Aavelaid v Dental Board of Victoria [1999] VSC 54

Supreme Court of Victoria|1999-03-11|Before: Gillard J

Dental Profession - Refusal to register - Question of good character - Dentists Act 1972, Section 20 - Appeal to Supreme Court - Nature of Appeal - Re-hearing de novo -

Res judicata - Judgment in Rem - Finding of good character in other proceeding - Not res judicata

This is the hearing of a number of preliminary issues raised by an appellant who is appealing to this court, a decision of the Dental Board of Victoria made 23 December 1998 which refused his registration as a dentist in this State on the ground that the Board was not satisfied as required by s.20 of the Dentists Act 1972 ("the Act") that he was of good character.

The appellant, Urmas Olav Aavelaid ("the appellant") who is aged 60 years obtained a Bachelor of Dental Surgery from the University of Sydney in 1960. He was registered as a dentist in that State in that year.

He travelled to England where his qualifications were recognised and he practised there as a dentist from early 1961 to the end of 1982. He returned to Australia at the end of 1982.

He practised as a locum in Australia from about 1982 to 1987 and then commenced his own practice.

In April 1986 a patient of the appellant died after treatment. The death was the subject of a number of complaints made against the appellant by the Dental Board of New South Wales.

The complaints came on for hearing at the end of October 1988, they were proven and he was found guilty of misconduct in a professional respect. His name was suspended from the Register for a period of two years from 23 December 1988.

In February the following year the Dental Board heard further complaints against the appellant, namely, eight complaints concerning the performance of dental procedures without obtaining the patient's consent to the procedures provided, and one complaint that in respect of a juvenile patient he did perform a dental procedure without reasonable cause or excuse.

The latter complaint was dismissed but the other complaints were proven and the appellant's name was removed from the Register after a finding was made of misconduct in a professional respect.

Thereafter followed a number of appeals and applications to the courts, none of which were successful.

On 22 October 1996 the appellant made application to the Board to have his name restored to the Register. The application was refused and he appealed to the District Court of New South Wales and his appeal was dismissed on 18 June 1997.

On 25 August 1997 the appellant lodged another application with the Dental Board for restoration to the Register of Dentists. The Board rejected his application and on 24 September 1997 the appellant appealed to the District Court of New South Wales.

The matter was heard by His Honour Judge Knight, DCJ and on 27 March 1998 he dismissed the appeal and published his reasons.

The respondent to the appeal is the Dental Board of Victoria ("the Board").

By a written application dated 9 June 1998 the appellant applied to be registered in this State as a dentist pursuant to the terms of the Act.

Section 17 of the Act sets out the qualifications necessary for registration. One of the qualifications is holding a prescribed qualification from a prescribed institution outside this State and the appellant satisfied that qualification. Once the qualification was established the applicant is entitled to registration "subject to the provisions of the Act".

One of the relevant provisions in s.20 and it precludes the registration of a dentist under the Act "unless the Board is satisfied that such person is of good character and has an adequate command of the English language."

The Board was satisfied of his qualification and the appellant's command of the English language but a question arose as to his good character.

By notice dated 6 October 1998 the Board informed the appellant that it had resolved to conduct a hearing to consider and determine whether the appellant was of good character as required by s.20 of the Act.

The appellant presented his own case before the Board.

On 23 December 1998 the Board informed the appellant that his application was refused on the ground that the Board was not satisfied he was of good character and provided to him, reasons for its decision.

The appellant filed his notice of appeal in this court pursuant to s.26(2) of the Act.

The notice of appeal filed 30 December 1998 has nine grounds.

As required by the Rules of Court the appellant issued a summons seeking directions from the Master and by order dated 5 February 1999 the Listing Master ordered that certain issues raised in his notice of appeal and amended summons be heard as preliminary issues.

I granted leave to the appellant which was not objected to by the Board's counsel, to amend his summons to raise another issue. In so doing I was giving effect to the direction in Rule 4.11(3) of Order 4 of Chapter 2 of the Rules of Court in granting leave "to ensure the proper determination of the appeal."

The preliminary issues raised by the amended summons raise two broad issues for consideration and determination, namely -

(i) What is the nature and scope of the appeal to this court?

(ii) Did a finding by His Honour Judge Knight in the District Court of New South Wales on 27 March 1998 that the appellant was on that date of good character constitute a res judicata and a judgment in rem which bound the Dental Board of Victoria and this Court on appeal?

The two broad issues involve a number of sub-issues.

With respect to the appeal, according to the appellant's amended summons, the two questions for decision are -

(1) Whether the appeal in this matter is a re-hearing de novo?

(2) Whether the transcript of the evidence before the respondent at the hearing on 11 November 1998 can be admitted as evidence at the hearing before this court, over the objection of the appellant, the appellant contending that a re-hearing de novo means a completely new approach?

In determining these issues two questions arise, namely, the function of the court on the appeal and what constitutes the relevant material on the appeal? An appeal by way of re-hearing de novo means that all the issues are retried on evidence adduced on the appeal and the winning party below enjoys no advantage. See Turnbull v. New South Wales Medical Board (1976) 2 NSWLR 281 at 297-8. The appellant does not have to prove error.

Mr Gronow of counsel who appeared for the Board did not dispute that the judge on appeal had to consider the issues afresh and arrive at his or her own decision. But he submitted the evidence on the appeal was the evidence given below supplemented by any additional evidence called on the appeal. The appellant contends that it is a re-hearing de novo whereas the respondent asserts that it is a re-hearing on the evidence given before the Board.

The right given to the appellant to appeal the refusal by the Board of his application for registration is found in s.26(2)(a) of the Act.

The nature of the appeal is set out in s.26(3) which provides -

"(3) Every such appeal shall be in the nature of a rehearing and the Supreme Court shall entertain enquire into and decide upon the appeal and for that purpose may do all such matters and things relating thereto and in the same manner and to the same extent as it is empowered to do in the exercise of its ordinary jurisdiction; and its decision shall be final and without appeal."

There is no other provision in the Act concerning the nature of the appeal nor is there any provision concerning the procedure to be adopted at the hearing.

Nevertheless the court is exercising its ordinary civil jurisdiction which is subject to Rules of Court which set out procedures to be followed.

Order 4 of Chapter 2 of the Rules of Court is concerned with appeals from tribunals.

Rule 4.04 provides for the commencement of the appeal by the filing of a notice of appeal. Rule 4.11 provides for the contents of the notice which includes, inter alia, a statement of the grounds of appeal and whether the appeal is from the whole or part only of the order.

Rule 4.12 obliges the appellant to file an affidavit "setting out the acts facts matters and circumstances relating to the order of the tribunal and the grounds set out in the notice of appeal". It is noted that the appellant is to exhibit to the affidavit a copy of the order and "a copy of any reasons given for the order" and if not exhibited their absence shall be accounted for in the affidavit.

The appeal does not operate as a stay unless the court otherwise orders - see Rule 4.04(c).

In considering the nature of the appeal these rules cannot affect what Parliament intended. They set out procedures to be followed but they cannot affect the nature of the appeal. See Great Fingall Consolidated Ltd v. Sheehan [1905] HCA 43; (1906) 3 CLR 176 and Webster v. McIntosh [1980] FCA 128; (1980) 32 ALR 603 at 606.

The Dentist Regulations 1992 (No. 328 of 1992) made pursuant to the Act do not contain any provision relating to an appeal to this court.

What is meant by the phrase "in the nature of a rehearing" in s.26(3) of the Act is determined by ascertaining the intention of Parliament.

The question of the nature of an appeal from tribunals has been discussed in many cases concerning a myriad of legislative provisions. Whilst the cases are of assistance in considering the approach to the question, none of the cases carry much authority unless the words are the same. Even where the words are the same there may be other relevant factors which must be considered.

The words in s.26(3) of the Act appear in the same or similar form in a number of Acts of Parliament in this State. The words have been considered and discussed in a number of cases.

Before referring to the cases on the particular wording, I wish to refer to what Mason, J said in the case of Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 on the approach to the question of construing a statute concerning the nature of an appeal.

That case was concerned with a complaint made against a registered builder. The Licensing Board made a determination adverse to the builder who appealed to the District Court.

The Act required the appeal to be "dealt with by way of rehearing."

The District Court judge held that the appeal was a rehearing de novo and his decision was upheld by the Court of Appeal.

The High Court held that the appeal was in the nature of a rehearing de novo.

Mason, J considered the various types of appeal at pp.619-et seq.

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect."

His Honour went on to state the reasons for this and he said -

"The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of an original jurisdiction or for a hearing de novo".

His Honour then went on to contrast different procedures which may lead to the conclusion that it was not meant to be a rehearing de novo. His Honour then stated what was the proper approach to determine the question when he said -

"But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

(Emphasis added)

The words used in s.26(3) of the Act have been in that form for many years and the wording has been used in a variety of Acts of Parliament concerning appeals from tribunals.

The wording can be traced back to the Medical (Dentists) Act 1927 s.9(3).

That sub-section in turn can be traced back to the Masseurs Registration Act 1922 s.12(5) but it is different in that the sub-section did not provide that the appeal was in the nature of a rehearing.

This latter formula was in the Licensing Act (Rents and Fees Adjustment) Act 1915 as amended and was considered by the High Court in McCullin v. Crawford [1921] HCA 22; (1921) 29 CLR 186 which held the appeal was a re-hearing de novo.

The wording which was used in the 1927 legislation has been used since then in a number of Acts of Parliament concerning appeals from tribunals in respect of professional persons. By way of example the Medical Act 1958, the Medical Practitioners Act 1970, and the Dentists Act 1972.

By way of contrast the Masseurs Act 1958, s.13(5) and the Psychologists Registration Act 1987 s.34(3) use similar wording but omitting the words "Any such appeal shall be by way of re-hearing". This is the wording considered by the High Court in McCullin v. Crawford supra.

Although there have been a number of cases which have considered the question I have to consider on similar wording, in my opinion it is only necessary to refer to three decisions.

The cases are Georgoussis v. The Medical Board of Victoria [1957] VicRp 98; (1957) VR 671, Hobart v. Medical Board of Victoria [1966] VicRp 40; (1966) VR 292 and Basser v. Medical Board of Victoria [1981] VicRp 88; (1981) VR 953.

The question is whether they represent the law in this State today.

Each case was concerned with the same wording, in the Medical Acts of 1933 and 1958 and the Medical Practitioners Act 1970.

The wording in those Acts is exactly the same as the wording found in s.26(3) of the Act.

In Georgoussis v. The Medical Board of Victoria supra, Smith, J considered the nature of the appeal at pp.676 et seq and he exhaustively considered all the authorities. He was dealing with the Medical Act 1933.

At p.678 after referring to the sub-section of the Act His Honour said -

"The ordinary and natural meaning of this language is in my view, that the question of registration erasure removal or restoration (as the case may be) is to be reconsidered by the judge, who shall enquire de novo into the questions involved and arrive at his own decision thereon upon the evidence given before him; and that for this purpose he is to have all the powers that he possesses when exercising his ordinary jurisdiction as a judge of first instance, compare McCullin v. Crawford [1921] HCA 22; (1921) 29 CLR 186. In other words the judge, when hearing the appeal, is to stand in place of the Board, so that it becomes his satisfaction, and not the Board's, that is required, and so that the discretions which originally were exercisable by the Board have to be exercised by him in its place."

His Honour stated that his opinion was supported by most of the authorities bearing directly upon the construction of the relevant section, and his Honour set out the substantial list of cases which had discussed the question at the bottom of p.678 of the report.

His Honour specifically distinguished the case which Mr Gronow relied upon of Epstein v. Medical Board of Victoria [1945] VicLawRp 54; (1945) VLR 309 which tends to support the view that the court must consider the evidence which was before the Board and its findings.

In the next case of Hobart v. Medical Board of Victoria, supra, Hudson, J also considered the question on the same wording. In that case the parties agreed by consent that the transcript of proceedings before the Board be produced to the judge and be evidence in the appeal and otherwise evidence could be given viva voce - supra at p.293.

His Honour quoted with approval what Smith, J had said in the case of Georgoussis and then went on to say this -

"I accept the views of Smith, J, which I have quoted as to the duty and function of the court in dealing with an appeal such as the present, and approach the matter, therefore, as one that must be decided by way of a complete rehearing on a consideration of the relevant evidence which was given before the board and is now before me, and the additional evidence which has been given before me so far as it is relevant."

(Emphasis added)

The final case which I wish to refer to is that of Basser v. Medical Board of Victoria in which O'Bryan, J considered the nature of the appeal and exhaustively considered all the authorities.

His Honour said at p.962 after considering the authorities -

"I am satisfied that the proper course for me was to follow Smith, J in Georgoussis' case and allow the appellant a rehearing in the fullest sense since he requested it. The expression 'in the nature of' in s.11(3) comprehends that the essential quality of characteristics of the appeal shall be a rehearing. The fact that the legislature has conferred jurisdiction upon a single judge tends to confirm in my mind that the form of rehearing required by s.11(3) is one in which the court must hear the evidence afresh when either the appellant or respondent requests it to do so.

When the Legislature recently enacted the Medical Practitioners Act, the Dentists Act and the Pharmacists Act, it saw fit to use language previously used in relation to appeals from the respective tribunals. One may assume that the draftsmen of the recent legislation was aware of the decisions in Georgoussis' case and Hobart's case. The sections which confer a right of appeal were re-enacted without change indicating that the legislature intended an appeal should be by rehearing de novo."

The approach by the judge in each case is supported by some of the judgments in the High Court decision of Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62.

At p.73 Latham, CJ said after referring to the sub-section -

"It makes it clear that the judge in hearing the appeal is not limited to determining whether or not the Medical Board was right, upon the evidence before it, in reaching its decision. The provision shows that the judge in hearing the appeal is not limited to correcting errors made by the board, but that he is to deal with the whole matter

upon the basis of the evidence brought before him."

(Emphasis added)

Starke, J agreed with the Chief Justice. See also Evatt, J at p.104.

I respectfully agree with the views expressed by Smith, Hudson and O'Bryan, JJ in the three cases and in my opinion the appeal is by way of rehearing de novo.

Mr Gronow accepted that the judge had to arrive at his own decision but nevertheless he submitted that the evidence before the Board and its findings were admissible as evidence in the appeal even though a party may object to that course.

In support of his submission he relied upon what Lowe, J said in Epstein v. The Medical Board of Victoria, supra.

"The appeal is expressly described by the Act as being by way of rehearing; but it is an appeal; and because it is an appeal, it requires that the proceedings before the Medical Board are to be brought before this court, and this court must consider the evidence which was before the Board, and its findings, and the reasons for those findings (if any) given by the Board. But, because it is a rehearing, this court is bound to form its own judgment both on the facts and the law; and in a proper case it may receive further evidence."

In Van der Hope v. The Medical Board of Victoria [1950] VicLawRp 54; (1950) VLR 310 Dean, J followed the dicta of Lowe, J.

The approach of Lowe, J is inconsistent with a rehearing de novo. His approach was not followed in the later cases to which I have referred and in my respectful opinion is contrary to the later authorities. I decline to follow that course.

That is not to say that part or whole of the evidence before the Board cannot be used on the appeal. It has been the practice in this State for at least 30 years in appeals from professional bodies for the parties to consent to part or whole of the transcript of evidence being admitted as evidence on the appeal. It is a practice that should be encouraged.

Further, the evidence before the Board may contain admissions against the interest of the one or other of the parties. That part of the transcript concerned with admissions may be admissible on appeal.

The findings of the Board may also be considered on the appeal. This has been referred to in a number of authorities.

Smith, J in Georgoussis' case adverted to the question at p.679 when he said in relation to what was stated by Lowe, J in Epstein's case [1945] VicLawRp 54; (1945) VLR 309 -

"No doubt the court must know what application was made to the board and what the board's decision was, in order that the court may perform its own function and frame its own order. And where medical questions are involved the court, if it in fact has the board's opinion placed before it, will naturally attach great weight to that opinion as it will to the board's views on the credibility if the evidence given before the board happens to be used on the appeal."

It is not inconsistent with an appeal by way of a hearing de novo to have before the Appeal Court the reasons of the Board. What weight if any would be attached to any of the findings of the Board will depend upon all the circumstances. It may be admitted as evidence of an expert nature on matters of dental science, the standard expected of the reasonable competent dentist or the good character expected of a dentist.

It cannot be overlooked that those who are appointed to the Board are dentists, five of whom are appointed after election by the dentists of Victoria and the remaining two members are appointed without election. No doubt the members of the Board are in a good position to decide matters of a dental nature and further are persons who are well placed to determine what standards are expected of dentists and what standard of good character is expected of a dentist.

That is not to overlook that in the end the judge of this court makes his or her own decision on the issues raised in the appeal but the reasons for the decision by the Board may be of some assistance in the determination of the appeal. As I have already said, each case must depend on its own circumstances and whether or not a judge would be assisted by the reasons for the decision must depend upon the particular case.

Because the question of the nature of appeals has been discussed a number of times in recent years I think it convenient to state in propositional form the various principles -

(i) The appeal is an appeal by way of rehearing de novo which means that the court is bound to consider the matter for itself after hearing all evidence placed before it.

(ii) It is open to the parties to consent to the form of evidence which could include all or parts of the transcript of evidence given before the tribunal but if the consent of both parties is not forthcoming, then admissible and relevant evidence will have to be called afresh before the judge on appeal.

(iii) As it is a rehearing de novo it is open to the parties on the appeal to place further and additional evidence to that called before the Board.

(iv) The reasons for the decision form part of the evidentiary material before the judge on the appeal and the weight that should be attached to the reasons will depend upon the particular circumstances of the case.

(v) A party may adduce in evidence before the court any evidence of admissions against interest which may be contained in the evidence before the Board.

A practice has developed over many years whereby the parties to appeals from professional bodies consent to part or whole of the transcript of evidence given before the tribunal to be evidence on the appeal. This is a practice that should be encouraged in order to expedite the appeal and more importantly reduce the amount of legal costs. The rules found in Order 4 of Chapter 2 require the appellant to set out in an affidavit the circumstances concerning the order of the tribunal and the grounds in the notice of appeal. The appellant is also obliged to produce a copy of the order from which the appeal is brought and a copy of any reasons given for the order. In addition, according to Rule 4.13 the appellant is obliged to apply to a Master for directions. Prior to attending on the directions hearing the parties should consult with respect to the calling of evidence on the appeal. The parties should give thought to the transcript of the evidence before the tribunal being adduced in evidence on the appeal and the use of affidavits and statutory declarations.

I encourage the parties in the present appeal to co-operate in respect of the evidence to be called on the appeal.

I answer the questions raised by the appellant's amended summons as follows -

(1) The appeal is a rehearing de novo;

(2) The transcript of the evidence given before the Board cannot be admitted in evidence on the appeal if objected to by the appellant.

I understand the appellant objects to the evidence being placed before the court on the appeal. However, he should give thought to adducing on the appeal those parts of the evidence which assist his case. I assume the Board would co-operate.

Res judicata

The appellant, who appeared for himself, contended that a finding made by his Honour Judge Knight in the District Court of New South Wales concerning character which is set out in his reasons for judgment published 27 March 1998 constituted a res judicata and was on proper analysis a judgment in rem. He submitted that the Board at its hearing and this Court on the appeal is bound by the alleged judgment in rem and accordingly the issue relating to character could not be re-opened.

His Honour Judge Knight heard an appeal by the appellant against the refusal of the Dental Board of New South Wales to register him as a dentist under the Dentist Act 1989 (N.S.W.).

There were two issues for the court for decision, namely, whether the appellant was of good character and whether he had the necessary skills to practise dentistry.

The judge held that the appellant was of good character but was not satisfied that he had the necessary skills to practise dentistry and accordingly his appeal failed. In the course of giving his reasons his Honour considered the evidence called by the appellant concerning his good character and then stated -

"Thus for the reasons stated I am satisfied that Mr Aavelaid has rehabilitated his character and is now to be regarded as a person of good character. Accordingly he would be entitled to be restored to the register were the only requirement for restoration that he is now a person of good character."

Mr Aavelaid submits that that finding constitutes a judgment in rem.

"In these proceedings the appeal is dismissed and I confirm the orders made by the Dental Board."

Having found that the appellant had not persuaded him that he was the possessor of the requisite competence to practise dentistry it was unnecessary for the judge to consider the question of good character. Hence it follows that his comments in relation to that particular issue were obiter dictum.

During the course of argument I put to Mr Aavelaid that at best the finding may constitute a finding on an issue which might ground an issue estoppel. However, the appellant expressly disavowed on a number of occasions any reliance upon the principles relating to issue estoppel. No doubt he adopted this course because an issue estoppel if found would only bind the parties and their privies and on no view could it be said that the present respondent was a party or a privy to a party in the proceeding before his Honour Judge Knight.

Mr Aavelaid submits the finding amounts to a res judicata.

Having found that the appeal is a rehearing de novo, the question is whether the finding made by his Honour Judge Knight constitutes a judgment in rem which binds this Court on the appeal and hence the Court is bound to find that the appellant has satisfied the requirements of s.20 of the Act

The first matter to consider and to determine is what did His Honour Judge Knight decide? His actual order dismissed the appellant's appeal and confirmed the finding of the Board.

What was the thing that was judicially decided: the res judicata?

Res judicata pro veritate accepitur - a thing adjudicated is received as the truth. In other words a judicial decision is conclusive until reversed and its verity cannot be disputed. It is a form of estoppel. It binds the parties and their privies. If it is a judgment in rem it binds the world.

The courts in Australia have drawn a clear line of demarcation between an issue-estoppel and res judicata.

In Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 532, Dixon, J said -

"The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."

In Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, Fullagar, J at p.466 defined res judicata as -

"The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest republicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa'."

In other words, once a judgment is recorded in a proceeding, the strict rule of law is that the same case cannot be re-litigated between the same parties.

In determining the first question, namely, what has been decided, in order to determine that issue, the authorities support the view that the only evidence available to establish what was decided is the record of the court.

In Jackson v. Goldsmith, supra at p.467 Fullagar, J said -

"In the second place, it follows from the very nature of the difference between the plea of res judicata and the plea of issue-estoppel that different materials are relevant in each case. Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue-estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose."

The only materials placed before the court on the hearing of these preliminary issues were the reasons for judgment of Judge Knight, his reasons in relation to a costs application and a statement of his final orders when he published his reasons.

What was not before this court was the document initiating the appeal to the District Court of New South Wales.

However, as the appellant appeared in person, I am not prepared to base my decision on this issue that the appellant has failed to place before the court what constituted the record of the court.

In Zeiss Stiftung v. Rayner and Keeler (No. 3) (1970) Ch 506 at 540 Buckley, J whilst accepting the general rule was that only the formal record should be looked at and not to any reasons, nevertheless did consider a reasoned judgment. In this regard he was encouraged by the decision in Marginson v. Blackburn Borough Council (1939) 2 KB 426.

For present purposes I am prepared to look at the reasons for the decision by His Honour Judge Knight to determine what issues were before the court and what was decided by his judgment.

What His Honour Judge Knight decided was that the appellant was not entitled to have his name restored to the Register of Dentists in New South Wales because the court was not satisfied that the appellant possessed the requisite skills to practise dentistry.

That was the finding which was essential to the judgment and in my opinion the res decided was that, and no more. On no view could it be said that the thing that was judicially determined was that the appellant was of good character.

What was essential to the decision was the finding of the failure to prove competence and the finding concerning good character was irrelevant to the outcome of the appeal.

"Litigants are not estopped by the reasons or arguments advanced by the Court, but by determination of their rights in law" - per Knox, CJ, Powers, Rich and Starke, JJ in Wall v. The King; ex parte King WON and Watt, ON (No. 2) [1927] HCA 16; (1927) 39 CLR 266 at 271. See also Attorney-General for Trinidad and Tabago v. Erich(???) (1893) AC 518 at 523.

It follows that the appellant fails to establish a res judicata to the effect that he is a person of good character.

In order for a res judicata to operate by way of estoppel it is necessary for the party relying upon the res judicata to establish that the parties to the later litigation were the same parties to the earlier litigation or their privies or that the earlier decision was a judgment in rem.

I have already found that the respondent to the present appeal was not a party to the litigation before His Honour Judge Knight.

If the finding of good character made by His Honour did constitute a res judicata, then the interesting question would arise whether the judgment was a judgment in rem.

A judgment in rem is defined in Spencer-Bower and Turner Res Judicata, 2nd Ed at p.213 as follows:

"A judicial decision in rem is one which declares, defines or otherwise determines the status of a person, or of a thing, that is today the

jural relation of the person, or thing, to the world generally,

and therefore is conclusive for, or against, everybody."

Quoted with approval in P.E. Bakers Pty Ltd v. Yehuda (1988) 15 NSWLR 437 at 442.

A judgment in rem is contrasted to decisions in personum which only bind the parties.

There are well-established categories of judgment in rem concerning the status of a person or thing and the finding made concerning a person's character on a particular day is not recognised in those categories.

Mr Aavelaid sought by reference to many authorities to show that a finding of character does concern the status of a person and accordingly could amount to a judgment in rem. It is unnecessary for me to decide this issue but I have grave doubts that a person's character found on evidence before a court or tribunal could amount to a judgment in rem because one's character can change from one day to the next.

Because the finding of good character made by His Honour Judge Knight was not the thing decided by him in my opinion the appellant fails in his endeavour to establish a judgment in rem which would bind the respondent board or this court on the appeal.

I answer the issues raised by the appellant's amended summons as amended as follows -

2 - (1) Whether the appeal in this matter is a re-hearing de novo?

2 - (2) Whether the transcript of the evidence before the respondent

at the hearing on 11 November 1998 can be admitted as

evidence at the hearing before this Court, over the objections

re-hearing de novo means a completely new approach?

2 - (3) Whether in the judgment (or finding or decision) of Knight DCJ in the District Court of New South Wales on 27 March 1998 in Appeal No.6355 of 1997 his Honour found that Urmas Aavelaid was on that date of "good character", and whether this judgment (or finding or decision) of determining that status or disposition of Urmas Aavelaid's character as at 27 March 1998 must have been a res, as the judgment (or finding or decision) was, therefore, in rem, as the judgment (or finding or decision) was the judgment (or finding or decision) of a Court of competent jurisdiction to decide finally this matter or issue or thing?

Whether in the judgment (or finding or decision) of Knight DCJ in the District Court of New South Wales on 27 March 1998 in Appeal No.6355 of 1997 his Honour found that Urmas Aavelaid was on that date of "good character", and whether this judgment (or finding or decision) of determining that status or disposition of Urmas Aavelaid's character as at 27 march 1998 must have been a res (or the determination of a res), and the judgment (or finding or decision) was the judgment (or finding or decision) of a Court of competent jurisdiction to decide finally this matter or issue or thing?

Whether, if the answer to the question in (2)(3)(a) supra is in the affirmative, was the judgment or decision in rem:

(i) conclusive against the whole world and the Victorian Dental Board (and this Court) in particular; or

2 - (4) Whether the Dental Board of Victoria (and this Court in this appeal) is, therefore, bound by the above judgment (or finding or decision) on this matter or issue or thing that Urmas Aavelaid was of "good character" on 27 March 1998 - that judgment (or finding or decision) being a judgment (or finding or decision) in rem?

Whether, if the answer to the question in (2)(3)(b)(ii) is decided in the affirmative that:

(a) it then shifts (or reverses) the burden of proof onto the

(b) it is then to be regarded as a weighty piece of evidence in

called), but that it also shifts the legal burden of proof?

(d) the degree (or standard) of proof to be satisfied is that of

[Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336]

I discussed with the appellant and counsel for the respondent the question of costs depending on the outcome of the preliminary issues and it was agreed that if each party had some success then I should reserve the costs for the judge hearing the appeal.

It will be necessary to refer the matter back to the Listing Master for further directions.

Accordingly, in addition to the orders concerning the findings made set out above, I order -

(i) That the costs of the hearing with respect to the preliminary issues be reserved;

(ii) That the appellant's appeal be referred to the Listing Master to give directions for the further hearing and determination of the appeal.

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Dentist Regulations 1992

Registration Act 1922

(Rents and Fees Adjustment) Act 1915

Practitioners Act 1970

Registration Act 1987

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (11)