Veterinary Surgeons Board of Western Australia v Alexander - [2013] WASC 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: VETERINARY SURGEONS BOARD OF WESTERN AUSTRALIA -v- ALEXANDER [2013] WASC 136

CORAM: PRITCHARD J

HEARD: 29 OCTOBER 2012 & ON THE PAPERS

DELIVERED : 19 APRIL 2013

FILE NO/S: GDA 24 of 2011

BETWEEN: VETERINARY SURGEONS BOARD OF WESTERN AUSTRALIA
Applicant
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 [2011] WASAT 175
File No :VR 50 of 2009

Catchwords:

Appeal - Disciplinary proceedings - Finding that veterinary surgeon not guilty of professional misconduct - Alleged errors of law - Whether right of appeal under State Administrative Tribunal Act 2004 (WA) affected by common law rules on double jeopardy - Whether error of law in interpreting undertaking - Whether tribunal took into account irrelevant considerations - Whether tribunal failed to take into account relevant considerations - Whether tribunal provided adequate reasons - Whether decision of tribunal was manifestly unreasonable

Legislation:

State Administrative Tribunal Act 2004 (WA)
Veterinary Surgeons Act 1960 (WA)
Veterinary Surgeons Regulations 1979 (WA)

Result:

Appeal upheld in part

Category: B

Representation:

Counsel:

Applicant: Mr G M Abbott
Respondent: Mr B W Ashdown

Solicitors:

Applicant: Tottle Partners
Respondent: Bradford & Co

Case(s) referred to in judgment(s):

AB v The State of Western Australia [2011] HCA 42
Allbeury v Corruption and Crime Commission [2012] WASCA 84
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Athens v Randwick City Council (2005) 64 NSWLR 58
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Ballantyne v Workcover Authority of New South Wales [2007] NSWCA 239
Briginshaw v Briginshaw (1938) 60 CLR 336
Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257
Chin v Legal Practice Board Western Australia [2009] WASCA 117
CI & D Manufacturing Pty Ltd v Registrar, Industrial Court of New South Wales (1996) 40 NSWLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clark v Flanagan (1934) 52 CLR 416
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Davern v Messel (1984) 155 CLR 21
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431
Gill v Walton (1991) 25 NSWLR 190
Grayndler v Cunich (1939) 62 CLR 573
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Hope v Bathurst City Council (1980) 144 CLR 1
Island Maritime Ltd v Filipowski (2006) 226 CLR 328
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Kirby v The Prisoners Review Board [2011] WASCA 149
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Services Commission v Turner [2012] VSC 394
Liquorland (Australia) Pty Ltd v Executive Director of Public Health [2013] WASC 51
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Physiotherapists Registration Board v Townsend [2008] WASCA 25
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Psychologists Board of Queensland v Robinson [2004] QCA 405
Qidwai v Brown [1984] 1 NSWLR 100
R v Jenkins [1970] Tas SR 13
R v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30, (2003) 77 ALJR 1165
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Repatriation Commission v Nation (1995) 57 FCR 25
Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233
The King v Wilkes (1948) 77 CLR 511
The Life Insurance Company of Australia Limited v Phillips (1925) 36 CLR 60
The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Valance v The Queen (1961) 108 CLR 56
Walton v Gardiner (1993) 177 CLR 378
Wee v Law Society of Singapore [1985] 1 WLR 362
Xie Mian Shen v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 9 August 1995)

Table of Contents

1.     The statutory framework for the issues before the Tribunal
2.     An overview of the evidence before the Tribunal, the agreed facts, the Terms of Settlement and the 2008 Orders
3.     The Tribunal's decision

The Tribunal's reasons in relation to whether the performance of the miscellaneous surgeries constituted a breach of the undertaking
The Tribunal's reasons in relation to whether Dr Alexander's performance of the cat sterilisation surgeries and the miscellaneous surgeries constituted unprofessional conduct

4. The grounds of appeal
5. Does the Board have a right of appeal against the decision of the Tribunal, and if so, should leave to appeal be granted?

The right of appeal under s 105 of the SAT Act
Whether leave to appeal should be refused having regard to the nature of the appeal
Whether the appeal grounds raise questions of law

6. Did the Tribunal err in law in reaching its conclusion that Dr Alexander's performance of the miscellaneous surgeries did not breach the undertaking?

(a) Do grounds of appeal 1 ‑ 1.2 raise errors of law?

(b) Should leave to appeal be granted in respect of grounds 1-1.2?

Grounds 1 and 1.1(1)
Grounds 1.1(2)(a) ‑ (d)
Ground 1.2

7. Did the Tribunal err in law in reaching its conclusion that the performance of the cat sterilisation surgeries did not constitute unprofessional conduct as a veterinary surgeon?

Ground 2.9

The Joint Statement of Experts

8. Did the Tribunal err in law in reaching its conclusion that the performance of the miscellaneous surgeries did not constitute unprofessional conduct as a veterinary surgeon?

Ground 3
Grounds 3.1 and 3.2
Ground 3.4(1) - taking into account irrelevant considerations
Ground 3.4(1) - alleged irrelevant considerations resulting in an unreasonable decision
Grounds 3.4(2), (3) and (4)
Ground 3.5

9. Conclusion and orders

PRITCHARD J: Dr Alexander is a veterinary surgeon. He offers mobile home veterinary services by which certain veterinary services, including some forms of surgery, are carried out at places other than veterinary hospitals or clinics.
In December 2007, Dr Alexander was the subject of disciplinary proceedings in the State Administrative Tribunal brought by the Veterinary Surgeons' Board of Western Australia after he performed surgery to sterilise a female dog in a premises in Perth that was not a veterinary hospital or a veterinary clinic (VR 187 of 2007). The disciplinary proceedings in VR 187 of 2007 were the subject of a mediation in the Tribunal, as a result of which the Board and Dr Alexander entered into an agreement as to the terms of the settlement of the proceedings. The Tribunal then made orders with the consent of the parties on 3 January 2008. The terms of those orders are set out below. They comprise, in effect, a statement of the terms on which it was agreed that the orders should be made (the Terms of Settlement) and the formal finding of the Tribunal and its disposition of the proceedings (the 2008 Orders) which included the provision of an undertaking by Dr Alexander (the undertaking).
On various occasions in 2008 and 2009, within the Perth metropolitan area, Dr Alexander performed surgery on six dogs and a cat (the miscellaneous surgeries) at the homes of each of the animals' owners. The details of the miscellaneous surgeries are set out below.
On 30 June 2008, Dr Alexander performed surgery to sterilise two cats. The surgery was performed at the home of the cats' owner, not far from Margaret River (the cat sterilisation surgeries).
In 2009 the Board brought an application in the Tribunal (the Board's application) alleging that Dr Alexander had engaged in unprofessional conduct within the meaning of the Veterinary Surgeons Act 1960 (WA) (the VS Act). The Board alleged that by undertaking the miscellaneous surgeries Dr Alexander had acted in breach of the undertaking, and that that breach constituted unprofessional conduct. Alternatively the Board alleged that in the circumstances in which they were performed, the miscellaneous surgeries constituted unprofessional conduct by Dr Alexander. (Although the miscellaneous surgeries comprised seven discrete acts, the Board relied upon them as the foundation for one allegation of unprofessional conduct). Finally, the Board alleged that the performance of the cat sterilisation surgeries constituted unprofessional conduct by Dr Alexander. (Again, although there were in fact two instances of cat sterilisation surgery alleged, the Board relied upon these as the foundation for one allegation of unprofessional conduct).
Following a hearing, the Tribunal dismissed the Board's application. It concluded that the performance of the miscellaneous surgeries did not constitute a breach of the undertaking, and that Dr Alexander's performance of those surgeries did not constitute unprofessional conduct as a veterinary surgeon. The Tribunal also concluded that the performance of the cat sterilisation surgeries did not constitute unprofessional conduct as a veterinary surgeon.
The Board now appeals against the Tribunal's decision, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). Counsel for Dr Alexander submitted that in this case, the statutory right of appeal in s 105 of the SAT Act did not apply because its application would expose Dr Alexander to the double jeopardy of an appeal against the Tribunal's dismissal of the allegations against him.
In addition, counsel for Dr Alexander submitted that even if the statutory right of appeal in s 105 of the SAT Act applies, leave to appeal should be refused. Counsel for Dr Alexander submitted that there was no error of law by the Tribunal in reaching its decision.
For the reasons set out below, I have concluded that the right of appeal (subject to the grant of leave) in s 105 of the SAT Act applies in the present case, that leave to appeal should be granted in respect of some of the grounds of appeal, and that the appeal should be partly upheld and otherwise dismissed.
These reasons deal with the following matters:
1.the statutory framework for the issues before the Tribunal;
2.an overview of the evidence before the Tribunal, the agreed facts, the Terms of Settlement and the 2008 Orders;
3.the Tribunal's decision;
4.the grounds of appeal;
5.does the Board have a right of appeal against the decision of the Tribunal? If so, should leave to appeal be granted?
6.did the Tribunal err in law in reaching its conclusion that Dr Alexander's performance of the miscellaneous surgeries did not breach the undertaking?
7.did the Tribunal err in law in reaching its conclusion that the performance of the cat surgeries did not constitute unprofessional conduct as a veterinary surgeon?
8.did the Tribunal err in law in reaching its conclusion that the performance of the miscellaneous surgeries did not constitute unprofessional conduct as a veterinary surgeon? and
9.conclusion and orders.

The statutory framework for the issues before the Tribunal

The Board's application to the Tribunal was made pursuant to s 23(2a) of the VS Act. Under that subsection, the Board may allege to the Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon. A veterinary surgeon will be guilty of unprofessional conduct if, amongst other things, that person does not observe the standards of professional conduct as prescribed.[1]
[1] VS Act s 23(4)(e).
Regulation 28 of the Veterinary Surgeons Regulations 1979 (WA) (the VS Regulations) prescribes the standards of professional conduct to be observed by registered veterinary surgeons.[2] That regulation provides, amongst other things, that a registered veterinary surgeon will engage in unprofessional conduct if he or she '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'. (For ease of reference in these reasons I will refer to those standards, in shorthand, as the standards of professional conduct.) This was the basis for the allegations of unprofessional conduct by Dr Alexander.
[2] VS Regulations r 28(1).
In order to understand the issues before the Tribunal and the Tribunal's reasons for decision, it is necessary to bear in mind some other aspects of the VS Act. The first is that 'veterinary surgery' is defined very broadly in s 2 of the VS Act to encompass examination of an animal, diagnosis, treatment of any kind and the provision of advice. The definition is in the following terms:
[T]he art and science of veterinary surgery and veterinary medicine, and, without limiting the generality of the foregoing, includes -
(a)the examination of any animal for the purpose of the diagnosis of disease in, or injury to, that animal, or the conduct of tests, whether physiological or pathological, on any animal for diagnostic purposes; and
(b)the provision of advice based upon diagnosis of disease of, or injury to, any animal; and
(c)the surgical or medical treatment of any animal; and
(d)the giving of any anaesthetic to, or the performance of surgical operations on, any animal; and
(e)the doing or performing of any act, matter, procedure, or thing that is prescribed pursuant to section 31 as forming part of the practice of veterinary surgery.
Secondly, with some limited exceptions, the VS Act prohibits persons other than registered veterinary surgeons from practising veterinary surgery.[3] Among the exceptions to that prohibition is that any person may perform such veterinary services which are prescribed.[4] Among the veterinary services which have been prescribed are 'dressing and suturing wounds'.[5]
[3] VS Act s 26(1).
[4] VS Act s 26(3)(e).
[5] VS Regulations r 45.
Thirdly, the VS Act contemplates that veterinary services will sometimes be carried out at a veterinary clinic[6] or veterinary hospital[7] and it is an offence to carry on a veterinary clinic or veterinary hospital unless that clinic or hospital is registered.[8] However, the VS Act does not require that veterinary surgery be performed only at registered veterinary hospitals or clinics, nor does the VS Act prohibit the performance of veterinary surgery at particular places.

An overview of the evidence before the Tribunal, the agreed facts, the Terms of Settlement and the 2008 Orders
[6] A 'veterinary clinic' is 'any premises at which veterinary surgery is practised, but at which animals are not retained overnight': VS Act s 2.
[7] A 'veterinary hospital' is 'any premises at which veterinary surgery is practised at which animals receive treatment, nursing care, and other services required for the reception, treatment and care of animals suffering from disease or injury or in need of surgical or medical treatment or assistance': VS Act s 2.
[8] VS Act s 24A. A veterinary clinic or hospital is not able to be registered unless the premises are constructed, equipped, controlled, managed and operated in such manner as is prescribed, or if not prescribed, in a manner approved by the Board: VS Act s 24A(2)(a). Amongst other things which are prescribed, a veterinary hospital must have an examination room, a preparation room containing instruments and sterilisation facilities and an operating theatre: VS Regulations r 41. Similarly a veterinary clinic must have an examination room which may also be used as a preparation room, and an operating room: VS Regulations r 42.

The Tribunal had before it the Board's application, its statement of facts and contentions, Dr Alexander's response, correspondence confirming the facts which were agreed, a copy of the Terms of Settlement and the 2008 Orders, various documents relating to the allegations, and documents tendered in the course of the hearing, including documents relating to standards or guidelines promulgated by veterinary boards in other States.
The Tribunal received written and oral evidence from two experts, Dr Macdonald and Dr Moore, each of whom were veterinary surgeons of many years' standing. Dr Macdonald and Dr Moore each provided a written witness statement, and also provided the Tribunal with a 'Joint Statement of the Experts', in which they outlined the matters on which they agreed and disagreed.
Dr Alexander provided a written witness statement and was cross‑examined by counsel for the Board. In addition, Dr Alexander called Mr Martyn Beaumont, a former animal welfare officer for the RSPCA, to give evidence, and Mr Beaumont was cross‑examined by counsel for the Board.
The material facts in relation to the miscellaneous surgeries were not in dispute. It was accepted that Dr Alexander performed the following instances of veterinary surgery within the Perth metropolitan area:

Date Nature of veterinary surgery performed Animal

8 January 2008 Surgical removal of lump Male dog

28 January 2008 Sutured wounds from dog attack Male dog

28 February 2008 Clean teeth and extract three (3) cheek teeth Female dog

April 2008 Extracted four teeth 14‑year‑old female dog

15 April 2008 Wound on flank, grass seed abscess ... Anaesthetised. 7‑year‑old male dog

4 July 2008 Extracted fifteen (15) teeth Male dog

February 2009 Anaesthetised and extracted teeth 5‑year‑old cat

It was not in dispute that each of these surgeries was carried out in premises that was not a registered veterinary hospital or clinic, that registered veterinary hospitals or clinics were available in the Perth metropolitan area at the time, that the surgeries were undertaken in circumstances that were not an emergency, and that the procedures in each case fell within the definition of 'veterinary surgery' in the VS Act.
The material facts in relation to the cat sterilisation surgeries were not in dispute either. Those facts were that on 30 June 2008, Dr Alexander performed surgery to sterilise two female cats, that the surgery was conducted at the residence of the cats' owner which was not far from Margaret River, that that residence was not a registered veterinary hospital or clinic, that registered veterinary hospital and clinic facilities were available in Margaret River at the time, that the circumstances were not such as to constitute an emergency, and that the cat sterilisation surgeries fell within the definition of 'veterinary surgery' in the VS Act.
The content of the Terms of Settlement and the 2008 Orders was not in dispute. That part of the Tribunal's orders which comprised the Terms of Settlement provided as follows:
1.That on or about 13 June 2006, Dr Alexander performed surgery to sterilize a female Shih Tzu dog, which surgery was performed by Dr Alexander on the kitchen table in Dr Alexander's residence notwithstanding that:
(a)Dr Alexander's residence was neither a registered veterinary hospital nor a registered veterinary clinic under the Veterinary Surgeons Act 1960; and
(b)suitable facilities in a registered veterinary hospital or a registered veterinary clinic were available to Dr Alexander to perform the surgery.
2.Dr Alexander'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 Veterinary Surgeons Act 1960; and
(b) there are no circumstances which make the surgery an emergency,
the veterinary surgeon should perform surgeries of the nature that Dr Alexander performed in premises that are either registered as [a] veterinary hospital or as a registered veterinary clinic under the Act.
3.In the circumstances set out in paragraphs 1 and 2 above[,] Dr Alexander thereby is guilty of unprofessional conduct as a veterinary surgeon pursuant to s.23(4) of the [VS Act].
AGREEMENT
After the commencement of these proceedings[,] the parties participate in the mediation conducted on the 15 November 2007 and 20 December 2007 at which the Veterinary Surgeons Board of Western Australia and Dr Alexander agreed the terms upon which the proceedings could be settled by a minute of proposed consent orders dated 20 December 2007 [sic].

The 2008 Orders, including the undertaking (in par 2), were in the following terms:
ORDER
In order to give effect to the agreed terms of settlement of the proceeding, by consent orders that:
1.Dr Kurt Alexander is guilty of unprofessional conduct as a veterinary surgeon in that Dr Alexander'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 [VS Act] when:
(a)surgical facilities were available to Dr Alexander in premises registered as a veterinary hospital or as a registered veterinary clinic under the [VS 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.Dr Kurt Alexander undertakes to the Veterinary Surgeons Board and this 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 registered veterinary hospital as defined by the [VS Act].
3.There be no order as to costs.

The Tribunal's decision

As a starting point for considering the alleged errors made by the Tribunal, it is convenient to set out in summary how the Tribunal reached its decision.

The Tribunal's reasons in relation to whether the performance of the miscellaneous surgeries constituted a breach of the undertaking

The Tribunal held that the Board had not established that Dr Alexander breached the undertaking by performing the miscellaneous surgeries.[9] The reasons for this conclusion were, in summary, as follows.
[9] The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175 [41] (the RFD).
First, the Tribunal held that the words 'any veterinary surgery' in the 2008 Orders should not be interpreted as referring to any 'veterinary surgery' as defined in s 2 of the VS Act, but rather should be construed as referring to veterinary 'surgeries of the nature' performed by Dr Alexander (namely the sterilisation of a female dog).[10] The Tribunal's reasoning was that the terms used in the Terms of Settlement and the 2008 Orders were inconsistent,[11] in that the Terms of Settlement referred to the sterilisation of a female dog, while the 2008 Orders referred to 'any veterinary surgery'.[12] The Tribunal concluded that although the reference in the 2008 Orders to 'any veterinary surgery' appeared at first glance to cover a substantially wider field than that of the sterilisation of a female dog,[13] the 2008 Orders had to be read against the surrounding circumstances disclosed by the Terms of Settlement.[14]
[10] RFD [56].
[11] RFD [42].
[12] RFD [49].
[13] RFD [49].
[14] RFD [49].
Having considered those surrounding circumstances, the Tribunal concluded that the parties had a specific type of surgery in mind, namely the sterilisation of a female dog, when they agreed to the Terms of Settlement and the 2008 Orders.[15]
[15] RFD [48].
The Tribunal concluded that this was the proper construction of the 2008 Orders having regard to two other considerations. First, the expert witnesses at the hearing gave evidence which confirmed that if 'veterinary surgery' were understood to having the meaning of that term under the VS Act, the effect of the undertaking would have been to preclude Dr Alexander from performing a range of services outside a veterinary hospital or clinic, notwithstanding that such services were regularly performed by veterinary surgeons outside veterinary hospitals or clinics, with no objection from the Board.[16] Secondly, the Tribunal noted that there was no evidence that the Board had taken steps to prohibit any form of 'veterinary surgery' (as defined in s 2 of the VS Act) being provided by mobile services at places other than registered veterinary hospitals or clinics.[17]
[16] RFD [51] ‑ [52].
[17] RFD [57].
Accordingly, the Tribunal concluded that the 2008 Orders (and in particular, the undertaking) did not preclude Dr Alexander from performing any kind of 'veterinary surgery' other than in a registered veterinary hospital or clinic within the Perth metropolitan area, but rather was confined to the kind of veterinary surgery which was the subject of the disciplinary proceedings, namely the sterilisation of a female dog.[18] As a result, the Tribunal held that the Board had failed to satisfy it that the miscellaneous surgeries were performed in breach of the 2008 Orders.

The Tribunal's reasons in relation to whether Dr Alexander's performance of the cat sterilisation surgeries and the miscellaneous surgeries constituted unprofessional conduct

[18] RFD [58].

The Tribunal held that it was not satisfied that the Board had shown that Dr Alexander's conduct in performing the cat sterilisation surgeries outside a registered veterinary clinic or hospital fell substantially short of the standards of professional conduct.[19] The Tribunal also held that it was not satisfied that Dr Alexander's conduct in undertaking the miscellaneous surgeries fell substantially short of the standards of professional conduct.[20]
[19] RFD [66], [92], [116], [145].
[20] RFD [147].
Although the Tribunal dealt with the allegation concerning the cat sterilisation surgeries separately from the allegation concerning the miscellaneous surgeries, its reasons for its conclusion in respect of each allegation were almost identical.[21] When the Tribunal's reasons are analysed, it is apparent that the Tribunal reached its decision to dismiss the allegations concerning the cat sterilisation surgeries and the miscellaneous surgeries, having regard to five broad considerations.
[21] RFD [147].
First, the Tribunal sought to understand the Board's contention in relation to the standard of professional conduct as to where veterinary surgery should be performed. The Tribunal noted that the Board did not contend that the standard of professional conduct it advanced applied to the performance of all 'veterinary surgery' as defined under the VS Act. The area of concern pertained solely to the conduct of surgical procedures on animals.
Secondly, the Tribunal was cognisant of the fact that the standard of professional conduct advanced by the Board had the potential to impact on the performance of home veterinary services and mobile veterinary services, yet at the same time the provision of some veterinary services outside veterinary hospitals and clinics was uncontroversial and recognised as a legitimate way of meeting the needs of the public.[22]
[22] RFD [83], [88], [92].
Thirdly, the Tribunal noted that there was no allegation that Dr Alexander's conduct - in relation to the standard of care, the nature of the surgery, the equipment used or the post-surgery care - fell substantially below the accepted standard of a veterinary surgeon of good repute and competency.[23]
[23] RFD [101], [105] ‑ [109].
Fourthly, the Tribunal was concerned about uncertainty within the profession in relation to the standard of professional conduct with respect to the performance of surgery. The Board had not provided any guidelines relating to minimum standards for the delivery of home or mobile veterinary services,[24] and there was no statutory prohibition, regulation, code of conduct or practice guidelines issued by the Board in Western Australia as to what veterinary surgery could be performed at premises other than a registered veterinary hospital or clinic.[25] (In contrast, the Veterinary Surgeons Boards of at least two other States had issued guidelines for the provision of mobile veterinary services).[26] The Tribunal concluded that:
[T]he absence of professional guidelines in Western Australia has left a void which could be interpreted by a practitioner such as Dr Alexander [as indicating] that the standards applicable in other states do not necessarily apply to veterinary surgeons in Western Australia.[27]
[24] RFD [85], [89], [93].
[25] RFD [69].
[26] RFD [86].
[27] RFD [141].
Fifthly, although the Board's position was that the cat sterilisation surgeries and the miscellaneous surgeries should only be performed in a registered veterinary hospital or clinic (if those facilities were available and if the situation did not constitute an emergency), the Tribunal concluded that there were 'strong differences of opinion between the expert witnesses as to what type of veterinary surgery should be conducted in a registered premises and what veterinary surgery could be conducted outside a registered premises'.[28]
[28] RFD [93], [122].
In relation to the conduct of surgery generally, the Tribunal found that Dr Macdonald's evidence was that the standard he observed was that in his practice, all forms of surgical procedures were conducted in a registered veterinary clinic or hospital.[29]
[29] RFD [131].
The Tribunal found that Dr Moore's evidence was that he often referred persons to home veterinary services where 'minor surgical procedures' were required and that he would conduct minor surgery outside a registered veterinary premises.[30]
[30] RFD [135].
In relation to the cat sterilisation surgeries, the Tribunal found that Dr Macdonald and Dr Moore:
[A]agree that although it is 'ideal' for such surgery to take place within a registered veterinary facility, they disagreed as to whether a veterinary practitioner could, within his/her judgment after weighing up all the pros and cons, including being satisfied that the standard of service would not fall short of those offered by a registered facility, conduct a sterilisation procedure in a place other than a registered veterinary facility.[31]
[31] RFD [129].
In relation to the miscellaneous surgeries, the Tribunal found that Dr Macdonald's evidence was that:
[P]rocedures such as extraction of teeth, suturing a wound or extracting grass seeds from the skin of a dog ... [are] 'surgical' and must preferably be conducted at a registered veterinary hospital or clinic.[32]
[32] RFD [126].
The Tribunal found that Dr Moore's evidence was that:
[A]lthough some procedures - such as extraction of teeth - are 'surgical', they can be carried out by a veterinary nurse - even, if the circumstances justify, without anaesthetic, and if possible, outside a registered veterinary hospital or clinic.[33]
[33] RFD [126].
Dr Moore also emphasised that, rather than to focus on the place where a particular service is performed, the objective of the Board should be to ensure that if a 'procedure is carried out competently and adequate follow-up treatment is given (which may include antibiotic therapy), professional standards are maintained'.[34]
[34] RFD [127].
In determining whose evidence should be preferred, the Tribunal rejected the Board's submission that Dr Macdonald's evidence should be preferred to that of Dr Moore.[35] The Tribunal was satisfied that both expert witnesses gave evidence to the best of their ability and made a serious effort to assist the Tribunal, and thus concluded that the experts' evidence had to be treated and weighed on its merit.[36]
[35] The Board's submission was that Dr Moore was not truly independent as he referred clients to Dr Alexander from time to time.
[36] RFD [123].
The Tribunal concluded that Dr Macdonald's evidence as to the standards of veterinary surgical services represented the 'ideal', and the upper limit of professional standards, but was not satisfied that his evidence described the general standard of professional conduct observed by registered veterinary surgeons of good repute and competency, or in other words 'the norm of the veterinary profession'.[37]
[37] RFD [130] ‑ [131].
The Tribunal preferred the evidence of Dr Moore because it represented a balanced approach between the place of surgery and the quality of services, was consistent with the practice of veterinary surgery in Western Australia, and reflected the fact that no hard and fast rule[38] could be established as to whether surgery on an animal must be conducted within a veterinary hospital or clinic.
[38] RFD [134].
In reaching this conclusion, the Tribunal also referred to the evidence of Mr Beaumont, as to his observations over 25 years of work with the RSPCA that 'he had witnessed mobile veterinarians do many surgical procedures such as "stitching up" outside registered veterinary facilities'.[39] The Tribunal also noted Dr Alexander's evidence, which included his view that a decision as to where to conduct surgery required an assessment by the individual veterinary surgeon involved.[40]
[39] RFD [136].
[40] RFD [137].

The grounds of appeal

The grounds of appeal were prolix. They comprised over 12 pages of relatively closely typed text. The grounds were divided into three - corresponding to the Tribunal's findings concerning the breach of the undertaking, the alleged unprofessional conduct in relation to the miscellaneous surgeries and the alleged unprofessional conduct in relation to the cat sterilisation surgeries. Each ground in fact comprised a series of separate grounds, some of which comprised multiple sub‑grounds. There were also lengthy 'particulars' in respect of each of the grounds, which were in substance not particulars at all, but rather allegations of further errors by the Tribunal. Some of the grounds[41] were difficult to understand. Some were imprecise - for example, the grounds refer to 'unreasonably considered irrelevant matters' which (having regard to the submissions of counsel for the Board) appeared to embrace an allegation of error of law on the basis that the decision was unreasonable,[42] as well as an allegation of an error of law by taking into account irrelevant considerations.
[41] For example, ground 3.5.
[42] As discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. See also the discussion at [80] below.
Doing the best I can to distil them, and to the extent that it is necessary to deal with each of the individual grounds of appeal in order to dispose of the appeal, the grounds of appeal are set out under headings 6, 7 and 8 below. (I have retained the numbering adopted in the Board's grounds of appeal.)

Does the Board have a right of appeal against the decision of the Tribunal, and if so, should leave to appeal be granted?

The Board relied upon s 105 of the SAT Act as giving rise to a right of appeal against the decision of the Tribunal, subject to the grant of leave to appeal.[43] An appeal under s 105 of the SAT Act may only be brought on a question of law.[44]
[43] Section 105(1) of the SAT Act.
[44] Section 105(2) of the SAT Act.
Counsel for Dr Alexander submitted that there was no right of appeal by the Board against the decision of the Tribunal. In the alternative, he submitted that if there was a right of appeal against the decision of the Tribunal pursuant to s 105 of the SAT Act, leave to appeal should be refused.

The right of appeal under s 105 of the SAT Act

Counsel for Dr Alexander submitted that the right of appeal in s 105 should be held not to apply in the present case. The basis for that submission was that the application of s 105 would be contrary to the common law rule against double jeopardy in that an appeal would mean that although Dr Alexander had been 'acquitted' after a trial on the merits of unprofessional conduct, he would be subjected to the renewed jeopardy of an appeal against that acquittal. Counsel for Dr Alexander submitted that the rule against double jeopardy applied in respect of disciplinary proceedings.
Counsel for Dr Alexander submitted in the alternative that even if the rule against double jeopardy does not apply, an appeal in the present circumstances would constitute an abuse of process and should be dismissed on that basis.
I note at the outset that appeals have been brought by vocational disciplinary bodies against decisions of the Tribunal, either to dismiss disciplinary proceedings or in respect of the sanctions imposed in disciplinary proceedings.[45] Although leave to appeal has been refused in some cases, it does not appear that this Court has had to deal with submissions of the kind made by counsel for Dr Alexander in relation to the operation of s 105 of the SAT Act.
[45] See, for example, Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [46] ‑ [52] (Buss JA, Wheeler & Pullin JJA agreeing); Physiotherapists Registration Board v Townsend [2008] WASCA 25; Legal Profession Complaints Committee v Detata [2012] WASCA 214; see also Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [49] ‑ [53] (Owen JA).
I am unable to accept the submissions advanced by counsel for Dr Alexander for three reasons. First, there is no authority which directly supports those submissions. The submissions were premised on the application of the 'rule' against double jeopardy. That 'rule' is ordinarily expressed as one which arises in the criminal context, and which operates to prevent a person being placed in jeopardy twice for the same cause.[46] However, as Gummow and Hayne JJ observed in Island Maritime Ltd v Filipowski:[47]
'Double jeopardy' is an expression that is not always used with a single meaning. It is an expression used in relation to several different stages of the process of criminal justice … . It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning.
[46] Davern v Messel (1984) 155 CLR 21, 29 (Gibbs CJ), 65 (Wilson J agreeing), 67 ‑ 70 (Deane J).
[47] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 [41].
There are observations in some of the authorities which suggest that the 'rule' against double jeopardy may be applicable in the context of disciplinary proceedings. In Gill v Walton[48] Kirby P viewed a second raft of disciplinary proceedings arising from conduct which had been the subject of earlier disciplinary proceedings as 'a species of double jeopardy'.[49] Mahoney JA also discussed the double jeopardy principle, although he concluded that the proceedings in question should not be stayed on account of that principle.[50] In dealing with the appeal from that decision, three members of the High Court concluded that 'the members of the Court of Appeal were fully justified in paying regard to the notions of fairness to an accused person which underlie the common law principle against double jeopardy' and that 'the sense of injustice which inspires the doctrine against double jeopardy was … plainly present in large measure'.[51] The possible application of the 'rule' against 'double jeopardy' in a disciplinary context was also referred to by the New South Wales Court of Appeal in Health Care Complaints Commission v Litchfield.[52]
[48] Gill v Walton (1991) 25 NSWLR 190.
[49] Gill v Walton (1991) 25 NSWLR 190, 206 ‑ 207.
[50] Gill v Walton (1991) 25 NSWLR 190, 216 ‑ 217.
[51] Walton v Gardiner (1993) 177 CLR 378, 398 (Mason CJ, Deane & Dawson JJ).
[52] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 636.
However, in my respectful view, these observations should properly be understood as referring to a need for vigilance to ensure that disciplinary proceedings do not constitute an abuse of process, when, for example, a second raft of disciplinary proceedings is pursued in respect of conduct which has already been the subject of concluded disciplinary proceedings.[53] That is not this case, where what is involved is an appeal from a decision to dismiss a disciplinary proceeding.
[53] Cf Wee v Law Society of Singapore [1985] 1 WLR 362, 369; Walton v Gardiner (1993) 177 CLR 378, 393, 395, 398 (Mason CJ, Deane & Dawson JJ); Jeffery & Katauskas Pty Ltd v SST ConsultingPty Ltd(2009) 239 CLR 75, 93 [27] (French CJ, Gummow, Hayne & Crennan JJ).
Counsel for Dr Alexander then sought to rely on a line of authorities where the rule against double jeopardy has been applied, or discussed, in the context of the construction of statutory rights of appeal in criminal matters. Counsel pointed to Thompson v Mastertouch TV Service Pty Ltd (No 3)[54] as authority for the proposition that in light of the fundamental principle embodied in the rule against double jeopardy, a statutory right of appeal expressed in general terms will not be construed so as to permit an appeal against an acquittal following a trial of a criminal charge on the merits. Counsel submitted that the rule against double jeopardy had been applied in relation to appeals provisions in a number of statutes.[55] While that is so, most of the cases to which counsel referred illustrate that despite the existence of the 'rule', a statutory right of appeal expressed in general terms may be construed so as to permit some appeals in criminal proceedings.
[54] Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, 412 ‑ 413 (Deane J, Smithers & Riley JJ agreeing); approved in Davern v Messel (1984) 155 CLR 21, 31 (Gibbs CJ), 65 (Wilson J agreeing), 45 ‑ 46, 55 ‑ 56 (Mason & Brennan JJ); see also Allbeury v Corruption and Crime Commission [2012] WASCA 84 [10] (McLure P, Mazza JA agreeing).
[55] CI & D Manufacturing Pty Ltd v Registrar, Industrial Court of New South Wales (1996) 40 NSWLR 1; Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257, 271 (Spigelman CJ, Giles JA & Handley AJA agreeing); Davern v Messel (1984) 155 CLR 21; Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397.

Furthermore, counsel was unable to direct the Court to any authorities in which a statutory right of appeal has been held not to apply where the appeal is against a decision to dismiss a disciplinary proceeding. There is, however, some authority which suggests that the 'rule' against double jeopardy does not apply in the context of appeals in disciplinary proceedings, at least in respect of appeals which are confined to the correction of legal error.[56]
[56] Legal Services Commission v Turner [2012] VSC 394 [107] ‑ [108] (Emerton J).
Secondly, even if the rule against double jeopardy, or principles concerning the prevention of an abuse of process, have a role to play in disciplinary proceedings, the purposes of criminal and disciplinary proceedings are different, so that the application of the restrictive approach to the construction of appeal provisions which is applied in the criminal context is not warranted in respect of appeals in disciplinary matters. The object of criminal proceedings includes the punishment of those who disobey the law. It involves proceedings brought by the State, with its considerable resources, against an accused.[57] In contrast, the object of disciplinary proceedings is, generally speaking, to protect the public by maintaining standards of behaviour of persons permitted to work or carry on business in a particular industry or profession.[58] As is the case here, disciplinary proceedings are frequently brought by vocational regulatory bodies. In those circumstances, some of the concerns which underlie the rule against double jeopardy in the criminal context do not apply, or do not apply with the same force, in the disciplinary context. This is apparent from the fact that it is well established that an acquittal in respect of a criminal charge arising from particular conduct does not preclude disciplinary proceedings being commenced in respect of the same conduct.[59]
[57] See Davern v Messel (1984) 155 CLR 21, 68 (Deane J).
[58] See, for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; Hardcastle v Commissioner of Police (1984) 53 ALR 593.
[59] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 633 ‑ 636.
Thirdly, the question whether a statutory right of appeal is capable of encompassing an appeal by a vocational disciplinary body against the dismissal of a disciplinary proceeding will depend upon the proper construction of that provision. Accordingly, I turn to consider the terms of s 105 of the SAT Act. The starting point for determining whether the appeal right in s 105 applies is to construe the ordinary meaning of the words used, within their context.[60] Section 105(1) of the SAT Act expressly grants a right of appeal against a decision of the Tribunal, subject to the grant of leave to appeal. Subject to the limitation in s 105(2) of the SAT Act, the right of appeal in s 105(1) is expressed in wide terms. The right of appeal is not limited to decisions in particular proceedings, and on its face, is clearly capable of application to decisions of the Tribunal under the VS Act.
[60] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ); AB v The State of Western Australia [2011] HCA 42 [10], [23] ‑ [24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
Section 105(13) of the SAT Act supports the conclusion that the right of appeal in s 105(1) applies to appeals against decisions of the Tribunal in disciplinary proceedings (including under the VS Act)[61] because it extends the right of appeal in one 'category' of such appeals[62] so as to permit the appeal to be brought on any ground, whether involving questions of fact, questions of law, or questions of mixed fact and law. The fact that the Parliament has seen fit to deal specifically with one category of appeals from decisions of the Tribunal in disciplinary proceedings (including those under the VS Act) provides some support for the conclusion that s 105(1) was otherwise intended to create a right of appeal in disciplinary matters generally.
[61] See s 105(14) and sch 1 to the SAT Act.
[62] Namely those appeals against decisions of the Tribunal where the effect of the decision is to deprive a person of the person's capacity to pursue a vocation.
In my view, s 105 permits an appeal against a decision of the Tribunal to dismiss a disciplinary application brought by the Board under the VS Act.

Whether leave to appeal should be refused having regard to the nature of the appeal

In determining whether leave to appeal should be granted, the first question for consideration is whether the appeal raises a question of law. Once it is determined that that is so, leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[63] Whether it is in the interests of justice to grant leave to appeal will be informed by a variety of considerations, including the importance of the question of law, whether there is sufficient doubt about it to justify the grant of leave and whether substantial injustice would result if the error of law were not corrected.[64]
[63] Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA). Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
[64] Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361, 372 [17] - [18] (Buss JA, Wheeler & Pullin JJA agreeing).
Counsel for Dr Alexander advanced two bases why leave to appeal should be refused in this case. First, he submitted that in a case where a vocational regulatory body sought leave to appeal against the dismissal of charges of unprofessional conduct, the hurdle for leave to appeal ought to be significantly higher. Secondly, he submitted that the grounds of appeal did not raise questions of law, but rather questions of fact or mixed questions of fact and law.
As to the first of these contentions, counsel for Dr Alexander submitted that the principle of double jeopardy was also 'relevant to restricting the degree to which any appeal, permitted in abrogation of the principle, extends'.[65] He submitted that leave to appeal in such cases 'should only be given when wider and deeper questions are involved than the correctness of the individual verdict'.[66] He submitted that the fact that the application for leave was brought by a prosecutor was itself a consideration favouring the refusal of leave.[67] Counsel for Dr Alexander also submitted that the question of injustice which underlies the common law doctrine against double jeopardy and abuse of process is an important matter to be weighed against granting leave to appeal.[68]
[65] Respondent's written submissions [34].
[66] Respondent's written outline of submissions [36].
[67] Respondent's written submissions [35].
[68] Respondent's written outline of submissions [37].
For the reasons I have outlined above at [53] ‑ [61] I am unable to accept this submission. In addition, given that the same requirement for leave under s 105(1) of the SAT Act applies to all appeals against decisions of the Tribunal[69] I am not persuaded that the requirement for leave to appeal should be applied differently in the case of an appeal against a decision to dismiss a disciplinary proceeding. None of the authorities to which counsel referred in support of his submission concerned appeals in disciplinary proceedings.[70] Further, I note that the right of appeal under s 105 of the SAT Act is already limited in its operation - to appeals raising questions of law.[71] In addition, as I have already observed, the question whether leave should be granted in disciplinary appeals, as in appeals against decisions of the Tribunal in other contexts, may be informed by considerations including the importance of the question of law involved and the substantial injustice if leave is not granted.
[69] Other than those referred to in SAT Act s 105(13).
[70] Bros Bins Systems Pty Ltd v Industrial Relations Commission (NSW) (2008) 74 NSWLR 257, 270 ‑ 271 [60], [66] ‑ [68] (Spigelman CJ); Grayndler v Cunich (1939) 62 CLR 573, 581, 602; The King v Wilkes (1948) 77 CLR 511, 516 ‑ 517; Valance v The Queen (1961) 108 CLR 56, 62, 69, 83; R v Jenkins [1970] Tas SR 13, 16.
[71] SAT Act s 105(2).
It will be convenient to consider whether leave to appeal should be granted in respect of each ground of appeal in the course of considering whether the grounds of appeal are made out.

Whether the appeal grounds raise questions of law

The distinction between errors of law, errors of fact and mixed errors of law and fact is not always easy to draw.[72] Counsel for Dr Alexander submitted that none of the grounds of appeal raised a question of law alone. In making that submission, counsel for Dr Alexander characterised the grounds of appeal in broad terms, namely that ground 1 was concerned with the construction of the 2008 Orders and the application of that construction in the circumstances of this case, while grounds 2 and 3 alleged that the Tribunal erred in concluding that the Board had not discharged the onus of proving the allegations, and thus contended that the Tribunal erred in concluding that the evidence was not sufficient to establish the allegations against Dr Alexander.
[72] Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233 [38] (Newnes AJA, Buss & Miller JJA agreeing).
Insofar as the grounds of appeal contend errors such as that the Tribunal failed to take into account relevant considerations, counsel for Dr Alexander submitted that although errors of the latter kind constitute errors of law, the overall appeal ground - whether the Board proved the allegations against Dr Alexander, having regard to the evidence - constituted an alleged error of fact.
If counsel's characterisation of the grounds of appeal was an accurate one, then his submission would have had some force. An allegation that a finding is erroneous because it is contrary to the weight of the evidence constitutes an error of fact.[73] However, counsel's characterisation of the grounds of appeal does not, in my view, fairly or accurately reflect the content of those grounds, which (as I have summarised them in these reasons) direct attention to a multiplicity of alleged errors by the Tribunal. It is necessary to consider more precisely the nature of those alleged errors to determine whether they constitute errors of law.
[73] Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, 410; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [54] (Buss JA, Wheeler & Pullin JJA agreeing).
I have considered the grounds of appeal individually below. However, it is appropriate at this juncture to make some general observations about the nature of the alleged errors made by the Tribunal, and as to whether errors of the kind alleged are capable of giving rise to errors of law.
Broadly speaking, the alleged errors by the Tribunal appear to fall into six broad categories:
•Error in the construction of the undertaking;
•Failure to take into account relevant considerations;
•Taking into account irrelevant considerations;
•Reaching a decision that was so unreasonable that no reasonable decision maker could have reached the same decision;
•Failing to provide adequate reasons for its decision;
•Preferring the evidence of one witness to that of another.
Insofar as it is alleged that the Tribunal erred in its construction of the words used in the undertaking, the general principle is that determining the meaning of the words used in an instrument, when those words are used according to their common meaning, is a question of fact.[74] However, the proper construction of an order or instrument is a question of law.[75]
[74] Hope v Bathurst City Council (1980) 144 CLR 1, 7 ‑ 8 (Mason J).
[75] The Life Insurance Company of Australia Limited v Phillips (1925) 36 CLR 60, 79 (Isaacs J).
Insofar as it is alleged that the Tribunal failed to take into account a variety of 'relevant considerations', that concept - within the context of judicial review - refers to considerations which the legislature required the decision‑maker to take into account in order to exercise its power.[76] A failure to take into account those considerations will result in the decision‑maker failing to exercise the power given to it within the parameters set by the legislature. It is for that reason that the decision constitutes an error of law.
[76] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
Conversely, insofar as it is alleged that the Tribunal took into account a variety of irrelevant considerations, the concept of 'irrelevant considerations' in the context of judicial review refers to factors which are extraneous to the proper exercise of power, so that to take them into account will result in the decision‑maker failing to exercise its power within the parameters set by the legislature. Again, that results in an error of law.[77]
[77] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
Identifying those factors which the decision‑maker must take into account, or which are extraneous to its decision, requires a construction of the statute conferring power on the decision‑maker to make the decision. Sometimes the statute does not indicate expressly which factors are required to be taken into account or are extraneous, but rather confers a decision‑making power which encompasses a discretion which appears to be unconfined. In that case, the inquiry will be whether, having regard to the subject‑matter, scope and purpose of the statute, there arises the implication that the legislature required that the decision‑maker take into account a particular matter, or that a particular matter would be extraneous to the decision.[78]
[78] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
However, these two categories of 'relevant' and 'irrelevant' considerations do not constitute an exhaustive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated nor precluded.[79] If a decision‑maker takes such matters into account, or if it does not take them into account, in making its decision it will not, for that reason, fall into legal error.
[79] Ballantyne v Workcover Authority of New South Wales [2007] NSWCA 239 [113] (Basten JA).
Furthermore, not every consideration that a decision‑maker is bound to take into account but fails to take into account will warrant setting aside the decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. A similar principle applies in those cases where a decision‑maker has taken into account an insignificant irrelevant consideration.[80]
[80] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
A decision‑maker will not err in law merely because it fails to take into account a particular piece of evidence which is relevant to a consideration which it is bound to take into account.[81] Similarly, a tribunal will not err in law merely because it fails to place 'adequate weight' upon a consideration which it is bound to take into account.[82] In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision‑maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising its statutory power.
[81] Xie Mian Shen v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 9 August 1995) 15 ‑ 16.
[82] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J), Paradis v Settlement Agents Supervisory Board [2007] WASCA 97 [57] (Buss JA, Wheeler & Pullin JJA agreeing).
Insofar as it is alleged that the Tribunal acted 'unreasonably' I have understood this allegation in each case as constituting an allegation that the Tribunal reached a decision which was so unreasonable that no reasonable decision‑maker could have reached the same decision.[83] An error of that kind is an error of law for the purpose of s 105(2) of the SAT Act.[84] There are, however, some limits on the circumstances in which 'unreasonableness' may be relied upon to establish an error of law. Only a decision‑maker's discretionary decisions are amenable to challenge on this ground and fact‑finding cannot be challenged on this basis.[85] It is also important to bear in mind that an appeal on the ground of unreasonableness cannot be permitted to become a de facto merits review of the decision.[86]
[83] Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431, 438 (Davies J); Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
[84] Paradis v Settlement Agents Supervisory Board [2007] WASCA 97 [56] (Buss JA, Wheeler & Pullin JJA agreeing).
[85] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30, (2003) 77 ALJR 1165 [73] (McHugh & Gummow JJ), [143] (Kirby J).
[86] Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [52] - [53] (Owen JA, Buss & Newnes JJA agreeing).
Insofar as it is alleged that the Tribunal failed to provide any or adequate reasons for its decision, the Tribunal is subject to a statutory duty to provide reasons for its decisions.[87] A failure to comply with a statutory obligation to provide reasons may also constitute an error of law.[88]
[87] SAT Act s 77.
[88] Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (Woodward J), Kirby v The Prisoners Review Board [2011] WASCA 149, [59] (Martin CJ).
Insofar as it is alleged that the Tribunal erred in failing to prefer the evidence of one witness to another, errors of that kind do not constitute errors of law. The weight to be given to particular evidence, including expert evidence, is ordinarily a question of fact (subject to any direction in the statute itself as to the importance or weight of particular evidence).[89]
[89] Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258 [45] (Ipp J, Owen & Miller JJ agreeing); Liquorland (Australia) Pty Ltd v Executive Director of Public Health [2013] WASC 51[48] (Edelman J).
I turn to consider more specifically the individual grounds of appeal.

Did the Tribunal err in law in reaching its conclusion that Dr Alexander's performance of the miscellaneous surgeries did not breach the undertaking?

The grounds of appeal in relation to the alleged breach of the undertaking are, in summary, as follows:
1.The Tribunal erred in law in:
•interpreting the phrase 'any veterinary surgery' in the undertaking to mean the sterilisation of a female dog;
•failing to find that the phrase 'any veterinary surgery' in the undertaking included the miscellaneous surgeries.
1.1In construing the undertaking, the Tribunal erred in law in taking into account a number of irrelevant considerations, or alternatively reached an unreasonable decision in so far as it took into account irrelevant considerations, namely:
(1)the content of the Terms of Settlement;
(2)(a)the views of the expert witnesses;
(2)(b)whether the Board had taken steps to prohibit any form of veterinary surgery (as defined in the VS Act) at places other than registered veterinary hospitals or clinics;
(2)(c)whether the use of mobile veterinary practices was widespread and an integral part of veterinary services to the public;
(2)(d)whether Dr Alexander might breach the undertaking if he performed other acts that were not the subject of the Board's application before the Tribunal.
1.2In determining whether Dr Alexander had breached the undertaking by performing the miscellaneous surgeries, the Tribunal took into account irrelevant matters, namely those set out in 1.1(2)(b) ‑ (d) above.

(a) Do grounds of appeal 1 ‑ 1.2 raise errors of law?

The first part of ground 1 contends that the Tribunal erred in interpreting the phrase 'any veterinary surgery' in the undertaking. In my view, this part of ground 1 should be understood (particularly in view of the content of ground 1.2) as alleging an error in the construction of the undertaking, and therefore gives rise to a question of law.
The second part of ground 1 should be understood merely as a summary of the conclusion the Tribunal should have reached had it correctly construed the 2008 Orders.
Grounds 1.1 and 1.2 contend that the Tribunal erred in taking into account irrelevant considerations, or in acting 'unreasonably'. Grounds 1.1 and 1.2 raise questions of law.

(b) Should leave to appeal be granted in respect of grounds 1-1.2?

In my view, having regard to all of the circumstances, including the nature of the questions raised by these grounds of appeal, and the factual and legal context in which those questions arise, it is in the interests of justice to grant leave to appeal in respect of grounds of appeal 1, 1.1 and 1.2.

(c) Did the Tribunal err in law as alleged in each ground of appeal?

Grounds 1 and 1.1(1)

Counsel for the Board submitted that the meaning of the words 'veterinary surgery' in the undertaking was plain and unambiguous, and meant 'any surgery performed on an animal'. He submitted that the Tribunal did not find any ambiguity in those words, but merely an inconsistency between those words as used in the undertaking and the Terms of Settlement. In those circumstances, he submitted that the Tribunal erred in law in looking beyond the terms of the undertaking to ascertain its meaning.
I am unable to accept those submissions for the following reasons.
The usual rule in relation to the construction of an order of a court is that when the meaning of the order is immediately plain, the terms of the order will speak for themselves. If this is not the case, the true meaning of the order may be ascertained according to ordinary rules of construction.[90]
[90] Repatriation Commission v Nation (1995) 57 FCR 25, 33 (Beaumont J, Black CJ & Jenkinson J agreeing); Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 503 ‑ 504 (Windeyer J), Athens v Randwick City Council (2005) 64 NSWLR 58 [28] ‑ [29] (Hodgson JA, Tobias JA agreeing), and see also [128] ‑ [139] (Santow JA).
Although it did not say so expressly, it is clear that the Tribunal viewed the words 'any veterinary surgery' in the undertaking as ambiguous in their meaning. Clearly that was so. At least three meanings were open. The words could be given their literal meaning which, as counsel for the Board submitted, meant any surgery performed on an animal. Alternatively, the words could be given the meaning they had in s 2 of the VS Act. Finally, the words could be construed to mean any veterinary surgery of the kind which was the subject of the 2008 Orders.
Given that inherent ambiguity, the Tribunal could not determine the meaning of the words 'any veterinary surgery' having regard solely to the meaning of those words on their face.
The Tribunal's next step in determining the meaning of the words 'any veterinary surgery' in the undertaking was to look at the meaning of the words within the context of the 2008 Orders as a whole, and the Terms of Settlement. The Tribunal had regard to that broader context in order to understand the circumstances in which the undertaking had been given, and the conduct to which the undertaking was directed as a disciplinary measure, so as to discern the intended meaning of the words used in light of those circumstances. That was an entirely orthodox approach and one which involved no error of law.
The Tribunal noted that the words 'any veterinary surgery' in the undertaking - if given their ordinary meaning - appeared to be inconsistent with the conduct to which the undertaking was directed as a disciplinary measure.[91] An undertaking given in response to a finding of unprofessional conduct need not be confined to an undertaking not to engage in the particular conduct which constituted the basis for the finding of unprofessional conduct. However it was clearly open to the Tribunal to consider the effect of the undertaking if its operation - on the view of its meaning - extended beyond such unprofessional conduct, because that may shed light on the intended meaning of the words used in the undertaking.
[91] RFD [42], [49].
If the words 'any veterinary surgery' were given their ordinary meaning, or their meaning under the VS Act, those words would have a wide operation, and an operation which would go far beyond restraining the conduct which constituted the unprofessional conduct in VR 87 of 2007. Although it did not say so expressly, the Tribunal appears to have concluded that it could not have been intended that the words 'veterinary surgery' would have such a wide meaning. Accordingly, the Tribunal concluded that when the words 'any veterinary surgery' were used in the undertaking, those words must have been intended to refer to the same type of surgery as had been referred to elsewhere in the 2008 Orders.[92]
[92] RFD [48] - [49].
In my view, there was no error in the Tribunal's overall process of construction. Grounds 1 and 1.1(1) of the grounds of appeal fail.
In addition, in view of the conclusions I have reached with respect to the other grounds in relation to the construction of the undertaking, the second part of ground 1 also fails.
I digress at this point to observe that this case highlights the importance of ensuring that the meaning of the words used in an undertaking, or in orders of the Tribunal which concern the conduct of parties, are expressed in the clearest possible language, so as to avoid confusion or disputes in relation the obligations that arise.

Grounds 1.1(2)(a) ‑ (d)

The way in which the Tribunal explained its reasoning[93] is somewhat elliptical. However, as I have already explained, it seems to me that what the Tribunal did was to compare the implications of the various constructions of the words 'veterinary surgery' which were open. The Tribunal considered the effect of the undertaking if the words 'any veterinary surgery' were construed consistently with the definition of that term in the VS Act. The Tribunal noted that if given this wide meaning, the undertaking would in effect prohibit Dr Alexander from performing certain kinds of 'veterinary surgery' (such as euthanasia, examining an animal, or prescribing medicine) outside a registered veterinary hospital or clinic, when that conduct would not be inconsistent with the practice of members of the veterinary profession of good standing and repute, many of whom (including Dr Macdonald and Dr Moore) conducted house calls or mobile practices.
[93] RFD [50] ‑ [57].
Noticing in the VS Act, expressly or by implication suggests that considerations of this kind were wholly extraneous to the Tribunal's decision. The practical operation of the undertaking, having regard to the alternative constructions of the words used, was clearly part of the context to which the Tribunal could properly have regard to identify the meaning of the words which was intended.
Having considered the implications of the alternative constructions of the undertaking, the Tribunal reached the view that the words 'any veterinary surgery' in the undertaking should not be construed to have the broad meaning for which the Board contended. Consequently the Tribunal found that the undertaking did not preclude Dr Alexander from performing veterinary surgery of any kind outside veterinary clinics or hospitals within the Perth metropolitan region.[94]
[94] RFD [59].
Grounds 1.1(2)(a) ‑ (d) of the grounds of appeal are not made out.

Ground 1.2

To the extent that this ground of appeal is intended to contend that the Tribunal also separately considered the matters in ground 1.1(2)(b) ‑ (d) for the purpose of determining whether Dr Alexander breached the undertaking, that was not what the Tribunal did. The Tribunal reached a conclusion about the meaning of the undertaking - namely that it prohibited Dr Alexander from performing sterilisations of female dogs outside a registered veterinary hospital or clinic, within the Perth metropolitan area. Having reached that conclusion, the conclusion necessarily followed that Dr Alexander had not breached the undertaking by performing the miscellaneous surgeries. Ground 1.2 of the grounds of appeal fails.

Did the Tribunal err in law in reaching its conclusion that the performance of the cat sterilisation surgeries did not constitute unprofessional conduct as a veterinary surgeon?

Ground 2.9

It is convenient to deal first with ground 2.9 which contends:
2.9The Tribunal erred in law in
•preferring the evidence of Dr Moore to that of Dr Macdonald, when no reasonable tribunal would have done so in the circumstances.
•failing to take into account the evidence in the Joint Statement of the Experts, and in relation to those issues where there was disagreement between the experts, in failing to prefer the evidence of Dr Macdonald to that of Dr Moore.
•failing to provide proper reasons for its failure to rely upon the evidence in the Joint Statement of Experts, and otherwise to prefer the evidence of Dr Macdonald to that of Dr Moore.
Counsel for the Board submitted that this ground encompassed the contention that the Tribunal failed to take into account the totality of the evidence about which the experts agreed whether that agreement was set out in the Joint Statement of Experts or disclosed in cross‑examination.
If the Tribunal in fact failed to take into account the evidence on which the experts agreed, that failure would constitute an error of law if the evidence was material which, in the circumstances, the Tribunal was bound to take into account.[95]
[95] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, [39] - [40] (Mason J).
The alternative way in which the Board contends that the Tribunal erred in respect of the matters about which the experts agreed is that the Tribunal failed to provide reasons for why it did not rely on that evidence. A failure to provide reasons constitutes an error of law.
However, insofar as ground 2.9 contends that the Tribunal erred in preferring the evidence of Dr Moore to that of Dr Macdonald, the ground of appeal is incompetent. As I noted above, the weight to be given to particular evidence, including expert evidence, is ordinarily a question of fact.
Having regard to all of the circumstances including the errors of law alleged, their significance and the strength of the grounds, in my view there should be leave to appeal in respect of ground 2.9 insofar as it alleges an error of law for failing to take into account a relevant consideration or for failing to give adequate reasons.
I turn, first, to consider whether the Tribunal failed to take into consideration evidence about which the experts agreed.

The Joint Statement of Experts

In the Joint Statement of Experts, Dr Macdonald and Dr Moore indicated that:
2.The following are the matters that we have agreed upon:
…
2.17It would fall sort 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 if:
(1)a veterinary surgeon performs on a small animal any of the procedures listed in paragraph 2.2 above [which included an ovariohysterectomy performed on a cat] in a Non‑Registered Premises that was not equipped with the facilities, equipment and personnel listed in paragraph 2.10 above because to do so would fail to minimise the Survival Risks involved in those surgeries; or
(2)a veterinary surgeon performed on a small animal either an ovariohysterectomy or the removal of lumps after an incision in a Non‑Registered Premises (even if it were equipped with the facilities, equipment and personnel listed in paragraph 2.10 above) because to do so would fail to minimise the Infection Risks involved in those surgeries.
2.18Performing any surgery on a small animal in a Non-Registered Premises (for example at the residence of the patient's owner) that was not equipped with the facilities, equipment and personnel listed in paragraph 2.10 above would fall 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.
2.19It would not fall short of the standard set out in paragraphs 2.17 and 2.18 if the circumstances were such that there was no option but to perform the procedures outside a Registered Clinic because the surgery is an emergency and the patient is non-transportable.
2.20The standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency would require that a veterinary surgeon does not include in their house call practice procedures involving general anaesthesia (or rendering the patient unconscious) and surgery as these procedures should be carried out in a Registered Clinic to minimise the Infection Risks and the Survival Risks for the patient, excluding minor surgical procedures.
3.The following are the matters that we have not agreed upon:
…
3.3Although not ideal, whether it is still within the judgment of the treating practitioner and his relationship with the owner and pet, weighing up the pros and cons, to perform, for example, sterilisation procedures where there is a veterinary practice close by, and if that judgment is made, it would not fall short of the standard set out in paragraphs 2.17 and 2.18 to perform the procedure outside a properly equipped Registered Clinic.'
Paragraphs 2.17 and 2.18 of the Joint Statement of Experts indicated that the experts agreed that performing an ovariohysterectomy on a cat, other than in a registered veterinary hospital or clinic, when the circumstances did not involve an emergency, would fall short of the standards of professional conduct.
There were, however, two possible qualifications to this agreed position. Paragraph 2.20 might constitute a qualification of the statement in pars 2.17 and 2.18 if the cat sterilisation surgeries could be described as 'minor surgical procedures'. More significantly, the statement in par 3.3 suggested that despite the very clear statements in pars 2.17 and 2.18, the experts disagreed as to whether there might be circumstances in which it would not fall below the standards of professional conduct to perform surgery to sterilise a cat surgery outside a veterinary hospital or clinic.
This aspect of the experts' evidence was clarified in cross‑examination. Dr Macdonald's view was that it would fall below the professional standards that could reasonably be expected of members of the veterinary profession of good repute and standing if any surgical procedure (other than an emergency) were to be conducted outside a registered veterinary hospital or clinic.[96] Dr Moore's position about surgical procedures in general was more equivocal.[97] However, Dr Moore's position in relation to the cat sterilisation surgeries that were performed in this case was specifically clarified in cross‑examination. Dr Moore's evidence was:[98]
[96] See, eg, ts 108, 18 August 2010.
[97] See, eg, ts 109 ‑ 113, 18 August 2010.
[98] ts 120 ‑121, 18 August 2010.
ABBOTT, MR:    It's agreed that Dr Alexander performed surgeries to sterilise two female tortoise shell cats.
MOORE, DR:      Mm'hm.
ABBOTT, MR:    Is that something that you would regard as minor surgery?
MOORE, DR:      No.
ABBOTT, MR:    So in your view that's a surgery that ought to be done in a registered clinic?
MOORE, DR:      Yes, but having said that, I'm aware of situations where vets have in the past gone to remote country towns and undertaken spay – they advertise prior to them turning up, say next Wednesday, Thursday, that Joe Bloggs, veterinarian, is going to be in the town of XYZ in the country where there is no veterinarian - - -
ABBOTT, MR:    Sorry to interrupt you, but if it is also agreed in this instance that those surgeries could have been performed in a suitable clinic in Margaret River, that eliminates that commentary, doesn't it?
MOORE, DR:      Well, yes. 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. But they are surgeries – I'm not doubting that.
ABBOTT, MR:    Those ones are not minor surgeries in your view?
MOORE, DR:      No, they're major surgeries.
Counsel for Dr Alexander submitted that Dr Moore's evidence was that cat sterilisation surgeries were not always conducted in a registered clinic and a veterinary practitioner would need to exercise their judgment. I am unable to agree. Dr Moore's evidence confirmed that his view was that the sterilisation of a female cat was major surgery and that when a veterinary clinic was available (as it was here) that was surgery that should be performed in a veterinary clinic.
That evidence, viewed against the statements in the Joint Statement of Experts, confirmed that Dr Moore accepted that the performance of the cat sterilisation surgeries (which involved ovariohysterectomies) in the circumstances of this case fell short of the standard of professional conduct.
In its discussion of the expert evidence in relation to the cat sterilisation surgeries,[99] the Tribunal did not make any reference to that part of Dr Moore's evidence to which I have referred above. However, this part of the expert evidence was highly significant. Dr Moore's evidence in cross‑examination meant that it was open to the Tribunal to conclude that the expert witnesses agreed that the performance of an ovariohysterectomy on a female cat, other than in a registered veterinary hospital or clinic, in the circumstances of this case, would fall short of the standards of professional conduct. Accordingly, this was not (as counsel for Dr Alexander submitted) a situation in which Dr Alexander's conduct in performing the cat sterilisation surgeries could be said to have been consistent with a respectable, though minority, view[100] as to the standards of professional conduct.
[99] See especially RFD [128] ‑ [135].
[100] Cf Qidwai v Brown [1984] 1 NSWLR 100, 102 (Hutley JA).
The next question is whether the VS Act required that the Tribunal take into account the evidence of the expert witnesses. The VS Act does not expressly set out the matters the Tribunal must take into account. However, in determining whether the conduct of the veterinary surgeon falls substantially short of the standard of professional conduct for the purposes of s 23(2a), the Tribunal must first establish what that standard is. One of the key ways by which that may be done is by expert evidence on the practices actually observed by members of the profession of good repute and competence. If there is disagreement between the expert witnesses as to the practices observed, then it is a matter for the Tribunal to accept or reject that evidence and to attribute such weight as it considers appropriate to the evidence of each witness. Where, however, the expert witnesses agree, the Tribunal is, in my view, bound to take that evidence into account, although it remains for the Tribunal to attribute to that evidence such weight as it considers appropriate, having regard to the other evidence before it.[101]
[101] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J).
The Tribunal's conclusion that 'the experts agree to disagree in regard to the appropriateness of undertaking a sterilisation procedure outside a registered veterinary clinic or hospital'[102] indicates that the Tribunal either misunderstood the evidence, or overlooked the evidence given by Dr Moore in cross‑examination, and thus that the Tribunal failed to take into account the evidence on which the experts were in fact agreed.
[102] RFD [128].

Alternatively, if the Tribunal did in fact take this evidence into account, it did not provide any reasons at all as to why it did not give any weight to this evidence.
On either view, in my respectful opinion, the Tribunal erred in law, and that part of its decision which pertained to the cat sterilisation surgeries must be set aside.
Counsel for Dr Alexander submitted that the Tribunal correctly concluded that Dr Alexander's conduct did not fall substantially short of the standard of professional conduct and that ground 2 of the appeal should be dismissed. It is not necessary or appropriate for this Court to deal with that contention. It was a matter for the Tribunal to determine what weight should be given to the expert evidence, having regard to all of the other evidence before it. The Tribunal having erred in failing to take into consideration the agreed expert evidence in relation to the cat sterilisation surgeries, or in failing to explain why it gave no weight to that evidence, the appropriate course appears to be to remit this aspect of the matter to the Tribunal for further consideration.
In view of this conclusion, it is unnecessary to deal with the other grounds of appeal in relation to the Tribunal's reasons for decision on the cat sterilisation surgeries.

Did the Tribunal err in law in reaching its conclusion that the performance of the miscellaneous surgeries did not constitute unprofessional conduct as a veterinary surgeon?

In my view, none of the grounds of appeal in relation to the miscellaneous surgeries are made out.

Ground 3

This ground is as follows:
3.The Tribunal erred in law in
•concluding that the Board had not established that Dr Alexander's conduct in performing the miscellaneous surgeries constituted unprofessional conduct as a veterinary surgeon;
•failing to find that when surgical facilities in a registered veterinary hospital or clinic are available, and the circumstances do not make the surgery an emergency, a veterinary surgeon should only perform surgery in the nature of the miscellaneous surgeries within a registered veterinary hospital or clinic, and to do otherwise would constitute unprofessional conduct as a veterinary surgeon, and consequently should have found that Dr Alexander was guilty of unprofessional conduct.
A conclusion as to whether a party has discharged its burden of proof, or as to whether the facts satisfied a statutory test, is ordinarily not a question of law.[103] However, this ground of appeal is better understood simply as a statement of the conclusions which the Board contends follow in view of the errors of law alleged in grounds 3.1 ‑ 3.5.

Grounds 3.1 and 3.2

[103] Clark v Flanagan (1934) 52 CLR 416, 428 (Dixon J); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 ‑ 157 (Glass JA).

These grounds of appeal are as follows:
3.1The Tribunal failed to take into account various relevant considerations, namely the evidence in the Joint Statement of Experts in relation to the infection risks and survival risks which arise when surgery is conducted on small animals other than in a registered veterinary hospital or clinic.
3.2The Tribunal failed to take into account various relevant considerations, namely the evidence, or agreed facts, that four of the miscellaneous surgeries were conducted when the animals involved were anaesthetised, and that the teeth extracted from one of the animals were not 'loose'.
For the reasons set out above, ground 3.1 alleges an error of law. However, I am not persuaded that the Tribunal failed to take into account the evidence referred to in ground 3.1. I accept that the Tribunal did not specifically refer to the evidence in the Joint Statement of the Experts, and especially to par 2.20 of that Statement, in relation to the risks associated with performing surgery in the nature of the miscellaneous surgeries on small animals other than in a veterinary hospital or clinic. At the same time, however, the experts clearly disagreed about whether the standard of professional conduct was that 'minor surgical procedures' (as referred to in par 2.20 of the Joint Statement of Experts) should be carried out in a veterinary clinic or hospital, and as to what procedures constituted 'minor surgical procedures'. That disagreement clearly underpinned the evidence given by both Dr Macdonald and Dr Moore in relation to the performance of surgery in the nature of the miscellaneous surgeries. Dr Moore expressly disagreed with Dr Macdonald's view that surgery in the nature of the miscellaneous surgeries should not be performed outside a veterinary hospital or clinic. The Tribunal clearly took into account this conflict in the evidence of Dr Macdonald and Dr Moore, and in doing so understood the bases for their differences of opinion.[104] In these circumstances, I am not persuaded that the Tribunal failed to take into account the experts' agreed evidence of the risks arising from surgery on small animals.
[104] RFD [134] ‑ [135].
The contention in ground 3.2 is that the Tribunal failed to take into account the evidence, or agreed facts, that four of the miscellaneous surgeries were conducted when the animals involved were anaesthetised, and that the teeth extracted from one of the animals were not 'loose'. I do not agree. The Tribunal referred to the agreed facts in relation to the miscellaneous surgeries at par 9 of its decision. This ground is in reality a complaint that the Tribunal should have reached a different conclusion as to whether the miscellaneous surgeries constituted unprofessional conduct. No error of law is made out in relation to ground 3.2.

Ground 3.4(1) - taking into account irrelevant considerations

Ground 3.4(1) is to the following effect:
3.4(1)The Tribunal erred in law in that it took into account numerous irrelevant matters, or alternatively reached an unreasonable decision in so far as it took into account irrelevant considerations.[105]
[105] The irrelevant considerations to which the Board points in relation to this ground of appeal are those set out in pars 2.7(1), (3), (4), (5), (6), (7), (10), (11), (12) and (13) of its grounds of appeal.
The Board contends that the Tribunal took into account numerous irrelevant considerations.
The first raft of alleged irrelevant considerations pertains to the definition of 'veterinary surgery' in the VS Act. The Board contends that the Tribunal took into account[106] the statutory definition of 'veterinary surgery' in s 2 of the VS Act and that that was an irrelevant consideration.
[106] RFD [68] ‑ [82].
The Board also contends that the Tribunal took into account[107] whether 'home veterinary services' might be restricted by a 'strict definition of "veterinary surgery" in s 2 of the VS Act' and that that was irrelevant to determining whether Dr Alexander had engaged in unprofessional conduct.
[107] RFD [73].
Next, the Board contends that the Tribunal took into account[108] that the Board bore an onus of satisfying the Tribunal what a veterinary surgeon of good repute and competency understands when the term 'veterinary surgery' is used and that that was an irrelevant consideration. (This contention by the Board is surprising (to say the least) given that the observations of the Tribunal which are complained of[109] respond directly to a submission made in the Board's submissions to the Tribunal).
[108] RFD [82].
[109] RFD [82].
I do not accept that these matters were 'irrelevant considerations'. The case concerned whether the standard of professional conduct was such that veterinary surgery could be conducted outside a veterinary hospital or clinic, if one was available. The VS Act did not expressly preclude the Tribunal from giving consideration to the matters about which the Board now complains. Further having regard to the terms of the VS Act and its regulation of 'veterinary surgery' I am unable to see any basis for an implication that the considerations to which the Tribunal adverted were wholly extraneous to its decision, so as to give rise to an error in law.
The Board next contends that the Tribunal took into account Mr Beaumont's views[110] as to whether a veterinary procedure could be done outside a registered veterinary hospital or clinic and that that was an irrelevant consideration. I do not agree. Mr Beaumont was called by Dr Alexander and his evidence was relied upon by Dr Alexander in two ways: primarily as a witness of fact, as to the practices of veterinary surgeons that he had observed over 25 years as an RSPCA inspector, and secondly as a witness with expertise in the area of animal welfare. Mr Beaumont's evidence was potentially capable of assisting the Tribunal to ascertain the standard of professional conduct in relation to the performance of surgery on animals. Nothing in the VS Act expressly or by implication precluded consideration of such evidence, and the weight given to that evidence was a matter for the Tribunal.
[110] RFD [136].
The Board contends that the Tribunal took into account[111] whether Dr Alexander thought that a veterinary procedure could be done outside a registered veterinary hospital or clinic and that that was an irrelevant consideration. I am unable to agree. In referring to this aspect of Dr Alexander's evidence, the Tribunal recited what his evidence was. Having regard to the terms, subject matter and purpose of the VS Act, it cannot be said that the evidence of a veterinary surgeon the subject of disciplinary proceedings as to his or her understanding of what the standards of professional conduct required was an irrelevant consideration in the Tribunal's decision‑making process. In reaching its decision about what the standard of professional conduct actually was, or as to whether Dr Alexander's conduct fell substantially short of that standard, the weight given to his evidence was also a matter for the Tribunal.
[111] RFD [137].
The Board contends that the Tribunal took into account[112] whether the Board had demonstrated the 'accepted range and standard of veterinary surgical procedures that can be undertaken outside a registered facility' and that that was an irrelevant consideration. There are, in fact, a number of instances where the Tribunal refers to the need for the Board to establish the standard of professional conduct with respect to what surgical procedures could be undertaken outside a veterinary hospital or clinic.[113] Viewed in isolation these observations give rise to the impression that the Tribunal misunderstood the issues requiring its determination. However, when the Tribunal's reasons as a whole are considered, the observations of the kind about which the Board now complains appear to me to be incidents of imprecise expression, rather than a reflection of any misunderstanding of the issue the Tribunal was required to determine.
[112] RFD [144].
[113] See RFD [142] ‑ [143] and [147(b)].
That this was the case is apparent from the language the Tribunal used in other parts of its reasons for decision,[114] where it is apparent that the Tribunal appreciated that it had to determine whether the standard of professional conduct was that veterinary surgery of the kind involved in the miscellaneous surgeries (and the cat sterilisation surgeries) should only be conducted in a registered veterinary hospital or clinic, and then to determine whether Dr Alexander fell substantially below that standard, by performing the surgeries outside a veterinary hospital or clinic. When the reasons of the Tribunal are considered in their entirety, I am not persuaded that the Tribunal's observations indicate that it took into account an irrelevant consideration or otherwise misunderstood what it was required to determine.
[114] See for example RFD [104], [116], [130] ‑ [131].
The Board contends that the Tribunal took into account[115] the absence in Western Australia of any statutory prohibition, regulations, code of conduct or practice guidelines issued by the Board against performing veterinary surgery at premises other than veterinary hospitals and clinics and in relation to mobile veterinary services, the existence of practice guides of the Australian Veterinary Association for house call practice, the existence of guidelines for the provision of mobile veterinary services in Queensland and South Australia, the fact that the Board had not made any attempt to enact similar guidelines in Western Australia, and the absence of any evidence of professional development courses offered by the Board to assist practitioners regarding the type of services that may be offered outside registered hospitals and clinics. (For ease of reference I will refer to all of these matters collectively as the absence of guidelines.) The Board contends that the absence of guidelines was an irrelevant consideration so that by taking it into account the Tribunal erred in law. I am unable to agree.
[115] RFD [69] ‑ [70], [81], [85] ‑ [89], [92] ‑ [93], [119], [140] ‑ [142].
The VS Act does not expressly specify the evidence which must be taken into account in a determination as to whether conduct of a veterinary surgeon constituted unprofessional conduct. Evidence as to a range of matters may assist the Tribunal in determining the standard of professional conduct within the profession. Clearly, expert evidence may be of assistance, as may evidence of any guidelines or codes of practice which may indicate that a particular standard of conduct is observed by members of the profession of good repute and standing.
The Tribunal noted the absence of guidelines in the course of considering whether the evidence before it established that the standard of professional conduct was that veterinary surgery of the kind involved in this case should only be conducted in a registered veterinary clinic or hospital. Given that the experts did not agree about the standard of professional conduct applicable in relation to surgery in the nature of the miscellaneous surgeries, and where there was evidence which suggested that the standard of professional conduct advanced by the Board was not observed, or uniformly observed, by veterinary surgeons in Western Australia, the Tribunal was clearly concerned that there appeared to be some doubt as to what the standard of professional conduct actually was.
When considered as a whole, the Tribunal did not refer to the absence of guidelines as a basis for concluding that there was no standard of professional conduct in relation to the performance of veterinary surgery.[116] Rather, it viewed the absence of guidelines as a factor which indicated that there was some uncertainty within the profession about the standard of professional conduct in relation to where veterinary surgery should be performed.
[116] Cf Psychologists Board of Queensland v Robinson [2004] QCA 405 [22].
In my view, the Tribunal did not take into consideration an irrelevant consideration when it noted the absence of guidelines.
The Board contends that the Tribunal took into account[117] the fact that no one from the Board gave evidence at the hearing to explain what views the Board held in relation to the type of veterinary services that could be rendered outside a registered veterinary hospital or clinic and that that was an irrelevant consideration. It is not apparent how the evidence of an officer of the Board as to the Board's corporate view was of any significance: the Board's views were manifest in its application, in the evidence it relied upon in the Tribunal, and in the submissions of its counsel. The Tribunal clearly and properly took the Board's views into account. Accordingly, I do not consider that the Tribunal's observations suggest that it took into account an 'irrelevant' consideration, but even if it did, the absence of evidence as to the Board's view was patently such an insignificant consideration in the context of the Tribunal's decision overall that it could not be said to constitute an error of law, in the sense of one which was material to the Tribunal's decision.[118]
[117] RFD [119].
[118] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J); R v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761, 769 ‑ 770 (Forbes J).
The Board contends that the Tribunal took into account[119] the evidence of Dr Moore that it was 'the judgment of the veterinary practitioner that determines the best procedure to be administered' as a proper basis for determining the professional standard and that that was an irrelevant consideration. Although the Tribunal's reasons in relation to this aspect of Dr Moore's evidence are, in my respectful view, a little oblique, it is apparent from subsequent paragraphs in the Tribunal's reasons[120] that the Tribunal understood the effect of Dr Moore's evidence to be that a decision as to the place where surgery should be performed would necessarily involve a consideration of all of the circumstances, including the nature of the particular surgery and the animal involved, so there was no 'hard and fast' rule that all veterinary surgery should be performed in a veterinary hospital or clinic.
[119] RFD [133].
[120] See RFD [134] ‑ [135].
For the reasons I have already set out at pars 119 and 129, the Tribunal's use of Dr Moore's evidence did not give rise to an error of law.

Ground 3.4(1) - alleged irrelevant considerations resulting in an unreasonable decision

The Board contends that in taking into account the irrelevant considerations the subject of ground 3.4, the Tribunal reached a decision which was so unreasonable that no reasonable decision‑maker could have reached the same conclusion. I do not agree.
The Tribunal's decision was that it was not satisfied – having regard to the evidence – that the Board had established that the standard of professional conduct was that all surgery of the kind involved in the miscellaneous surgeries necessarily had to be performed in a veterinary hospital or clinic. In my view, the Tribunal's decision cannot be regarded as so unreasonable that no reasonable decision‑maker would have reached the same view, having regard to two key aspects of the evidence. First, there was clearly an area of disagreement between the expert witnesses in relation to the types of surgery which should be performed in a veterinary hospital or clinic and as to whether surgery of the kind involved in the miscellaneous surgeries should necessarily be performed in a veterinary hospital or clinic. Secondly, evidence was given by Dr Moore (and to a lesser extent Mr Beaumont) in relation to the practices adopted by veterinary surgeons in Western Australia in relation to surgery of the kind involved in miscellaneous surgeries, which suggested that those practices were not consistent with the standard of professional conduct advanced by the Board. In view of that evidence, and particularly having regard to the need for the Tribunal to feel an actual persuasion[121] that the evidence established the standard of conduct for which the Board contended, the Tribunal's decision could not be described as so unreasonable as to constitute an error of law.
[121] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 - 363 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
In my view, there should be a grant of leave to appeal in respect of ground 3.4, but that ground of appeal should be dismissed.

Grounds 3.4(2), (3) and (4)

In these grounds the Board's contentions, in essence, are as follows:
3.4(2)The Tribunal erred in law in that it preferred` the evidence of Dr Moore to that of Dr Macdonald.
3.4(3)The Tribunal erred in law in failing to take into account the evidence in the Joint Statement of the Experts and in relation to those issues where there was disagreement between the experts, in failing to prefer the evidence of Dr Macdonald to that of Dr Moore;
3.4(4)The Tribunal erred in law in failing to provide any or any adequate reasons for why it did not find that the miscellaneous surgeries should be performed in registered veterinary hospitals or clinics.

Insofar as grounds 3.4(2) and 3.4(3) contend that the Tribunal erred in failing to prefer the evidence of Dr Macdonald to that of Dr Moore, those grounds of appeal are incompetent. As I have noted above, the weight to be given to particular evidence, including expert evidence, is a question of fact.
Insofar as ground 3.4(3) contends that the Tribunal erred in failing to take into account the evidence in the Joint Statement of the Experts, for the reasons I have already given I am not persuaded that the Tribunal failed to take the Joint Statement of Experts into account.
As for the contention in ground 3.4(4) - that the Tribunal failed to provide any or any adequate reasons for its decision - I am not satisfied that in this case the Tribunal failed to provide adequate reasons for its decision in relation to the miscellaneous surgeries. The Tribunal provided reasons for why it did not find that the standard of professional conduct required that the miscellaneous surgeries should have been performed in registered veterinary hospitals or clinics. The Tribunal made clear in par 147 of its reasons that in reaching its conclusion on the miscellaneous surgeries it relied on the 'reasons set out above'. In other words, the Tribunal reached its conclusion in relation to the standard of professional conduct with respect to the miscellaneous surgeries for virtually identical reasons to its conclusion in relation to the cat sterilisation surgeries, with one exception, namely its consideration in each case of the expert evidence specific to the type of surgery involved. In my view, the Tribunal's reasons adequately disclose its reasoning process, and in that sense no error of law is involved.
Leave to appeal should be refused in respect of grounds 3.4(2) and 3.4(3) insofar as those grounds do not allege errors of law. Leave to appeal should be granted in relation to ground 3.4(3) (insofar as it alleges a failure to take relevant evidence into account) and ground 3.4(4). However, both grounds of appeal should be dismissed.

Ground 3.5

The Board's contention in this ground of appeal appears to be as follows:
3.4(5)The Tribunal acted unreasonably or took into account irrelevant considerations in so far as it found that Dr Moore's view was that teeth extractions and the removal of grass seed abscesses are better done in registered veterinary hospitals or clinics, but made no findings that the miscellaneous surgeries were minor and gave no reasons why it did not find that the professional standard in relation to the miscellaneous surgeries was that those surgeries should be performed in registered veterinary hospitals or clinics.
This ground does not accurately reflect the Tribunal's finding in relation to Dr Moore's evidence. The Tribunal noted that Dr Moore's evidence was that:
[H]e would conduct minor surgery outside a registered veterinary premises - for example, removal of loose teeth and grass seed abscesses. He does not deny that these procedures can be 'better done at the veterinary hospital' but accepts that if proper care is taken, the procedures could also be done outside a veterinary hospital or clinic.[122]
[122] RFD [135].
That summary reflected Dr Moore's evidence in cross‑examination.[123] This aspect of Dr Moore's evidence appears to have related to the exception for 'minor surgical procedures' in par 2.20 of the Joint Statement of the Experts. It was apparent from his evidence that Dr Moore considered that surgical procedures of the kind involved in the miscellaneous surgeries may, depending on the circumstances, constitute 'minor surgical procedures' which could be performed outside a veterinary hospital or clinic.[124] In determining the standards of professional conduct observed by veterinary surgeons in Western Australia in relation to the performance of surgery in the nature of the miscellaneous surgeries, it was open to the Tribunal to have regard to the evidence of experts such as Dr Moore. There is nothing in the VS Act or its subject matter or purpose which suggests such evidence was 'irrelevant'. As I have pointed out, the weight attributed to that evidence was a matter for the Tribunal. The contention that the Tribunal erred in law by taking into account an irrelevant consideration fails.
[123] See ts 10, 13, 18 August 2010.
[124] See, for example, ts 13, 109 ‑ 110, 111 ‑ 113, 18 August 2010.
The contention that the Board acted 'unreasonably' in reaching its conclusion, having regard to Dr Moore's evidence, must also fail. It cannot be said that in its reliance on Dr Moore's evidence the Tribunal gave excessive weight to a factor of no great importance.[125] Dr Moore's evidence was relevant to a consideration the Tribunal was bound to take into account, namely the determination of the standard of professional conduct.
[125] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 [41] (Mason J).
Insofar as this ground also contends that the Tribunal did not give reasons or adequate reasons for its decision, that contention fails, for the reasons I set out at [155].
Leave to appeal should be granted in respect of ground 3.5 of the grounds of appeal, but that ground should be dismissed.

Conclusion and orders

Leave to appeal should be granted in respect of grounds 1, 1.1, 1.2, 2.9, 3.1, 3.2, 3.4(1), 3.4(3) and 3.4(4), and 3.5.
Ground 2.9 of the grounds of appeal should be upheld.
Grounds 1, 1.1 and 1.2 and grounds 3.1, 3.2, 3.4(1), 3.4(3), 3.4(4) and 3.5 of the grounds of appeal should be dismissed. It is unnecessary to deal with the remaining grounds of appeal, in relation to the Tribunal's decision with respect to the cat sterilisation surgeries, in view of my conclusion on ground 2.9.
The appropriate course appears to be to set aside the decision of the Tribunal insofar as it relates to that part of the Board's application which pertained to the cat sterilisation surgeries, and to remit that part of the matter back to the Tribunal for determination in accordance with these reasons.
I will hear from counsel as to the form of the orders which should be made.

Date	Nature of veterinary surgery performed	Animal
8 January 2008	Surgical removal of lump	Male dog
28 January 2008	Sutured wounds from dog attack	Male dog
28 February 2008	Clean teeth and extract three (3) cheek teeth	Female dog
April 2008	Extracted four teeth	14‑year‑old female dog
15 April 2008	Wound on flank, grass seed abscess ... Anaesthetised.	7‑year‑old male dog
4 July 2008	Extracted fifteen (15) teeth	Male dog
February 2009	Anaesthetised and extracted teeth	5‑year‑old cat