Whether Briginshaw applies depends on the nature of the allegations, not the nature of the proceedings

In Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4, the NSW Court of Appeal did not seem to be impressed about an appeal reaching them in relation to a finding of unsatisfactory professional  conduct in failing to warn the owner of a dog-patient that a second sedating injection was going to cost her. The fine had been $200. It was not in dispute that the vet had not given the warning. Nevertheless, the vet trotted out as an appeal point the well-worn chestnut of inadequate consideration of the Briginshaw principle that the more serious the allegations, the more persuasive must be the proof of them.  All of the appeal judges dismissed the point summarily.  They all said that given that the non-giving of the warning was not in dispute, there was no evidentiary controversy to which Briginshaw could have operation.  Anyway, Acting Justice of Appeal Handley said, ‘I would not readily accept that the Tribunal, which hears many disciplinary cases against members of the professions, would fail to direct itself in accordance with [the Briginshaw] test.’ Justice of Appeal Beazley agreed.  More interestingly, however, Justice of Appeal Basten said, by way of additional comments at [18]ff:

‘[18] The argument that the Tribunal failed to comply with the Briginshaw principles should be rejected … because … those principles do not apply routinely just because the matter involves a complaint of disciplinary misconduct or unsatisfactory professional conduct.

[19] The facts which were in issue in this case did not give rise to any matter of gravity with respect to teh character or behaviour of the practitioner.  It is therefore not to be assumed that there was any requirement on the Tribunal to be satisfied to the level of comfort which the Briginshaw principle requires.’

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