1. Application for a stay pursuant to Section 50 of the Victorian Civil and Administrative Tribunal Act 1998 dismissed.

2. Proceeding set down for hearing on a date to be fixed being a date in February - March 2003 estimated duration 15 days.

For the applicant: Mr Ian Freckelton of Counsel, instructed by Phillips Fox

For the respondent: Mr Patrick Monahan of Counsel, instructed by Ebsworth and Ebsworth

1. Dr Aavelaid was born in 1938. He graduated in 1961 in Dentistry from Sydney University. As it turned out however, his professional formation in dentistry was almost entirely in England. In early 1962 he sailed for England where he conducted a practice of dentistry in that country for many years. In the early 1980s he returned to New South Wales with a view to practising his profession there. As part of the process of return, he obtained a certificate from the General Dental Council in Great Britain, certifying that no conviction had been recorded against his name by the Council and that nothing was known to the detriment of his professional or private character. The certificate to this effect was dated the 11th of January 1982. Having returned to New South Wales and carrying on practice of dentistry in that State, he attracted unfavourable disciplinary attention from the authorities there in 1988 and 1989.

2. The first of those incidents related to the death of a patient under his treatment and ultimately findings were made adverse to him, relative to the quality and qualifications of his assistant staff available to him during the process of sedation in which the patient died. In 1989 a further enquiry related to his alleged failure to obtain informed consent from a number of his patients.

3. The first enquiry led to his being suspended from practice for a period of time and the second related to his deregistration. He had both of those determinations reviewed and confirmed on appeal to the District Court of New South Wales. Thereafter he undertook a number of steps with a view to obtaining re-registration for practice in New South Wales and in the States of Queensland and Victoria. It is unnecessary for me to trace out all of those steps beyond noting that in his disagreements with the dental authorities in New South Wales and in Victoria, he took an appeal on one occasion to the Court of Appeal in New South Wales and following that brought but abandoned an application for special leave to appeal to the High court of Australia. Failure to obtain registration in Victoria saw an unsuccessful application for judicial review to Coldrey J.

4. Eventually he obtained a finding from Judge Knight of the District Court of New South Wales on an appeal and review of the primary registration authorities to the effect that his good character was to be regarded as restored and that he was entitled to re-registration in New South Wales subject to his completing further studies. Eventually he completed those studies and in the year 2000 he was re-registered in New South Wales. Under mutual recognition legislation he obtained registration in Victoria and in May of that year, commenced practice in Hamilton and Mortlake in Western Victoria.

5. In 2001 the respondent Dental Practice Board of Victoria undertook enquiries into a number of complaints which had been made against him. This process culminated in determinations being made in the course of this year that in his practice of dentistry in Hamilton and Mortlake he had with respect to a number of patients proceeded to treat them where he lacked their informed consent; that he had engaged in poor endodontic treatment; that he had failed to comply with various regulations relative to drugs and poisons and that he had failed to keep adequate dental records. In the result the Board made determinations fining him a total of $28,000 and effectively excluding him from practice until the year 2010. One view might be in light of Dr Aavelaid's age - now 64, that exclusion from practice for that period of time, whatever its form might be, was in substance a life sentence.

6. He sought review of the Dental Practice Board's determination from this Tribunal and at the same time as filing his application for review he sought a stay of the Board's determinations pursuant to Section 50 of the Victorian Civil and Administrative Tribunal Act 1998. The matter came on for hearing last week before Deputy President Mrs Davis, at which time the respondent Board submitted that the matter should not proceed because it had not had the opportunity of placing material before the Tribunal.

7. Dr Freckelton who represents Dr Aavelaid in this proceeding and represented him before the Board, submitted in the circumstances that interim relief by way of stay should be granted over the adjournment which would entitle or enable the Board to put in its material. Mrs Davis declined to grant that interim relief and an application to Balmford J for Judicial Review of Mrs Davis' refusal of the interim relief was unsuccessful. The matter therefore comes on for hearing before me today.

8. It is necessary to say something initially as to the terms of the power which I am asked to exercise. The Dental Practice Act 1999 is the statute under which the Board acted and it provides for this Tribunal to have power to carry out a merits review of the Board's determinations. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 sets out the functions of this Tribunal on such a review. In brief the Tribunal has all the functions of a decision maker and may affirm a decision under review, vary it or set it aside and make another decision in substitution. Finally, the Tribunal may set aside the decision under review and remit the matter for further consideration. Section 50 of the Act provides that the pendency of a review application "does not affect the operation of the decision or prevent the taking of action to implement the decision". Those words appear in sub-section (1). Sub-section (3) however states:

"The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review."

9. Sub-section (4) sets out the persons who may make such an application and there is no question that as applicant today, Dr Aavelaid is a competent applicant for a stay of the Board's decisions under Section 50. Sub-section (5) states:

"In making an order under sub-section (3) the Tribunal:

(a) may require any undertaking as to costs or damages that it considers appropriate;

(b) may make provision for the lifting of the order if specified conditions are met."

10. Section 130 of the Act makes more general provisions as to the imposition of conditions by the Tribunal in making its orders which it may make under the terms of the statute. It will be seen immediately that the power to stay the operation of the Board's determination is granted in bald terms. There are no criteria set out which should guide the Tribunal in considering an application for a stay. The parties were agreed that the principles which have been developed by courts over the years relative to the staying of their orders were generally relevant to a determination of the Tribunal under Section 50 to grant or withhold a stay. I was referred to a number of Tribunal decisions under Section 50, notably a decision of the Learned President Kellam J in the matter of Bell & Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214, a decision published by His Honour on 31 January 2000; a decision of Judge Davey, then Vice-President of the Tribunal in the matter of Piddington v Nurses' Board of Victoria [2000] VCAT 42. At paragraph 12 of his reasons for decision Kellam J in Bell & Eager's case said:

"In my view the first and dominant principle is whether or not the failure to grant a stay will render the application for review before the Tribunal as nugatory."

11. Nugatory the rather odd word that seems to crop up in this context, but rarely in any other, in Dr Freckelton's submission means worthless. The parties are agreed however that it is relevant to consider a variety of other matters.

12. Mr Monahan submitted that it was relevant for me to consider the determination of the respondent Board generally and all the circumstances which surrounded it and therefore the prospects of a successful review application to this Tribunal. He submitted that investigation of the Board's determination would find that it was based upon first, adverse findings as to the credibility of Dr Aavelaid and secondly, favourable findings as to the credibility of no less than 10 of his patients or former patients who were the complainants to the Board. He says that these factors considered with an historical examination of the doctor's other brushes with the disciplinary authorities and the hearings in particular in the New South Wales District Court would lead one to conclude that there was no serious possibility that this Tribunal would ultimately reverse the determination which had been made by the respondent Board and this in his submission was a powerful consideration militating against the grant of the relief which Dr Aavelaid now seeks.

13. I have serious misgivings as to approaching the matter in this way. In particular, it would be quite wrong I believe for me to make judgments as to the likely determination made by this Tribunal in a future hearing as to the credit of Dr Aavelaid or of any other witness. This sort of proceeding is no more an appropriate vehicle to determine contested questions of evidence particularly those which turn upon credit than is an application for an interim or interlocutory injunction. I put those sorts of considerations to one side. It is however appropriate in my view to consider a variety of other factors aside from the primary one which was identified by Kellam J in the Bell & Eager case. Those other considerations include as it seems to me, some consideration of the likely outcome of a review application to this Tribunal. First, whether there is a serious issue to be tried and it is common ground that this is a relevant consideration. Further, as Dr Freckelton submits and Mr Monahan concedes that there is a serious question to be tried in the review application, it is appropriate, I believe, also to consider matters which turn not upon contested questions of fact but rather turn upon matters which are either common ground or effectively not contested.

14. I will turn briefly to some of those matters first. I note first a submission made by Mr Monahan to the effect that in light of the background events occurring in the New South Wales District Court it is most unlikely that Dr Aavelaid will emerge from a review application in the Tribunal with a victory which leaves him unscathed by any form of interruption to the practice of his profession. Mr Monahan based that submission upon the uncontested fact that when Dr Aavelaid convinced Judge Knight of the District Court that he should be regarded as having re-established his character as one fit and proper to carry on the practice of dentistry in New South Wales. The key basis for His Honour's finding was a statement by Dr Aavelaid that he would henceforth employ a consent form occupying half a page in treating his patients. Dr Aavelaid conceded that had he in fact used that consent form when he commenced his practice in Hamilton and Mortlake he would not now find himself in the embarrassment in which he now is. To put it another way, the use of the form would have headed off the complaints as to the carrying out of treatment without informed consent. The Doctor said that he used the consent form on a few occasions but did not effectively persist with it because the then practice manager of the Hamilton surgery said that in light of the gossipy nature of country towns, there would be an exchange of information amongst patients as to the cost of particular procedures and the charges imposed relatively on different patients and that this would be commercially damaging.

15. I should also note that Mr Monahan made this set of circumstances the basis for a submission that in the present situation the Tribunal could not safely accept an undertaking offered by Dr Aavelaid. The only practice which Dr Aavelaid has carried on since giving the undertaking, if it is properly to be so characterised, to Judge Knight was the one in Hamilton and Mortlake and effectively he did not carry out the terms of the undertaking, the promise indication, statement of future conduct however one might care to characterise it. Mr Monahan also submitted that it was essential to protect the public of Victoria and that this was a key objective of the legislation under which the Board operated. He submitted that were I to grant the stay which has been requested, I would be putting the public at risk in two respects. First, financial risk with respect to the carrying out of unwanted or unauthorised dental work and secondly, at risk with respect to endodontic treatment which was the subject of specific criticism by the Board and the basis of one of its principal findings against the doctor.

16. On the other hand Dr Freckelton submitted that I should put the consideration that on his view of the facts, failure to grant the stay would indeed render the review application nugatory at the forefront. He said there were further considerations which favoured the grant of the stay and those related not only to Dr Aavelaid himself but to the community in Hamilton. Properly judged in his submission, the interests of the community favoured the grant of the stay rather than pointed away from it. He referred to evidence showing that the dental practice now carried on by Dr Aavelaid in Hamilton has some 5,000 patients, numbers of those patients are as it were in the middle of treatment having had the first stage of bridgework or crown work carried out and unless Dr Aavelaid is available to complete that work, those people may be subject to significant pain and discomfort prejudiced to their dental health and ultimately financial loss. He referred to affidavit material from the doctor and also from his receptionist and assistant a Ms Tripovich to the effect that there was a dirth of dental practitioners in Hamilton and in that area and a dirth in particular carrying the sort of work, namely endodontic work, crown work and so forth which formed a significant part of Dr Aavelaid's practice. There would be hardship to all those people and there was no easy way for the demand of the 5,000 patients to be conveniently taken up. Further, Dr Freckelton said, and this was supported by evidence from his client, that he would offer undertakings both as to the mode of carrying out endodontic treatment which would meet the objections raised by the Board even although Dr Aavelaid does not concede that the view taken by the Board of what is proper endodontic treatment is in fact the correct one. As to the findings with regard to drugs and poisons Dr Freckelton said the evidence showed that his client had in effect mended his ways and that in so far as he had admitted, a failure properly to comply with the regulations, the wrongs that he had thereby done were not so serious as to justify the very heavy findings made against him with respect to these matters by the Board. Further, he said that the evidence from Dr Aavelaid and his assistant showed that the dental records which were now being kept were satisfactory and did not exhibit the defects which the Board found in its determination.

17. According to Dr Freckelton, unless this stay is granted the practice in Hamilton will effectively be destroyed and it will be pointless for Dr Aavelaid to continue with this review application. He submits that nothing very dramatic is being sought, merely an ability for the doctor to continue this practice for a relatively short period of time until perhaps March when a final determination by this Tribunal is available.

18. I should also note some further considerations which are relevant to today's application. The first of those is that Deputy President in charge of this List has indicated that this review application can be listed for some 15 days which seems likely to be, though by no means certain to be sufficient in all the circumstances, commencing on the 2nd of December this year. This would mean, one imagines that a determination could be published in perhaps February and that the matter could be wrapped up so far as the Tribunal is concerned, over the Christmas-New Year period. As to that Dr Freckelton has submitted that this would be an inappropriate course because with respect to the issue I infer of what is proper endodontic practice, his client, Dr Aavelaid, is seeking international witnesses as it were to give the lie to the orthodox view of what is proper endodontic treatment which is being maintained by the Board, which formed the basis for its findings adverse to Dr Aavelaid. Moreover, it emerged in cross-examination that Dr Aavelaid will be departing some time between now and Christmas for a necessary overseas business trip. Whilst it was not specifically stated, if that trip is indeed an unavoidable one, it will be difficult for Dr Aavelaid properly to prepare for a hearing on the 2nd of December or perhaps to be in attendance during its progress. Where then do all these considerations point? It seems to me that boiling them all down it must be the situation that first, the consideration as to whether denial of a stay would render the review process nugatory stands as the primary consideration and that is consistent with what Kellam J said in Bell & Eager.

19. Secondly, that it is proper to consider the likely outcome of a review application in light of what are fundamentally uncontested matters but that it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of hearing the evidence.

20. Thirdly, that it is proper and indeed in a context such as the present imperative to consider the wider public interest. To put it another way there are other considerations at work here than would be operative if this were a matter solely of staying a private money judgment between private parties.

21. I ask first then is it established that failure to grant the stay would render the review process nugatory? Generally one would imagine that putting somebody out of business, either from an estate agency, a motor car traders dealership or a surgery, be it medical or dental, would have irremediable effects and a subsequent victory on review could not undo those irremediable affects. Here, the situation is perhaps not quite as clear as it might be in some cases or one might say the majority of cases. The evidence disclosed incidentally at a number of points and it arises in places such as the transcript of the hearing being the Board, that Dr Aavelaid is not dependent solely upon income from the practice of dentistry. According to the transcript of the hearing below, he has major business interests overseas and I have already referred to the apparent necessity for him to take at least a short business trip to attend to those interests between now and Christmas. Secondly, I was referred to an advertisement which appeared in one of the publications in which dental practices for sale are noted, indicating, according to the advertisement, that the owner of a practice admitted to be Dr Aavelaid's practice, needed to leave Victoria in December of 2002 and therefore that a quick sale was needed. The price indicated for the practice was $50,000 goodwill and $4,500 by way of equipment. Again, Dr Aavelaid admitted that the rooms at which he practices were leased for some two and a half years with options for further similar terms. In light of the uncertainty attending his professional future, when a few months previously the final date for the exercise of an option to renew came, he elected not to take up the option. The lease expires tomorrow and he admits that he has received a notice requiring him to quit possession in January. There is also an indication from one of the lessors a Dr Horng that there is some sort of agreement for the doctor to vacate in December. This was not distinctly denied by Dr Aavelaid but he said it should be seen as part of a wider "cat and mouse game" between him and the lessors in which he was seeking in all the circumstance to obtain the most satisfactory outcome for himself.

22. Dr Freckelton observed that even if these premises ceased to be available there is noting to suggest that the practice could not be carried on from elsewhere in Hamilton and that it was notorious that in country towns there was an excess of available space because of their relative decline in comparison to the metropolis.

23. However, the situation seems to be that one way or another there is a serious question over the Hamilton practice altogether and even if there were not, the loss of the Hamilton practice would not prevent Dr Aavelaid, if he were successful, in the Tribunal, from carrying on his practice of dentistry again in Hamilton or somewhere else. There is nothing to suggest for instance, that loss of this stay application would leave Dr Aavelaid looking down the barrel of bankruptcy. I was not taken to the details of his overseas interests but he did not cavil, it seems, at describing these interests to the Board as "major".

24. I am not dealing therefore with a man threatened with the loss of his livelihood.

25. The other matters that I must consider I believe are the wider public interest and here Mr Monahan candidly admitted that this was not a case of life and death. I have already described specifically how he did characterise the risks which he said the public was exposed to. Dr Freckelton said that the proceedings before the Board were on foot for some 12 months and one might ask if there really was a serious threat which required instant attention and which rendered it dangerous to allow Dr Aavelaid to continue in practice for a period of a couple of weeks or a couple of months, why the Board did not take action under its interim powers to suspend the doctor from practice as bestowed upon the board by Section 26 of the Dental Practice Act 1999. I should also note that in light of the admitted failure of Dr Aavelaid to abide by what he led Judge Knight to believe would be his future mode of practice, it is difficult to attach the sort of weight that one otherwise might to undertakings to conduct his dental practice in particular ways. The undertakings being, first, as I have already noted with respect to the mode of carrying out endodontic work and secondly, with respect to a more elaborate form of consent form to be given to patients. Given that this was put before Judge Knight as solemn matter and not carried into effect, I think there is every reason for me to be sceptical as to the worth of undertakings in these circumstances. Dr Aavelaid has declined the offer of a speeding hearing. All in all decision on this application whichever way it goes is unlikely to leave one with much enthusiasm or satisfaction. The Board having made the very lengthy and extensive adverse findings that it has made against Dr Aavelaid would no doubt feel irked and uneasy if the stay were granted. On the other hand, Dr Aavelaid, given that he no doubt was convinced that he has good prospects of overturning the adverse findings and once again vindicating his professional name and entitlements will feel that failure to obtain this stay application significantly penalises him in advance of any final determination. In these unhappy circumstances I found this a particularly difficult matter to determine as the length of the reasons that I have already given have indicated. Ultimately I strike the balance this way. This is not a matter where it is clear to my mind that failure to grant the stay will render the review process nugatory. One feels less comfortable giving stays in circumstances where solemn indications as to conduct in the future have not been abided by. There is in my view, the significant public interest contraindicating the grant of a stay in circumstances where significant adverse findings have been made against a practitioner. The primary consideration viz. as to whether refusal of the stay renders the review process nugatory has been weakened as I have described. Hence the contraindications outweigh the indications in favour of granting a stay. With some diffidence I conclude the appropriate order is to deny the stay.