New South Wales Court of Appeal CITATION : Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 HEARING DATE(S) : 12 May 2003 JUDGMENT DATE : 12 May 2003 JUDGMENT OF : Giles JA DECISION : Notice of Motion dismissed with costs. CATCHWORDS : Disciplinary proceedings in ADT - decision given making serious findings against veterinary surgeon - decision on penalty reserved - application in Common Law Division to prevent ADT giving decision on penalty - allegation that ADT denied procedural fairness in relation to penalty - application refused - appeal brought - whether should be relief pending hearing of appeal directed to ADT and preventing giving decision on penalty - nature of relief sought - significance of protective purpose of disciplinary proceedings - prospects of appeal - relief refused. ND Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378; re JRL; ex parte CRL (1986) 161 CLR 342; CASES CITED : Minister for Immigration and Multicultural Affairs v Jai Legeng [2001] 205 CLR 507; New South Wales Bar Association v Stevens [2003] NSWCA 95; Vakauta v Kelly (1989) 167 CLR 568; re Watson; ex parte Armstrong (1976) 136 CLR 248. PARTIES : Peter Allan Howe - Claimant Administrative Decisions Tribunal of New South Wales - Opponent FILE NUMBER(S) : CA 40293/03 COUNSEL : A P Stenmark SC - Claimant M N Wade - Opponent SOLICITORS : P M E Robinson & Co - Claimant Tress Cocks & Maddox - Opponent LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT CL 10516/03 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40293/03 CL 10516/03 GILES JA Monday 12 May 2003 HOWE v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES Judgment 1 GILES JA: This is an application in proceedings in which the claimant has filed a notice of appeal without appointment appealing from a decision of Dunford J given on 13 March 2003. 2 The claimant is a veterinary surgeon, having been admitted to practice as such in 1972. He was the subject of proceedings brought by the Veterinary Surgeons Investigating Committee in the Administrative Decisions Tribunal in which disciplinary relief was claimed. The proceedings concerned events in 1996-1997. It was alleged that the claimant had been guilty of misconduct or serious misconduct in a professional respect (first complaint) and that he was not of good character (second complaint). 3 Ten particulars of the complaints were given, of which seven were found to have been established to the Briginshaw standard. The conduct found against the claimant was serious, as was recognised in the application before me, and involved false certifications and reporting to fellow veterinarians in relation to the performance of veterinary services and the brucellosis status of a ram, including the concoction of a forged laboratory report. 4 The Tribunal concluded that the claimant had engaged in conduct which was serious misconduct in a professional respect and that he was not of good character. It went on to say that it was comfortably satisfied that the claimant "is currently not of a good character", explaining that "rather than admitting his guilt and untangling himself from the web of deceit that he had created, [the claimant] chose to continue and further exacerbate his dishonest behaviour at the Tribunal hearing". 5 The application in the Tribunal was filed on 12 February 2002. The hearings before the Tribunal took place in August 2002, and on 30 September 2002 the Tribunal published its decision in which it found that the seven particulars of the two complaints had been established. 6 At the hearing in August a question had arisen whether the Tribunal would consider any disciplinary penalty when it gave its decision. On behalf of the claimant it had been submitted that there should be an entirely separate hearing as to penalty, but the Tribunal wished to have submissions directed to penalty. 7 In the decision published on 30 September 2002 the Tribunal addressed penalty. It said that it was satisfied that the claimant should be removed from the register of veterinary surgeons for at least two years, giving as the reasons for that the seriousness of his misconduct and the serious character flaw which his dishonesty displayed. It said, however, that because in the August hearing a further opportunity had been requested to address the Tribunal in relation to its proposed orders, the orders it formulated were proposed orders only, in that if either party wished to address the Tribunal on the appropriateness of the proposed orders certain steps should be taken to that end. 8 In the document recording the Tribunal's decision, which had provision at its commencement for indication of the orders made, there appeared against the marginal reference to "Orders" a paragraph beginning "Proposed orders" and then setting out the orders which in the body of the decision had been proposed subject to any further address to the Tribunal. 9 The opportunity to further address to the Tribunal was taken up, and there was a further hearing before the Tribunal on 9 December 2002. 10 On that occasion the claimant applied for the members of the Tribunal to disqualify themselves on the ground of apprehended bias occasioned by the Tribunal considering penalty at the hearing in August and proposing the disciplinary orders in the decision published on 30 September 2002, with some emphasis, it seems, on the form of the document in which the Tribunal's decision had been published. The members of the Tribunal declined to disqualify themselves. The hearing then continued directed to penalty, and the Tribunal reserved its decision. 11 Reasons were requested in relation to the members of the Tribunal declining to disqualify themselves, and those reasons were given, but the decision of the Tribunal as to penalty remains reserved. 12 At some time in February 2003 the claimant applied by summons in the Common Law Division of this Court, claiming relief in a considerable number of paragraphs but essentially by way of declaration that the claimant had been denied natural justice by the Tribunal and an order that the Tribunal be prohibited from making any further orders in its proceedings. The summons was heard by Dunford J on 13 March 2003, and was dismissed with costs. 13 The relief was claimed before his Honour on two bases. 14 The first basis for the relief claimed was that the Tribunal should not have considered any disciplinary penalty until it had published its decision as to the complaints brought by the Veterinary Surgeons Investigating Committee, and should have taken a purely two stage approach to the proceedings before it. Reliance was placed on Hall v New South Wales Trotting Club Limited (1977) 1 NSWLR 378 at 382 and other cases. Dunford J said that, while it was generally desirable that addresses on penalty follow a determination of guilt, so that the person accused knows precisely the ambit of the findings to which submissions on penalty need to be addressed, the rule was not inflexible, and that provided there was ample opportunity to address on penalty there was no breach of any rules of natural justice or procedural fairness. In fact, as can be seen from the account I have given, the claimant had had the fullest opportunity to address on penalty. His Honour's decision on this point was unarguably correct, and although in the beginning it was suggested that the appeal would take issue with it I think that in the course of submissions that was abandoned. In any event, there is no properly arguable ground of appeal on that matter. 15 The second basis for the relief claimed was apprehended bias. It was said that the form in which the decision of the Tribunal had been published, indicating "Orders", and the fact that the Tribunal had got to the stage of the proposed orders in its decision, indicated that there was pre-judgment and that in its still outstanding decision as to penalty the Tribunal might not be impartial. 16 Dunford J saw no substance in the first of these aspects, saying that - ".... the words 'proposed orders' appeared quite clearly and no one looking at the document, either in hard copy or on the Internet website, could have been under any misapprehension but that these orders were merely proposed, and were not final, particularly the plaintiff and his legal advisers , who presumably would have read the judgment carefully and noted that provision had been made for further submissions to be made on penalty". (emphasis added) 17 In the claimant's submissions before me, the emphasised words were to be the centrepiece of the appeal. It was submitted that his Honour had applied the wrong test, in that instead of asking what the reasonable bystander or the reasonable and fair minded observer might have seen by way of pre-judgment, his Honour applied the test of the claimant and his legal advisers. 18 It seems to me that this is an extremely difficult case to argue on appeal. His Honour began by saying that no-one looking at the document could have been under any misapprehension, and referred to the claimant and his legal advisers only by way of particularity. His Honour then went on to deal with the other aspect of apprehended bias, the expression of proposed orders prior to hearing the further submissions on penalty. He referred to re JRL; ex parte CRL (1986) 161 CLR 342 for the test of the parties or the public entertaining a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the issues, and to the reasonable bystander test in Vakauta v Kelly (1989) 167 CLR 568 and re Watson; ex parte Armstrong (1976) 136 CLR 248. He clearly had well in mind more than the claimant and his legal advisers. 19 As to that other aspect, his Honour considered that while the Tribunal had expressed a view, it had made it clear that it was not a final view. He referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507 for the observations concerning the decision maker giving fresh consideration in the light of further facts and arguments. His Honour thought that there was no basis for apprehending that the Tribunal would disregard the evidence and submissions of 9 December 2002 in giving the matter fresh consideration. The appeal was otherwise to be that he was incorrect in this respect. 20 It is against that background that the current application is made, an application for orders having the effect that the Tribunal is precluded from making any further orders in the proceedings before it or publishing its outstanding decision as to penalty. 21 There was some debate about the source of Dunford J's power to grant the relief claimed in the summons. It seems to me that the jurisdictional basis for the summons was probably s 69 of Supreme Court Act 1970, and that the claimant was there seeking relief in the nature of prohibition on the ground that the Tribunal's jurisdiction was vitiated through denial of procedural fairness. There was some obscurity in this, and Dunford J did not have occasion to consider what relief he could or should give. I am content to proceed on the basis that there was power to grant the relief claimed in the summons. 22 There was as well some debate over the power I am being asked to exercise. I am also content to proceed on the basis that, under s 23 of the Supreme Court Act or as part of the inherent jurisdiction of the Court, the Court of Appeal may make orders such as those presently sought in order to protect the utility of the appeal, and that within s 46(2)(b) of the Act the orders are orders in an appeal not involving the determination or decision of the appeal. For reasons which will appear, I do not think it necessary further to explore the source of my power. 23 The claimant argued, in effect, that what was at stake in the hearing of the summons by Dunford J was the exercise of jurisdiction over him by the Tribunal, and that he would be severely prejudiced because through that exercise of jurisdiction being permitted to proceed, although vitiated, he would suffer irreparable harm. The irreparable harm, on his case, was not so much that the Tribunal's findings adverse to him would become public, because whether or not they should have they had become public through the publication of the decision of 30 September 2002 on the Internet. Perhaps the Tribunal's decision as to disciplinary penalty would add something, but that is not known; maybe it would provide some alleviation. The irreparable harm, on the claimant's argument, would rather come from an order of the kind foreshadowed by the Tribunal in its proposed orders, whereby he would be removed from the register of veterinary surgeons. If that were to occur he would lose his income earning ability, and the practice which he had built up would effectively be destroyed and be very difficult to regain in the event that he were to succeed in his appeal and have the Tribunal precluded from proceeding further. 24 These adverse consequences to the claimant must be recognised. However, the Tribunal's findings were serious and, as was common ground, any exercise by it of its disciplinary powers would be in order to protect the public. Those words are not empty words, and do not require postulation of what the claimant might do or not do in his practice, for example, by saying that his transgressions in 1996/1997 concerned an activity not now the bulk of his veterinary activities. The point is that if the Tribunal takes the view that the claimant is not a person fit to be on the register of veterinary surgeons, protection of the public requires that something be done. 25 There seems little doubt that the Tribunal takes an adverse view of the claimant's conduct, and subject to the further evidence and submissions (of which I know nothing) an order removing the claimant from the register of veterinary surgeons is a possibility. There are, however, other possibilities, and it is difficult to ask for interlocutory relief against the making of orders when it is not known what the orders will be. 26 It seems to me that I must weigh up on the one hand my view which, although in circumstances such as these it must be preliminary, on the facts in this case I have come to with some clarity, that the appeal does not have strong prospects of success, and on the other hand the fact that if the Tribunal considers protection of the public so requires any orders it makes whereby the claimant is removed from the register of veterinary surgeons should be permitted to be made. Further, it is open to the Tribunal to fashion its orders to allow a period within which the claimant can prosecute his appeal. It is open to the claimant to appeal within the Administrative Decisions Tribunal to an Appeals Panel, and it is open to the claimant when the orders made by the Tribunal have been made to apply again for relief, because then more will be known about the impact on him. 27 Weighing all these matters, I have come to the view that it is not appropriate, in the exercise of the power earlier mentioned, now to accede to the claimant's application. I therefore order that the notice of motion be dismissed with costs. 28 Addendum: This is added when revising the transcript of my reasons delivered ex tempore. In submissions I adverted to the decision of this Court in New South Wales Bar Association v Stevens [2003] NSWCA 95 as of possible relevance. Neither party took the matter further. Having gone to the case after giving my decision, it appears to support the basis of the power I was asked to exercise (paras [83]-[86]) and the significance of the protective nature of any orders made by the Tribunal (paras [91]-[104]). ********** Last Modified: 05/20/2003 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.