Appeal Panel - Internal CITATION: Lloyd -v- Veterinary Surgeons Investigating Committee (Inquiry 2: 'Gypsy' - Findings) (GD) [2003] NSWADTAP 48 APPELLANT PARTIES: Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee FILE NUMBER: 039028 HEARING DATES: 28/07/2003 SUBMISSIONS CLOSED: 07/28/2003 DATE OF DECISION: 10/13/2003 Veterinary Surgeons Investigating Committee v Ronald George Lloyd (Inquiry 2: 'Gypsy' – Findings) [2003] NSWADT 96 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Stephens T - Member CATCHWORDS: bias - error as to status of evidence - effect on creditability of another witness - failure of all Tribunal Members to participate in determination - professional misconduct - charges formulated after resolution as to a prima facie case - professional misconduct - conduct constituting professional misconduct - professional misconduct - failure to give sufficient notification of substance of allegations - professional misconduct - insufficient investigation of complaint - professional misconduct - insufficient weight given to expert evidence - professional misconduct - no committee resolution as to prima facie case - reconsitution of tribunal - failure to recall witnesses - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 40005 of 1998 DATE OF DECISION UNDER APPEAL: 05/09/2003 Administrative Decisions Tribunal Act 1997 Poisons Act 1966 LEGISLATION CITED : Poisons and Therapeutic Goods Regulation 1994 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995 Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: 'Total Eclipse' – Jurisdiction) [2003] NSWADTAP 19 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: 'Chisel' – Findings) [2003] NSWADT 95 CASES CITED: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: 'Remus' – Findings: Allegation 1(a) to (e)) [2002] NSWADT 285 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: 'Remus' – Findings: Allegation 2) [2003] NSWADT 136 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' – Jurisdiction) [2002] NSWADT 283 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' – Findings) [2002] NSWADT 284 APPELLANT REPRESENTATION: M Tzannes, Barrister RESPONDENT L T Grey, Barrister ORDERS: 1 Appeal allowed in part; 2 Findings of misconduct in a professional respect set aside in relation to Allegations 1(j), 1(m), 1(n), 1(o), 2(a), 2(b), 2(c), 3 and 4; 3 Finding of misconduct in a professional respect varied in relation to Allegations 1(l) ; 4 Inquiry to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Veterinary Surgeons Act 1986 with respect to Allegations 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(k) and (as varied) 1(l). Introduction 1 This appeal is one of six that have been brought by the respondent in professional disciplinary proceedings, Dr Ronald George Lloyd (Dr Lloyd), against conclusions reached in judgments by a veterinary panel of the General Division. The judgments all related to complaints against Dr Lloyd referred initially to the Veterinary Surgeons Disciplinary Tribunal, then to this Tribunal, by the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act). 2 The judgment appealed from in this appeal is Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: 'Gypsy' – Findings) [2003] NSWADT 96 (hereafter 'Gypsy'). The other five judgments against which Dr Lloyd appealed are as follows: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: 'Remus' – Findings: Allegations 1(a) to (e)) [2002] NSWADT 285 (hereafter 'Remus 1'); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: 'Remus' – Findings: Allegation 2) [2003] NSWADT 136 (hereafter 'Remus 2'); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: 'Chisel' – Findings) [2003] NSWADT 95 (hereafter 'Chisel'); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' – Jurisdiction) [2002] NSWADT 283 (hereafter 'Total Eclipse - Jurisdiction'); and Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: 'Total Eclipse' – Findings) [2002] NSWADT 284 (hereafter 'Total Eclipse – Findings'). 3 Dr Lloyd's appeal in Total Eclipse – Jurisdiction was successful: see Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: 'Total Eclipse' – Jurisdiction) [2003] NSWADTAP 19 – hereafter the Total Eclipse Appeal. In consequence, the findings of the Tribunal in Total Eclipse - Findings have been set aside. 4 The appeals against the judgments in Remus 1, Remus 2 and Chisel have been heard. Judgments on these appeals will be delivered contemporaneously with the present judgment. 5 In Gypsy, the subject of the present appeal, the Tribunal made findings in relation to Allegations 1-4 inclusive of one of the complaints laid by the Committee against Dr Lloyd. These Allegations asserted that Dr Lloyd was guilty of misconduct in a professional respect during and after his treatment of a horse called Gypsy. 6 The Tribunal concluded that, by virtue of its adverse findings, Dr Lloyd was guilty of misconduct in a professional respect in respect of the conduct alleged in each of the Allegations. Uncontested facts 7 The precise circumstances giving rise to the complaint were much disputed. But the following brief outline describes relevant events that were not contested. 8 On 26 December 1995, Ms Sharon Clee, the owner of Gypsy, rang Dr Lloyd at his surgery and asked for veterinary advice. She had previously consulted the Randwick Equine Centre. She said to Dr Lloyd that Gypsy had shown symptoms of diarrhoea and weight loss over a period between six weeks and three months. She suggested that he might be suffering from giardia, as a septic tank in a neighbouring property had recently overflowed into her property and she herself had recently been infected with giardia while on a trip to Asia. In a later phone call, apparently on the same day, Dr Lloyd suggested a medication called Dimetridazole. On 30 December, Ms Clee called at his surgery to collect a container with some of this medication. He told her to give one quarter of the amount in the container to Gypsy each day. She administered this dose on 3, 4 and 5 January 1996. 9 On 6 January, she called at Dr Lloyd's surgery and told him that Gypsy's condition appeared to be deteriorating. He told her not to administer the fourth and final dose. 10 On 8 January, she was very worried that Gypsy was losing a great deal of weight, was off his feed and appeared to be very weak. She rang Dr Lloyd to advise him of these developments. He sent his horse handler, Mr James Murray, who was not a qualified veterinary surgeon, to go to Ms Clee's property and administer two injections of Dexamethasone to Gypsy. Mr Murray did this. 11 On 9 January, being still very concerned, Ms Clee rang Dr Lloyd and arranged to take Gypsy to his veterinary hospital at Hoxton Park. Dr Lloyd examined Gypsy and found him to be ataxic and anaemic, to be suffering from diarrhoea and to have a high temperature. He drenched the horse and administered various medications. 12 He repeated these measures, with some variations, on 10 and 11 January. During this period he kept Gypsy in a paddock with two or three horses on his own. According to Ms Clee, when she visited the paddock on 10 January with her fiance, Mr Glenn Tuinenburg, Gypsy was tethered in a way that prevented him from reaching a water trough. She released him, whereupon he went straight to the trough and drank a good deal of water. Dr Lloyd denied that Gypsy was tethered. 13 On 12 January, at about 7.20 a.m., Gypsy was found to have died. 14 Dr Lloyd said that he performed an autopsy on 12 January, without first having obtained Ms Clee's consent or advised her of Gypsy's death. He told Ms Clee of the death and the autopsy that afternoon, when she was arriving at his surgery to see how Gypsy was faring. He told her that he had found indications of cancer of the liver and stomach and that he would provide her with a report on the autopsy. According to her evidence, he offered to show her some samples from the autopsy (though Dr Lloyd denied this). He offered to attend to the burial of Gypsy, and she accepted this offer. 15 On 12 or 13 January, Dr Lloyd instructed Mr Murray to carry out the burial, at a site near a dam on Dr Lloyd' property. Mr Murray, with the assistance of Mr Laurence Briggs, a horse handler, buried the carcass on 13 January, using a shovel. Dr Lloyd inspected the site after they had completed the burial. He was satisfied with their work. He thought that the depth of the soil over the top of the grave was a few inches. 16 On 18 January, having previously rung Dr Lloyd, Ms Clee went to his Liverpool surgery to pay his bill. 17 On the afternoon of 22 January, Ms Clee went with Mr Tuinenburg to Dr Lloyd's property to ask about the autopsy report. He was not there, so they went to visit the site where Gypsy had been buried. They found, to their shock and distress that the horse's carcass was above ground and clearly visible. It was tied to a tree by a rope. 18 On the morning of 23 January, Ms Clee, Mr Tuinenburg and Ms Nathalie Taimuri (a friend of theirs) visited Dr Lloyd's surgery in Liverpool. They expressed their dissatisfaction with the failure to bury the carcass properly. Ms Clee said that she wished to witness the re-burial, which Dr Lloyd said he would arrange to take place that afternoon, with the use of a bobcat. At or before 2.45 p.m., Dr Lloyd rang her and said that she should come any time before 3.30. But when she arrived for this purpose at about 3 p.m., in company with Mr Tuinenburg and his parents, they discovered that Gypsy had already been buried. This provoked significant hostility, and something of an altercation, between Mr Tuinenburg (and/or his parents) and Dr Lloyd. 19 On or about 9 February 1996, Ms Clee wrote a letter of complaint to the Committee, indicating that she was dissatisfied with Dr Lloyd's diagnosis, care and treatment of Gypsy, and with his conduct after Gypsy's death. Further steps taken by the Committee are outlined below. The Allegations and supporting particulars 20 The text of the four Allegations and the accompanying particulars is as follows:- 1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons' Code of Professional Conduct ("the Code") established under Section 23 of the Act and prescribed for the purposes of section 22(c) of the Act, as follows: (a) On or about 26 December 1995 after consulting with a client, you failed to ensure that a detailed record of the consultation was made. Particulars A few days before 30 December 1995, Sharon Clee consulted you by telephone about treatment required for her horse, "Gypsy". In a subsequent telephone conversation you advised using the drug Dimetridazole and arranged for her to collect a supply of it from you for her to administer to Gypsy. You made no record of those telephone consultations. (b) On or about 30 December 1995 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the substance. Particulars On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee for her to administer to the horse known as "Gypsy". You did not provide her with adequate written instructions as to any dosage requirements. You did not provide her with any written instructions as to the route of administration nor any withholding period that was relevant to the use of that substance. (c) On or about 30 December 1995 you failed to ensure that conditions imposed by legislation relating to dispensing and handling restricted drugs were strictly complied with. Particulars On 30 December 1995 you supplied the drug "Dimetridazole" (a restricted substance) to Sharon Clee to administer to the horse " Gypsy" in a quantity exceeding that required for 3 days' treatment. You did not: (a) record the name, strength, quantity or the date on which it was supplied; (b) record the species of animal nor the name and address of the animal's owners nor; (c) keep the record of the supply of that substance at your hospital, surgery or office; although you were required by regulation 59 of the Poisons Regulation 1994 to make and keep such records. (d) On or about 30 December 1995, after treating an animal and consulting with a client you failed to ensure that a detailed record of the treatment and the consultation was made. Particulars On 30 December 1995 Sharon Clee attended your surgery and you dispensed to her a quantity of the drug Dimetridazole and gave her advice about administering that drug to her horse Gypsy. You made no record of that attendance nor dispensing the drug nor of the advice you gave to her. (e) On 30 December 1995 you failed to carry out professional procedures in accordance with then current standards of veterinary science. Particulars On 30 December 1995 you supplied the drug Dimetridazole to Sharon Clee for her to administer to her horse Gypsy although you had not then examined the horse and had not previously used that drug. (f) On or about 30 December 1995 you supplied a substance that was in Schedule 4 to the Poisons List to a client without ensuring that the substance was correctly labelled. Particulars On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee. There was no information, warning nor other statement about: (i) the quantity of the drug; (ii) the fact that this drug was listed in Schedule 4 of the Poisons List (other than "Caution S4"); (iii) what to do in the event of anyone coming into contact with or swallowing the drug; on any label on the container in which it was supplied. (g) On or about 6 January 1996 after consulting with a client you failed to ensure that a detailed record of the consultation was made. Particulars On 6 January 1996 Sharon Clee consulted you at your surgery about the deteriorating condition of the horse Gypsy. You advised her not to give the last dose of the drug Dimetridazole to the horse. You made no record of that consultation. (h) On or about 8 January 1996 after treating an animal and consulting with a client, you failed to ensure that a detailed record of the treatment and consultation was made. Particulars On 8 January 1996, Sharon Clee rang you about the further deteriorating condition of the horse Gypsy. You sent James Murray to the location where the horse then was, to administer an injection to the horse. The injection was given. You made no record of the telephone conversation nor of the administration of the injection. (i) On 8 January 1996 you failed to carry out professional procedures in accordance with then current standards of veterinary science. Particulars On 8 January 1996 after several days during which Sharon Clee's horse Gypsy had, to your knowledge, been in a deteriorating condition such that you had advised her on 6 January 1996 not to give her horse the last dose of the drug Dimetridazole which you had previously supplied to her, you instructed a person who was not registered under the Veterinary Surgeons Act 1986 nor otherwise qualified to administer an injection of the drug Dexamethasone to that horse without you being present. At that stage you had not: - examined the horse; - taken any steps other than talking to the horse's owner to establish a diagnosis; - previously used the drug other than in the treatment of that same horse over the previous few days. The drug Dexamethasone was a Schedule 4 drug on the Poisons List. You did not in any way supervise the giving on the injection. (j) On or about 8 January 1996 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the substance. Particulars On 8 January 1996 you supplied a quantity of the drug "Dexamethasone" to James Murray for him to administer to the horse known as "Gypsy". You did not provide him with any written instructions as to any dosage requirements, as to the route of administration nor any withholding period that was relevant to the use of that substance. (k) Between 9 January 1996 and 12 January 1996 after treating ani (sic) animal and consulting with a client you failed to ensure that a detailed record of this treatment was made. Particulars On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded: (a) diagnosis; (b) clinical signs; (c) some treatments; (d) previous history; (e) consultation with University of Sydney, Camden; (f) work up. (l) Between 26 December 1995 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science. Particulars Between about 26 December 1995 and 12 January 1996, you were providing treatment to Sharon Clee's horse, Gypsy. Although you had many consultations with her, and were aware of the poor condition of her horse, at no time before 9 January 1996 did you suggest to her that you should examine her horse. You did not undertake any steps apart from talking to her to establish a diagnosis. You did not advise her that there could be other conditions affecting her horse than the condition which she had suggested to you (namely, that it was the effect of a giardiasis bug), you did not advise her about the possibility of tests being conducted, such as biochemistry, full blood count, and abdominocentesis nor offer her referral to a specialist. (m) Between 9 January 1996 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science. Particulars Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection. (n) On 10 January 1996 you failed to consider the welfare of an animal when practicing veterinary science. Particulars On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to water trough and kept his muzzle in it continuously for a period of about 10 minutes. (o) On 12 January 1996 you failed to carry out professional procedures in accordance with the then current standards of veterinary science. Particulars On 12 January 1996, the horse Gypsy having died whilst in your care, you agreed with the horse's owner that you would bury the carcass in the paddock, using a bobcat. You then caused the carcass to be buried in a shallow grave which was not adequately covered as a result of which the horse's owner saw the uncovered carcass and was greatly distressed. 2. That, being the superintendent of a veterinary hospital you are guilty of misconduct in a professional respect in that in accordance with section 54 of the Veterinary Surgeons Act 1986 you were throughout January 1996 responsible for the care, control and management of the hospital and: (a) failed to ensure that a complete record was made at the time of each veterinary treatment and consultation. Particulars On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded; (a) diagnosis; (b) clinical signs; (c) some treatments' previous history; (d) consultation with University of Sydney, Camden; (e) work up. (b) failed to ensure that an animal admitted to the hospital for accommodation or treatment was examined daily or more frequently if the circumstances required. Particulars On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to a water trough and kept his muzzle in it continuously for a period of about 10 minutes. Gypsy had not been examined by you or by any other employee of your hospital for a lengthy period. (c) failed to ensure that an animal admitted to the hospital for accommodation or treatment which showed signs of an infectious or contagious disease was effectively isolated from all animals not so effected. Particulars Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection. 3. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to Section 22(a) of the Act, on or about 8 January 1996 you permitted or required an unregistered person employed by you to practice veterinary science. Particulars On 8 January 1996, James Murray a person employed by you but not registered under the Veterinary Surgeons Act 1986 at your direction injected a horse known as "Gypsy" with the drug "Dexamethasone". 4. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to section 26(1)(c) of the Veterinary Surgeons Act 1986, between 12 January 1996 and 23 January 1996 you did not conduct yourself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general. Particulars On 12 January 1996 you informed the owner of the horse "Gypsy" that you had conducted an autopsy on "Gypsy" that morning, that you had found tumor nodules on the horse's stomach and that "his liver was gone". You said that you had kept a sample of the tumors to show Sharon Clee and that you would keep the samples. On 18 January 1996 when Sharon Clee asked for a sample, you told her that it had been thrown out. You promised to send her one but despite many subsequent requests, did not do so. On 23 January 1996 when Sharon Clee advised you that she would arrange to bury "Gypsy" properly, you informed her that you had arranged for the horse to be buried that day in your paddock. She agreed to this on the condition that Sharon Clee was present during the burial. You promised to telephone her to let her know the time to be present during the burial. At approximately 2:45 pm on that day you telephoned her and requested that she be in attendance at 3:30 pm. Although Sharon Clee was present in your surgery from about 3:00 pm, when she was taken to the new grave by your receptionist, she discovered that the new grave was completely covered up. You subsequently offered the explanation that the bobcat which was used in burying the horse could not wait for Sharon Clee to " turn up". During that conversation with Sharon Clee, Glenn Tuinenburg and Nathalie Taimura, who were obviously distressed at the death of the horse "Gypsy" and the circumstances of the first attempt to bury the horse, you referred to the horse's carcass as "the whole gory lot". During the discussion in your surgery at about 3:00 pm at which Sharon Clee and her finance's (sic) parents were present, there was an argument during which you invited Glenn Tuinenburg to take off his glasses and hat and fight you, at which point Nathalie Taimura offered to call the police. 21 In a 'Table Setting Out Agreed Facts and Other Matters', filed on 3 September 2002, Dr Lloyd admitted, in some instances with qualifications, the factual content of the particulars to the following Allegations: 1(a) – (i) inclusive, 1(k) and 3. He did not formally admit any of the Allegations. 22 As indicated above, the Tribunal concluded that the charges of misconduct in a professional respect had been proved in respect of all of the above Allegations. The grounds of the present appeal 23 In outline, the grounds of Dr Lloyd's appeal, each involving an alleged error of law by the Tribunal, are as follows:- Ground (1): The Committee, having received an initial letter of complaint from Ms Clee, the owner of Gypsy, did not sufficiently investigate the complaint as required by s 27 of the Act. Notwithstanding this, the Tribunal proceeded with the inquiry. Ground (2): When providing to Dr Lloyd, as required by s 28(3) of the Act, the opportunity to make written representations and, at a later stage, oral representations regarding the complaint, the Committee did not notify him of the content of all the Allegations. In particular, it failed in this way in relation to Allegations 1(c), (j), (m) and (n). Notwithstanding this, the Tribunal proceeded with the inquiry. Ground (3): The resolution of the Committee, pursuant to s 28(1)(c) of the Act, that there was a prima facie case of misconduct warranting referral to the Tribunal, did not in terms cover Allegations 1(c), 1(j), 1(m), 1(n), 2(a), 2(b), 2(c) or 4. Notwithstanding this, the Tribunal proceeded with the inquiry. Ground (4): The Committee breached s 28(1)(c) by formulating all the charges against Dr Lloyd after, not before, having made its findings of a prima facie case. Notwithstanding this, the Tribunal proceeded with the inquiry. Ground (5): In its judgment in Chisel, the Tribunal treated an account of certain observations and conduct of Mr Sam Girgenti Jnr, the son of the initial complainant, as if it were evidence given by Mr Girgenti. Its acceptance of this 'evidence', which was in conflict with parts of Dr Lloyd's evidence, had adverse implications for its assessment of Dr Lloyd's credibility. Ground (6): During the course of the hearing, after the witnesses had given their evidence in chief and been cross-examined, one member of the Tribunal panel was replaced by another. Over objections by counsel for Dr Lloyd, neither Ms Clee, Mr Tuinenburg nor Mr Murray was recalled for cross-examination. (Mr Murray had been called as a witness by Dr Lloyd.) Instead, the new member read a transcript of the earlier evidence given by these witnesses. In reaching a number of its findings, the reconstituted panel preferred the evidence of Ms Clee and/or Mr Tuinenburg to that of Dr Lloyd and/or Mr Murray. This refusal to recall lay witnesses, in order that their credibility, which was a matter of importance, could be assessed by the new member, constituted a denial of natural justice to Dr Lloyd. Ground (7): The Tribunal failed to have due regard to the evidence of expert witnesses, where it was favourable to Dr Lloyd, and to the evidence of Dr Lloyd himself. In reaching conclusions adverse to Dr Lloyd despite the presence of this evidence, it manifested an incorrect understanding of the evidentiary requirements for proof of misconduct in a professional respect. Ground (8): The Tribunal exhibited bias against Dr Lloyd. Ground (9): The degree of factual error in the judgment was such that it might in fact be a decision, not of the whole Tribunal panel, but of a single member only. Ground (10): The Tribunal erred in holding, with reference to Allegation 1(o), that (a) the burial of an animal is a professional procedure falling within the practice of veterinary science and (b) that a breach of cl 9 of the Veterinary Surgeons' Code of Professional Conduct ('the Code') will of itself constitute misconduct in a professional respect. Ground (11): The Tribunal erred in holding, with reference to Allegation 4, that a breach of cl 9 of the Code will of itself constitute misconduct in a professional respect. Ground (12): The Tribunal erred in ruling, with reference to Allegation 2, that a veterinary surgeon acting in the capacity of a hospital superintendent could be found guilty of professional misconduct solely on account of a breach or 'serious' breach of cl 20 of the Veterinary Surgeons Regulation 1995 ('the Regulation'). Ground (13): The Tribunal erred in its interpretation of s 22(a) and s 44(1)(k) of the Act, with reference to Allegation 3. Ground (14): Dr Lloyd was denied natural justice in being found guilty of professional misconduct by the Tribunal in relation to a number of allegations framed in identical or similar terms. 24 Dr Lloyd also sought leave to extend the appeal to the merits. The grounds put forward were (a) that the evidence of Ms Clee and the other lay witnesses called by the Committee was demonstrably unreliable, and (b) that insufficient weight was given to the evidence of expert witnesses where it was favourable to Dr Lloyd. 25 In the particular circumstances of this appeal, we considered that this leave should be granted. The position adopted by the Committee 26 An unusual feature of this appeal is that the Committee, having initially laid the complaint against Dr Lloyd, raised no significant opposition to the appeal by him. Furthermore, in its Reply to the Notice of Appeal, in a written submission and in the hearing before us, it raised additional arguments in support of the appeal. 27 We do not think that, on account of this decision by the Committee, the respondent to this appeal, to refrain from opposing the appellant's arguments and indeed to provide positive support for some of them, we should simply allow the appeal. Previously, the Committee, in the discharge of its statutory functions, both referred the various allegations in the complaint to the Tribunal and brought forward a considerable quantity of evidence with a view to establishing that they were well founded. In our opinion, we would be failing to discharge the Tribunal's responsibilities to protect the public interest in professional disciplinary proceedings such as these if we ignored this evidence and allowed the appeal in full simply because the Committee chose not to oppose it. 28 We therefore consider that we are obliged to reach our own independent conclusion as to whether and, if so, to what extent the appeal should succeed, as opposed to simply endorsing the arguments put forward in support of the appeal by both parties to it. In this connection, we would express our agreement, in general terms, with observations made by the Tribunal in Total Eclipse – Findings, at [156 – 173]. 29 We have felt at a disadvantage in not receiving submissions opposing the appeal. In preparing this judgment, we have had to conduct its own researches of the relevant law. But we recognise that grounds on which we might affirm the judgment under appeal are to be found in the reasons for judgment themselves. We would add also that, in so far as a number of the grounds of appeal are concerned with legal procedure rather than veterinary science, it is not so important for a professional disciplinary body such as the Committee to present arguments in opposition to the appeal. The relevant aspects of 'misconduct in a professional respect' 30 A discussion of the concept of 'misconduct in a professional respect', both at common law (in its application to veterinary surgeons) and under various provisions of the Act, appears in Remus 1 at [25 – 33]. We are in general agreement with what is said there, and will not repeat it in these reasons. 31 In judgment on the appeal in Remus 1 (hereafter the Remus 1 Appeal), we have added, at [22 – 24, 105 – 120], some further observations of specific relevance to these appeals. 32 In particular, we have referred in that judgment to the role played by the Act and the Code in extending the common law concept of misconduct in a professional respect. As explained there, a number of provisions of the Code are prescribed for the purposes of s 22(c) of the Act. The result is that a breach of any these provisions is deemed by s 22(1)(c) to be misconduct in a professional respect. 33 Several of the provisions of the Code that are relevant to the present appeal are prescribed for the purposes of s 22(1)(c). They are as follows:- 2. Animal welfare (1) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science. 5. Professional practice (2) Professional procedures should always be carried out in accordance with current standards of veterinary science. (4) A veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable. (9) A veterinary surgeon responsible for the professional supervision of lay staff must ensure that the staff carry out their duties effectively and in compliance with relevant legislation. (12) When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation. 6. Drugs, antibiotics and other chemical or biological substances (3) A veterinary surgeon must not supply, issue or dispense to a client any substance that is included in Schedule 1, 3 or 4 to the Poisons List without ensuring that the substance is correctly labelled. (4) A veterinary surgeon who supplies or arranges for the supply to an animal of a substance included in Schedule 1, 3 or 4 to the Poisons List must ensure that the person who dispenses the substance is provided with written instructions as to any dosage requirement, route of administration or withholding period that is relevant to the use of the substance. Note. Section 8 of the Poisons Act 1966 deals with the Poisons List. 7. Legislative responsibilities To ensure that a veterinary surgeon is able to practise veterinary science in a safe and competent manner, the surgeon must acquire and maintain a sufficient knowledge of all laws that affect the practice of veterinary science, including: (a) laws regulating the supply, dispensing and storage of poisons and therapeutic substances, and (b) laws regulating and controlling the use, keeping and disposal of radioactive substances and radioactive apparatus for therapeutic purposes. ... 34 With reference to cl 6 and cl 7, it should be added that the relevant statutory requirements are set out in Poisons Act 1966 and in the Poisons and Therapeutic Goods Regulation 1994. The text of the relevant provisions is set out in the Tribunal's judgment at [93 – 98]. It need not be reproduced here. 35 A further provision of the Code, cl 9, is not prescribed for the purposes of s 22(1)(c) of the Act. It is as follows:- 9. Professional relationships When practising veterinary science, a veterinary surgeon has an obligation to conduct himself or herself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general. ...' 36 A further statutory extension of the concept of professional misconduct appears in s 22(a) of the Act. It is as follows:- ' 22. Misconduct in a professional respect Without limiting the meaning of the expression 'misconduct in a professional respect', a registered veterinary surgeon shall be deemed to be guilty of misconduct in a professional respect if the veterinary surgeon: (a) permits or requires an unregistered person employed by the veterinary surgeon to practise veterinary science except where that person acts in accordance with this or any other Act, 37 At [73] in its judgment, the Tribunal pointed out that cl 20 of the Veterinary Surgeons Regulation 1995 (the Regulation) was also relevant to this case. The relevant parts of it are as follows:- 20. Duties of superintendent of veterinary hospital (1) The superintendent of a veterinary hospital who is nominated in accordance with section 54 of the Act is responsible for the care, control and management of the hospital. (2) The superintendent of a veterinary hospital must also: (a) ensure that a complete record is made at the time of each veterinary treatment and consultation (including any x-ray film, radiograph or ultrasound image) and that the record is retained for at least 2 years from when it is made, ... (b) ensure that any animal admitted to the hospital for accommodation or treatment is examined daily or more frequently if the circumstances require, ... (f) ensure that any animal admitted to the hospital for accommodation or treatment which shows signs of an infectious or contagious disease is effectively isolated from all animals not so affected, and (g) ensure that sufficient competent staff are present when elective surgery is being performed and when animals are being prepared for any such surgery, and (h) ensure that clauses 21--25 are complied with, ... Maximum penalty: 4 penalty units. Note. Section 54 of the Act enables the licensee of a veterinary hospital to nominate the superintendent of the hospital ' 38 Each of the fourteen grounds of appeal listed above at [23] will now be separately discussed. Ground (1): Insufficient investigation of the complaint by the Committee 39 In putting forward this ground of appeal, Ms Tzannes and Ms Green, who acted as counsel for Dr Lloyd, relied on the decision of the present Appeal Panel relating to another complaint against him. In the Total Eclipse Appeal, we ruled that an investigation as required by s 27 of the Act had not been conducted by the Committee. The only steps taken by the Committee had been to consider (a) a letter of complaint written to the AVA by a person who did not own the animal involved in the case, (b) Dr Lloyd's written response to that letter and (c) oral representations made by him to the Committee (see the judgment at [21]). 40 In the present case, the principal argument on Dr Lloyd's behalf was that the Committee had not interviewed the initial complainant (Ms Clee), or any of the other lay witnesses (including Mr Murray). 41 The Act provides as follows in s 27:- 27 Investigation by Investigating Committee (1) The Investigating Committee shall, except as provided by section 26 (4) and (5), cause all complaints against registered veterinary surgeons made to it in accordance with section 26 to be investigated. (2) Where in the course of the investigation of a complaint against a registered veterinary surgeon: (a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation: (i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or (ii) a complaint could be made to it against another registered veterinary surgeon, and (b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26, the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26. (3) The proceedings of the Investigating Committee shall be held in the absence of the public. (4) For the purposes of any investigation conducted by it, the Investigating Committee may conduct the investigation in such manner as it thinks fit and is not bound to observe rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit. (5) Without limiting subsection (4), the Investigating Committee may delegate its function of collecting evidence in relation to an investigation to any person that the Investigating Committee considers appropriate. 42 In the present case, evidence as to the material considered by the Committee at the investigatory stage – that is, until the Committee resolved, in September 1996, to refer the complaint to the Tribunal – appears in the annexures to an affidavit dated 22 October 2002 by Ms M Linkenbagh, Secretary to the Committee. 43 This material comprised at least the following items: (a) the undated letter of complaint from Ms Clee to the Committee; (b) Dr Lloyd's reply, dated 20 May 1996, to a letter from the Committee, enclosing this letter of complaint; (c) a report from Dr Jill Maddison, of the Randwick Equine Centre; (d) statutory declarations by Ms Clee, and, it would seem, by Mr Tuinenburg and by each of his parents; (e) Dr Lloyd's case-card relating to Gypsy; and (f) oral representations made by him to the Committee on 19 August 1996. 44 In the light of this evidence, we do not accept Dr Lloyd's argument that no investigation, such as s 27 requires, was conducted by the Committee. Significantly more was done in the present inquiry than in the 'Total Eclipse' inquiry. It is not for us to decide whether an investigation is 'adequate', in some sense or another. In particular, it is not for us to decide whether interviews with the lay witnesses were essential in this case. These are matters of professional judgment for the Committee. We could only make the ruling sought by Dr Lloyd if the measures adopted by the Committee could not reasonably be said to constitute an 'investigation' of any kind whatsoever. 45 Ground (1) of this appeal is accordingly rejected. Ground (2): Failure by the Committee to give sufficient notification to Dr Lloyd of the substance of the Allegations, notably Allegations 1(c), (j), (m) and 1(n) 46 This ground of appeal is based on the procedural requirements laid out in s 28 of the Act, particularly s 28(3). 47 In putting this ground of appeal forward, counsel for Dr Lloyd argued that because the initial letter of complaint from Ms Clee was the only material before him when he made the written representations envisaged in s 28(3) (that is, in his letter of 20 May 1996), he could not determine what professional failings alleged against him were of genuine concern to the Committee. It was also argued that, even after the interview with the Committee on 19 August 1996, in which he made the oral representations envisaged in s 28(3), he was still insufficiently put on notice of the matters raised in Allegations 1(c), (j), (m) and 1(n). 48 In its broadest form, the line of argument pressed by counsel for Dr Lloyd depended upon the proposition that all the allegations contained in a complaint ultimately referred to the Tribunal under s 28(1)(c) of the Act must be conveyed to the veterinary surgeon concerned in the course of providing to him or her the opportunity to make written representations and, subsequently, oral representations to the Committee under s 28(3). 49 The following is the text of s 28:- 28 Decision of Investigating Committee on complaint (1) The Investigating Committee: (a) may dismiss any complaint made to it, (b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following: (i) by order, caution or reprimand the veterinary surgeon, (ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon, (iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or (c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly. (2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct. (3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations. 50 In our judgment in the Remus 1 Appeal , at [39 – 43], we have reached two conclusions that are directly relevant here. We will not repeat here the reasoning underpinning those conclusions. 51 The first of these conclusions is that there is no implicit requirement that all matters raised in a complaint referred to the Tribunal must, as a matter of law, be communicated to the veterinary surgeon concerned before the procedures set out in s 28(3) are carried out. 52 The second conclusion that we have reached in the Remus 1 Appeal is that the requirements of natural justice must still be observed. If, for instance, a wholly new and serious allegation of misconduct were made without any prior warning against a veterinary surgeon at the conclusion of the oral interview required by s 28(3), the surgeon might well be able to claim that no proper opportunity had been provided for him or her to rebut or otherwise answer the allegation. 53 We will now consider whether such an opportunity was indeed provided to Dr Lloyd in relation to each of the allegations specifically referred to in this ground of appeal. 54 In its judgment in Gypsy, at [40 – 57], the Tribunal dealt with this question. Its conclusion, after having perused the transcript of Dr Lloyd's interview with the Committee on 19 August 1996, was that the matters covered in Allegations 1(c), (j) and (n) were sufficiently ventilated at the interview with Dr Lloyd. It declared itself satisfied that Dr Lloyd was also sufficiently on notice of Allegation 1(m), because Ms Clee referred to the incident in question in her letter to the Committee and a copy of this letter was sent to Dr Lloyd. 55 At [40 – 43], the Tribunal pointed out that during the interview, references were made to alleged failures of record keeping, though not specifically in the context of the requirements of poisons regulations (this being the specific topic of Allegation 1(c)). We agree with the Tribunal's conclusion that, since these regulations were prominent in the interview, as also was an allegation of general inadequacy of record keeping, he was sufficiently on notice of the content of Allegation 1(c). 56 At [44 – 46], the Tribunal pointed out that during the interview, references were made to Dr Lloyd's alleged misconduct in instructing Mr Murray, an unqualified person, to administer an injection of a restricted substance. It was not specifically put to him, however, that he did not provide adequate written instructions, as required by poisons regulations (this being the specific topic of Allegation 1(j)). 57 In this instance, we do not agree with the Tribunal's conclusion. In our view, the fact that the poisons regulations were prominent in the interview, as also was the allegation that it was improper and indeed illegal to entrust an unauthorised person with this task, was not sufficient to put Dr Lloyd on notice of the content of Allegation 1(j). A failure to satisfy statutory requirements as to the provision of written instructions is an entirely different professional shortcoming to the giving of instructions to an unregistered person to engage in the practice of veterinary science. Sufficient notice was not given merely because a set of alleged facts, embracing both of these alleged shortcomings, was put to him in the interview. 58 We agree with the Tribunal's conclusion, at [55 – 57], that the subject-matter of Allegation 1(n) – failure to ensure that Gypsy had access to water while at Dr Lloyd's property – was sufficiently raised with Dr Lloyd, both in Ms Clee's letter of complaint, and in the interview of 19 August 1996. 59 At [54], the Tribunal quoted the reference to Allegation 1(m) – exposing other horses to the risk of contagion through contact with Gypsy – in Ms Clee's letter of complaint. She wrote: 'As far as anyone knew, he was contagious, he was with other horses?' The Tribunal added that Dr Lloyd did not reply to this comment in his letter of 20 May 1996 to the Committee, and the matter was not raised at the interview. 60 In these circumstances, we cannot agree with the Tribunal's conclusion, at [57], that Dr Lloyd was 'clearly on notice' of the content of Allegation 1(m). It was not enough, in our view, that the issue was briefly mentioned in Ms Clee's letter. The important point is that Dr Lloyd was never told, in the course of the procedures specified in s 28(3), that it was an issue of concern to the Committee. 61 For the foregoing reasons, Ground (2) of the present appeal is upheld in relation to Allegations 1(j) and 1(m). The Tribunal's findings of misconduct based on these two Allegations must on this ground be set aside. 62 Ground (2) of the appeal is dismissed in relation to Allegations 1(c) and 1 (n). Ground (3): No Committee resolution as to a prima facie case with respect to Allegations 1(c), 1(j), 1(m), 1(n), 2(a), 2(b), 2(c) or 4 Ground (4): Charges formulated after, not before, the resolution as to a prima facie case 63 It is convenient to deal with these two grounds together. 64 The argument put for Dr Lloyd in relation to ground (3) was that under s 28(1)(c) the Committee should have been satisfied that there was a prima facie case in respect of each individual allegation that it referred to the Tribunal in its resolutions passed in September 1996. It was argued that in the absence of evidence to this effect, the referral was pro tanto invalid. 65 Up to a point, we accept this argument. We consider that the formal step of declaring itself 'satisfied' as to a 'prima facie' case, as mandated by s 28(1)(c), is required of the Committee in relation to the substance, at least, of every distinct charge which it resolves, under this same provision, to refer to the Tribunal. Unless this is done, it cannot be said that the Tribunal is 'satisfied' that there is a 'prima facie' case in relation to the 'complaint' that is being referred. 66 The grounds for this ruling may be illustrated by reference to an extreme example. Conceivably, a complaint referred to the Tribunal could contain an allegation of very serious misconduct – for example, that a practitioner had deliberately left a very sick animal to die – side by side with an allegation of distinctly less serious misconduct – for example, that the practitioner had insufficiently briefed himself or herself as to recent advances in some aspect of veterinary surgery. If the Committee, after investigating both allegations, declared itself satisfied that there was a prima facie case only in relation to the second of these allegations, its failure to resolve likewise in relation to the first would undoubtedly invalidate any referral of the complaint to the tribunal if it purported to include the first allegation. 67 To hold otherwise would deny to the practitioner concerned all the safeguards that the investigatory process established by ss 27 and 28 are designed to provide. It would potentially give free rein to those carrying out the administrative task of preparing the referral documents and submitting them to the Tribunal to enlarge at will the scope of the complaint authorised by the Committee's resolution. 68 The principles and authorities considered in our discussion of comparable issues, though not this specific issue, in the Total Eclipse Appeal at [35 – 57] appear to us to require this conclusion inevitably. 69 We consider also that a failure by the Committee to observe this requirement is of sufficient seriousness to invalidate the referral, so far as it includes a charge or allegation which was not embraced, in substance at least, by the Committee's resolution. 70 In so ruling, we respectfully differ from conclusions reached in this case by the Tribunal at first instance. The Tribunal dismissed objections to its jurisdiction formulated more or less in the same terms as Ground (3) of this appeal. 71 In its judgment, at [48], the Tribunal stated that the Committee's task, after conducting its investigation, was 'to determine whether the complainant makes out a 'prima facie case' of professional misconduct at least in some respects' (our emphasis). It formulated the Committee's duty as that of reaching 'a state of satisfaction in relation to the complaint as a whole (our emphasis) that meets the standards set out in s 28(1)(c)'. 72 At [51], the Tribunal stated that the Committee, in its final resolution in this matter, had referred to 'issues that it had identified using its special expertise'. The Committee was not, in the Tribunal's opinion, 'thereby seeking to dismiss the seriousness of the other matters raised by Ms Clee; or somehow limit the scope of the referred complaint'. 73 In our judgment, these statements fail to acknowledge the importance of the investigation that the Committee is required to make. If it could refer allegations to the Tribunal without both giving proper consideration to the outcome of its investigation and formally resolving, at least in substance, that there was evidence to support the allegation, the investigation could well be considered futile. 74 Our judgment in the Total Eclipse Appeal and the leading authorities to which we there refer clearly view the role of the Committee in this way. By contrast, the Tribunal, notably in its observations at [51], appears to have considered it sufficient for the Committee merely to refer to issues that it identified by virtue of its special expertise, while confirming implicitly, through its silence, that other issues identified by the lay complainant were also to be considered 'serious'. 75 On the other hand, our response to Ground (4) is that it is not necessary for the precise wording of the charges that are ultimately included in the referred complaint to be the specific subject of the Committee's resolution that a prima facie case exists. No such requirement appears expressly or by implication in s 28(1)(c). To impose it would make it impossible for the wording of any charge to be refined, or indeed merely clarified, subsequent to the Committee's resolution. 76 We will now consider the application of these principles to the present case. 77 During September 1996, the Committee passed a formal resolution to the effect that, having considered the transcript of the interview of 19 August and 'the documentation received in this matter Dr Lloyd 'was guilty of misconduct in a professional respect. It further resolved, at the same meeting, to refer the complaint to the Tribunal. 78 The former resolution outlined in the following terms the forms of misconduct found to have been committed by Dr Lloyd:- 1. Dr Lloyd supplied the drug Dimetridazole, a Schedule 4 drug, (a) without examining the horse, (b) without having previously used the drug, and (c) requested a lay person to administer an S4 drug to the same horse and still without an examination. 2. Dr Lloyd maintained inadequate records 3. There was inadequate consultation with the owner and inadequate offers of options available to work up the case. 4. There was inadequate burial of the horse which was subsequently uncovered causing great distress to the owner. 79 A further comment followed this resolution and preceded the subsequent resolution to refer. It was as follows:- The Committee also discussed whether point 4 could also be a breach of an Act regarding water resources. 80 In December 1996, the Committee considered draft charges that had been prepared by its lawyers. It made only minor amendments. 81 It also resolved that any charges relating to Dr Lloyd's role as superintendent of a veterinary hospital should be deleted. The expressed reason was that, because horses are not small animals, the regulations relating to superintendents did not apply. As indicated, however, by the Tribunal in its judgment at [58-59], the Committee would seem to have reversed this decision at a later stage, since Allegation 2 comprises charges of this nature. The precise sequence of events is unclear. 82 The final formulation of the charges, in the terms set out at 20 above, occurred subsequently. They were then referred to the Tribunal, on behalf of the Committee, by a nominal complainant. Their substantive content was not further considered by the Committee. 83 In these circumstances, we do not accept a submission on Dr Lloyd's behalf that no allegation was properly referred simply because the resolutions of September 1996 did not use a phrase used in s 28(1)(c), namely 'prima facie case'. It is evident that the first resolution of September 1996 embodied a conclusion by the Committee that there was at least a prima facie case. 84 We do however accept the argument that the resolutions passed in September 1996 did not, in substance, include the content of six of the eight allegations listed in Ground (3) of this appeal. These are Allegations 1(j), 1(m), 1(n), 2(b), 2(c) and 4. Even though the substance of all of these, except 1(j), was covered in Ms Clee's initial letter of complaint, that is not sufficient to comply with s 28(1)(c), for the reasons that we have given. 85 On the other hand, we consider that the remaining allegations listed in Ground (3) – Allegations 1(c) and 2(a) – were sufficiently included in clause 2 of the resolution. These two allegations relate, in different ways, to record keeping. Clause 2 of the resolution stated: 'Dr Lloyd maintained inadequate records.' 86 The outcome of this consideration of these two grounds of appeal is therefore as follows. 87 We uphold Ground (3), in so far as it relates to Allegations 1(j), 1(m), 1(n), 2(b), 2(c) and 4. The Tribunal's findings of professional misconduct based on these Allegations must on this ground be set aside. 88 On the other hand, we reject Ground (3) in so far as it applies to Allegations 1(c) and 2(a). 89 We also reject Ground (4) of the appeal. Ground (5): Damage to Dr Lloyd's credit through erroneously treating, in a companion inquiry, an account of a person's observations and conduct as the evidence of that person. 90 The precise nature of this error by the Tribunal is described in our judgment in the Chisel Appeal, at [73 – 76]. 91 In our opinion, this ground of appeal, standing alone, has little merit. As we said in the Chisel Appeal at [80], we find it hard to believe that in a long and complex series of hearings such as occurred in these inquiries into Dr Lloyd's conduct, this one mistake as to the nature of an account of the observations and conduct of a person (Mr Sam Girgenti Jnr) would have had any general significance for the Tribunal's assessment of Dr Lloyd's credibility. If the Tribunal had had other grounds for believing him to be credible, this error on its part would not have disturbed its conclusion. 92 We reject this ground of appeal. Ground (6): The Tribunal's acceptance of the evidence of lay witnesses, without having recalled them for cross-examination after it was reconstituted. 93 The issue raised by this ground of appeal was also raised in Dr Lloyd's appeal against the Tribunal's judgment in Remus 1. In our judgment in the Remus 1 Appeal, at [61 – 103], we have discussed at length the relevant legal principles and their application to the series of events that occurred in the Tribunal below. We will not repeat that discussion here. 94 In the present appeal, as in like circumstances in Remus 1, the essence of the argument pressed by Dr Lloyd is as follows. Over objections raised on his behalf, the Tribunal, having reconstituted itself pursuant to statutory powers, did not recall three key witnesses, namely, Ms Clee, Mr Tuinenburg and Mr Murray. The incoming member did not see and hear these witnesses being cross-examined, but merely read a transcript of their earlier cross-examination. In its judgment, the Tribunal stated that it preferred the evidence of Ms Clee and Mr Tuinenburg to the evidence that Dr Lloyd and Mr Murray gave on important issues which were in dispute. In making findings of misconduct in a professional respect against Dr Lloyd, it explicitly relied on the evidence of Ms Clee and Mr Tuinenburg relating to these issues. 95 Our conclusion in Remus 1, after weighing as best we can the competing considerations, was that the Tribunal, in not acceding to Dr Lloyd's request for recall of a key witness, did not comply with its obligation, imposed by s 73(2) of the Administrative Decisions Tribunal Act 1997, to observe the requirements of natural justice. 96 The same conclusion must apply in the present appeal. It follows, in our opinion, that we must set aside any findings by the Tribunal that depended on its acceptance of the evidence of Ms Clee and/or Mr Tuinenburg, in circumstances where no other evidence sufficiently corroborated them, in preference to that of Dr Lloyd and Mr Murray. 97 It also follows that there is no reason to grant leave to extend this appeal to a review of the merits, in so far as such leave was sought on the ground that the evidence of Ms Clee and the other lay witnesses called by the Committee was demonstrably unreliable. 98 As mentioned above at [21], Dr Lloyd made numerous factual admissions, with the result that a number of the findings of misconduct made by the Tribunal did not depend on its acceptance of the evidence of Ms Clee and the other lay witnesses called by the Committee. Almost all of the Tribunal's other findings of misconduct were based on its acceptance of this evidence, but are set aside by virtue of this judgment on other grounds. In consequence, only one finding by the Tribunal – namely, that the facts stated in Allegation 1(l) were proved and amounted to misconduct – needs to be examined to determine whether it is dependent on acceptance of this evidence and for that reason must be set aside under Ground (6). 99 The gist of this Allegation is that, from the time when Ms Clee first consulted Dr Lloyd (on 26 December 1995) to the time when Gypsy died (on 12 January 1996), Dr Lloyd did not (a) suggest to Ms Clee that he should conduct a full examination of Gypsy, but (up to 9 January 1996) established and acted on a diagnosis of giardia merely by talking to her; (b) advise her (until 9 January 1996) that there might be conditions other than giardia affecting Gypsy; (c) advise her about the possibility of conducting tests such as biochemistry, a full blood count or abdominocentesis; or (d) offer referral to a specialist. 100 Dr Lloyd's and Ms Clee's versions of these events are referred to in the Tribunal's judgment as follows. As to (a) and (c), Dr Lloyd said that initially (that is, on 26 December 1995) he was only dealing with a request for assistance made by phone by a client who he thought would want to keep costs to a minimum, and he therefore believed that he had no obligation to examine Gypsy (see the judgment at [115], [414]). He did however mention the matter of tests ([442]). Ms Clee denied this ([443]). When he finally took Gypsy into his hospital on 9 January 1996, he was principally concerned to stop the horse's diarrhoea. He therefore did not think it necessary to conduct tests, but he did mention them to Ms Clee. She agreed with this ([175], [442 – 444]). As to (b), he agreed that he dispensed medication on the basis that Gypsy was suffering from giardia, but this was because Ms Clee insisted that this was the correct diagnosis. He said that he told her that giardia was an extremely unlikely diagnosis and that he would have discussed differential diagnoses of diarrhoea with her. Ms Clee said that she only raised the possibility of giardia, that he did not describe it as extremely unlikely and he did not discuss differential diagnoses ([114 – 116], [122 – 123]). As to (d), he said that on 9 January 1996, he suggested to Ms Clee that she take Gypsy to the Rural Veterinary Centre at Camden. Ms Clee and Mr Tuinenburg denied this ([165 – 166]). 101 After a lengthy discussion of these and other aspects of Dr Lloyd's treatment of Gypsy (at [404 – 450]), the Tribunal found that the assertions made in Allegation 1 (l) were proved, more or less as claimed by Ms Clee, and that they constituted a failure on his part to carry out professional procedures according to current standards of veterinary science. The Tribunal accordingly made a finding of professional misconduct of 'great seriousness' ([450]). 102 In view of our ruling in relation to Ground (6), the only factual findings relating to Allegation 1(l) that may now be considered valid are as follows: that in the period between 26 December 1995 and 9 January 1996, (i) Dr Lloyd did not suggest to Ms Clee that he should conduct a full examination of Gypsy, but established and acted on a diagnosis of giardia merely by talking to her; and (ii) he did not sufficiently emphasise to her that, despite her apparent conviction to the contrary and in view of his own belief that giardia was unlikely to be the correct diagnosis, there might well be conditions other than giardia affecting Gypsy. 103 The Tribunal's findings to the effect that tests were not suggested until 9 January 1996, and that referral to a specialist was not offered, must be set aside. 104 To summarise, therefore, our conclusions in relation to Ground (6):- - We uphold the submission that the Tribunal erred in law as alleged in Ground (6). - The Tribunal's factual findings in relation to Allegation 1(l) must be varied as indicated in [102 – 103] above. Ground (7): Insufficient weight given by the Tribunal to material parts of the expert evidence 105 The issue here is whether the Tribunal should have made findings of misconduct in a professional respect in relation to any allegation as to which one or more of the expert witnesses expressed an opinion in favour of such a conclusion, but one or more others opposed it. 106 In our judgment in the Remus 1 Appeal, at [105 – 120], we reviewed the relevant authorities. We will not repeat this exercise here, but will restate the general conclusions that we reached. These are as follows. 107 A finding of professional misconduct should not be made simply on the basis of a preference for the opinion of one expert witness over that of another. In this situation, it cannot be said that a court or tribunal can be 'comfortably satisfied' that the practitioner has engaged in conduct deserving of reprobation by fellow-practitioners. 108 We would not go so far as to say, as was submitted on behalf of the Committee, that this conclusion is only justifiable if no practitioner of good repute and competence could approve of the conduct in question. But there must at least be a strong preponderance of expert opinion that the conduct is deserving of reprobation by fellow-practitioners, coupled with acceptance of this opinion by the expert member or members of the tribunal or other body dealing with the matter. 109 When the findings by the Tribunal that must be set aside on other grounds are left out of account, there remain eight Allegations in relation to which the basis of findings of misconduct made by the Tribunal included some degree of reliance on expert evidence. Three of these Allegations – 1(e), (i) and (l) – concerned Dr Lloyd's diagnosis of Gypsy as suffering from giardia and the measures that he adopted pursuant to this diagnosis. The remaining five – 1(a), (d), (g), (h) and (k) – concerned his record keeping. It is convenient to consider these two groups separately. 110 With reference to Dr Lloyd's diagnosis and treatment of Gypsy, two veterinary practitioners with relevant experience gave the principal evidence to the Committee and/or the Tribunal. Dr Rawlinson, a consultant veterinarian who had previously held the position of Director of Clinical Services for the Rural Veterinary centre at Camden, was called by the Committee. Dr Lloyd filed a report by Dr Dart, a Senior Registrar at the same Centre. 111 The important element, for present purposes, in Dr Rawlinson's evidence was his opinion, as summarised by the Tribunal at [409], that 'it was a clear breach of professional standards for Dr Lloyd to diagnose and treat [Gypsy] over the phone' in the circumstances that existed when Ms Clee first consulted him. Dr Rawlinson considered that Dr Lloyd should have gone to examine Gypsy or have him brought to the surgery for examination. 112 Dr Dart did not in his report contest these expressions of opinion. 113 In our judgment, this evidence provides a sufficient basis for a finding that, even on the more limited factual basis set out above (at [102]), a finding of professional misconduct may properly be made pursuant to Allegation 1 (l). In this connection, we note and endorse the Tribunal's rejection (at [411] – [414]) of Dr Lloyd's assertions that Ms Clee was seeking a low-cost solution and that in country areas diagnosis over the phone might be acceptable. These considerations were matters which Dr Rawlinson could and evidently did take into account. 114 The evidence of Dr Rawlinson and Dr Dart also provides a sufficient basis for the Tribunal's findings of misconduct pursuant to Allegations 1(e) and (i). These Allegations relate to Dr Lloyd's conduct in supplying Dimetridazole and Dexamethasone to Ms Clee and Mr Murray (respectively) to be administered to Gypsy, without having first conducted an examination. The Tribunal's findings received further support from doubts expressed by Dr Rawlinson, Dr Dart and Dr Maddison (an expert pharmacologist) as to the appropriateness of these drugs for treating abdominal pain in horses (see the Tribunal's judgment at [522 – 528]). 115 Our conclusion as regards the Tribunal's findings pursuant to Allegations 1(e), (i) and (l), therefore, is that Ground (7) of the appeal, although made out in principle, does not warrant disturbing any of them. 116 Similarly, both Dr Rawlinson and Dr Dart were of the opinion that Dr Lloyd's record-keeping (the subject of Allegations 1(a), (d), (g), (h) and (k)) fell below acceptable standards. Their views are summarised by the Tribunal at [542 – 544]. 117 In response, counsel for Dr Lloyd contended that the evidence given by these two experts did not depict a clear and precise conclusion by either of them that the failures to record specific information (which were, in factual terms, conceded by Dr Lloyd) were sufficiently serious to attract reprobation by reputable fellow-practitioners. Counsel also relied on a report submitted by Dr Hoy, a general practitioner. This report drew attention to the fact that specialists, such as Dr Rawlinson and Dr Dart, generally maintained higher standards of record-keeping than general practitioners, such as Dr Lloyd. 118 In our opinion, the views expressed by Dr Rawlinson and Dr Dart were sufficiently clear and specific, and alleged a sufficiently serious failure to maintain records, to support the Tribunal's findings of misconduct pursuant to Allegations 1(a), (d), (g), (h) and (k). 119 In relation to Ground (7), therefore, our overall conclusion is that, while the principle on which it was based is correct, acceptance of this principle does not warrant our setting aside any Tribunal finding of misconduct that is not liable to be set aside on one or more other grounds. Ground (8): Bias on the part of the Tribunal 120 We have considered and rejected this ground of appeal in our judgment in the Remus 1 Appeal, at [130 – 133]. In our opinion, the same reasons for rejecting it apply in the present appeal. 121 In brief, these reasons are as follows. No authorities were advanced as to whether, and if so, in what circumstances, bias might be inferred from indications such as the fact that the Tribunal declined to recall lay witnesses after it was reconstituted. Much of Dr Lloyd's case on this issue fails to acknowledge that a court or tribunal, without being guilty of bias, may properly form the opinion that the testimony of a party or witness lacks credibility and proceed to discount large parts, if not all, of that testimony. 122 In our opinion, the assertion of bias is not made out. Ground (9): Factual error suggesting that the judgment was the decision of one Tribunal member only 123 We have dealt with, and rejected, this line of argument in the Remus 1 Appeal, at [134 – 136]. 124 The claim made on Dr Lloyd's behalf is based on the existence of some errors of fact appearing in the Tribunal's judgments relating to Dr Lloyd (both in the present inquiry and in accompanying inquiries). It was argued that, in view of these errors, the judgments could not have received the attention of all three members of the panel, and must therefore be the work of only one member. It would follow that they were wholly invalid. 125 As we have indicated in our judgment in the Remus 1 Appeal, distinctly more compelling evidence would be needed to support such a claim. At most, the factors mentioned might support an inference that one member took responsibility for drafting the judgments and that the other members inadvertently failed to draw attention to the errors in question. This is the much more likely explanation given the scale and complexity of the judgments. 126 This ground of appeal is rejected. Ground (10): Error in holding, in relation to Allegation 1(o), that (a) the burial of an animal is a professional procedure falling within the practice of veterinary science and (b) that a breach of cl 9 of the Code will of itself constitute misconduct in a professional respect. 127 At [470 – 502], the Tribunal held that the particulars relating to Allegation 1(o) were established and that they provided the basis for a finding of professional misconduct. These particulars referred to Dr Lloyd's conduct in arranging, with Ms Clee's consent, for the carcass of Gypsy to be buried in a shallow grave which was not adequately covered. The consequence was that, in the course of a visit to the burial site, Ms Clee came upon the carcass, which had become partly visible, and was greatly distressed by what she saw. 128 The charge of misconduct made in this Allegation was that Dr Lloyd 'failed to carry out professional procedures in accordance with the then current standards of veterinary science'. This wording replicates the terms of cl 5(2) of the Code. As indicated above, cl 5(2) is prescribed for the purposes of s 22(c) of the Act, with the result that a breach of it is deemed to be professional misconduct. 129 In the course of arriving at its finding of professional misconduct, the Tribunal, at [491 – 492], quoted the terms of cl 9 of the Code. These are set out above at [35]. As there indicated, cl 9 is not prescribed for the purposes of s 22(c) of the Act. 130 Towards the end of the hearing before the Tribunal, counsel for the Committee submitted that Allegation 1(o) was not sustainable even if the particulars were established, because the provisions of the Code were limited to conduct within the scope of 'veterinary science', as defined in the Act, and the burial of the carcass of an animal did not fall within this concept. This submission was supported by counsel for Dr Lloyd. 131 Expert evidence on the matter was put before the Tribunal. Its content is summarised in the Tribunal's judgment at [477 – 490]. 132 Three expert witnesses – Dr Rawlinson, Dr Dart and Dr Hoy – were of the opinion that inadequate burial practices carried out by or under the instructions of a veterinary surgeon could amount to professional misconduct. 133 A group of other expert witnesses were asked to provide an answer to the following question: Is the disposal of the carcass of an animal that has died whilst in the care of a Veterinary Surgeon, if arrangements for the disposal are made by the Veterinary Surgeon, a procedure that forms part of the practice of Veterinary Science in NSW? 134 A negative answer was given by five of these witnesses: Dr Jane, Dr Martel, Dr Kletsas, Dr Taylor and Dr Alexander. A further witness, Dr Cusack, stated that burial arrangements were 'primarily' a matter of 'client relations' and that if client expectations were not met through the fault of the practitioner, this might well constitute professional misconduct. 135 The Tribunal's view, stated at [482], was that the question put to these six experts was 'the wrong question'. It formulated the relevant issue to be resolved as follows:- whether a failure to conduct oneself properly in relation to the burial of animals might, depending on the nature of the conduct, be viewed as dishonourable or disgraceful conduct affecting the reputation of the profession. 136 At [483], it reiterated that the issue before it could not be 'reduced… to the issue of whether particular conduct is an "act of veterinary science"'. It then stated as follows:- In any case the allegation in issue refers to a failure to follow 'professional procedures', which, in our view, embraces matters that go beyond the exercise of technical skills that are unique to the practice of veterinary science. We see the reference to 'professional' procedures as seeking to cover all procedures reasonably connected with the practice of the profession of veterinary science. These can include activities that are usually undertaken by a veterinarian even though they may be of a kind that are capable of being performed (lawfully) by non-veterinarians. 137 For these reasons, it rejected, at [487] and [490], the evidence of the five witnesses who had given a negative answer to the question put to them. It relied implicitly on the opinions of Dr Rawlinson, Dr Dart, Dr Hoy and Dr Cusack in concluding that inadequate burial practices could constitute misconduct. 138 At [491], the Tribunal quoted cl 9 of the Code in full. At [492], it went on to describe this clause as containing 'a general statement as to the nature of the responsibilities of veterinarians'. At [493], it stated the proposition that 'The conduct for which a veterinarian may be held accountable to his or her peers is all conduct reasonably connected with his or her practice'. It added that this could include activities going beyond 'core functions' such as 'diagnosis, treatment, surgery and the provision of medications'. At [494 – 495], it stated that such activities included relations with clients, that practitioners had 'many interpersonal responsibilities in dealing with clients' and that the conduct with which Allegation 1(o) was concerned was 'directly related to the relationship between Dr Lloyd and his client, Ms Clee'. 139 The Tribunal then added (at [495]) that even when no client was involved, a veterinarian could be found guilty of professional misconduct if his or her conduct 'might bring the profession into disrepute'. It illustrated this proposition by reference to some authorities, notably the English case of Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1. Here a veterinary surgeon had been convicted of offences arising from his failure to bury the carcases of 11 cattle on his farm. The Tribunal quoted a passage in the judgment of Lord Parker CJ (at 9) indicating that professional misconduct may include conduct which tends to bring 'disgrace upon' the relevant profession. 140 At [500], while reiterating that the conduct with which Allegation 1(o) was concerned did involve 'the relationship with a client in respect of a matter commonly undertaken by veterinarians (the burial of an animal)', the Tribunal added that Dr Lloyd's conduct was 'of a kind that brings the profession of veterinary science into disrepute'. 141 In this appeal, counsel for Dr Lloyd and counsel for the Committee repeated, in essence, the arguments put by them at first instance. 142 In our opinion, these arguments provide the basis for a ruling in this appeal that the Tribunal's finding with respect to Allegation 1(o) must be set aside. But our reasoning takes matters somewhat further than simply endorsing and applying the proposition that the burial of the carcass of an animal does not form part of 'veterinary science'. 143 In the first place, we differ from the Tribunal's statement that the question raised in this proposition is 'the wrong question'. It is, at the very least, one of the questions to be determined. This follows simply from the fact that the provision of the Code (cl 5(2)) whose terms are replicated in Allegation 1(o) and the provision (cl 9) to which the Tribunal expressly referred in dealing with the Allegation both contain the phrase 'veterinary science'. 144 In so far as the expert evidence before the Tribunal directly dealt with the question whether burial formed part of 'veterinary science', the answer given was that it did not. 145 We do not think, however, that this was a matter solely for expert evidence. Rather, it was for the Tribunal – and now, as we see it, for this Panel – to determine the matter as a matter of statutory interpretation, paying appropriate regard to the opinions provided by expert witnesses. 146 The reason for this is simply that the Code forms part of regulations prescribed under the Act, and the Act contains a definition of 'veterinary science'. This was not mentioned by the Tribunal in its judgment in Gypsy. It is to be found in s 3, and is as follows:- veterinary science includes any branch of the science or art of veterinary medicine or of veterinary surgery and, without limiting the generality of the foregoing, includes: (a) the examination of or attendance on any animal for the purpose of diagnosing the physiological or pathological condition of the animal, (b) the giving of any anaesthetic to, the performance of any operation on, or the making of any radiological diagnosis of, any animal, (c) without limiting the generality of paragraph (a), the diagnosing of pregnancy in an animal, (d) without limiting the generality of paragraph (b): (i) the carrying out of any artificial breeding procedure involving surgery, and (ii) the de-antlering of deer, and (e) the doing or performing of any act, matter or thing that is prescribed as forming part of the practice of veterinary science. 147 With reference to subparagraph (e), no regulation adding the disposal of a carcass to this definition has been prescribed. 148 Our conclusion is that burial is not within this statutory definition. It follows, as we see it, from four significant considerations. 149 First, as a matter of statutory interpretation, the act of burying an animal cannot be said to fall, expressly or by implication, within any of the specific categories of conduct listed in s 3. None of the categories listed is, or is akin to, the disposal of a carcass. 150 Secondly, as we have indicated, the clear thrust of the expert evidence provided was that, as practitioners view the matter, the activities covered by the broad phrase 'veterinary science' do not include burial. 151 Thirdly, as counsel for the Committee pointed out by way of analogy, 'it is almost impossible to argue that the provision of human funeral services constitutes part of the practice of medicine'. Counsel acknowledged that this analogy could not be pressed too far, as veterinary surgeons do commonly provide burial services. But nonetheless, we see the analogy as relevant. 152 Fourthly, we observe that, if burial did form part of 'the practice of veterinary science', it would be a criminal offence for anyone other than a veterinary surgeon, the owner of an animal or an employee of the owner to bury the animal's body. This follows from the combined operation of ss 37, 44 and 45 of the Act. 153 Section 37 is as follows:- 37 Offence for unregistered person to practise (1) A person, other than a registered veterinary surgeon, shall not: (a) do or perform any act, matter or thing the doing or performance of which forms part of the practice of veterinary science, (b) use the title or description "veterinary surgeon" or "veterinary", or any abbreviation or derivative thereof, either alone or in connection with any other title or description, or (c) hold any prescribed office or position or any office or position of a prescribed class or description. Maximum penalty: 20 penalty units. (2) Subsection (1) (b) does not prohibit persons from using the description "veterinary" only as indicating that they carry on the business of suppliers of goods or materials used in connection with veterinary science. (3) Notwithstanding subsection (1), a society registered under the Co-operatives Act 1992 may provide a veterinary service for its members and charge for that service if the persons employed or engaged by the society to do or perform any act, matter or thing in connection with any such service forming part of the practice of veterinary science are registered veterinary surgeons. (4) Notwithstanding subsection (1), a person other than a registered veterinary surgeon may, in respect of an animal, do or perform any act, matter or thing the doing or performance of which forms part of the practice of veterinary science if the person is: (a) the owner of the animal, or (b) an employee of the owner of the animal and the act, matter or thing was done or performed incidentally to the primary duties of that employment. (5) Notwithstanding subsection (1), a person other than a registered veterinary surgeon may do or perform any act, matter or thing permitted by section 44 or 45. 154 There is no mention of burial in s 44 or s 45. 155 It seems counter-intuitive to us and contrary to popular understanding, that the burial of a small domestic pet, such as a cat or a budgerigar, in the back garden of a family home should constitute a criminal offence if performed by a spouse, parent, child or other relative of the pet's owner, but not if performed by the owner. Yet this appears to be the necessary result of interpreting 'veterinary science' in s 3 of the Act as including the burial of an animal. 156 As can be seen from the above outline, the Tribunal's finding of professional misconduct did not specifically rely on a determination that burial fell within 'veterinary science'. Instead, it appears to have formed the view that, irrespective of this issue, the conduct of Dr Lloyd specified in Allegation 1(o) was professional misconduct (a) as a breach of cl 5(2) of the Code; (b) as a breach of cl 9 of the Code; and (c) at common law. 157 In relation to each of these three grounds for finding professional misconduct, our opinion is, however, that there are flaws necessitating our intervention. We will deal with each of them separately. 158 With reference (though only by implication) to cl 5(2), the Tribunal said, at [483], that the 'professional procedures' referred to in the clause include matters 'that go beyond the exercise of technical skills that are unique to the practice of veterinary science'. They included, in the Tribunal's view, 'all procedures reasonably connected with the practice of the profession of veterinary science'. 159 We respectfully differ from this interpretation. As we read the clause, the 'professional procedures' to which it refers are limited to those in relation to which 'current standards of veterinary science' exist and are ascertainable. It follows that if an activity, such as burial of an animal, falls outside the scope of 'veterinary science', it cannot be deemed to be a 'professional procedure' within the scope of the clause. This must be the case even if it is a procedure commonly associated with the practice of veterinary science. 160 In considering cl 9, the Tribunal held (at [492-493]) that the conduct to which it related was not limited to the 'core functions' of veterinary science, but included 'all conduct reasonably connected with' a veterinary surgeon's practice. 161 As argued, however, by counsel for the Committee in his written submission, this interpretation 'appears to give no weight to the leading words in [clause] 9, namely, "when practising veterinary science"'. We agree with counsel's submission that the rest of the clause is limited by these words. Accordingly, if, as we have held, the burial of an animal falls outside 'veterinary science', it must follow that the obligation imposed by cl 9 does not cover the conduct of a practitioner in burying an animal for his or her client. 162 It might be argued that a different conclusion should be reached because 'practising' should be given a wide interpretation, akin to 'carrying on a practice in'. This would bring within the clause ancillary activities such as the Tribunal mentions: for example, sending invoices to clients, or maintaining a surgery in a clean and hygienic condition. 163 The difficulty with this argument is that, if the same interpretation of 'practising' were applied to s 37 of the Act (reproduced above at [153]), these ancillary activities would be caught by s 37(1)(a). This prohibits unregistered persons from doing anything which 'forms part of the practice of veterinary science'. It would mean that a veterinary surgeon could not employ an unregistered person to send out invoices or clean a surgery. This outcome could not have been intended by the legislature. We accordingly do not think that 'practising', in cl 9, should be interpreted in this way. 164 There are two further reasons why the Tribunal's finding of professional misconduct cannot be upheld by reference to cl 9 of the Code. 165 One is that the Tribunal did not sufficiently address the fact that, unlike cl 5(2), cl 9 has not been prescribed for the purposes of s 22(c) of the Act. A breach is not automatically to be deemed professional misconduct. 166 At [492], the Tribunal appeared to acknowledge this, saying that cl 9 is 'another way of stating the standard' for the conduct of veterinary surgeons, 'a gross breach of which (our emphasis) would amount to a misconduct in a professional respect at common law'. But at [576], in dealing with Allegation 4, the Tribunal stated baldly that breach of the standard set by cl 9 'constitutes misconduct in a professional respect'. It cited cl 10 of the Regulation (not of the Code) as authority. But cl 10 does not so provide. 167 Secondly, Allegation 1(o), as already indicated, is not formulated in terms of cl 9. Its terms clearly point to cl 5(2). The standards to which cl 5(2) refers are the 'current standards of veterinary science'. Clause 9 refers, it is true, to 'the professional standards expected by veterinary surgeons', but also to the standards expected by 'the users of the services of veterinary surgeons and the New South Wales public in general'. The discrepancy between these two concepts is too wide, in our opinion, to allow a charge formulated under the former clause to be sustained by reference to the latter. In so far as the Tribunal's finding against Dr Lloyd was based on cl 9, it departed from the case which, under Allegation 1(o), he was called on to meet. 168 For the same reason, we consider that the Tribunal's adverse finding under Allegation 1(o) must be set aside in so far as it relies on the common law concept of professional misconduct. That concept, as ultimately invoked by the Tribunal at [500], covered conduct bringing the profession of veterinary science into disrepute. Allegation 1(o) did not in any way refer to this criterion for determining misconduct. 169 Having said this, we wish to add that the conduct of Dr Lloyd in relation to the first, inadequate burial of the body of Gypsy might well have been properly held to constitute common law misconduct, if the charge against him had been laid in these terms. The conduct outlined by the Tribunal – taking into account particularly the level of distress that it predictably caused to Ms Clee – appears to us to fall well within the concept of conduct bringing the profession into disrepute. Ground (11): Error in holding, with reference to Allegation 4, that a breach of cl 9 of the Code will of itself constitute misconduct in a professional respect. 170 We have already held, at [87], that the Tribunal's finding of professional misconduct against Dr Lloyd pursuant to Allegation 4 must be set aside because, prior to referring the complaint to the Tribunal, the Committee did not resolve that there was a prima facie case to support this Allegation. 171 For reasons just outlined in relation to the preceding ground of appeal, we consider that this finding is also vulnerable to challenge as claimed in Ground (11). The charge laid in the Allegation is in the same terms as cl 9 of the Code. In commencing its discussion of the Allegation, at [576], the Tribunal stated that breach of the standard set by cl 9 'constitutes misconduct in a professional respect'. It cited cl 10 of the Regulation (not of the Code) as authority. But cl 10 does not so provide. Nothing appearing subsequently in the judgment indicates that the Tribunal recognised its error. 172 We would note also, though the point was not specifically made to us, that the conduct referred to in the Allegation did not, on our reading of cl 9, fall within the practice of veterinary science. This is a further reason why the charge, being phrased in the wording of cl 9, was not properly laid. 173 In contrast to its treatment of Allegation 1(o), the Tribunal's judgment did not raise the possibility that the conduct described in Allegation 4 might constitute professional misconduct at common law. If it had done this, the same difficulty would arise as with Allegation 1(o), namely, that the charge was not framed in the appropriate terms. Ground (12): Error in ruling that a veterinary surgeon acting in the capacity of a hospital superintendent can be found guilty of professional misconduct on account of a breach or 'serious' breach of cl 20 of the Regulation. 174 Under Allegation 2, Dr Lloyd was found guilty of misconduct in a professional respect by virtue of having failed, in his capacity as a hospital superintendent, (a) to maintain adequate records of treatments and consultations relating to Gypsy, (b) to ensure that Gypsy was examined daily or more frequently and (c) to keep Gypsy isolated from other animals on grounds of possible contagion. The factual findings supporting a finding of misconduct under various earlier Allegations were relied on also for this ruling on Allegation 2. 175 We have already held, at [87], that the Tribunal's finding of professional misconduct against Dr Lloyd pursuant to Allegation 2(b) and 2(c) must be set aside because, prior to referring the complaint to the Tribunal, the Committee did not resolve that there was a prima facie case to support these Allegations. This leaves Allegation 2(a) for consideration in the present context. 176 Allegation 2(a) replicates part of the wording of the duty imposed in cl 20(2)(a) of the Regulation, namely, to 'ensure that a complete record is made at the time of each veterinary treatment and consultation'. 177 The approach of the Tribunal, as explained at [74 – 79] and [548 – 553], was to cite cl 20(2)(a) of the Regulation, to find that Dr Lloyd breached this clause (which establishes a criminal offence) and to state that since it was a 'serious' breach it could constitute professional misconduct at common law. 178 Counsel for Dr Lloyd and for the Committee pointed out that this involved assuming that a 'serious' breach of cl 20(2)(a) – which had not in fact been proved for criminal law purposes – would constitute professional misconduct even though this was not stated anywhere in the Act or the Regulation. In this regard, it was not like a breach of cl 5(12) of the Code, which was the clause relied on in Allegations 1(a), (h) and (k). A breach of cl 20(2)(a) of the Regulation, they submitted, could only constitute misconduct if the common law criterion of 'conduct deserving reprobation' was found to have been satisfied. Such a finding had not been made by the Tribunal. 179 In our judgment, this ground of appeal has merit. The Tribunal has taken account of the differences, for present purposes, between the two clauses. It has recognised that a breach of Regulation 20(2)(a) does not of itself constitute misconduct. But it has treated a finding of 'seriousness' in the admitted breaches as equivalent to a finding that they would incur the reprobation of fellow-practitioners. This is to underplay the strength of the common law criterion. 180 We would add that a defect already identified in our discussion of the two preceding grounds of appeal – namely that the finding made by the Tribunal differs significantly from the terms of the conduct charged in the Allegation – is also present here. There was no reference to 'serious' breaches, let alone to breaches that would incur reprobation, in the wording of Allegation 2(a). 181 Ground (12) is upheld. On this ground, the Tribunal's conclusion that Dr Lloyd was guilty of professional misconduct pursuant to Allegation 2(a) must be set aside. Ground (13): The Tribunal erred in its interpretation of s 22(a) and s 44(1)(k) of the Act, with reference to Allegation 3. 182 Unlike the other Allegations in this case, Allegation 3 is based on s 22(a) of the Act, which deems a registered veterinary surgeon to be guilty of misconduct in a professional respect if he or she 'permits or requires an unregistered person employed by the veterinary surgeon to practise veterinary science except where that person acts in accordance with this or any other Act'. 183 The Act's prohibition on the practice of veterinary science by an unregistered person is in s 37(1)(a), which is reproduced above at [153]. Under s 37(3), the prohibition does not apply if the relevant conduct is permitted under s 44 or s 45. 184 Allegation 3 asserted that on 8 January 1996, Dr Lloyd committed misconduct under s 22(a) through directing Mr Murray, an unqualified person, to practise veterinary science by administering an injection of Dexamethasone to Gypsy. 185 In response, counsel for Dr Lloyd and for the Committee maintained that, in the particular circumstances, there was no breach of s 37, and therefore no misconduct under s 22(a), because the situation fell within s 44(1)(k). This provides as follows:- 44 Permitted practices for unregistered persons (1) A person, other than a registered veterinary surgeon, may:… (k) where a registered veterinary surgeon is not available, attend and treat an animal in urgent need of veterinary attention or treatment. 186 The testimony of Dr Lloyd, Ms Clee and Mr Murray concurred in saying that, at the time when Ms Clee rang Dr Lloyd and he decided that the injection was necessary, he was operating on a dog (see the Tribunal's judgment at [145]). It was also common ground that Gypsy was in urgent need of veterinary treatment. 187 The principal argument put in the appeal on behalf of Dr Lloyd and the Committee can be crystallised as follows. With these two elements of s 44(1)(k) established, the onus lay on the Committee to establish, to the 'comfortable satisfaction' of the Tribunal, that another veterinary surgeon was in fact available, or (possibly) that Dr Lloyd was unreasonable in his belief that no other surgeon could be found who was available. This followed from a strict reading of s 44(1)(k), coupled with the evidentiary requirements of disciplinary proceedings such as these (see our judgment in the Remus 1 Appeal, at [105 – 120]). 188 At [570], the Tribunal addressed the issue of availability of other surgeons. It stated merely that 'there were numerous veterinary practices' in the neighbourhood, that 'it was open to [Dr Lloyd] to enquire of other veterinarians' and that 'he gave no consideration to the possibility'. 189 We agree with counsel's submission. It appears to us that the Tribunal's discussion of this matter fell short of what was required. As far as we can discern, no evidence was tendered in relation to the actual availability of veterinary surgeons in the neighbourhood at the relevant time, nor to the question whether it was, or would have been, unreasonable for Dr Lloyd to assume that none was unavailable. 190 For these reasons, Ground (13) is upheld, and the finding based on Allegation 3 must be set aside. Ground (14): Error, involving denial of natural justice, in finding misconduct pursuant to allegations drafted in identical terms 191 In our judgment in the Remus 1 Appeal at [121 – 126], we rejected an argument along these lines. We see no reason for doing otherwise here. Orders to be made in disposing of the appeal 192 We have upheld, wholly or in part, seven of the fourteen grounds. These are Grounds (2), (3), (6) and (10) – (13). We have rejected six of the grounds: (1), (4), (5), (8), (9) and (14). In relation to the remaining ground, Ground (7), we have determined that, while the principle on which it is based is correct, acceptance of this principle does not warrant our setting aside any finding that is not liable to be set aside on one or more other grounds. 193 A consequence of applying these rulings to the separate Allegations on which the Tribunal made findings of misconduct in a professional respect against Dr Lloyd is that a number of these findings must be set aside. These are the findings made pursuant to the following Allegations: 1(j), 1(m), 1(n), 1(o), 2(a), 2(b), 2(c), 3 and 4. 194 The findings made pursuant to the following Allegations of misconduct in a professional respect are unaffected: Allegations 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i) and 1(k). 195 The finding of misconduct in a professional respect made pursuant to Allegation 1 (l) is affirmed, but only on the following factual basis: that in the period between 26 December 1995 and 9 January 1996, (i) Dr Lloyd did not suggest to Ms Clee that he should conduct a full examination of Gypsy, but established and acted on a diagnosis of giardia merely by talking to her; and (ii) he did not sufficiently emphasise to her that, despite her apparent conviction to the contrary and in view of his own belief that giardia was unlikely to be the correct diagnosis, there might well be conditions other than giardia affecting Gypsy. 196 The case is to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Act with respect to the findings outlined in the two preceding paragraphs. A stay order precluding this, which we granted on 12 June 2003, will cease to operate, according to its own terms, upon the delivery of this judgment. Concluding observations 197 At the conclusion of our judgment in the Remus 1 Appeal, we have made a number of observations as to how the Committee should interpret and fulfil its obligations under ss 26 – 28 of the Act. A number of those observations are pertinent to the present case. 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.