Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse' - Jurisdiction)

[2002] NSWADT 283

Set aside by Appeal: Set aside by appeal on 19 June 2003

CITATION:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Ronald George Lloyd
FILE NUMBER:	40016 of 1998
HEARING DATES:	14/11/2000, 15/11/2000
SUBMISSIONS CLOSED:	11/29/2000
DATE OF DECISION:	12/31/2002
BEFORE:	O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member
APPLICATION:	Jurisdiction - 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:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Veterinary Surgeons Act 1986
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: ‘Total Eclipse’ - Findings) [2002] NSWADT 284 Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Tasker v Fullwood [1978] 1 NSWLR 20 Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419 Hill v Green (1999) 48 NSWLR 161 Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273 (28 August 2001)
REPRESENTATION:	APPLICANT S Burchett, barrister (to July 2002) M Linkenbagh, agent (since August 2002) RESPONDENT D Inverarity, barrister
ORDERS:	1. Respondent's objection to jurisdiction dismissed.

1 This decision deals with an objection to the jurisdiction of the Tribunal to hear and determine a complaint referred for inquiry by the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act). The objection is made by the practitioner against whom the complaint is laid, Dr Ronald George Lloyd (Dr Lloyd). It is submitted that the Committee failed to observe mandatory procedural requirements prior to making the referral, with the result that the referral was invalid, and the Tribunal is deprived of jurisdiction.

2 For the reasons which follow, the objection is dismissed.

3 As a consequence the Tribunal has proceeded to determine the substantive allegations as to the question of guilt. Those reasons are published separately: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: ‘Total Eclipse’ - Findings) [2002] NSWADT 284 (31 December 2002) (referred to below as the Findings Decision). (The long delay in publishing the findings and the present reasons is explained in that decision.)

4 The objection to jurisdiction was not fully formulated and put on behalf of Dr Lloyd until the hearing of the substantive allegations had been completed on 14 and 15 November 2000.

5 The first indication that the Tribunal (sitting as a Veterinary Disciplinary Panel) received of a possible objection occurred during re-examination of Dr Lloyd after he had completed his evidence. At that point counsel for Dr Lloyd put questions to Dr Lloyd on the issue of the procedural steps taken by the Committee in relation to this complaint (see ts 85, 8/6/00). After considering the Committee’s objection, he was given leave to put questions to Dr Lloyd on the procedural history of the matter before the Committee.

6 As a consequence counsel for the Committee was given leave to resume cross-examination in relation to Dr Lloyd’s account of the procedural steps. On 14-15 November 2000 after the evidence had been received, closing submissions were made. After Mr Burchett for the Committee had completed his closing submissions as to the merits, Mr Inverarity for Dr Lloyd opened in reply by making detailed submissions as to jurisdiction. He lodged further supplementary written submissions on 21 November 2000. Counsel for the Committee replied orally and also filed written submissions on 29 November 2000.

7 Counsel for the Committee submitted that the jurisdiction of the Tribunal is, under the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and the Act, to make original decisions in relation to referred complaints, and it is not required to enquire behind a notice of referral to determine whether any prerequisite to such referral has been satisfied, without actual notice of invalidity by a properly made application with evidence in that regard.

8 The Tribunal is satisfied that, while belated, Dr Lloyd did through counsel make a proper application, and that he is entitled to rely on the evidence as to the procedure of the Committee before the Tribunal, and that the Committee did have the opportunity to put on any further evidence.

9 As the ultimate question (jurisdiction) is one of law, it falls to be determined by the only judicial member sitting, in this instance the President: Tribunal Act, s 78(2). The findings of fact are made by the Tribunal as a whole, and if there is disagreement by majority: s 78(1), Tribunal Act.

10 Legislation. The procedures to be observed by the Committee are found in Part 4, Div 3 of the Act (the following references are to the provisions as they stood at that time).

11 After receipt of a complaint, the Committee has a duty to investigate it (subject to certain exceptions not presently relevant): see ss 26, 27. The critical provision in the present instance is s 28.

12 The text of s 28 follows.

‘ 28. Decision of Investigating Committee on complaint
(1) The Investigating Committee:
(a) may dismiss any complaint made to it,
(b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following:
(i) by order, caution or reprimand the veterinary surgeon,
(ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon,
(iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or
(c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly.
(2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct.
(3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.’

13 Circumstances. The original complaint was made by Ms Robyn Koroknay, whose daughter owned the animal (a cat, Total Eclipse) treated by Dr Lloyd, by letter dated 12 April 1997 (Ex T3) to the Australian Veterinary Association Ltd (AVA), New South Wales Division: set out in Findings Decision.

14 The convenor, ethics and complaints sub-committee, Joanne Sillince, wrote to Dr Lloyd by letter dated 16 April 1997 requesting his ‘comments and recollections, together with copies of any relevant records, within fourteen days’ to enable the Division to reply to the complaint. There was no reply, and Ms Sillince sent a reminder letter dated 12 May 1997 (for both letters, see Ex T21). Dr Lloyd replied by letter dated 9 June 1997 (Ex T4): set out in Findings Decision.

15 By letter dated 3 July 1997 Ms Sillince on behalf of the AVA referred the complaint to the Committee for examination, expressing concern as to a number of aspects of Dr Lloyd’s response (Ex T21). There was dispute as to whether Dr Lloyd received a copy of that letter. No official record or document was produced to the Tribunal.

16 We are satisfied that Dr Lloyd did receive notice of the referral. We refer in that regard to his answers under further cross-examination at ts 100-101 and ts 111 (8/6/00); and reject his subsequent denial of having received a copy (ts 119).

17 We also refer in that regard to the exchange that occurred with the Committee on 24 November 1997 (Ex T12) and the handwritten fax sent by Dr Lloyd to the Secretary to the Committee (Mr Harcombe dated 10 November 1997 (Ex T21). In that fax Dr Lloyd said: ‘It is my intention to present myself to the V.S.I.C. on 24th Nov. to answer any questions put to me by Committee members Re. Ms Robinson Complaint & Ms Koroknay Complaint.’ (The Robinson complaint relating to the animal, ‘Remus’, a dog, is the subject of a separate inquiry which we have described as Inquiry 3.)

18 At the interview on 24 November 1997 which mainly concerned the ‘Remus’ complaint the Committee also interviewed Dr Lloyd in relation to the present complaint, as had been contemplated by Dr Lloyd. In the course of the interview a member of the Committee states that the Committee had not received any written response from Dr Lloyd in relation to Ms Koroknay’s complaint other than the response he gave to the AVA. The Committee chair said: ‘Did we write to Mr Lloyd? You haven’t received a letter from us on this one?’ to which Dr Lloyd answered ‘No.’

19 We are satisfied that Dr Lloyd did not receive any letter from the Committee itself prior to the interview in relation to the complaint referred by the AVA.

20 The Secretary made the referral on 4 August 1998. The notice of inquiry enumerating two allegations (to which a third allegation was later added by leave of the Tribunal) was issued on 5 August 1998.

21 Submissions for Dr Lloyd as to Jurisdiction. Counsel for Dr Lloyd contended that the Committee had failed to observe the requirements of s 28(3). He claims that the following procedural omissions occurred, giving rise to a defective referral:

1. The Committee did not give Dr Lloyd the opportunity to make written submissions to the Committee.
2. The Committee interviewed him without giving him the opportunity to make written representations to the Committee.
3. The Committee only obtained a statement from Ms Koroknay snr and Ms Koroknay jnr after the matter was referred to the Tribunal.
4. The Committee only obtained an expert’s report after the matter was referred to the Tribunal.
5. The Committee could not have been satisfied that a prima facie case was made out against him and could not have considered that the complaint was so serious to warrant it being referred to the Tribunal.

22 We are satisfied that the assertions of fact in Points 1 and 2 are accurate. The assertion of fact in Point 3 is correct insofar as it refers to the detailed statements obtained after the notice of inquiry was served. However, the Committee did have before it the statement from Ms Koroknay snr as contained in her original letter of complaint. The assertion of fact in Point 4 is accurate. Expert reports were obtained after referral.

23 The Tribunal considers that the first two points raise a question going to jurisdiction. They raise the issue of whether essential preconditions to the exercise of the power of referral had been made. We are not satisfied that the remaining three points raise a question going to jurisdiction. We turn to the latter points first.

24 Points 3, 4 and 5: Point 5 raises the issue of whether the judgment of the Committee in exercising the power of referral was sound.

25 We are satisfied that the Committee did receive the complaint from the AVA, and that the material referred included the original complaint from Ms Koroknay snr and the reply by Dr Lloyd. It is possible in our view for the Committee to conduct a formal interview on the basis of that amount of material. It is a Committee mainly comprising veterinary surgeons of experience, who are obviously well placed to make expert assessments of what they are told. There is no need for such a body to have an independent expert’s report before it at that point, as Point 4 appears to assert.

26 Had the Committee had no material before it, there may have been an issue of jurisdiction for the present Tribunal to consider. But clearly here it had material. As we see it, this Tribunal’s mandate does not, in circumstances where the Committee had before it relevant material, extend to re-examining the question of whether the Committee possessed, or reasonably possessed, the requisite state of satisfaction to make the decision to refer; and the general adequacy or otherwise of its investigation to that point. Had the legislature intended that the Tribunal was to have a review jurisdiction in respect of that decision it would have conferred such a jurisdiction. See further, Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5 at [16-23].

27 If it was considered that the substantive exercise of discretion miscarried, this issue should have been raised in 1997 and 1998, probably by way of judicial review proceedings in the Supreme Court.

28 Points 1 and 2: As to the first two points, again it might be said that these are matters more appropriate to be considered by way of judicial review proceedings in the Supreme Court.

29 There was one irregularity of significance. The Committee did not give Dr Lloyd an opportunity to make written submissions to the Committee before giving him the opportunity to appear before it to make oral representations.

30 The question of whether non-fulfilment of a condition on the exercise of a power renders the exercise of the power itself invalid is not to be resolved by reference to the mandatory/directory distinction or grammatical tests.

31 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] McHugh, Gummow, Kirby and Hayne JJ said:

‘[A] court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the statutory provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining that issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales [several cases cited]. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute [citing Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24].’

32 In reaching the conclusion that the non-observance of the condition in issue in that case did not render the subsequent exercise of power invalid, their Honours took account of a range of factors, including:

• The fact that the provision ‘regulates the exercise of functions already conferred on the [body] rather than essential preliminaries’ - at [94]
• ‘Not every obligation imposed by the section has a rule-like quality’ - at [95]
• ‘When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity.’ - at [95]
• The extent of public inconvenience if non-fulfilment of the precondition renders invalid the exercise of power - at [97-8]
• The degree of clarity of the precondition.

33 The main authority relied on by the respondent in this case was Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419. In that case a professional disciplinary investigating body (the Law Society Council) after a long investigation of irregularities in a practitioner’s conduct (a solicitor) initiated a complaint against him (as permitted by the governing legislation), and then made its decision under the governing legislation that the complaint was sufficiently serious to refer to the Tribunal. It made that decision immediately after approving the terms of the complaint.

34 The High Court held that the statutory scheme (the Legal Profession Act 1987) did not permit the ‘telescoping’ of the step of approving the complaint and the step of referral. It was necessary, and this had not occurred, for the professional body to give the practitioner an opportunity to respond to the complaint as initiated. The relevant provision stated that the Council was only to refer a complaint to the Tribunal ‘[a]fter …[it] had completed an investigation’. In this case while a lot of investigative work had gone on prior to the formulation of the complaint (and various statements had been given by the practitioner), the Court was satisfied that a procedural error of significance had occurred, and accordingly the Tribunal was without jurisdiction.

35 The Court acknowledged that not every procedural omission in a disciplinary process will lead to the referral being invalid, and the Tribunal receiving the complaint thereby being deprived of jurisdiction. The question was whether the omission was so significant that it could be said that the statutory requirements had been ‘substantially bypassed’: see per Gleeson CJ, Gaudron and McHugh JJ at [63]. See further per Kirby J at [116-7].

36 The High Court decision in Barwick gives weight to a factor not present in the veterinary surgeons disciplinary regime - the presence of an external invigilator of the processes of the professional associations, being the Legal Services Commissioner, who has a duty to monitor investigations by the Councils. The Court was concerned that by ‘telescoping’ the stage of formulation of the charge and the referral, there was no intervening investigation capable of being scrutinised by the oversight Commissioner.

37 Gleeson CJ, Gaudron and McHugh JJ said at [61-63]:

‘61. The proper focus of attention should not be whether enquiries were made by the Council before the initiation of the complaint, or after the laying of the information. The focus of attention should be whether, in the events that happened, there was an investigative stage which permitted the requirements of Div 5 to be satisfied, and the legislative purpose of the Division to be fulfilled. In some cases, that stage might be brief, and might not necessarily involve the gathering of information not already in the possession of the Council. It must, however, be such as to permit monitoring of the investigation by the Commissioner, and, at the conclusion of the stage, (referred to in s 155 as the completion of the investigation), the Council must address the issues raised for consideration by s 155, and record its decision and its reasons for the decision. The capacity of the Commissioner to monitor an investigation is not an empty formality. In a given case, the Commissioner might consider that a complaint is not being treated seriously enough, or has been misunderstood, or has been inadequately investigated. Questions might in turn arise as to the accountability of the Commissioner.
62. In the present case the Law Society Council does not appear to have directed its attention to the need for initiation of a complaint, and for compliance with Div 5, until late in the course of its enquiries, and then, in the relevant resolutions, the procedures of initiating a complaint and making decisions under s 155 were telescoped. In the result, in the case of both complaints, there was nothing that can be described as the investigative stage required by Div 5.’

Their Honours continued at [63]:

‘It would be inconsistent with the legislative purpose to conclude that the Tribunal has jurisdiction to deal with a matter brought before it in circumstances where the procedures established by Div 5 have been substantially bypassed .’ [emphasis added]

38 In Tasker v Fullwood, cited above, the Licensing Court did not have produced to it the agreement between the license applicant and other persons with an interest in the profits of the liquor merchant’s business giving rise to the application. The statute required that such an agreement be produced in proceedings for grant of a license. The license had been granted to the applicant. The objectors sought to have the grant set aside on the basis the Court was without jurisdiction, the condition not having been fulfilled. The Court of Appeal (Hope, Glass, Samuels JJA) said at 22:

‘The submission [for the objectors] raises a question of a type which is frequently encountered. The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. [Recent cases are then referred to] ... From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding the non-compliance: [citation omitted]. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: [citation omitted]. (4) The intention being sought is the effect on the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement:[citation omitted]. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: [citation omitted]. A statute, which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: [citation omitted].’

The Court then said:

‘The question we pose, therefore, is not whether the terms of [the relevant provision] are mandatory or directory, but whether or not, on its proper construction, the statute discloses an intention that the failure to produce any agreement should deprive the Licensing Court of jurisdiction to make an order granting a license. The provision is not so expressed as to be an essential preliminary to the court’s jurisdiction to hear the application .... Nor is it in the form of a direction to the Court that the application shall not be granted failing satisfaction that the stipulated matters exist ... . It merely imposes a requirement to be met at some stage before the grant of the license ... The requirement is of a kind that does not admit of substantial compliance. There will either be strict compliance or non-compliance. Accordingly the question can be narrowed down as follows. Is the requirement upon the applicant that he produce the agreement so cardinal to the object of the statute as to disclose the intention that its complete non-observance should invalidate any order made by the Court?’

39 The Court then went on to list various factors which militated against the conclusion that non-observance deprived the Court of jurisdiction, and held that non-observance of the condition did not deprive the court of jurisdiction.

40 The provision in issue in this case is found in Part 4 of the Act, a Part headed ‘Disciplinary Provisions.’ Division 3 deals with the making of complaints to, and investigations by the Committee (which includes s 28).

41 Under s 27(1) the Act ‘shall ... cause all complaints against registered veterinary surgeons ... to be investigated.’ The Committee has its own power to lay a complaint, instead of or in addition to the complaint being investigated: s 27(2). Section 27(3) provides that the proceedings of the Committee ‘shall be held in the absence of the public.’ Sub-section (4) provides: ‘For the purposes of any investigation conducted by it, the Investigating Committee may conduct the investigation in such manner as it thinks fit and is not bound to observe rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.’

42 Counsel for the Committee submitted further that any procedural unfairness that may have occurred earlier has now been overcome by the proceedings before the Tribunal where Dr Lloyd has been apprised of the evidence against him and given a reasonable opportunity to respond. It may well be that the proceedings in the Tribunal are sufficient to overcome any error in procedural fairness in the proceedings before the Committee: see generally Hill v Green (1999) 48 NSWLR 161 at 195-197 per Fitzgerald JA.

43 But that does not dispose of the objection made on the ground that an essential precondition to the exercise of the power of referral has not been performed thereby invalidating the referral, and depriving the Tribunal of jurisdiction. (Cf Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273 (28 August 2001) per Spigelman CJ at [114] - [116].)

44 In favour of Dr Lloyd’s position, it might be said that the requirement that the Committee give written notice is - an ‘essential preliminary’, has a ‘rule like quality’ and is expressed with a high ‘degree of clarity.’

45 In favour of the Committee, it might be said that the overall requirement lying on the Committee - to obtain an explanation from Dr Lloyd and consider it - has not been ‘substantially bypassed.’

46 As the Tribunal sees it, the ultimate question to be asked, to paraphrase the dictum in Tasker v Fullwood, is whether the representations-in-writing precondition is ‘so cardinal to the object of the statute as to disclose an intention that its complete non-observance should invalidate’ the referral to the Tribunal.

47 The object of this Part of the legislation is to provide the community with protection from misconduct through an orderly and expert complaints system, which is, in turn, fair to practitioners who are the subject of allegations.

48 In that light, the key requirement of s 28(3) is the final one, that the Committee ‘must give the veterinary surgeon an opportunity to appear before it to make oral representations.’ That requirement was satisfied in this case. It constitutes an essential precondition to the exercise of the power of referral, the absence of which would render the referral invalid, and thereby deprive the Tribunal of jurisdiction.

49 Are the prior preconditions which in turn condition the final requirement as fundamental? The opportunity to provide written representations was not afforded. In that regard, the Tribunal does not accept the contention of counsel for the Committee that the written representations that Dr Lloyd made to the AVA sufficed for the purpose of written representations to the Committee.

50 While comparisons with other decided cases are to be undertaken with care because of their different statutory frameworks, the situation here is not as fundamental as that found in Barwick. In Tasker v Fullwood, the requirement bore directly on the conduct of proceedings by the Court, was expressed in mandatory terms, but was found not to constitute a precondition of such a fundamental character as to render invalid an order made in proceedings that did not comply with the condition.

51 While there has been a procedural omission of significance by the Committee, the Tribunal considers, viewed in conjunction with the other statutory requirements, that non-adherence to the representations-in-writing requirement does not render the exercise of the power of referral invalid. The key objective of fairness to practitioners, while compromised, is not so compromised as to give rise to an invalid referral. The practitioner did avail himself of the opportunity to appear before the Committee to make oral representations.

52 Accordingly, the procedural omission by the Committee does not affect the validity of the referral; and the Tribunal is properly seized of jurisdiction to deal with the complaint.

DETERMINATION

1. Respondent’s objection to jurisdiction dismissed.