Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus' - Findings: Allegation 2)

[2003] NSWADT 136

Set aside by Appeal: Set aside by appeal on 13/10/2003

CITATION:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' -Findings: Allegations 2) [2003] NSWADT 136
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Dr Ronald George Lloyd
FILE NUMBER:	40015 of 1998
HEARING DATES:	21/02/2000, 22/02/2000, 23/02/2000, 24/02/2000, 25/02/2000, 11/12/2000, 13/12/2000, 3/10/2002, 22/10/2002, 29/11/2002
SUBMISSIONS CLOSED:	05/26/2003
DATE OF DECISION:	06/06/2003
BEFORE:	O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member
APPLICATION:	Veterinary surgeon - misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Veterinary Surgeons Act 1986
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284 (31 December 2002) Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95 (9 May 2003) Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: Gypsy - Findings) [2003] NSWADT 96 (9 May 2003) Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 (31 December 2003) Carson v Legal Services Commissioner [2000] NSWCA 308 Varawa v Howard Smith Co (1911) 13 CLR 35
REPRESENTATION:	APPLICANT S Burchett, barrister RESPONDENT B Green, solicitor
ORDERS:	1. The respondent is guilty of misconduct in a professional respect in relation to Allegation 2.; 2. The Inquiry will resume on 14 July 2003 for consideration of orders to be made pursuant to section 32. That hearing will also consider the orders to be made in relation to all four Inquiries.

1 This Inquiry is one of four inquiries undertaken pursuant to the Veterinary Surgeons Act 1986 (the Act) by the Veterinary Disciplinary Panel of the General Division of the Tribunal (the Tribunal) Tribunal following referral by the Veterinary Surgeons Investigating Committee (the Committee). They all relate to complaints against Dr Ronald George Lloyd (Dr Lloyd), a registered veterinary surgeon.

2 The other three Inquiries are now completed in relation to the question of guilt or otherwise of misconduct in a professional respect. Numerous findings of guilt have been made. The hearing in relation to the order(s) to be made is listed for 14 July 2003. See Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284 (31 December 2002); Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95 (9 May 2003); Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: Gypsy - Findings) [2003] NSWADT 96 (9 May 2003).

3 This Inquiry relates to six allegations of misconduct made as a result of a complaint by an owner whose dog died while in Dr Lloyd’s care. On 31 December 2002 the Panel delivered its decision, finding Dr Lloyd guilty in respect of five of the six allegations (those numbered 1(a), 1(b), 1(c), 1(d) and 1(e): Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 (31 December 2003) (the First Decision). The general background to the four Inquiries is given in that decision at paras [8] to [18].

4 One Allegation remained to be dealt with. The First Decision did not deal with Allegation 2 as a procedural objection that went to the jurisdiction was upheld. The objection concerned the failure of the Committee to give Dr Lloyd an opportunity to respond to the matters raised by Allegation 2 prior to referral to the Tribunal, thereby rendering invalid the referral in respect of Allegation 2.

5 This objection was not taken at the beginning or during the currency of the hearing. Consequently the hearing had canvassed in its entirety the evidence relating to Allegation 2. The objection was taken during closing submissions, and evidence put on by the Committee as to the procedures it followed.

6 The Tribunal noted in the decision that the Act did give the Tribunal power to initiate a complaint of its own motion on the basis of evidence that it heard during the course of an inquiry. The Tribunal’s order in this regard was that: ‘As all evidence considered to be relevant to Allegation 2 was heard prior to the submission by the Committee as to the procedural validity of the Allegation, the inquiry is to reconvene to consider the Tribunal's motion pursuant to section 30 of the Act to add a further Allegation to the complaint in the same terms as Allegation 2’. Section 30 provides:

‘ 30 Inquiries by Tribunal

(1) If in the course of an inquiry into a complaint against a registered veterinary surgeon:

(a) it appears to the Tribunal that, having regard to the matters arising during the inquiry, another complaint could have been made against the veterinary surgeon, whether instead of the complaint then being inquired into or in addition to it, and

(b) the Tribunal is satisfied that the Investigating Committee has not, under section 28 (1) (a) or (b), dealt with that other complaint or a complaint that was substantially the same as that other complaint, and

(c) the Tribunal is of the opinion that the other complaint is one that could have been made to the Investigating Committee in accordance with section 26,

the Tribunal may itself make that other complaint and it is to be taken to have been referred to the Tribunal in accordance with section 28 (1) (c).

(2) If in the course of any inquiry into a complaint against a registered veterinary surgeon the Tribunal makes another complaint against the veterinary surgeon under subsection (1), the other complaint may be dealt with at that inquiry after such adjournment (if any) as is just and equitable in the circumstances.’

7 In this instance the Tribunal decided to exercise this power, and on 12 May 2003 gave Dr Lloyd a notice of complaint expressed in identical terms to the original Allegation 2. It did not permit the calling of any further evidence, and gave Dr Lloyd two weeks within which to file any further submissions. This direction has not been complied with. Accordingly the Tribunal has proceeded to issue its decision in relation to Allegation 2, which follows. In reaching its decision the Tribunal has reviewed the record of proceedings in the Inquiry, including all exhibits and submissions. For convenience the Allegation is and will be referred to in this decision as Allegation 2.

8 The terms of the original notice of inquiry are set out in the First Decision, and will not be repeated in detail here. The complaint that gave rise to the proceedings was made by the owner of a dog named ‘Remus’, Mrs Suzanne Robinson. The complaint related to Dr Lloyd’s care and treatment of the dog which died while in his care. Allegation 1(a), found proven, put in issue Dr Lloyd’s entire course of conduct over the 14 days from initial consultation to the dog’s death. Allegation 1(b), found proven, related to Dr Lloyd’s disposal of the dog’s body without the owner’s permission. Allegation 1(c), found proven, referred to Dr Lloyd’s failure to observe legislative requirements relating to the dispensing of poisons. Allegation 1(d), found proven, referred to failures to give the owner adequate instructions for administration of the medicine. Allegation 1(e), found proven, referred to Dr Lloyd’s failure to keep a detailed record of treatment or consultation.

9 Allegation 2 dealt with Dr Lloyd’s conduct after learning that a complaint had been made against him by Mrs Robinson. The text of Allegation 2 as attached to the Notice of Complaint issued by the Tribunal follows. (Note that the original text of the Particulars has in the following text been broken up into 5 paragraphs to assist the later discussion.)

2. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to section 26(1)(c) of the Veterinary Surgeons Act 1986, between late March 1997 and late 1997 you did not conduct yourself in a manner in accordance with the professional standard expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general.

Particulars

After Suzanne Robinson had sent a complaint to the Australian Veterinary Association Limited, in relation to your treatment of Remus, you were notified by the Australian Veterinary Association Limited of that complaint in late March 1997.

Between the time when the Australian Veterinary Association Limited advised you of the complaint and mid April 1997, you telephoned Suzanne Robinson at her place of work and told her that you wanted her to drop the allegations regarding Remus. She refused.

A few days later, you rang her again and insisted on having a meeting with her. You told her that you wanted to make some kind of deal. She informed you that she did not want to see you.

Nevertheless, you rang her again and on a Sunday morning said that you wanted to see her, that day. You told her that you would come to her home and speak to her. You told her that you could be at her home in 10 minutes time but that alternatively, she could ring you and make an appointment to see you at your surgery and again offer to assist her financially.

Subsequently, despite your being aware of the fact that the complaint had been passed on to the Veterinary Surgeons Investigating Committee and was being investigated, you threatened to report Suzanne Robinson to the Credit Reference Association for the non payment of your invoice relating to the treatment of Remus.

Burden of Proof

10 The First Decision referred at para [23] to the burden of proof that applies to the making of findings in disciplinary proceedings. This material will not be repeated here.

The Applicable Law

11 The First Decision referred at paras [25] and following to the meaning given to misconduct in a professional respect at common law, and to what conduct is deemed by the Act and the Veterinary Surgeons Code of Professional Conduct (the Code). This material will not be repeated here.

Preliminary Submission as to the Scope of Misconduct in a Professional Respect

12 We have explained in the First Decision that the conduct of the Committee’s case was taken over by its Secretary when the Tribunal resumed dealing with the case in August 2002. We have also explained that the Committee is now substantially different in composition from the one that investigated and referred the complaint.

13 The Committee stated in the table of agreed facts submitted on 3 September 2002 that it no longer wished to press Allegation 2 so far as it related to the ‘follow up of payment of account’. (At this stage it had not raised the jurisdictional objection which gave rise to the ruling that the referral had been invalid.) The Committee said that even if the evidence given by Mrs Robinson was accepted as particularised in Allegation 2, Dr Lloyd’s conduct only raised ‘ethical issues’ but not ones of misconduct in a professional respect.

14 The Tribunal questioned this opinion. The reply at hearing lacked clarity as to whether the Committee’s new position referred only to the last sentence of the particulars [‘Subsequently, despite your being aware of the fact that the complaint had been passed on to the Veterinary Surgeons Investigating Committee and was being investigated, you threatened to report Suzanne Robinson to the Credit Reference Association for the non payment of your invoice relating to the treatment of Remus.’] It may have been a compendious expression meaning to refer to all contacts made by Dr Lloyd with Mrs Robinson after he received notice of the complaint.

15 At one stage in a vigorous exchange between the Tribunal and the Secretary (ts 22 October 2002), she appeared to suggest that even intimidatory conduct on the part of veterinarians directed towards clients who made complaints could not give rise to a finding of professional misconduct. She appeared to suggest that the appropriate course was for them to take their concerns to the police, and if the problem is one merely of payment of an account for the matter to be left to action in the ordinary courts (see ts.47-63: 22 October 2002). The Tribunal expressed its surprise at these submissions, and directed her to file a formal statement from the Committee as to its views.

16 The following statement was filed on 11 November 2002. The Committee advised that it had passed a resolution on 7 November 2002, as follows:

‘The Committee confirmed its view that contact with the complainant after a complaint has been made generally is not inappropriate and does not raise issues of professional misconduct. The Committee revised its opinions in relation to charge 2 of the Remus case in that if conduct involves threatening behaviour or intimidation with the intention of causing the withdrawal of a complaint then it may constitute professional misconduct if proved.’
17 We agree with the second paragraph of the resolution, which in our view was, and remains, a self-evident matter. Dr Lloyd himself recognised in cross-examination that conduct of such a kind would amount to misconduct and denied that he engaged in such conduct (ts 134: 12/12/00).

18 In further written submissions filed 25 November 2002, the Committee submitted:

‘Charge 2 arises from contact between Dr Lloyd and Mrs Robinson after the death of the dog. The Committee submits that this is an area where questions of ethics rather than professional misconduct are more relevant, but concedes that professional misconduct may arise where the conduct, if proved, is threatening or intimidating and has the intention of causing the withdrawal of a complaint.’
19 We see no difficulty with a veterinarian making contact with an owner after the death of an animal which the veterinarian has been treating. Many veterinarians would do this, perhaps after the passage of a short time, out of a concern to deal with any questions that the grieving owner and family may have. This is not the issue raised by this case. This case puts in issue contact with an owner after the veterinarian has become aware that the owner has made a formal complaint, and also puts in issue the making of further contact with the owner when the owner has stated that she does not wish to discuss the matter any further.

20 We note that in its submissions filed 25 November 2002, the Committee did not revise the statement made in its earlier statement filed 11 November 2002 going to this matter where, to reiterate, it said: ‘The Committee confirmed its view that contact with the complainant after a complaint has been made generally is not inappropriate and does not raise issues of professional misconduct.’ We do not agree with this view. In our view contact with a ‘complainant’ in that capacity would almost always be inappropriate. Once the complaint is placed with an appropriate official body (such as the Australian Veterinary Association, the Department of Agriculture or the Committee itself), the veterinarian should conduct any contact with the complainant via the official body.

21 Ms Green, on Dr Lloyd’s behalf, submitted that: ‘[I]t would be considered desirable to endeavour to resolve the conflict by discussion. In a situation where a client has not paid her bill it is submitted there is no rule against using usual debt collecting tactics. It may be a matter involving ethics but it is not performance of veterinary science such as can give rise to professional misconduct.’ This submission diverts attention from the main issue raised by Allegation 2, i.e. that Dr Lloyd engaged in repeated contact with the complainant after the complaint was lodged, and offered to do a deal with her so that she would drop the complaint.

22 There may, we accept, be exceptional situations in which continued contact after the making of an official complaint must occur. The complainant may still have other animals in the care of the veterinarian or other members of the practice. The complainant may not have any option (as in remote areas, or veterinarians with specialist knowledge) but to leave the animals there. This was not a case of those kinds. Similarly if the person who makes the complaint choses to re-present at the practice with an animal then the veterinarian’s duty to examine and treat the animal appropriately would obviously necessitate contact. The veterinarian in such circumstances must ensure that nothing they do at that point in any way seeks to interfere with the owner’s right to have their complaint fully examined.

The Evidence

23 Ms Green submitted on Dr Lloyd’s behalf that there was no evidence to support a finding by the Tribunal in respect of Allegation 2. This might be the case if the Tribunal rejected Mrs Robinson’s evidence on the matters in dispute.

24 Allegation 2 was not admitted by Dr Lloyd (see his statement of agreed facts filed 21 September 1999). As to the Particulars, Dr Lloyd stated that he telephoned Mrs Robinson on two occasions after being notified of her complaint. He denies that there was a third occasion as asserted by the Particulars (the Sunday morning call). As to the contents of the two conversations, he gave no account of the first conversation. He said that in the second conversation he offered to visit Mrs Robinson at her home or to make her an appointment to visit his surgery to discuss the death of the dog and his treatment. Dr Lloyd stated that he did subsequently threaten to report Mrs Robinson to the Credit Reference Association (CRA) for non-payment of his invoice relating to the treatment of Remus.

25 This is a narrower version of the relevant events than that of Mrs Robinson. Dr Lloyd denies Mrs Robinson’s assertion that Dr Lloyd told her in the first conversation that he wanted her to drop the allegations against him regarding Remus. Dr Lloyd denies Mrs Robinson’s assertion that in the second conversation he offered to do a deal with her in exchange for her dropping the charges. Dr Lloyd denies outright Mrs Robinson’s allegation that he called her by phone on a Sunday morning, and told her he could be at her place in 10 minutes or, alternatively, that she could ring him and make an appointment to see him at the surgery, or that he offered to assist her financially.

Events from 11 March 1997 onwards

26 Mrs Robinson’s complaint (set out in detail in the First Decision) is dated 17 March 1997. On or about 25 March 1997, Dr Lloyd received notice of this complaint from the Australian Veterinary Association. He was provided with the contents of the complaint. His written reply is dated 14 April 1997.

27 Delivery of Account to Mrs Robinson. On 11 March 1997, on the same day that Remus died, Dr Lloyd raised an invoice on the computerised form used at the Gill Avenue Veterinary Hospital, listing veterinary fees as follows: X ray, $45, Hospital, $90, Drugs, $120, Fluids, $120 and Disposal, $25, showing a total of $400, then a discount of $45 for a net amount of $355. The invoice was not sent immediately.

28 Mrs Robinson received the account referred to above shortly after 14 April (14 April being the day on which Dr Lloyd replied to the complaint to the Australian Veterinary Association). Mrs Robinson retained the envelope that the account came in; it is postmarked 14 April 1997 (Ex R28).

29 Dr Lloyd’s Contact with Mrs Robinson between 25 March 1997 and 14 April 1997. In her statement for the Tribunal, Mrs Robinson appeared to refer to three conversations (if para 21 of the statement is interpreted as referring to the conversation described in para 22, and not as referring to a different and additional conversation).

30 In reply to questions asked in cross-examination, Mrs Robinson said that there were four conversations. She said Dr Lloyd rang her at work after she had made her complaint. She said that in that conversation he asked her to drop the charges. She gave the following account in her statement for the Tribunal:- Dr Lloyd said, ‘I want you to drop the charges.’ She said she replied, ‘I wouldn’t be dropping them because you killed my dog.’ He said, ‘I didn’t kill your dog. I did everything possible to look after the animal.’ She said: ‘Well, why is he dead? Why did you bury him and I didn’t know about it.’

31 She said he rang her at work again a few days later. She said he said that he wished to discuss the charges and payment of the bill. He sought a meeting with her. Mrs Robinson said that during her second conversation with Dr Lloyd he offered to make a ‘deal’ with her. She said she was upset by this call and cut it off immediately.

32 She said that a couple of days later he phoned again and she agreed to see him on the Thursday night on her way home from work. She did not go to see him.

33 Then she says that on the Sunday morning he called her at home, and asked to see her. He said he could be around in 10 minutes. (Mrs Robinson’s home, in Doral Avenue, is only about four blocks from Gill Avenue.) As to the Sunday call, Mrs Robinson said that Dr Lloyd referred to her not coming on the Thursday to his surgery. Mrs Robinson’s evidence is that she felt threatened because he was so pushy (see statement p 16). She said that when he suggested that he come to her home, she replied, ‘Don’t you dare come to my home.’ She said he said, ‘I understand your position. You are a single parent like I am.’ She replied, ‘That’s got nothing to do with it.’ She said he said: ‘If you are coming over here, I’ve got my children until some certain time, and just ring up and make an appointment and we’ll talk about it.’ She said that she replied: ‘I’m not interested in talking to you.’ She said he said: ‘I did everything I could for your little doggy. I understand your financial position. We can discuss the bill.’

34 Dr Lloyd denies the call on the Sunday morning. Mrs Robinson and Dr Lloyd were cross-examined.

35 We accept Mrs Robinson’s account of what occurred and the statements made by Dr Lloyd, especially as to dropping of the charges. Mrs Robinson’s evidence is that she informed Dr Lloyd that she did not want to see him. Dr Lloyd said he did not hear this. Again Mrs Robinson and Dr Lloyd were cross-examined. We accept Mrs Robinson’s account.

36 Credibility of Witnesses. It will be seen that we have accepted Mrs Robinson’s version of the relevant conversations, and have done so mindful of the need to be comfortably satisfied in line with the Briginshaw standard. Mrs Robinson impressed the Tribunal as a truthful and credible witness, whose accounts of the conversations were substantially consistent and plausible. We refer further below to the plausibility of Dr Lloyd’s evidence.

37 Enforcement of Payment of Account. Dr Lloyd’s record card bears the date notation ‘1/8’ together with the words ‘unpaid’ and ‘CRA’.

38 By letter dated 22 October 1997 (Ex R18) the Accounts officer (Ms Bennett) of the Gill Avenue Veterinary Hospital sent a letter to Mr and Mrs Robinson, explaining that possibility and threatening both of them with a ‘CRA’ listing if they did not pay the bill. The latter it was agreed was a reference to the credit industry debt default listing service, then known as the Credit Reference Association of Australia. Such a listing may affect the ability of an individual to obtain credit from banks, credit providers and other subscribers in the future.

39 In addition, on 1 November 1997, Dr Lloyd handwrote a note (Ex R19) on the letterhead, ‘Gill Ave Vet’, to Mrs Robinson as follows: ‘Your complaint about my treatment of your dog ‘Remus’ had no relationship to the unpaid a/c. If not paid in 7 days from 1.11.97 the ACRA will be notified & I will take legal proceedings to recover this debt. Regards, R. Lloyd.’

40 Ms Robinson’s evidence was that she contacted the CRA after receiving this letter, was informed by the organisation as to its practices, and advised them that the debt was disputed.

41 Dr Lloyd said that his usual practice was to send non-paying customers a letter demanding payment and threatening report to the CRA. He said that if a payment did not then follow, the practice was in fact to write the debt off rather than going ahead and lodging a formal report. He was unable satisfactorily to explain why he had found it necessary to have a formal letter sent (the one from the Accounts department) and then for him to write one in his own handwriting to Mrs Robinson dated 1 November.

42 As to whether conduct of this kind could be seen as intimidatory of a complainant whose complaint the following exchange occurred in cross-examination, commencing with inconsistent answers by Dr Lloyd (ts 134-135: 12/12/00):

‘Q: Do you remember sending out a letter – having sent out the letter to Mrs Robinson, threatening her with a referral to the Credit Reference Association?

Dr Lloyd: No.

Q: Do you remember sending any such letter to Mrs Robinson?

A: A letter was sent.

Q: You hand wrote such a letter, did you, in November 1997?

A: Yes.

Q: And why did you handwrite it when you a standard form of printed letter that threatened referral?

A: I am not sure why I handwrote that. Maybe it was handwritten to be typed or maybe we didn’t have a format at that time, I am not sure.

Q: It wasn’t to show your personal determination to pursue the bill, despite her complaint?

A: If my personal determination to do that was there, well then, the account would have been referred to the Credit Reference Association, which it wasn’t, and not one of those letters has ever been referred – or not one of the clients that have received one of those letters has ever been referred to the CRA, not one and we have never taken any – it is just unbelievable – we have never taken any clients to court for non-payment of accounts. We have merely written them off. So there is not one, there is many.

Q: Well you know that that threat would be very distressing to Mrs Robinson, didn’t you?

A: No, not at all. People in areas such as I practise in are quite used to receiving letters of the sort and they know quite well how to handle letters like that. Normally they just file them.

Q: You didn’t have any concern or compunction about sending that letter of 1 November 1997 threatening referral to the Australian Credit Reference Association?

A: It wasn’t a threat. I am sure you have sent many yourself. It was just a normal office procedure.

Q: Well, you had already sent a normal office procedure letter of 30 April 1997 in your standard format, hadn’t you?

A: And office procedures don’t only involve one action. Sometimes there is a step by step procedure before you either get paid or run to the final, either attending court or notifying, in this case, the CRA.

Q: Well, by that time you were aware that the complaint had been referred by the AVA to the VSIC, weren’t you?

A: I would have been, yes.

Q: So you wrote that threatening letter referring directly to the complaint, despite the fact that you knew that the treatment that she wasn’t paying for was the subject of an investigation by a statutory body, is that right?

A: I don’t think the two have got any relation or correlation. I don’t think you can correlate the two.

Q: You didn’t think that it was treading on the toes of the VSIC to be demanding payment for a service that they were currently investigating you for?

…

A: I wasn’t treading on anyone’s toes.

Q: Did you think you would be directly raising questions about the propriety of your conduct or treatment of Remus which were actively being investigated that that very time?

A: No.’

43 Findings in relation to Particulars : We are satisfied that all the factual particulars are proven.

44 Findings as to Allegation 2: The Veterinary Surgeons Code of Professional Conduct, cl 9, reflecting the common law position, states:

‘ Professional relationships When practising veterinary science, a veterinary surgeon has an obligation to conduct himself or herself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general.’
45 The Allegation is in those terms.

46 It is plainly a serious matter to try to intervene to stop a person pursuing an official complaint especially once it has been lodged. Dr Lloyd persisted in trying to get Ms Robinson to withdraw her complaint over a period of about two weeks. We are satisfied that he made four attempts. Had his motive been to discuss with her the circumstances of the death of the dog and his treatment of the dog, it might have been expected that he would have contacted her sometime in the two weeks before 25 March 1997 when he became aware of the complaint. There is no suggestion either by Dr Lloyd or Mrs Robinson that any contact occurred in that period. The most plausible explanation for Dr Lloyd’s expression of concern in relation to discussing the death and treatment of the dog is the receipt of the complaint by him. It is not plausible, we consider that Dr Lloyd would then have confined any conversation to the issue of the death and treatment of the dog. He would, we consider, have been likely to have seen this as no more than a pretext for discussing the question of the charges. Mrs Robinson made it clear on the first occasion that she wanted to hear no more from him. Dr Lloyd pressed on, and she eventually gave in by promising to see him. She then did not attend on the Thursday evening. That provides the setting for the Sunday morning call. On Monday 14 April 1997 (most likely the Monday immediately following that Sunday given the time sequences reported by Mrs Robinson), the account was sent and the official reply sent.

47 We regard this conduct as constituting misconduct in a professional respect.

48 The fifth paragraph of the particulars deals with the notices given to Mrs Robinson that she would be reported to the CRA for default in the payment of a debt.

49 Dr Lloyd’s evidence was that he was following normal procedure in sending a letter of demand referring to the possibility of report to the CRA. The letter signed by his accounts clerk, Ms Bennett, dated 22 October 1997 could, perhaps, be seen as falling into that category. It is a standard form, printed letter.

50 The personally signed, handwritten note to Mrs Robinson can not be said to fall into that category. It was an additional letter, direct from the veterinarian in his own hand. It did not have the detachment that is found in the more routine style of letter that emanated only a few days earlier.

51 As to the requests for payment of fees, it is in our view unacceptable for a practitioner to pursue payment of his fees in circumstances where a complaint is under serious consideration by an investigating body. That was plainly the case by November 1997. Dr Lloyd was due to appear later that month before the Investigating Committee.

52 In our view, any steps to continue to recover fees should only occur in consultation with the official body investigating the complaint. There may be components of a bill that are not put in issue by a complaint. These may be appropriate to pursue. In this instance the bill related entirely to the matters put in issue. A bill should normally be placed on hold pending the outcome of the investigation.

53 In reaching these views, we have taken note of the decision of the Court of Appeal in Carson v Legal Services Commissioner [2000] NSWCA 308. In that case a legal practitioner sought from the Supreme Court a permanent stay of disciplinary proceedings brought against him by the Legal Services Commissioner. The stay was granted by the Court of Appeal.

54 In reaching its conclusion that the grounds of misconduct alleged against the practitioner were doomed to fail, the Court examined the issue of whether the pursuit of legal action by a solicitor acting on instructions could, in some circumstances, give rise to a finding of professional misconduct against the solicitor. The Commissioner’s view was that the solicitor had been involved in the use of unfair tactics (by lodging objections to the grant of legal aid to his client’s opponent).

55 The Court said the use of unfair tactics might in certain circumstances give rise to a finding of professional misconduct against a solicitor. It saw the question as being governed by the same principles that apply to the striking out of proceedings for abuse of process. It was necessary to ascertain what the main objective of the taking of legal action had been. If the pursuit of legal action is merely a ‘stalking-horse’ to coerce the defendant in some way ‘totally outside the ambit’ of the legal claim that may amount to an abuse of process: see in Varawa v Howard Smith Co (1911) 13 CLR 35 at 91 per Isaacs J cited with approval by Sheller JA in Carson at [109].

56 While Carson is not directly analogous to the present circumstances, based on the approach adopted there the question becomes was Dr Lloyd merely following normal debt recovery practices, or did his actions have as their predominant purpose an attempt to deter Mrs Robinson from continuing to pursue her complaint. In our view the inference to be drawn viewing the circumstances in their entirety, in particular the sending of the hand-written note, is that the purpose was to deter Mrs Robinson from persisting with her complaint.

57 While the factual particulars of the fifth paragraph are established, we do not regard the conduct as amounting to misconduct in a professional respect in its own right. We do regard the conduct as being unacceptable, and ‘sufficiently unacceptable’ to warrant the making of the complaint (see Act, s 32(3)).

58 Findings as to Allegation 2: We are satisfied that a finding of misconduct in a professional respect should be entered in respect of the conduct particularised in the first four paragraphs (the three contacts with Mrs Robinson, the fourth (the third of the four in the sequence) is not particularised). However we should indicate that we do not regard this misconduct as so serious as to warrant consideration of any interference with Dr Lloyd’s right to practise. It falls at the lower end of the spectrum of professional misconduct.

59 Conclusion. Allegation 2 is established.

DETERMINATION

1. The respondent is guilty of misconduct in a professional respect in relation to Allegation 2.

2. The Inquiry will resume on 14 July 2003 for consideration of orders to be made pursuant to section 32. That hearing will also consider the orders to be made in relation to all four Inquiries.