1. Until the hearing and determination of this review application or further order the respondent's determination made 24 October 2002 is stayed in so far as it imposes fines upon the applicant.

2. On or before 6 December 2002 the respondent must file and serve the material required by Section 49(1) of the Victorian Civil and Administrative Tribunal Act 1998.

3. Adjourned to directions hearing 4 February 2003 at 9.30 a.m.

4. Fixed for hearing 3 March 2003 estimated duration 15 days.

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

For the respondent: Mr Patrick Monahan of Ebsworth and Ebsworth

1. This proceeding in which Dr Aavelaid seeks a review of a series of adverse determinations made against him by the respondent, Dental Practice Board of Victoria was commenced but a few weeks ago and yet it already has a somewhat complex procedural history in the Tribunal. When the matter was initially commenced, an urgent stay was sought and the matter came before Deputy President Davis. At that time the respondent was unready to respond to the stay application. An application to the Deputy President for an interim stay pending the hearing at which the respondent would put its case against a stay was refused and the matter came on for hearing before me on the 4th of November.

2. Dr Aavelaid suffered suspension from registration but in addition was the subject of a series of fines which totalled $28,000. The maximum fine with respect to each matter which according to its statute the Dental Practice Board could impose was the sum of $10,000. Two of the four fines imposed were that amount and the other two were in the sum of $5,000 and $3,000.

3. It was clear when the matter came before me that if I granted the stay which Dr Aavelaid through his Counsel, Dr Freckleton sought, I would be staying the effect not only of the suspension from practice but also the payment of the fines. Nevertheless, it is fair to say that argument on the 4th of November concentrated on the issue of Dr Aavelaid's ability to continue in practice pending the hearing and determination of his review application in this Tribunal. For the reasons which I gave on that day and which have since been transcribed, I declined to grant that stay.

4. Now Dr Aavelaid through his Counsel makes a further application for a stay, this time limited to the issue of the $28,000 fines. Dr Freckleton says and Mr Monahan who appears for the Board does not deny, that the Board is seeking to recover the fines forthwith. Mr Monahan says that his client believes that Dr Aavelaid intends to leave Australia permanently as of the 19th of December. The Board therefore desires to collect, if possible, before that date and therefore not only is not minded to defer action by way of enforcement, but wants to proceed with all possible speed.

5. Dr Freckleton draws attention to the sworn evidence which his client gave when the matter was before me on the 4th of November to the effect of denial of any intention to leave Australia permanently. Dr Aavelaid said that whilst his overseas business interests required him to travel overseas between now and Christmas it would be a brief journey only.

6. Dr Freckleton has said that the fines which were imposed upon his client were quite high, in two cases right up to the maximum and in another case, half the maximum. He submits it is oppressive and unreasonable in the circumstances to require his client to make payment of fines which may be remitted entirely as a result of the outcome of the review application or perhaps substantially diminished. He submits that there is a clear analogy between this situation and the situation which applies to fines imposed by courts where the imposition of the fine is subject to appeal. The institution of the appeal there works an automatic stay. He referred me to Order 5.04 of Chapter 6 of the Rules of the Supreme Court. He also draws attention to the fact that the fines are enforceable as civil debts by the Board. They are not enforceable indirectly merely by a deferral of any re-registration by the practitioner.

7. Mr Monahan on behalf of the Board opposes the making of any such order. First, he submits that the matter has not properly been brought before me. He says the question has already been determined and it is not open to re-ventilation. He submits first that in the circumstances described by functus officio and secondly, that in any event there is a res judicata against the grant of any relief such as is sought. He took me to the terms of the review application and the stay application. They clearly indicate that what was sought previously was a stay of the entirety of the Board's determination including the fines which it imposed. He says that despite Dr Aavelaid's evidence the Board is apprehensive that unless it moves forthwith it will be unable to collect the fine or fines which it has imposed. He referred generally to the authorities to which I was taken on the previous occasion. The upshot of those authorities was that in exercising a power such as Section 50 of the Victorian Civil and Administrative Tribunal Act 1998 gives the Tribunal to stay a determination by a respondent pending the review, the dominant consideration is the question whether failure to grant such a stay would render the review entitlement nugatory. Nugatory, that rather curious word means, according to Mr Monahan's investigations and researches, worthless. There is nothing he submits along those lines here.

8. Dr Freckleton in reply submits that this situation is fundamentally different from the ordinary run of professional practice cases where the issue of stays has arisen. There the interest of the practitioner in being spared the effect of the adverse determination at first instance is balanced against the public interest in allowing a practitioner whose professional practice has been the subject of adverse finding to continue practising to the disadvantage of the public.

9. Dr Frackelton says that no such considerations apply here and so the balance is quite different.

10. I turn first to the question whether in the circumstances I should entertain this application at all. Section 50 of the Victorian Civil and Administrative Tribunal Act provides as a general principle that the mere institution of a review application does not stay the operation of the decision under review. Sub-section (3) authorises the Tribunal to make an order staying the operation of a decision that is the subject of a proceeding for review. Sub-section (4) deals with those who may make the application. Sub-section (5) deals with undertakings and the ability to make an order lifting the stay in certain circumstances. What appears from a consideration of those sub-sections of Section 50 and the remaining sub-sections is that the statute on its face stipulates no particular principles which are to guide the Tribunal. One view might be that a Tribunal which is asked to grant a stay under Section 50 has a wholly uncontrolled, discretion so long as the discretion is exercised judicially. The decision of Kellam J, the President of the Tribunal in Bell and Eagar v Liquor Licensing Victoria [2000] VCAT 214 states that the first and dominant principle to consider is whether or not failure to grant a stay will render the application for review before the Tribunal as nugatory. So much appears from Paragraph 12 of His Honour's reasons. In my view I should be guided in my approach to the section by the remarks of the President which non-judicial members of the Tribunal should treat as having a standing authority equivalent to a Supreme Court decision. Nevertheless, it is noteworthy that His Honour does not say that the question whether a review application would be rendered nugatory, absent a stay, is the sole consideration. In my respectful opinion it is understandable why His Honour limited his remarks in that fashion. The statute appears to give quite open discretion and I do not believe that there is anything in Bell & Eager's case which constrains me to look merely at the question as to whether the review application would be rendered nugatory.

11. But what is the nature of this jurisdiction? Is it such that once an application has been made and determined there can be no return to the fray as Mr Monahan would have it. The Tribunal is doubtless functus officio when it makes a final determination in any proceeding. The proceeding that is before me is the wider review application brought by Dr Aavelaid and the stay application is but a part of that wider proceeding. It deals with the interim or interlocutory position between the date of institution of the review application and its final hearing and determination. For that reason it is by its nature interlocutory. The conclusion of an interlocutory step in a proceeding does not render a Court or Tribunal functus officio and so far as it has been submitted that I am functus officio, I reject that submission. Nor in my view is an exercise of discretion in an interlocutory step within a proceeding apt to create a res judicata. Res judicatae flow from final determinations [Spencer Bower, Turner and Handley The Doctrine of Res Judicata 3rd Ed. 1996)]. There has been no final determination in this proceeding. At best there has been an interim one.

12. Mr Monahan said that if the matter goes further he reserves his right to press further arguments along these lines beyond those that he has put to me. In those circumstances it is appropriate I think that I raise at least one matter which logically goes together with those that were put to me, (it was not specifically raised by Mr Monahan) namely the issue of the use of process. The authorities tell us that even where there is no res judicata or issue estoppel to raise the same issue again will generally constitute an abuse of process. [Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290] I ask is the bringing of this application an abuse of process? In one sense one might say that it is a subset of that which has already been determined.

13. Dr Freckleton sought and failed to obtain a stay of the entire determination. He now seeks a stay of part of the determination. A subset of the greater. That has a certain logical feel, however in my view, on proper analysis it is a misleading way of viewing things. The hearing before me was as to argument devoted entirely to questions as to Dr Aavelaid's entitlement to continue in practice and the issue of the fines was mentioned as part of the general background but was not the hinge upon which either any argument turned or upon which my determination turned. In my view the fines as a separate and distinct part of the determination rather than as merely a component of the entirety. What is sought today constitutes something different than what was pressed before me on the 4th of November.

14. Accordingly therefore I do not believe that functus officio, res judicata, abuse of process or cognate arguments prevent me from entertaining this application. Since I am giving my reasons ex tempore I do not have the references to hand on the bench but it is well known that multiple interlocutory applications may be brought in Court. There is authority supporting the ability of a party to bring the second application for an interlocutory injunction. [Erinford Properties Ltd v Cheshire County Council [1974] Ch 261] Obviously such an application would only be entertained on the basis of some changed circumstance or additional information. Similarly the parties have been permitted to bring multiple applications to set aside default judgments and so on. [Hewitt v Mirror Newspapers Ltd (1977) 17 ACTR 1]

15. The present situation seems to me largely to resemble that.

16. I will now turn to the matter of prejudice which Mr Monahan pressed upon me. Namely, the apprehension that Dr Aavelaid will depart Australia permanently on the 19th of December. This as I have already noted is denied by Dr Aavelaid. In my view however, it is unnecessary for me to make a finding as to what the likelihoods are because even if I accept that Dr Aavelaid is going to depart Australia on the 19th of December permanently, failure to extract the fines from him before departure would not create a serious injustice. This in my view, nevertheless, do not stand in the way of granting Dr Freckleton the relief which he seeks on behalf of his client.

17. Mr Monahan both in this and application and the previous one has been at pains, quite properly to observe that the Board, and Tribunal for that matter, in these professional practice matters is not exercising punative jurisdiction but a protective one. On the face of it therefore the imposition of the fines seems an odd feature of the jurisdiction. The explanation for that as Mr Monahan says is general and particular deterrence. The particular deterrence in the present circumstances for Dr Aavelaid is that the payment of the fine is painful and in his future life, if he ever returns to the practice of dentistry in Victoria he would be less likely to stray from the line as a result. The general deterrence is that other practitioners who are considering their professional standards will see the pains and penalties that they may be exposed to if they fall short of proper standards and would be deterred from falling short.

18. If Dr Aavelaid is going to depart Australia permanently, the public of Victoria has nothing further to fear from his practice of dentistry and so there would be no frustration of the particular deterrence objective; but on a more general level if it appeared that the doctor had to quit Victoria permanently to escape the penalty, I do not believe that the general deterrent effect of the imposition of the penalty would be much diminished or perhaps diminished at all. I do not believe that acceding to Dr Freckelton's application creates a serious prejudice to the Board; rather, it seems that Dr Freckelton's submission that it is oppressive and unreasonable to require Dr Aavelaid to pay a penalty now which he may have remitted in whole or in part is the correct one.

19. Mr Monahan has made reference to various parts of the evidence both in this Tribunal and before the Board suggesting that Dr Aavelaid is a man of substantial means. That is as may be, though in my own experience there is frequently a different aspect revealed in the financial position of persons when one considers not only the assets and cash flow that they possess but also their liabilities. We have no detailed evidence as to what the Dr Aavelaid's particular financial standing is. Even if I accept the colloquial term that he is "rolling in money", the injustice of requiring him to pay the fine now stands, and stands in many respects in the same way as if he were financially pressed.

20. Accordingly in my view I should grant the relief sought by Dr Freckleton.