New South Wales Court of Appeal CITATION : LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE & ANOR [1999] NSWCA 68 FILE NUMBER(S) : CA 40196/99 HEARING DATE(S) : 19 and 22 March 1999 JUDGMENT DATE : 25 March 1999 PARTIES : Ronald George Lloyd v Veterinary Surgeons Investigating Committee and TCN Channel 9 JUDGMENT OF : Mason P at 1; Priestley JA at 2; Stein JA at 27 LOWER COURT JURISDICTION : Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S) : 40004/98 LOWER COURT JUDICIAL OFFICER : O'Connor J Claimant - D. Inverarity COUNSEL : Opponent 1 (VSIC) - S.J. Burchett Opponent 2 (TCN 9) - T.D. Blackburn Claimant - Hermann & Green SOLICITORS : Opponent 1 - Conway MacCallum Opponent 2 - Gilbert & Tobin CATCHWORDS : See note re section 126 of the Administrative Tribunals Act re non publication of any identifying matter; Application for relief in the nature of prerogative relief; Supreme Court Act s 69; Availability of appellate review in Tribunal below; Case not appropriate for consideration by Supreme Court until after appellate procedure below followed out. Administrative Decisions Tribunal Act 1997 ACTS CITED : Supreme Court Act 1970 Veterinary Surgeons Act 1986 DECISION : Summons dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40196/99 ADT 40004/98 MASON P PRIESTLEY JA STEIN JA Thursday, 25 March 1999 WARNING : Section 126 of the Administrative Tribunals Act may apply to this case. Its terms are summarised in par 4 of the court's reasons. LLOYD v VETERINARY SURGEONS INVESTIGATING COMMITTEE & ANOR 1 MASON P: I agree with Priestley JA. 2 PRIESTLEY JA: The Administrative Decisions Tribunal Act 1997 (the ADT Act) established the Administrative Decisions Tribunal (the Tribunal). The court was told that the Tribunal began to exercise its powers and functions on 1 January 1999. 3 On Monday, 15 March 1999 the General Division of the Tribunal began the hearing of proceedings entitled The Veterinary Surgeons Investigating Committee v Dr R.G. Lloyd. The proceedings were listed by that name in the list outside the hearing room at the St James Centre, 111 Elizabeth Street, and in the Sydney Morning Herald. After beginning on the Monday the hearing of the proceedings went forward on the following Tuesday and Wednesday and was continuing on Thursday, 18 March 1999. 4 By virtue of s 75 of the ADT Act, the hearing of the proceedings was to be open to the public unless the Tribunal decided otherwise, which it did not do. Although the hearing was thus open to the public, s 126 of the ADT Act provides that a person must not, except with the consent of the Tribunal, publish or broadcast the name of any person, amongst others, to whom any proceedings before the Tribunal relate, whether before or after the proceedings are disposed of. Section 126(3) provides that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 5 On Thursday, 18 March 1999, TCN Channel Nine Pty Limited (TCN) notified the Registrar of the Tribunal that it sought the consent of the Tribunal pursuant to s 126(1) to publish or broadcast Dr Lloyd's name. When this application came before the Tribunal, a counter application was made by Dr Lloyd under pars (b), (c) and (d) of subs 2 of s 75 for orders prohibiting or restricting the publication or disclosure of various matters. The Tribunal refused Dr Lloyd's application and granted consent to TCN, in terms of its application, to identification of Dr Lloyd and no other witness to the proceedings. 6 On the morning of Friday, 19 March 1999, Dr Lloyd, whom I will from now on call the claimant, filed a summons in the Supreme Court claiming (1) an order that the Tribunal's order giving consent pursuant to s 126 be set aside, (2) an order that pending the conclusion of the proceedings in the Tribunal, TCN not publish the name of the claimant or any information, picture or other material identifying or likely to lead to the identification of the claimant, (3) that pending determination of the proceedings in the Supreme Court, an interim order be made that TCN not publish the name of the claimant or any information, picture or other material that identified him or was likely to lead to his identification. The claimant did not ask for any relief in respect of his unsuccessful application to the Tribunal pursuant to s 75. Thus all that was sought in this court was review in respect of the s 126 consent. 7 The claimant's summons came on for hearing before Bergin J later on Friday, 19 March 1999. She ordered that the proceedings be removed into the Court of Appeal pursuant to s 51(1)(b) of the Supreme Court Act. The summons then came before me at 4 pm on the same day. The claimant and the opponent TCN put evidence before the court. The opponent Veterinary Surgeons Investigating Committee also appeared. I heard submissions from counsel for the claimant, but was unable to complete the hearing that afternoon. I adjourned the further hearing until 9.30 am Monday, 22 March 1999, staying the operation of the Tribunal's consent until the conclusion of the proceedings in the Supreme Court. I was told that the proceedings in the Tribunal had been adjourned during Friday, pending a decision upon the claimant's summons, and were to be resumed on Tuesday, 23 March 1999. 8 In considering the matter over the weekend and on reading again s 46 of the Supreme Court Act I was reminded that a single Judge of Appeal has no power to decide an appeal "or other proceedings". A claim such as made by the claimant seemed to me to be one which must fall within the description "other proceedings". Accordingly, a court of three was assembled for the further hearing of the matter at 9.30 on Monday, 22 March 1999. The hearing proceeded on the basis of the evidence that had been tendered before me on the Friday. 9 The question was raised with the parties whether the court should hear the summons in light of the appeal and review procedures available in the ADT Act. If the Tribunal's decision to grant consent under s 126 was an appealable decision within s 112, it was competent for the claimant to appeal to the Tribunal constituted by an Appeal Panel (s 113(1)). This appeal lay on any question of law, and, with the leave of the Appeal Panel, might extend to a review of the merits of the appealable decision (s 113(2)). By s 118(1) an Appeal Panel determining an appeal under Pt 1 of Ch 7 of the ADT Act might of its own motion or at the request of a party refer a question of law arising in the appeal to the Supreme Court for the opinion of the court. Section 118(2) then gave the Supreme Court jurisdiction to hear and determine any question of law referred under the section. 10 Sections 112 to 118 comprise Pt 1 (Internal appeal rights) of Ch 7 (Appeals from decisions of Tribunal) of the ADT Act. Part 2 (ss 119-121) of Ch 7 (Appeals to Supreme Court) gives a party to proceedings before an Appeal Panel a right to appeal to the Supreme Court on a question of law "against any decision of the Appeal Panel in those proceedings". No right of appeal is given from the Appeal Panel to the Supreme Court on any question other than a question of law. 11 Section 122 and 123 comprise Pt 3 (Inter-relationship between Supreme Court and Tribunal) of Ch 7. Section 122 provides that nothing in the ADT Act (except s 123) affects the power of the Supreme Court in the exercise of its original jurisdiction to review the decisions of the Tribunal. 12 Section 123 provides that the Supreme Court may refuse to grant an application for the review of an original decision of the Tribunal, and of a reviewable decision, if satisfied that in all the circumstances adequate provision is made under the Act for the applicant to seek an alternative review of the decision. Section 123(2) lists a number of matters the Supreme Court may take into account in deciding whether to refuse an application for review, and without limiting the generality of s 123(1). Section 123(3) defines "review" as including a review by way of reconsideration, rehearing, appeal, the grant of an injunction or of a prerogative or statutory writ, or the making of an order in the nature of such a writ, or the making of a declaratory or other order but does not include an appeal under Pt 2. 13 It was common ground in the argument before the court on Monday, 22 March 1999 that the jurisdiction the claimant by his summons was asking the court to exercise was that described in s 69 of the Supreme Court Act, commonly called jurisdiction to grant relief in the nature of prerogative relief. This court, as was remarked by Kirby P in Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 248, "has often indicated a disinclination to provide discretionary relief in the nature of the prerogative writs against a single member of the Industrial Commission where the facility of internal appeal has not been utilised". This disinclination applies to prerogative relief generally where the facility of internal appeal is readily available. The court's practice appears to have been recognised by the explicit provisions of s 123 of the ADT Act. The court's practice is not invariable; as Kirby P also said in Ackroyd, "The rule is neither inflexible nor universal. It is simply a sensible principle of restraint, allowing for the efficient and proper use of judicial time and of the remedies involved." (at 248) 14 In my opinion, this case, as it presently stands, is one in which the appeal procedures in the Tribunal should be followed through before this court exercises its original jurisdiction referred to in s 122 of the ADT Act and provided for in s 69 of the Supreme Court Act. That opinion however is subject to the condition mentioned earlier, that the Tribunal's decision to grant consent to TCN under s 126 was an appealable decision making the appeal process of Pt 1 of Ch 7 available to the claimant. It was argued for TCN in the proceedings before us that the decision in question was not an appealable decision of the Tribunal within the meaning of Pt 1. 15 The question raised by this submission is not easy to answer briefly. This is because it is necessary to look at three Acts in approaching the question: the ADT Act, the Administrative Decisions Legislation Amendment Act 1997 (the Amendment Act) and the Veterinary Surgeons Act 1986, (the VS Act). The VS Act was extensively amended by the Amendment Act. 16 The functions of the Tribunal in relation to the VS Act are allocated to the General Division of the Tribunal (ADT Act, Schedule 2 Pt 4, Division 2). 17 Section 112 of the ADT Act (which is in Pt 1 of Ch 7) says: "(1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. " (Emphasis in original.) "(2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71(2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal. (3) A decision of an Appeal Panel is not an appealable decision for the purposes of this Part. " 18 "Original decision" in s 112(1)(a) is a term defined in s 7 of the ADT Act as "a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker". "Decision" is defined in s 6 very broadly, and as including among many other things, "giving ... a ... consent ...". 19 Section 28 of the VS Act confers powers and imposes duties on the Investigating Committee in regard to complaints. Section 28(1)(c) provides that if the Investigating Committee 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, it shall refer the complaint accordingly. The court in these proceedings was told that that was what had happened in the present case, four matters being referred in accordance with s 28. Section 32 of the VS Act provides that if the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of orders set out in pars (a) to (f); the orders which may be made pursuant to these paragraphs include orders of reprimand, of suspension, of removal of the name of the veterinary surgeon from the Register and of the imposition of a fine. A decision of the Tribunal making any such order would in my opinion be one made in relation to a matter over which the Tribunal had jurisdiction under an enactment (the VS Act) to act as the primary decision-maker. It would thus be an original decision within the meaning of the term as used in s 7 of the ADT Act; and it would also be an original decision within the meaning of that term as used in par (a) of s 112(1) of the ADT Act, in the latter case because the enactment under which the Tribunal has jurisdiction to make the decision (the VS Act) expressly provides, in s 34, that the registered veterinary surgeon against whom an order under s 32 was made may appeal against that order to an Appeal Panel. 20 It follows that when a sufficiently serious complaint within the meaning of s 28(1)(c) of the VS Act is referred to the Tribunal then the proceedings before the Tribunal are proceedings for an original decision within the meaning of those words in s 112(1)(a). 21 For the decision to give consent under s 126 to be an appealable decision within the meaning of s 112(1) it must then be "a decision of the Tribunal ... made in proceedings for: (a) an original decision" described in par (a). That is, the critical question raised on behalf of TCN is whether it is a proper construction of s 112(1) to hold that the decision by which the Tribunal gave consent under s 126 was a decision "made in proceedings for: (a) an (a) original decision" as described in par (a). 22 For TCN it was submitted that the "decision ... made in proceedings ..." must be the original decision itself referred to in par (a). The opposing view is that it need not be itself that original decision, but simply a decision of the Tribunal made in the course of proceedings seeking an original decision of the kind referred to in par (a). 23 Which of these two views provides the better construction is a question the answer to which cannot be said to emerge particularly clearly from the materials, but in my opinion the better construction is that "decision of the Tribunal ... made in proceedings" includes a decision made in the course of the proceedings and is not confined to the principal "original decision" being sought in the proceedings before the Tribunal and described in par (a) of s 112(1). The view I favour seems to me to make better sense of the ADT Act and also to be a more straightforward reading of s 112(1). This construction may have the result that a great many interlocutory decisions fall within s 113, which could conceivably cause inconvenience to the Tribunal when constituted by an Appeal Panel. The view proposed by TCN could have the equally inconvenient result that although interlocutory decisions could not go to an Appeal Panel they could nevertheless be brought to this court by means of s 69 of the Supreme Court Act and s 122 of the ATD Act. Decisions such as to give consent under s 126 to a person to publish or broadcast the name of a person before the Tribunal could in some cases (the claimant believes it to be so in the present case) be of particular importance and possible prejudice to the person concerned. It seems to me that it is appropriate that there should be a s 113 right of appeal in respect of such decisions and the language of s 112, on a reasonable interpretation, in my opinion makes provision for such a right of appeal. 24 That being so, I am of the opinion that this court should in this case at this stage be satisfied that Pt 1 of Ch 7 makes adequate provision for the claimant to seek an alternative review of the decision to grant consent under s 126, and in the circumstances of the case should decline to deal with the application for review contained in the claimant's summons. There is no sufficient reason why the path of appeal provided by the legislation should not be followed. The reasons for such a course mentioned by Kirby P in Ackroyd, set out above, seem to me to be applicable here. 25 The court reached this conclusion at the end of the argument on Monday, 22 March 1999. The court then told the parties that it would make its formal decision and give its reasons on Thursday, 25 March 1999 at 4.15 pm; the stay that I granted on Friday, 19 March 1999 would remain in place until the court made formal orders on that Thursday but would then become spent upon dismissal of the summons; it was made clear that the intention was that it should be open to the claimant, if he chose, to appeal pursuant to Pt 1 of Ch 7 to an Appeal Panel in the meantime, in which case it would then be a matter for the Appeal Panel whether it made any interlocutory order staying the consent given by the Tribunal last Thursday which would otherwise again become operative when the interim stay granted by this court became spent. The court also said that for its part it saw no reason why the Tribunal should not continue with the hearing of the matters before it, in the meantime, although of course it was recognised that it would be a matter for the Tribunal to decide whether it would follow this course. 26 In my opinion the claimant's summons should be dismissed with costs. 27 STEIN JA: I agree with Priestley JA. ********** 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.