Veterinary Surgeons Investigating Committee v Temmingh - [2004] NSWADT 186

CITATION: Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186

DIVISION: General Division

PARTIES: APPLICANT
Veterinary Surgeons Investigating Committee
RESPONDENT
Sven Temmingh

FILE NUMBER: 033341

HEARING DATES: 24/03/2004 & 28/06/2004

SUBMISSIONS CLOSED: 08/06/2004

DATE OF DECISION:
08/27/2004

BEFORE: Hennessy N - Magistrate (Deputy President); Crisp T - Non Judicial Member; Clark F - Non Judicial Member

APPLICATION: Veterinary surgeon - conviction of an offence - Veterinary Surgeons Act - veterinary surgeon - conviction of an offence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Customs Act 1901 (Cth)
Legal Profession Act 1987
Stock Medicines Act 1989
Veterinary Surgeons Act 1986

CASES CITED: Director General NSW Agriculture v Temmingh— BC200301726
Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97)
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
The Law Society of New South Wales v Bannister (1993) LPDR 24
di Suvero v New South Wales Bar Association [2001] NSWADT 37
Clyne v New South Wales Bar Association (1960) 104 CLR 186

REPRESENTATION: APPLICANT
M Wade, solicitor
RESPONDENT
P Ash, solicitor
M King, barrister

ORDERS: 1. The Tribunal orders that the name of Sven Arne Temmingh be removed from the register of veterinary surgeons. He may not apply for restoration of his name to the register for at least 5 years from the date this order comes into effect pursuant to s 36(6) of the Veterinary Surgeons Act 1986; 2. Dr Temmingh is to pay the costs of the applicant in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

Introduction

1 In July 2003, Dr Temmingh, a veterinary surgeon, was convicted in the Supreme Court of wilfully supplying injectable steroids and wilfully making a false entry in a record. This is an application by the Veterinary Surgeons Investigating Committee (VSIC) pursuant to the Veterinary Surgeons Act 1987 (the Act) to discipline Dr Temmingh in relation to those convictions. Prior to the conclusion of the hearing, Dr Temmingh’s representative informed the Tribunal that his client had pleaded guilty to further criminal charges laid under s 233BAA(4) of the Customs Act 1901 (Cth). Those charges are that he imported approximately 5 kilograms of a restricted substance (nandrolone decanoate) from China in December 2003, six months after his first conviction in the Supreme Court. He has pleaded guilty to that charge and is due to be sentenced by the District Court on 10 September 2004.

Details of Supreme Court convictions

2 Dr Temmingh pleaded guilty to the following charges under the Stock Medicines Act 1989:

Stock Medicines Act

The defendant did wilfully make a false entry in a record, contrary to the provisions of Cl 8C of an Order (Order 1998/1) made pursuant to s 46 of…

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: [2004] NSWADT 186
Decision Date: 08/27/2004

CaseChat Overview and Summary

In the case of Veterinary Surgeons Investigating Committee v Temmingh, the dispute centred around the professional conduct of Dr. Sven Arne Temmingh, a registered veterinary surgeon in Australia. The Investigating Committee sought to have Dr. Temmingh's name removed from the register, citing breaches of professional conduct. The matter was heard in the Tribunal, which had jurisdiction to hear appeals and conduct disciplinary proceedings under the Veterinary Surgeons Act 1986.

The primary legal issues that the Tribunal needed to decide were whether Dr. Temmingh's conduct warranted his removal from the register and, if so, what the appropriate penalty should be. The Tribunal needed to consider the evidence and arguments presented by both parties and apply the relevant statutory provisions and case law to determine the appropriate outcome.

In delivering its decision, the Tribunal found that Dr. Temmingh's conduct did indeed warrant his removal from the register of veterinary surgeons. The Tribunal held that Dr. Temmingh had engaged in unprofessional conduct on multiple occasions, including making misleading statements to clients, failing to maintain proper records, and engaging in dishonest conduct. The Tribunal found that these actions demonstrated a lack of fitness to practice as a veterinary surgeon. Accordingly, the Tribunal ordered that Dr. Temmingh's name be removed from the register and that he be prohibited from applying for restoration of his name to the register for at least five years. The Tribunal also ordered that Dr. Temmingh pay the costs of the applicant, which were to be agreed between the parties or, failing agreement, assessed in accordance with the Legal Profession Act 1987.

Orders

Orders of the court

1. The Tribunal orders that the name of Sven Arne Temmingh be removed from the register of veterinary surgeons. He may not apply for restoration of his name to the register for at least 5 years from the date this order comes into effect pursuant to s 36(6) of the Veterinary Surgeons Act 1986; 2. Dr Temmingh is to pay the costs of the applicant in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

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 Temmingh [2004] NSWADT 186
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Sven Temmingh
FILE NUMBER:	033341
HEARING DATES:	24/03/2004 & 28/06/2004
SUBMISSIONS CLOSED:	08/06/2004
DATE OF DECISION:	08/27/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Crisp T - Non Judicial Member; Clark F - Non Judicial Member
APPLICATION:	Veterinary surgeon - conviction of an offence - Veterinary Surgeons Act - veterinary surgeon - conviction of an offence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Customs Act 1901 (Cth) Legal Profession Act 1987 Stock Medicines Act 1989 Veterinary Surgeons Act 1986
CASES CITED:	Director General NSW Agriculture v Temmingh— BC200301726 Law Society of New South Wales v Walsh (unreported, Court of Appeal, 15/12/97) Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 The Law Society of New South Wales v Bannister (1993) LPDR 24 di Suvero v New South Wales Bar Association [2001] NSWADT 37 Clyne v New South Wales Bar Association (1960) 104 CLR 186
REPRESENTATION:	APPLICANT M Wade, solicitor RESPONDENT P Ash, solicitor M King, barrister
ORDERS:	1. The Tribunal orders that the name of Sven Arne Temmingh be removed from the register of veterinary surgeons. He may not apply for restoration of his name to the register for at least 5 years from the date this order comes into effect pursuant to s 36(6) of the Veterinary Surgeons Act 1986; 2. Dr Temmingh is to pay the costs of the applicant in a sum to be agreed between the parties. Failing agreement costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.