Veterinary Surgeons Investigating Committee v Howe (No 2)

[2003] NSWADT 156

CITATION:	Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 156
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Dr Peter Allan Howe
FILE NUMBER:	023033
HEARING DATES:	09/12/2002
SUBMISSIONS CLOSED:	01/13/2003
DATE OF DECISION:	05/13/2003
BEFORE:	Hennessy N - Magistrate (Deputy President); Thompson R - Member; Clark F - Member
APPLICATION:	Veterinary surgeon - misconduct or serious misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct or serious misconduct in a professional respect
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Medical Practice Act 1992 Veterinary Surgeons Act 1986
CASES CITED:	Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191 Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97) McBride v Walton (unreported, Court of Appeal, 15 July 1994) Law Society of New South Wales v Bannister (1993) LPDR 24 NSW Bar Association v Evatt (1968) 117 CLR 177 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Moulton v Law Society of New South Wales [1981] NSWLR 736 HCCC v Litchfield CA (1997) 41 NSWLR 630 Ex parte Tziniolis (1966) 67 SR (NSW) 448 di Suvero v New South Wales Bar Association [2001] NSWADT 37
REPRESENTATION:	APPLICANT M Wade, solicitor RESPONDENT A Stenmark SC, barrister
ORDERS:	1.The name of Dr Peter Allan Howe be removed from the register of veterinary surgeons. Dr Howe may apply for restoration of his name to the register after two years from the date this decision comes into effect.; 2. Dr Howe to pay the VSIC’s costs in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.; 3. The orders made under s 75(2)(b)(i) and (ii) in relation to Dr Howe and all witnesses is revoked.; [The suppression order has now lapsed]; 4. Orders 1, 2 and 3 do not take effect until 21 days after the Registrar gives notice of the order to Dr Howe.

Introduction
1 These reasons follow from proposed orders suggested by the Tribunal on 30 September 2002 in the matter of Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191 (“the first decision”). The proposed orders were made after a hearing in which the Tribunal found, among other things, that Dr Howe, a veterinary surgeon, had engaged in serious misconduct in a professional respect and is not of good character. Those findings were made under the Veterinary Surgeons Act 1987 (the Act).

2 At the first hearing Ms Stenmark, representing Dr Howe, requested that the Tribunal conduct a separate hearing on “penalty” once the findings in relation to each complaint had been made. The Tribunal was reluctant to prolong the matter unnecessarily and proposed that, as far as possible, evidence and submissions be put by each party in relation to “penalty” at the first hearing. The parties did adduce some evidence and made submissions on “penalty” at the first hearing. The Tribunal foreshadowed that it would make findings in relation to the complaints and come to a preliminary view on the appropriate penalty. That was done. The directions following the first hearing invited the parties to advise the Tribunal whether they wished to present any further material in relation to the proposed orders at a second hearing.

3 The proposed orders were that:

1.The name of Dr Peter Allan Howe be removed from the register of veterinary surgeons. Dr Howe may apply for restoration of his name to the register after two years from the date this decision comes into effect.
2. Dr Howe to pay the costs, as agreed or taxed, of the VSIC in relation to these proceedings.
3. The orders made under s 75(2)(b)(i) and (ii) in relation to Dr Howe and all witnesses is revoked.
4. If either party wishes to address the Tribunal on the appropriateness of these proposed orders, they should contact the Tribunal within 14 days of the date of these reasons. If no contact is made, the proposed orders will become final orders on that date. If contact is made, then arrangements will be put into place for the Tribunal to hear further submissions on the appropriateness of the orders.
Findings made in first decision
4 We made findings in our first decision in relation to the complaints referred to the Tribunal by the VSIC. The complaints concerned the paper work required for the export of a ram’s semen to New Zealand. In summary, the Tribunal found firstly, that Dr Howe transmitted various false and misleading statements to Dr Gregory (another veterinary surgeon), provided a false certificate to Dr Gregory and certified that various requirements had been met in two Veterinary Certificates in circumstances where he knew or ought to have known that the statements would mislead or were likely to mislead Dr Gregory. If that conduct was repeated and relied upon, it would be likely to damage the international reputation of Australia in relation to animal exports.

5 The Tribunal found Dr Howe to be guilty of serious misconduct in a professional respect and not of good character. Those findings are not open for reconsideration in this decision.

Legislative provisions
6 Section 32 of the Act sets out the orders the Tribunal may make if a complaint has been 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.
7 These provisions make it clear that once findings are made in relation to the complaints, the Tribunal must determine the appropriate order or orders, if any, to be made. In addition, the Tribunal must not make an order suspending the veterinary surgeon from practice or removing the veterinary surgeon’s name from the register where, for any reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.

Evidence
8 The applicant presented new evidence from four witnesses; Mr Sleeman, Emeritus Professor Edwards, Dr Massy and Dr Watts. Subject to their weight, Mr Wade did not object to the further written statements from Charles Massy and James Watts even though neither Dr Massy nor Dr Watts was available for cross-examination.

9 Mr Joel Sleeman gave evidence that he has been a veterinary surgeon in private practice since 1974 and has known Dr Howe in both a personal and professional capacity since 1994. Dr Sleeman’s opinion of Dr Howe is that he has outstanding surgical and diagnostic skills. Dr Sleeman emphasised that Dr Howe’s use of laparoscopic procedures on cats and dogs was extremely innovative and has led to successful outcomes which would not have been achieved using traditional surgery.

10 Dr Sleeman agreed that the Tribunal’s findings are not consistent with Dr Howe being honest and having integrity. Dr Sleeman admitted that he did not know the whole story, but in his view, despite the findings made by the Tribunal, Dr Howe would not knowingly do anything to bring the veterinary profession into disrepute. Dr Sleeman considered that the practice of veterinary science would be significantly disadvantaged if Dr Howe were to be removed from the register of veterinary surgeons.

11 Emeritus Professor Marsh Edwards is a distinguished scientist and veterinarian, who has now retired. He gave evidence that he has known Dr Howe for over 30 years, initially as an undergraduate student and then as a member of the Australian Birth Defects Society of which he was the founding President.

12 Professor Edwards noted that Dr Howe produced the first evidence of the impact of the metabolic environment on sperm and the incidence of birth defects. Professor Edwards said that the possibility of demonstrating male-mediated birth defects is of profound importance for all species of animals including humans. It opens an entirely new field in the possibility of developing a natural male contraceptive. In Professor Edward’s view, the line of research started by Dr Howe should be advanced and consolidated without delay. If Dr Howe is removed from the register “his reputation will be irreparably damaged so that he will be unable to continue his work and a unique opportunity to open this area will be lost.” However, Professor Edwards did note that someone else would take up the line of research begun by Dr Howe and get the credit, as, in his view, there are plenty of opportunities around in the research field. There was no evidence to suggest that Dr Howe is currently engaged in ongoing research work.

13 Professor Edwards also highlighted Dr Howe’s techniques and practices in relation to artificial insemination and reproduction. In his view, that work offers the farming community huge cost savings in the technology of artificial breeding.

14 Professor Edwards’ understanding of the complaints brought against Dr Howe and the Tribunal’s findings, came mainly from a conversation with Dr Howe in which he asked for a reference, and communications with Dr Howe’s solicitor. He admitted that he has not personally read any part of the Tribunal’s first decision. Professor Edwards said that Dr Howe told him that there “could well have been a transcription or misclassification error.” Professor Edwards said he accepted what Dr Howe told him. He repeated in re-examination that “every vet might have made an inadvertent transcription error and it is not fair to pick on the individual in that situation.” Professor Edwards was then reminded that the Tribunal’s findings go well beyond a mere transcription error. In cross-examination he agreed that he was not fully informed of all the facts involved in Dr Howe’s case.

15 Professor Edwards was asked to comment on the seriousness of the Tribunal’s finding that Dr Howe provided a false veterinary certificate to another veterinary surgeon with the intention of satisfying or in the knowledge that it would be used to satisfy quarantine requirements for the export of sheep. Professor Edward’s view was that such conduct was “very serious”. However, he added that we are not all perfect and that we all make mistakes. He acknowledged that failing to recognise and correct mistakes is a character flaw and is a serious matter. Professor Edwards agreed with Ms Stenmark’s suggestion that an appropriate course for the Tribunal to take would be to impose a condition on Dr Howe’s registration that he not be involved with the export of animal products for two years.

16 Despite the fact that Professor Edwards is a distinguished scientist and veterinarian he was not fully informed of the facts involved in the Tribunal’s decision and was under the misapprehension, despite noting the Tribunal’s findings in his affidavit, that Dr Howe had made an inadvertent transcription error.

17 Dr Massy’s opinion of Dr Howe remains the same despite the Tribunal’s findings. In his view Dr Howe:

. . .is a man of integrity, and is a unique, lateral-thinking innovator and original scientist, whose work is of the utmost importance in a number of fields – such as the areas of the impact of the environment on sperm and its consequent linkage to birth defects, and especially from my perspective, to a revolution in sheep artificial insemination and the consequent improvement in qualify and production of the Australian sheep flock and industry (both meat and wool).
18 Dr Massy also mentioned that “Dr Howe’s work with ‘Fully Potentiated Semen’(FPS) and its application in frozen form for cervical artificial insemination is a world break-through . . .” Dr Massy added that for Dr Howe to be struck off the register would be an enormously retrograde step for the Australian sheep and wool industries.

19 Dr Watts said in his statement dated 8 December 2002, that he has known Dr Howe for over 30 years and that he was dismayed by the Tribunal’s proposed orders. He said that Dr Howe has “always impressed me as a person of high intellect and high academic achievement who has always acted with the utmost integrity in personal, professional and scientific matters.”

20 Dr Watts mentioned Dr Howe’s contribution to the field of artificial insemination of sheep. He commented that his use of frozen semen to cervically inseminate sheep “has provided the key vehicle for cattle producers worldwide to improve rapidly the genetic productivity and profitability of their livestock.” He added that “now there is the opportunity for sheep industries worldwide to use Dr Howe’s new technology to disseminate the best ram genetics far more widely to lift the productivity and profitability of sheep flocks.”

21 Dr Watts also pointed out that Dr Howe had established causal links between semen quality in mammals and birth defects. According to Dr Watts “this work is profoundly important. It has crucial implications for human health and welfare and should be advanced without delay.” Ms Stenmark also provided the Tribunal with documentary evidence of Dr Howe’s publications.

Dr Howe’s submissions
22 Ms Stenmark submitted that the appropriate order is that the Tribunal should impose a condition on Dr Howe’s registration that he not sign any certificates or other documents which would be required for the export of animal products from Australia. The most onerous “penalty” which Ms Stenmark submitted that the Tribunal should consider ordering is suspension from practice for a period not exceeding 12 months.

VSIC’s submissions
23 Mr Wade for the VSIC submitted that the orders proposed by the Tribunal are the appropriate orders and that those orders should be made as final orders. According to Mr Wade, this is precisely the kind of case where de-registration is appropriate.

Approach to the making of orders
24 Tribunal’s task. The Tribunal’s task is to determine, in the light of all the evidence and submissions made by the parties in both hearings, whether the proposed orders are the appropriate orders to be made, or whether different orders should be made. These reasons modify and amplify our reasoning in the first decision.

25 Relevant principles. Beazley JA in Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97) conveniently set out many of the principles which govern disciplinary proceedings at 3-5. These principles can be summarised as follows:

Disciplinary proceedings are concerned with the protection of the public;
Protection of the public is not confined to protection against further misconduct by the practitioner, it incorporates a general deterrence from similar behaviour by other practitioners;
The appropriate penalty will depend on the nature and extent of the improper conduct, the need for specific and general deterrence in order to maintain the high standards of the profession, whether the practitioner truly understands the error of his or her ways; whether the conduct in question is an isolated or passing departure from proper professional standards; and
The question of unfitness is not confined to a consideration of the conduct which is the subject of the disciplinary charge.
26 Good fame and character . It is also relevant that a person is not entitled to be registered as a veterinary surgeon unless that person satisfies the Board that he or she is “of good fame and character.” (See s 11 of the Act). There has been some debate in cases relating to disciplinary action against doctors and lawyers, as to whether comparable provisions mean that it is mandatory to disqualify those professionals who are found not to be a fit and proper person. In McBride v Walton (unreported, Court of Appeal, 15 July 1994) Handley JA, in respect of proceedings under the Medical Practice Act 1992 (NSW), expressed the following view at 25:
Parliament made a legislative judgment that persons who were not of good character should not become registered as medical practitioners. It also provided that lack of good character should be a ground of complaint against a registered medical practitioner. In these circumstances I have difficulty in seeing how the Tribunal could properly decide to leave a medical practitioner on the Register after it had found that at the time of its decision he or she was not a person of good character in the context of fitness to practise medicine.
27 Beazley JA in Law Society of NSW v Walsh (Unreported, Court of Appeal, 15/12/97) did not interpret this passage as denying the discretionary nature of the Court’s jurisdiction. We agree with that observation. After reviewing some of the case law in relation to the imposition of a penalty, Her Honour concluded that:
The Court’s power is discretionary;
Subject to considerations which would compel the court to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner’s name from the roll when the practitioner has been found not to be of good fame and character;
The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the court’s jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it;
In general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession “are of considerably less significance than in the criminal sentencing process”: Law Society of New South Wales v Bannister (1993) LPDR 24 at 13.
28 Orders not a penalty . Ms Stenmark, representing Dr Howe, submitted that the proposed order to de-register Dr Howe constitutes a punishment because it would affect him, and his staff, financially. Mr Wade, representing the VSIC, submitted that while Dr Howe is likely to suffer financially if de-registered, the decision in NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184 states that “The power of a Court to discipline a barrister is, however, entirely protective, and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”

29 Protective nature of the Tribunal’s role. De-registration is an option available to the Tribunal in the circumstances of this case. When determining whether that is an appropriate order to make, we are not concerned with whether Dr Howe should be punished, but rather with applying the appropriate sanction given our role which is to protect the public and the reputation of the profession. (See Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.) We have put the word “penalty” in inverted commas in this decision to highlight the fact that we are well aware that the Tribunal’s role is not to punish Dr Howe.

30 Nature and extent of the conduct. In our first decision we pointed out that Dr Howe’s dishonest conduct all relates directly to his practice as a veterinary scientist and that its seriousness is highlighted by the ramifications it could have had. Ms Stenmark submitted that Dr Howe’s conduct did not result in any danger to any animal or person. The ram SM3 was not diseased and the transaction did not proceed. Dr Howe said he knew that the transaction would not be going ahead in March 1997. There is nothing to suggest that any of this behaviour would be repeated. In written submissions, Dr Howe’s legal representatives characterised the findings that the Tribunal made in relation to Dr Howe’s conduct as “very grave” but submitted that they all flow from one incident and must be viewed in the context of 30 years of unblemished practice. Professor Edwards, who gave evidence in support of Dr Howe, acknowledged that Dr Howe’s conduct, as found by the Tribunal, was “very serious”.

31 Mr Wade submitted that the fact that the export did not go ahead was fortuitous and that it is not the impact of Dr Howe’s behaviour in this case that is important but the extent to which it diverged from accepted professional practice. Although Dr Howe’s conduct did not physically endanger any animal or person, his fraudulent and dishonest conduct represents a substantial departure from the professional conduct expected of veterinary surgeons.

32 The Tribunal accepts that no actual harm or danger was suffered by any animal or the public as a result of Dr Howe’s conduct. In Moulton v Law Society of New South Wales [1981] NSWLR 736 Hope JA observed that ‘in considering the gravity of that misconduct, the fact that the client, in the ultimate event, suffers no loss is of little, if any, relevance’ (at 740). The fact that there was no harm or danger suffered does not detract from the fact that Dr Howe has been found guilty of professional misconduct. The lack of any harm or danger is of minor relevance to the determination of “penalty”.

33 Isolated episode. Ms Stenmark pressed her submission that Dr Howe’s conduct related to one set of circumstances or one incident. The VSIC did not agree that the Tribunal’s findings flow from one incident. It was the VSIC’s view that Dr Howe’s conduct, subsequent to the concoction of the laboratory report dated 19 December 1996, involved separate dishonest acts calculated to continue and build upon the initial misconduct.

34 There is no dispute that several of the circumstances on which the complaints were based overlap. However, Dr Howe was not involved in a single act of deception. He committed several dishonest acts culminating in an act of deception in the course of the Tribunal proceedings, namely the presentation in evidence of a concocted consignment note.

35 Motivation. Ms Stenmark challenged the Tribunal’s finding at [74] of the first decision that Dr Howe’s initial motivation in relation to the dishonest conduct was to keep his client happy, and that ultimately he continued with that dishonesty so as not to lose face with his colleagues. That finding was based on an inference drawn from Dr Howe’s evidence that he had a good business relationship with Mr Croake, the owner of ram SM3, and that if the export order did not go through, that relationship may be compromised. We also found that Dr Howe attempted to deflect blame by denying that he had any motivation to be dishonest.

36 Underlying qualities of character. We re-iterate our finding that there is no evidence that Dr Howe has ever conducted himself in a dishonest manner prior to this episode. In fact, the overwhelming evidence presented is that he has previously conducted himself with honesty and integrity. However following the episode in 1997, he acted dishonestly again in 2002 when he presented false evidence to the Tribunal.

37 Likelihood of re-offending. Ms Stenmark submitted that there is no need to protect the community by de-registering Dr Howe, because his actions did not involve the misuse of drugs and there is no likelihood that he would re-offend. In The Law Society of New South Wales v Bannister 1993 LPDR 24 at 29 Sheller JA made a statement that has some bearing in the present case. His Honour said that “. . . absent some acceptable explanation of how greed and opportunity led the solicitor carefully to plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition.” Furthermore, as Beazley JA pointed out in Law Society of New South Wales v Walsh (supra) at 3-5, protection of the public is not confined to protection against further misconduct by the practitioner. It incorporates a general deterrence from similar behaviour by other practitioners.

38 Length of time since the complaint. Dr Howe submitted that he has an unblemished record for a period of 25 years of professional practice. Despite the complaint being made against him, Dr Howe has been permitted to continue to practice for the entire period of five years since the complaint was made. The VSIC submitted that the passage of time from the conduct giving rise to a complaint and the determination of that complaint is not a mitigating factor in professional disciplinary proceedings. In HCCC v Litchfield CA (1997) 41 NSWLR 630 a doctor denied the conduct which was found proven, vigorously defended the proceedings without admission and offered no explanation in evidence as to why the conduct was unlikely to recur. The Court of Appeal regarded the passage of time without any admission of guilt or contrition as a factor which operated in favour of an order for removal of the practitioner from the register. According to the VSIC, Dr Howe is in the same position in that respect to Dr Litchfield. The Court of Appeal also said that there could be no assumption of reformation and cited with approval Walsh JA in Ex parte Tziniolis (1966) 67 SR (NSW) 448 at 461:

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.
39 In the VSIC’s view, Dr Howe has clearly demonstrated to the Tribunal by his conduct with respect to the fabricated consignment note that no such reformation of character has occurred. We agree with this submission.

Conclusions
40 In his capacity as a veterinary surgeon, Dr Howe behaved in a dishonest manner on more than one occasion. It is important in the conduct of a profession that veterinary surgeons and government authorities should be able to accept, without question, the honesty of the members of that profession. In the present case, Dr Howe is an experienced member of the profession. He made various false statements as well as falsifying documents, which were relied upon by another member of the profession.

41 Dr Howe has continually refused to acknowledge his guilt and has seriously exacerbated his dishonesty by providing false evidence to the Tribunal. Because he has not acknowledged his wrong doing, he has shown no remorse and we cannot be satisfied that he would not repeat the same behaviour. His conduct diverges significantly from the accepted standards of professional practice expected of veterinary surgeons.

42 We are satisfied that Dr Howe previously enjoyed, and to some extent still enjoys, a strong personal and professional reputation among certain of his peers. Unfortunately the opinion of Professor Edwards was not based on a full understanding of the findings that had been made against Dr Howe.

43 Dr Howe acted dishonestly, to protect and further his own interests. He can no longer command the trust of his colleagues who understand the nature and extent of his wrong doing. He cannot be held out to the public as a person fit to discharge the responsibilities of his profession.

44 We find that Dr Howe is an active and successful practitioner with a special interest in goats and sheep. He has used laparoscopic procedures on cats and dogs leading to successful outcomes which would not have been achieved using traditional surgery. However there was no evidence that this work was “ground breaking” or that it cannot be or is not being practiced by other veterinarians.

45 Dr Howe produced the first evidence of the impact of the metabolic environment on sperm and the incidence of birth defects. (There is one publication recording this evidence, namely a 1996 paper entitled “Is Teratozoospermia potentially teratogenic?”) This evidence is of profound importance for all species of animals including humans, however there is no indication that Dr Howe has continued with any research in relation to this initial evidence.

46 Dr Howe has developed techniques in relation to the artificial insemination of sheep which has improved the quality and production of the Australian sheep flock and industry (both meat and wool). While this technique was “ground breaking” there is no suggestion that Dr Howe is engaged in any ongoing research in relation to it or that someone else could not continue with this research.

47 We are not of the opinion that it is in the public interest that Dr Howe should be allowed to continue to practise veterinary science. While Dr Howe has made a useful contribution to the theory and practice of veterinary science, he is not currently engaged in any potentially ground breaking research. In addition, Professor Edwards acknowledged that someone else would take up the line of research begun by Dr Howe.

48 Consequently we order that:

The name of Dr Peter Allan Howe be removed from the register of veterinary surgeons. Dr Howe may apply for restoration of his name to the register after two years from the date this decision comes into effect.
Suppression order
49 Given our findings, the suppression orders made under s 75(2)(b)(i) and (ii) of the Administrative Decisions TribunalAct 1997 in relation to Dr Howe and all witnesses are revoked. This order does not take effect for 21 days after the Registrar gives notice of the order to Dr Howe.

Costs
50 Since several of the complaints against Dr Howe have been proved, the Tribunal has a discretion under s 32(1)(f) of the Act, to make an order requiring Dr Howe to pay costs relating to the hearing. The VSIC submitted that Dr Howe should be ordered to pay costs.

51 Ms Stenmark submitted that if he is struck off, Dr Howe will have no income, or prospects of income, from which to pay a costs order. In di Suvero v New South Wales Bar Association [2001] NSWADT 37, the Appeal Panel of this Tribunal decided at [32] in relation to disciplinary proceedings under the Legal Profession Act 1987, that “The financial capacity of the unsuccessful party to meet the order is an issue for the successful party to address when seeking to enforce the order.” We agree with and adopt this reasoning.

52 Finally Dr Howe submitted that since the VSIC was only successful in relation to particulars 1, 8 and 10 any order for costs should only be for three tenths of the VSIC’s costs as agreed or assessed. The VSIC disputes this. In fact the Tribunal found particulars of complaints 2, 3, 4, 5, 6 , 7 and 9 proven. The only particulars not proven to the reasonable satisfaction of the Tribunal were particulars 1, 8 and 10. In addition, both the complaint of serious misconduct in a professional respect and the complaint that Dr Howe is not of good character were proven. The VSIC was not aware of any authority for the making of a partial costs order in disciplinary cases based simply on the proportion of the particulars of complaint proven.

53 The Appeal Panel also addressed this issue and reviewed the case law in di Suvero v New South Wales Bar Association. The Appeal Panel concluded at [26] that “If an informant in a professional discipline proceeding substantially succeeds there would in our view have to be quite exceptional circumstances to deprive the informant of a full costs order.” In this case, despite the fact that the VSIC was not totally successful in proving every allegation it brought against Dr Howe, it acted reasonably in bringing those allegations.

54 In all the circumstances, we order that Dr Howe pay the costs, in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.