BURTON v ANDERSON [1994] NSWCA 36

BURTON v ANDERSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 28 September 1994, 28 October 1994

[1994] NSWCA 36

ANIMALS — veterinary surgeons — professional misconduct — inadequate attention to delivery of female dog — Tribunal orders suspension for 3 months — appeal results in stay of order — veterinarian's subsequent practice and financial difficulties — held: (1) order correct when made but (2) long delay requires substitution of reprimand for suspension.

LAW REFORM — Veterinary Surgeons' Disciplinary Tribunal — appeals from — need to substitute requirement to seek specific stay — need for expedition of hearing of appeals.

ANIMALS — veterinary surgeons — professional misconduct — repeated failure of veterinary surgeon locum to detect unborn puppies in Rottweiler female dog producing first litter — dog subjected to prolonged pain over seven days before being put down — autopsy discloses septicaemia and peritonitis — Veterinary Surgeons' Disciplinary Tribunal finds professional misconduct — orders suspension of veterinary surgeon for three months and extensive re-training upon re-admission to practice — veterinary surgeon appeals to Supreme Court — appeal has the effect of providing stay of operation of Tribunal's orders — appeal hearing delayed for three years — fresh evidence tendered as to intermediate professional experience and financial impact of suspension — held: (1) The Tribunal's decision was unexceptionable upon the findings which it made and the material available to it at the time its orders were made; (1) However, the Court of Appeal should take into account the lapse of three years since the orders were made and the fact that the veterinary surgeon had practised, as such, uninterrupted for that period; (3) In the circumstances the orders proper to be made at the time of the Court of Appeal's orders were those made by the Tribunal, with the substitution of a reprimand for the order of suspension for three months.