Veterinary Surgeons Investigating Committee v Williamson

[2004] NSWADT 215

CITATION:	Veterinary Surgeons Investigating Committee -v- Williamson [2004] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Henry Mervyn Graham Williamson
FILE NUMBER:	043212
HEARING DATES:	03/09/2004
SUBMISSIONS CLOSED:	09/03/2004
DATE OF DECISION:	09/28/2004
BEFORE:	O'Connor K - DCJ (President); Carter T - Non Judicial Member; Mayo-Ramsay R - Non Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Veterinary Surgeons Act 1986
CASES CITED:	Kioa v West (1985) 159 CLR 550 Lloyd v Veterinary Surgeons Investigating Committee (Total Eclipse – Jurisdiction) [2003] NSWADTAP 19 Mahon v Air New Zealand Ltd [1984] AC 808 Minister for Local Government & Anor v South Sydney City Council [2002] NSWCA 288 Muin v Refugee Review Tribunal [2002] HCA 30 Murray v Legal Services Commissioner (1999) 46 NSWLR 224
REPRESENTATION:	APPLICANT M Wade, solicitor RESPONDENT V Bedrossian, barrister
ORDERS:	Respondent's objection to jurisdiction dismissed.

1 The Veterinary Surgeons Investigating Committee (‘the Committee’) on 5 July 2004, pursuant to s 28(1)(c) of the Veterinary Surgeons Act 1986 (the Act), referred to the Tribunal for inquiry a complaint against a registered veterinary surgeon, Dr Henry Mervyn Graham Williamson (‘Dr Williamson’). Dr Williamson has objected to the jurisdiction of the Tribunal on the basis that the Committee failed to comply with the procedures required by the Act before making the referral, and generally failed to accord him procedural fairness. As required by the Administrative Decisions Tribunal Act 1997, Part 4 Div 3 cl 7, a Veterinary Disciplinary Panel has been constituted for the purpose of conducting the inquiry. The Panel convened on 3 September 2004 to hear the objection to jurisdiction. Mr Bedrossian of counsel appeared for Dr Williamson; and Mr Wade, solicitor, appeared for the Committee.

2 The procedural provisions under which the Committee operates are found in ss 26 ff of the Act. The provisions relevant to this case are set out below:

‘ 26 Complaints against veterinary surgeons

(1) The Investigating Committee, the Board or any other person may make a complaint to the Investigating Committee that a registered veterinary surgeon: …

(c) has been guilty of misconduct, or serious misconduct, in a professional respect, …

(2) A complaint shall be made in writing.

(3) The Investigating Committee, by notice in writing served on the complainant:

(a) may require further particulars of any complaint to be given, and

(b) may require the complaint or any further particulars to be verified by statutory declaration,

within such time as may be specified in the notice.

(4) Where further particulars of a complaint are not furnished or a complaint or further particulars are not verified as required by the Investigating Committee, the Investigating Committee may refuse to investigate the complaint.

(5) The Investigating Committee may investigate a complaint relating to the conduct of a registered veterinary surgeon notwithstanding that it does not appear to constitute misconduct, or serious misconduct, in a professional respect or any other ground on which a complaint may be made under subsection (1), but where the Investigating Committee considers that the matter to which any such complaint relates does not warrant the making of the complaint, the Investigating Committee shall refuse to investigate the complaint any further. …’.

3 Section 27 deals with the conduct of the investigation by the Committee:

‘ 27 Investigation by Investigating Committee

(1) The Investigating Committee shall, except as provided by section 26 (4) and (5), cause all complaints against registered veterinary surgeons made to it in accordance with section 26 to be investigated.

(2) Where in the course of the investigation of a complaint against a registered veterinary surgeon:

(a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation:

(i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or

(ii) a complaint could be made to it against another registered veterinary surgeon, and

(b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26,

the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26.

(3) The proceedings of the Investigating Committee shall be held in the absence of the public.

(4) 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.

(5) Without limiting subsection (4), the Investigating Committee may delegate its function of collecting evidence in relation to an investigation to any person that the Investigating Committee considers appropriate.’

4 The next provision, s 28, deals with the action that the Committee may take in relation to the complaint. It is given some disciplinary powers. This provision received the most attention in the submissions.

‘ 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.’

5 In this case there were two letters to the Committee complaining about the conduct of Dr Williamson. The first was from Dr Marilyn McKenzie, a registered veterinary surgeon, by letter dated 16 May 2003:

‘Equine veterinary colleagues have drawn my attention to the attached transcript dated 13 August 2002 from NSW Western Racing Association. They have indicated that they have concerns regarding the distance dispensing of drugs by Dr Williamson and they have reason to believe the unregistered drugs that were seized were inadequately labelled. On reading the transcript I feel there are further issues that need to be addressed and which should be brought to the attention of the Veterinary Surgeons Investigating Committee (VSIC).

In accordance with Section 26 (1)(c) of the Veterinary Surgeons Act I request that the VSIC thoroughly investigate this matter, and to do so, I hereby lodge a formal complaint against Dr Mervyn Williamson of Stable Health formally [sic] of Warwick Farm, but presently of Melton South, Victoria. According to the NSW Veterinary Surgeons’ Roll of 2003, Dr Williamson is registered as a veterinarian in NSW.

The transcript primarily concerns an inquiry into a positive swab from a urine sample taken from the horse Kashmir Magic, and incorporated into the content of the transcript (pages 13 – 16) is commentary on the purchase and use of unregistered drugs. Dr Williamson in Victoria prescribed the unregistered drugs PAIN and FEMME for treatment of horses in NSW.

I have reason to believe that FEMME is or comprises the female hormone Progestogen. If this is correct then it is also an S4 drug. Invoices, records and drug vials can be obtained by contacting Mr Ray Murrihy, (Chairman of Racing NSW Stewards) and Dr Craig Suann (Senior Official Veterinarian with NSW Thoroughbred Racing Board).

The matters which the VSIC should investigate and which form the basis of the ‘Complaint’ relate to possibly 4 breaches of the Professional Code of Conduct. For the purposes of Section 22 (c) of the Act breaches of any of the following provisions are misconduct in a professional respect. Dr Williamson should have met all the following professional requirements in his dealings with his client otherwise he may be in breach of the Professional Code of Conduct:

1. Rule 6 (3) – regarding correct labelling of the vials of injectable medication PAIN and FEMME as per the requirements of Appendix A of the Poisons and Therapeutics Goods Regulation 1994;

2. Rule 5(2) – non-compliance with the current well-documented professional standards that define when “distance prescribing’ is acceptable and the requirements for a “patient/veterinarian relationship”. According to the transcript, Dr Williamson had never met or had primary dealings with the client, nor did he know his client’s standard of stable care, or the horses being treated. Dr Williamson relies on an unknown layperson to provide the physical assessment of the patient. Not doing well, not eating well and lameness, may be the primary symptoms of many serious, sometimes chronic conditions.

AVA Compendium B1 1.1 and Boardtalk February 1998 define for the profession what is the current accepted requirement for a patient/veterinarian relationship and when distance prescribing is acceptable. I believe it was also discussed and defined at AEVA meetings pertaining specifically to the Equine Practitioners. The transcript makes reference to blood profiles being requested on occasions before drugs will be prescribed. It appears to be widely accepted in the equine profession that the running of a blood profile neither equates to a physical examination nor replaces such a patient assessment, especially if the patient being assessed is clinically unwell.

3. Rule 5(12) the requirement to ensure a detailed record. Specifically to record bloods received, tests run and results of tests. All abnormal findings should be clearly documented for comparison with any subsequent blood work.

4. Rule 6(1) refers to “conditions imposed by other legislation…relating to…dispensing….”. The Stock Medicines Act 1989 section 40(3) refers to veterinary surgeons not being able to prescribe or supply an unregistered stock medicine or off label medication for use, unless for the purpose of dealing with a particular condition of an animal under his or her care. See AVA Compendium B1 1.1. None of these essential criteria appear to be applicable in this case to justify Dr Williamson deeming these horses to be “in his care”.

In addition to these potential breaches of the Code of Conduct, I would ask the Committee to look into the compounding of unregistered drugs (including S4s) by Dr Williamson for dispensing for use on horses.

Historically the compounding of medications referred to oral or topical medications, but the legislation does not preclude parenteral. Bruce Battye from the Dept of Health has indicated to me that a professional compounding medications [sic] for parenteral use, has at the very least, a moral requirement to be aware of a number of criteria and to be able to advise the client. This assumes the close client/vet relationship that allows this prescribing of unregistered drugs. I ask the Committee to ascertain how Dr Williamson can compound drugs for intramuscular and intravenous use, within the confines of his premises such that he can:

· ensure sterility of these drugs;
· ensure a consistent level of activity when injectable drugs are compounded;
· provide an expiry date for the medication;
· ensure drug stability over that time.
The latter two points are particularly relevant when dealing with multi use vials (such as those supplied) which may have doses drawn using suboptimal sterility and then be put away on the shelf for weeks or months or years before re-use. A veterinarian choosing to compound medications should be able to provide some criteria, publication or other source that clearly demonstrates activity and stability and over what period. This client states in the transcript that he didn’t even know he was using unregistered drugs.

If these drugs are being compounded by a licensed wholesaler then a permit is required and the labels should state active ingredients.

The profession generally, is acutely aware of the need to correctly dispense and label S4 drugs and the privileges associated with the unique ability of a veterinarian to compound and dispense a product to a bona fide client in the context of a specific patient treatment. All products registered or unregistered must be labelled as per legislation.

The profession through the VSB, AVA, and in particular AEVA have made a firm stand on tightening regulations pertaining to dispensing of drugs, and defining the basis for a client/vet/patient relationship and distance prescribing. Abuse of these privileges by veterinarians will potentially jeopardise the entire profession’s ability to dispense drugs.

I believe Dr Williamson is a member of the AEVA and is in receipt of Boardtalk. Irrespective of this, as a professional, Dr Williamson is obliged to be fully aware of the requirements of the Poisons and Therapeutics Act as it pertains to dispensing drugs and the Stock Control Act as it pertains to the veterinarian’s ability to use unregistered and off label drugs in specific circumstances.

I ask that the VSIC investigate this complaint fully, not just in the context that vials of unregistered and apparently inappropriately labelled drugs were procured, but in the full context as it pertains to the Profession’s Code of Conduct, and the profession’s ability to compound and dispense unregistered drugs. There is no excuse at this stage for a veterinarian to claim he or she was not fully aware of his or her obligations given the publications available and the discussion entered into by specialty area groups since 1998. I have not been made aware of any group within the profession being given exclusion to these requirements. I look forward to your response.’

6 The Committee did not promptly advise Dr Williamson of this complaint. Instead it undertook further confidential inquiries and contacted the Chairman of Stewards, Thoroughbred Racing Board, Mr R P Murrihy. Mr Murrihy supplied the Committee with transcript and exhibits of the inquiry by the stewards. The trainer had been fined ($6000) for presenting a horse to race with an impermissible level of hydrocortisone. In the course of their inquiries the stewards had examined the trainer’s practices in relation to the obtaining and use of medications. It found that the trainer, who was located in a remote country town (Nyngan) regularly received medications from Dr Williamson, who was based in Melbourne at this time, by mail order. Two medications supplied by Dr Williamson came under notice, ‘Femme’ and ‘Pain’. The latter was found to contain progesterone. (The medications supplied by Dr Williamson were not implicated in the findings in relation to hydrocortisone.)

7 Mr Murrihy met the Committee on 11 September 2003. On 17 September Mr Murrihy wrote to the Committee as follows on behalf of the Thoroughbred Racing Board:

‘I refer to previous correspondence relating to complaint reference number CN871 and to discussions with the Veterinary Surgeons Investigating Committee held on 11 September 2003.

I confirm that the NSW Thoroughbred Racing Board (TRB) views the conduct of Dr Williamson as requiring investigation, and further, that the TRB makes a formal complaint of professional misconduct by Dr Williamson based on the transcript of the Stewards’ inquiry into the Robb matter and other supporting evidence.

The TRB is willing to make available bottles of “Pain” and “Femme” referred to in the transcript and any other material that might be required by the Committee.

Yours sincerely,

R P Murrihy

Chairman of Stewards’

8 By letter dated 10 October 2003 the Committee wrote to the respondent and said that it had received complaints from Dr McKenzie and the TRB. The body of the letter was as follows:

‘This Committee has received complaints pursuant to Veterinary Surgeons Act, 1986 from both Dr McKenzie and the New South Wales Thoroughbred Racing Board.

The complaints arise from events described in a Report of a Stewards Inquiry held on 13 August 2002 into the running of a horse owned by Mr R Robb in a race at Bourke on 15 June 2002. I enclose a copy of the Report, and refer you to pages 13-16 where questions are asked of Mr Robb regarding the purchase of substances known as Femme and Pain from you. These questions are unrelated to the primary reason for the Stewards enquiry but describe actions on your part in supplying substances to Mr Robb in the course of your practice as a Veterinary Surgeon.

The Chairman of Stewards has confirmed that the TRB had the substances analysed and that Progesterone was found in the substance contained in the bottle labelled Femme. Progesterone is a S4 drug under the NSW Poisons Regulations. The Committee has inspected the bottles and taken a transcript of the information on the labels attached to the bottles, and I enclose a copy of the transcript.

The Chairman of Stewards has also provided to the Committee some further documentation, including copies of the analysis reports on the contents of the bottles and invoices from your company Stable Health Pty Limited relating to the sale of the substances to Mr Robb. I enclose copies of all documents received.

The allegations of professional misconduct which arise from the material received to date by the Committee are that you have breached Clauses 5 (2) and 6 (3) of the Veterinary Surgeons Code of Professional Conduct and are particularised as:

1. That between 1 January 2002 and 30 June 2002 you performed a professional procedure when you supplied a restricted substance labelled “Femme” and containing Progesterone to Rodney Robb and you did not first examine the animal or animals to which the substance was to be administered, contrary to current standards of veterinary science

2. That between 1 January 2002 and 30 June 2002 you performed a professional procedure when you supplied a restricted substance labelled “Femme” and containing Progesterone to Rodney Robb in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to current standards of veterinary science

3. That between 1 January 2002 and 30 June 2002 you performed a professional procedure when you supplied a restricted substance labelled “Femme” and containing Progesterone to Rodney Robb for treatment of an animal which was not under your care at the time, contrary to current standards of veterinary science

4. That between 1 January 2002 and 30 June 2002 you performed a professional procedure when you supplied a substance labelled “Pain” to Rodney Robb for treatment of an animal which you had not examined, contrary to current standards of veterinary science

5. That between 1 January 2002 and 30 June 2002 you performed a professional procedure when you supplied a substance labelled “Pain” to Rodney Robb for treatment of an animal which was not under your care at the time, contrary to current standards of veterinary science.

This conduct, if proved, constitutes misconduct under section 22 of the Veterinary Surgeons Act 1986 and/or serious misconduct in a professional respect under section 22A of the Act and may result in the making of orders by the Committee under section 28 of the act, or referral to the Administrative Decisions tribunal under section 28(1) (c) of the act. The Committee will investigate these allegations.

The Committee may at any stage of the investigation make further complaints of its own motion if facts come to the notice of the Committee which warrant the making of a further complaint or complaints.

The Committee may at any stage of the investigation, if it becomes aware that the conduct is serious misconduct in a professional respect, make a direction to the Board under section 25B of the act, in relation to the suspension of your registration or the imposition of conditions on your registration pending the conclusion of the Committee’s investigation.

The Committee requires you to provide it with the following information and documents:

1. A written statement signed by you describing in detail your actions in relation to the matters referred to in the complaint together with any explanations and comments you might like to add.

2. Written statements signed by any other person/s who may be able to assist you in responding to the complaint setting out [sic] what they have to say in as much detail as possible.

3. Detailed particulars of the ingredients of Pain and Femme

4. Copies of all your records relating to the purchase by you of the ingredients of the Pain and Femme including the source of supply, quantities purchased by you and cost.

5. Particulars of the relationship between your practice as a Veterinary Surgeon and the Company Stable Health Pty Limited.

6. All of your records relating to the events described in the complaint including:

a) Case cards;

b) Hospital sheets;

c) Diary entries;

d) Records of conversations with Mr Robb or any person on his behalf;

e) Radiographs, ultrasounds, lab reports and other diagnostic records;

f) Anaesthetic records;

g) Copies of your records of the prescriptions for the supply of the drugs;

h) Copies of any correspondence with any specialist/s or any other persons from whom a second opinion was sought or to whom a referral was made;

i) Copies of all correspondence between you and the complainant about the matters referred to in the complaint or in your response.

Please provide the information and documents to the Committee by 30 October 2003. The Committee may require you to produce further information after considering the material you produce in response to this letter.

There are formal requirements set out in the Veterinary Surgeons Act which relate to the investigation and what this Committee might do. I enclose an information sheet setting out basic information about the Committee. If you would like to have any further information about how the Committee operates, please do not hesitate to contact me.

Yours faithfully

Maria Linkenbagh

Secretary’

9 The Committee considered Dr Williamson’s written response. There were further exchanges of written questions and written replies. In March 2004 the Committee formulated an ‘interim report’. Dr Williamson was given an opportunity to present oral submissions, and did so on 27 May 2004. On their face these procedures comply with the requirements of s 28 of the Act.

10 Throughout the period from October 2003 to May 2004, however, Dr Williamson had been pressing through his solicitors for a copy of Dr McKenzie’s and Mr Murrihy’s letters. These requests were refused. He repeated his demands at the beginning of the interview on 27 May 2004. Eventually at the end of the Committee’s interview on 27 May 2004 he was provided with a copy of the letter. He was given the opportunity to make further written submissions, and did so. They were sent on 25 June 2004.

11 The Committee issued its ‘final report’ on 1 July 2004, followed a few days later by the referral to the Tribunal.

12 The following material is before the Panel: chronology of events relating to the investigation into the conduct of Dr Williamson; written submissions on jurisdiction from Dr Williamson; affidavit of Bassam Kazi, solicitor, Smith Monti (certain paragraphs only read); affidavit and bundle of Committee documents, and copies of two letter not included in the bundle, one from Smith Monti dated 7 April 2004 to the Committee, and the reply dated 16 April 2004 from the Committee.

13 Dr Williamson’s submission is that the Committee failed in its duty to accord him procedural fairness. The Committee, he submits, should have given him the text of the letter of complaint from Dr McKenzie, and done so in a timely way. He did eventually receive it but this was after the investigation had occurred and after he had exercised his rights to make written and oral submissions. He acknowledges that he was given a further opportunity to make written submissions after the interview by the Committee, but he asserts that these were not taken into account in crucial respects in the formulation of the final report prior to referral. The Act, in his submission, was breached in that he never had an opportunity to make both oral and written submissions on the contents of Dr McKenzie’s letter.

14 The Committee admits that it did not provide the original letter of complaint from Dr McKenzie until 27 May 2004. Its position is that it was not obliged to do so. Its submission is that it dealt with the respondent fairly.

15 The Committee contends that its letter of 10 October 2003 set out in detail the matters of concern to the Committee arising from its preliminary inquiry into Dr McKenzie’s complaint. Dr Williamson was, it is said, on notice in clear terms as to what the matters to be investigated were. It is also asserted that it was clear that Dr Williamson’s submissions of June 2004 were dealt with adequately in the final report.

16 As to the duties owed by a regulatory body investigating a complaint that raises issues of the adequacy of professional conduct, Dr Williamson relied on the decision of the Court of Appeal in Murray v Legal Services Commissioner (1999) 46 NSWLR 224. He also relied on two other cases: Lloyd v Veterinary Surgeons Investigating Committee(Total Eclipse – Jurisdiction) [2003] NSWADTAP 19 (the Lloyd Jurisdiction case); and Mahon v Air New Zealand Ltd [1984] AC 808.

17 In Murray v Legal Services Commissioner the Court upheld the submission that the Tribunal was without jurisdiction to hear professional disciplinary proceedings brought by the Legal Services Commissioner because of the Commissioner’s failure to observe procedural fairness. In that instance the Commissioner had failed, at any time, to provide the solicitor with a copy of the details of the complaint.

18 Priestley JA described the deficiencies in the conduct of the Legal Services Commissioner at [2]:

‘[T]he stage was never reached where [the solicitor] could be reasonably sure that he had been told all the details of the complaint that had been made about him. Although [the solicitor] knew a number of features of the complaint, the actions of the Commissioner in never either making available the full terms of the complaint to him or stating with reasonable precision just what it was that he was investigating, left [the solicitor] in the position where he was entitled to wait until one of those things had happened before making any representations he wished to make to the Commissioner.’

19 There Priestley JA is applying the common law. There was also a statutory basis for reaching the same conclusion.

20 His Honour referred to the following provision of the Legal Profession Act 1987, s 155:

‘ 155 Decision after investigation of complaint

(1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section.

(2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.

(3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead:

(a) reprimand the legal practitioner, or

(b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner.

(4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.

(5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or the successful mediation of the consumer dispute before the decision takes effect.

(6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection.’

21 His Honour continued at [3-4]:

‘The second obstacle is that the terms of s 155 of the Legal Profession Act 1987 make it clear that after the Commissioner has completed an investigation into a complaint he must consider which of the different possible steps available to him under the section he will take. In my opinion the section necessarily requires the Commissioner to give an opportunity to the legal practitioner to be heard in regard to the complaint which the Commissioner has investigated, before the Commissioner decides which step to take. In the absence of the legal practitioner’s having been given an opportunity to be heard on the complaint I do not see how it is possible for the Commissioner to arrive at a proper decision under s 155 on which step he should take.

If [the solicitor] had at any stage been told the whole substance of the complaint that had been made against him, I doubt whether he would have been able to make out his claim of procedural unfairness. … [The solicitor] had never been told the entirety of what it was the Commissioner was investigating. He knew it in part, and it has turned out that that part was the substance of what the Commissioner was investigating, but he was never told this by the Commissioner and was never to know, until the complaint and the ancillary documents were eventually produced in the course of the proceedings [before the Legal Services Tribunal], the full extent of what it was that the Commissioner was investigating pursuant to the complaint.’

22 In the present case, under s 28(1)(c) of the Act the Committee must refer the complaint to the Tribunal ‘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’. In contrast under s 155(2) of the Legal Profession Act the investigating body must refer the complaint to the Tribunal if it is satisfied that there is a ‘reasonable likelihood that the legal practitioner will be found guilty of unsatisfactory professional conduct or professional misconduct’ (emphasis added).

23 In his judgment Sheller JA saw as significant the distinction between cases where the investigating body is called upon to reach a ‘prima facie’ conclusion and those where the standard is higher. He said at [88]:

‘The duty of the Council or the Commissioner to act either by instituting proceedings in the tribunal or in some other way does not arise on satisfaction or opinion that a prima face case has been made out, so that any material favouring the legal practitioner may be ignored: compare Wentworth v Rogers [1984] 2 NSWLR 422 at 429 and 436. The duty of the Council or Commissioner is to predict the outcome of a hearing in the tribunal: compare Saffron v Director of Public Prosecutions (1989) 16 NSWLR at 400, 402, 411. Ordinarily, a factor in this prediction would be the legal practitioner’s answer to the complaint, if the legal practitioner gives one, or the failure to answer the complaint, if the legal practitioner gives none. These matters lead me to the conclusion that a Council or the Commissioner cannot and does not reach the required satisfaction without providing the legal practitioner with a copy of the complaint and calling upon the legal practitioner to respond to it.’

24 He continued at [90]:

‘In my opinion, proper performance of the duty and proper exercise of the powers conferred on the Commissioner by s 155 require that, before the Commissioner completes an investigation into the complaint against the legal practitioner and decides how in accordance with s 155 the complaint is to be dealt with, the legal practitioner be given an opportunity to see a copy of the complaint and answer it and to advance arguments against it and in favour of the lesser charge than that of professional misconduct or in mitigation.’

25 Sheller LJ then returned again to the question of whether a requirement merely to reach a prima facie state of satisfaction made a difference to what was required. At [92] he said:

‘In this case a matter of significant difference is that the Commissioner’s duty is not merely to determine whether or not there is a prima facie case but to reach a degree of satisfaction and make decisions as to the course then to be followed. In that context the legal practitioner has an interest to press not only against the initial finding but also against the following of one particular course rather than another.’

26 He then said that, in the past, normally the relevant investigating bodies had given the legal practitioner a right to be heard at this stage; and that in any case such was required as a matter of statutory construction. He continued, at [92]:

‘Necessarily this carries with it the right to see a copy of the complaint made. The failure to provide a copy of the complaint to [the solicitor] and give him the opportunity to respond vitiates the institution of the proceedings under s 155.’

27 Stein JA said at [109]:

‘[A]s a matter of plain statutory construction and in the context of the Act, the legal practitioner is entitled to see a copy of the complaint and have an opportunity to answer it in order to seek to convince the Commissioner that he should not form the opinion under subs (2) or might proceed to reprimand the practitioner or dismiss the complaint under subs (3) or subs (4).’

28 In the Lloyd Jurisdiction case the Appeal Panel set aside a decision of a Disciplinary Panel inquiring into the veterinary surgeon’s conduct that it had jurisdiction. The case deals with the requirements of s 28 of the Act. The Disciplinary Panel had asserted jurisdiction in circumstances where the practitioner had not been given the opportunity to make written representations to the Committee. The Disciplinary Panel was of the view that no substantive unfairness had resulted as the practitioner did make oral representations to the Committee at interview. The Appeal Panel applied Murray and considered that the requirement that the practitioner be given the opportunity to make written representations was mandatory and was a precondition to a valid referral by the Committee. In the circumstances it found the referral to be invalid, and therefore the Disciplinary Panel was without jurisdiction.

29 Mahon is a Privy Council decision dealing with the requirements of procedural fairness as they apply to an official inquiry (in this instance an inquiry commissioned by the New Zealand government into the crash of an Air New Zealand Antarctic joy flight resulting in over 200 deaths). The Privy Council held (per Lord Diplock at 820) that before making public findings that might harm the reputation of a person the investigator must give the person a reasonable opportunity to be heard in relation to the contemplated unfavourable finding. This ruling was significant at the time because there had been authority for the proposition that an inquiry that merely results in recommendations for action (say prosecution for criminal offences) is not required to accord procedural fairness.

30 Mr Bedrossian’s submission was that procedural fairness had been denied to Dr Williamson both at common law and under the Act.

31 In the Panel’s view it is regrettable that the Committee did not furnish Dr Williamson with the letters of complaint from Dr McKenzie and Mr Murrihy. We cannot see why that was a problem. There was nothing in our view intrinsically confidential about the contents of the letters; nor is there anything to indicate that the writers might have wished their letters to be withheld. Our conclusion, however, is that the requirements of procedural fairness have not been infringed.

32 Here third parties brought certain matters of concern to the attention of the Committee. Dr McKenzie’s letter was recorded in the register of complaints. There was a further letter of complaint from Mr Murrihy for the Thoroughbred Racing Board. The provisions of the Act can cause confusion as to what the connection is between the originating complaint and the complaint referred for inquiry. In this case, in our view the proper characterisation of the circumstances is that the complaint referred for inquiry is that of 10 October 2003, despite the terms of the Committee’s letter of referral.

33 The Act contemplates the possibility of complaint by the Committee. That complaint can be raised by the Committee after it has undertaken inquiries into a letter of complaint from a third party. Here the Committee commenced an investigation of the complaint made by Dr McKenzie. As is apparent from its letter of 10 October 2003 it did not proceed with many of the matters raised by Dr McKenzie.

34 What occurred, in our view, is that it engaged in the process permitted by s 27(2). We acknowledge that the records of the Committee do not cast its conduct in terms of s 27(2). Section 27(2), to reiterate, provides:

‘(2) Where in the course of the investigation of a complaint against a registered veterinary surgeon:

(a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation:

(i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or

(ii) a complaint could be made to it against another registered veterinary surgeon, and

(b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26,

the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26.’

35 The Committee committed to Dr Williamson for reply only some of the matters first raised by Dr McKenzie. It formulated a specific set of allegations for that purpose. Its subsequent procedures (the letters seeking clarification of certain matters, the consideration of written submissions at various stages, the preliminary report, the interview and the final report) were all directed to the matters outlined in the letter of 10 October 2003.

36 It follows from these conclusions that we consider that the requirements of s 28 were observed.

37 We turn to the submissions dependent on common law principles.

38 At common law, procedural fairness does not always require that a copy of a complaint be given to the person complained about, so long as the substance of the allegations are conveyed: see per Priestley JA in Murray, cited above.

39 In a different context, the New South Wales Court of Appeal rejected the submission that procedural fairness requires an authority to adopt an “open file” approach, giving copies of all relevant documents to affected parties: Minister for Local Government & Anor v South Sydney City Council [2002] NSWCA 288 at 44 per Spigelman CJ and at 251 per Mason P. The duty is rather that “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made” (Kioav West (1985) 159 CLR 550 at 629 per Brennan J; Muin v Refugee Review Tribunal [2002] HCA 30 at [123] per McHugh J; [227] per Kirby J; cited in South Sydney City Council at [260] per Mason P).

40 Mr Bedrossian contends that his client would have been in a position, had he known of the McKenzie complaint at an early stage, to put submissions to the Committee that might have disposed of the matter. We understand that Dr Williamson is of the view that the conduct in issue cannot as a matter of legal interpretation contravene the relevant statutes, and therefore cannot amount to professional misconduct. He was able to put these views once he received the Committee letter of 10 October 2003; and has (through his legal representatives) done so vigorously. In our view no substantive unfairness occurred.

41 Mr Bedrossian also drew attention to certain contents of the letter which, he said, if known would have assisted his client in preparing his response. There was a reference in Dr McKenzie’s letter to the veterinary surgeon working at the Equine Laboratory at Randwick (Dr Suann) who had possession of certain vials. Dr Williamson contends that, as he did not have this information when first conveyed to the Committee, he was prejudiced. We are not satisfied on the material before us that Dr Williamson suffered any prejudice of significance from not immediately being given that information. It appears clearly in the material furnished with the letter of 10 October 2003.

42 The next matter Mr Bedrossian refers to is an alleged lack of adequate particulars in the notice finally given to him, that of October 2003. The letter contained five allegations, but lacked within that text detailed particulars. There were a number of attachments. We are satisfied from reading the whole of the relevant material that the allegations were adequately conveyed to him. The attachments include the report of the stewards inquiry.

43 The next matter raised by Mr Bedrossian concerns the procedures that followed the Committee examination of 27 May 2004. This objection depends on the view that the complaint being referred for inquiry was that of Dr McKenzie. In our view the complaint being referred for inquiry is that constituted by the Committee’s letter of 10 October 2003 as revised by the final report. Moreover the matters raised by Dr Williamson’s solicitors, after examining Dr McKenzie’s letter, in their submissions letter of 25 June 2004 were not, in any significant way, new.

44 In Murray’s case, it was critical for Priestley JA that ‘the stage was never reached where Mr Murray could be reasonably sure that he had been told all the relevant details of the complaint that had been made about him’ (at [2]). The complaint with which the Committee was proceeding was clearly outlined in its letter of 10 October 2003 which attached the totality of the material before the racing stewards. It would have been plain, we consider, to Dr Williamson that what was being examined were certain aspects of his role in dispensing stock medicines to a trainer in circumstances where he had not examined the animals to whom they were to be administered. Unlike the practitioner in Murray’s case, Mr Williamson was told ‘the whole substance of the complaint’ (per Priestley JA at [4]) even though he was not given the text of the letter from Dr McKenzie until very late.

Order

Respondent’s objection to jurisdiction dismissed.