Veterinary Surgeons Investigating Committee v Hopwood [GD]

[2003] NSWADTAP 11

Appeal Panel - Internal

CITATION:	Veterinary Surgeons Investigating Committee -v- Hopwood [GD] [2003] NSWADTAP 11
PARTIES:	APPELLANT Veterinary Surgeons Investigating Committee RESPONDENT Greg Hopwood
FILE NUMBER:	029019
HEARING DATES:	24/03/2003
SUBMISSIONS CLOSED:	03/24/2003
DATE OF DECISION:	04/09/2003
DECISION UNDER APPEAL:	Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; McGilvray G - Member
CATCHWORDS:	costs - adequacy of reasons - penalty - reviewable decision - scope of order-making power
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003066
DATE OF DECISION UNDER APPEAL:	04/04/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Veterinary Surgeons Act 1986
CASES CITED:	Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44 Taylor v Director General, Department of Transport (GD) [2001] NSWADTAP 29 Woodside v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8
REPRESENTATION:	APPELLANT M Wade, solicitor RESPONDENT No appearance
ORDERS:	1. Appeal dismissed

REASONS FOR DECISION

1 The Veterinary Surgeons Act 1986 (the VSA) governs the practice of veterinary surgery in New South Wales. The VSA, Part 4, makes provision for disciplinary investigations into the conduct of veterinary surgeons. A statutory body, the Veterinary Surgeons Investigating Committee (the Committee) has responsibility for investigating complaints: s 27.

2 The Committee may decide to dismiss a complaint, or it may decide to take action in relation to the complaint: s 28.

3 Section 28 provides:

‘ 28. Decision of Investigating Committee on complaint
(1) The Investigating Committee:
(a) may dismiss any complaint made to it,
(b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following:
(i) by order, caution or reprimand the veterinary surgeon,
(ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon,
(iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or
(c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly.
(2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct.
The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.’
4 It will be seen that the Committee has two alternatives when it is satisfied that a complaint warrants action. It may impose a penalty immediately (s 28(1)(b)) or refer the complaint to the Tribunal for inquiry if it is ‘sufficiently serious’ to justify that course of action: s 28(1)(c). In making the choice a key consideration will be the difference between the penalties open to be imposed by the Committee as compared to the Tribunal. In particular, only the Tribunal can order the removal from practice of the surgeon, either by way of suspension or by way of an order for deregistration: s 32(1)(b) and (1)(c). The Committee may impose the sanctions of a caution, a reprimand, the imposition of temporary conditions on registration and an order for costs of the investigation: s 28(1)(b).

5 Where the Committee takes action and imposes a penalty, the surgeon affected may seek review of that order in the Tribunal: VSA, s 31. Section 31 provides:

‘ 31. Right to apply to Tribunal for review of orders of the Investigating Committee
A veterinary surgeon against whom the Investigating Committee has made an order under section 28 (1) (b) may apply to the Tribunal for a review of the order.’
6 The Tribunal below held that the Tribunal’s powers are confined to those that were available to the Committee in respect of the making of orders: Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44. In that case Dr Hopwood had applied for review of Committee orders made pursuant to s 28(1)(b). The Tribunal decided to vary the orders, including set aside one of the orders made against Dr Hopwood. The Committee does not seek in these proceedings an change in the substantive orders. It has sought to reserve its position in relation to the seeking of one further order, an order for costs against Dr Hopwood. At hearing the Tribunal had ruled that any costs application should proceed under s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

7 The Tribunal rejected the contention that it had a power to make costs orders in review proceedings under s 32 VSA. Similarly it had rejected a wider submission that the Tribunal in review proceedings that all of the powers given by s 32 were open in review proceedings.

8 Section 32 provides:

‘ 32. Tribunal's powers when complaint proved
(1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:
(a) an order reprimanding or cautioning the veterinary surgeon,
(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,
(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,
(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,
(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,
(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.
(2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1) (b) or (c) if the Tribunal is of the opinion that:
(a) because the matter of the complaint is of a trivial nature, or
(b) because of the circumstances in which that matter occurred, or
(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.
(3) If the Tribunal considers that the matter of a complaint against a registered veterinary surgeon has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary surgeon was sufficiently unacceptable to warrant the making of the complaint, the Tribunal may make an order against the veterinary surgeon under subsection (1) (a) or (f), or both.
(4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person's name to the register.
(5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon.
(6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.’
9 Section 31, the provision under which Dr Hopwood made his application for review, is silent in relation to the making of costs orders. Accordingly, the Tribunal’s opinion that its costs power was that contained in the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 88(1) which provides materially, ‘[T]he Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.’

10 The Committee sees s 32(1)(f) as a provision more favourable to it, as the Tribunal is empowered, if the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, to make an order requiring the veterinary surgeon to pay specified costs relating to the hearing. This provision only allows for the possibility of the veterinary surgeon being required to pay costs. Section 88 leaves open the possibility that subject to ‘special circumstances’ being found the Committee might be ordered to pay costs.

11 The Committee is also concerned, as we see it, over the apparent disparity that exists as between provision on this matter found in s 28(1)(b) and the weaker provision imported into s 31 proceedings if the Tribunal below is correct that s 88, Tribunal Act is the relevant provision. Under s 28(1)(b), the Tribunal may, if an adverse order is made, order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon. The s 88 (Tribunal Act) rule is not as strict and as favourable to the Committee.

12 Though their immediate object was to clarify the position in relation to costs, the submissions had, as the Committee noted, wider implications for the operation of the veterinary surgeons discipline system. The Committee was in effect contending that once a matter reached the Tribunal, whether by way of review of a Committee order or by way of referral from the Committee, the Tribunal had the same order-making powers.

13 The second matter by the Committee placed in issue relates to an observation made in the course of the Tribunal’s reasons about the nature of the fact-finding process that is undertaken in the review jurisdiction of the Tribunal. The Tribunal expressed the view, drawing from s 63 of the Tribunal Act, that its function on review was to determine what the ‘correct and preferable decision’ was having regard to the circumstances; and not to determine whether the facts and circumstances were ‘proven’. The Committee objected to this statement, and said that it involved an error of law as to the nature of the proceedings of the Tribunal. The passage in the Tribunal’s reasons follows:

‘29 Section 32 is expressed to relate to "a complaint against a registered veterinary surgeon (that) has been proved to the satisfaction of the Tribunal." When reviewing an order of the VSIC, the Tribunal's task is not to find that a complaint has been proved or not proved. Our task is to decide what the correct and preferable decision is having regard to the material then before us. For this reason, s 32 relates to the Tribunal's powers when making original decisions, but not when reviewing the VSIC's orders.’
14 The Committee submitted that because of the two errors (as to the scope of the order-making power, and as to the question of proof of a complaint) the decision was defective. We will not reiterate in detail in this decision the reasons given by the Tribunal below which were comprehensive.

Whether s 32 is relevant to proceedings brought under s 31?
15 The fundamental question is whether the Tribunal when exercising its jurisdiction conferred by s 31 of the VSA to ‘review’ a Committee order is engaged in the ‘review of a reviewable decision’, as that description is used in the Tribunal Act; or is engaged in the process of ascertaining ‘[i]f the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal’ (to use the opening words of s 32), and therefore has open to it the order-making powers contained in s 32.

16 The Committee essentially repeated submissions that were made to and rejected by the Tribunal below. We are in agreement with the conclusions reached by the Tribunal as to the fundamental question put in issue in this appeal.

17 We agree with the overall thrust of the Tribunal’s reasons, and make the following further observations.

18 In the context of the legislation affecting the jurisdiction of this Tribunal the word ‘review’ is a term of precise meaning. The Tribunal Act divides the jurisdiction as a whole of the Tribunal into two categories. Section 36 provides:

‘ 36. What are the principal kinds of decisions that the Tribunal may make?
(1) The Tribunal may:
(a) make original decisions, and
(b) review reviewable decisions.
(2) This section does not limit any other function of the Tribunal.
Note.
An original decision is a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Part 7A of the Anti-Discrimination Act 1977. Other examples are mentioned in Schedule 2.
A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. Examples of the review jurisdiction of the Tribunal are mentioned in Schedule 2.’
19 Schedule 2 to the Tribunal Act, as the explanatory note indicates, is illustrative of this dichotomy. Schedule 2 deals with the composition and functions of the various Divisions of the Tribunal. In particular, at cl 7 of Division 3 of Part 4 of the Schedule it deals with the way proceedings in the Tribunal arising under the VSA are to be constituted. The clause provides:
‘ 7 Veterinary Surgeons Act 1986 (Original decisions and reviewable decisions)
(1) For the purposes of exercising a function conferred or imposed on the Tribunal by or under the Act, the Tribunal is to be constituted by a Veterinary Disciplinary Panel.
(2) A Veterinary Disciplinary Panel is to consist of the following Division members of the General Division of the Tribunal: (a) 1 Division member who is a judicial member, and
(b) 1 Division member who is a non-judicial member and who is also a member of the Board, and
(c) 1 Division member who:
(i) is a non-judicial member, and
(ii) is not a veterinary surgeon, and
(iii) was assigned to the Division on the recommendation of the relevant Minister to represent the interests of users of veterinary services.
(3) In this clause:
"Board" means the Board of Veterinary Surgeons of New South Wales constituted under section 4 of the Act.
"relevant Minister" means the Minister administering the Act.
"the Act" means the Veterinary Surgeons Act 1986 .’
20 The clause heading reflects an understanding that the Tribunal’s jurisdiction in respect of professional discipline has an ‘original decisions’ element and a ‘review of reviewable decisions’ element. The effect of the clause is to ensure that whether the case arrives by one track or the other it is dealt with by a Veterinary Disciplinary Panel constituted in the same way.

21 In s 8 of the Tribunal Act it is provided that:

‘ 8. What is a reviewable decision?
A "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.
Note.
Section 38 provides for the circumstances in which the Tribunal has jurisdiction to review a decision of an administrator.’
22 Section 9 defines who is an administrator for this purpose:
‘ 9. Who is an administrator?
(1) An "administrator" , in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.
Note.
There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, sections 6 (2)--(5) and 38 (4) and (5) and subsection (2).
(2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only administrator in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.’
23 In comparison s 7 defines an ‘original decision’ as follows:
‘ 7. What is an original decision?
An "original decision" is a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker.
Note.
Section 37 provides for the circumstances in which the Tribunal has jurisdiction under an enactment to make an original decision.’
24 The dichotomy is also reflected in the heading of s 34 in the current VSA. It is headed ‘appeals against orders of the Tribunal in its original jurisdiction’. The section then goes on to deal with who can lodge an appeal against ‘an order made under section 32’ as well as other matters. There is no reference to s 31. That is, as we see it, because the power to appeal in relation to review of reviewable decisions is conferred directly by s 112(1)(b) of the Tribunal Act, read in conjunction with s 113. Whereas for a decision to be appealable where it is an original decision of the Tribunal it is required that the appeal right be conferred ‘expressly’ by ‘the enactment under which the Tribunal has jurisdiction to make the decision’ (s 112(1)(a), Tribunal Act). That is where s 32 fits in.

25 It is beyond doubt that the Veterinary Disciplinary Panel of the Tribunal is the primary decision-maker in relation to complaints considered sufficiently serious to be referred to it by the Committee for inquiry. There is no prior decision involving the making of orders. Section 32 involves an ‘original jurisdiction’.

26 On the other hand, it is equally plain that the Committee is the primary decision-maker in those less serious cases where it makes final orders disposing of the matter. The Panel is then called on to engage in review of a reviewable decision if the veterinary surgeon exercises the administrative appeal right given by s 31. The Committee is an ‘administrator’ (i.e. a primary decision-maker) within the meaning of the Tribunal Act when it imposes an order pursuant to s 28(1)(b) of the VSA. It is affected by the various provisions that attach responsibilities to administrators. (We note that these obligations may be excludable, as for example the obligation to engage in internal review may be excluded by regulation: Tribunal Act, s 53(11)(b).)

27 Mr Wade, representing the Committee, sought to counter this logic by referring to the legislative history giving rise to the present ss 31 and 32. He sought to derive from that history support for the proposition that, whatever may be the general position applying to merits review of administrative decision, in this instance the Tribunal (in the form of the Veterinary Disciplinary Panel) had available to it its full menu of order making powers whether dealing with a review of a s 28(1)(b) order or a complaint referred under s 28(1)(c).

28 Mr Wade pressed the view that the VSA prior to the making of these amendments reflected an approach to the jurisdiction of the then Tribunal which did not lead to a situation where the Tribunal had different powers to make orders depending on whether a decision made by the Committee was the subject of appeal or whether the complaint was one of a more serious kind that had been referred to the Tribunal for inquiry. We have reviewed the legislative history, and can find no basis for this analysis. It is important to the efficient functioning of the Tribunal that accurate accounts of legislative histories be placed before it by knowledgeable parties such as the Committee. This did not, we regret, occur in this case.

29 Part 4 of the pre-1997 version of the VSA had four provisions – s 30 (headed ‘Inquiry by Disciplinary Tribunal’); s 30A (headed ‘Right of Appeal to Disciplinary Tribunal’); s 31 (headed ‘Powers of chairperson of Disciplinary Tribunal); and s 32 (‘Chairperson may make disciplinary orders’).

30 The old s 30 is replicated with little change in the present s 30 (and is headed ‘Inquiries by Tribunal). The old s 30A is repealed and now is replicated as to its principal provision by the present s 31. The old s 31 is repealed. The old s 32 is essentially replicated by the present s 32. The reason for there being no equivalent to the old s 31 in the new scheme is obvious. It is a detailed procedural provision (going to such matters as the giving of directions, the giving of notices of hearing, the position in relation to rulings on questions of law, and the like). These matters are all now addressed in the general procedural provisions of the Tribunal Act.

31 The old s 30A also had a number of procedural provisions. These also are not now replicated in the present VSA. Those matters are also addressed in the Tribunal Act. The old s 30A stated in sub-section (1): ‘A veterinary surgeon against whom the Investigating Committee has made an order under section 28(1)(b) may appeal to the Disciplinary Tribunal against the order’. The new s 31 states, by comparison: ‘A veterinary surgeon against whom the Investigating Committee has made an order under s 28 (1) (b) may apply to the Tribunal for a review of the order.’ It will be seen that the old s 30A(1) and s 31 are on all fours with each other.

32 Sub-sections (2) to (10) of the old s 30A then dealt with time for lodging an appeal; the nature of the hearing; legal representation, both for the surgeon and the person who originally made the complaint; the immunities attaching to the performance by the Tribunals of its functions; the powers of the Tribunal in relation to the orders; division of opinion; notice of decision; date of effect of decision. As previously noted, these matters are now all dealt with by the general provisions of the Tribunal Act and do not need to be addressed separately in the VSA.

33 The old s 32 dealt with the disciplinary orders that could be made by the Tribunal ‘if the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Disciplinary Tribunal’. This provision has its equivalent in the present s 32.

34 Most importantly, it is plain that the old legislation differentiated between the powers available to the Tribunal at an appeal and those available to it in a s 32 proceeding. Sub-section (7) of the old s 30A provides as follows as to the powers to make orders in respect of an appeal:

‘(7) At the end of the hearing of an appeal , the Disciplinary Tribunal may confirm, quash or vary the order appealed against, having regard to the merits of the case. The Disciplinary Tribunal must set out its reasons for decision.’ [emphasis added]
35 This - the predecessor - provision is clearly consistent with the present position, as was explained by the Tribunal below. The powers to ‘confirm, quash or vary the order’ are now found in s 63 of the Tribunal Act, which provides:
‘ 63. Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.’
36 The power to vary the order appealed against could include the making of one of the orders open to the primary decision-maker (the Committee). It is clear that the orders the Tribunal can impose remain confined to those available to the primary decision-maker (the Committee) unless there is a statutory provision to some other effect. The Tribunal can not make orders that the administrator does not have power to make.

37 As to whether from within the range of orders available to the administrator, it can chose a more severe one that that imposed by the administrator, the position is that the Tribunal would need at least to give notice to the practitioner if it was considering imposing an order more serious order than that originally imposed. See generally Taylor v Director General, Department of Transport (GD) [2001] NSWADTAP 29 at [33-36].

38 If the Parliament had, as Mr Wade contends, intended that the previous Tribunal was to have the same orders as those contained in s 32, it would not have enacted sub-section (7) of s 30A. The old s 32 as does the present s 32 confers power on the Tribunal to make disciplinary orders which include deregistration and an order for the costs of the hearing.

39 It is clear that Parliament did in the 1995 amendments (Veterinary Surgeons Amendment Act 1995, No 48) seek to introduce a remedial tier into the discipline of veterinary surgeons. The powers given to the Committee were new ones. The Minister said in the Second Reading Speech (Hansard, LA, 20 September 1995):

‘Expansion of the Committee’s powers is sought to enable complaints to be more satisfactorily dealt with at Committee level. … The expanded powers will enable the Committee to perform a more effective rehabilitation role, benefiting the public, the profession and the veterinary surgeon, rather than just the punitive role. For example, it is envisaged that the Committee will impose remedial education as a condition of continued registration where appropriate.’
40 The 1995 legislation did not address the costs of the appeal hearing; nor do the later amendments, now operating.

41 Finally, Mr Wade contended that it was in the public interest for an interpretation to be given to s 32 which applied it to review hearings. A purposive interpretation of this kind can only be adopted if there is a choice of possible constructions in the words used by the legislature. Section 33 of the Interpretation Act 1987 provides:

‘ 33. Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.’
42 This provision is not a mandate to disregard the words used. In this instance we must reconcile s 32 with s 31. We are not satisfied that the interpretation which we consider the provisions plainly support involves any abnegation of the policy objectives of this disciplinary scheme.

43 This scheme limits the range of orders that are made against the practitioner in respect of less serious misconduct.

44 If the Committee considers that there is a prima facie case of misconduct of sufficient seriousness to refer it to the Tribunal, then if it is acting reasonably it would have in mind that the conduct is worthy of punishment in a more serious way.

45 The sanctions which the Tribunal has as primary decision maker that are more serious are suspension; direction to deregister, fine up to $10,000, imposition of conditions limiting the right to practise (there is no limitation to temporary conditions as applies to the Committee), and an order requiring payment of costs of hearing.

46 The result is that the Committee is able to deal in a conclusive way with minor matters of misconduct. Practitioners have the right to have the Committee’s decision reviewed without being at risk of any worse outcome. The Tribunal is the forum to which more serious cases must go. If a matter is referred to the Tribunal the practitioner is on notice that more serious penalties are likely to be sought than those that were open to the Committee to impose.

47 Mr Wade claimed that it would be perverse if the Tribunal hearing an application for review of a Committee order heard evidence that warranted more serious reprobation than it was open to the Tribunal to administer. It should be open to the Tribunal in those circumstances to identify these matters and invite the Committee to consider whether it wishes to take any action. In the case of an inquiry the Tribunal does have the power to initiate its own complaint in these circumstances: see s 30(6). If there is a shortcoming in the legislation in that regard that is a policy issue to be taken up with the Government.

48 We are satisfied that there was no error of law in relation to the question of the nature of the order-making powers open to be exercised by the Tribunal in relation to an application for review of a Committee order, made pursuant to VSA, s 31.

The Nature of the Task that the Tribunal undertakes in a Review hearing
49 As to the other matter raised, whether the Tribunal on review is engaged in the task of finding the matters before it ‘proven’ or engaged in some other task, we do not think the observations of the Tribunal, if there is an error, involve any material error. The way the Tribunal is to go about the task of review is addressed by s 63(1) and (2) of the Tribunal Act, already cited above.

50 The observations made by the Tribunal that have been criticised were made in the course of construing the opening words of s 32, and in seeking to support the ultimate conclusion that s 32 is not applicable to review proceedings. In our view it is not necessary, in order to reach that conclusion, for those opening words to be closely construed. The observations were unnecessary.

51 We make the following brief comments on the nature of the fact-finding process in merits review proceedings. It is well established that the object of a review hearing is to ascertain what is the correct and preferable decision based on all relevant material as at the time of the hearing. We refer to the Tribunal’s discussion.

52 As to the fact finding process that takes place in a review hearing, it will often be the case that many of the facts as determined by the primary decision-maker are no longer in contest. If they are in contest, then a fact-finding process of the kind typical in courts and tribunals will be undertaken. In the case of this Tribunal, it has very broad powers to define the process that will be followed, see s 73 of the Tribunal Act. It is not bound, for example, to proceed by way of formal rehearing. Under the 1995 amendments to the VSA the practitioner had a right to ‘appeal’ to the Tribunal, and s 30A(3) provided that the appeal was to proceed by way of a ‘new hearing’. Now the position is, arguably, more flexible in that the Tribunal is not bound to enter into a new hearing in respect of a review application under s 31.

53 When the Tribunal is making findings of fact in the context of a merits review proceeding, the Tribunal must proceed in a lawful way that does not give rise to an error of law. Accordingly, for example, even though it is not bound by the rules of evidence it must make findings based on evidence that is logically probative. There are a number of other requirements which we will not recite at length here: see generally Woodside v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8. We do not understand the brief observations made in the course of construing the word ‘proven’ in s 32 to involve any denial of these propositions.

Other Matters
54 Finally we should note that there were a number of observations made by Mr Wade in the course of his argument with which we agree. We agree that the purpose of the disciplinary scheme is to ensure the protection of the public and the welfare of animals by ensuring that appropriate sanctions are visited on practitioners who engage in misconduct and bring the profession into disrepute (see to similar effect, the comments of the Minister in the Second Reading Speech in 1995, cited above).

55 Mr Wade submitted that the matters to be examined in a disciplinary inquiry (whether disposed of initially by the Committee or initially by the Tribunal) embrace all conduct of concern to the original complainant (typically the owner of an animal) as well as conduct discerned by the Committee with its technical understanding of veterinary practice as warranting examination. We agree with that view.

56 In conclusion, and returning to the question of the costs power, we agree with the Tribunal below that the relevant power is that found in s 88 of the Tribunal Act. The parties were given an opportunity to make submissions. The Tribunal decided to make no order: Hopwood -v- Veterinary Surgeons Investigating Committee (No. 2) [2002] NSWADT 176.

57 The Tribunal and the Appeal Panel have noted on a number of occasions that success or failure would not of itself ordinarily constitute ‘special circumstances’ for the purpose of a costs order. But the position may be different if the primary decision-maker has power to order costs against an unsuccessful party. In that instance, it may be that an argument can be mounted for the proposition that the same rule should apply as a ‘special circumstance’ in respect of any proceeding for review of the decision. It is not necessary for us to form a view on that issue at this point.

Order
1. Appeal Dismissed.