Veterinary Surgeons Investigating Committee v Mason [2007] NSWADT 91

CITATION: Veterinary Surgeons Investigating Committee v Mason [2007] NSWADT 91

DIVISION: General Division

APPLICANT PARTIES: Veterinary Surgeons Investigating Committee RESPONDENT James Mason

FILE NUMBER: 063329

HEARING DATES: 16 April 2007

SUBMISSIONS CLOSED: 16 April 2007

DATE OF DECISION: 18 April 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Veterinary Surgeons Act 1986

Boyle v Sacker (1888) 39 Ch D 249 Granozcski v Shaw (1896) 7 QLJ 18 CASES CITED: Laurie v Carroll (1958) 98 CLR 310 National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22

APPLICANT In person REPRESENTATION: RESPONDENT M Wade, solicitor

ORDERS: The Tribunal has jurisdiction to entertain the application by the VSIC and I make the following directions:; 1. Mr Mason is to file and serve his evidence, including statements from experts, if any, by 14 May 2007; 2. The VSIC is to file and serve its evidence in reply including statements from experts, if any, by 18 June 2007; 3. The matter is adjourned for further directions on 21 June 2007 at 9.30 am.

REASONS FOR DECISION Introduction 1 On 18 September 2006, the Veterinary Surgeons Investigating Committee (VSIC) lodged an application with the Tribunal requesting a finding that Mr Mason has engaged in serious misconduct in a professional respect pursuant to s22A of the Veterinary Surgeons Act 1986. On the same day, the VSIC served sealed copies of the application on Mr Mason in accordance with the requirements under the Tribunal's Practice Note 17 in relation to professional discipline proceedings. These documents were served on Mr Mason at an address in New Zealand. 2 On 30 October 2006, the Mr Mason appeared by telephone at a directions hearing conducted by President O'Connor. He was not legally represented but did not object to the Tribunal's jurisdiction to hear the matter. The President noted that Mr Mason was out of jurisdiction and was at that time not registered as a veterinary practitioner in New South Wales. The President directed that Mr Mason could be served at the New Zealand address. Mr Mason was directed to file and serve a reply to the application by 27 November 2006. 3 On 27 November 2006 Mr Mason sent an affidavit to the VSIC by email denying the allegations of serious misconduct in a professional respect. He filed a signed copy of that affidavit with the Tribunal by facsimile on the same day. He did not lodge a reply to the application in the approved form with the Tribunal. 4 After a directions hearing before me on 5 March 2007 I queried the Tribunal's jurisdiction in relation to the VSIC's application. I directed the VSIC to file and serve any submissions on jurisdiction by 26 March 2007, and for Mr Mason to file and serve any submissions in reply by 16 April 2007. I decided to determine the issue of jurisdiction "on the papers" in accordance with s 76 of the Administrative Decisions Tribunal Act 1997. Issue 5 The issue in this case is whether the Tribunal has jurisdiction in relation to the VSIC's application. Decision 6 The common law position in relation to service of originating process in a foreign country is that a writ issued out of any State or territorial court does not, except where statute otherwise provides, run beyond the limits of the State or territory in which it was issued: Laurie v Carroll (1958) 98 CLR 310 at 323. There is no relevant statute that provides for service of Tribunal documents outside New South Wales. The only relevant legislative provision is Clause 6 of the Administrative Decisions Tribunal Rules (Transitional Regulation) (the Rules) 1998 which provides that: An application, a reply to an application or any other initiating document lodged with the Tribunal must contain an address for service in respect of the party by whom the document is lodged and that address must include a place and telephone number in New South Wales. 7 Under Cl 4 of the Rules, "The Tribunal, the President or a Divisional Head may dispense with compliance with any requirement of these rules, either before or after the occasion for compliance arises." The President implicitly dispensed with compliance with Cl 6 by making a direction for service on Mr Mason at the New Zealand address at the direction hearing on 30 October 2006. 8 Despite the common law rule that originating process does not run beyond the limits of the State or Territory in which it was issued, a court can exercise jurisdiction at common law if the defendant is present in the forum, or the defendant submits to the jurisdiction of the forum court. After proceedings have been instituted, a defendant may decide to appear and contest the case on its merits. In that case the defendant will be deemed to have submitted to any judgment the court may make: Boyle v Sacker (1888) 39 Ch D 249; Granozcski v Shaw (1896) 7 QLJ 18. Even if the defendant denies the court's jurisdiction, the defendant will be taken to have submitted to the jurisdiction where he or she agrees to allow the substantive claim to be heard: Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 at 30. A mere failure to object at the first possible opportunity does not amount to submission: National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 181 per Holland J. 9 Mr Mason appeared by telephone at the directions hearing of 30 October, and did not object to the jurisdiction of the Tribunal to hear the matter. The fact that he was physically outside the jurisdiction at the time and did not have legal representation is not relevant. Mr Mason submitted to the Tribunal's jurisdiction again when he filed an affidavit with the Tribunal in which he denied the allegations of professional misconduct. In his most recent submissions, Mr Mason conditionally objected to the Tribunal's jurisdiction but he has already submitted to it by choosing to appear and contest the case on its merits. Mr Mason made the point that the VSIC was late in lodging its submissions as to jurisdiction. Mr Mason was not disadvantaged by that relatively short delay. Orders 10 The Tribunal has jurisdiction to entertain the application by the VSIC and I make the following directions: 1. Mr Mason is to file and serve his evidence, including statements from experts, if any, by 14 May 2007. 2. The VSIC is to file and serve its evidence in reply including statements from experts, if any, by 18 June 2007. 3. The matter is adjourned for further directions on 21 June 2007 at 9.30 am.