Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Veterinary Surgeons Board of Queensland v Butterworth[2022] QCAT 377Member Lee and presiding Dr Sandra Baxendell Dr Wendy Grigg
Add to List

Veterinary Surgeons Board of Queensland v Butterworth[2022] QCAT 377

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Veterinary Surgeons Board of Queensland v Butterworth [2022] QCAT 377
PARTIES:	Veterinary Surgeons Board of queensland (applicant) v edward charles butterworth (respondent)
APPLICATION NO/S:	OCR309-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	9 November 2022
HEARING DATE:	18 February 2022 17 May 2022
HEARD AT:	Brisbane
DECISION OF:	Member Lee, presiding Dr Sandra Baxendell Dr Wendy Grigg
ORDERS:	The respondent has engaged in misconduct in a professional respect. That the respondent’s registration be subject to the following condition: (a) For a period of 5 years from the date of this order, the respondent is prohibited from: Employing or contracting females to work for him in his veterinary practice; Providing work experience or placement opportunities or the like to females in his veterinary practice; and The above conditions do not apply to the respondent’s own wife and children or to any female bookkeeper or administrative assistant who solely works on a remote basis and is never in the same physical location as the respondent. No order as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – referral of allegations consequent upon convictions and sentencing for three counts of sexual assault and one count of oral rape – student/teacher – remote workplace placement – respondent admitted he had behaved in a way that constitutes ‘misconduct in a professional respect’ – sanction Veterinary Surgeons Act 1936 (Qld), s 15A, s 15C, s 15D, s 22F, s 22E Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(2)(a), s 10(1)(b), s 100, s 102 Veterinary Surgeons Board v Griffin [2017] QCAT 293 Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105 Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27 Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234 Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 Watts v Legal Services Commissioner [2016] QCA 224 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 230
APPEARANCES & REPRESENTATION:
Applicant:	C Wilson, instructed by Turks Legal
Respondent:	G Rice KC, instructed by Potts Lawyers

REASONS FOR DECISION

Introduction

[1]
These proceedings arise by way of referral from the Veterinary Surgeons Board of Queensland (Board) to the Queensland Civil and Administrative Tribunal (Tribunal) pursuant to Section 15A of the Veterinary Surgeons Act 1936 (Act), in the exercise of its original jurisdiction pursuant to Sections 9(2)(a) and 10(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[2]
Since there is now no contest that the respondent engaged in misconduct in a professional respect^[1] and that there was a nexus between the misconduct to his profession and his registration,^[2] the task before the Tribunal is confined to the determination of sanction.
[3]
A hearing book containing a large volume of material filed and relied upon by the parties was tendered as an exhibit at the hearing.^[3] A large folder of authorities was also helpfully provided.
[4]
The hearing of the matter took place over two days on 18 February 2022 and 17 May 2022,^[4] during which the Tribunal also heard oral evidence.
[5]
We acknowledge the helpful submissions prepared on behalf of the parties.^[5]

Facts

[6]
The parties have agreed on material facts, narrowing the issues in dispute.^[6]
[7]
For the purpose of these reasons for decision, they are summarised as follows:
1. (a)
  The respondent:
  1. Attained the qualification of Bachelor of Veterinary Science from the University of Queensland in 1994;
  2. Was registered with the Board as a veterinary surgeon on 14 December 1994;
  3. Maintained continuous registration from 1994 to 14 December 2018;
  4. Was the owner of Northwest Veterinary Clinic at Mount Isa (Practice), which employed up to five veterinary surgeons and provided veterinary services in the region from Mornington Island to Birdsville and the Barkly Tablelands to Richmond, an area spanning a radius of approximately 800 kilometres;
2. (b)
  During the respondent’s practice of veterinary science, he states as follows:
  1. He has always met or exceeded his professional development hours;
  2. He has previously lectured to Bachelor of Veterinary Science students at the University of Queensland and James Cook University;
  3. He held the position of president for the North Queensland branch of the Australian Veterinary Association; and
  4. In response to a request by the Board, he provided detailed advice in relation to new techniques for spaying cows for the purposes of developing new regulations.
3. (c)
  The circumstances of the complainant^[7] are as follows:
  1. The respondent and the complainant first met in or about 2011 in connection with the respondent providing veterinary services to the complainant’s pet;
  2. In or about 2013, the complainant communicated to the respondent that she had decided to undertake studies to become a veterinary surgeon;
  3. In 2014, the complainant commenced tertiary studies that would entitle her to obtain registration as a veterinary surgeon under the Act;
  4. On or about July 2015, following extended discussions, the respondent agreed that the complainant could complete a two-week period of work experience at his Practice, which commenced on 29 June 2015;
  5. Between 29 June 2015 and 12 July 2015, the respondent and complainant travelled between stations and stayed in homesteads on cattle stations for the majority of the placement;
  6. Between 6 to 12 July 2015, the complainant and respondent stayed at the respondent’s two-bedroom house in Karumba^[8] and were the only occupants of the house during that time;
  7. On 8 July 2015, the complainant undertook work experience with the respondent during the day, as had occurred on the previous days during the placement. That evening the complainant and respondent had dinner together at the Karumba house and watched the State of Origin, YouTube videos and consumed beer and rum (these activities of which did not form part of her work experience);
  8. The conduct which occurred in the evening of 8 July 2015 resulted in the convictions against the respondent, referred to below at (f); and
  9. The complainant continued to stay at the Karumba house with the respondent until they departed on 10 July 2015 and completed her work experience placement as planned on 12 July 2015.
4. (d)
  On 5 August 2015, the complainant made a report to the Queensland Police Service (QPS) about conduct she alleged took place in the evening of 8 July 2015 at the respondent’s residence at Karumba;
5. (e)
  Almost two years later, in April 2017, the respondent was made aware of the complaint and subsequently charges were laid by the QPS;
6. (f)
  On 2 August 2018, following a jury trial in the Mount Isa District Court, the respondent was convicted of four offences all of which were committed over a short period in the evening of 8 July 2015, namely:
  1. Three counts of sexual assault; and
  2. One count of rape particularised as committing oral sex on the complainant.^[9]
7. (g)
  The respondent was sentenced to two and a half years’ imprisonment, suspended after 12 months for an operational period of three years on the rape count. Lesser concurrent terms were imposed on the remaining counts;^[10]
8. (h)
  The sentencing Judge indicated that he was making an order releasing the respondent after having served 12 months in custody to take into account the mitigating circumstances including the delay in the respondent becoming aware of the complaint and the financial and other consequences for him and his family resulting from his incarceration;
9. (i)
  The respondent appealed against his conviction;
10. (j)
  On 31 December 2018, the respondent’s name was removed from the register of practitioners due only to non-payment of registration fees;
11. (k)
  Following a hearing on 6 March 2019, the Court of Appeal delivered its decision on 24 May 2019, dismissing the appeal;^[11]
12. (l)
  In March 2019, the respondent sold his Practice due to his dire financial circumstances consequent upon the conviction and sentence;
13. (m)
  On 22 March 2019, the respondent gave an undertaking to the Board not to perform acts of veterinary science which has continued to date;
14. (n)
  The respondent was released from custody on 1 August 2019;
15. (o)
  The respondent has not performed acts of veterinary science since July 2018;
16. (p)
  Upon application by the respondent, the Board restored his name to the register, with effect from 20 January 2020; and
17. (q)
  The respondent has not been the subject of previous adverse discipline findings.

Evidence

[8]
The Board relies upon the following material:
1. (a)
  Amended Referral, filed 3 August 2020;
2. (b)
  Amended Response, filed 18 December 2020;^[12]
3. (c)
  Statement of Agreed Facts, filed 1 June 2021;
4. (d)
  Affidavit of Louise Marie Nixon, filed 27 November 2018, which exhibits the verdict and judgement, and sentencing remarks of the trial judge;
5. (e)
  Affidavit of Sophia Johnson (the complainant), filed 16 September 2021;
6. (f)
  An affidavit of another person^[13] (prior complainant), filed 1 February 2022; and
7. (g)
  Affidavit of Sandra Pigliafiori, filed 3 February 2021.
[9]
The respondent relies upon the following material:
1. (a)
  Affidavit of Craig Allan DoRozario, filed 31 August 2021 which exhibits the following:
  1. Letter of instruction and attachments to Dr Jacqui Yoxall dated 21 July 2020;
  2. Report of Dr Dr Jacqui Yoxall dated 17 December 2020, including curriculum vitae;
  3. Supplementary letter of instruction and attachments to Dr Jacqui Yoxall dated 6 August 2020;
  4. Supplementary report of Dr Jacqui Yoxall dated 22 August 2020;
  5. Character reference of Robbie Katter dated 28 January 2020;
  6. Character reference of Sandra Pigliafiori dated 27 January 2020;
  7. Character reference of Father Mick Lowcock dated 23 January 2020;
  8. Character reference of Edith Hampson dated 21 January 2020;
  9. Character reference of Mark Bryant dated 20 January 2020;
  10. Character reference of Mike Westerman, undated;
  11. Character reference of Laurie Dowling dated 21 January 2020;
  12. Additional character reference of Laurie Dowling 8 February 2020;
  13. Character reference of Mary- Jane Stutsel dated 20 January 2020;
  14. Character reference of Tessia Salmond dated 19 January 2020;
  15. Character reference of Jeffrey Wilkinson dated 22 July 2021;
  16. Character reference of Susan Clarke dated 24 June 2021;
  17. Character reference of Alan Guilfoyle dated 17 June 2021;
  18. Character reference of Robert Hedlefs dated 25 June 2021;
  19. Character reference of Caroline Guilfoile dated 16 June 2021;
  20. Character reference of David Arnold dated 16 June 2021;
  21. Character reference of Theresa Arnold dated 16 June 2021;
  22. Character reference of Megan Munchenberg dated 25 August 2021;
  23. Character reference of Samantha Butterworth (respondent’s wife) dated 27 August 2021; and
  24. Character reference of Andrew Blum dated 30 August 2021.
2. (b)
  Affidavit of Edward Charles Butterworth (respondent), filed 31 August 2021;
3. (c)
  Affidavit of Edward Charles Butterworth, filed 10 February 2022; and
4. (d)
  Supplementary character reference of Edith Hampson dated 7 February 2020.
[10]
The prior complainant was called to give oral evidence at the hearing by videoconference.
[11]
Relevant to the Board’s evidence-in-chief of the prior complainant’s sworn account is the following:^[14]
1. (a)
  At the relevant time she was employed as a veterinary nurse, and was 19 years of age;
2. (b)
  Her work included occasional travel with the respondent on work trips, where they would camp in swags on the roadside, stay at stations or at the respondent’s house at Karumba;
3. (c)
  When travelling, the respondent would often make inappropriate comments, described as “weird” and asked questions regarding sexual matters;
4. (d)
  On 15 or 16 October 2009, they stopped at a roadhouse to shower. Despite there being separate shower blocks for male and females, the respondent followed her into the female shower block and used the shower adjacent to hers. Whilst she was under the shower, the respondent walked into her cubicle naked. She was shocked and embarrassed and left the cubicle immediately and hid in the toilet. She subsequently informed her boyfriend, her sister and, when she returned to work, the Practice Manager Ms Pigliafiori;
5. (e)
  Prior to the trip, she had tendered her resignation but as a result of the incident, she ceased work immediately and did not work out the remainder of her notice period;
6. (f)
  When she left the Practice premises on arrival back from the trip, the respondent followed her and then waited outside her house, which scared and upset her such that she spent the night at the home of Ms Pigliafiori; and
7. (g)
  She informed the QPS of the incident when contacted by a detective in December 2018 but at that time she did not wish to proceed because she had two small children and health issues, and she did not believe she could cope with the stress.
[12]
The effect of the prior complainant’s evidence-in-chief was as follows:
1. (a)
  She did not know why the respondent followed her into the female shower block, and he did not tell her why;
2. (b)
  She did not hear him get paper towels; and
3. (c)
  She heard his shower go off and then he came into her cubicle.
[13]
The effect of cross-examination of the prior complainant by the respondent was as follows:
1. (a)
  She was a vet nurse at the time;
2. (b)
  She had trained at the clinic before going on monthly trips with the respondent, which commenced in the second half of 2008. She went on approximately a dozen trips;
3. (c)
  Each trip had a regular itinerary, lasting three to four nights;
4. (d)
  They were long days and they both worked hard during these trips;
5. (e)
  They would travel in a vehicle alone and stayed at the Karumba house monthly;
6. (f)
  Apart from the incident in the roadhouse, the respondent did not behave like this on any other occasion. She agreed he had opportunities to do so. She agreed that the respondent did not touch or impose himself on her;
7. (g)
  Whilst she agreed that the respondent did not exhibit manifestations of attraction towards her, she would feel pressured to answer questions of a sexual nature on some of these trips. As her boss, she felt if she spoke her mind to tell him he was being inappropriate, her job would be on the line. Instead, she tried to change the subject or not answer the question properly;
8. (h)
  She agreed that whilst she did not give him a reason to appreciate his actions might not be appropriate, he should have realised they were inappropriate;
9. (i)
  The incident caused her a lot of trauma over the years;
10. (j)
  It had been a long day and they had worked hard, and were tired when they stopped at the roadhouse to freshen up before pressing on driving;
11. (k)
  She does not recall the respondent informing her he had left his towel behind at the last stop;
12. (l)
  It was a matter of seconds before she heard his shower go off before the door to her cubicle opened. She assumed it was intentional because he was naked, he had a wife, she had a boyfriend, he was a lot older and it was “wrong on so many levels”;
13. (m)
  She agreed he did not touch or attempt to touch her;
14. (n)
  She walked out, passing by him on her way out while he continued to shower in her cubicle. There was no intention to use her towel;
15. (o)
  Afterwards in the ute she cried. The respondent asked if she was OK and apologised; and
16. (p)
  It was not correct that she had told him she had been a victim of prior sexual assault.
[14]
The effect of re-examination of the prior complainant by the Board was as follows:
1. (a)
  The respondent continued to walk into her shower recess and into the shower, after pausing briefly; and
2. (b)
  The respondent “looked quite pleased with himself”.
[15]
Ms Sandra Pigliafiori was called to give oral evidence at the hearing by videoconference.
[16]
Relevant to Ms Pigliafiori’s sworn account are the following aspects from the Board’s submissions:^[15]
1. (a)
  She is the Practice Manager at the Northwest Vet Clinic at Mount Isa, having worked at that practice since August 2007;
2. (b)
  She recalls the prior complainant’s return from the trip with the respondent in 2009 and the prior complainant’s account that the respondent had entered her shower cubicle whilst naked, when the prior complainant was showering;
3. (c)
  When she asked the respondent what happened, he confirmed it had occurred and that he “did not know why [he] did it because [he] did not want to have sex with her”;
4. (d)
  The prior complainant had complained to her that the respondent was standing outside her house, and that the respondent repeated that he did not “know why [he] did it” and that he “thought it would be taken as a joke”;
5. (e)
  The prior complainant stayed the night at her home; and
6. (f)
  She qualifies the reference she gave in support of the respondent.
[17]
The effect of Ms Pigliafiori’s oral evidence was as follows:
1. (a)
  She remembers the encounter with the prior complainant about the incident, well;
2. (b)
  She was asked about it by the Board for the first time recently;
3. (c)
  “Some things you hear you never ever forget in your life’;
4. (d)
  The prior complainant was very upset and quite distraught;
5. (e)
  She asked the respondent about the intrusion into the shower cubicle. He was not mistaken because he told her he thought it was a joke;
6. (f)
  When asked why she continued to organise placements, including a proportion who were young and female (including her 17 year old daughter), “I was there to keep an eye on things, wasn’t I”; and
7. (g)
  She now regrets giving a reference^[16] in support of the respondent. She explained she was asked to give it by the respondent’s wife, who had sent her examples of other references that had been given. Otherwise, she is not resiling from the truth of what she said in her reference.
[18]
In re-examination, the effect of Ms Pigliafiori’s evidence was as follows:
1. (a)
  The respondent was intimidating in his manner and the things he said;
2. (b)
  She regrets giving the reference because what happened to the two complainant’s “showed another side to him”;
3. (c)
  She felt talked into giving the reference and did it because she felt sorry for the respondent’s wife;
4. (d)
  When challenged, she maintained her sworn account of her encounter with the prior complainant; and
5. (e)
  As an example of inappropriate things the respondent said, he called her daughter a “parasite”.
[19]
The respondent was called to give oral evidence in person at the hearing.
[20]
The effect of the cross examination of the respondent was as follows:
1. (a)
  He denied that he asked the complainant if she was satisfied with her boyfriend. Rather, he asked if she was happy with her boyfriend;
2. (b)
  It was a challenge finding people in large animal work. He liked to ensure they were settled in their environment at Mount Isa, and this included their partners;
3. (c)
  The “trick” he played on the complainant was “very stupid”;
4. (d)
  When he stated he was not sure what led to the sexual interaction, he explained that it was not pre-mediated at the time it unfolded;
5. (e)
  His behaviour was “never justified”;
6. (f)
  At the time of his conviction, he didn’t see the situation from another perspective. He has since had plenty of time to reflect. What he did was an “absolute disgrace”, that it was “totally undeserving” and “very, very inappropriate”;
7. (g)
  He agrees there was “no invitation, nothing”. At the time, he thought she was interested in him. It was the complainant who brought the topic up of how she liked to orgasm, which shocked him. He informed Dr Yoxall of the complainant sharing sexually intimate information with him;
8. (h)
  He recalls the prior complainant and the incident involving her at the roadhouse in 2009, when he walked in on her in the shower, naked;
9. (i)
  He denies making weird and intimate comments to the prior complainant on the road trips together;
10. (j)
  He had left his towel behind at Karumba and had not realised until they arrived at the roadhouse. He informed the prior complainant and asked if it was OK if he used her towel. He has no idea why she does not recall that;
11. (k)
  When asked if he thought that was appropriate, he answered “no is the short answer”. He explained that he was tired, he did not have a towel, he wanted to be practical with a view to getting back on the road quickly. He acted without thought;
12. (l)
  After trying to get paper towels, he unintentionally entered her shower cubicle and “froze”. After she walked out past him, he walked further into her shower;
13. (m)
  He was “dumbstruck” and “horrified”. He never saw it as a joke. There was no sexual intent at all.
14. (n)
  He had thought he could use a paper towel;
15. (o)
  He does not think he told the staff at the clinic on his return that it was a joke. He does not recall saying he did not want to have sex with the prior complainant, or that he did not know why he did it. He was “rattled”, did not know what to do or say, “felt incredibly guilty and miserable” and that he was not good at expressing himself. It was in this context that he did not give his version of what transpired at the roadhouse;
16. (p)
  He can’t understand why the prior complainant now says that she did not tell him she was a victim of prior sexual assault;
17. (q)
  He went to her home at Mount Isa for the purpose of explaining that the incident in the shower cubicle was not intentional. Now he fully understands that this would be stressful for her;
18. (r)
  When it was put to him that he had a problem with judgement with women, he agreed at the time his judgement was poor. He explained that it was a mistake and misjudgement with the complainant, and not intentional with the prior complainant. They were totally different situations. It is not something he has done before or again;
19. (s)
  He fully understands he caused a lot of stress and trauma;
20. (t)
  He did not tell Dr Yoxall about the incident involving the prior complainant because it was not intentional, as opposed to the offences involving the complainant; and
21. (u)
  His financial position is now improved, and it is true that the family now doesn’t need his income.
[21]
In re-examination, the effect of the respondent’s evidence was as follows:
1. (a)
  The challenges of finding staff in Mount Isa are such that it is important to find out things such as if their partners are able to move to Mount Isa so that they can settle and stay put in Mount Isa for some time;
2. (b)
  His financial position is dependent upon cattle prices which is very dependent on the viability of the business. The improved prices of cattle in the last two to three years has meant that they have been able to pay down debt;
3. (c)
  He has two kids in boarding school in Townsville and another on the way. They therefore purchased a home at Castle Hill Townsville, which “stretched us”;
4. (d)
  He and his wife have a “working relationship”; and
5. (e)
  His motivation for resisting the application for the last three years has been because of so many people that are behind him, that he wants to help the community in the remote area where he lives, that 30 years practice as a veterinary surgeon would be a “waste” and he wants to “give back”.
[22]
Dr Jacqui Yoxall is the only expert opinion in evidence in these proceedings. She holds current registration as a psychologist.^[17] Her qualifications are unchallenged.
[23]
In the formation of her opinion, Dr Yoxall undertook an assessment of the respondent comprising of a clinical interview and testing via video and the review of a brief of material.
[24]
In terms of diagnosis,^[18] Dr Yoxall opined that at the time of assessment, the respondent:
1. (a)
  Was in sound mental health;
2. (b)
  Has no diagnosable disorder as per the diagnostic and statistical manual of mental disorders (DSM5);
3. (c)
  Does not have a personability disorder;
4. (d)
  Has no antisocial or psychopathy traits.
[25]
Specifically, Dr Yoxall’s opines that the respondent’s risk of reoffending is very low,^[19] as follows:
1. (a)
  The respondent was “reflective and very remorseful”;^[20]
2. (b)
  The respondent “demonstrates what appears to be substantial insight and genuine remorse”, showing “empathy for the victim”;^[21]
3. (c)
  “He has rehabilitated”;^[22]
4. (d)
  “His clinical risk factors are very minimal”;^[23]
5. (e)
  “He has insight and has addressed the factors that led to the offending”;^[24]
6. (f)
  He is a “very low risk of reoffending”;^[25]
7. (g)
  From a “psychological perspective”, the respondent is fit for practice;^[26]
8. (h)
  The offending was “uncharacteristic” involving a “specific set of circumstances”;^[27]
9. (i)
  The consequences of the respondent’s offending have been so great that on that account “the deterrent to further offending is substantial”.
[26]
At the hearing, Dr Yoxall was called to give oral evidence via videoconference.
[27]
The effect of Dr Yoxall’s opinion in evidence-in-chief was that on the assumption that the version of the prior complainant is correct:
1. (i)
  It does not change her opinion as to the respondent’s risk of reoffending;
2. (ii)
  The behaviour occurred 6 years prior to the subject offences;
3. (iii)
  The event of itself does not change the variables used or weight to be attached to each, in the current risk assessment;
4. (iv)
  He has been convicted, sentenced, served time, demonstrated insight and changed.
[28]
In its submissions,^[28] the Board identified the following factors relevant to its cross examination of Dr Yoxall:
1. (a)
  The respondent having stated that he “has never had difficulties with fidelity before and he has never had any prior difficulties with navigation of consent”^[29], in circumstances where there was no mention in Dr Yoxall’s report of the respondent’s behaviour towards another young woman in 2009 (prior complainant);
2. (b)
  The respondent “is not sure what led to the sexual interaction”;^[30]
3. (c)
  The respondent felt devastated “because he had cheated on his wife” to whom he had never been unfaithful previously”;^[31]
4. (d)
  The respondent misinterpreted the complainant’s words and actions and feels very upset that he “could have caused her any distress”;^[32]
5. (e)
  The respondent “regrets everything that he did and is sorry for the harm caused to” the complainant;
6. (f)
  The respondent believes that the situation was specific to the complainant and was a misjudgement”;^[33]
7. (g)
  The opinion was that the respondent’s historical risk factors are very minimal;^[34]
[29]
The effect of Dr Yoxall’s opinion in cross- examination by the Board was as follows:
1. (a)
  Dr Yoxall shares her time between clinical and academic commitments; the former of which she devotes approximately one day per fortnight;
2. (b)
  The assessment with the respondent was undertaken via videoconference, not face to face;
3. (c)
  When challenged about the weighting attached to various factors that formed her assessment of the respondent’s risk of reoffending, she gave evidence that her opinion on the factors underpinning such assessment was maintained;
4. (d)
  She considered the respondent’s risk of reoffending at length with the respondent before reaching her opinion that the risk was low;
5. (e)
  The respondent’s use of words such as “joke”, “flirtation’ and that he was “not sure what led to the sexual interaction”, was his perception at the time. He thinks differently now and understands that he had misinterpreted the situation;
6. (f)
  When challenged about her opinion being reliant on the respondent’s honesty at assessment, she gave evidence that she is sceptical and cautious in any assessment and that this is why other facts are considered;
7. (g)
  She had not considered the affidavits of either complainant in her opinion;
8. (h)
  Whilst she conceded she could see parallels between the two complainant’s versions, when assessing the variables and determining risk of reoffending, she does not include allegations that have not been investigated and brought to a conclusion by way of a conviction. If it was shown to be an established criminal offence, then she would “absolutely’ have taken it into account;
9. (i)
  The weight that is attached to untested allegations is less; and
10. (j)
  Now having considered the impact of the prior complainant’s version, her opinion is unchanged.

Submissions – Board

[30]
A summary of the Board’s outline of submissions on the background is as follows:
1. (a)
  That the respondent has behaved in a way that constitutes misconduct in a professional respect^[35] because of his criminal conduct, comprising of three counts of sexual assault and one count of rape. The respondent has been convicted by a jury of these offences and following an appeal against his conviction, the Court of Appeal dismissed the appeal.
2. (b)
  Given the respondent has admitted he engaged in misconduct in a professional respect, the issue to be determined by the Tribunal is the sanction to be imposed.^[36]
3. (c)
  At the time of the offences the subject of the convictions, the respondent was 48 years of age. The complainant was 25.
4. (d)
  As part of her studies, the complainant was required to undertake placements involving practical training with working veterinarians. The placement with the respondent took place over a two-week period commencing 29 June 2015, during which time she travelled with the respondent in his vehicle between stations and generally, stayed in homesteads for most nights.
5. (e)
  The complainant states that before commencing her placement, she was unaware that she would be working solely with the respondent and that they would be travelling outside of Mount Isa for that period. She had made arrangements to stay with her relatives in Mount Isa during that period.
6. (f)
  On 8 July 2015, whilst staying at the respondent’s Karumba house in separate bedrooms, the offences the subject of the convictions took place. The respondent played a trick on the complainant whilst they were sitting on a lounge in the house, whereby he wagered $20 by telling the complainant he could make her breasts move without touching them.^[37] He then grabbed her breasts, laughed and said he owed her $20. The touching made the complainant feel “awful”^[38] and she was “disgusted”.^[39] In the Court of Appeal, it was noted that the respondent explicitly suggested to the complainant that he would not touch her breasts and then he in fact touched them.^[40] The other two counts of sexual assault and count of rape occurred in the complainant’s bedroom, in circumstances where the respondent entered through a closed door naked. The respondent then touched the complainant’s vagina and breasts before undertaking oral sex including penetration of her vagina with his tongue.
7. (g)
  The trial judge noted that at the time of the offences, the respondent was the complainant’s supervisor, and she was a student.^[41] As such and considering the age gap between the two, there was a significant power imbalance. The complainant had communicated to the respondent that she did not want sexual contact, both non-verbally and (partly) verbally. The trial judge described the respondent’s actions as morally and criminally repugnant, and that the respondent took advantage of an opportunity in a house he owned in a relatively small town.^[42] The trial judge noted that, to the extent that the respondent expressed remorse, it was remorse for something the respondent considered to be a moral lapse, rather than a serious series of criminal offences.
8. (h)
  The sentence imposed by the trial judge took into account the following factors:
  1. The delay in charges being brought by the QPS (almost 2 years after the complaint was made); and
  2. The substantial financial effect which imprisonment would have on the respondent.
9. (i)
  The Statement of Agreed Facts states the complainant continued staying at the Karumba house until 10 July 2015. The complainant states that this is because she did not know they were staying in Karumba until they travelled there, she did not know where she could stay in the town and that it was not feasible to sleep in her swag because of local wildlife.^[43] She went on to state she found it very difficult to work with the respondent after the offences, but she had no alternative.^[44]
10. (j)
  The respondent has engaged in other unacceptable behaviour involving another young woman employed at the Practice in 2009.^[45]
[31]
A summary of the Board’s outline of submissions on sanction is as follows:
1. (a)
  Section 22E of the Act provides for orders which the Tribunal can make if it is satisfied that a veterinary surgeon has engaged in misconduct in a professional respect.
2. (b)
  That “it is settled law that the purpose of disciplinary proceedings is not to punish but to maintain standards and public confidence in the profession and to protect the public”.^[46]
3. (c)
  As to removing a practitioner from the register,^[47] the purpose of such a sanction is not to punish but to protect the public and the reputation and standards of the veterinary profession. Where there is a choice of sanction, the Tribunal should choose the sanction which maximises the protection of the public. The impact of such a sanction and the personal hardship on a practitioner consequent upon from the sanction, are secondary considerations. The ultimate question is “whether the material demonstrates that the practitioner is not a fit and proper person to remain a veterinary surgeon”.^[48] A practitioner is not a fit and proper person where the conduct is “so serious” that the practitioner is permanently or indefinitely unfit to practice.^[49]
4. (d)
  The respondent is not a fit and proper person to remain a veterinary surgeon because he has not been honest about the subject offences and the behaviour involving a prior complainant.
5. (e)
  Deterrence, both general and personal, is a key principle guiding disciplinary tribunals on the appropriate sanction to impose.^[50]
6. (f)
  With these authorities in mind, the Tribunal should have regard to:
  1. Protection of the public and the profession, including young and vulnerable students, from the criminal and immoral behaviour exhibited by the respondent;
  2. Deterring other practitioners from engaging in predatory criminal conduct by imposing a sanction appropriate to demonstrate that the Tribunal considers such behaviour to be at the highest level of transgression, warranting the most significant sanction available; and
  3. Upholding the good name and reputation of the profession by demonstrating that practitioners who depart from that standard will be held to account in disciplinary proceedings.^[51]
7. (g)
  The Board has been unable to identify a comparative decision involving a veterinary surgeon convicted of such criminal behaviour associated with veterinary practice, namely sexual assault of a vulnerable younger colleague. However, it has referred the Tribunal to decisions where parallels may be drawn, which it argues that disqualification for a minimum period of five years or more has been imposed with some consistency across various disciplines.^[52]
8. (h)
  The respondent was convicted of four offences on 2 August 2018 and was released from custody on 1 August 2019. His name was removed from the register due to non-payment of registration fees on 31 December 2018, and restored on 20 January 2020.
9. (i)
  On 22 March 2019, prior to his release from custody, the respondent gave an undertaking to the Board not to perform acts of veterinary science, which remains in effect to date. To the Board’s knowledge, the respondent has not practiced since his release from custody on 1 August 2019.
10. (j)
  No sanction has been imposed on the respondent for the professional registration and standing aspect to date. The respondent has been registered the entire time, save for a period when he did not pay his fees whilst in prison.
11. (k)
  Taking into account the period of time that has lapsed since the respondent has not practiced, the Board seeks the respondent’s name be removed from the register of practitioners^[53] and that the respondent be precluded from applying for registration for a period of five years from the date of the orders made.
12. (l)
  The Board also seeks an order that the respondent pay its costs in a sum to be agreed between the parties or failing agreement, to be assessed on the District Court Scale of Costs and fixed by the Tribunal.
[32]
A summary of the Board’s supplementary submissions^[54] are as follows:
1. (a)
  That the conclusions drawn in the expert evidence of Dr Yoxall ought to be treated cautiously on several grounds, including factual aspects which underpin the opinion and the evidence of a similar incident involving the prior complainant;
2. (b)
  The Board strongly urges the Tribunal to cancel the respondent’s registration and any sanction falling short of that will be out of step with professional standards and authorities referred to; and
3. (c)
  The Act does not provide for any mechanism for the imposition of conditions upon the respondent’s right to practice. Undertakings are problematic, given the capacity of the Board monitor and enforce undertakings in remote Queensland.

Submissions – Respondent

[33]
A summary of the respondent’s submissions is as follows:
1. (a)
  It is not in contest that the respondent “engaged in misconduct in a professional respect” on 8 July 2015 in the circumstances described by the trial judge in the sentencing remarks.
2. (b)
  Whilst the respondent and the complainant were not, on the night of 8 July 2015, engaged in the complainant’s work experience, the respondent accepts the nexus of the misconduct to his profession and his registration.
3. (c)
  In consideration of all of the circumstances of this matter, the respondent ultimately submits that:
  1. Removal of his name from the register is not warranted;
  2. He is currently a fit and proper person to engage in practice;
  3. Having regard to the period of time that has elapsed since the respondent last practiced, no additional period of suspension is warranted.
4. (d)
  The respondent notes the Tribunal’s acceptance of the principles to be applied for removal of a practitioner from the register and adds that the assessment will involve “balance(ing) the public interest in allowing (the practitioner) to practice against the likelihood of repetition of the offence by (the practitioner) and similar defaults by other practitioners”.^[55]
5. (e)
  Whilst the offending conduct must be scrutinised for the way it bears on these assessments, the Tribunal is “bound to examine the whole position with meticulous care”.^[56] In this case, there are balancing features not ordinarily present.
6. (f)
  The assessment of fitness is to be made at the time of the hearing, not at the time of the misconduct.^[57]
7. (g)
  There are instances where courts have not regarded it necessary to remove a practitioner’s name from the register where the interval between misconduct and hearing has allowed the practitioner to rehabilitate. ^[58] Such authorities demonstrate that serious misconduct does not necessarily result in removal from a professional register.
8. (h)
  Insofar as the incident involving a prior complainant in 2009, the respondent says:
  1. The Board has given no indication as to what use the Tribunal should make of evidence of the incident;
  2. There are divergences in the respective accounts of the incident and its aftermath;
  3. In contrast to the subject offences of 2015, no assault or other offence was committed or attempted; and
  4. Whether or not he was at fault in the 2009 incident, the respondent has expressed genuine remorse and empathy for the woman concerned and has apologised for the intrusion at the time and does so now.
9. (i)
  In assessing the issue of removal of the respondent’s name from the register, the following factors of the “whole position” of the respondent are relevant:
  1. Given the period of time since the subject offences occurred (now almost 7.4 years), and acknowledging that 12 months of this time was spent in custody, no offence or misconduct of any kind has been complained of during that interval;
  2. The respondent has abided by the undertaking he gave to the Board on 22 March 2019, which remains in force to date; and
  3. His current referee’s include respected community members.^[59] They are supportive of his character, post offending, in full knowledge of the circumstances of it. All speak highly of his ability and commitment to the delivery of veterinary services and confirm his remorse. Accordingly, his character, post offending, has been judged favourably by his peers.
10. (j)
  Accordingly, the Tribunal should conclude that the Board has not discharged its onus of proving that the respondent’s character is presently such that he is not a fit and proper person.
11. (k)
  Other factors of relevance to the “whole position” are as follows:
  1. The respondent has undoubted skills, diligence and experience, particularly in treating cattle. The need for his services in the Far Northwest and Gulf Country, where agriculture is a substantial industry and veterinarians are sparse, represents an important balancing factor. No allowance has been made for this in the Board’s submissions;
  2. There is compelling evidence from responsible referees that the respondent’s inability to practice has adversely affected agriculture in the Far North, and that the community would welcome and benefit from the respondent’s return to practice;^[60]
  3. The professional misconduct of the respondent did not involve any aspect of competence or diligence, or integrity in the actual delivery of veterinary services. In this case, protection of the public could only mean protection from further sexual offending;
  4. The respondent lives in a numerically small and geographically remote community, where he has worked for many years. There is hardly likely to be any resident of that community who is unaware of his conviction and the circumstances of it. It is not a case of a sex offender practicing amongst an unknowing public. The need for protection of members of the community should be viewed in this light. The references given in support of the respondent attest to their knowledge of his background and support his character, retains their respect as a person and a professional, do not express any desire for protection from him and welcome him as a member of the community, nevertheless. Although unlikely given the nature and extent of references given in support of the respondent, community members and colleagues could distance themselves from him if they thought necessary. The Tribunal should give considerable weight to the community view, represented by his many referees, in this instance;
  5. The respondent does not propose to return to practice at a clinic, to employ or contract any female assistants in practice, or to engage in any student placements as before. Any concerns about his future conduct could be affirmatively addressed by the respondent’s proposed undertaking to conditions on his registration (or any other proposed undertaking to conditions), rather than denying the community his services;
  6. Accepting that deterrence is typically a relevant factor in professional disciplinary matters, the parties have failed to identify any instance, nationally, of sexual offending by a veterinary surgeon in the course of or connected to professional practice. It is acknowledged that criminal sanction imposed carries with it a significant deterrent component. In this unique case, it is questionable whether there is a residual need for additional deterrence to be reflected in the Tribunal’s order;^[61]
  7. Other practitioners and fair-minded members of the community, who were fully informed of the consequences of the respondent’s conviction to date, would consider that the interests of deterrence had already been served;
  8. The personal circumstances of the respondent might be “secondary” but this does not mean they are irrelevant. They include:
    His contribution to the profession including his service as President of the North Queensland Branch of the Australian Veterinary Association for a number of years,^[62] various other aspects set out in his evidence^[63] and his referees attest to his “strong work ethic”,^[64] mentoring veterinary students,^[65] “veterinary services to indigenous communities”,^[66] his “many volunteer roles within the local community”,^[67] his courtesy and generosity with his time,^[68] his conduct as a “consummate professional” and the like;
    In her letter to the Tribunal,^[69] the respondent’s wife spoke of “the professional, financial and emotional hardships” experienced by the respondent, and the “severe and detrimental effect on our financial position”. A further detriment is that the respondent’s mortgage is conditional upon retaining his registration. Without it he is at risk of foreclosure.^[70]
12. (l)
  The Board has referred to various authorities in support of its argued approach for an appropriate sanction to be imposed by the Tribunal, which do not provide useful guidance. There is no genuinely comparable authority. Consequently, the issues arising will need to be resolved by the Tribunal from first principles, balancing all relevant considerations.
13. (m)
  Furthermore, “while consistency and treating like cases alike is one of the tribunal’s stated objects, perfect uniformity is unachievable. Past sanctions are not binding and there is no rule that later cases religiously follow earlier ones or that a sanction in one case is some kind of norm to be applied in similar cases.”^[71]
14. (n)
  Two decisions referred to by the Board involve health practitioners,^[72] which involve different considerations arising from different occupations. By their nature, health practitioners are involved in caring for and treating human patients of the opposite sex daily. The risk factors involving veterinary surgeons are not the same. Further, the respondent proposes to take steps to conduct practice in a manner that removes any risk of repetition of the charged misconduct.
15. (o)
  Two further decisions referred to by the Board did involve veterinary surgeons,^[73] however, they (and a range of others reviewed by the Tribunal in Griffith), all involve misconduct in various respects of treatment administered (competence or integrity) making comparison with this case unrealistic. By comparison with that category of case, the respondent’s competence, diligence and integrity in the delivery of veterinary services are undoubted.
[34]
A summary of the respondent’s supplementary submissions are as follows:
1. (a)
  Given her level of expertise and experience, there is no reason not to accept the expert evidence of Dr Yoxall;
2. (b)
  In forming her opinion, Dr Yoxall approached the task objectively and with a high degree of scepticism, employing evidence-based techniques beyond an unstructured clinical judgement’;
3. (c)
  Dr Yoxall was given the opportunity of considering the evidence of both complainant’s and stated in her supplementary report that her opinion was unchanged. Additionally, her view was not altered through cross- examination by the Board;
4. (d)
  In any event, whatever view the Tribunal takes of the divergent evidence of the 2009 incident, it is submitted that it is effectively subsumed by the serious event of 2015 and the respondent’s rehabilitation thereafter;
5. (e)
  Dr Yoxall’s evidence does not stand alone. It accords with the oral evidence of the respondent and the numerous referee’s who have given character references^[74] in support of him;
6. (f)
  The protective factors evident in the evidence against reoffending is a continuing deterrent. Further deterrent in the interests of protection of the public, is unnecessary;
7. (g)
  The unique facts of this case for which there is no precedent, do not suggest a real need for general deterrence. It should be balanced against the pressing need for the respondent’s remote community to take advantage of his skills;
8. (h)
  Balance can be achieved by recognising that the respondent has not practiced for some time and that he undertakes to the Board (and the Tribunal) that on resumption of practice, he will abide by the restrictions described in his affidavit of 10 February 2022. The giving of an undertaking is a consideration to take into account when determining sanction. He has demonstrated his bona fides by honouring the undertaking he gave to the Board on 22 March 2019 to date. In these circumstances, de-registration for a further period is unnecessary; and
9. (i)
  Breach of an undertaking is a form a professional misconduct in itself. And notwithstanding complaint about the Board’s resourcing, it has demonstrated in this matter its capacity to pursue a practitioner in the event of misconduct.

Consideration

Substantiation of the charges

[35]
Whilst it is no longer in issue between the parties, for the purpose of these proceedings we find that the respondent engaged in misconduct in a professional respect. The basis for this is the respondent’s criminal conduct, comprising of three counts of sexual assault and one count of rape.^[75] The respondent has been convicted by a jury of these offences and following an appeal against his conviction, the Court of Appeal dismissed the appeal.

Sanction

[36]
It is settled law that the purpose of disciplinary proceedings is not to punish but to maintain standards and public confidence in the profession and protect the public.^[76]
[37]
There are many authorities from this and other jurisdictions that have considered the purpose of disciplinary proceedings and made appropriate orders following a finding of misconduct in a professional respect.
[38]
However, in this case the parties acknowledge that there is no truly comparable authority, which might have given guidance to the Tribunal on the issue of sanction.
[39]
In an effort to assist the Tribunal, the Board has referred to authorities in which it says some parallels can be drawn. We agree with the reasons set out in the respondent’s submissions, that these decisions are not of assistance in this particular case.
[40]
Consequently, we accept that the task must be approached by reference to first principles, balancing all relevant considerations.
[41]
We have had regard to authorities referred to by the respondent in support of the following propositions in approaching the issue of sanction in this case:
1. (a)
  The whole position;
2. (b)
  The fit and proper person assessment being undertaken at the time of the hearing, not at the time of the misconduct (in this case almost 7.4 years ago);
3. (c)
  Courts do not always find it necessary to remove a practitioner’s name from the register, where the period of time between the misconduct and the hearing allowed the practitioner to demonstrate rehabilitation; and
4. (d)
  A low risk of reoffending.
[42]
Having carefully considered all of the evidence and submissions detailed at length above, having assessed the credibility of witnesses who gave oral evidence at the hearing and acting on the basis of the available evidence, we accept the respondent’s submissions and find in the unique circumstances of this case:
1. (a)
  That in the circumstances, removal of the respondent’s name from the register is not warranted;
2. (b)
  That the respondent is currently a fit and proper person to engage in the practice; and
3. (c)
  That having regard to the period of time since the respondent last practiced (some 4.4 years), no additional period of suspension is warranted.
[43]
In reaching this decision, we relied upon the following:
1. (a)
  The evidence of the prior complainant was approached with some caution and limited weight was attached to it accordingly, given:
  1. There was a divergence in accounts between the prior complainant and the respondent;
  2. The accounts remain untested from a criminal perspective; and
  3. The complaint came to light some 9 years after it occurred, at the instigation of the QPS.
2. (b)
  The respondent’s evidence of his account of the incident involving the prior complainant was plausible, noting that:
  1. He was tired after working a long day, had left his towel behind and was seeking a practical approach to getting back on the road quickly;
  2. When he realised he had entered the prior complainant’s cubicle by accident, he froze;
  3. His mistaken entry into the prior complainant’s cubicle was made in a spilt second whilst he was tired and distracted;
  4. His account to the Practice Manager and others after the event was given in the context of feeling rattled, confused and distressed. By his own admission, he is not good at expressing himself and he felt guilty for something that had occurred, albeit unintentionally;
  5. He did not disclose this incident to Dr Yoxall because it was not an intentional or premeditated; and
  6. He now sees that his behaviour was inappropriate and caused distress.
3. (c)
  Whilst we find Ms Piglifiori to be a credible witness about her recollection of events from 2009, her evidence must be viewed in light of the above.
4. (d)
  The respondent readily accepted his offending behaviour from the events of 2015. He misjudged that the complainant was interested in him and readily accepts that it was wrong.
5. (e)
  Dr Yoxall’s expert evidence of her assessment and opinion, particularly as to the issues of diagnosis and the low risk of reoffending, is accepted. Despite rigorous cross examination from the Board, Dr Yoxall maintained her opinion. No contrary expert opinion was given in these proceedings.
6. (f)
  We accept Dr Yoxall’s opinion that the incident involving the prior complainant was effectively subsumed by the events of 2015 and the respondent’s rehabilitation thereafter;
7. (g)
  Despite undergoing a rigorous cross- examination by the Board, the respondent was able to provide convincing evidence that he had changed in the time that had elapsed since the incidents, and that his behaviour involving the two complainants is on any view, unacceptable.
8. (h)
  The respondent has expressed remorse for his behaviour.
9. (i)
  In terms of protection of the public and the profession:
  1. The respondent has no other disciplinary history and there is no evidence of any other complaint involving boundary issues;
  2. The respondent has abided by the undertaking he entered into with the Board, since 22 March 2019 to date, a period of some 3.8 years, demonstrating his bona fides;
  3. The respondent is willing to abide by any practical conditions that will permit him to recommence practice. He states he will not open any commercial veterinary premises or employ/contract/participate in work experience or placement opportunities to females. In effect, he proposes to work as a sole practitioner; and
  4. Against the background of a jury trial, conviction, incarceration and adverse media in a geographically diverse yet tight community, it is unlikely that the members of his community would not be aware of the offences. It is not a case of a sex offender practicing amongst an unknowing public.
10. (j)
  In terms of public interest in allowing the respondent to practice:
  1. No conduct issues of clinical competence of the respondent have been raised. On the contrary, there is ample evidence to attest to the respondent’s level of competency including his unique skills and experience in large animals;
  2. Significant weight was attached to the numerous character references given by a respected members of the community in support of the respondent,^[77] particularly given they have given such support notwithstanding knowledge of his offending conduct;
  3. The respondent is driven by giving back to the community that supported him, by providing veterinary services to an area in need; and
  4. Whilst the respondent’s financial situation has improved, this does not necessarily mean that it will remain so indefinitely. He has not contributed financially to the maintenance of his family for some time.
11. (k)
  In terms of deterrence:
  1. The consequences of the offending behaviour, conviction and incarceration have been catastrophic for the respondent, his family and the community; and
  2. Given the period of time that has elapsed since the offending behaviour together with his incarceration, adverse media, rehabilitation and assessed low risk of reoffending, we find that there is no residual need for additional deterrence beyond the orders we have made in this unique situation.
[44]
As we have said, this is a unique case which has been determined on a particular set of facts and circumstances. Whilst we are satisfied that the respondent poses a low risk of reoffending, we nevertheless consider it is appropriate to impose conditions on the respondent’s registration in order to allay any residual concerns about protection of the public and profession, and act as a deterrent. We do so in the knowledge that:
1. (a)
  Any breach of condition is a ground for disciplinary action;^[78] no doubt something the respondent is keen to avoid given the catastrophic consequences that have already occurred to date; and
2. (b)
  We do not accept the Board’s submission on the issue of resourcing on the ability to monitor conditions or undertakings, particularly having regard to the following:
  1. The Board had already accepted undertakings by the respondent not to practice, on the basis of protection of the public and profession pending final determination of the matter;
  2. The Board acknowledges it has implemented undertakings in other matters, albeit in the context of retirement. This case should be no different; and
  3. The Act does make provision for the imposition and monitoring of conditions, albeit in the context of approvals to use premises as veterinary premises.^[79]

Costs

[45]
Finally, the Board seeks payment of its costs of and incidental to these proceedings by way of agreement or failing agreement, to be assessed on the District Court scale.
[46]
No submissions have been made by either party about this issue save for the provision of general evidence on the respondent’s improved financial position in the last two/three years following the catastrophic consequences of his misconduct.
[47]
Section 15D of the Act confers jurisdiction on the Tribunal to make a decision about costs it considers “appropriate in the circumstances of the particular proceedings”. ^[80] Section 102 of the QCAT Act provides for the Tribunal to make an order about payment of costs if the “interests of justice require”.
[48]
In the absence of specific evidence of the financial circumstances of the parties,^[81] it is difficult to make an assessment of the discretion to be exercised in the interests of justice or as is appropriate in the circumstances.
[49]
We can however, make the following observations:
1. (a)
  The Board has been successful in establishing the offences as misconduct in a professional respect;
2. (b)
  However, that success was borne out of an admission by the respondent in his Amended Response of 18 December 2020, consequent upon the Board filing and serving an Amended Referral on 22 June 2020, reliant upon sections 22E and 22F of the Act, after having abandoned its reliance on the more serious section 22C of the Act in its initial Referral of 27 November 2018;
3. (c)
  Pending final determination of the matter, the respondent has abided by the undertakings to the Board not to practice, with no evidence of supervision or monitoring by the Board of compliance with same; and
4. (d)
  The Board has not been successful in its submissions on sanction.
[50]
Against that background, we make no order as to costs consistent with section 100 QCAT Act.
[51]
We order accordingly.

Footnotes

[1]Section 22F of the Act.

[2]Respondent’s Amended Response dated 18 December 2020, [1(a)]; Applicant’s Outline of Submissions dated 4 February 2022, [1]; Respondent’s Outline of Submissions dated 11 February 2022, [2].

[3]Exhibit 1, including the addition of a supplementary reference on the first day of hearing from Dr Edith Hampson dated 7 February 2020.

[4]Predominantly due to the availability of the expert witness when the matter did not conclude in the allocated hearing time on 18 February 2022. Health directives were in place regarding COVID-19.

[5]Applicant’s Outline of Submissions dated 4 February 2022; Respondent’s Outline of Submissions dated 11 February 2022; Further submissions responsive to our Directions of 17 May 2022, dated 24 and 30 May 2022 respectively.

[6]Statement of Agreed Facts dated 1 June 2021.

[7]The victim who was the subject of the misconduct.

[8]A remote town in a coastal locality in the Gulf of Carpentaria, Queensland. It is approximately 550 kilometres from Mount Isa by road. According to the 2016 census, it has a population of 531 people.

[9]Affidavit of Louise Marie Nixon sworn 27 November 2018, exhibit “LMN-2”.

[10]Affidavit of Louise Marie Nixon sworn 27 November 2018, exhibit “LMN-4”.

[11]Affidavit of Craig Allen DoRozario sworn 31 August 2021, attachment to exhibit “CAD-1”.

[12]The date of the Amended Response as listed in the Board’s material relied upon in submissions dated 4 February 2022, appears to be incorrect.

[13]Identity protected through the making of a Not for Publication Order pursuant to Section 66 of the QCAT Act, by consent of the parties. Named ‘prior complainant’ for the purposes of these reasons for decision.

[14]As set out in the Board’s submissions dated 4 February 2022.

[15]As set out in the Board’s submissions dated 4 February 2022.

[16]Exhibit “CAD- 6 to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[17]As per registration search on the public register of practitioners held by the Australian Health Practitioner Regulation Agency.

[18]Page 20 of Dr Yoxall’s report dated 17 December 2020, exhibit “CAD-2” to the Affidavit of Craig Allen DoRozario sworn 31 August 2021

[19]Ibid, page 21.

[20]Ibid, page 16.

[21]Ibid, page 20.

[22]Ibid, page 21.

[23]Ibid, page 21.

[24]Ibid, page 21.

[25]Ibid, page 22.

[26]Ibid, page 22.

[27]Ibid, page 22.

[28]Submissions dated 4 February 2022.

[29]Page 8 of the report of Dr Yoxall dated 17 December 2020 exhibit “CAD-2” to the Affidavit of Craig Allen DoRozario sworn 31 August 2021.

[30]Ibid, page 11.

[31]Ibid, page 12.

[32]Ibid, page 13.

[33]Ibid, page 14.

[34]Ibid, page 21.

[35]Section 22F of the Act.

[36]Section 22E of the Act.

[37]Refer R v Butterworth [2019] QCA 94, [14].

[38]Ibid [15].

[39]Ibid [18].

[40]Ibid [20].

[41]Judge Deardon’s sentencing remarks, page 3, lines 5-8, contained in Exhibit “LMN-4” to Affidavit of Louise Marie Nixon sworn 27 November 2018.

[42]Ibid, page 3 lines 25-32.

[43]Affidavit of Sophia Johnson filed 16 September 2021, [40].

[44]Ibid [58].

[45]Affidavit of a prior complainant, filed 1 February 2022.

[46]Veterinary Surgeons Board v Griffin [2017] QCAT 293 (Griffin) at [7].

[47]Section 22E (1) (a) of the Act.

[48]Griffin at [11].

[49]Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105 (Alexander), [14]-[19], cited in Griffin at [9]-[11].

[50]Ibid at [14]-[15]; Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27.

[51]Ibid [21]; Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234; Ooi v Medical Board of Queensland [1997] 2 Qd R 176.

[52]Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186; Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107; Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264 (Carroll); Chiropractic Board of Australia v Ebtash [2020] WASAT 86 (Ebtash);

[53]Section 22E(1)(a) of the Act.

[54]Following the expert evidence given on the second hearing day.

[55]Griffin; Alexander.

[56]Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279, at 287-288 per Fullagar J, cited in A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 (A Solicitor), [16].

[57]A Solicitor, [21]; Alexander, [8]; Ebtash, [1145].

[58]Watts v Legal Services Commissioner [2016] QCA 224; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 230 (Prothonotary);

[59]Including a Member of Parliament, Mount Isa’s Catholic priest, professional colleagues of standing including the President of the Australian Veterinary Association Queensland Division, leading agriculturalists and other prominent in his community.

[60]For example, the references contained in Affidavit of Craig Allen DoRozario filed 31 August 2021 from Ms Megan Muchenberg (exhibit “CAD-22”), the references from Mr and Mrs Arnold (exhibits “CAD-20 and 21”), and the reference from Mrs Susan Clarke (exhibit “CAD-16”).

[61]In Prothonotary, the Court was influenced by the absence of any true need for the community to be protected from the practitioner, given her rehabilitation, and by the absence of any “worthwhile deterrent element” of the case: [34], [36].

[62]Reference from Dr Hedlefs, “CAD-18” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[63]Affidavit of Edward Charles Butterworth filed 25 August 2021, [12]

[64]Reference from Mr Katter, “CAD-5” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[65]Reference from Ms Pigliafiori, “CAD-6” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[66]Reference from Ms Hampson, “CAD-8” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[67]Reference from Mr Westerman, “CAD-10” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[68]Reference from Mrs Clarke, “CAD-16” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[69]Reference of Samantha Butterworth dated 27 August 2021. “CAD-23” to the Affidavit of Craig Allen DoRozario filed 31 August 2021.

[70]Exhibit “ECB-1” to the Affidavit of Edward Charles Butterworth filed 25 August 2021.

[71]Legal Services Commission v McDonald [2018] QCAT 82, [70].

[72]Carroll involved a nurse and Ebtash involved a chiropractor.

[73]Temmingh; Thompson.

[74]Comprising a number of females and seven veterinary surgeons.

[75]Section 22F of the Act is not a self-limiting provision.

[76]Griffin.

[77]Notably, including his wife of over 15 years who has stood by him throughout and attended the QCAT hearing with him.

[78]Section 22F of the Act is not a self-limiting provision.

[79]Section 25G of the Act.

[80]Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417.

[81]In particular, the cost of any investigation for the matter the subject of the proceeding by the Board: section 15D(2)(b) and (3)(a) of the Act.

Editorial Notes

Published Case Name:
Veterinary Surgeons Board of Queensland v Butterworth
Shortened Case Name:
Veterinary Surgeons Board of Queensland v Butterworth
MNC:
[2022] QCAT 377
Court:
QCAT
Judge(s):
Member Lee, presiding Dr Sandra Baxendell Dr Wendy Grigg
Date:
09 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
A Solicitor v Council of Law Society of New South Wales	View on:JADE(2004) 216 CLR 253	2 citations Jump To Cite 1 - (2004) 216 CLR 253 Cite 2 - (2004) 216 CLR 253
Chiropractic Board of Australia v Ebtash	View on:JADE[2020] WASAT 86	1 citation Jump To Cite 1 - [2020] WASAT 86
DYT v Director-General, Department of Justice and Attorney-General	[2017] QCAT 293	2 citations Jump To Cite 1 - [2017] QCAT 293 Cite 2 - [2017] QCAT 293
Gelderman v Veterinary Surgeons Investigating Committee (GD)	View on:JADE[2001] NSWADTAP 27	2 citations Jump To Cite 1 - [2001] NSWADTAP 27 Cite 2 - [2001] NSWADTAP 27
Legal Services Commissioner v McDonald	[2018] QCAT 82	1 citation Jump To Cite 1 - [2018] QCAT 82
Nursing and Midwifery Board of Australia v Carroll	[2011] QCAT 264	1 citation Jump To Cite 1 - [2011] QCAT 264
Ooi v Medical Board of Queensland	[1997] 2 Qd R 176; [1996] QCA 530	1 citation Jump To Cite 1 - [1997] 2 Qd R 176
Prothonotary of the Supreme Court of NSW v P	View on:JADE[2003] NSWCA 230	2 citations Jump To Cite 1 - [2003] NSWCA 230 Cite 2 - [2003] NSWCA 230
R v Butterworth	[2019] QCA 94	1 citation Jump To Cite 1 - [2019] QCA 94
Veterinary Surgeons Board of Queensland v Brown	[2016] QCAT 234	2 citations Jump To Cite 1 - [2016] QCAT 234 Cite 2 - [2016] QCAT 234
Veterinary Surgeons Board of Queensland v McIntosh	[2011] QCAT 417	1 citation Jump To Cite 1 - [2011] QCAT 417
Veterinary Surgeons Board of Western Australia v Alexander	View on:JADE[2014] WASAT 105	2 citations Jump To Cite 1 - [2014] WASAT 105 Cite 2 - [2014] WASAT 105
Veterinary Surgeons Investigating Committee v Soemartopo	View on:JADE[2007] NSWADT 107	1 citation Jump To Cite 1 - [2007] NSWADT 107
Veterinary Surgeons Investigating Committee v Temmingh	View on:JADE[2004] NSWADT 186	1 citation Jump To Cite 1 - [2004] NSWADT 186
Watts v Legal Services Commissioner	[2016] QCA 224	2 citations Jump To Cite 1 - [2016] QCA 224 Cite 2 - [2016] QCA 224
Ziems v Prothonotary of the Supreme Court of N.S.W.	View on:JADE(1957) 97 CLR 279	2 citations Jump To Cite 1 - (1957) 97 CLR 279 Cite 2 - (1957) 97 CLR 279

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Veterinary Surgeons Board of Queensland v Butterworth[2022] QCAT 377