Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456

Reported Decision : 65 NSWLR 245

New South Wales Court of Appeal

Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 November 2005

JUDGMENT DATE: 21 December 2005

JUDGMENT OF: Spigelman CJ at 1; Handley JA at 19; Tobias JA at 25

DECISION: (1) Appeal allowed; (2) Set aside the decision of the Appeal Panel of 10 January 2005; (3) In lieu thereof remit the proceedings in ADT Appeal Panel No 049044 of 2004 for rehearing in conformity with the decision of this Court; (4) Costs in this Court reserved; (5) Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings; (6) Direct the appellant to file and serve any written submissions he wishes to make with respect to any question of costs on or before 24 January 2006, the respondent to file and serve any submissions in reply on or before 3 February 2006 on the basis that all questions of costs will be determined by the Court upon the papers

CATCHWORDS: ADMINISTRATIVE LAW – Administrative Decisions Tribunal – Appeal Panel – Disciplinary proceedings – Whether appellant's right of appeal from Tribunal to Appeal Panel extended to merits review – Whether appellant denied procedural fairness – STATUTORY CONSTRUCTION – Whether extension of appeal to merits review under s 113(2)(b) of Administrative Decisions Tribunal Act dependant upon appeal raising question of law – Proper construction of transitional provisions in ADT Act – Purposive construction to avoid lacuna or gap in legislative scheme – Veterinary Surgeons Act 1986 s 34 – Administrative Decisions Tribunal Act 1997 ss 112, 113, 119, 120, cl 37 Sch 5

Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED: Administrative Decisions Tribunal Amendment Act 2004 Supreme Court Act 1970 Veterinary Surgeons Act 1986

Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27 CASES CITED: Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Manly Council v Malouf (2004) 61 NSWLR 394 Mayhew v A [1999] NSWADTAP 1 VOAW v Minister for Immigration and Multicultural Affairs [2003] FCAFC 251 Walsh v Law Society of New South Wales (1999) 198 CLR 73

Ronald George Lloyd PARTIES: Veterinary Surgeons Investigating Committee

FILE NUMBER(S): CA 40997/03, 40090/05

A: Mr C C Branson QC COUNSEL: R: Mr L T Grey

A: Hermann & Green SOLICITORS: R: Tress Cox Solicitors

LOWER COURT JURISDICTION: Administrative Decisions Tribunal - Appeal Panel

ADT 40004; 40005 & 40015/98 LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Acting Judge M Chesterman, Deputy President; P Goode, Judicial Member; T Carter, Non Judicial Member

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40997/03; 40090/05 ADT 40004, 40005 and 40015/98

SPIGELMAN CJ HANDLEY JA TOBIAS JA

Wednesday 21 December 2005 RONALD GEORGE LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE

FACTS

In 1998, the Veterinary Surgeons Investigating Committee (the respondent) considered a number of complaints made against Dr R G Lloyd (the appellant). In April and August 1998, the respondent referred the complaints to the Administrative Decisions Tribunal (the Tribunal). The Tribunal, having made findings of professional misconduct against the appellant, imposed certain penalties, including a condition upon his registration that he only be employed in a practice where there were at least two full-time veterinary surgeons.

The appellant appealed to the Appeal Panel of the Tribunal against the Tribunal's orders as to penalty. That appeal was heard on 6 December 2004 and decided on 10 January 2005 by the dismissal of the appeal.

On February 2005, the appellant appealed to the Court of Appeal against the dismissal of his appeal by the Appeal Panel. The issues on the appeal were, relevantly: (i) whether, upon a proper construction of s 34(1) of the Veterinary Surgeons Act 1986 (the VS Act) and ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), the Appeal Panel ought not to have confined the appellant's right of appeal to a point of law but ought to have held that that right extended to a review of the merits of the Tribunal's decision; (ii) whether the Appeal Panel ought to have concluded that the Tribunal denied the appellant procedural fairness by failing to afford him the opportunity of making submissions in relation to the penalty regime imposed.

HELD per the Court

Appeal allowed.

Per Spigelman CJ and Handley JA

1. The specific provision in s 34(1) of the VS Act gave the appellant an unrestricted right of appeal to the Appeal Panel from the decision of the Tribunal which prevailed over the general provisions in ss 112 and 113 of the ADT Act ([2], [8]-[9], [19]).

2. The appellant was not required to obtain leave from the Appeal Panel under s 113(2)(b) of the ADT Act to extend the appeal to the Panel to the merits of the decision of the Tribunal ([5], [13], [22]).

Per Tobias JA, dissenting

3. The right of the appellant to appeal to the Appeal Panel from the decision of the Tribunal was sourced in s 113(1) of the ADT Act. Section 34(1) of the VS Act was an enabling provision required to found an appeal to the Appeal Panel pursuant to the combined operation of s 112(1)(a) and s 113(1) of the ADT Act ([37], [66], [68]).

4. Section 34(1) of the VS Act was to be read as a proviso to s 113(1), identifying who might exercise the right of appeal established by that section ([68], [70]).

5. The appellant was only entitled to extend his appeal to a review of the merits of the Tribunal's decision with the leave of the Appeal Panel pursuant to s 113(2)(b) of the ADT Act ([70]).

Per Tobias JA (Spigelman CJ agreeing)

6. The only relevant pre-requisite to extending an appeal under s 113(1) of the ADT Act to a merits review is the grant of leave by the Appeal Panel under s 113(2)(b). Such a grant of leave is not dependant upon the appeal raising a question of law ([14], [60]-[61], [63]).

Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8; Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; Mayhew v A [1999] NSWADTAP 1 considered.

Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 referred to.

7. The Tribunal denied the appellant procedural fairness in failing to provide him with the opportunity to call evidence and make submissions on the merits of a condition containing a restriction that he only be employed in a practice where there were at least two full-time veterinary surgeons. Such a denial of procedural fairness constituted an error of law ([1], [85], [87]).

Per Tobias JA (Spigelman CJ and Handley JA agreeing)

8. The transitional provisions in cl 37 in Pt 8 of Sch 5 inserted in the ADT Act by the Administrative Decisions Tribunal Amendment Act 2004 (the Amendment Act) were intended to apply where an appeal had been instituted from the Tribunal to the Appeal Panel but was not "finally determined" before 1 January 2005 ([23], [105], [106]).

9. Where the decision of the Appeal Panel is set aside for error of law and the proceedings remitted, the appeal to that Panel has not been "finally determined" within the meaning of cl 37 ([23], [109], [110]).

VOAW v Minister for Immigration and Multicultural Affairs [2003] FCAFC 251; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 referred to.

10. Accordingly, the Court of Appeal's powers with respect to the disposal of the appeal were to be determined in accordance with the provisions of the VS Act and the ADT Act as they were before the Amendment Act came into force ([15]-[16], [23], [109], [110]).

Per Spigelman CJ and Handley JA

11. It was appropriate to remit the matter of the appropriate penalty to be imposed upon the appellant to the Appeal Panel to be determined in conformity with the decision of the Court of Appeal ([17]-[18], [24]).

Per Tobias JA, dissenting

12. It was appropriate to remit the question of leave and, if leave were granted, the appropriate penalty to the Appeal Panel ([114]).

13. Failing a grant of leave, the case would still need to be remitted to the Tribunal for further hearing as its decision in any event must be set aside for denial of procedural fairness ([89]).

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40997/03; 40090/05 ADT 40004, 40005 and 40015/98

SPIGELMAN CJ HANDLEY JA TOBIAS JA

Wednesday 21 December 2005 RONALD GEORGE LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE Judgment 1 SPIGELMAN CJ: In this matter I have had the benefit of reading the judgment of Tobias JA in draft. His Honour sets out the facts, issues and the relevant statutory provisions. Subject to the following observations I agree with his Honour's analysis. 2 I have come to a different conclusion to his Honour on the interrelationship between s34 of the Veterinary Surgeons Act 1986 ("the VS Act") and s113 of the Administrative Decisions Tribunal Act 1997 (the "ADT Act"). In this Court, albeit not before the Appeal Panel, the Appellant contended that s34(1) of the VS Act gave the registered veterinary surgeon a general right of appeal. The Appellant submits that the specific provisions found in s34(1) of the VS Act should operate over the general provisions in s112 and s113 of the ADT Act. The Respondent supported the Appellant's submission in this respect. I note that this submission was not made to the Appeal Panel. In my opinion the submission should be upheld. 3 As originally enacted in the Veterinary Surgeons Act 1986 s34 provided: "34(1) There shall be a right of appeal to the Supreme Court from an order made by the Disciplinary Tribunal under section 32 (a) by the registered veterinary surgeon or former registered veterinary surgeon against whom the order was made; or (b) by the person who made the complaint, but only - (i) on a point of law; or (ii) with respect to any penalty imposed. (2) An appeal shall be made in accordance with rules of court. (3) An appeal under subsection (1)(a) shall be by way of new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence given on the hearing before the Disciplinary Tribunal, may be given on the appeal if the Supreme Court is satisfied that there were good reasons for the evidence not having been given on the hearing before the Disciplinary Tribunal. (4) The Supreme Court may, on an appeal, make such order as it thinks proper having regard to the merits of the case. (5) The provisions of section 31(2) and (3) shall, subject to the rules of court, apply in respect of the hearing of an appeal in the same way as those provisions apply in respect of the hearing of a complaint by the Disciplinary Tribunal. (6) Without affecting the generality of this section, the Supreme Court may make any order which the Disciplinary Tribunal might have made under section 32, or may vary any order made by the Disciplinary Tribunal." 4 There were no amendments material for present purposes until s34 was replaced by the Administrative Decisions Legislation Amendment Act 1997, which was parallel legislation with the ADT Act 1997 and which inserted s34 in its present form. 5 In 1986 the right of appeal by a veterinary surgeon was unconfined and the only other person with any right of appeal was the complainant whose appeal was confined in the manner set out in s34. It was not necessary, under the 1986 Act, for the veterinary surgeon to obtain leave to appeal from the merits of a decision. The 1997 Act does not, in my opinion, change that situation. 6 Nothing in the Second Reading Speech or the Explanatory Memorandum suggests that it was the intention of Parliament to modify the rights to appeal under the pre-existing legislative regimes. The principal objective of this part of the legislative scheme was to transfer existing jurisdiction from a multiplicity of tribunals to a single body and to similarly transfer appellate jurisdiction to the new Tribunal's Appeal Panel. This appears from the Explanatory Note to the Bill: "The objects of this Bill are: (a) to confer the jurisdiction of various Tribunals that are to be abolished by Schedule 5 to the Administrative Decisions Tribunal Bill 1997 on the Administrative Decisions Tribunal to be established by that Bill, and (b) to confer on the Administrative Decisions Tribunal the jurisdiction to review certain administrative decisions that are presently reviewable by, or appealable to, the Supreme Court, the Industrial Relations Commission, the District Court or the Local Court, …" 7 The correlative object of the ADT Act is expressed in the Explanatory Note for that Bill as follows: "While this Bill establishes and provides for the procedures and powers of the Administrative Decisions Tribunal, the Tribunal will have jurisdiction to deal with a matter only if another Act (or in some cases a statutory rule under another Act) provides for applications to be made to it in respect of the matter. Such jurisdiction is initially conferred by the cognate Administrative Decisions Legislation Amendment Bill 1997. The legislative scheme proposed by this Bill and the cognate Administrative Decisions Legislation Amendment Bill 1997 will ensure that the jurisdiction presently exercised by the various tribunals mentioned above will be exercised instead by the Administrative Decisions Tribunal. It also enables the Administrative Decisions Tribunal to exercise certain jurisdiction presently exercised by courts in relation to administrative decisions." 8 Under the regime extant since 1986, a veterinary surgeon had an unrestricted right of appeal, including on the merits. If that right were to be taken away it would have been done directly. No inference that that was the intention of Parliament can arise when Parliament has re-enacted the same statutory formulation, as it has done in this case. 9 With respect, I do not agree with the conclusion of Tobias JA that s34(1) is merely an enabling provision having the effect of applying s112 and s113 of the ADT Act to decisions under the VS Act, subject to modification by s34. The specific provision was intended to confer the substantive right to appeal and should, in my opinion, prevail over the general provisions. 10 The language of s34 of the VS Act does not adopt the precise language of the definition of "appealable decision" in s112 of the ADT Act. The latter concentrates on the word "decision" and refers to an enactment which "expressly provides that the decision may be appealed". Section 34 does not say that an order "may be appealed". It is expressed in terms of the identification of the persons who may appeal. 11 If the objective of the Act was merely enabling, then it would have been unnecessary to enact par (a) and par (b) of each of subs(1) and subs(2) of s34. If the objective was, as Tobias JA accepts, to create a proviso to s113, then par (a) is unnecessary, unless it is to be understood as extending a right of appeal to merits review. 12 In my opinion, s34 creates a regime of a different character to that created under Pt 1 of Ch 7 of the ADT Act. That appears clearly from the fact that s34 entitles certain persons to appeal, in language quite different from that found in s113. The former identifies a veterinary surgeon and a complainant, whereas the latter refers to a party to proceedings. The informant, who is a party to proceedings cannot appeal but a non party, the complainant, is given a right to do so expressed in different terms, i.e. "point of law" instead of "question of law" and extending to penalty. 13 On the above analysis the Appellant was not required to obtain leave from the Appeal Panel to extend the appeal to the merits. Nor is the appeal to this Court confined to a question of law. 14 I should indicate that if I had not been of the above opinion the outcome would have been the same. I agree with Tobias JA's reasons with respect to the proper construction of s113 of the ADT Act. 15 Tobias JA sets out cl 37 of the transitional provisions. Before the relevant "appeal abolition date", there were proceedings instituted before the Appeal Panel. Section 34 of the VS Act, is a "law" that "continues to apply as if the amending Act had not been enacted", within the meaning of cl 37(3). 16 Section 34(4) makes it clear that s120 of the ADT Act applies. Accordingly, this Court may remit the matter to the Appeal Panel or to the Court. 17 The parties sought remitter to the Appeal Panel. That is appropriate. 18 I agree with the orders proposed by Handley JA.

19 HANDLEY JA: In this matter I have had the benefit of reading the other judgments and can be brief. I agree with the Chief Justice that the veterinary surgeon's right of appeal to the Appeal Panel was conferred and governed by s 34 of the Veterinary Surgeons Act 1986 (the VS Act). This being a special provision it prevailed over the general provisions in s 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 20 Section 34(1) defines the persons who may appeal and denies standing for this purpose to the Investigating Committee that prosecuted the proceedings before the Tribunal. It also defines the scope of the appeal giving a general appeal to the practitioner and a limited appeal to the person who made the original complaint. It is inconsistent with s 113 in both respects. Section 34 confers jurisdiction on the Appeal Panel in addition to that conferred by s 113. Section 11(2) of the ADT Act contemplates that the Tribunal may have additional jurisdiction conferred on it by another Act. 21 The right of appeal to the Supreme Court from the Appeal Panel in cases under the VS Act is governed by s 34(2) of that Act which applies "despite any contrary provision of Part 2 of Chapter 7" of the ADT Act. Section 34(2)(a) gives a general right of appeal to the Supreme Court to the practitioner, and the same limited right as before to the person who made the original complaint. Once again the Investigating Committee who defended the appeal before the Appeal Panel has no standing to challenge an adverse decision in the Supreme Court. Since the practitioner had a general right of appeal s 75A of the Supreme Court Act applied and the Court could receive additional evidence. 22 I agree therefore with the Chief Justice that the practitioner did not require the leave of the Appeal Panel under s 113(2)(b) to extend the appeal to the Panel to a review of the merits of the decision of the Tribunal. 23 I also agree that the transitional provisions in cl 37 and cl 38 in Pt 8 of Sch 5 inserted in the ADT Act by the Amendment Act of 2004 preserved the existing appeals regime for cases pending before the Appeal Panel when the Amendment Act commenced. This was the evident intention of these clauses, and there is no apparent reason why Parliament should preserve or confer rights to appeal to the Supreme Court in most cases but leave a gap for a few. Such provisions should receive a purposive construction to avoid any such gaps if that construction is available. As Tobias JA has demonstrated these clauses admit of a construction which has that effect. 24 I agree with Tobias JA that the appropriate course in this "old" case is to remit the penalty proceedings to the Appeal Panel to be heard and determined in conformity with the decision of this Court. I would make the following orders in matter CA 40090 of 2005:

(1) Appeal allowed.

(2) Set aside the decision of the Appeal Panel of 10 January 2005.

(3) In lieu thereof remit the proceedings in ADT Appeal Panel No 049044 of 2004 for rehearing in conformity with the decision of this Court.

(4) Costs in this Court reserved.

(5) Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings.

(6) Direct the appellant to file and serve any written submissions he wishes to make with respect to any question of costs on or before 24 January 2006, the respondent to file and serve any submissions in reply on or before 3 February 2006 on the basis that all questions of costs will be determined by the Court upon the papers. 25 TOBIAS JA: Dr R G Lloyd (the appellant) has been registered as a veterinary surgeon since 7 March 1973. In 1998 the Veterinary Surgeons Investigating Committee (the respondent), which is constituted under s24 of the Veterinary Surgeons Act 1986 (the VS Act), considered a number of complaints made against the appellant in respect of his treatment of a horse named "Gypsy" between December 1995 and January 1996, a dog named "Chisel" in February 1996 and a dog named "Remus" in February/March 1997. 26 In April and August 1998 the respondent, being satisfied that in relation to each complaint a prima facie case had been made out and was sufficiently serious to warrant it being referred to the Administrative Decisions Tribunal (the Tribunal), referred the complaints accordingly pursuant to s28(1)(c) of the VS Act. 27 The reference first came before the Tribunal constituted by a Veterinary Disciplinary Panel pursuant to cl 7(1) of Schedule 2 to the VS Act in March 1999. For various reasons not presently relevant, the hearings of the complaints before the Tribunal extended from March 1999 to 31 December 2002 when it gave its decision with respect to the matter of Remus and to 9 May 2003 when it gave its decisions with respect to the matters of Gypsy and Chisel. 28 In each matter, the Tribunal made findings against the appellant of professional misconduct and, in the matter of Remus, an additional finding of unacceptable professional conduct. 29 Each of the Tribunal's decisions was an "appealable decision" within the meaning of s112(1)(a) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Accordingly the appellant, pursuant to s113(1) of the ADT Act, appealed against each of the decisions to an Appeal Panel of the Tribunal constituted pursuant to s24 of that Act. The Appeal Panel heard the matter of Remus in May 2003 and the matters of Gypsy and Chisel in July 2003. On 13 October 2003, the Appeal Panel gave its decision with respect to each of the three matters, each appeal being allowed in part. On the same day each of the matters was referred back to the Tribunal in respect of those findings which were not overturned on appeal to enable the determination of the appropriate disciplinary orders to be made pursuant to s32(1) of the VS Act. 30 Section 32(1) empowered the Tribunal to make any one or more of the following orders: "(a) an order reprimanding or cautioning the veterinary surgeon, (b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months, (c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists, (d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000, (e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, (f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing." 31 The Tribunal heard what have been referred to as the penalty proceedings on 1 June 2004. For reasons to which I shall refer hereafter, it sought further submissions from the parties which were filed on 23 June 2004. Without any further oral hearing, the Tribunal gave its decision on the question of penalty on 22 September 2004, when it made the following orders under s32(1): "As to the findings of guilt of professional misconduct: 1. Dr Ronald George Lloyd be suspended from practice for 9 months commencing on a date specified by the Veterinary Surgeons Board, being a date not later than 1 January 2005. 2. The following conditions to be imposed on Dr Lloyd's registration as a veterinary surgeon: (i) That he only be permitted to practise as an employee of a veterinary surgeon approved by the Board in a practice where there are at least two veterinary surgeons (other than Dr Lloyd) practising on a full-time basis. (The employer if full-time may be counted for this purpose.) This condition is to remain in force for not less than 15 months after his return to practice. (ii) That he only be permitted to return to practice as a sole practitioner if the Veterinary Surgeons Board so approves after having regard to such matters as it thinks fit, including a report from the approved employing veterinary surgeon. (iii) That he be required to undertake continuing professional education in programs designated by the Board of ten days per annum over the period of his suspension and the period of supervised employment. As to the finding of guilt of unacceptable professional conduct: 3. Dr Lloyd be reprimanded. and further orders that: 4. Dr Lloyd pay the costs of the Veterinary Surgeons Investigating Committee as agreed." 32 Pursuant to the combined operation of s113(1) of the ADT Act and s34(1) of the VS Act, the appellant appealed to the Appeal Panel against the Tribunal's orders in the penalty proceedings. That appeal was heard on 6 December 2004 and decided on 10 January 2005 by the dismissal of the appeal. 33 Originally, the appellant appealed to this Court against the decision of the Appeal Panel in respect of its findings of professional misconduct with respect to each of the three complaints. However, subject to the question of costs, the appellant ultimately abandoned those appeals. 34 On 7 February 2005 the appellant appealed to the Supreme Court pursuant to the combined operation of s119(1) of the ADT Act and s34(2)(a) of the VS Act against the dismissal by the Appeal Panel of his appeal in the penalty proceedings. As will appear, s34 of the VS Act applies to this appeal notwithstanding its repeal as and from 1 January 2005 by the Administrative Decisions Tribunal Amendment Act 2004 (the Amendment Act) The appeal was assigned to this Court by virtue of the operation of ss48(1)(a)(vii) and (2)(f) of the Supreme Court Act 1970 (the SC Act) as the Appeal Panel was presided over by Acting Judge Chesterman, a judge of the District Court. The appeal to this Court from the decision of the Appeal Panel is, by virtue of s119(1), confined to questions of law.

The grounds of appeal 35 The amended grounds of appeal relied upon by the appellant in the hearing before this Court were as follows: "1. The Appeal Panel erred in that upon a true and proper construction of section 34(1) of the Veterinary Surgeons Act (' the VS Act' ) and sections 112 and 113 of the Administrative Decisions Tribunal Act (' the ADT Act') the Appeal Panel ought not to have confined the appellant's right of appeal a point of law or a question of law. 2. The Appeal Panel erred in that upon a true and proper construction of section 34(1) of the VS Act and sections 112 and 113 of the ADT Act the Appeal Panel ought to have held that the appellant's right of appeal extended to a review of the merits of the decision of the Tribunal delivered on 22 September 2004. 3. The Appeal Panel erred in that upon a true and proper construction of section 34(1) of the VS Act and sections 112 and 113 the ADT Act the Appeal Panel ought to have held that the appellant's right to a review of the merits of the decision of the Tribunal delivered on 22 September 2004 was not dependant upon the appellant having established or made out an error of law. 4. The Appeal Panel erred in not concluding that the appellant was denied procedural fairness by reason of the Tribunal failing to afford the appellant the opportunity of adducing evidence and making submissions in relation to the particulars of the penalty regime which the Tribunal proposed to impose upon the appellant. 5. The Appeal Panel erred in not concluding that there was no evidence that at the relevant time the appellant was unfit to practise as a veterinary surgeon on an unrestricted basis. 6. The Appeal Panel erred in not concluding that the penalty regime imposed by the Tribunal was manifestly excessive, unreasonable and plainly unjust." 36 The appellant's written submissions extended to each of those grounds of appeal although, for reasons which will appear, it is only necessary to deal with the first four. In particular, Grounds 1–3 (inclusive) in effect constitute a single ground of appeal with which it is appropriate to deal at the outset. Essentially it involves the true construction of s113(2) of the ADT Act.

Grounds of appeal 1-3 (inclusive) 37 The right of the appellant to appeal to the Appeal Panel from the decision of the Tribunal, whereby it has made orders under s32(1)(b), (e) and (f) of the VS Act on the issue of penalty, is sourced in s113(1) of the ADT Act which provides as follows: "(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel." 38 The expression "appealable decision" is defined in s112(1) of the ADT Act relevantly as follows: "(1) For the purposes of this Part [being Part 1 of Chapter 7 of the ADT Act], an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for : (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) …" 39 The expression "original decision" is defined by s7 of the ADT Act to be "a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker." 40 Pursuant to s37 of the ADT Act, the Tribunal has jurisdiction under an enactment to act as the primary decision-maker "if the enactment provides that applications may be made to it for decisions made in the exercise of the functions conferred or imposed on the Tribunal by or under that enactment." 41 Such an enactment is the VS Act. Pursuant to s28(1)(c) of that Act functions are conferred upon the Tribunal, in the exercise of which it is empowered to make orders under s32 of that Act. 42 Accordingly, the decision of the Tribunal pursuant to which it made orders under s32(1) of the VS Act was a decision made in proceedings for an original decision. Further, the VS Act, under which the Tribunal had jurisdiction conferred upon it to make that decision, expressly provided in s34(1) for that decision to be appealed to an Appeal Panel under Part 1 of the Chapter 7 of the ADT Act, thus satisfying the requirements of s112(1)(a) of that Act. In this respect, s34(1) provided as follows: "Any of the following persons may appeal against an order made under section 32 to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 : (a) the registered veterinary surgeon or former registered veterinary surgeon against whom the order was made; (b) the person who made the original complaint, but only: (i) on a point of law, or (ii) with respect to any penalty imposed." 43 Before the Appeal Panel the appellant sought leave pursuant to s113(2)(b) of the ADT Act to extend the appeal to a review of the merits of the Tribunal's decision on penalty. Section 113(2) provides: "An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision." 44 However, the then legal representatives of both the appellant and the respondent conceded, and the Appeal Panel held, that such leave could not be granted unless an error of law was first established. Having then heard submissions as to whether the Tribunal had committed an error of law, the Appeal Panel concluded (at [74]) that no such error had been demonstrated in the reasoning of the Tribunal. Accordingly it rejected (at [75]) the application made on the appellant's behalf for the appeal to extend to the merits of the Tribunal's decision. 45 The Appeal Panel's approach, and the appellant's concession, with respect to the construction of s113(2)(b) was held to be governed by the decision of an Appeal Panel presided over by Judge Latham (as she then was) in Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27. 46 After referring to the provisions of s113(2) of the ADT Act, the Appeal Panel in Gelderman (at [10]) stated that: "It is well established that 'it is necessary for the appellant … to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. See generally: Mayhew v A [1999] NSWADTAP 1 and Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8." 47 It will be seen at once that in the above citation in Gelderman from the judgment in Brandusoiu there is a clear inconsistency. On the one hand the Appeal Panel in Brandusoiu seems to have considered that if there was an arguable question of law identified then it would be open to the Appeal Panel to grant leave to permit an extension of the appeal to allow consideration of the merits. On the other hand, the Appeal Panel then proceeded to state categorically that it would be inappropriate to embark on a consideration of the merits where no error of law was established. 48 In Mayhew, an Appeal Panel presided over by Judge O'Connor stated the position in these terms: "7. The Act, section 113, requires that the Tribunal sitting as the Appeal Panel satisfy itself that it has before it an appeal which involves a question of law (sub-s. (2)(a)), and if that is the case it may extend its deliberations to review of the merits of the appealable decision (sub-s. (2)(b)). 8. So the critical question, as was explained to the appellant on earlier occasions and again during today's proceedings, is whether the material before the Tribunal raises any question of law." 49 The Appeal Panel then proceeded to determine whether the appellant's grounds of appeal in that case raised "a question of law". Having considered the matters that had been advanced before it on this question, it concluded (at [30]) that "the material does not, in our view, reveal any error of law." (emphasis added)

The order of the Appeal Panel was, therefore, that the appeal be dismissed with no further consideration being given to the question of granting leave to extend the appeal to the merits. 50 In Lloyd the Appeal Panel found an error of law on the part of the Tribunal and therefore (at [69]) granted leave under s113(2)(b) of the ADT Act to extend the appeal to a review of the merits of the Tribunal's decision at first instance. It did so "in light of the error of law we have found because we consider this to be the most expeditious course to adopt in the circumstances of this case." 51 The Appeal Panel then observed (at [70]) that, because it had decided that an error of law had been established, it was not necessary to consider whether an appeal on the merits was competent in a matter where error of law had not been established. After setting out s113(2), and emphasising the word "extend" in s113(2)(b), the Appeal Panel made the following observation (at [71]): "We are of the view that it is strongly arguable that a merits review may be available in an appeal alleging error of law, notwithstanding that no error is ultimately found. However, this question does not arise for decision in this case."

However, that question directly arises in the present case. 52 In Brandusoiu the Appeal Panel presided over by Judge O'Connor made the observation (at [4]) cited by the Appeal Panel in Gelderman which I have set out in [46] above but made no reference to the dictum of the Appeal Panel in Lloyd referred to in [51] above. 53 As was submitted by the respondent, the Appeal Panels in the cases referred to seem to have viewed the use of the word "and" connecting sub-paragraphs (a) and (b) of s113(2) and the word "extend" in sub-paragraph (b) as indicating that the latter provision was merely an extension of sub-paragraph (a) so that it was necessary to comply with that provision before consideration could be given to the granting of leave pursuant to sub-paragraph (b). But such compliance does not require that a question of law be converted into a proven error of law. 54 In Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [28]-[28], Mason P, with whom Ipp JA and Hunt AJA agreed, referred to the issue but did not decide it. However, the President did observe that whether s 113(2)(b) was limited in the way suggested in Brandusoiu "is certainly an issue that would generate a question of law attracting serious consideration in an appeal to this Court in a proper case."

The present is such a case. 55 The respondent submitted that confusion existed in the decisions of the various Appeal Panels to which reference has been made, as to whether it was sufficient under sub-paragraph (a) to do no more than articulate a bona fide question of law in order to ground an application for leave to extend the appeal to the merits or whether it was necessary to demonstrate to the Appeal Panel than an error of law on the part of the Tribunal at first instance had actually occurred. It was this last proposition that was doubted by the Appeal Panel in Lloyd but ignored in the other decisions referred to including that the subject of the present case. 56 Again, as the respondent submitted, that confusion is most starkly illustrated in the passage from Brandusoiu cited in Gelderman (and recited by the Appeal Panel in the instant case) and which contains the clear inconsistency to which I have referred in [47] above. 57 In my opinion the Appeal Panel in the present case, and the Appeal Panels in the other cases referred to, were clearly in error in construing s113(2) upon the basis that leave could not be granted to extend the appeal to a review of the merits of the decision of the Tribunal at first instance unless an error of law on the part of that Tribunal had first been established. Such a construction simply flies in the face of the words of sub-paragraph (a) which refer only to a "question of law" and not to an "error of law". As was observed by Spigelman CJ, with whom Priestley JA agreed, in Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at 677 [124]: "The expression 'a question' or 'point' of law is wider than 'error of law'." 58 Further, the above conclusion must be so because, if an error is established, then pursuant to s114 of the ADT Act, the Appeal Panel is empowered to set aside the decision appealed against and to make an order in substitution for that made by the Tribunal at first instance. In many cases, such an order could not be made unless the Appeal Panel first reviewed the merits of the decision at first instance. 59 The dicta of the Appeal Panels referred to in [46], [48] and [51] above seem to suggest that if demonstrated error of law is not required before leave can be granted to extend the appeal to a merits review, nevertheless such leave cannot be granted unless there is an "arguable question of law" identified or there is "an appeal which involves a question of law" or "an appeal alleging error of law" before the Appeal Panel. In my opinion, s113(2)(b) does not justify any such restriction. 60 Section 113(2) does not create a right of appeal: s113(1) does. Section 113(2) qualifies the right of appeal established by s113(1) by identifying the extent of the issues in respect of which an appeal may be brought. Thus, an appeal under s113(1) may be instituted on any question of law. Leave of the Appeal Panel is not required to raise any such question. 61 On the other hand, where the appellant wishes to extend the appeal to a merits review of the Tribunal's decision, the Appeal Panel's leave is first required. In its context, the word "extend" in s113(2)(b) qualifies or is a reference back to the right of appeal established by s113(1). It is therefore not dependent upon there first being an appeal on a question of law. 62 The alternative construction would not make sense. If establishing an error of law is not a pre-requisite to a grant of leave to extend the appeal to a merits review, then what practical utility is there in requiring the mere allegation of legal error or even the identification of an arguable question of law? To allege such an error which is barely "arguable" but is no more than that and which in any event fails, is an unlikely and rather pointless pre-requisite to a grant of leave under s113(2)(b). 63 The only relevant pre-requisite to extending an appeal to a merits review is the grant of leave by the Appeal Panel. So much is both sensible and conventional. In my opinion, therefore, nothing more is required. Whether or not the appeal alleges or raises a question of law is irrelevant. There is no reason based on the proper construction of s113(2) to require a grant of leave under s113(2)(b) to be dependant upon the right of appeal established by s113(1) being first made with respect to a question of law. 64 Accordingly, in the present case the Appeal Panel erred in law in construing s113(2) as requiring that an error of law be established before it could consider an application for leave to extend the appeal to the merits of the Tribunal's decision. For that reason alone the decision of the Appeal Panel to dismiss the appellant's appeal from the decision of the Tribunal of 22 September 2004 must be set aside. This is so even though then counsel for the appellant conceded before the Appeal Panel, that based on the previous Appeal Panel decisions, it was first necessary for an error of law to be established. That concession notwithstanding, the appellant sought this Court's leave to raise the issue on the hearing of the present appeal and the respondent did not oppose such leave. It should, therefore, be granted. 65 Before leaving this aspect of the matter, I should record a submission on behalf of the appellant based on s34(1) of the VS Act in which it was submitted that because sub-paragraph (1)(b) confined an appeal by the original complainant to a point of law or with respect to any penalty imposed, and because there was no such constraint referred to in sub-paragraph (a) where the appeal was that of the veterinary surgeon against whom the orders under s32 were made, then it must follow that under s34(1)(a) the appellant's appeal was not confined to a point or question of law but was a rehearing on the merits without the necessity of a grant of leave pursuant to s113(2)(b) of the ADT Act. 66 In my view, this construction should be rejected. Section 34(1) is an enabling provision required to found an appeal to the Appeal Panel pursuant to the combined operation of s112(1)(a) and s113(1) of the ADT Act. The section, at least on one view of it, also has the effect of confining any such appeal to the veterinary surgeon against whom the orders under s32 have been made and the original complainant. 67 Although s113(1) of the ADT Act provides that a party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Appeal Panel, nevertheless in accordance with the well-known maxim generalia specialibus non derogant, a special provision as to who can appeal under Part 1 of Chapter 7 of the ADT Act provided for by a provision such as s34(1) of the VS Act must take precedence over the general provisions of s113(1) of the ADT Act. In these circumstances the claimant/prosecutor/informant before the Tribunal has no right to appeal from its decision to the Appeal Panel. 68 The application of the maxim was recently discussed by this Court in Manly Council v Malouf (2004) 61 NSWLR 394 at 408 [62]-[64]. Relevantly, s34(1) of the VS Act can be read harmoniously with s113(1) of the ADT Act upon the basis that the former is to be read as a proviso to the latter, confining an appeal from the Tribunal to the Appeal Panel under Part 1 of Chapter 7 of the ADT Act to the veterinary surgeon against whom an order under s32 has been made and to the original complainant, although in the latter case, any such appeal is confined in the manner set out in s34(1)(b). Otherwise, an appeal by the veterinary surgeon permitted by s34(1)(a), being an appeal to which s34(1) expressly refers as an appeal "under Part 1 of Chapter 7" of the ADT Act, is governed by the provisions of s113(2). 69 In particular, whereas the veterinary surgeon may not only appeal on a point or question of law but also, with the leave of the Appeal Panel, may extend that appeal to a review of the merits of the Tribunal's decision, such an extension is not available to an appeal by the original complainant except with respect to the question of penalty. 70 Accordingly, in my opinion, so far as any review of the merits of the Tribunal's decision was concerned, the appellant was only entitled to extend his appeal to such a review with the leave of the Appeal Panel pursuant to s113(2)(b) of the ADT Act. In other words, contrary to the submission of the appellant, s34(1)(a) did not constitute a separate head of power entitling the appellant to a review by the Appeal Panel of the merits of the Tribunal's decision in the penalty proceedings. It relevantly only identified who might exercise the right of appeal established by s113(1) of the ADT Act: it did not, in my opinion, create a right of appeal separate from and independent of that established s113(1).

Ground of appeal 4 71 The relevance of this ground of appeal is that, if it be the case that the Tribunal denied the appellant procedural fairness prior to making the orders under s32 of the VS Act which it in fact made, then that of itself would not only constitute an error of law but also constitute grounds for the granting of leave by the Appeal Panel to an extension of the appeal to a review of the merits of the Tribunal's decision. 72 The basis of the contention that there was such a denial of procedural fairness was, so it was submitted, the failure of the Tribunal to afford the appellant the opportunity of adducing evidence and making submissions with respect to the particular penalty regime which the Tribunal intended to impose upon him. Significantly, apart from the order suspending the appellant from practice for nine months, Order 2(i) of the Tribunal's orders required the imposition on the appellant's registration as a veterinary surgeon that he only be permitted to practise as an employee of another veterinary surgeon in a practice where there were at least two veterinary surgeons (other than the appellant) practising on a full-time basis. The condition was to remain in force for not less than 15 months after the appellant's return to practice following the expiration of his suspension from practice. 73 The sting in this condition was, firstly, the unlikelihood of the appellant, then 57 years of age, being employable given the Tribunal's description (at [28]) of his disciplinary history as "lamentable" and, secondly, the requirement that he only be employed in a practice where there were, apart from himself, at least two veterinary surgeons practising on a full-time basis. The effect of this last-mentioned factor was that he could not be employed in a one-person practice. 74 It was submitted that, had the appellant been aware of the restrictions contained in the foregoing condition, he would have called evidence in the nature of that set out in [2], [3], [4] and [5] of an affidavit sworn by him on 23 November 2005, in [5] to [15] of an affidavit of Barbara Anne Green, solicitor, sworn 25 November 2005, and in [4] of an affidavit of Geoffrey Clifford Gibbons, veterinary surgeon, sworn 23 November 2005. That evidence appears to establish that by far the majority of veterinary practices were one-person practices and that only 75 practices out of a total of 496 practices in New South Wales had three or more full-time vets working in them. In this respect, the condition imposed by the Tribunal would require a practice of two or more full time veterinary surgeons, if it employed the appellant, to have sufficient work to become a three or more person practice. 75 The point sought to be made was that the chances of the appellant being employed in such circumstances were remote. Of course, unless he could be employed in accordance with that condition, he would be unable to practise his profession which, for better or for worse, he had been practising since 1973. It was submitted that the impact of the condition, therefore, was that it spelled his professional demise. 76 The Court agreed that it would take into consideration the affidavits to which I have referred as indicating the nature of the evidence that would have been called before the Tribunal had procedural fairness to the appellant not been denied in the manner alleged. 77 I have already referred to the fact that, at the conclusion of the hearing before the Tribunal on 1 June 2004, the parties at their own request were directed to file and serve further submissions which they did on 23 June 2004. The Tribunal's stated reason for this indulgence was as follows (at [34]): "The Panel gave Dr Lloyd the opportunity to make further written submissions on the question of the appropriate order, including the possibilities of deregistration, suspension and restrictions on his registration which might require him to work as an employee veterinarian." 78 The transcript of the proceedings before the Appeal Panel on 1 June 2004 reveals the following relevant to this issue. At Black G11 D-G the President of the Tribunal, Judge O'Connor during the course of opening submissions observed that the question was what was the appropriate protective measure if the appellant was to continue to practise essentially in the manner in which he was then practising. He then remarked that the "next question" was whether he should be restricted in regard to the nature of his practice. 79 It would appear that the then legal representative for the respondent made various submissions as to an appropriate penalty indicating, as he said, "different options" to which his Honour responded (at Black G14P-15E) as follows: "His Honour: Well, it just seemed to us that this option you're putting forward is obviously a well-considered and detailed option and it will be given very serious consideration, but then if you look along the spectrum the next one seems to be to – you know, more severe in the spectrum. The next one seems to be what they do in the legal professional case ……restrict the person essentially to an employee certificate, so that they don't practice on their own account any more. And I think this must happen in the medical profession. I'm not sure. … His Honour: So, I mean, on one view of it his skills are worth retaining in the community which in principle professional skills are worth retaining. That's a basic principle. But then would we be less at risk of any recurrence of unsatisfactory conduct if he had to work with someone, basically? So that's – in a sense the inspection mentor audit type option has been utilised with some not obvious success anyway. So is the next area that area? And then the next one, I suppose, is suspension and then deregistration, which you've addressed." 80 In a supplementary written submission to this Court, the respondent conceded that the above observations of the Tribunal's President provided the most detailed statement of the members of the Tribunal foreshadowing the proposed disciplinary orders which it ultimately made. We were also referred to some further remarks by the President (at Black G 17V-18E) to the effect that the appellant would be more accountable if he were "practising under someone else's masthead" who "would be worried that their reputation is not besmirched by the practices of their employee"; a further remark (at Black G19K-L) that his Honour was trying to find some approach that introduced a stronger disciplinary presence into the in situ consultation; and the following remark (at Black G20X-21E) of Dr McGilvray, the veterinary surgeon member of the Tribunal: "McGilvray: It was just a question: you have mentioned close monitoring and close supervisions, and I just, you know, in several ways, and performance assessments. I mean, these are all things that happen when people work together in a group practice, or are employed in a practice; that is automatic in those circumstances." 81 There can be no doubt that the Tribunal provided the appellant with the opportunity of making further submissions with respect to the question of penalty including the various options which had been canvassed during the course of the hearing. Those options included deregistration or suspension and/or the imposition of a condition requiring the appellant to be employed in another veterinary surgeon's practice. 82 In the appellant's solicitor's submissions filed on 23 September 2003, a number of issues were addressed but, relevantly, the following submission was made: "It is submitted that any restriction on Dr Lloyd's certification such as would require him to work for another practitioner would not be effective in the circumstances of this case. It is necessary to take into account the age of Dr Lloyd who, because of his age (late 50s) would not be likely to find such employment in a society geared for employment of the younger generations. Additionally, many potential employers would be reluctant to take on an employee who brought with him the certainty of regular audits and inspections by an order of the VSIC. It is submitted that an order of that nature would be tantamount in practice to striking his name from the roll." 83 The Tribunal referred to the foregoing submission in [40] of its reasons. Although it accepted that the case did not justify deregistration, its conclusion as to the appropriate penalty was expressed in [68] as follows: "However we do consider that a significant period of suspension should be imposed and strict controls should be placed on his re-entry to practice. We do not think that Dr Lloyd should be permitted to practise alone for some time to come. We have had regard to the submission that the course we propose is 'tantamount' to deregistration. It does not go that far. While it may be difficult for a practitioner of Dr Lloyd's age (in his 50s) to obtain employment, the community's interest in competent practice is the interest which disciplinary orders seek to uphold. In our view it is essential that Dr Lloyd be required on resumption from suspension to work in a relevant collegiate environment, and in that way acquaint himself more closely with current standards of practice."

The " collegiate environment " referred to is apparently reflected in Order 2(i) of the Tribunal's orders.

84 In my opinion, the present is not a case where the appellant simply failed to take the best advantage of the opportunity which he was given to make supplementary submissions on penalty: cf Gelderman at [38] and [41]. It is true that the Tribunal gave the appellant the opportunity to make further written submissions generally on the question of penalty, and specifically with respect to a suggested restriction on the appellant's registration such as would require him to work for another practitioner. But the devil was in the detail. 85 It is apparent that the Tribunal did not have in mind requiring the appellant merely to work for another (single) practitioner but to be employed in a practice which already had at least two full-time practitioners so that the appellant would then become (at least) the third. Such a requirement could obviously only be implemented if there were practices which already had at least two full-time practitioners who had sufficient work to employ a third full-time practitioner. It is inherent in the manner in which the Tribunal's condition is expressed that the appellant could only be employed in a practice where there were at least two full-time practitioners who, after employing the appellant, would continue to be so engaged. There was no question of the appellant being substituted for one of those existing full-time practitioners. This was a severe limitation upon the ability of a person in the position of the appellant to obtain such employment and one that was never foreshadowed in any meaningful or understandable way by the Tribunal. There can be no doubt therefore that the appellant was not provided with the opportunity of responding to such a restriction on his ability to continue practising, albeit as an employee. 86 It is apparent from the affidavit evidence to which I have earlier referred and which, it can be accepted, would have been tendered had the particular aspect of the condition to which I have referred been foreshadowed, that that evidence would have considerably strengthened the appellant's submission of the impracticality and unlikelihood of the condition ever being fulfilled with the consequence that its imposition would be tantamount to deregistration. 87 It follows in my opinion that the Tribunal denied the appellant procedural fairness in failing to provide him with the opportunity to call evidence and make submissions on the merits of a condition containing the restrictions to which I have referred. Such a denial of procedural fairness constituted an error of law further justifying the setting aside the Appeal Panel's decision. 88 Again, the appellant sought leave to raise this issue as it was not one that was advocated on his behalf before the Appeal Panel. That leave was not opposed by the respondent and should be granted as it was fundamental to the public interest of ensuring that the appellant received a fair hearing with respect to the type of penalty the Tribunal intended to impose on his continuing ability to practise his profession. 89 It is also clear from the foregoing that the appellant should now have the opportunity of reviewing the merits of the Tribunal's decision. Procedural fairness itself requires in the circumstances that he should be able to call evidence and make submissions in relation to that aspect of the Tribunal's orders with respect to which he has been denied that opportunity. It follows that the appellant has a strong case for a grant of leave under s113(2)(b) to extend his appeal from the Tribunal's decision to a review of its merits. Failing such a grant, the case would still need to be remitted to the Tribunal for further hearing as its decision in any event must be set aside for denial of procedural fairness.

Grounds of appeal 5 and 6 90 In the circumstances, it is not strictly necessary to address these grounds. The first alleges that there was no evidence that as at 22 September 2004 the appellant was unfit to practise as a veterinary surgeon on an unrestricted basis. It involved a consideration of the evidence of Dr Driver and, in particular, the correctness of the following passage from the Tribunal's decision (at [63]): "Dr Lloyd was given an opportunity to respond to these comments by Dr Driver. He did so by way of the statement filed 23 June 2004. The submission was that Dr Driver's comments should be seen as no more than ones going to what in a doctor might be called his or her 'bedside manner'. We do not think that this is all that is being suggested by Dr Driver. As we interpreted Dr Driver's comments, he was seeking to explain, in a diplomatic way, the way in which personal attributes can manifest themselves in the performance of professional work and, importantly, in professional outcomes." 91 Without expressing a final conclusion on the issue, it is apparent from a reading of the Tribunal's reasons that it relied heavily on its interpretation of Dr Driver's comments in coming to the conclusion that the appellant was unfit to practise as a veterinary surgeon on an unrestricted basis. However, a reading of Dr Driver's evidence as a whole and in context does not appear to support the interpretation which the Tribunal placed upon it in the passage from [63] of its reasons recorded above. However, the final resolution of that issue does not raise a question of law and is therefore not a matter which requires further comment by this Court. 92 The same observations may be made with respect to the submission that the penalty regime imposed by the Tribunal was manifestly excessive, unreasonable and unjust. Whether or not this was so depends, firstly, on whether the appellant is presently unfit to practise as a veterinary surgeon on an unrestricted basis and, secondly, upon a review of the merits of the penalty imposed by the Tribunal over a year ago which must now take place. In these circumstances, it is not appropriate for me to consider this issue further.

Should the matter be remitted to the Appeal Panel or to a single judge of the Supreme Court? 93 Although the parties joined in requesting this Court itself to conduct a merit review of the Tribunal's decision and to impose such penalty as it thought fit, there was a consensus of opinion in the Court that that would be inappropriate. In these circumstances the parties were in agreement that it would be more appropriate that any decision on the merits of any particular penalty should, at least in the first instance, be made by a specialist body, a member of whom was a practising veterinary surgeon as was the case with respect to both the Tribunal and the Appeal Panel. 94 The possibility of a remission to a judge of the Supreme Court arises as a consequence of amendments made to the ADT Act by the Amendment Act depending upon the proper construction of cl 37 of the new Part 8 of Schedule 5 to the ADT Act with which I deal below. 95 The appellant's appeal to this Court from the decision of the Appeal Panel was brought pursuant to s119(1) of the ADT Act. It was assigned to this Court because of the provisions of s48 of the SC Act to which I have already referred. Section 120 of the ADT Act prima facie governs the disposal of that appeal. It is in the following terms: "(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Supreme Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Appeal Panel, and (b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court. 96 By s34(4) of the VS Act, and without limiting s120 of the ADT Act, the Supreme Court was also empowered to: (a) make any decision that could have been made under s32 (of the VS Act), or (b) vary any decision made by the Appeal Panel. 97 It is apparent that s34(4)(a) empowered this Court itself to make a decision under s32 as to the appropriate penalty to be imposed upon the appellant but for the reasons to which I have referred, this Court declined to exercise that power. Alternatively, this Court is empowered by s34(4)(b) to vary any decision of the Appeal Panel which, it was submitted, would include its decision (at [75]) to reject the application of the appellant to extend the appeal to the merits of the Tribunal's decision pursuant to s113(2)(b) of the ADT Act. In other words, it was submitted that this Court is empowered to grant the leave which the Appeal Panel declined to grant. I shall return to this contention later in these reasons. 98 However, s34 of the VS Act was repealed by cl 2.5[2] of Schedule 2 to the Amendment Act. Clause 2.5[4] of that Schedule inserted a new Part 6B into the VS Act which set out a new appeal regime against decisions of the Tribunal. That Part contained new ss 54G to 54O. 99 The effect of those provisions is that the Supreme Court will now hear appeals direct from the first instance decisions of the Tribunal imposing orders under s32 of VS Act and that Court will have the same powers as it did prior to the Amendment Act except that any order of remitter will be to the Tribunal rather than to an Appeal Panel. 100 However, in my opinion the provisions of the new Part 6B do not govern the orders which this Court should now make with respect to the appeal. This is because cl [4] of Schedule 1 to the Amendment Act inserted a new Part 8 into Schedule 5 to the ADT Act containing a number of transitional provisions consequent on the enactment of the Amendment Act. Relevantly, cl 37 of the new Part 8 is the critical provision. It is in the following terms: "(1) This clause applies to proceedings before an Appeal Panel of the Tribunal that: (a) were instituted in exercise of an existing right to appeal, and (b) have not been finally determined by the Appeal Panel before the appeal abolition date for that appeal right. (2) Subject to clause 39, proceedings to which this clause applies are to be determined as if the amending Act had not been enacted. (3) Accordingly, any rules, regulations or other law that would have been applicable to the proceedings had the amending Act not been enacted continue to apply to the proceedings as if the amending Act had not been enacted." 101 As the "appeal abolition date" referred to in cl 37(1)(b) was 1 January 2005 and as the Appeal Panel's decision in the present matters was not made until 10 January 2005, cl 37 applied to the proceedings before the Appeal Panel. 102 The question which then arises is whether the proceedings before this Court are to be determined pursuant to cl 37(2) and (3) as if the Amendment Act had not been enacted so that s34(4) of the VS Act and s120 of the ADT Act govern the disposition of the appeal. The question of construction which requires resolution is whether cl 37(1), which provides that the clause is to apply to "proceedings before an Appeal Panel of the Tribunal" that have not been finally determined by that Panel before 1 January 2005, can be construed as extending to an appeal before this Court from a decision of the Appeal Panel made after that date. This involves asking whether, once cl 37 is engaged, it applies for all purposes including an appeal from the Appeal Panel to this Court pursuant to s119(1) of the ADT Act. In other words, does it continue to apply until all appeal rights have been exhausted or the decision of the Appeal Panel, possibly on remission from this Court or the High Court, has become final. 103 The problem which arises, if cl 37 does not so extend, is that this Court would not be able to make any orders pursuant to s34(4) as the whole of that section was repealed as and from 1 January 2005. The Court's powers of disposal of the appeal would then be confined to those set forth in s120 of the ADT Act. 104 Part 6B of the VS Act inserted by the Amendment Act, provides a code with respect to appeals from the Tribunal to the Supreme Court in which the latter is given the same powers as it had under the combined operation of s34(4) of the repealed VS Act and s120 of the ADT Act. On the other hand, that Part only applies to appeals to the Supreme Court against an original decision of the Tribunal. It cannot therefore apply in the present case as the appeal to this Court was not from an original decision of the Tribunal (as that expression is defined in s54G) but from a decision of the Appeal Panel. 105 Clause 37 was intended by the legislature to apply to cases such as the present where an appeal had been instituted from the Tribunal to the Appeal Panel but not finally determined before 1 January 2005. By way of contrast, where an existing right of appeal to the Appeal Panel was available but had not been exercised prior to 1 January 2005, cl 38(2) of the new Part 8 to Schedule 5 of the ADT Act provided that the appeal lay to the Supreme Court and not to an Appeal Panel. 106 In my opinion, in the light of the above, it is apparent that the legislature intended, firstly, that the new Part 6B to the VS Act would only apply to decisions of the Tribunal made on or after 1 January 2005 in respect of which an appeal lay to the Supreme Court; secondly, that cl 38 was to apply to decisions of the Tribunal made prior to 1 January 2005 in respect of which there was an existing right of appeal to the Appeal Panel which had not been exercised as at that date in which event the appeal lay to the Supreme Court; and, thirdly, that where an existing right of appeal to the Appeal Panel had been exercised but not finally determined prior to 1 January 2005, then the proceedings were to progress as if the Amendment Act had not been enacted. In this way, the legislation intended to cover the field and there was no unintentional lacuna or gap. 107 Returning to the question of construction posed in [102] above, it is appropriate, in my opinion, to have regard in particular, firstly, to the terms of cl 37(1)(b) and, secondly, to the presumed intention of the legislature that there should be no lacuna in the transitional provisions. 108 So far as the second of these considerations is concerned, it cannot have been intended that on a competent appeal under s119(1) from the Appeal Panel to the Supreme Court, the latter would not have all the plenary powers which it had prior to the Amendment Act to dispose of the appeal given that those powers are in substance re-enacted in the new Part 6B. 109 As to the first consideration, it seems to me that where the decision of the Appeal Panel is set aside for error of law and the proceedings are remitted, the appeal to that Panel has not been "finally determined" so that the proceedings before the Appeal Panel are still on foot. If this be so, as I consider it is, then this Court's powers with respect to the disposal of the appeal are to be determined in accordance with the provisions of both the ADT Act and the VS Act as they were before the Amendment Act came into force. On this basis, this Court's powers are defined by s120 of the ADT Act supplemented by s34(4) of the VS Act: cf Walsh v Law Society of New South Wales (1999) 198 CLR 73 at 100-101 [75]. 110 It is not a "strained construction" (to use an expression referred to by McHugh JA (as he then was) in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302, see also VOAW v Minister for Immigration and Multicultural Affairs [2003] FCAFC 251 at [12] and [13]), to construe cl 37(1) as applying to proceedings before the Appeal Panel which have not been finally determined because its decision miscarried and has been set aside on appeal so that by virtue of cl 37(3), the provisions of s34(4) of the VS Act (being an "other law" within the meaning of that sub-clause) to continue to apply to the proceedings. 111 It follows that this Court is empowered by s34(4)(b) of the VS Act to vary any decision made by the Appeal Panel in this matter. The appellant therefore submitted that it would be appropriate for this Court to vary the decision of the Appeal Panel to refuse the appellant leave to extend his appeal to a review of the merits of the Tribunal's decision by granting that leave. However, the granting of such leave would involve an exercise of discretion on this Court's part which would be impermissible given that the appeal is confined by s119(1) of the ADT Act to questions of law. This Court can set aside for error law the decision of the Appeal Panel refusing leave and may remit the matter of leave to the Panel for redetermination. But it is not empowered to grant such leave itself. 112 Nevertheless, as I observed in [89] above, the fact that the appellant was denied procedural fairness by the Appeal Panel in the respects referred to above when dealing with Ground of Appeal 4, constitutes an overwhelming basis upon a grant of leave could be justified. This is so because the whole question of the appropriateness of the penalty imposed by the Appeal Panel has been tainted by the denial to the appellant of the opportunity of calling evidence and otherwise dealing with the restrictive requirements of Order 2(i). The whole matter of the appropriate penalty must therefore be looked at afresh. 113 I would also note two further matters. The first is that a period of 15 months has now passed since the Tribunal made its orders. There has been no suggestion by the respondent that during that time the appellant has conducted his veterinary practice other than in accordance with proper professional standards. Secondly, at Appeal Transcript 22(45)-23(4), the respondent made it clear that it would support an application by the appellant for a grant of leave to extend the remitted appeal to a review of the merits of the Tribunal's decision. Ultimately, it will be a matter for the Appeal Panel as to whether there are proper grounds for the grant of leave. The remarks I have made in this and the preceding paragraph are not, of course, intended to be, nor could they be, binding on the Panel although it would be open to it to take them into consideration when exercising its discretion. 114 It thus follows on the basis of my construction of cl 37 that this Court should remit the question of leave and, if leave is granted, the appropriate penalty to be imposed upon the appellant to the Appeal Panel in the light of its review of the merits of the decision of the Tribunal on that question and to make a direction pursuant to s120(2)(b) of the ADT Act that the parties be permitted to elicit such further evidence with respect to any such review as they may be advised. 115 Furthermore, I see no reason why the remitter should not be to the Appeal Panel as originally constituted, if this is achievable. I should note that both parties joined in submitting to this Court that such an order for remittal should be made.

The costs of the appeal 116 The respondent, in its supplementary written submissions after judgment had been reserved, submitted that in relation to the three appeals on liability which were abandoned, the appellant should pay the costs thereof. Although the appellant opposes any such order, it seems to me that such an order should, prima facie, be made. Nevertheless, the appellant has requested that if the Court is minded to make such an order, it be granted liberty to prepare written submissions generally on the question of costs. Reluctant as I am to encourage such a course, it would be fair to say that we have not heard submissions on the costs of the abandoned appeals and, therefore, I would be prepared to grant that leave upon the basis that such submissions are filed and served within seven days of the date of the publication of these reasons. 117 As to the costs of the penalty appeal, the respondent also submitted that the appellant should pay the costs of that appeal both before the Appeal Panel and this Court up to the point where it reformulated it submissions and grounds of appeal by the filing of a supplementary notice of appeal on or about 25 November 2005. Thereafter, it submitted that each party should bear its own costs of the appeal. Again, the appellant opposes those orders and seeks leave to file written submissions with respect thereto. 118 I would again reluctantly accede to that request noting, however, that both parties contributed to the error of law of the Appeal Panel with respect to the appellant's request for leave to extend the appeal to a review of the merits of the Tribunal's decision. On the other hand, it is apparent that the appellant argued before the Appeal Panel that the Tribunal had committed three errors of law summarised by the Appeal Panel in [21] of its judgment. The Appeal Panel found that none of these alleged errors were established which is not entirely surprising given that in substance they really raised questions of fact rather than law including questions of fact relevant to any merit review of the Tribunal's decision. 119 In these circumstances, I am tentatively of the view that the appellant should pay the costs of the respondent before the Appeal Panel. As to the costs of the appeal itself, I would tend to agree with the respondent's submission that the appellant should pay the respondent's costs up until the point of time when the appellant determined to confine its appeal on penalty in accordance with its submissions dated 23 November 2005 and that thereafter, each party should pay its own costs of the appeal. However, I emphasise that these views are tentative only.

Conclusion 120 For the foregoing reasons I would propose the following orders: (a) Appeal allowed; (b) Set aside the decision of the Appeal Panel of 10 January 2005;

(c) Remit ADT Appeal proceedings No. 0490440 of 2004 to the Appeal Panel for redetermination of the appellant's application pursuant to s113(2)(b) of the Administrative Decisions Tribunal Act 1997 for leave to extend his appeal to review the merits of the decision of the Tribunal of 22 September 2004 and, if that leave be granted, to carry out that review; (d) Direct that on any review of the merits of the Tribunal's decision before the Appeal Panel, the parties be permitted to file and serve such further evidence as they may be advised. (e) Reserve the question of costs in this Court. (f) Direct the appellant to file and serve any written submissions he wishes to make with respect to any question of costs on or before 24 January 2006, the respondent to file and serve any submissions in reply on or before 3 February 2006 on the basis that all questions of costs will be determined by the Court upon the papers. **********

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