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Veterinary Surgeons Board of Queensland v Butterworth[2025] QCATA 43

Veterinary Surgeons Board of Queensland v Butterworth[2025] QCATA 43

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Veterinary Surgeons Board of Queensland v Butterworth [2025] QCATA 43

PARTIES:

VETERINARY SURGEONS BOARD OF QUEENSLAND

(applicant)

v

EDWARD CHARLES BUTTERWORTH

(respondent)

APPLICATION NO:

APL367-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 April 2025

HEARING DATE:

14 April 2025 and further written submissions to 23 April 2025

HEARD AT:

Brisbane

DECISION OF:

Member P Roney KC

ORDERS:

  1. Upon the undertakings given by the respondent to this Tribunal that he will abide by a specified condition for a period of 5 years from 9 November 2022, that is until 8 November 2027, the specified condition being that;
  1. he is prohibited from employing or contracting females to work for him in his veterinary practice;
  2. he is prohibited from providing work experience or placement opportunities or the like to any females in his veterinary practice;
  3. with the proviso that the above prohibitions 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.
  1. The appeal in respect of ground 1 is allowed.
  2. Leave to appeal on grounds 2 and 3 are refused and the appeal is otherwise disallowed.
  3. Within 7 days of the making of these orders the parties shall file any submissions they seek to rely on in relation to the costs of the appeal should they not resolve the issue as between them.
  4. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – APPEALS – Veterinary Surgeons – where registrant was alleged to have engaged in misconduct in a professional respect – where the allegations were admitted – where undertakings were given by the registrant about his future practice – what is the appropriate penalty on the basis of the undertakings – whether this is the appropriate penalty  – whether after significant delay of 5 years since the registrant ceased to practice as a veterinary surgeon and 10 years since the commission of sexual offences in respect of which the registrant was imprisoned there is any purpose in removing him from the register  – error of law by Tribunal in purporting to impose conditions on the respondent's registration

COSTS – test to be applied when exercising the jurisdiction to make a costs order in disciplinary hearings where the Tribunal is to make a decision about costs it considers appropriate in the circumstances of the particular proceedings – scope of discretionary considerations

Penalties and Sentences Act 1992 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(2)(a), s 10(1)(b), s 100, s 102, s 142, s 146

Veterinary Surgeons Act 1936 (Qld), s 15A, s 15C, s 15D, s 22F, s 22E, s 150

Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253

Gamble v Klein [2014] QCATA 35

Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27

Hardie v Bryson [2013] QCATA 250

Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39

Medical Board of Western Australia v Roberman [2005] WASAT 81

Munda v Western Australia (2013) 87 ALJR 1035

Pickering v McArthur [2005] QCA 294

Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320

Rayner v Whiting [2000] 2 Qd R 552

R v Wong (1999) NSWCCA 420

Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234

Veterinary Surgeons Board of Queensland v MacIntosh [2010] QCAT 601

Veterinary Surgeons Board of Queensland v O'Flaherty [2016] QCAT 8

Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105

Veterinary Surgeons Investigating Committee v Williamson (No. 2) [2005] NSWADT 112

Veterinary Surgeons Board v Griffin [2017] QCAT 93

Watts v Legal Services Commissioner [2016] QCA 224

Yardley v Betts (1979) 1 A Crim R 329

Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

Applicant:

Mr I Freckelton KC instructed by Turks Legal

Respondent:

Mr G Rice KC instructed by Potts Lawyers

REASONS FOR DECISION

Background to the Appeal

  1. [1]
    This proceeding arose 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 (Qld) (‘the VS 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 (Qld) (‘QCAT Act’).
  2. [2]
    There was a two-day hearing in 2022 in which the Board sought to establish (and at the hearing it was conceded) that the respondent who was and is a registered vet under the VS Act, behaved in a way in 2015 that constituted misconduct in a professional respect in that he engaged in criminal conduct, comprising of three counts of sexual assault and one count of rape.
  3. [3]
    The respondent had been convicted by a jury of these offences and following an appeal against his conviction, the Court of Appeal dismissed the appeal. The Board argued that given that the respondent had admitted that he engaged in misconduct in a professional respect, the issue to be determined by the Tribunal was the sanction to be imposed. It argued that the respondent’s name ought to be removed from the register of practitioners and that he be precluded from applying for registration for a period of five years from the date of the orders made.
  4. [4]
    It is common ground that the respondent was convicted of four offences on 2 August 2018 was sentenced to a term of imprisonment and was released from custody on 1 August 2019 and that his name was removed from the register due to non-payment of registration fees on 31 December 2018, and restored to the register on 20 January 2020. 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.
  5. [5]
    It is common ground that the respondent had not practiced since his release from custody on 1 August 2019 and no sanction had been imposed on the respondent for his professional registration and standing aspect to that date and had been registered the entire time, save for a period when he did not pay his fees whilst in prison.
  6. [6]
    As the reasons below concluded, the Board submitted that taking into account the period that had lapsed since the respondent had not practiced, the Board sought that the respondent’s name be removed from the register of practitioners and that the respondent be precluded from applying for registration for a period of five years from the date of the orders made. The Board strongly urged the Tribunal below to “cancel” the respondent’s registration and any sanction falling short of that was be out of step with professional standards and case law authorities. It submitted that the VS Act did not provide for any mechanism for the imposition of conditions upon the respondent’s right to practice. The Board also sought an order below 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.
  7. [7]
    The Tribunal declined to order that the respondent’s name be removed from the register of practitioners but instead purported to impose conditions on the respondent's registration, that the respondent for a period of five years from the date of the order be prohibited from:
    1. Employing or contracting females to work for him in his veterinary practice;
    2. Providing work experience or placement opportunities or the like to females in his veterinary practice; 
  8. [8]
    It was specified that the above conditions did 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.
  9. [9]
    The Tribunal declined to make a costs order.

Appeal on questions of law and mixed law and fact

  1. [10]
    The applicant appeals those findings and seeks orders that;
  1. The orders made by the Tribunal on 9 November 2022 be set aside and substituted with the following orders:
  1. The Respondent has engaged in misconduct in a professional respect.
  1. The Respondent's name be removed from the register of veterinary surgeons for a period of five years commencing from the date of the decision.
  1. The Respondent pay the Applicant's costs of and incidental to the proceeding in a sum to be agreed or, failing agreement, to be assessed on the District Court scale and fixed by the Tribunal.
  1. The Respondent pay the Applicant's costs of and incidental to this appeal.
  1. [11]
    Ground 1 involves a question of law only, and leave to appeal pursuant to s 142 of the QCAT Act is not required. The concession is made by the respondent that the Tribunal's Order imposing conditions should be set aside but what flows from that is not agreed. Senior Counsel for the respondent submits that this outcome does not affect the larger question of the appropriateness of the sanction raised by Ground 2 of the appeal.
  2. [12]
    In the course of the proceeding the respondent gave his undertaking to the Board, and that for a period of 5 years from the Tribunal’s decision below, to conduct his practice in exactly the limited manner contemplated by the improperly imposed conditions in Order 2. He affirmed the giving of those undertakings to this Tribunal through his counsel and in a sworn affidavit read at the hearing of the appeal.
  3. [13]
    It is common ground that leave to appeal is required[1] for Grounds 2 which is that the Tribunal erred in that it failed to adequately take into account or give appropriate weight to material considerations. It involves a question of mixed law and fact, and requires the Appeal Tribunal's leave pursuant to s 142(3)(b) of the QCAT Act.
  4. [14]
    Ground 3 relates to the costs order made (ie. no order as to costs), and requires leave pursuant to s 142(3)(a)(iii). Ground 3 is that the Tribunal has erred in conflating the exercise of the power to award costs in section 15D of the Act, which provides an unfettered discretion for the Tribunal to make any decision about costs it considers appropriate, with the costs provisions in the QCAT Act which start from the premise in s 100 in the QCAT Act that each party usually bears its own costs.
  5. [15]
    The test to be applied in deciding if leave is to be given is well established. Leave to appeal should not usually be granted unless the decision from which it is sought to appeal is attended with sufficient doubt to warrant it being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused.[2]

The criminal proceedings

  1. [16]
    At the time of the offences the subject of the convictions, the respondent was 48 years of age. His victim was 25. As part of her studies, she 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.
  2. [17]
    The trainee said 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. 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. He then grabbed her breasts, laughed and said he owed her $20. The touching made the trainee feel “awful” and she was “disgusted”.
  3. [18]
    In the Court of Appeal, hearing his appeal from his conviction, it was noted that the respondent explicitly suggested to the trainee that he would not touch her breasts and then he in fact touched them. The other two counts of sexual assault and count of rape occurred in the trainee’s bedroom, in circumstances where the respondent entered through a closed door naked. The respondent then touched the woman’s vagina and breasts before undertaking oral sex including penetration of her vagina with his tongue.
  4. [19]
    The sentencing judge noted that at the time of the offences, the respondent was the trainee’s supervisor, and she was a student. As such and considering the age gap between the two, there was a significant power imbalance. The victim had communicated to the respondent that she did not want sexual contact, both non-verbally and (partly) verbally.
  5. [20]
    The sentencing 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. The sentencing 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.

The grounds of appeal

  1. [21]
    As I have noted, the Tribunal declined to order that the respondent’s name be removed from the register of practitioners and declined to order costs in its favour. The Board seeks to appeal the decision of the Tribunal.
  2. [22]
    As noted earlier in these reasons there are three grounds of appeal of which Ground 1 involves a question of law only, Ground 2 involves a question of mixed law and fact, and requires the Appeal Tribunal's leave pursuant to s 142(3)(b) of the QCAT Act. Ground 3 relates to the costs order made (ie. no order as to costs), and requires leave pursuant to s 142(3)(a)(iii).
  3. [23]
    In effect there is no contest about Ground 1 because it is conceded that the VS Act did not provide for the imposition of conditions. The Tribunal, created by statute, has only those powers conferred on it by legislation. The Tribunal did not have the power to impose conditions on registration of veterinary surgeons. Section 22E of the VS Act did not provide for the imposition of conditions by the Tribunal upon the respondent's registration and there is no other source of power. It was conceded that the Tribunal's Order 2 should therefore be set aside but contended that this outcome did not affect the larger question of sanction raised by Ground 2 of the appeal.
  4. [24]
    Senior counsel who appeared for the applicant had only recently come into this matter shortly before the hearing before me and was not the author of the written submissions which had been hitherto filed on behalf of the applicant.
  5. [25]
    His submission was that in consequence of the concession in respect of Ground 1 that the tribunal did not have power to impose conditions that there was an error of law and I was in a position effectively re-sanction or “re-sentence” as he put it, and that the factual issues for consideration were at large for determination.
  6. [26]
    He submitted because of the time that had passed, I should, on appeal, impose a fresh decision under QCAT Act section 146(b), and substitute my own decision for the decision of the members below, because I had all of the factual material before me. He ultimately appeared to resile from the position that I should review all of that material and decide what was relevant to penalty or sentence as he referred to it. He submitted that the issue for this Tribunal was straight forward because once it was held that there was an error of law in relation to Ground 1, I had power to re-sentence or remit the matter, but that the appropriate course was that I engage in the resentencing process.
  7. [27]
    When asked to take the Tribunal to the material that he said was relevant to that resentencing, I was not taken to the voluminous evidentiary material at any length, nor were specific factual issues about which there might have been or indeed, is any contest identified. Nor was a method identified to resolve those conflicts.
  8. [28]
    I intend to proceed on the basis of the findings of fact made by the Tribunal below and to which there is no significant challenge.

The Tribunal’s finding as to what sanction should be imposed

  1. [29]
    In the disciplinary proceeding, the concession that he had engaged in misconduct in a professional respect was made at the outset in the pleadings, and the undertakings that were offered, and which remain in place were also offered on the pleadings. That meant that by the time the matter came on to be dealt with in late 2022, the real issue for the Tribunal was what disciplinary outcome or sanction should flow and whether costs should be awarded.
  2. [30]
    On the issue of what sanction should be imposed the tribunal’s findings were as follows:

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.

[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: (a) The whole position; (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); (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 (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: (a) That in the circumstances, removal of the respondent’s name from the register is not warranted; (b) That the respondent is currently a fit and proper person to engage in the practice; and (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. 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;
  1. The accounts remain untested from a criminal perspective; and
  1. The complaint came to light some 9 years after it occurred, at the instigation of the QPS.
  1. 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;
  1. When he realised he had entered the prior complainant’s cubicle by accident, he froze;
  1. His mistaken entry into the prior complainant’s cubicle was made in a spilt second whilst he was tired and distracted;
  1. 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;
  1. He did not disclose this incident to Dr Yoxall because it was not an intentional or premeditated; and
  1. He now sees that his behaviour was inappropriate and caused distress.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. The respondent has expressed remorse for his behaviour.
  1. 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;
  1. 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;
  1. 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
  1. 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.
  1. 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;
  1. 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;
  1. The respondent is driven by giving back to the community that supported him, by providing veterinary services to an area in need; and
  1. 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.
  1. 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
  1. 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. 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
  1. 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;
  1. The Board acknowledges it has implemented undertakings in other matters, albeit in the context of retirement. This case should be no different; and
  1. The Act does make provision for the imposition and monitoring of conditions, albeit in the context of approvals to use premises as veterinary premises.
  1. [31]
    The respondent submits and I accept that both parties submitted to the Tribunal below, on authority including authority of the High Court,[3] that the ultimate question for determination was "whether the material demonstrates that the practitioner is not a fit and proper person to remain a veterinary surgeon". That issue fell to be determined at the time of the hearing, not at the time of the conduct, which in this case occurred in 2015, and to a lesser extent there was another incident in 2009. It was also the case that the factual features of the case were unique. No comparable matter could be identified. Some decisions advanced by the Board were rightly found to be “not of assistance”. Even on this appeal neither party referred me to any comparable case where a sanction had been determined in any comparable circumstances.
  2. [32]
    The mere fact of there being convictions for a serious offence does not demonstrate a basis for that a practitioner being prevented from practicing. In Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 at 287-8 the High Court reversed an order striking off a barrister who had been convicted of manslaughter. See also similarly in A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253, at [16]. All of the circumstances of the case must be carefully considered but with the focus not being on punitive measures but on fitness to practice, and since this is an appeal and I am to decide what if any sanction should replace the orders made in respect of which improper conditions were introduced.

General deterrence of other members of the profession

  1. [33]
    The applicant contends that the Tribunal failed to adequately take into account or give appropriate weight to material considerations in particular the need for general deterrence of other members of the veterinary surgeon profession. The applicant submitted that general and personal deterrence is a key principle guiding sanction, and identified comparatives involving cancellation of registration of professionals where serious sexual assaults had been committed. The context of these is of course always important.
  2. [34]
    The applicant contends that the Tribunal failed to adequately take into account the need to maintain standards and public confidence. The applicant contends that the reasons focussed unduly on the respondent’s particular circumstances, and concluded that the need for personal deterrence was low, given the lapse of time, the apparent rehabilitation of the respondent, and the unlikelihood that similar behaviour would occur given the respondent's isolated residence and practice. The reasons did focus upon those issues but not in a way that disclosed any error.
  3. [35]
    The Applicant referred to the decision of the NSW tribunal in Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 (‘Meneghetti’) which concerned a medical practitioner who improperly prescribed certain substances to patients when it was apparent that this should not occur. The Tribunal found that the on the spectrum of unsatisfactory professional conduct the conduct, both individually and cumulatively, was towards the more serious end of the scale.
  4. [36]
    In Meneghetti the NSW Tribunal was applying the Health Practitioner Regulation National Law (NSW) (‘the National Law’). Under the National Law the objective and guiding principle when exercising functions under the National Law is that "the protection of the health and safety of the public" is "the paramount consideration": National Law, s 3A.
  5. [37]
    The NSW Tribunal held that the primary reason for making protective orders is to protect the public, not to punish the practitioner. It noted that as the High Court said in an analogous context involving the disbarment of a legal practitioner:

Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege. (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202)

  1. [38]
    The Applicant referred to statements in the reasons in Meneghetti that concluded;
  1. In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law.
  1. Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.
  1. The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
  1. Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners _to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
  1. Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
  1. [39]
    It may readily be accepted that although this tribunal is not exercising functions under Subdivision 6 of Division 3 of Part 8 of the National Law, and they refer to medical practitioners, not veterinary surgeons, that as a general guide to how these matters are to be determined, those principles are to be applied. Disciplinary proceedings against members of veterinary surgeons are undoubtedly intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession. I accept also that the aim of protective orders is not only to protect the public from further misconduct, but to deter other practitioners from engaging in such conduct.
  2. [40]
    The Penalties and Sentences Act 1992 (Qld) sets out rules and guidelines that courts must follow when sentencing adults convicted of an offence, including for rape or sexual assault. The only purposes (or combination of purposes) for imposing a sentence in Queensland are:
  1. Punishment – to punish the person in a way that is just (fair),
  1. Rehabilitation – to help a person change their behaviour so they do not commit an offence again,
  1. Deterrence – to discourage that person and other people from committing the same type of offence by showing them what might happen if they do,
  1. Denunciation – to express in a formal way that the person’s behaviour is unacceptable to the community, and
  1. Protection – to keep the community safe
  1. [41]
    General deterrence has been a longstanding feature of the law of sentencing, or punishment. Spigelman CJ said in R v Wong [1999] NSWCCA 420 at [127]–[128] that legislation would be required to change the court’s approach to deterrence:

There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter.

Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge. Deterrence is an appropriate basis for promulgation of a guideline. (See Henry [(1999) 46 NSWLR 346] at [41] and [205]–[211]; Police v Cadd (1997) 94 A Crim R 466 at 511; and my address “Sentencing Guideline Judgments” 11 CICJ 5 at 10–11; 73 ALJ 876 at 880–881).

  1. [42]
    The effectiveness of general deterrence has always been the subject of debate. King CJ in Yardley v Betts (1979) 1 A Crim R 329 at 333 remarked:

The courts must assume, although the evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime.

  1. [43]
    In Munda v Western Australia (2013) 87 ALJR 1035 at [54], the High Court acknowledged that general deterrence may have limited utility in some circumstances:

It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence …

  1. [44]
    Neither party addressed the issue of whether, where a person has been imprisoned for rape inter alia as a general deterrent, there is a specific need for further deterrence of veterinary surgeons from engaging in acts of rape when practicing as veterinary surgeons. The function to be achieved by this further deterrence, specifically of veterinary surgeons from engaging in serious criminal conduct, is elusive.
  2. [45]
    In Queensland, there have been decisions of QCAT which have previously made findings about veterinary surgeons’ conduct and determined whether or not an appropriate sanction should be imposed on the registrant. They are all cases involving the way treatment was administered, not criminal conduct unrelated to the administration of treatment or management of it.
  3. [46]
    In Veterinary Surgeons Board of Queensland v MacIntosh [2010] QCAT 601 (‘MacIntosh’), a decision was made to impose a lengthy suspension on the registrant. The Tribunal had regard to the facts that were admitted and the consequences for horses maltreated under the registrant's care. The Tribunal said that '[t]he suspension would also reflect the seriousness of her [the registrant's] misconduct, and serve as a deterrent to those who choose to engage in similar practices.'
  4. [47]
    In MacIntosh, the registrant provided dental treatment to four horses. The serious consequences of the registrant's conduct that was found to be 'misconduct in a professional respect', included, amongst other things, medical complications arising from the treatment. For example, one of the horses treated was euthanised and in another instance, the treatment resulted in the death of the four extracted teeth.
  5. [48]
    In MacIntosh the Tribunal took into account several factors in considering sanction, including insight into the conduct, undertakings given to the Tribunal to undergo further specialist training in equine dentistry and the serious consequences of the registrant's conduct. The Tribunal accepted that the registrant did not intend the consequences of her dental treatment nor did she disregard the welfare of the animals she treated. The Tribunal found, however, that the registrant was 'somewhat misguided in her approach' in regards to the techniques used. The Tribunal said it was 'confident' that with 'proper education' the registrant will not fall into the same error in the future. The Tribunal also said that any suspension will have 'serious consequences on the [registrant]' and accepted that the registrant and her husband have significant expenses. The Tribunal imposed an order that the registrant be reprimanded and her registration suspended for a period of 3 months save for those periods necessary to undertake the various training and courses the subject of the respondent's undertaking to the Tribunal. The Tribunal also made an order for costs.
  6. [49]
    MacIntosh did not involve any criminal conduct or conduct that had been the subject of imprisonment which in and of itself was designed to have a deterrent effect.
  7. [50]
    In Veterinary Surgeons Board of Queensland v O'Flaherty [2016] QCAT 8, a vet had engaged in 'misconduct in a professional respect' by giving out-of-date antibiotics to a dog, operating premises that were not approved veterinary premises and failing to keep adequate records but the Tribunal did not take any further action, inter alia because the vet had provided the Board an undertaking to immediately and permanently retire from practice.
  8. [51]
    At paragraph [44] of the reasons in the present matter the Tribunal said it was 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. It might instead have accepting undertakings from him to act in a way consistent with those same conditions, and if he complied with those undertakings, the question is whether that would have been sufficient to provide protection of the public and profession, and act as a deterrent.
  9. [52]
    Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234 concerned treatment of a cat that was later euthanised by another practitioner and a failure to keep adequate records. The Tribunal made findings about the conduct of the registrant but did not take any action under s 22E of the Act because of undertakings made by the registrant to the Board to complete two courses being in emergency medicine and internal medicine at his own cost. The Tribunal said that recognising the undertaking, rather than making an order under s 22E of the Act, 'is an appropriate sanction to achieve the purpose of protecting the public and maintaining the integrity of the profession'. The Tribunal ordered that the registrant pay the Board's costs of the proceeding and said that Dr Brown accepted that given his admissions, he should be ordered to pay these costs. That case did not involve any criminal conduct, or conduct that had been the subject of imprisonment which in and of itself was designed to have a deterrent effect either.
  10. [53]
    In Veterinary Surgeons Board v Griffin [2017] QCAT 93 (‘Griffin’) footnoted above was another treatment case and there the Tribunal approved the statement that "deterrence, both general and personally", is a key principle guiding disciplinary tribunals when imposing a sanction.
  11. [54]
    Griffin involved repeated failures to examine and assess racing and sporting horses before treatment and to keep adequate records was not only a failure that falls short of the professional standards of his profession but called into question his ability to continue to practice and hold registration as a veterinary surgeon.
  12. [55]
    It was held that he was not a suitable person to remain a veterinary surgeon, and that an appropriate sanction that removes his name from the register was warranted. The Tribunal held as follows;

[57] We also find that a period of de-registration is warranted in this matter as a deterrence to other registrants who may disregard the standards expected of a veterinary surgeon in treating an animal and in keeping and maintaining adequate records. We find that consistent with the principles in Gelderman's case, the public interest in allowing Dr Griffin to continue to practice is outweighed by deterrence principles and the protection of the public from other practitioners engaging in similar conduct. This is particularly important in circumstances where a number of animals are being treated with the same dose of drug for the same symptoms. Furthermore, it is especially serious where a veterinary surgeon considers it necessary to leave a drug such as Bute Paste (that has potential adverse consequences for the animal) for the trainer or owner to administer (to the animal) in circumstances where the examination is inadequate and there is no follow up treatment. We also find that deterrence of similar conduct in this matter is important in considering that the horses were involved in the racing and sporting industry. As held in Williamson's case, there are standards expected in the racing industry and public confidence relies on licensed persons such as veterinary surgeons behaving with integrity.

[58] In determining the appropriate order under s 22E of the Act, we accept and have taken into consideration Dr Griffin's further evidence. We accept and find accordingly that Dr Griffin has been honest in giving his evidence throughout the disciplinary proceedings and, consistent with our earlier findings, there is no evidence before us of a complaint giving rise to the referral or evidence of any adverse consequences including proof of injury or loss arising from Dr Griffin's treatment of horses. We also accept that since the referral of the allegations there is no evidence before us of any complaints in relation to Dr Griffin's conduct and practice as a veterinary surgeon and this is, as submitted, evidence of good conduct by Dr Griffin in the past four years. We accept that Dr Griffin has implemented changes to his practice since the Tribunal's findings were made, particularly in relation to the administration of bute paste. We accept that Dr Griffin has clients that value his work as a veterinary surgeon. We acknowledge that a period of de-registration will have serious consequences for Dr Griffin as a veterinary surgeon because, amongst other things, he will not be able to draw a wage from his practice during the period of disqualification. Dr Griffin will also need to re-apply for registration at the end of the relevant period of de-registration and this will require him to satisfy the Board that he has met all of the requirements (for registration) under the Act.

  1. [56]
    Griffin did not involve any criminal conduct, or conduct that had been the subject of imprisonment which in and of itself was designed to have a deterrent effect either.
  2. [57]
    I pause to note that in Griffin the Tribunal held that the Tribunal had found all of 21 allegations to be substantiated and the vet had admitted only a few allegations in relation to record keeping. In proceeding to a hearing for the 21 contested allegations there was expert evidence and Dr Griffin's oral evidence heard over 7 days. Thus, the Tribunal accepted that both the Board and Dr Griffin had incurred considerable costs in the proceedings. As held in Medical Board of Western Australia v Roberman [2005] WASAT 81, at [30] the Board as a regulatory body had limited resources and a financial burden of bringing disciplinary proceedings. It was held to be in the public interest that if the allegations are successful the offending registrant, should meet or at least contribute to the costs incurred in bringing the proceedings.
  3. [58]
    Numerous NSW decisions are discussed in Griffin. Each turns on its own facts. One of those, Veterinary Surgeons Investigating Committee v Williamson (No. 2) [2005] NSWADT 112 was a treatment case. It was held that Dr Williamson's conduct was of special concern because it involves racing animals. The racing industry and the massive gambling activities (and income stream to government) that surround it are tightly regulated. It was held that public confidence in the operation of racing depends heavily on licensed persons observing the rules of racing and behaving with integrity. Equally, professionals with a close involvement in the industry must act in a way which upholds that public confidence.
  4. [59]
    I accept the proposition that "deterrence, both general and personally", is a key principle guiding disciplinary tribunals when imposing a sanction, however I do not accept that the decision in this case failed to give proper consideration to that factor or the other relevant factors including the need to maintain standards and public confidence, and general deterrence.
  5. [60]
    The Tribunal properly noted that the purpose of the proceeding was for the protection of the public, and the maintenance of professional standards and public confidence in the profession. The applicant’s submissions to contrary effect are not accepted. The Tribunal members balanced those considerations with the particulars facts of the case. It was also conscious of the relevance of personal and general deterrence and referred to those matters in the reasons which are comprehensive and detailed in their analysis.
  6. [61]
    I accept the submission made for the respondent that given the Tribunal's findings concerning rehabilitation, remorse, and low risk of reoffending, personal deterrence was not a significant factor in the balancing exercise. I should add that this conduct was criminal conduct, not conduct in the course of providing veterinary services or involving how services were administered and is conduct that had been the subject of imprisonment which in and of itself was designed to have a deterrent effect
  7. [62]
    I accept the submission made for the respondent that as for general deterrence and maintenance of standards, by virtue of the respondent's undertaking of 22 March 2019, he has not practised since his release from prison on 1 August 2019, a period of three years and three months prior to the Tribunal's decision of 9 November 2022. The Tribunal rightly took this period into account in determining that additional suspension of registration was not warranted.
  8. [63]
    Secondly there has been a further significant period of delay such that with the lapse of further time bringing on this appeal, that period for which he has not practiced has extended to over five and a half years now that this appeal has been disposed of.
  9. [64]
    Thirdly I accept the submission made for the respondent that the Tribunal intended that its conditions in Order 2 be a further reflection of deterrence and public protection, in addition to the de facto suspension since 22 March 2019. Although it lacked power to impose the conditions, the same result is achieved by virtue of the defendant's further undertaking to limit his practice in the same terms for five years from the date of decision, 9 November 2022.
  10. [65]
    The Tribunal’s reasons noted that the respondent had demonstrated his bona fides with respect to the undertaking of 22 March 2019.It rejected the Board’s submissions as to its ability to monitor an undertaking. In my view the Tribunal has properly considered and given appropriate weight to deterrence and public protection.
  11. [66]
    There are other significant relevant factors. In Griffin at [34] the Tribunal held that it was required to “balance the public interest in allowing (the practitioner) to practice against the likelihood of a repetition of the offence by (the practitioner) and similar defaults by other practitioners". The Tribunal clearly engaged in the required balancing exercise and identified features, beyond the respondent's complete rehabilitation, that favoured his return to practice in the public interest, namely and which in my view remain in place to favour his return to practice.
  12. [67]
    He has a high degree of competence and unique skills and experience in large animals.
  13. [68]
    He has strong support from many respected members of his remote community, with full knowledge of his offending and a number of members of that community provided detailed letters of support.
  14. [69]
    The evidence shows that he was driven to give back to the community that had supported him by providing veterinary services to "an area in need". The station manager for Gregory Downs Station in Far North Queensland provided a statement which deposed to this.
  15. [70]
    There is unchallenged evidence which may readily have been accepted and which I would also accept that shows that due to the remoteness of the cattle industry in the Far North Qld and the shortage of veterinarians, the respondent's absence from practice had had a substantially detrimental impact on the agricultural industry.
  16. [71]
    One station manager for Gregory Downs Station referred to the fact that the cattle undergo pregnancy testing by a vet and it is becoming more and more difficult to find a vet who will travel all the way out to Gregory Station in order to do this work. Further, each head of cattle is required to have a veterinary clearance before it is sold on the export market. Gregory Downs Station runs many thousands of heads of cattle and at the moment it ranked has become necessary to prebook veterinary services for a vet to travel out from Cloncurry to Gregory Downs Static. The distance is over 330kms each way. At the moment, there are very few vets that they can call upon to do this kind of work. He said that if the respondent was able to return to providing vet services for his local community this would greatly assist Gregory Downs Station and other cattle stations and properties in the area. Another station manager at Gregory Downs Station said similar things She said that it is a very big burden on cattle stations in that area, who export many thousands of head of cattle overseas, to try and find vets who are qualified and experienced and who are able to undertake the rigorous work which was previously done by the respondent.
  17. [72]
    The Chairperson of the board of Southern Gulf Natural Resource Management Group and the Production Advisor for Paraway Pastoral Company in the north, and employed part time by the Qld Department of Agriculture and Fisheries as a Beef Extension Officer. She said that owning beloved family pets and valuable horses, comes with its own set of unique challenges whilst living this remotely. She said that seeking help for an animal that is unwell or in distress is a priority and being unable to do so rapidly, adds a great deal of stress and emotional strain to an already stressful situation. She said that throughout the years, the respondent had been a trusted, reliable, and calming resource on the other end of the phone, providing expertise, reassurance, and advice in these highly stressful scenarios. There is a significant deficit of suitably experienced, knowledgeable, and skilled individuals working in this vast region, in animal health and veterinary practices. This lack of capacity to service the demands of the significantly important northwest Qld cattle industry, has long lasting impacts on the animal welfare outcomes and commercial performance outcomes of beef businesses in the region. The removal of his licence as she called it has had a significant and detrimental impact on an essential service that needs to be available to the communities and industry enterprises that reside and operate within this region.
  18. [73]
    The Tribunal referred to the consequences of the respondent's offending as having been "catastrophic" not only for him and his family, but for "the community" which is a reference to the adverse impact on the industry of the respondent's services being unavailable.
  19. [74]
    That balancing exercise was of some prominence on the facts of this case and remains so because the respondent's veterinary skills were and are of particular importance to the pastoral industry in the remote Far North Qld.
  20. [75]
    I even were persuaded that the Tribunal had not properly considered and given appropriate weight to deterrence and public protection, in my view, were I to redecide what disciplinary action ought to be imposed, having regard to the lengthy passage of time since the offending, and his de-facto suspension from practice for the past five and a half years.
  21. [76]
    That he has undertaken to this Tribunal that he will abide by the specified condition for a period of five years from 9 November 2022, that is until 8 November 2027 that he is prohibited from
    1. employing or contracting females to work for him in his veterinary practice;
    2. providing work experience or placement opportunities or the like to any females in his veterinary practice;
    3. the above prohibitions 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.
  22. [77]
    In matters such as these the Tribunal has long treated the giving of such undertakings as relevant. In Veterinary Surgeons Board of Queensland v Auld [2018] QCAT 447….
  23. [78]
    In submissions in reply, senior counsel for the applicant tantalisingly dangled the carrot that implied that he should reapply, and with the material that he could now rely upon to show his rehabilitation and good character that he would or may be treated favourably by the Board. In practical effect, this involved the proposition that a formal finding that he be de-registered effective from when the original decision was made would be recorded, even though he had not in fact, practiced it in the period since his conviction or sometime shortly thereafter, and despite the fact that the conduct in question occurred more than a decade ago. As matters stand the Board has a detailed knowledge of the material relied upon as showing that he was a person of good character had been rehabilitated, and indeed provided or would provide useful social function in the remote area where he would work, he should be made to go through the motions of reapplying.
  24. [79]
    Senior counsel for the applicant flagged and conceded that there might properly be an order for a suspension in lieu of an order removing his name from the roll but the applicant’s preferred position was removal from the roll.
  25. [80]
    Instead of imposing conditions on his practice, the Tribunal below could and should have accepted the undertakings offered and given, as a foundation for determining what if any disciplinary action should be taken having regards to all of the material. I accept the submission by Mr Rice KC that the deterrent effect as regards his own prospect of reoffending has been achieved because he has had a period of six years in a practical sense of not practicing because of his conduct.
  26. [81]
    In light of the respondent’s undertaking, and the 10 years that have passed since the conduct in question, I do not consider it appropriate now to have him removed from the register with the result that he will need to re-apply to become registered and no purpose can genuinely be achieved in doing so.[4]  In my view a suspension would have no function because in light of the factual findings that, it would be unlikely to be a suspension that took him beyond the present time. The “notional suspension” to his practice for the past five years would have been an adequation sanction had it been one imposed five years ago.

Costs

  1. [82]
    It is settled law that s 15D of the VS Act confers jurisdiction on the Tribunal to make a decision about costs it considers 'appropriate in the circumstances of the particular proceedings'.[5] 
  2. [83]
    In relation to costs the reasons in the present matter provided as follows:

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”. 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, 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. The Board has been successful in establishing the offences as misconduct in a professional respect;
  1. 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 ss 22E and 22F of the Act, after having abandoned its reliance on the more serious s 22C of the Act in its initial Referral of 27 November 2018;
  1. 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
  1. The Board has not been successful in its submissions on sanction.

[50] Against that background, we make no order as to costs consistent with s 100 QCAT Act.

  1. [84]
    In one sense making no order as to costs was consistent with s 100 QCAT Act however it was an error of law to refer to s 100 in the QCAT Act and the proposition that its premise that in the Tribunal each party usually bears its own costs was relevant or applicable. That is because since s 6(3) of the QCAT Act expressly provides that an enabling act conferring original jurisdiction may add to, vary or exclude the functions stated in the QCAT Act and because s 15D of the VS Act clearly invokes a different test to that set out in s 100 the QCAT Act. The default position that each party bears their own costs is displaced by s 15D.
  2. [85]
    The applicant initially submitted that it ought to have been given the costs below because the applicant was successful in establishing the criminal offences as misconduct in a professional respect and that sanctions were imposed (albeit in error as referenced already above).
  3. [86]
    In McIntosh the Tribunal said that in making an order about costs the interests of justice remain 'a valid basis upon which the discretion ought to be exercised under section 150'. The Tribunal said McIntosh and this Tribunal later applied in Griffin at [66], the following principles, (footnotes omitted):

In exercising the jurisdiction to make a costs order in this Tribunal, the interests of justice remain a valid basis upon which the discretion ought to be exercised under s 15D. Also, the broad power must still be exercised judicially, not upon irrelevant or extraneous considerations but upon acts connected with or leading up to the hearing. This would include the financial circumstances of the parties.

  1. [87]
    In Griffin the Tribunal referred to and adopted a statement form Medical Board of Western Australia v Roberman [2005] WASAT 81, at [30]; and said at [69];

In Roberman's case the Tribunal said that where a regulatory body successfully brings a complaint of conduct there will usually be a strong case for the exercise of the discretion to award costs. This is because such bodies perform a function which promotes the public interest and usually with limited resources.

The relevant extract from Roberman's case is as follows:

S 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which if proved justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. It is of course a matter of discretion to be exercised in the circumstances of each case

  1. [88]
    In Griffin the Tribunal held that;

We find that the appropriate order in relation to costs is that Dr Griffin must pay the Board's costs of and incidental to these proceedings from and including 6 August 2015 to be agreed or assessed by way of a short form assessment from Garrett Legal Costs Assessors on a standard basis in accordance with the District Court Scale of Costs. We make orders accordingly.

  1. [89]
    I reject the applicant’s submission, that the Tribunal applied a “starting point” that it should not make an award of costs. As I have set out above, it expressly referenced s 15D of the VS Act, and gave cogent reasons for why it was appropriate to make no order. In particular reference was made to the fact that professional misconduct was admitted on the pleadings, the respondent offered restricted practice for five years, to be viewed in addition to the 3.8 years of defacto suspension since his undertaking of March 2019 and that the applicant failed on the major issue of cancellation of registration, about which most time and cost had been incurred by both parties.
  2. [90]
    The applicant submitted that it is also relevant that “there is a settled pattern of the Tribunal awarding costs in favour of the Applicant when it is successful”. If there is a settled pattern of the Tribunal awarding costs in favour of the Applicant when it is successful, this was not such a case. A review of the seven cases referred to as demonstrating such a patter, three involved consent orders so reveal no pattern at all as regards the Tribunal. The others all involved tailored costs orders reflecting an exercise of discretion relevant to the particular circumstances. One was the Griffin decision which I discussed in detail earlier.
  3. [91]
    The applicant submitted that here the relevant considerations include:
  1. The finite resources of a practitioner-funded regulatory Board with statutory obligations;
  1. it was the statutory responsibility of the Board, necessarily involving the incurring of costs, to place this serious matter involving the practitioner’s conduct with a person subject to his professional supervision before the Tribunal;
  1. the referral by the Board to the Tribunal required the Tribunal to satisfy itself as to the matters agreed upon by the parties, as well as to rule upon those not in dispute;
  1. the hearing extended over 18 February 2022 and 17 May 2022, with the decision being delivered on 9 November 2022;
  1. ultimately, there was no contest as to the practitioner having engaged in misconduct in a professional respect in the form of having committed one act of rape and three acts of sexual assault upon a person under his supervision on a placement with his practice;
  1. there was a clear and acknowledged nexus between the misconduct and the exercise of his professional responsibilities;
  1. the parties agreed on material facts, which narrowed the issues in dispute by Statement of Agreed Facts dated 1 June 2021;
  1. the practitioner made admissions about his misconduct in his Amended Response on 18 December 20207 subsequent to the Board’s filing and serving an Amended Referral on 22 June 2020;
  1. the significant disagreement between the parties, which consumed most of the Tribunal’s hearing time, was as to sanction with the Board pressing for cancellation of registration and the practitioner contending that the undertaking that he provided was a sufficient outcome in the circumstances of the case and should be the subject of a condition on his registration;
  1. the Tribunal at first instance accepted that the practitioner has engaged in misconduct in a professional respect but, ultra vires, imposed conditions on his registration (over opposition from the Applicant) in substantially the same terms as the undertaking provided by the practitioner to the Tribunal;
  1. [92]
    In my view there was a sound discretionary basis for making no costs order, since that left each party with the burden of having lost on some significant issue, and in particular that the applicant failed in the primary goal it sought to achieve, and this issue about which there was the greatest controversy, his deregistration.
  2. [93]
    As for the costs of this appeal, the applicant submits it should have them if it succeeds in its appeal but does not say what should happen if it does not. In a minor respect it has succeeded but it has not affected the outcome in terms of the respondent’s deregistration and costs below. In the minor respect on which it succeeded there would have been no need for a hearing, the parties could have resolved the matter based on consent orders and undertakings. It is the case that the appeal hearing was almost entirely taken up with the issue of cancellation of registration and costs. I will give the parties an opportunity to put in submissions on costs of the appeal should they not resolve the issue as between them.
  3. [94]
    I order that:
  1. Upon the undertakings given by the respondent to this Tribunal that he will abide by a specified condition for a period of 5 years from 9 November 2022, that is until 8 November 2027, the specified condition being that he is prohibited from;
  1. employing or contracting females to work for him in his veterinary practice;
  1. providing work experience or placement opportunities or the like to any females in his veterinary practice;
  1. with the proviso that the above prohibitions 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.
  1. The appeal in respect of ground 1 is allowed.
  2. Leave to appeal on grounds 2 and 3 are refused and the appeal is otherwise disallowed.
  3. Within 7 days of the making of these orders the parties shall file any submissions they seek to rely on in relation to the costs of the appeal should they not resolve the issue as between them.
  4. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

Footnotes

[1]Under QCAT Act ss 142(3)(b), 142(3)(a)(iii) respectively.

[2]Rayner v Whiting [2000] 2 Qd R 552, 553; Hardie v Bryson [2013] QCATA 250, [4]; Gamble v Klein [2014] QCATA 35, [11]; Pickering v McArthur [2005] QCA 294, [3]; Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, [5].

[3]A Solicitor v Council of the Law Society of New South Wales [2004] 216 CLR 253, [15]; Veterinary Surgeons Board v Griffin [2017] QCAT 93, [7]; Veterinary Surgeons' Board of Western Australia v Alexander [2014] WASAT 105, [18].

[4]Watts v Legal Services Commissioner [2016] QCA 224, [49]-[50].

[5]Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417 (‘McIntosh’); Griffin at [66].

Close

Editorial Notes

  • Published Case Name:

    Veterinary Surgeons Board of Queensland v Butterworth

  • Shortened Case Name:

    Veterinary Surgeons Board of Queensland v Butterworth

  • MNC:

    [2025] QCATA 43

  • Court:

    QCATA

  • Judge(s):

    Member P Roney KC

  • Date:

    28 Apr 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
A Solicitor v Council of Law Society of New South Wales (2004) 216 CLR 253
3 citations
Jump To
Cite 1 - (2004) 216 CLR 253
Cite 2 - (2004) 216 CLR 253
Cite 3 - (2004) 216 CLR 253
Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100
2 citations
Jump To
Cite 1 - [2008] QCA 100
Cite 2 - [2008] QCA 100
Clyne v NSW Bar Association (1960) 104 CLR 186
1 citation
Jump To
Cite 1 - (1960) 104 CLR 186
Disability and Home Care v Lambert (2009) 74 NSWLR 523
1 citation
Jump To
Cite 1 - (2009) 74 NSWLR 523
Disability and Home Care v Lambert [2009] NSWCA 102
1 citation
Jump To
Cite 1 - [2009] NSWCA 102
Gamble v Klein [2014] QCATA 35
2 citations
Jump To
Cite 1 - [2014] QCATA 35
Cite 2 - [2014] QCATA 35
Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27
1 citation
Jump To
Cite 1 - [2001] NSWADTAP 27
Hardie v Bryson [2013] QCATA 250
2 citations
Jump To
Cite 1 - [2013] QCATA 250
Cite 2 - [2013] QCATA 250
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
1 citation
Jump To
Cite 1 - (1997) 41 NSWLR 630
Health Care Complaints Commission v Litchfield [1997] NSWSC 297
1 citation
Jump To
Cite 1 - [1997] NSWSC 297
Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39
2 citations
Jump To
Cite 1 - [2020] NSWCATOD 39
Cite 2 - [2020] NSWCATOD 39
Lee v Health Care Complaints Commission [2012] NSWCA 80
1 citation
Jump To
Cite 1 - [2012] NSWCA 80
Medical Board of Western Australia and Roberman [2005] WASAT 81
3 citations
Jump To
Cite 1 - [2005] WASAT 81
Cite 2 - [2005] WASAT 81
Cite 3 - [2005] WASAT 81
Munda v Western Australia (2013) 87 ALJR 1035
2 citations
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Cite 1 - (2013) 87 ALJR 1035
Cite 2 - (2013) 87 ALJR 1035
Pickering v McArthur [2005] QCA 294
2 citations
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Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Police v Cadd (1997) 94 A Crim R 466
1 citation
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Cite 1 - (1997) 94 A Crim R 466
Prakash v Health Care Complaints Commission [2006] NSWCA 153
2 citations
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Cite 1 - [2006] NSWCA 153
Cite 2 - [2006] NSWCA 153
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
1 citation
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Cite 1 - [2003] NSWCA 320
R v Henry (1999) 46 NSWLR 346
1 citation
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Cite 1 - (1999) 46 NSWLR 346
R v Wong [1999] NSWCCA 420
2 citations
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Cite 1 - [1999] NSWCCA 420
Cite 2 - [1999] NSWCCA 420
Rayner v Whiting[2000] 2 Qd R 552; [1999] QCA 214
2 citations
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Cite 1 - [2000] 2 Qd R 552
Cite 2 - [2000] 2 Qd R 552
Veterinary Surgeons Board of Queensland v Auld [2018] QCAT 447
1 citation
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Cite 1 - [2018] QCAT 447
Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234
2 citations
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Cite 1 - [2016] QCAT 234
Cite 2 - [2016] QCAT 234
Veterinary Surgeons Board of Queensland v MacIntosh [2010] QCAT 601
2 citations
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Cite 1 - [2010] QCAT 601
Cite 2 - [2010] QCAT 601
Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417
1 citation
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Cite 1 - [2011] QCAT 417
Veterinary Surgeons Board of Queensland v O'Flaherty [2016] QCAT 8
2 citations
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Cite 1 - [2016] QCAT 8
Cite 2 - [2016] QCAT 8
Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105
2 citations
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Cite 1 - [2014] WASAT 105
Cite 2 - [2014] WASAT 105
Veterinary Surgeons Board v Griffin [2017] QCAT 93
3 citations
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Cite 1 - [2017] QCAT 93
Cite 2 - [2017] QCAT 93
Cite 3 - [2017] QCAT 93
Veterinary Surgeons Investigating Committee v Williamson (No. 2) [2005] NSWADT 112
2 citations
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Cite 1 - [2005] NSWADT 112
Cite 2 - [2005] NSWADT 112
Watts v Legal Services Commissioner [2016] QCA 224
2 citations
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Cite 1 - [2016] QCA 224
Cite 2 - [2016] QCA 224
Yardley v Betts (1979) 1 A Crim R 329
2 citations
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Cite 1 - (1979) 1 A Crim R 329
Cite 2 - (1979) 1 A Crim R 329
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
2 citations
Jump To
Cite 1 - (1957) 97 CLR 279
Cite 2 - (1957) 97 CLR 279

Cases Citing

Case NameFull CitationFrequency
Veterinary Surgeons Board of Queensland v Hitchcock [2025] QCAT 2002 citations
1

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