Veterinary Surgeons Investigating Committee -v- Lloyd

[2000] NSWADT 98

Set aside by Appeal: Set aside by appeal on 16/7/02 (CA)

CITATION:	Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Ronald George Lloyd
FILE NUMBER:	40004, 40005, 40015, 40016 of 1998
HEARING DATES:	21/07/2000
SUBMISSIONS CLOSED:	07/26/2000
DATE OF DECISION:	07/27/2000
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Reconstitution of Tribunal during hearing
MATTER FOR DECISION:	Procedure for Reconsideration of Proceedings before Veterinary Surgeons Panel constituted pursuant to s 79(3) of the Administrative Decisions Tribunal Act 1997
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	General Medical Council v Spackman [1943] AC 627 Wentworth v Rogers (1986) 6 NSWLR 642 Coleshill v Manchester Corporation [1928] 1 KB 776 Brennan v Brennan (1953) 89 CLR 129 Chua Chee Chor [1962] 1 WLR 1464 Seables Pty Ltd v Smith (1997) 6 Tas R 350 Coalcliff Collieries Ltd v Campbell (1964) 38 ALJR 180 Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 The Hopemount (1943)75 Ll.L.R. 94 The Forest Lake [1966] P 268
REPRESENTATION:	APPLICANT S Burchett, barrister RESPONDENT D Inverarity, barrister
ORDERS:	Directions 1. The new Panel to proceed by having regard to the record of proceedings (including exhibits) relating to the hearing of the first, second and third notices of inquiry by the Veterinary Disciplinary Panel as previously constituted; 2. That the record referred to in direction 1 be referred to the new Member ; 3. The parties be invited to make oral submissions on any request to the President by the new Member for the recall of witnesses, either for the purpose of hearing part or all of their evidence afresh or for the purpose of seeking clarification by way of questions; and further directions be made by the President.

1 On 15 March 1999 a three member Veterinary Disciplinary Panel of the General Division of the Tribunal commenced hearing charges contained in four notices of inquiry issued by the Secretary to the Veterinary Surgeons Investigating Committee pursuant to the Veterinary Surgeons Act 1986. The respondent to the notices and to the proceedings is Dr Ronald George Lloyd, a registered veterinary surgeon. The notices allege professional misconduct or other breaches of professional standards arising out of the provision of treatment by Dr Lloyd to four animals, each belonging to different people. That Panel was constituted in accordance with the provisions of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), Schedule 2 cl 7.

2 The Panel comprised the President of the Tribunal, as the presiding judicial member, Dr Garth McGilvray, a non-judicial member who is required also to be a member of the Veterinary Surgeons Board and Ms Yolande Dubow, a non-judicial member assigned to the General Division by the Minister to represent the interests of users of veterinary services.

3 On 13 March 2000 Ms Dubow’s appointment expired while the proceedings remained uncompleted. At the time of the expiry of the appointment the Panel had completed hearing evidence in relation to the first two notices of inquiry (the case of the dog Chisel owned by Mr & Mrs Girgenti and the case of the horse Gypsy owned by Ms Clee) and had not completed hearing evidence in relation to the third notice of inquiry (the case of the dog Remus owned by Ms Robinson). It was yet to commence hearing the fourth notice of inquiry (the case of the cat Total Eclipse owned by Ms Karoknay).

4 Because of the expiry of Ms Dubow’s appointment it became necessary to consider reconstituting the Panel by the addition of a new non-judicial member representing the interests of users of veterinary services. As the respondent exercised its entitlement not to consent to the replacement of Ms Dubow in the manner permitted by section 79(1) of the Tribunal Act, the Panel was constituted by reference to the power conferred in these circumstances by section 79(3) of the Tribunal Act. The new Panel comprises the two members who previously sat, the President and Dr McGilvray. Ms Fiona Clark, a duly appointed non-judicial member, has taken the place of Ms Dubow.

5 When it convened to hear the proceedings on 8 June 2000, the new Panel moved immediately to hear evidence in relation to the fourth notice of inquiry. This course was followed in order to allow the parties to make submissions as to how the Panel should proceed to deal with the notices of inquiry already considered in circumstances where the new Panel has two continuing members and a new member.

6 As the issues raised are ones of law and procedure, submissions were made orally to the President sitting alone on 21 July 2000. Leave was given for further written submissions to be filed by the respondent not later than 25 July, with any points in reply from the applicant by 26 July, with a view to a decision as to the future conduct of proceedings in relation to the first three notices of inquiry being given on 27 July 2000.

7 This decision deals with the question raised.

8 The Tribunal Act provides as follows in relation to reconstitution of proceedings:

‘ 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:
(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and
(b) the parties consent.
(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 proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.
(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.’

9 As already noted a new Panel has been constituted pursuant to s 79(3). Sub-section (3) describes the role of the new Panel as being to ‘reconsider’ the proceedings. The term ‘reconsider’ would appear to be used in contradistinction to the term ‘consideration’ which is used in sub-section (1). While the heading to the section is ‘Reconstitution of the Tribunal during hearing’, the word ‘hearing’ is not used in the text of the section. Instead the words ‘consideration’ or ‘reconsideration’ are used to describe the process of deliberation utilised by the Tribunal.

10 The Tribunal Act permits the Tribunal to use a variety of procedures in dealing with matters. There is provision, for example, for preliminary conferences (s 74) and the making of decisions on the papers in the absence of the parties (s 76). The terms ‘consideration’ and ‘reconsideration’ have a broader and more flexible connotation than the term ‘hearing’, and I attach significance to the use of those terms instead of hearing in the body of s 79.

11 The issue now before the new Panel is how it should carry out its responsibility to ‘reconsider’ the first three matters in circumstances where Ms Clark was not a member of the previous Panel. The respondent, Dr Lloyd, submits that it is essential that the Panel hear afresh all the evidence presented in relation to the first three notices of inquiry. The applicant submits that it is not essential for the Panel to hear afresh all the evidence, but the President may adopt any procedure for ensuring that the new member, Ms Clark, is able to discharge her responsibility for fact-finding in relation to the first three notices of inquiry - having regard to what is convenient and just. Reconciling these two considerations is not a simple matter. As Lord Atkin noted in General Medical Council v Spackman [1943] AC 627 at 638: ‘Convenience and justice are often not on speaking terms.’

12 The cases involving reconstitution of the bench in part-heard trials or civil proceedings because of the death of a judge would appear to give the strongest lead as to how the new Panel should approach its task in the present situation. In Wentworth v Rogers (1986) 6 NSWLR 642 Kirby P refers to two authorities relevant to this situation, one an English case where a second judge took over a part-heard jury trial (Coleshill v Manchester Corporation [1928] 1 KB 776), the other an Australian case where the first judge had died after completing hearing evidence in a suit for dissolution of marriage on the grounds of adultery (Brennan v Brennan (1953) 89 CLR 129).

13 In Wentworth the question of procedure involved a narrower context than that of the part-heard trial cases mentioned. There an order as to costs was made by a judge who replaced the judge who heard evidence and submissions. The first judge remained a judge of the court but had become ill and had been granted extended leave. The replacement judge formulated the order after reading the transcript. Kirby P saw the question of whether this approach was satisfactory, as being ‘less clear’ than in the example of death, retirement or loss of office. In relation to the loss of office case (the circumstance here), Kirby P said at 646:

‘It seems clear that when a judge dies, retires or otherwise loses office in the middle of proceedings, this eventuality will not be permitted to frustrate the completion of those proceedings.’

14 In the English case, Coleshill, where the second judge took over and continued a jury trial, Scrutton LJ of the Court of Appeal, said at 785-6 (in obiter, as the appeal was disposed of on other grounds) that:

‘I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner.’

15 In a summary of principles governing the substitution of judges at 649 in Wentworth Kirby P stated the primary rule, statute apart, is that the court as constituted at the beginning of a hearing ‘should conclude the hearing and any reconstitution of the court in the middle of the proceedings will be an irregularity warranting intervention on appeal or review to require a trial de novo.’ His Honour stated that this rule ‘applies with special force where the part heard case is before the court constituted by a judge and jury (Coleshill) or where, though constituted by a judge alone, there is serious conflict of evidence: Chua Chee Chor v Chua Kim Yong; Brennan v Brennan.’ His Honour continued: ‘In such cases proper practice requires recommencement of the trial de novo.’

16 Chua Chee Chor [1962] 1 WLR 1464; [1963] 1 All ER 102 is a Privy Council decision arising from proceedings before a court in the Federation of Malaya. In that case the governing statute permitted the course followed by the second judge of deciding the case on the evidence as recorded by the first judge. The parties had consented to that course. Because, in particular, of the consent given at the time, the appeal court in Malaya and the Privy Council did not interfere with the decision. But both the appeal court and the Privy Council expressed disapproval of the course followed because of the existence of disputed questions of fact in the case.

17 In Brennan (the contested matrimonial cause) the second judge became involved after evidence had been heard. He was requested by the parties not to hear the oral evidence de novo but to have the transcript before the first judge tendered as an exhibit. The second judge reserved the right to recall any witness, and after reading the transcript asked for two witnesses to be recalled.

18 The legislation governing the court required it to examine evidence orally in open court. The question was whether the procedure adopted by the judge of reading the transcript privately in chambers transgressed that requirement. The High Court did not consider that course adopted was improper; and in Kirby P’s opinion (see Wentworth at 648), the Court was influenced by the consent given by the parties, a consent motivated by the desire to avoid repetition of the process because of a serious illness being suffered by the wife in the matrimonial cause. Kirby P noted that the Court referred to the ‘grave objections’ that apply to substitution in cases where there is a ‘serious conflict of evidence.’

19 A narrower approach than that of Kirby P to the issues raised in Wentworth was taken by Priestley JA (with whose reasons Glass JA agreed). Priestley JA’s observations are directly relevant to this case. Unlike all of the cases mentioned above (except for Coleshill), the parties had consented at first instance to the procedure adopted by the second judge, though later the disappointed party sought to challenge the procedure by appeal. Priestley JA said at 653:

‘If a judge is unable through absence to make an order which needs to be made for some proceedings before a court to be completed there must be jurisdiction in the court enabling the another judge to make the order. The question which can present difficulties in such circumstances is the extent to which the new judge can use materials already before his predecessor in arriving at his conclusion. Very often this problem is solved by the parties’ agreement to the new judge making such use of the material before his predecessor as he sees fit. What the position is in the case where the parties do not agree does not appear to be the subject of any clear authority binding on this Court. In England the only place where the matter is at all fully discussed appears to be in Sir Robert Megarry’s A Second Miscellany-at-Law (1973) at 53-58. Both the Supreme Court Practice (1985) vol 1 at 24, and Halsbury’s Laws of England , 4th ed, vol 37 par 61 at 53 refer to Sir Robert Megarry’s work as the best discussion of the topic, showing that a stone of authority may lie concealed amongst the flowers of anecdote.’

20 In this case there is, as previously noted, some statutory guidance contained in section 79 of the Tribunal Act. In particular sub-section (4) permits the Tribunal ‘to have regard to any record of the proceedings before the Tribunal as previously constituted including the record of any evidence taken in the proceedings.’ The Parliament clearly gives the new Panel the power to incorporate the record of the previous proceedings into the new proceedings. It would be an odd result if the position then was that the taking of that action represented the limit of the Tribunal’s power to manage the presentation of the case on the second occasion.

21 The respondent does not oppose the incorporation of the previous record into the new proceedings or the retention of the two members whose appointments remain current. But subject to those concessions, the respondent contends that a full hearing de novo should occur.

22 In support the respondent submits that the ordinary meaning to be given to the term ‘reconsider’ requires that course of action. The primary meanings of ‘reconsider’ in both the Oxford and Macquarie dictionaries are ‘to consider again’. Both dictionaries are consistent in relation to the secondary meaning which (to use the formulation of the Oxford Dictionary) is ‘to consider (a decision etc) a second time with a view to changing or amending it.’

23 These definitions do not offer me any additional insight into the procedure to be adopted in the present circumstances. The interpretation of the term ‘reconsider’ must have regard to the statutory and institutional context in which it is used. There are a variety of ways in which effective reconsideration can occur.

24 ‘Reconsideration’ is a term commonly used in the context of commercial arbitration, and its meaning was considered by Underwood J in Seables Pty Ltd v Smith (1997) 6 Tas R 350. There in the course of construing s 25(6) of the Commercial Arbitration Act 1986 (Tas), his Honour said at 360:

‘ ‘Reconsideration’ is almost indistinguishable in this context from ‘review’, a word often used in workers compensation and administrative appeals legislation. ‘Review’ and ‘reconsideration’ do not have fixed meanings. What has to be done on review or reconsideration will depend upon the statutory context in which the word is used. It may be restricted to a simple testing of the process by which a decision has been reached and an assessment of the correctness of that decision. See Coalcliff Collieries Ltd v Campbell (1964) 38 ALJR 180. It may mean a de novo examination of all the material on which the decision is reached. See, eg, Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586-7.’

25 The main authorities have all involved the second judge continuing to move the case forward, following a review of the transcript and (in Brennan) a limited recall of witnesses. This could, I consider, constitute an adequate process of reconsideration. In making this point I acknowledge again, as submitted by the respondent, that the leading cases - Chua Chor, Brennan, Wentworth - involved situations where there had been consent or acquiescence in the course adopted.

26 I do not interpret sub-sections (3) and (4) of s 79 as providing any statutory constraint on the discretion of the new Panel in relation to the way in which it conducts its proceedings. It is at large in that regard, subject always to considerations of procedural fairness and natural justice. It is also relevant to have regard to the public interest in the due administration of justice. Tribunals are typically given broad powers in relation to the way they conduct their proceedings, and that is so in the case of this Tribunal: see generally section 73. Moreover the Tribunal is enjoined in s 73(5)(a) ‘to act as quickly as practicable’. Clearly professional disciplinary proceedings are of a very serious character, and special care must be exercised to ensure that a fair hearing is accorded.

27 These considerations of procedural fairness provide the main foundation of the respondent’s submissions. The respondent contends that the fact-finding process of the Panel would be fatally flawed if the Panel were to proceed other than by means of a full hearing de novo of the first three notices of inquiry. This is so, it is said, because so much depends on views formed as to the credit of witnesses in reaching conclusions as to fact. In that regard all three members are responsible for making findings of fact with a division of opinion to be resolved as provided by s 78(1). It is said that it would be unfair if a procedure was adopted that did not allow the new member to see and hear directly the evidence from all the witnesses relevant to the first three matters. The respondent also refers to the complex areas of veterinary practice which have been the subject of extensive evidence.

28 The new member, the respondent submits, must be permitted to determine the credibility of the witness in the same way as the other two members of Panel by having regard, among other matters, to direct observation of the witnesses giving their evidence.

29 In referring to the respondent’s submissions, I have so far referred to those made in writing by counsel for the respondent. At the oral directions hearing, which counsel was unexpectedly unable to attend, the solicitor for the respondent gave submissions and referred to another factor. She noted that, unlike the main cases involving the replacement of a judge sitting alone, here the issue relates to a multi-member tribunal constituted on a representative basis. She submitted that the ‘consumer’ member is likely to be unduly influenced by the views formed by the other members because of two factors: one, those members have had the benefit of observing the witnesses give their evidence; exacerbated by the second factor, their specialist knowledge, one being a judge and the other a veterinary surgeon of standing.

30 While I note that counsel for the respondent did not press this submission in his written submissions, for completeness I will deal with it.

31 Multi-member Tribunals typically have a representative character. Whatever the role conferred on them by statute, all members of this Tribunal are the holders of important public offices, and have taken an oath to discharge faithfully and impartially their duties as a member. While questions of law are reserved to the judicial member (s 78(2)), judicial and non-judicial members are co-equal as to findings in relation to the facts. No hierarchy applies to the relationship between members of the Tribunal in relation to making findings of fact. Obviously in matters involving technical expertise, any member who has been appointed by reason of that expertise (as applies in this case in respect of Dr McGilvray) will have special weight accorded to his views by the other members of the Tribunal. This is no more than would be expected in the deliberations of a Tribunal of this kind. But the other members remain free to differ from the expert member’s conclusions. (For some old illustrations see the English admiralty cases, The Hopemount (1943)75 Ll.L.R. 94 and The Forest Lake [1966] P 268, cases which also involve the use of flexible procedures for determination by the presiding judge.)

32 On the other hand, counsel for the applicant has submitted that it is open to the Tribunal to adopt whatever procedure is most practical unless there are overriding considerations of prejudice to one of the parties justifying another course, and drew my attention to many of the authorities referred to in this decision. The applicant opposed the submission that there is a requirement upon the Tribunal flowing from sub-sections (3) and (4) to hold a hearing de novo; a view with which I have indicated my agreement.

33 While, obviously, it is less than ideal that it has been necessary to constitute afresh a multi-member Panel well advanced in a very serious disciplinary proceeding, it is the case that two of the three members remain the same. This provides a safeguard against injustice; and contrasts with the single judge cases where, necessarily, any continuity was lost.

34 Significant inconvenience will be caused to witnesses and the parties if the proceedings are recommenced from the beginning. The hearing of the first notice of inquiry occupied approximately eight hearing days, the second notice five days, and the third notice had proceeded for five days (and was within a half-day of completion) when the former member’s term expired. As noted, the new Panel immediately proceeded to deal with the fourth matter which has so far occupied three days (and is nearing completion). There is a complete record of the proceedings in relation to the first three notices available to the new member.

35 I am required to balance the need for expedition, the need to avoid unnecessary expenditure of public resources, the requirements of procedural fairness especially having regard to the potentially serious consequences of these proceedings for the respondent, and the public interest in the due administration of justice. I am also required to ensure that the new member is able to contribute fully to the difficult decision-making exercise that lies ahead.

36 In each of the first three matters, there has been evidence from the person or persons who complained to the disciplinary authorities about the respondent’s professional conduct and other persons who were witnesses to the events in issue, from experts in relation to the question of the competence of the respondent’s practices and from the respondent. The expert evidence has canvassed matters such as the initial consultation procedures adopted by the respondent, appropriate practice in relation to the use of X rays, the prescription of medications and the choice of surgical procedures, autopsy and animal burial procedures as well as record-keeping and the giving of advice to owners.

37 In relation to the events in issue, there are many conflicts of evidence - primarily as between the owners’ accounts and those of the respondent - in relation to such matters as advice given, procedures adopted and general behaviour. In resolving those conflicts which are material, it may be necessary to make assessments as to credit. But in that regard I note that many of the conflicts may be capable of resolution by reference to other techniques for the resolution of apparently conflicting evidence.

38 In my view, the appropriate course is to invite the new member to identify those witnesses as to the events in issue who she would like to have recalled to assist her understanding of their evidence or in assisting her view as to their credit. The recall may be for the purpose of seeking clarification or putting questions to them, or for rehearing their evidence in whole or in part.

39 The evidence in relation to issues of veterinary practice in relation to each of the notices of inquiry is complex. While the evidence is complex, it is of a kind which ought to be capable of being understood substantially by reference to the transcript and the exhibits; and through the assistance of the specialist member, Dr McGilvray.

40 Credit, in the sense of forming a view as to the honesty or truthfulness of a witness, has not been raised in relation to the expert witnesses in this case. There have, of course, been challenges to their degree of expertise and to some of their opinions.

41 In relation to the adequacy of relying wholly on the transcript to understand the evidence of the witnesses called as experts, there have been some occasions in the proceedings when the experts called have sought to illustrate their findings and opinions by reference to visual material such as X rays. It may be that the new member would be assisted by a viva voce recapitulation of some of that evidence.

42 In my view, again the appropriate course is to invite the new member to identify those witnesses who she would like to have recalled to assist her understanding, either for clarification or to rehear part or whole of their evidence.

43 In this instance in my view the appropriate course to adopt is to incorporate the record of the previous proceedings into these proceedings, and to invite the new member, Ms Clark, to review the record with a view to advising me, as the presiding member, as to whether there are any witnesses she would like to have recalled.

44 I would then proceed by conveying Ms Clark’s views to the parties, and inviting oral submissions on them. I would then proceed to rule as to the extent to which previous evidence ought to be revisited.

45 This approach is, I consider, reasonably consistent with that adopted in the authorities drawn to my attention.

46 Directions:

1. The new Panel to proceed by having regard to the record of proceedings (including exhibits) relating to the hearing of the first, second and third notices of inquiry by the Veterinary Disciplinary Panel as previously constituted.

2. That the record referred to in direction 1 be referred to the new Member.

3. The parties be invited to make oral submissions on any request to the President by the new Member for the recall of witnesses, either for the purpose of hearing part or all of their evidence afresh or for the purpose of seeking clarification by way of questions; and further directions be made by the President.