Veterinary Council suspended vet; Court sets aside suspension due to vested right to 2005 Act regime.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 272

Record No. 2016/126

Peart J.

Hogan J.

Whelan J.

BETWEEN/

LUCIAN PODARIU

APPLICANT/

RESPONDENT

- AND -

THE VETERINARY COUNCIL OF IRELAND

- AND -

THE FITNESS TO PRACTICE COMMITTEE

OF THE VETERINARY COUNCIL OF IRELAND

RESPONDENTS/

APPELLANTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 24th day of October 2017

1. The applicant, Mr. Lucian Podariu, is a veterinary surgeon from Romania who has practised in Ireland for almost 10 years. Sixteen

complaints were made against him in respect of his handling and treatment of small animals, namely dogs and cats, albeit that one of

these complaints (complaint no. 14) related to the keeping of adequate contemporary veterinary records in relation to one or more of

these animals and another (complaint no. 6) related to an alleged embellishment of his curriculum vitae. As the dates of certain

events in this narrative assume some importance for reasons which will become clearer later in this judgment, it should be stated that

the sixteen complaints in question all relate to events which took place between February 2010 and April 2012.

2. These complaints were made by the complainant, a Mr. Roarty (who was the former employer of Mr. Podariu) to the Registrar of

the Veterinary Council (“the Council”) on 1st May 2012. The complaints were considered by the Preliminary Investigation Committee

(“PIC”) of the Council and in July 2012 the matter was referred to an inquiry before the Fitness to Practice Committee of the Council

(“FTPC”) pursuant to the provisions of s. 76(6)(b) of the Veterinary Council Act 2005. Mr. Podariu was directed to produce veterinary

records by way of production summonses issued by the FTPC in October 2012 and in May 2013. The notice of inquiry, dated April

2013, related to Mr. Podariu’s management of a number of small animals but it also contained, as I have already noted, an allegation

(allegation no. 14) to the effect that he had failed to maintain any or adequate contemporaneous records of his treatment of those

small animals.

3. The inquiry before the FTPC commenced on 20th May 2013. During the course of the inquiry, Mr. Podariu produced original

notebooks which he claimed were his contemporaneous handwritten records for the relevant years. In the light of this evidence, the

Registrar (having concluded her evidence) then proposed adducing evidence before the FTPC to the effect that the handwritten

records produced by the Respondent were not in fact contemporaneous records, as the notebooks in which they were written, sold

by the supermarket chain, Lidl Ireland, were not on the Irish market and could not have been purchased on the relevant dates in the

manner claimed by Mr. Podariu.

4. Mr. Podariu was notified by letter dated 27th June 2013 of a proposed application to amend the Notice of Inquiry to allege

expressly that the Respondent acted dishonestly in producing the records and in giving evidence by reference to those records

claiming that they were contemporaneous records.

5. The inquiry resumed on 1st October 2013 and at that hearing Mr. Podariu’s legal representatives did not dispute that the FTPC was

entitled in principle to allow the proposed amendment of the Notice of Inquiry. The FTPC decided to permit the amendment of the

Notice of Inquiry to introduce the amendment (allegation no. 17) to the effect that the Mr. Podariu had acted dishonestly in

purporting to produce contemporaneous handwritten records. The inquiry, which was then adjourned, subsequently resumed and

concluded on 11th November 2013. The FTPC found Mr. Podariu guilty of professional misconduct by reference to the amended charge

only (i.e., complaint no. 17) and recommended that he be censured.

6. On 17th November 2014, the Council considered the proposed sanction and decided instead to suspend the Respondent’s

registration for six weeks. Mr. Podariu then appealed that decision to the High Court pursuant to s. 80(3) of the Veterinary Practice

Act 2005 (“the 2005 Act”). McCarthy J. heard the appeal in January 2016 and in an ex tempore judgment delivered on 20th January

2006 he found for Mr. Podariu on fair procedures grounds. The Council have now appealed to this Court against that decision pursuant

to s. 80(6) of the 2005 Act pursuant to leave granted by McCarthy J. on the 11th February 2016.

7. Prior to considering the legal issues which now arise in respect of this appeal, it is appropriate in the first instance to consider the

relevant legislation.

The relevant legislation

8. Part 7 of the 2005 Act establishes a disciplinary regime for veterinary surgeons broadly similar to that currently in place for other

statutorily regulated professions. Section 76 of the 2005 Act provides that any person is entitled to apply for an inquiry into the

fitness to practise veterinary medicine of a registered person on the grounds, inter alia, of professional misconduct. Such an

application for an inquiry is directed, in the first instance, to the PIC. Pursuant to s. 76(5)(b) of the 2005 Act, the PIC then seeks

observations from the registered person in respect of whom the application is made. The PIC may then decide, pursuant to s. 76(6),

that the inquiry should proceed. In contrast to the statutory regime which obtains for other professionals, it may be noted that the

2005 Act provided for a timeframe within which this decision was required to be made. This time period was originally two months: see

s. 76(8). This period has now been extended to four months, pursuant to the amendments effected by the Veterinary Practice

(Amendment) Act 2012 (“the 2012 Act”).

9. If a decision to hold an inquiry is taken by the PIC, then the matter is sent forward to the FTPC. Pursuant to s. 78(3), the

veterinary surgeon is required to be given notice in writing by that Committee of the nature of the evidence “proposed to be

considered at the inquiry”. Although s. 78 does not provide in terms for the delivery of a notice of inquiry, it would appear that this is

the procedure which – in common with other statutory regimes governing disciplinary procedures – is followed by the FTPC. In

practice, the Registrar formulates the notice of inquiry.

10. At the conclusion of the inquiry, the FTPC is required to make a report on its findings to be delivered to the Council. The

requirement to deliver a report and the powers of Council on receipt of such a report were provided for by ss. 79 and 80 of the 2005

Act. In particular, s. 80(1) of the 2005 Act provided as follows:

“(1) Where the Council receives a report from the Fitness to Practise Committee under section 79(1), in which that

Committee gives as its opinion that the registered person to whom the inquiry relates is not fit to practise, or is not fit

to practise a specified type of veterinary medicine, or veterinary nursing as appropriate, it shall decide to do any of the

following:-

(a) remove the name of the registered person from all or some of the parts of the Register or the Register of

Veterinary Nurses where he or she is registered, as the Council considers appropriate,

(b) direct that for a specified period the registration of the registered person in all or some of the parts of the

Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate,

shall not have effect, or

(c) attach such of the following conditions as it thinks fit, to the retention of the name of the registered person in

all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the

Council considers appropriate:

(i) that he or she should obtain specified medical treatment;

(ii) that he or she should have limits placed on the type of veterinary medicine or veterinary nursing, as

appropriate, practised by him or her;

(iii) that he or she should have geographical or temporal limits placed on the practice by him or her of

veterinary medicine or veterinary nursing, as appropriate;

(iv) that he or she should attend specified programmes of education or further education;

(v) other specified conditions.” (emphasis added)

11. As originally enacted s. 81 empowered the Council to advise, warn or censure a person on receipt of a report from the FTPC, and

unlike s. 80, it was silent in relation to the fitness to practise of the veterinary practitioner. Critically, however, the 2005 Act was

subsequently amended by the 2012 Act. The 2012 Act was signed by the President on 18th July 2012 and, in the absence of a

provision to the contrary in that Act itself, it became law on that day by virtue of Article 25.4.1 of the Constitution.

12. The 2012 Act amended the 2005 Act in certain material respects. Section 4 of the 2012 Act operated to amend ss. 79 and 80 of

the 2005 Act. In particular, the amended version of s. 80 of the 2005 Act removed the requirement that the FPTC should have

expressed an opinion that the registered person in respect of whom the inquiry related was not fit to practise before the Council could

impose the more serious sanctions such as removal or suspension or the attachment of conditions to a practising certificate.

The High Court proceedings

13. In the special summons before the High Court Mr. Podariu advanced three substantive arguments on the pleadings concerning the

decision of the Council. These grounds related to:-

(i) fair procedures;

(ii) the admission of certain evidence which it was contended amounted to hearsay and

(iii) that the Council erred in law by applying a sanction pursuant to s. 80 of the 2005 Act in circumstances where an

application for an inquiry into the Respondent’s fitness to practice veterinary medicine was made and was directed to the

PIC prior to the commencement of the 2012 Act.

14. It seems that when matter came for hearing before the High Court, a wider argument was also advanced on behalf of Mr. Podariu

that the FTPC breached his right to fair procedures and/or constitutional justice. While McCarthy J. accepted that the wider point

was not pleaded, he nonetheless determined that it should be decided.

The High Court judgment

15. McCarthy J. noted that the new allegation added to the Notice of Inquiry was one of dishonesty which arose from an order

compelling the production of materials before the FTPC. He found that in principle no one could doubt the entitlement of the FTPC to

amend the Notice of Inquiry and to add what he described as a “charge” by way of amendment if there was jurisdiction to do so. He

therefore rejected the first of the three points advanced by Mr. Podariu on the pleadings. The judge nonetheless noted that the

power of amendment was not an unlimited power but was one:

“subject to the principles of constitutional justice, if and insofar as the additional matters emanate from, directly or

indirectly, or perhaps I could put it this way, ultimately, from the issues which have triggered the inquiry in the first place

or have caused the Fitness to Practice Committee's jurisdiction to be invoked”.

16. McCarthy J. then went on to hold that by adding allegation no. 17 at the inquiry stage (i.e., without going through the PIC) there

had been a breach of the rules of constitutional justice. He found that the real issue was whether there was what he descried as an

“original or founding jurisdiction” ab initio in the FTPC to hear and determine the new allegation of professional misconduct which arose

during the hearing of the matter before it. He concluded that the adjudication by the FTPC was a nullity as there was no jurisdiction

from the beginning for the FTPC to adjudicate upon the matter as the wrongdoing ought to have been dealt with “in accordance with

the process in question” and there was therefore a breach of the principles of natural justice.

17. McCarthy J. next rejected a submission that the evidence of the Registrar, Ms. Lorraine Brophy, was hearsay. McCarthy J. noted

that it was well-established that the standards of strict application of the rule against hearsay, or indeed certain other rules of

evidence, are not applicable in administrative tribunals, even those which conduct serious disciplinary inquiries. In any event, he did

not accept that her evidence was hearsay. As this hearsay point is no longer an issue, I mention it only for completeness.

18. McCarthy J. then turned to the third issue of the statutory changes effected by the 2012 Act. The judge found that the

applicable legislation was the 2005 Act, and therefore the Council was not entitled to apply the amendments introduced by the 2012

Act when deciding on sanction.

19. So far as the appropriate remedy issue was concerned, the Court rejected the submission that Mr. Podariu ought to have

proceeded by way of judicial review at the time of the acts complained of. McCarthy J. found that Mr. Podariu was entitled to raise

the issues as to jurisdiction by way of the statutory appeal albeit that the point would ordinarily be pursued by judicial review.

20. While counsel for the Council, Ms. Barrington S.C., maintained that some of these issues were not raised by Mr. Podariu in his

pleadings, as they were so fully ventilated in the judgment of the High Court I propose to consider each of these issues in turn.

The addition of complaint no. 17 at the inquiry before the FTPC

21. The first issue which requires to be determined is whether the FTPC had jurisdiction to permit a new, additional charge to be

added at the inquiry stage. The critical point here is that this particular complaint was never considered or examined by the PIC. In

my view, however, it is absolutely central to the lawful operation of the disciplinary regime envisaged by the 2005 Act that a

complaint must first be considered by the PIC, as the mandatory language of the relevant provisions of s. 76 admit of no other

conclusion.

22. Section 76(4) provides that:

“Immediately upon receipt of an application for an inquiry, the Registrar shall:-

(a) direct it to the Preliminary Investigation Committee, and

(b) notify the Council that the application for an inquiry has been made and the date upon which it was made.”

23. Here the mandatory and imperative nature of the language of the sub-section (“…the Registrar shall….”) cannot, I think, be lightly

ignored. All of this is underscored by the obligation imposed on the PIC by s. 75(b) of the 2015 Act to seek observations from the

registered veterinary practitioner:

“(b) For the purposes of considering the application, the Preliminary Investigation Committee shall seek observations from

the registered person in respect of whom the application was made, or from any other person whom it considers

appropriate.”

24. Here again the language is expressed in mandatory terms (“…the Preliminary Investigations Committee shall seek observations from

the registered person….”). The obligation which the Oireachtas imposed on the PIC may also be regarded as providing a vital

safeguard for the practitioner in order to ensure that the matter does not proceed to a full inquiry unless he or she has been given an

opportunity to respond to the complaint.

25. The provisions of s. 76(6) of the 2005 Act are in a similar vein in that they state:

“(6) Following consideration of the application the Preliminary Investigation Committee may decide, in relation to it:

(a) that the inquiry should not proceed in whole or in part because:

(i) it does not satisfy the requirements of subsection (3);

(ii) it is frivolous, vexatious or made in bad faith;

(iii) it does not refer to any of the grounds set out in subsection (1);

(iv) there is insufficient evidence to warrant an inquiry;

or

(b) that the inquiry should proceed in whole or in part.”

26. This sub-section thus envisages that the PIC will make a decision as to whether, for example, there is sufficient evidence to

warrant an inquiry. It is necessarily implicit in this that this preliminary stage of the statutory investigation process must be completed

before the matter proceeds to a full hearing before the FTPC. The same can be of the right of appeal given to an applicant for an

inquiry who wishes to appeal to the Circuit Court against a decision of the PIC to the effect that should be no inquiry: see s. 77(3)

and s. 77(4).

27. All of this is consistent with the provisions of s. 78(1):

“If a decision to proceed to hold an inquiry is notified to the chairperson of the Fitness to Practise Committee under

s.77(5), that Committee shall hold the inquiry as soon as practicable.”

28. This pre-supposes that the FTPC has indeed received a notification that an inquiry shall be held before it can assume a

jurisdiction in respect of any particular complaint. I do not overlook the fact that the Council itself can in some circumstances refer

the matter to the Committee, namely, where the PIC has failed to make a decision within the statutory timeframe or, alternatively,

where it has decided that there shall be such an inquiry, the decision of the PIC to the contrary notwithstanding: see s. 76(9). This

sub-section further provides that the Council must in such circumstances furnish reasons for its decision to over-rule the decision of

the PIC. None of this, however, can take from the fact that the entire statutory scheme contained in the 2005 Act would be set at

naught if the FTPC could assume a jurisdiction in its own right to hear and determine a complaint without the complaint having been

first assessed and considered by the PIC to see whether an inquiry is actually warranted.

29. This appeal, therefore, presents another version of the age old problem of how a court should approach a failure to comply with a

mandatory statutory provision or provisions, even if it is accepted that there is little prospect that the result would have been any

different had complaint no. 17 been considered in its own right by the PIC in the first instance and that the PIC would most likely

have determined that there ought to have been an inquiry in respect of this complaint as well.

30. The locus classicus on this issue is, of course, the Supreme Court’s decision in Monaghan UDC v Alf-A-Bet Promotions Ltd. [1980]

I.L.R.M. 64. Here Henchy J., dealing with the admittedly separate question of whether a particular planning notice had sufficiently

complied with the terms of the planning regulations, stated ([1980] I.L.R.M. 64, 69):-

“In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated

as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis

rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as

necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must,

before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so

peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that

matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

31. Viewed from that perspective, I find it hard to characterize that which has been prescribed by the Oireachtas in the 2005 Act as

trivial or peripheral or insubstantial. The Oireachtas clearly sought to prescribe a precise and intricate statutory scheme with

protections for the benefit of complainants and veterinary professionals alike.

32. These statutory requirements cannot be regarded as mere surplusage. Rather, they have been deemed by the Oireachtas to

represent core protections for the professional person whose reputation and livelihood may be affected in a far-reaching way by a

complaint of this nature. If the scope of these statutory protections is thought to be otiose, burdensome or unnecessary or if it is

believed that they unduly hamper the effective prosecution of complaints against veterinarians, I fear that the Council have

addressed their arguments in this respect to the wrong forum.

33. That brings us directly to the question of whether these procedures were followed in the case of allegation no. 17. It is clear that

the requirements contained in s. 76, s. 77 and s. 78 of the 2005 Act were not complied with in that a new and entirely fresh

complaint was now made by the Registrar of the Council in the middle of the inquiry. This was a very serious complaint indeed

(involving as it did a charge of professional dishonesty) and the identity of the complainant was different to the complainant who had

made the other 16 complaints. While the Council maintained in argument that allegation no. 17 had some similarities with the pre-

existing allegation no. 14, they were in truth quite different: the latter related to allegations of inadequate record keeping, while

allegation no. 17 involved a charge that records were deliberately falsified.

34. It could not be said that the failure to adhere to the statutory procedures prescribed by the 2005 Act by failing to refer the new,

more serious charge of professional dishonesty to the PIC was anything other than a complete departure from the terms of the

statutory scheme.

35. In these circumstances it is unnecessary to consider the extent to which (if at all) a notice of inquiry might otherwise be

amended at the hearing before the FTPC. It is sufficient to say that by reason of the inter-locking nature of the provisions of ss. 76,

77 and 78 which I have just highlighted, the FTPC has no jurisdiction to consider a new or fresh complaint which has not been the

subject of an initial reference to and (subject only to the special provisions of s. 77(8) and s. 77(9) which do not apply to the present

case) determination by the PIC.

Whether Mr. Podariu is estopped or otherwise barred from challenging the validity of the decision of the FTPC

36. Even though it is clear that the FTPC acted ultra vires in permitting complaint no. 17 to be added at the inquiry stage without

having been first referred to the PIC, this does not in itself mean that the appeal should be allowed on this ground because the

Council argue that if that were so, Mr. Podariu is estopped by his own conduct from challenging this decision on that ground.

37. The law in relation to estoppel by conduct is illustrated by a trilogy of leading Supreme Court decisions from the 1970s: Re

Greendale Building Co. Ltd. [1977] I.R. 256; Corrigan v. Irish Land Commission [1977] I.R. 317 and The State (Byrne) v. Frawley

[1978] I.R. 326. It is quite clear from these cases that an entirely new jurisdiction cannot be created by estoppel. Thus, for example,

a decision of the Medical Council purporting to sanction a veterinary surgeon would be wholly void and ineffective, even if the

veterinarian in question had somehow submitted to the jurisdiction of that Council. It is likewise clear that the District Court cannot

exceed its own geographical limitations by purporting to deal with offences which had not been the subject of a complaint made

within the appropriate District Court district. In O’Malley v. District Judge Kelly [2015] IECA 67 this Court accordingly held that the

District Court had no jurisdiction in such cases and quashed the ensuing convictions, the acquiescence of the applicant in the entire

procedure notwithstanding.

38. It cannot be said, however, that the FTPC did not have jurisdiction in this particular sense in respect of Mr. Podariu. It was rather

the case that the authority of the FTPC to deal with allegation no. 17 was itself contingent on compliance with the statutory pre-

conditions to that jurisdiction contained in ss. 76, 77 and 78 respectively, not least the requirement (subject again to two exceptions

not relevant here) that the PIC should first have determined that there was a case to answer in respect of that allegation.

39. It is next necessary to stress that these statutory provisions existed fundamentally as protections for the veterinary surgeon who

was the subject of the allegations in question. It followed, therefore, that the veterinarian in question was entitled, in principle, at

least, to waive these protections and it is this fact which distinguishes the present case from no subject matter jurisdiction cases

such as O’Malley.

40. In this respect, the present case has many similarities with The State (Byrne) v. Frawley. In that case the trial of an accused

charged with burglary had commenced with an all-male jury under the provisions of the Juries Act 1927. A few days into the trial the

Supreme Court gave its decision in de Búrca v. Attorney General [1976] I.R. 38 holding that these provisions of the 1927 Act were

unconstitutional because they (de facto) excluded women and non-property owners from juries. As the Supreme Court was later to

find, the accused elected to proceed with the pre-existing jury even though it was now clear that it had been unconstitutionally

empaneled. The accused was later convicted.

41. The Supreme Court subsequently held that the accused was bound by that election and could not be heard to assert that his

conviction had been pronounced unconstitutionally or that he was now entitled to be released. As Henchy J. explained ([1978] I.R.

326, 349):

“[The applicant] was the first person entitled to plead successfully in the Circuit Court the unconstitutionality of such a

jury. As a result of the decision in the de Búrca case he was presented with the opportunity in the middle of his trial. An

informed and deliberate decision was made to turn down that opportunity. His then counsel, instead of applying to have

the jury discharged, elected – and I make no criticism of that choice – to allow the trial to proceed without any objection

as to the jury as constituted. It was obviously thought to be in the best interests of the prisoner that he should take his

chances before that jury, notwithstanding its constitutional imperfection….Because the prisoner freely and knowingly

elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that

election from claiming that the jury lacked constitutionality….”

42. I consider that these principles apply to the present case. What is striking is that at no time during the hearing before the FTPC

was it ever submitted on behalf of Mr. Podariu that Allegation No. 17 would first have to be brought before the PIC by way of an

entirely fresh complaint. Indeed, it seems that the power of the FTPC to permit the amendment of the notice of inquiry was accepted

by all the parties.

43. When the amendment was made by way of the addition of Allegation No. 17, the Chairman of the FTPC proposed that the inquiry

be adjourned to allow Mr. Podariu to deal with the allegation in view of its gravity. Although Mr. Podariu’s legal representative did not

suggest that an adjournment was necessary, the Chairman decided to adjourn the matter and the hearing did not resume until

approximately six weeks later on 11th November 2013. Again, neither on that date, nor at any subsequent date was the issue of the

entitlement to amend the notice of inquiry by the inclusion of Allegation No. 17 raised as a legal issue by either party. Nor was it

raised in the detailed written legal submissions furnished on behalf of Mr. Podariu at the end of the hearing. 44. In these

circumstances one must conclude that there was sufficient acquiescence on the part of Mr. Podariu to the addition of allegation no.

17 at the hearing before the FTPC. In effect, therefore, he must be deemed to have waived the protection of statutory provisions

which existed for his benefit and he is thus precluded from challenging the validity of the FTPC decision to permit such an amendment

to be made.

The effect of the 2012 Act

45. Prior to the amendment of the 2005 Act by the 2012 Act, the Council had no power to vary the sanction recommended by the

FTPC in a manner which was adverse to the professional concerned in the absence of a finding of unfitness to practice. As I have

already noted, the 2012 Act was commenced on enactment on 18th July 2012. Section 80(1) of the 2005 Act required the FTPC to

conclude that the registrant was not fit to practice before the FTPC could impose certain sanctions pursuant to s. 80(1), namely,

removal from the Register, suspension and/or the attachment of conditions. This requirement was, however, amended by s. 4(b) of

the 2012 Act so that this requirement was now removed.

46. The conduct giving rise to the new allegation no. 17 was alleged to have occurred during the course of the inquiry, namely, on or

around 21st May 2013 and/or 22nd May 2013. Such conduct admittedly post-dated the commencement of the 2012 Act.

47. While the FTPC found that the charge against Mr. Podariu in respect of allegation no. 17 had been established, it nonetheless

considered that there were many extenuating circumstances:

“The Committee therefore find the two allegations within Allegation 17 as being proven beyond reasonable doubt and

further find that the proving of such allegations amount to infamous or disgraceful conduct on the part of Mr. Podariu.

Whilst it is not for the Committee to speculate why Mr. Podariu should have fabricated these handwritten notes and be

guilty of such misconduct, nevertheless, it is pertinent for the Committee to take into account by way of mitigation the

fact that Mr. Podariu was facing a multitude of allegations against him none of which, with the exception of Allegation 17,

were found to amount to misconduct. The Committee can only speculate that Mr. Podariu panicked in relation to his lack

of contemporaneous handwritten notes and set about trying to rectify his situation in this regard.

If Mr. Podariu had not produced any handwritten notes at all and had admitted not having such notes the consequences

would be far less than they are for him now in producing such handwritten notes which are proven to be a fabrication.

Furthermore the Committee accept that Mr. Podariu commenced practice dealing with farm animals and livestock only and

not small animals. However the area is a geographically remote area, and owners not infrequently brought small animals to

be seen by Mr. Podariu, often in emergency situations. Mr. Podariu has learned from his experiences and has geared

himself up to deal with small animals in a much better manner.

The Committee also consider it very relevant to note that not a single owner of any of the animals involved had any

complaint to make about Mr. Podariu, and, in fact, one travelled to give supportive testimony and a number of others

provided written support.

Taking into account these mitigating factors and all of the circumstances of the case, the Committee strongly feel that

any sanction, which would normally be very serious for a Veterinary Practitioner in cases where the Practitioner has

engaged in infamous or disgraceful conduct, should in this case not be so severe.

RECOMMENDATIONS AS TO SANCTION

In finding misconduct against Mr. Podariu in respect of Allegation 17 only and in dismissing all of the other allegations the

Committee recommend that Mr. Podariu be censured in accordance with s. 81 of the Veterinary Practitioners Act 2005 –

2012.”

48. Critically, however, as can be seen from this passage, the FTPC did not make a finding of unfitness to practice and it

recommended that Mr. Podariu be censured only. When this recommendation came before the Council, however, it concluded that a

period of six weeks suspension from the register was necessary to reflect the seriousness of the offence and the need to uphold the

reputation and integrity of the profession. It is accepted that, absent the finding of unfitness on the part of the FTPC, the Council

was not entitled to impose the more serious sanction of suspension (even for a relatively short period) unless the amendments

effected by the 2012 Act properly governed the present case. The real question, therefore, is whether these amendments applied to

the present case.

49. In the High Court McCarthy J. held that the Supreme Court’s decision in Buckley v. Attorney General [1950] I.R. 67 applied to the

instant case so “that it is not lawful by statute to interfere in actually pending proceedings, even proceedings pending before

administrative tribunals”. McCarthy J. relying on the judgment in Buckley concluded:

“We know that that decision precludes by statute an intervention by the Oireachtas in pending proceedings in court. It

seems to me that as a matter of principle there must be a similar constitutional inhibition on the Oireachtas from

intervening in that way in pending proceedings of the present type because whilst the Council and it’s committees here

are not, of course, courts the root of the principle is the same.”

50. In Buckley the Supreme Court held that the Sinn Féin Funds Act 1947 amounted to an unwarrantable interference by the

Oireachtas with the operations of the courts in a purely judicial domain as the effect of the Act was, in substance, to determine the

outcome of a dispute before the court. This constituted a breach of Article 34 of the Constitution.

51. In my view, it is unnecessary to determine the scope of Buckley or whether this decision could apply to administrative tribunals

such as the Council. What is critical in my view is that at the time the first complaints were made in May 2012 the professional

disciplinary regime in respect of veterinary surgeons was governed entirely by the 2005 Act. It could not have been suggested that

had, for example, the FTPC found against Mr. Podariu in respect of one of the other original 16 complaints without a finding of

unfitness to practice that the Council would have been entitled to invoke the new amending powers contained in the 2012 Act.

52. In my view it is clear from the authorities that in May 2012 Mr. Podariu enjoyed a vested right to have these disciplinary

complaints deal with in accordance with the then prevailing disciplinary legislation, namely, the 2005 Act in the sense understood by

s. 27(1)(c) of the Interpretation Act 2005. This sub-section provides that:

“(1) Where an enactment is repealed the repeal does not –

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment …”

53. In this context much useful guidance can, I think, be gained by a consideration of a number of extradition/surrender cases where

the question of the possible application of s. 27(1)(c) of the Interpretation Act 2005 (or earlier versions of that provision) have been

considered: Sloan v. Culligan [1992] 1 I.R. 223, Minister for Justice and Law Reform v. Bailey [2012] IESC 16, [2012] 4 I.R. 1 and

Minister for Justice and Law Reform v. Tobin (No.2) [2012] IESC 37, [2012] 4 I.R. 147. All of these cases concerned the question of

whether an application for extradition/surrender was governed by the law obtaining at the date of the alleged offence or whether

subsequently enacted legislation could properly apply to a later extradition request.

54. In his judgment in Tobin (No.2) O’Donnell J. said ([2012] 4 I.R. 147, 352-352):

“In identifying what can be said to be “vested” rights which trigger the presumption in s.27 there is I think much useful

guidance to be gained in Bennion, Statutory Interpretation (4th Ed. Butterworths, 2002) which states that “the right

must have become in some way vested by the date of a repeal, i.e. it must not have been a mere right to take

advantage of the enactment now repealed”. A similar point was made in the 9th edition of Craies on Legislation (Sweet &

Maxwell 2008) at para. 14.4.12:-

“The notion of a right accrued in s. 16(1)(c) requires a little exposition. In particular the saving does not apply to a

mere right to take advantage of a repealed enactment (clearly since that would deprive the notion of a repeal of

much of its obvious significance). Something must have been done or occurred to cause of a particular right to

accrue under a repealed enactment.”

55. In his judgment O’Donnell J. had referred to the earlier decisions in Sloan and Bailey as examples where it was not sufficient for

this purpose for the individuals concerned to show that they had had “a mere right to take advantage of a repealed enactment.” The

situation in Tobin (No.2) was different because in the first case involving Mr. Tobin, Minister for Justice, Equality and Law Reform v.

Tobin (No.1) [2008] IESC 3, [2008] 4 I.R. 32, the Supreme Court held that it should not order the surrender of Mr. Tobin to Hungary

under the provisions of the European Arrest Warrant Act 2003 because he had not “fled” from Hungary (as the 2003 Act had then

required the requesting state to demonstrate), but had rather left it voluntarily and in apparent co-operation with the Hungarian

authorities.

56. The fleeing requirement was the removed by the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009. A further

surrender request was then made by the Hungarian authorities and in Tobin (No.2) a majority of the Supreme Court (Hardiman,

Fennelly and O’Donnell JJ.) held that an order for surrender should not be made, this legislative change notwithstanding. There was,

admittedly some disagreement among the majority: two of the three considered that the fresh application amounted to an abuse of

process (in that the Court had already ruled against the making of a surrender order), while two of the three (albeit not Fennelly J.)

considered that a vested right protected by s. 27 of the Interpretation Act 2005 was at issue.

57. While making all due allowances for this divergence in the majority reasoning, the judgment of O’Donnell J. on the vested right

point is nonetheless illuminating ([2012] 4 I.R. 147, 353, 355-356):

“The outcome of the Bailey case on this point neatly illustrated the distinction made in these texts. Mr. Bailey’s right

during the currency of the Act of 2003 could properly be described as a “mere right to take advantage of a repealed

enactment”. In his case nothing had been done to cause a particular right to accrue under that enactment. The question

then raised on this appeal was whether the decision of the Supreme Court in favour of Mr. Tobin in Tobin (No.1) was

something which had been done or occurred which caused a particular right to accrue under and by virtue of the repealed

enactment. ….As the quotation from Craies indicates, the question is whether something had happened which means that

Mr. Tobin’s entitlement was something more than to take advantage of the repealed legislation. In this regard, his case

can usefully be contrasted with the decisions in Sloan v. Culligan and in the recent case of MJELR v. Bailey. In each of

those cases, it was determined in effect, that nothing had happened during the currency of the repealed legislation to

give the individuals concerned any vested right which required to be specifically addressed to any subsequent repealing

legislation. Here however something has happened. There was an application for surrender hearing and a determination

both by the High Court and this Court on appeal. The question therefore is whether that can be said to be “something”

for the purpose of the law so as to trigger the provisions of s.27.

It is here that the discussion on abuse of the process and separation of powers becomes helpful. I have no doubt that a

full hearing and determination of a request for surrender is certainly something. I think it can also be properly said that

the outcome of Tobin (No. 1) was to confer or create a right. In the aftermath of Tobin (No.1) Mr. Tobin could not have

been extradited or surrendered to Hungary in respect of this sentence, so long as Irish law retained the fleeing

requirement. That was a right, and not a privilege. ….when a binding judicial determination is made by reference to the

law then in force, something of legal significance happens and a right is acquired or accrues within the meaning of s.27

Accordingly, I have no doubt that what Mr. Tobin had acquired as a result of the decision in Tobin (No.1) and can

properly be described as a right acquired or accrued for the purposes of s.21 of the Interpretation Act 2005.”

58. Applying this reasoning to the present case, it can equally be said that that something had happened which went beyond simply

depriving Mr. Podariu of his right to avail of the pre-existing enactment, namely, the regime provided for by the 2005 Act. What had

happened, of course, was that that disciplinary regime had been commenced by the laying of the complaints on 1st May 2012. At

that point, I consider that Mr. Podariu had what amounted to a vested right to have the complaints heard and determined under the

law as it stood at that date.

59. It is, of course, true to say that the events which give rise to allegation no. 17 occurred after the coming into force of 2012 Act.

Had this been treated by the Council as an entirely separate complaint which was divorced from the other 16 (pre-2012 Act)

complaints, then, of course, no issue as to a vested right could have arisen. But this, however, is not what occurred. The Council

instead elected to prefer the additional charge at the inquiry stage and tacked on this charge to the pre-existing pre-2012 Act

charges, thereby by-passing the PIC in the process. By taking this course of action the Council signalled that it was treating

allegation no. 17 as if it were part of a grouping of the pre-2012 Act complaints which were then being heard and determined by the

FTPC on that basis.

60. In these particular circumstances, Mr. Podariu had a vested right for the purposes of s. 27(1)(c) of the Interpretation Act 2005

that all these complaints would be dealt with pursuant to the substantive rules which obtained under the 2005 Act. One of those

substantive rules – which the 2012 Act admittedly changed - was that the Council had no power to increase the sanction

recommended by the FTPC unless there had been a finding of unfitness to practice. In these circumstances, the amendment by repeal

of the relevant provisions of s. 80(1) of the 2005 Act by the 2012 Act must be held not to apply to the right vested in Mr. Podariu to

have the complaints all dealt with by the 2005 Act disciplinary regime.

61. It follows, therefore, that the Council was obliged to deal with allegation no. 17 as if it were governed entirely by the provisions of

the 2005 Act. This means in turn that the Council had no power to vary the sanction recommended by the FTPC in the absence of a

finding of unfitness to practice. In the circumstances, the decision of the Council to impose a suspension of six weeks must be set

aside. It would, however, be appropriate to remit the matter of sanction afresh to the Council in accordance with s. 80(1) of the

2005 Act for a fresh consideration of the matter in line with this judgment. This means, in effect, that the Council will be confined to

the sanction recommended by the FTPC, namely, one of censure.

62. In view of these conclusions it is not necessary for this Court to consider the Council’s submissions that Mr. Podariu ought to

have challenged the validity of the ruling of the FTPC in respect of allegation no. 17.

Conclusions

63. In summary, therefore, I am of the view as follows:

64. First, the FTPC had no jurisdiction to permit an amendment of the notice of inquiry so as to permit an entirely fresh allegation to

be advanced for the first time without having been first considered by the PIC. To that extent, the provisions of ss. 76, 77 and 78 of

the 2005 Act were not complied with.

65. Second, Mr. Podariu is estopped by his own conduct from challenging or otherwise impugning the validity of the FTPC decision to

permit allegation no. 17 to be added to the original complaints. In effect, therefore, he must be taken by his acquiescence to have

waived statutory provisions which existed for his benefit.

66. Third, Mr. Podariu enjoyed a vested right within the meaning of s. 27(1)(c) of the Interpretation Act 2005 to have all the

complaints (including allegation no. 17) heard and determined under the 2005 Act regime. This meant that as the FTPC made no

finding of unfitness to practice, the Council enjoyed no power to vary the sanction recommended by the FTPC (namely, one of

censure) to that of a six week suspension.

67. It follows that I would invite counsel to address the Court as to the precise form of the orders which should now be made in the

light of these conclusions.