Veterinary Surgeons Investigating Committee v Lloyd - [2002] NSWADT 233

CITATION: Veterinary Surgeons Investigating Committee -v- Lloyd [2002] NSWADT 233

DIVISION: General Division

PARTIES: APPLICANT
Veterinary Surgeons Investigating Committee
RESPONDENT
Ronald George Lloyd

FILE NUMBER: 40004/98; 40005/98; 40015/98; 40016/98

HEARING DATES: 03/10/2002 & 22/10/2002

SUBMISSIONS CLOSED: 10/22/2002

DATE OF DECISION:
11/13/2002

BEFORE: O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member

APPLICATION: Reconstitution of Tribunal during hearing

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Veterinary Surgeons Act 1986

CASES CITED: Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98 (27 July 2000)
Lloyd -v- Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002)

REPRESENTATION: APPLICANT
M Linkenbagh, agent
RESPONDENT
B Green, solicitor

ORDERS: 1. The requests for the recall of certain witnesses not granted; 2. The proceedings in respect of Inquiries 1, 2 and 3 to be reconstituted by having regard exclusively to the records of the proceedings before the Tribunal as previously constituted including the records of evidence taken in the proceedings; 3. Further directions: see para [31] - [33]

1 THE TRIBUNAL: In March 1999 a Veterinary Disciplinary Panel of the Tribunal commenced hearing charges of professional misconduct against the respondent. The charges were referred under the Veterinary Surgeons Act 1986 (VSA) by the Secretary to the statutory body responsible for investigating the complaints giving rise to the charges, the Veterinary Surgeons Investigating Committee (VSIC). The charges were contained in four notices of inquiry. The Panel was constituted in the manner required by the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), Sched 2, Pt 4, Div 3, cl 7. It comprised the President, a member of the Veterinary Surgeons Board (Dr McGilvray) and a non-judicial member who represents the interests of users of veterinary services (Ms Dubow).

2 For convenience in these reasons the inquiries are referred to by number in the order in which they have been conducted as Inquiry 1 (Chisel), matter no. 40004/98; Inquiry 2 (Gypsy), matter no. 40005/98; Inquiry 3 (Remus), matter no. 40015/98; and Inquiry 4 (Total Eclipse), matter no. 40016/98.

3 In March 2000 the non-judicial member’s appointment expired. At the time the Panel had completed hearing the first two notices of inquiry, and was part heard in respect of the third (Remus). The reconstitution of the Tribunal in these circumstances is governed by s 79 of the Tribunal Act, which provides:

‘79. Reconstitution of Tribunal during hearing

(1)

The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:

(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWADT 233
Decision Date: 11/13/2002

CaseChat Overview and Summary

The case before the court involved a dispute between the Veterinary Surgeons Investigating Committee and Lloyd. The Investigating Committee sought to have certain witnesses recalled and the proceedings reconstituted in a manner that would exclude evidence taken in the proceedings before the Tribunal as previously constituted. Lloyd opposed the recall of the witnesses and the reconstitution of the proceedings. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Investigating Committee was entitled to recall certain witnesses and to have the proceedings reconstituted. The court had to consider the scope of its powers in relation to the recall of witnesses and the reconstitution of proceedings. The court also had to consider the effect of the evidence taken in the proceedings before the Tribunal as previously constituted.

The court found that the Investigating Committee was not entitled to recall the witnesses and to have the proceedings reconstituted. The court held that the Investigating Committee had not demonstrated any compelling reason for the recall of the witnesses or the reconstitution of the proceedings. The court also held that the evidence taken in the proceedings before the Tribunal as previously constituted was relevant and should be considered in the proceedings. The court found that the proceedings in respect of Inquiries 1, 2 and 3 should be reconstituted by having regard exclusively to the records of the proceedings before the Tribunal as previously constituted including the records of evidence taken in the proceedings. The court also provided further directions in relation to the proceedings.

The court's final orders were that the requests for the recall of certain witnesses not be granted; the proceedings in respect of Inquiries 1, 2 and 3 to be reconstituted by having regard exclusively to the records of the proceedings before the Tribunal as previously constituted including the records of evidence taken in the proceedings; and further directions to be provided.

Orders

Orders of the court

1. The requests for the recall of certain witnesses not granted; 2. The proceedings in respect of Inquiries 1, 2 and 3 to be reconstituted by having regard exclusively to the records of the proceedings before the Tribunal as previously constituted including the records of evidence taken in the proceedings; 3. Further directions: see para [31] - [33]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Veterinary Surgeons Investigating Committee -v- Lloyd [2002] NSWADT 233
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Ronald George Lloyd
FILE NUMBER:	40004/98; 40005/98; 40015/98; 40016/98
HEARING DATES:	03/10/2002 & 22/10/2002
SUBMISSIONS CLOSED:	10/22/2002
DATE OF DECISION:	11/13/2002
BEFORE:	O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member
APPLICATION:	Reconstitution of Tribunal during hearing
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Veterinary Surgeons Act 1986
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98 (27 July 2000) Lloyd -v- Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002)
REPRESENTATION:	APPLICANT M Linkenbagh, agent RESPONDENT B Green, solicitor
ORDERS:	1. The requests for the recall of certain witnesses not granted; 2. The proceedings in respect of Inquiries 1, 2 and 3 to be reconstituted by having regard exclusively to the records of the proceedings before the Tribunal as previously constituted including the records of evidence taken in the proceedings; 3. Further directions: see para [31] - [33]