Spate v Veterinary Practitioners Board of NSW [2017] NSWCATOD 139

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Spate v Veterinary Practitioners Board of NSW [2017] NSWCATOD 139 Hearing dates: 14 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member Dr T Carter, General Member M Bolt, General Member Decision: (1) The decision of the respondent of 18 April 2017 is affirmed. Catchwords: Application for administrative review of a decision of the Veterinary Practitioners Board of New South Wales – Principles to be applied - the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. Statement of reasons prepared pursuant to s 49 of the Administrative Decisions Review Act 1997 (NSW) – whether a document prepared for the purpose of the proceedings and not at the request of the aggrieved person and claimed to be a statement of reasons prepared pursuant to s 49 of the Administrative Decisions Review Act 1997 is in fact such a statement. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Professionals Act 2004 (ACT) Health Professionals Regulation 2004 (ACT) Veterinary Practice Act 2003 (NSW) Cases Cited: Veterinary Practitioners Board of New South Wales v Gallagher; Veterinary Practitioners Board of New South Wales v Gallagher [2015] NSWSC 1233 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Category: Principal judgment Parties: Dr Janet Spate (Applicant) Veterinary Practitioners Board of New South Wales (Respondent) Representation: Counsel: Mr Roberts (Applicant) Ms Climo (Respondent) File Number(s): 2017/00163773

REASONS FOR DECISION

Abbreviations For convenience, we shall use the following abbreviations in these reasons. * the NSW Board (or respondent): the Veterinary Practitioners Board of NSW * the NSW Register: the Register of Veterinary Practitioners maintained by the NSW Board * the ACT Board: Veterinary Surgeons Board of the Australian Capital Territory * the ACT Register: the Register of Veterinary Practitioners maintained by the ACT Board * NRVR: National Recognition of Veterinary Registration * ADR Act: Administrative Decisions Review Act 1997 (NSW) * NCAT Act: Civil and Administrative Tribunal Act 2013 (NSW) * VP Act: Veterinary Practitioners Act 2003 (NSW) * Heads of Agreement: A document titled Heads of Agreement and dated entered into on behalf of the applicant and the ACT Board on 15 June 2016 * Deed: A Deed of Settlement entered into between the ACT Board and the applicant dated 20 June 2016 * Summary 1. This is an application for administrative review of a decision of the respondent of 18 April 2017 (the Decision). On that day, the respondent held a board meeting at which it resolved not to register the applicant as a veterinary practitioner. The minutes of that meeting relevantly state: The Board refused to restore Ms Janet Spate to the Register in accordance with the Act s 18(c) and s 19(3)(e) in that a condition was previously imposed on her registration in the ACT which effectively prevented her from registering in that jurisdiction until 19 October 2018. Accordingly, Ms Spate is not eligible for registration in New South Wales until 19 October 2018. 1. While there was later correspondence to the applicant confirming the Decision, no other reasons for the Decision were provided to her. Although the applicant had the right pursuant to s 49(1) of the ADR Act to seek written reasons for the Decision, she did not do so. However, the respondent provided to this Tribunal prior to the hearing a document it described as a "Statement of Reasons pursuant to s 49(1) Administrative Decisions Review Act 1997". For the reasons given below, we do not accept that this was in fact a statement pursuant to s 49 of the ADR Act. 2. We do not accept that either s 18(c) of s 19(3)(c) of the VP Act, referred to in the minutes, either individually or collectively, provide a proper or adequate basis on which to refuse to register the applicant as a veterinary practitioner in NSW. 3. However, our task, in accordance with s 63 of the ADR Act, is to decide what is the correct and preferable decision having regard to the material now before us including any relevant factual material, and any applicable written or unwritten law. For the reasons we give below, we consider that the correct and preferable decision is for the respondent to refuse to register the applicant. Accordingly, the decision of the respondent is affirmed.

Facts 1. Save for a number of documents which were admitted into evidence over the objection the parties, most of the documents relied on by the parties were admitted without objection. Accordingly, we make the following findings. 2. The applicant graduated with a Bachelor of Veterinary Science from the University of Melbourne in 1967. 3. The applicant was first registered as a veterinary practitioner in NSW in 1970, and in the ACT in 1973. The applicant was registered as a veterinary surgeon in the ACT until 16 October 2016. 4. The applicant ceased to be a registered practitioner in NSW in 2012, when she was removed from the NSW Register on the commencement of the NRVR. 5. Following a "history of complaints" concerning the applicant "dating back to the 1980s", [1] on 27 July 2009, the ACT Board placed the following conditions on the applicant's right to practise in the ACT: 1. Not to perform any abdominal surgery, including any de-sexing female cats, or dogs; 2. Not to purchase, hold or keep at her place of practice, or prescribe, any drug in Schedule 8 of the Medicines and Poisons Standard; 3. Must not deliver any pup or kitten by caesarean section; 4. Must permit and assist a person nominated by the Registry of the ACT Board to inspect, at her place of practice, any clinical records of her practice. 1. Between 2009 and 2013, the ACT Board received a further six complaints concerning the applicant. 2. In December 2013, the ACT Board decided to establish a Professional Standards Panel (PSP) to consider the complaints. 3. On or about 25 March 2015, the PSP issued a report. The PSP relevantly found: 1. In relation to a dog named "Milky": 1. that allegations of failing to meet a required standard of practice, failing to provide services with reasonable care, skill and competence and failing to maintain relevant knowledge and competence to provide safe and effective services were established, in contravention of the Health Standards of Practice; 2. made no findings in relation to seven other allegations; and 3. cautioned the applicant pursuant to s 122(2)(a) of the Health Professionals Act 2004 (ACT); 1. In relation to a dog named "Scooby", made no adverse findings, and took no action in relation to the applicant's treatment of Scooby; 2. In relation to a dog named Coco/Dakota, the PSP: 1. found that an allegation that the applicant failed to meet a required standard of practice, failing to provide services with reasonable care, skill and competence and failing to maintain relevant knowledge and competence to provide safe and effective services, in that that the applicant performed a caesarean on Coco/Dakota on 26 August 2010 in contravention of the conditions placed on her registration, was established, in contravention of s 137 of the Health Professionals Regulation 2004; 2. found that the applicant had contravened the required standard of practice or the suitability to practise requirements under s 122 (1)(a) of the Health Professionals Act 2004 (ACT); 3. noted that the failure to comply with a requirement of a condition on a professional's registration while providing the service may constitute a criminal offence; [2] 4. reprimanded the applicant pursuant to s 122(2)(a) of the Health Professionals Act 2004 (ACT); 1. In relation to a dog named "Narla", made no adverse findings, and took no action in relation to the applicant's treatment of "Narla"; 2. In relation to a dog named Zed: 1. found that eight allegations of failing to meet a required standard of practice, failing to provide services with reasonable care, skill and competence and failing to maintain relevant knowledge and competence to provide safe and effective services were established, in contravention of the Health Standards of Practice and/or the Australian Veterinary Association Code of Professional Conduct. 2. found that two other allegations were not established; and 3. reprimanded the applicant pursuant to s 122(2)(a) of the Health Professionals Act 2004 (ACT); 4. stated that the applicant's treatment of Zed amounted to a "litany of failures", and caused the animal significant distress and pain, leading to its death in "rather unpleasant circumstances"; 5. found that the applicant's use of "off-label" use of drugs to be dangerous and inappropriate, and her assertion that she did not administer Tolfedine to be "clearly inaccurate"; 6. in summary, found "numerous failures" on the applicant's part, including diagnosing prostate cancer when no diagnostic steps were undertaken, failing to accurately examine Zed, treating Zed inappropriately, failing to prepare Zed for surgery with proper aseptic procedures and undertaking no pre-anaesthetic testing. 1. The PSP decide to require the applicant under s 122(2)(d) of the Health Professionals Act 2004 (ACT) to take part in a review of her practice. 2. On 11 August 2015, the ACT Board: 1. Issued the two reprimands in respect of Zed and Coco/Dakota, and a caution in respect of Milky. 2. Placed the following conditions were placed on the applicant's registration: 1. that she only use, administer or prescribe medications in recommended dosages and not administer or prescribe "off-label" use of any medication; 2. that she not use, administer or prescribe large animal formulations of a drug on small animals where a small animal formulation is registered for use in Australia. 1. These conditions were said to be effective from the day the applicant received a copy of the PSP report in April 2015. [3] 2. In 2014 and 2015 the ACT Board received a further seven complaints concerning the applicant which were not the subject of deliberations by the PSP. 3. On 9 October 2015, the ACT Board filed an application for occupational discipline against the respondent in the ACT Tribunal (application OR 15/39). This application was made pursuant to ss 42 and 86 of the Health Professionals Act 2004 (ACT). The application concerned the veterinary services provided by the applicant in respect of a total of 10 dogs and cats, the standard of the applicant's premises and her supply of Schedule 4 restricted veterinary medicines. The ACT Board sought orders that the applicant be reprimanded, that her licence to practise as a veterinary surgeon be cancelled, and that she be disqualified from applying for a further licence for a period of two years. 4. The evidence relied on by the ACT Board included the folder of evidence tendered without objection in the present proceedings and marked R12, and the expert report of Dr Peter Alexander marked R11. 5. On 15 June 2016, Dr Chris Ward SC (senior counsel on behalf of the applicant) and Mr Ken Archer (counsel on behalf of the ACT Board) executed the Heads of Agreement whereby: 1. The ACT Board agreed to continue the registration of the applicant until 19 October 2016, subject to existing restrictions; 2. The applicant agreed that from midnight on 19 October 2016 the applicant's registration as a veterinary surgeon would cease; 3. The applicant undertook "with immediate effect" that she would not seek registration as a veterinary surgeon in the ACT before 19 October 2018. 4. The ACT Board agreed, subject to a formal deed being entered into, to discontinue its application. 1. The application was discontinued by the ACT Board on 20 June 2016, and dismissed by the ACT Tribunal, consequent on the applicant signing the Deed. The Deed provided, inter alia, that in consideration of the ACT Board discontinuing the Proceedings, the applicant undertook not to seek re-registration as a veterinary surgeon within the Act within a two year period from 19 October 2016. The purposes of the Deed were relevantly stated as: 2. The parties acknowledge that the proceedings numbered OR 15/39 (Proceedings) were brought by the Board in order to seek orders set out in the Board's application of 9 October 2015 as amended on 12 December 2015. 3. The parties also acknowledge that the registration of Dr Spate to practise as a veterinary surgeon would fall for renewal as of 1 July 2016. 4. Both parties agree that Dr Spate's registration be continued until 19 October 2016, subject to existing conditions. That period will allow Dr Spate the opportunity to restructure her involvement in her practice other than as a practising veterinary surgeon. The parties acknowledge that the present conditions satisfactorily address public safety issues for that 18 week period. 5. Dr Spate acknowledges that her right to practise as a veterinary surgeon will cease at the end of 19 October 23016. The parties acknowledge that it is the intention of Dr Spate to work as a veterinary nurse after 19 October 2016. . . . 7. Dr Spate acknowledges that the Board has agreed to discontinue the present proceedings before ACAT in which occupational discipline orders are sought, in reliance on undertakings given by Dr Spate to the Board in the Heads of Agreement and this Deed. 1. The Deed then goes on to provide in cl 1 that: In consideration of the board discontinuing the Proceedings, Dr Spate undertakes to the Board that she will not seek re-registration as a veterinary surgeon within the ACT within a two year period from 19 October 2016. Dr Spate acknowledges that any proceedings brought by her in relation to re-registration before the end of that two year period will for the purposes of s 32 of the ACT Civil and Administrative Tribunal Act 2008 be: (a) frivolous or vexatious; or (b) lacking in substance. 1. The Deed was signed by the applicant and witnessed by her legal representative. 2. By application dated 3 October 2016, the applicant applied to the respondent for restoration to the Register. The applicant stated that she was reducing the "small animal part" of her practice, but wished to continue the "mobile large farm animal part of the practice for a while longer". 3. The application was accompanied by an Annual Return for a Veterinarian for the period 1 April 2015 to 31 March 2016. The Annual Return included a declaration completed by the applicant, and in which she was relevantly to declare whether or not she had been convicted of an offence under the law of New South Wales, or the Commonwealth, that imposed a requirement on her capacity as a veterinary practitioner. She "ticked the box" marked "yes" and stated "ACT Conditional license – NSW Register is already aware" (see section (a)(ii)). In section (c) the applicant answered "yes" to the question "[have] you had any suspension or cancellation of, or position of conditions on, the licence, registration or other authorisation in relation to the practice of veterinary science in another jurisdiction" during the period of the annual return. The details of these conditions were stated as "limits on small animal surgery". 4. On 10 October 2016, the applicant applied to renew her registration with the ACT Board. In a letter dated that day she stated: It would appear that on all views I have current registration as a veterinary surgeon subject to conditions imposed by the board. 1. We pause to observe that that statement is correct, at least until 19 October 2016. However, the applicant continues: It would appear that on all views I have current registration as veterinary surgeon subject to conditions imposed by the Board. Negotiations have taken place during 2016 with regard to my registration. However in the absence of deed which would detail all relevant matters and upon which a document, dated 15/6/16 and entitled 'Heads of Agreement', is dependent, I have advice that my registration will be foot for the 2016-2017 financial year. The future may of course change this but with the past support and advice from the board I have addressed matters of concern and believe that I can professionally continue my lifetime devotion to animal welfare, which is the only career for which I am qualified. This notice is neither an application not a commencement of any proceedings but an indication of my position now and into the immediate future. I therefore being to your attention that I will act as a veterinary surgeon, subject to conditions, until further negotiations are initiated. I have attended to costs of registration and professional indemnity. 1. The comments made by the applicant appear on their face to be at odds with the terms of the Heads of Agreement, the applicant's signing of the Deed and her undertakings contained in it. 2. On 12 October 2016, the ACT Board responded to the applicant's application for registration, reminding her that the heads of Agreement and the Deed recorded her undertaking not to seek registration as a veterinary surgeon before 19 October 2018. The ACT Board included a copy of the heads of Agreement, and the Deed, and returned her registration form and her cheque for registrations in the sum of $188.00. 3. As the applicant gave no evidence to the Tribunal, we have no understanding of why she made the application for registration in the circumstances outlined. 4. On 24 March 2017, the respondent wrote to the applicant, noting receipt of her application. The respondent stated: The Board recently noted that you have been removed from the Register in the ACT for two years. The Veterinary Practice Act 2003 (s 18(c)) provides that the Board may refuse your application for registration under these circumstances. Accordingly, you are not able to be registered in NSW as a veterinarian until such time that you are able to register in the ACT. 1. On 10 April 2017, the ACT Board provided a Certificate of Professional Standing to the respondent. That certificate relevantly stated that: 1. The applicant was not currently registered as a veterinary surgeon in the ACT. 2. The applicant had previously been registered for the period ending 19 October 2016. 3. Eight conditions had been placed on the applicant's registration. In summary, these conditions: 1. prevented the applicant from performing any abdominal surgery on small or large animals (including any de-sexing of dogs or female cats, and any caesarean sections); 2. prevented the applicant from performing any surgical procedure (other than minor surgery), any procedure requiring general anaesthesia 3. prevented the applicant from purchasing, holding or keeping any Schedule 8 drugs; 4. required the applicant to permit inspection of her practice and her clinical records; 5. required the applicant to only use, administer or prescribe medications in recommended dosages and not administer or prescribe "off-labelled" use of any medication; 6. required the applicant to not use, administer or prescribe large animal formulations of the drug and small animals where a small animal formulation is registered for use in Australia; 7. that the applicant's registration would cease at the end of 19 October 2016, and 8. the applicant would not seek registration as a veterinary surgeon within the ACT before 19 October 2018. 1. The letter is signed by Ms Nikki Pulford, the Executive Officer of the ACT Board. We note that the applicant's representative appeared to dispute that the seventh and eighth conditions above had ever been placed on the applicant's registration. We reject that submission. The placing of those conditions on her registration in the ACT was consistent with her undertaking to the ACT Board and was reflected in both the Heads of Agreement and the Deed. We note that the applicant's representative appeared to contend, somewhat weakly, that the Deed itself was never executed. In support of this submission the applicant relied on document A6, being an email from the applicant's solicitors to her dated 27 September 2016. That email states that "No deed was ever entered into beyond the heads of agreement, as the [ACT Board] demanded extra things and otherwise refused to engage". However, there was before us a copy of the Deed, signed by the applicant, which was tendered by the respondent with no objection by the applicant, and formed Annexure H to Exhibit R8. In the circumstances, we reject the applicant's submission that the Deed was never executed. 2. On 18 April 2017, the respondent held a board meeting at which it considered the application of a number of applicants for restoration to the NSW Register. The respondent resolved to restore various applicants to the Register, with the exception of the applicant. The minutes state: The Board refused to restore Ms Janet Spate to the Register in accordance with the Act s 18(c) and s 19(3)(e) in that a condition was previously imposed on her registration in the ACT which effectively prevented her from registering in that jurisdiction until 19 October 2018. Accordingly, Ms Spate is not eligible for registration in New South Wales until 19 October 2018. 1. On 1 May 2017 the respondent wrote to the applicant, noting that, at its meeting on 18 April 2017, it had considered her application for registration and a Letter of Professional Standing from the ACT Board. The NSW Board stated that it resolved to refuse her application for restoration in accordance with ss 18(c) and 19(e) of the VP Act in that a condition imposed by the ACT Board which prevented her from being registered in that jurisdiction before 19 October 2018. The respondent stated that, as noted in its previous letter of 24 March 2017, the applicant was not able to be registered in NSW as a veterinarian until such time she was able to be registered in the ACT. Accordingly, the applicant was not able to refer to herself as a veterinarian or practice as a veterinarian in NSW. 2. On 22 August 2017, the respondent again wrote to the applicant. The letter states that the respondent was first registered with it on 10 July 1970, and that conditions were placed on her secondary registration on 18 August 2009 after notification from the ACT Board. The letter states that the respondent's name was removed from the NSW Register maintained by the respondent on 30 March 2012 due to the introduction of the National Recognition of Veterinary Registration. Finally, the letter notes that the respondent was not a registered specialist.

Application for review of the Decision 1. On 29 May 2017, the applicant filed with the Tribunal an Administrative Review Application Form. The grounds for the application are stated as follows: 1. By letter dated 1 May 2017 The Board resolved to refuse my application for registration "in accordance with the Veterinary Practice act 2003 s.18(c) and s.19 (e)" (sic). 2. There has been no relevant order by the ACT Civil and administrative Tribunal (ACAT) with regard to occupational discipline, there has been no order for suspension, cancellation or for the imposition of any condition which would amount to a removal of registration, and it is submitted that ACAT was the only body with authority to do so (s 60 ACT Veterinary Surgeons act 2015; s 66 ACT Civil and Administrative Tribunal Act 2008). 3. The reason given by the Board refusal therefore has no force. 4. I seek to appeal the Board's refusal of my application. (spelling and "sic" as in original) 1. Pursuant to directions of the Tribunal, the applicant provided documents to the Tribunal and the respondent on 28 August 2017. These documents included a large number of supportive references of clients of the applicant. It appears that these references were not prepared for the applicant's present application. The references are either dated in 2016 or undated, and appear to have been prepared for the disciplinary proceedings in the ACT. 2. The respondent also filed documents pursuant to directions. Included in the respondent's materials filed on 16 August 2017 was a document described as a "Statement of Reasons pursuant to s 49 (1) Administrative Decisions Review Act 1997". Section 49 of the Administrative Decisions Review Act 1997 Act (NSW) (the ADR Act) relevantly provides: 49 Duty of administrator to give reasons on request (1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. 1. This document provided is undated and unsigned and states as follows: Veterinary Practitioners Board NSW Determination of Janet Spate's Application for Registration in NSW Pursuant to s49(1) Administrative Decisions Review Act 1997 The following reasons are provided as the basis for the Veterinary Practitioners Board's decision of 18 April 2017 to refuse the Applicant registration in NSW. 1. An Application for Restoration to the Register was received from the Applicant on 19 October 2016. The Applicant's Annual return was also received dated 3 October 2016. 2. In the Application, the Applicant stated she had been registered as a veterinary practitioner in the ACT. 3. The Application was not accompanied by a Letter of Professional Standing from the Veterinary Surgeons Board ("the ACT Board"). 4. The Registrar of the Veterinary Practitioners Board ("the NSW Board") sought from the Applicant a Letter of Professional Standing from the ACT Board. 5. The NSW Board received a Certificate of Professional Standing from the ACT Board dated 10 April 2017. 6. On 18 April 2017, the NSW Board met and considered Ms Spate's application for registration. 7. At its meeting on 18 April 2017, the NSW Board considered the following documents: a) Application for Restoration to the Register dated 19 October 2016, b) Ms Spate's Annual Return dated 3 October 2016, c) Certificate of Professional Standing from the ACT Board 10 April 2017, and, d) Email correspondence from the Applicant dated 10 April 2017. 8. The Certificate of Professional Standing from the ACT Board noted that the Applicant was not presently registered in ACT and that her registration ceased to have effect on 19 October 2016. The Certificate indicated that a condition was in place that prevented the Applicant from seeking re-registration in the ACT until 19 October 2018. 9. It was the decision of the NSW Board that the effect of the above Certificate was that the Applicant's authority to practice veterinary science had been suspended or cancelled in another State or Territory, namely the ACT. 10. As the Applicant fell within s 18(c) of the Veterinary Practice Act 2003 the NSW Board decided to refuse to register the Applicant as a veterinary practitioner in NSW.

Administrative review by the Tribunal 1. The administrative review jurisdiction of this Tribunal is set out in s 30 of the NCAT Act. That section states that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. We note that "administrator" is defined in s 8 of the ADR Act as the person or body that makes (or is taken to have made) the decision under enabling legislation. 2. Relevantly, s 9 of the ADR Act provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. 1. Section 34(1)(a) of the Veterinary Practice Act 2003 (NSW) in turn provides that the Tribunal may review certain registration decisions, namely: (1) A person may apply to the Tribunal for a review of any of the following decisions of the Board under this Part: (a) a decision to refuse to grant the person full registration, (b) a decision to impose conditions on the full registration of the person, (c) a decision to remove the person's name from the Register. 1. It was common ground, and we accept, that the applicant's application to the respondent was in fact an application to grant her full registration, which application was refused on 18 April 2016. We accept therefore that the Decision is an administratively reviewable decision (see s 30(5) of the NCAT Act) and a decision of an administrator (see s 8 of the ADR Act) over which the Tribunal has administrative review jurisdiction. 2. Section 63 of the ADR Act provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Submissions

The applicant's submissions 1. The applicant's principal submissions may be summarised as follows. 1. First, the circumstances envisaged in s 18(c) of the VP (namely the applicant has been refused registration, licensing or other authorisation as a veterinary practitioner in another State or Territory or another jurisdiction prescribed by the regulations or has had his or her authority to practise veterinary science suspended or cancelled in another State or Territory or another jurisdiction prescribed by the regulations) are not established, and does not afford a basis for granting the applicant full registration in NSW. 2. Related to this submission are two further submissions, namely that: 1. the ACT Board never had the authority to suspend or cancel the applicant's registration; 2. the entering into of the Deed of Settlement did not a basis on which to place conditions on the applicant's registration in the Australian Capital Territory. 1. Secondly, s 19(3)(c) of the VP Act (namely that the respondent may impose a condition on registration only if the respondent is satisfied that the condition is warranted, having regard to the health or welfare of animals or any particular type of animals) is not relevant, or established, and does not afford a basis for granting the applicant full registration in NSW.

The respondent's submissions 1. The respondent provided detailed written submissions, which its counsel Ms S Climo amplified during the course of the hearing. A summary appears at [49] of these submissions: . . . the Respondent relies upon by the following three main submissions: [1] The cancellation of the Applicants registration in the ACT was secured by her agreement to the 'Heads of Agreement' and Deed. The NSW Board's decision to 'refuse' the Application for 'Restoration to the Register' was a direct consequence of that binding agreement. [2] Dr Spate's conduct in not disclosing the contents and effect of the Deed in the Application to the NSW Board fell short of accepted professional conduct as a veterinary practitioner. The material relied upon for this submission enliven s18(a) of the Veterinary Practice Act 2003 as a relevant consideration for the tribunal. [3] The history of complaints, previous conditions, caution and reprimands imposed on Dr Spate registration are additional facts that the Tribunal can consider when determining the 'correct and preferable' decision. 1. In addition, while not appearing in the written submissions, Ms Climo made oral submissions that the Decision was one made in accordance with s 19(3)(c) of the VP Act, although she conceded that this ground was more difficult to establish than s 18(c). 2. The respondent submits that the Decision was one made in accordance with s 18(c) of the VP Act. The respondent submits that this was on the basis that the Certificate of Professional Standing received by the Board disclosed that the parties in the ACT had entered into a binding agreement resulting in Dr Spate's registration being cancelled for a two-year period. This submission is based on the applicant's undertaking to the ACT Board, as disclosed in the Heads of Agreement and the Deed, that the applicant undertook that she would not seek re-registration as a veterinary surgeon within the ACT within a two-year period from 19 October 2016. The respondent submits that s 18(c) was established by reason of: 1. The applicant having been refused registration in the ACT at the time the Decision was made; 2. The applicant's registration being suspended or cancelled in the ACT; and 3. The applicant being refused registration in the ACT after the Decision was made.

Consideration

Preliminary issue 1. As we discussed with the parties during the hearing, we consider that there is a threshold issue in relation to the document titled "Statement of Reasons pursuant to s 49(1) Administrative Decisions Review Act 1997". 2. Section 49 of the ADR Act provides that: 49 Duty of administrator to give reasons on request (1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. 1. The respondent's counsel told the Tribunal that no such request had ever been made to the respondent. The document had been provided for assistance to the Tribunal, and to provide a context for the basis of the Decision. 2. While we understand the motive in the respondent preparing the document, that document is not in fact a statement as envisaged by s 49. No request for it was ever made by the applicant, it is undated, it has not been signed or otherwise adopted by the eight decision makers who constituted the respondent on 18 April 2017. It can only be understood as a submission of the respondent, and cannot substitute as reasons for the Decision of the respondent. To take paragraph 9 of the statement by way of example, it is stated that "it was the decision of the NSW Board that the effect of the above Certificate was that the applicant's authority to practices veterinary science had been suspended or cancelled in another State or Territory, namely the ACT". While this may accurately describe the effect of the respondent's decision, the paragraph cannot be understood as a reason for that decision (which is the function of a s 49 statement). 3. As we have noted above, the minutes of the meeting of the respondent of 18 April 2017 state that: The Board refused to restore Ms Janet Spate to the Register in accordance with the Act s 18(c) and s 19(3)(e) in that a condition was previously imposed on her registration in the ACT which effectively prevented her from registering in that jurisdiction until 19 October 2018. Accordingly, Ms Spate is not eligible for registration in New South Wales until 19 October 2018. 1. Thus two reasons were advanced for the respondent's conclusion that the applicant was not eligible for registration. We shall deal with each in turn. 2. The first reason is that the respondent refused to register the applicant "in accordance with s 18(c)". Section 18(c) states that: 18 Refusal of registration The Board may refuse to register an applicant as a veterinary practitioner on any of the following grounds: . . . (c) the applicant has been refused registration, licensing or other authorisation as a veterinary practitioner in another State or Territory or another jurisdiction prescribed by the regulations or has had his or her authority to practise veterinary science suspended or cancelled in another State or Territory or another jurisdiction prescribed by the regulations, 1. In our view, to the extent that the respondent is submitting that the applicant could not be registered in New South Wales because her registration had been suspended or cancelled in the ACT, the respondent erred in its construction of s 18(c). This is for two reasons. 2. First of all, the applicant's registration was not suspended or cancelled by the ACT Board. Subject to conditions, the applicant had practiced as a veterinary surgeon in the ACT from 1973 through to 19 October 2016. In June 201, she agreed, and undertook, not to renew her registration after that date until 19 October 2018. What the applicant did was a voluntary act, agreed to by the ACT Board. We do not consider that such an act, as claimed by the respondent, amounts the cancellation or suspension of her registration. 3. Secondly, the construction contended for by the respondent would give s 34E no work to do. That section provides that if a person's registration as a veterinary practitioner in another jurisdiction [4] is suspended or cancelled, the person's deemed registration in NSW may, without further investigation or hearing, be suspended or cancelled [5] on the grounds on which the registration in that other jurisdiction was suspended or cancelled. It is to be recalled that the applicant after March 2012 was not registered as a veterinary surgeon in NSW. She held registration pursuant to the provisions of the National registration. Under the NRVR, a veterinarian registered in another Australian state or territory has deemed registration and is able to practise as a veterinarian in NSW. 4. We note that at the time that the applicant applied for registration in NSW, namely 3 October 2016, she was held deemed registration in NSW. The respondent submitted, correctly, that once the applicant's registration ceased in the Act, her deemed registration in NSW also ceased. Therefore, it was submitted s 34E has no effect, at least at the time of this hearing. However, we note that the section did have work to do in the period 3 October to 19 October 2016. 5. The second reason appearing in the minutes of the board refusing to restore the applicant to its Register was that, in accordance with s 19(3)(e), there was a condition previously imposed on the applicant's registration in the ACT which effectively prevented her from registering in that jurisdiction until 19 October 2018. That much is correct, but there is no explanation as to how the imposition of a condition that the applicant cannot apply for registration in the ACT until 19 October 2018 satisfies s 19(3)(c). Presumably the reason is because of the operation of s 34D(1) of the VP Act, namely that a person's registration as a veterinary practitioner in another jurisdiction is subject to a condition or a limitation, the person's deemed registration in New South Wales is taken to be subject to the same condition or limitation. However, s 34D is not referred to in the resolution. While this may be the reason, or part of the reason, for the respondent's Decision, we do not think that the applicant should be forced to speculate or guess at the respondent's reasoning process on this matter. 6. The form of s 49(3) of the ADR Act is identical to obligations of the Tribunal in providing statements of reasons pursuant to s 62(3) of the NCAT Act. That section provides that a statement of reasons should set out (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. As an Appeal Panel of the Tribunal recently observed in Mendonca v Tonna [2017] NSWCATAP 176: 49. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 found that there is also a common law obligation to give reasons for a decision. In relation to this obligation, the Appeal Panel said: 47. Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4). 48. A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty. 49. One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. 50. We also note Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, in which the Court of Appeal said that the giving of adequate reasons lies at the heart of the judicial process and that the reasons must do justice to the issues posed by the parties' cases. 1. In our view, to the extent that the resolution of 18 April 2017 contains the reasons for the respondent's decision, it appears to us that the reasons are inadequate, as all that the respondent has done is to identify the bases on which it made its decision, but provided no explanation or reasons as to why it had done so. We consider that the respondent has not satisfactorily or adequately explained why it failed to restore the applicant to the NSW Register. Furthermore, for the reasons given above, neither basis appears to be correct. 2. As noted, we reject the suggestion that the respondent's "Statement of Reasons pursuant to s 49(1) Administrative Decisions Review Act 1997" is in fact such a statement, and we do not consider that it provides any further or other reasons for the Decision of the respondent. 3. We recommend that in future the respondent consider providing reasons for its decision. As an aggrieved applicant may seek written reasons for a decision pursuant to s 49 of the ADR Act, the respondent may wish to ensure that its reasons include (a) findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) its understanding of the applicable law, and (c) the reasoning processes that led it to the conclusions it made.

Consideration 1. Section 63 of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law. In this respect, we note the observations of Hayne and Heydon JJ in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 that: [98] It has long been established that: "The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." (emphasis added) And [the Motor Agents Registration Authority] accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before [the Motor Agents Registration Authority]. It submitted, however, that the Tribunal had to consider the circumstances "as appear from the record before it as they existed at the time of the decision under review". [99] Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation. (footnotes omitted) 1. In the context of the VP Act, it was held in Veterinary Practitioners Board of New South Wales v Gallagher; Veterinary Practitioners Board of New South Wales v Gallagher [2015] NSWSC 1233 per Adams J at [22]: 'It follows from s 63(1) of the Review Act that the Tribunal must independently "decide what the correct and preferable decisions is". It is insufficient simply to conclude that the decision under review was wrong. It must then go to take one or more of the alternative courses specified in s 63(3).' 1. We are of the view that the correct and preferable decision is that the applicant not be registered as a veterinary practitioner in NSW. We have come to that conclusion for a number of reasons. 2. Before doing so, we note that the respondent submitted that we should draw an adverse inference by the failure of the applicant to give evidence to the Tribunal. We accept that submission. The applicant was on notice that the respondent would ask the Tribunal to draw inferences against her for her failure to give evidence to the Tribunal. The Tribunal considers that it is entitled to draw inferences from the respondent's "silence": Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] – [141]; see too Meakes v NSW Bar Association [2006] NSWCA 340 at [70] – [78]; Health Care Complaints Commission v Wingate [2007] NSWCA 326. In Wingate, the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: "In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical respondent, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical respondents of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical respondent fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." (emphasis added) 1. True it is those were disciplinary matters concerning other health professionals, but we consider the principle applicable here. 2. We note that while the applicant was in fact present during the hearing, she did not give evidence to the Tribunal, either orally or by way of statement, and thus was not cross-examined. 3. The Tribunal considers that it was significant that it was deprived of the opportunity to see and hear the applicant. For instance, it was not possible for the Tribunal to understand or assess her conduct, including her submissions that the Deed had never been executed, or that conditions had not been placed on her registration in the ACT in 2016 preventing her from applying for registration until 2018. It was difficult to understand how and why the applicant made her application for registration on 3 October 2016, in circumstances where she signed the Deed on 20 June 2016 and stated that it was her intention to work as a veterinary nurse after 19 October 2016 and undertook not to seek registration in the ACT. The applicant must have known that any condition to that effect in the ACT would be effective in NSW by virtue of the NRVR. 4. We now turn to the reasons why we have decided to affirm the Decision. There are two principal reasons. 5. The first is that the applicant agreed to not practise in the ACT until 19 October 2018, and a condition was placed on her registration to that effect. It would defeat the purpose of the NRVR to allow the applicant to practise in NSW when such a condition prevents her from practising in the ACT. As we have noted, s 34D provides that if a person's registration as a veterinary practitioner in another jurisdiction is subject to a condition or a limitation, the person's deemed registration in NSW is taken to be subject to the same condition or limitation. 6. As the respondent's website notes: [6] National Recognition of Veterinary Registration (NRVR) in NSW means that veterinarians registered in another jurisdiction in Australia are able to work in NSW as deemed registrants. In jurisdictions where NRVR has been enacted veterinarians must register in the jurisdiction of their principal place of residence. NRVR therefore allows greater mobility of veterinarians throughout Australia. 1. As the respondent told the applicant on 1 May 2017, the applicant is not able to be registered in NSW as a veterinarian until such time she was able to be registered in the ACT. 2. While we do not accept that the fact that the applicant's registration was refused by the ACT Board on 12 October 2016 does not amount to suspension or cancellation in another State of Territory for the purposes of s 18(c) of the VP Act, we do accept that this is a matter that we can take into account in determining what is the correct and preferable decision to make. We also place weight on what appears the applicant's lack of insight in making the application, in circumstances where she has voluntarily undertaken to the ACT Board not to seek registration for two years. As the applicant gave no evidence to the Tribunal, we have no understanding of why made the application for registration in the circumstances outlined. 3. Secondly, the practitioner's practice history, including in particular her failure to comply with previous conditions, warrants the Tribunal confirming the Decision. 4. Here we note that the object of the VP Act is set out in s 3 as follows: The object of this Act is to regulate the provision of veterinary services for the following purposes: (a) to promote the welfare of animals, (b) to ensure that consumers of veterinary services are well informed as to the competencies required of veterinary practitioners, (c) to ensure that acceptable standards are required to be met by veterinary practitioners so as to meet the public interest and national and international trade requirements, (d) to provide public health protection. 1. We find that confirming the Decision is consistent with the objects enunciated in ss 3(a) and 3(c). It is to be recalled that the evidence established that: 1. Following a "history of complaints" concerning the applicant "dating back to the 1980s", on 27 July 2009, the ACT Board placed the following conditions on the applicant's right to practise in the ACT: 1. Not to perform any abdominal surgery, including any de-sexing female cats, or dogs; 2. Not to purchase, hold or keep at her place of practice, or prescribe, any drug in Schedule 8 of the Medicines and Poisons Standard; 3. Must not deliver any pup or kitten by caesarean section; 4. Must permit and assist a person nominated by the Registry of the ACT Board to inspect, at her place of practice, any clinical records of her practice. 1. Between 2009 and 2013, the ACT Board received a further six complaints concerning the applicant, following which it decided to establish a PSP to consider the complaints. 2. The PSP relevantly found: 1. the complaints in respect of Zed, Coco/Dakota and Milky established, issuing two reprimands and a caution; and a caution in respect of Milky. We note, in particular, that the ACT Board found that the applicant had performed a caesarean on Coco/Dakota in breach of existing conditions, in contravention of cl 137 of the Health Professionals Regulation 2004, and possibly amounted to a criminal offence. We also note that the ACT Board found "numerous failures" on the applicant's part in relation to Zed, including diagnosing prostate cancer when no diagnostic steps were undertaken, failing to accurately examine Zed, treating Zed inappropriately, failing to prepare Zed for surgery with proper aseptic procedures and undertaking no pre-anaesthetic testing; and 2. placed further conditions on the applicant's registration: 1. that she only use, administer or prescribe medications in recommended dosages and not administer or prescribe "off-label" use of any medication; 2. that she not use, administer or prescribe large animal formulations of a drug on small animals where a small animal formulation is registered for use in Australia. 1. On 9 October 2015, the ACT Board filed an application for occupational discipline against the respondent in the ACT Tribunal (application OR 15/39). The application concerned the veterinary services provided by the applicant in respect of a total of 10 dogs and cats, the standard of the applicant's premises and her supply of Schedule 4 restricted veterinary medicines. The ACT Board sought orders that the applicant be reprimanded, that her licence to practise as a veterinary surgeon be cancelled, and that she be disqualified from applying for a further licence for a period of two years. 1. We accept that the evidence before the ACT Board, including the folder of evidence marked R12, and the expert report of Dr Peter Alexander marked R11, was not tested before the ACT Board and no conclusions reached or findings made in respect of any of the complaints. However, the respondent submits that we can place some weight on the fact that there was a large number of complaints, supported by substantive and detailed evidence, and further supported by expert opinion about the allegations. While we do not find that the complaints were established, we accept that we can have some regard to this material. 2. We also put some weight on the respondent's submission that the applicant's conduct in not disclosing the contents and effect of the Deed in her application to the NSW Board fell short of accepted professional conduct. True it is the Annual Return lodged by the applicant to the respondent referred to an "ACT conditional licence", and that the respondent was "already aware", but this can only be understood as a reference to the conditions on the applicant's registration in the ACT other than the condition that she not seek registration after 19 October 2016. 3. Given these matters, after considering the totality of the material before us, the applicant's professional history, her failure to provide a statement to us, the objects of the VP Act and the operation of the NRVR, we consider that the correct and preferable decision is that the respondent not register the applicant as a veterinary practitioner. 4. For the above reasons, we affirm the decision of the respondent.

Costs 1. If either party seeks an order for costs, they are directed to file written submissions as to costs within 14 days of publication of these reasons. The other party may reply within a further 14 days. The parties' attention is drawn to s 60 of the NCAT Act. That section relevantly provides that: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. We further note that cl 26 of Schedule 5 of the NCAT Act provides: 26 Costs in veterinary practitioner proceedings (1) Despite section 60 of this Act, the Tribunal must order costs against a veterinary practitioner in proceedings for the purposes of the Veterinary Practice Act 2003 in any of the following circumstances unless the Tribunal is satisfied that exceptional circumstances exist: (a) if the Tribunal affirms a disciplinary finding against a practitioner in proceedings for the purposes of section 48 of the Veterinary Practice Act 2003 , (b) if the Tribunal considers that the matter of the complaint against a veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint. (2) This clause does not limit the power of the Tribunal to order costs in proceedings for a Division decision for the purposes of that Act in other circumstances. 1. The Tribunal proposes to make any decision as to costs "on the papers", and without holding a hearing. However, the parties may indicate in their submissions any reason why they submit that a hearing should be held to deal with costs.

Orders The Tribunal orders that: 1. The decision of the respondent of 18 April 2017 is affirmed.

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Endnotes 1. Statement of Dr Steven Roberts dated 11 September 2017 titled "ACAT proceedings", par [4]. 2. We note that the applicant had submitted to the PSP that, at the time the condition were imposed on her registration, the lawyer then representing the ACT Board told her that there was a legal exemption in life-or-death emergency situations. In the absence of any evidence or submissions about this matter, and noting that such a qualification was not recorded on the ACT Register, the Panel rejected this submission. 3. The Tribunal notes that the report of the PSP was dated 30 March 2016, and finds that the applicant received a copy of the report on or shortly after this date. 4. including deemed registration however described 5. as the case requires 6. https://www.vpb.nsw.gov.au/tags/national-recognition-veterinary-registration I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017