretation of unprofessional conduct in other statutory contexts. For example, the Legal Practitioners Act 1893 (WA) (repealed) div 2 provided for disciplinary proceedings against legal practitioners. Such proceedings could occur where, amongst other things, a practitioner was guilty of 'unprofessional conduct'. In Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467, 476, Malcolm CJ (Franklyn & Wheeler JJ concurring) said:
Unprofessional conduct has been defined as conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed, or approved of, by members of the profession of good repute and competency: see Re a Practitioner of the Supreme Court [1927] SASR 58 at 61. This definition was approved by the Full Court in Hoffman v Musk (unreported, Supreme Court, WA, Full Court, Library No 8325, 20 June 1990).
19 Thus, even though the relevant statute only proscribed 'unprofessional conduct', this was construed as being conduct which fell short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute and competency.
20 The second basis for the Board's argument has more merit. As it is necessary to give the opening phrase of s 23(4) meaning, it must be accepted that the words 'unprofessional conduct as a veterinary surgeon' may include conduct which is not specified in s 23(4) and prescribed in the Regulations reg 28.
Ground 1
21 In essence, in ground 1 the Board complains that SAT asked itself the wrong question and thereby substituted a different test to that contained in s 23(2a). In other words, instead of asking itself whether it was satisfied that the respondent was guilty of unprofessional conduct as a veterinary surgeon, it asked itself whether it was satisfied that the respondent was guilty of conduct which was unprofessional, and also fell substantially short of the required standard of conduct of a veterinary surgeon.
22 In analysing this ground of appeal, it is first necessary to identify the question or test which SAT applied.
23 SAT stated that the two expert witnesses, Dr McDonald and Dr Moore, were in agreement that the cat surgeries 'constituted unprofessional conduct' [23]. SAT then identified the question for its consideration as being whether the conduct of the respondent fell 'substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency'. SAT immediately cited the Regulations reg 28(2)(c) as the origin of this test. It then said:
The statutory framework within which veterinarians conduct their profession does not require that any conduct that fails to comply with the expected standards would attract disciplinary action. The [Regulations] therefore uses the word 'substantial' as a guide as to when disciplinary action is justified [24].
24 SAT confirmed this view of the relevant statutory test by saying that the Board had to satisfy it that the conduct of the respondent fell substantially short of the standard expected within the veterinary profession [27]. SAT went on to say that the Board had not met that test because although it had been established that the conduct of the respondent was unprofessional, it was not satisfied that the respondent's conduct fell 'substantially short of the conduct that can be expected to be observed by members of the veterinary profession'.
25 After discussing what 'substantially' meant in this context, SAT said that it was up to it to assess, with the benefit of all the evidence before it, whether the respondent's conduct was substantially below the expected standard. It found that the respondent's conduct did not meet this test. SAT identified reasons for this finding, including that:
(1) there was an absence of guidelines, policies, training material, regulations or any form of educational information to registered veterinarians about the provision of mobile veterinarian services; the type of services that could be rendered; the standard to be adhered to; and matters related to mobile services;
(2) the provision of mobile veterinary services are common, useful and essential;
(3) previous disciplinary proceedings against the respondent had failed to establish clearly the standard for mobile veterinary services;
(4) Dr Moore gave evidence that there may have been confusion in the respondent's mind about what type of services may be rendered by him outside of a registered veterinary clinic or hospital in the Margaret River area;
(5) Dr Moore was of the opinion that although he did not regard sterilisation as a minor surgery, he is aware of situations 'where vets have in the past gone to remote country towns and undertaken spay'; and
(6) the evidence of Dr Moore highlights the lack of clear guidelines or policies in regard to the performance of sterilisations outside of a registered clinic or hospital.
26 It is clear that SAT asked itself whether the respondent's relevant conduct fell substantially short of the conduct that can be expected to be observed by members of the veterinary profession. This question is consistent with the test in reg 28(2)(c). It regarded this as being the ultimate test of whether the respondent was guilty of unprofessional conduct as a veterinary surgeon.
27 This ground of appeal raises a question of law. Arguably, SAT erred in law when, despite finding that the respondent's conduct was unprofessional, which was the ultimate question for it under the Act s 23(2aa), it found that the respondent was not guilty of unprofessional conduct as a veterinary surgeon. The two findings do not appear to be consistent. However, for the following reasons, I am not prepared to grant leave to appeal on this ground:
(1) the Board's amended application to SAT relevantly alleged that the respondent's conduct in performing the cat surgeries 'fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency' [9];
(2) the Board's amended application to SAT further alleged that in those and other circumstances the respondent was guilty of unprofessional conduct pursuant to the Regulations reg 28(2)(c) and the Act s 23(4);
(3) at the initial hearing of the amended application, the Board told SAT that the issue was whether the respondent's conduct fell 'substantially short' of the standard of professional conduct expected of members of the veterinary profession (ts 13, 19, 35, 17 August 2010);
(4) SAT's decision of 28 November 2011 articulated the test of unprofessional conduct as being that stated in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 which, in turn, is whether the impugned conduct 'would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence or that, to a substantial degree, falls short of the standards of professional conduct observed or approved by members of the profession of good repute and competence' [28];
(5) this articulation of the relevant test was not appealed in the first appeal brought by the Board against SAT's decision; and
(6) in the Board's submissions dated 16 July 2013 which it made to SAT on remittal of the matter to SAT after its successful appeal, the Board stated the issue for SAT as being whether the conduct of the respondent, in performing the cat surgeries, 'fell substantially short of the standards of professional conduct for the purposes of' the Act s 23(2a) and the Regulations reg 28(2)(c);
28 Given (1) to (3) above, SAT's statements that the experts were of the opinion that the respondent's conduct was unprofessional and that the respondent did not dispute those opinions, although unhelpful and apt to confuse, do not seem to have been a finding by SAT on the ultimate issue before it. I am satisfied that SAT, by those statements, was saying that it was not in dispute that the respondent's conduct had fallen short of the required standard. It then went on to consider whether, as alleged by the Board, the respondent's conduct fell substantially short of the required standard. This was the issue which, in accordance with the Board's case, SAT was asked to decide. It may be that the Board set itself a higher standard than was required under the statute. However, that should be decided in a case where the Board articulates its case differently in SAT.
29 SAT is not a court of pleadings and it was not bound to decide the Board's application on the basis of the particulars contained in the Board's amended application and submissions. However, the combination of the above factors together with the age of the disciplinary proceedings and that this is the second appeal in them mean that it would not now be in the interests of justice to grant leave to appeal on this ground. Neither, would it be fair to the respondent to do so given that he defended the disciplinary proceedings on the basis that the Board alleged that his conduct fell substantially short of the required standard and that this is what it had to prove before he could be found guilty of unprofessional conduct as a veterinary surgeon.
Ground 2
30 In its reasons SAT said:
In the case of a disciplinary proceeding, an allegation that conduct is 'substantially' short of the conduct that could be expected implies more than a mere breach of a professional standard. The conduct must be considerably or significantly short of the required conduct - hence, the use of the word 'substantial' - and the Tribunal must feel an actual persuasion that the conduct requires disciplinary sanction. It is the obligation of the applicant to demonstrate to the satisfaction of the Tribunal that the conduct falls substantially short or the expected standard [emphasis added] [31].
31 The Board complains that the italicised words in [31] are an extra-statutory element to the test for unprofessional conduct. Thus, they are an error of law.
32 The Board is unable to locate a precise source for SAT's comment. It submits that it may be a misapplication of the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. That is, it says that SAT appears to have applied the principles in Briginshaw concerning the standard of proof to the determination of the ultimate legal issue before it. The Board says that in this case all the relevant facts were established to the required standard of proof. It says that it was the characterisation of those facts that remained in issue and it was irrelevant whether SAT was persuaded that the conduct required disciplinary sanction.
33 It may be that the source of SAT's comment was Dixon J's judgment in Briginshaw where his Honour said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found....No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must effect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal [emphasis added] [361] - [362].
34 Taking into account Dixon J's comments, it was not an error for SAT to take into account in deciding whether the Board had proven that the respondent was guilty of unprofessional conduct that such a finding would result in a finding of unprofessional conduct and a disciplinary sanction being imposed on the respondent.
35 On the other hand, it is arguable that there may have been some error by SAT in the manner in which it stated the principle as if it was a matter relevant to whether the respondent's conduct in performing the cat surgeries fell substantially short of the conduct that could be expected of a veterinary surgeon of good repute as opposed to conduct which simply fell short of that standard.
36 First, to the extent that SAT made the error as alleged, on a reading of the whole of its reasons, I am of the view that it did not significantly contribute to SAT's decision. The impugned proposition was mentioned once and not referred to again, even obliquely, in SAT's reasons.
37 In all the circumstances, I am not satisfied that it is in the interests of justice that the Board be granted leave to appeal on ground 2.
Ground 3
38 Ground 3 is in the alternative, in that in this ground the Board assumes that the relevant test for SAT to determine was whether it (the Board) had proved that the respondent's conduct fell substantially short of the required standard. This ground challenges SAT's definition of conduct that falls substantially short of the standards of professional conduct that could reasonably be expected to be observed of a veterinary surgeon of good repute and competency.
39 For the reasons which I have given in respect of ground 1, whether or not as a matter of law the Board had to prove that the respondent's conduct fell substantially short of the required standard, that is what it sought to prove.
40 First, the Board complains that SAT adopted the meaning of 'substantial' referred to by Deane J in Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & others [1979] FCA 132; (1979) 27 ALR 367 [348] where his Honour referred to the guidance given by Viscount Simon in Palser v Grinling [1948] AC 291 that the meaning of the word 'substantial' was equivalent to 'considerable, solid or big'. The Board says that this was an error because Deane J went on to say that he was inclined to the view that the phrase 'under consideration' in Tillmans of 'substantial loss of damage' included 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.
41 I would not grant leave to appeal on this ground if the Board is suggesting that SAT made an error of law in adopting the definition of 'substantial' from Palser. It is clear that all SAT did at the point in its reasons where it referred to Tillmans and Palser was to repeat the submissions of the respondent. It did not adopt them. This is apparent from the immediately preceding portion of its reasons where it has stated that the Board's position was that it had not offered any guide as to what constituted conduct which fell substantially short of the required standard.
42 However, the Board goes on to assert that SAT was in error in not adopting the meaning of 'substantial' which Deane J preferred in Tillmans. That is, the Board says that 'substantially' in reg 28(2)(c) of the Regulations is used to denote a real and not merely theoretical departure from a standard of conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
43 I would not grant leave to appeal on this ground for two reasons. First, as SAT said in [30] the Board did not offer any guidance to it on the meaning of 'substantially'. It simply submitted that the only conclusion that could be drawn from the expert evidence was that the respondent's conduct was not only unsatisfactory but that it fell 'substantially short' of the standards that could reasonably be expected. Given the convoluted and prolonged history of this matter, it is not in the interests of justice for the Board to be permitted to raise an issue on appeal that was not fully ventilated at first instance.
44 Secondly, it is not clear to me that SAT erred in adopting an erroneous interpretation of substantially or that it was necessary for it to define the statutory test more precisely. After stating the parties' positions, SAT then made the comments which I have quoted above [31]. Its conclusion was that after considering all the evidence it was not satisfied that the applicant had shown that the conduct of the respondent fell substantially short of the professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency [39]. Other than finding that proof of conduct which fell substantially short of the required standard, required proof of something more than a mere breach of a professional standard, I am not persuaded that SAT did anything more than determine, in accordance with the words of reg 28(2)(c), that the respondent's conduct had not been proven to fall substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
45 For these reasons it is not in the interests of justice that the Board be given leave to appeal on ground 3.
Ground 4
46 The Board has sought to characterise as errors of law what it believes are defects in SAT's reasoning. I am not satisfied that this ground alleges errors of law, or that, if it does, that it is arguable that the errors were made.
47 First, the Board alleges that SAT failed to take into account its own finding that, in the absence of an emergency, the cat surgeries should have been performed in a registered veterinary clinic or hospital. In my opinion, SAT took this finding into account but did not give it the weight which the Board says the finding should have been given. This is not an error of law.
48 Secondly, the Board alleges that SAT took into account an irrelevant consideration that previous disciplinary orders against the respondent were made in relation to conduct in the metropolitan area and regional cities in Western Australia. The previous disciplinary proceedings and the orders made in them were particularised in the Board's application to SAT as reasons why the respondent ought to have known that he was engaging in unprofessional conduct [11]. In my opinion it is not now open to the Board to complain that they were an irrelevant consideration. It was a matter for SAT to determine the weight to be given to those matters.
49 Further, the Board had led evidence in respect of the previous disciplinary proceedings brought against the respondent, including evidence of the allegations made against the respondent in those proceedings and the consent order that was made disposing of them. It cannot be said that the consent order that the respondent would not perform surgeries on dogs in the metropolitan or regional cities away from veterinary hospitals was entirely irrelevant to the allegation made against the respondent in respect of the cat surgeries, which were performed in the Margaret River area.
50 Thirdly, the Board alleges that SAT took into account an irrelevant consideration that mobile veterinary services have been offered on a wide basis in Western Australia for many years. Again, in my view this is not an irrelevant consideration. Again, it was a matter for SAT to decide what weight to give to that issue.
Ground 5
51 The Board complains that SAT erred in law in taking into account an irrelevant consideration, being the respondent's subjective appreciation of the standard required of him, in circumstances where SAT had found that, in the absence of an emergency, the cat surgeries should have been performed in a registered veterinary clinic or hospital and that that standard had not been met.
52 The particular portion of SAT's reasons which the Board relies upon to prove this error is contained in the following paragraph:
Dr Moore observes in his evidence (T:121; 18.08.10) that there may have been confusion in the mind of the respondent about where what type of services may be rendered. Dr Moore says:
I think Dr Alexander spoke to me and said he couldn't do any surgeries in the metropolitan area. I don't know if he was aware that that included Margaret River [35].
54 Reading par [34] - [38] as a whole, I do not think that it is possible to say that SAT took the respondent's subjective opinion as to whether he was entitled to perform the cat surgeries in the Margaret River area into account as an independent consideration which was relevant to whether the respondent was guilty of unprofessional conduct. It seems equally likely to me that SAT considered a number of different considerations which together supported Dr Moore's evidence that there was a lack of clear guidelines or policies in regard to the performance of cat surgeries outside of a registered veterinary clinic or hospital. This, together with the evidence that cat surgeries had been offered on a wide basis for many years, supported SAT's conclusion that the respondent's conduct in performing the cat surgeries in the Margaret River area was not conduct which fell substantially short of the professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency. That is not a conclusion which the Board agrees with. However I do not accept that SAT erred in law in taking into account in coming to that conclusion that the respondent, even after having been the subject of previous disciplinary proceedings, and despite being a veterinary surgeon of some years standing, was confused as to whether such surgeries, in the absence of an emergency, should be conducted only in a registered veterinary clinic or hospital. In taking the consideration into account in that way, SAT did not say that it was judging the respondent by his own understanding of the required standard. Rather, SAT used the respondent's understanding, as an example, of what was understood, or not understood by a registered veterinary surgeon. In doing so, SAT may have given some weight to the respondent's opinion as if it was the view of a reputable veterinary surgeon. The Board may not have given the respondent's opinion this credence. However, I am not prepared to find that it was not open for SAT to have taken the respondent's opinion, as expressed to Dr Moore, into account in this manner.
55 Further, it is relevant to note that the Board itself relied on what it said the respondent ought to have known of the standard required of him. It did so in order to prove that the respondent was guilty of unprofessional conduct. In that circumstance it seems to be unreasonable for the Board to complain that if SAT came to a different view of the respondent's actual knowledge that it was an irrelevant consideration.
56 I would not give leave to appeal on ground 5.
Conclusion
57 For the above reasons, I would not give leave to appeal on any ground of appeal and the appeal is dismissed.
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