Appellant v Respondent

INTRODUCTION

1 The appellant is the Dental Practice Board of Victoria, which has the responsibility for regulating the dental profession in Victoria. The respondent, Dr Mark Hassed, is a dentist with a practice in Canterbury. The facts of this case are concerned with advertisements placed by Dr Hassed. The key legal principle under consideration is the scope and duty of members of the Victorian Civil and Administrative Tribunal to follow decisions of judicial members of the Tribunal.

2 In November 2002, advertisements were published on Dr Hassed's website and in the Melbourne Weekly stating that dental amalgam (which contains mercury) was rarely used by dentists in their own fillings and that amalgam may be toxic and damaging to teeth.

3 The advertisements came to the attention of the Dental Practice Board of Victoria. Following a hearing, the Board found that Dr Hassed had engaged in unprofessional conduct of a serious nature and imposed penalties accordingly.

4 Dr Hassed appealed to the Victorian Civil and Administrative Tribunal. The Tribunal overturned the Board's finding as to unprofessional conduct of a serious nature, and replaced it with a finding that Dr Hassed had engaged in unprofessional conduct which was not of a serious nature. The Tribunal subsequently imposed lesser penalties than those imposed by the Board.

5 By leave, the Board has appealed against the Tribunal's decision. The Board appeals primarily on the ground that the tribunal member misconceived the scope and nature of his duty to follow a decision by a judicial member of the Tribunal.

THE STATUTORY REGIME

6 The professional conduct and practice of dentists is regulated by the Dental Practice Act 1999 (Vic) ("the Act"). The Act establishes the Dental Practice Board of Victoria, and provides for the registration, regulation and discipline of dental care providers and services.[1]

7 The Board is required to investigate complaints[2] and can conduct informal or formal hearings.[3] A panel convened for the purposes of a formal hearing may find that the dental care provider has engaged in unprofessional conduct of a serious nature; unprofessional conduct which is not of a serious nature; or that the dental care provider has not engaged in unprofessional conduct.[4]

8 The range of penalties available to the Board depends on whether a finding of unprofessional conduct has been characterised as "of a serious nature" or "not of a serious nature". These expressions are not defined in the Act. A greater range of penalties are available if a dental care provider is found to have engaged in unprofessional conduct of a serious nature, including the imposition of a caution; reprimand; condition on registration; fine of not more than $10,000; and a requirement to attend counselling.[5] If the Board finds that a dental care provider has engaged in unprofessional conduct which is not of a serious nature, the range of penalties it can impose is limited to a reprimand, a caution, an order that the dental care provider undergo counselling and an order that the dental care provider undertake further education.[6]

9 There are 10 varieties of unprofessional conduct defined in s. 3 of the Act. Only one is relevant to this case. Paragraph (j) of the definition provides that a contravention of the Act constitutes unprofessional conduct.

10 In this case, the Tribunal found that Dr Hassed contravened s. 64(1)(a) of the Act in that he advertised his practice in a manner which was misleading or deceptive.

11 Section 64 of the Act regulates the content of advertisements. That section relevantly states:

(1) A person must not advertise a dental care provider's practice or dental care provider's services in a manner which--

(a) is or is intended to be false, misleading or deceptive; or

...

(d) creates an unreasonable expectation of beneficial treatment.

12 A dental care provider has the right to apply to VCAT for a review of a determination made at a formal hearing under Part 3 of the Act.[7] The Tribunal's powers on review are contained in s. 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). They include all the powers of the primary decision-maker.

FACTS

13 In late 2002, the Investigative Officer of the Board received a complaint about certain advertisements of Dr Hassed's practice. The advertisements were placed on Dr Hassed's website, and in a free local traders paper, the Melbourne Weekly.

14 The advertisement on the website displayed a head and shoulders photograph of Dr Hassed, and included the words:

We NEVER use amalgam (mercury) fillings.

A 1995 survey found that only 3% of dentists would have amalgam used on themselves if they needed a medium-sized filling in a back tooth. Here's why...

15 A series of statements accompanied by images followed. The statements and images were described by the tribunal member as follows:

The first [assertion] stated "amalgam is ugly". The second, next to an octagon with a white field and a central skull and crossbones stated "amalgam may be toxic. Government warning".

...

The third proposition was "amalgam breaks teeth by thermal expansion" and the fourth was "amalgam leaks. There is decay under 80% of the fillings we remove". The screen then showed what it described as "the attractive alternatives to amalgam". There seemed to be three options, first "for small fillings composite is best. One visit $130 to $200." The second option was "for medium fillings porcelain is strong and durable. One visit, $800 to $900." The third option stated "for major rebuilding crowns protect and strengthen. Two visits, $1250 - $1400". The various options were accompanied by photos.[8]

16 The advertisement which appeared in the 17-23 November 2002 edition of the Melbourne Weekly took up approximately a quarter of the page, and featured a smiling photograph of Dr Hassed with the words "If I wouldn't put it in my mouth, I wouldn't put it in yours!" in large bold type on the left side of the advertisement. The rest of the advertisement was taken up with the following text:

According to a recent survey, only 3% of American dentists would have amalgam (mercury) fillings in their own teeth and we suspect the figures would be the same here.

That made us ask, if dentists won't have mercury in their mouths why should their patients?

So we made a decision - no amalgam fillings - our clinic is 100% mercury free.

Computer imaging allows us to make beautiful durable porcelain fillings in a single visit - no impressions, no temporary fillings ... and no yucky stuff.

This is the dentistry we choose for ourselves.[9]

DENTAL BOARD HEARING

17 By notice of formal hearing served on 18 August 2003, the Board alleged, amongst other things, that Dr Hassed had advertised his dental practice in a manner which was false, misleading or deceptive in contravention of s. 64(1)(a) of the Act; and also in a manner which created an unreasonable expectation of beneficial treatment in contravention of s. 64(1)(d) of the Act. It was alleged that the contraventions constituted unprofessional conduct of a serious nature.

18 Following the formal hearing, the Board found that the advertisements placed by Dr Hassed were false, misleading or deceptive and created an unreasonable expectation of beneficial treatment in contravention of s. 64(1)(a) and (d) of the Act. Further, the Board found that Dr Hassed had thereby engaged in unprofessional conduct of a serious nature. The Board determined that Dr Hassed undertake corrective advertising and ordered that he publicise the finding of the Board on his website. Further, the Board fined Dr Hassed $7,500 and cautioned him to take greater care with future advertisements. The penalties imposed by the Board were stayed pending the completion of a review by the Tribunal.

TRIBUNAL REVIEW

19 Dr Hassed applied to the Tribunal to review the determination of the Board.

20 The Tribunal made orders on 24 March 2006 ("findings order") and 20 April 2006 ("penalties order"). The findings order deleted the Board's finding that Dr Hassed's advertisements created an unreasonable expectation of beneficial treatment, and replaced the finding that he had engaged in unprofessional conduct of a serious nature with a finding that he had engaged in unprofessional conduct which was not of a serious nature. The penalties order set aside the determination of the Board as to penalties, and ordered that Dr Hassed be cautioned and reprimanded.

21 The tribunal member gave separate consideration to each of the statements, assertions or propositions contained in the advertisements which were alleged to be misleading or deceptive, and concluded:

(1) The statement that "there is decay under 80% of the fillings we remove" was not misleading or deceptive advertising.[10]

(2) The statement "amalgam breaks teeth by thermal expansion" was misleading or deceptive because this point of view is not universally accepted in the dental profession.[11]

(3) The statement that "only 3% of dentists" would use amalgam fillings in their own teeth was misleading or deceptive because the figure of 3 per cent was based upon a survey of a very small number of American dentists practising aesthetic dentistry.[12]

(4) The statement that "amalgam may be toxic; Government warning", which was adjacent to a skull and crossbones symbol, was misleading and deceptive.[13] Additionally, the tribunal member found that this statement was "particularly inflammatory"[14], and the "emotive skull and crossbones symbol"[15] combined with the words as a whole constituted "inappropriate scaremongering" by Dr Hassed.[16]

22 Next, the tribunal member considered the additional allegation by the Board that the advertisements created "an unreasonable expectation of beneficial treatment" contrary to s. 64(1)(d) of the Act. The finding was not upheld.[17]

23 Having found that three out of the four statements in the advertisement were misleading or deceptive in contravention of s. 64(1)(a) of the Act, and thus constituted unprofessional conduct, the tribunal member then considered whether Dr Hassed had engaged in "unprofessional conduct of a serious nature."

24 The tribunal member commenced his consideration of this issue by stating a finding that the advertisements by Dr Hassed "were not mere lapses. They were steps deliberately taken by Dr Hassed."[18] Of particular relevance to this finding was the fact that Dr Hassed had offered to modify his approach in his advertisements "if it was proven to be wrong."[19] The tribunal member considered this stance amounted to a "considered refusal to submit to guidance from the Board."[20]

25 With respect to this finding as to the intentional nature of Dr Hassed's conduct, the tribunal member stated:

In conformity with the principles referred to above to determine whether unprofessional conduct is of a serious nature or not, this consideration points in favour of the conduct being of a serious nature.[21]

26 The tribunal member's view that, in all the facts and circumstances of the case, the unprofessional conduct which he had found was of a serious nature is reinforced in the opening words of the next paragraph of his reasons:

Uninstructed by other considerations I would have thought that what I believe these advertisements amount to, namely unjustified scaremongering, renders them unprofessional conduct of a serious nature because of the deliberate manner in which they were published and the serious consequences which they could potentially have...[22]

27 Notwithstanding this clearly expressed view of the tribunal member, he continued:

but there are other considerations. As a non-judicial member of the Tribunal I should accept the lead given by the Judicial Members of the Tribunal. Anteden Pty Ltd v Glen Eira City Council (2000) 16 VAR 354, [26]. In Kozeniauskas v Dental Practice Board of Victoria [2005] VCAT 1058 the learned President considered an allegation that a dental practitioner's advertising constituted unprofessional conduct of a serious nature. The Board at first instance had so found. The advertising included the statement Invest in your teeth and LIVE LONGER. The advertisement implied that proper attention to the gums by way of dental treatment by the practitioner could alleviate or lower the risk of heart disease and stroke, premature birth, diabetes, irritable bowl syndrome and chronic osteo-arthritis. The evidence accepted by the Board and by the President was that the impression given by the advertisement was flagrantly incorrect as to the potential importance for general health of gum disease. Nevertheless, His Honour found that the unprofessional conduct in question was not of a serious nature. His Honour characterised the practitioner's conduct in this way at [37]:

Essentially the applicant has published an advertisement that 'gilds the lily', at least having regard to current scientific evidence.[23]

28 The tribunal member concluded his consideration of the issue as to whether the unprofessional conduct of Dr Hassed was of a serious nature in the following terms:

[I]n my view principles analogous to the principle of parity of sentencing which is followed in the criminal justice system should be applied. If advertising as flagrantly false as that considered in Kozeniauskas' case does not constitute unprofessional conduct of a serious nature then the present advertising which in my view is far less objectionable a fortiori cannot. It follows that I must vary the Board's determination to the extent of concluding that the unprofessional conduct found is not of a serious nature.[24]

29 In his reasons published with the penalties order, the tribunal member reinforced his reliance on Kozeniauskas v Dental Practice Board of Victoria,[25] stating that he had "substantially endorsed the findings of the Board" in his initial reasons, but

in light of another determination of this Tribunal, namely a determination of the President in Kozeniauskas v The Dental Board of Victoria I concluded that it would not be appropriate to characterise the conduct of the practitioner as being unprofessional conduct of a serious nature.[26]

30 As to the appropriate penalty to impose, the tribunal member referred to a previous adverse finding of the Board against Dr Hassed and stated that:

if there were a wider range of penalty options available to me I would have wished somehow to reflect this consideration as well; but in the very limited and constrained range of penalties that are available to me I regret that I am unable to reflect that in any meaningful way.[27]

31 The reference to a "wider range of penalty options" was a reference to the statutory regime which prescribes the penalties available depending upon whether or not unprofessional conduct is found to be of a serious nature. In other words, had the tribunal member made a finding of unprofessional conduct of a serious nature, as he was minded to do in the absence of his perceived obligation to follow Kozeniauskas, he would have had wider penalty options available to him and would have imposed a penalty which more accurately reflected his view of the penalty most suitable to the conduct of Dr Hassed.

GROUNDS OF APPEAL

32 The Board relies upon a number of grounds of appeal. However, it is only necessary to deal with the first ground in order to dispose of the appeal. The first ground of appeal is in the following terms:

The Tribunal misdirected itself as to its obligation to achieve consistency with decisions of judicial members of the Tribunal and in consequence failed to identify those considerations relevant to determining what constitutes unprofessional conduct to be "of a serious nature" within the meaning of s. 47(1)(a) of the Act and evaluate the conduct of the [Respondent] having regard to those considerations.

33 This ground of appeal raises two issues. First, what are the considerations which are relevant to take into account in determining whether unprofessional conduct is of a serious nature within the meaning of s. 47(1)(a) of the Act? Second, was the tribunal member's reliance upon the decision of Morris J in Kozeniauskas consistent with him taking these relevant considerations into account?

SERIOUS NATURE

34 The Act does not contain a definition of the expression "unprofessional conduct of a serious nature." Accordingly, the words must be given their ordinary meaning. In these circumstances, it was common ground that the question of whether unprofessional conduct is of a serious nature raises a question of fact; and that this question involves a qualitative evaluation of all of the relevant facts and circumstances of the case in issue, viewed in the context of professional practice generally.

35 In Parr v Nurses Board of Victoria[28] Kellam J considered whether a nurse had engaged in unprofessional conduct of a serious nature:

In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend upon the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure. I note in this regard that the Act provides for informal hearings into complaints made about nurses (see ss 40 and 41 of the Act). Section 41 of the Act provides that the only findings which are open to a panel conducting an informal hearing are either a finding that the nurse has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, or has not engaged in unprofessional conduct. By s 41(2) the only penalties available for a finding of unprofessional conduct which is not of a serious nature are determinations that the nurse undergo counselling, be cautioned or be reprimanded. In the course of the second reading speech on 17 November 1993 at p 1873 of Hansard, the Minister said:

Informal hearings will be held to hear minor matters. It is not necessary to have representation for those hearings. The hearings will save nurses from being put through the expense and trauma of obtaining representation for a formal hearing.

Accordingly it is clear from the structure of the Act that it was the intention of Parliament that "unprofessional conduct which is not of a serious nature" amounted to such matter which were minor and appropriate to be dealt with by the informal hearing process contemplated by the Act and that the sanction for such conduct amounted to no more than counselling, cautioning or reprimand.[29]

36 In Domburg v Nurses Board of Victoria[30] Ashley J said in respect of these statements by Kellam J:

There is always a question whether it is best to let the language of legislation - particularly where the language involves words in everyday usage - speak for itself; or rather seek to clothe it with meaning by recourse to other language. Bearing in mind that the particular language needs to be applied, if not often then at least not infrequently, by bodies consisting either wholly or in the main of non-lawyers, his Honour's analysis should be seen - bearing in mind always that it was tailored to the circumstances of the case before him - as an accurate and useful guide to the application of the legislation.[31]

37 In Kozeniauskas, Morris J considered Parr and Domburg and stated:

The meaning of unprofessional conduct "of a serious nature" has been discussed by Kellam J in Parr v Nurses Board of Victoria and Ashley J in Domburg v Nurses Board of Victoria. Clearly enough, the difference goes to the gravity of the conduct and must depend upon, not only the facts of the case, but also an assessment of the conduct in the context of the conduct of professional practice generally."[32]

USE OF KOZENIAUSKAS

38 In Kozeniauskas v Dental Practice Board of Victoria,[33] the appellant dentist ran a two-page advertisement in The Australian Women's Weekly which carried the words "Invest in your teeth & LIVE LONGER" in large bold type, and stated that "heart disease, strokes, lung disease, premature birth, headaches and facial pain" were all "related to your teeth and gums". Morris J found that, although the advertisement was "provocative" and "possibly even alarmist", it was not misleading or deceptive in contravention of s. 64(1)(a) of the Act.[34] However, Morris J did find that an unreasonable expectation of beneficial treatment had been created, in contravention of s. 64(1)(d) of the Act.[35] Dr Kozeniauskas was found to have engaged in unprofessional conduct. As to whether that unprofessional conduct was of a serious nature, Morris J held that as Dr Kozeniauskas had merely "published an advertisement that 'gilds the lily', at least having regard to current scientific evidence."[36] Accordingly, Morris J found that his conduct was not unprofessional conduct of a serious nature. This passage was specifically relied upon by the tribunal member in the present case.[37]

39 In Anteden Pty Ltd v Glen Eira City Council,[38] the Council applied to the Tribunal for an enforcement order prohibiting Anteden from using its "cabaret" licence to operate a table-top dancing venue. The enforcement order was granted. In its reasons, the Tribunal declined to follow a decision on a relevant question of law made by the Administrative Appeals Tribunal. The Tribunal gave no reasons for departing from the AAT decision. Balmford J allowed an appeal to this Court. Her Honour stated that, as the case in the AAT was presided over by a judicial officer, this gave "greater weight to the decision on that question of law."[39] In this context, Her Honour said that the Tribunal "should always be conscious of the importance of consistency in decisions on questions of law".[40]

40 It was submitted on behalf of the Board that the tribunal member's reliance upon the decision of Morris J in Kozeniauskas was inconsistent with him evaluating all of the relevant facts and circumstances of the case, either in the context of professional practice generally or at all. It was submitted that, when read as a whole, the tribunal member's reasons disclosed two things. First, that the tribunal member misunderstood the content of the principle enunciated in Anteden that, as a non-judicial member of the tribunal, he should be conscious of the importance of maintaining consistency with decisions of judicial members of the Tribunal on questions of law. This was because the tribunal member did not refer to any aspect of Kozeniauskas involving any question of law. Rather, the tribunal member simply compared the facts of this case to those in Kozeniauskas and, because he was of the opinion that the facts of this case were "far less objectionable" than those in Kozeniauskas, treated himself as bound to find that the unprofessional conduct of Dr Hassed was not of a serious nature. Second, that in the absence of the tribunal member's mistaken view as to the binding nature of the factual aspects of the decision of Morris J in Kozeniauskas, the tribunal member would have concluded that Dr Hassed's unprofessional conduct was of a serious nature.

41 It was submitted on behalf of Dr Hassed that the tribunal member did not misunderstand the principle stated in Anteden, as contended for by the Board. It was submitted that the tribunal member's reliance upon Kozeniauskas was in the context of the statement of principle by Morris J in that case that any assessment of whether unprofessional conduct is of a serious nature must be made in the context of "the conduct of professional practice generally."[41] Accordingly, the tribunal member's consideration of Kozeniauskas was merely a step in the Tribunal's consideration of all of the facts and circumstances of the case. It was not decisive of the outcome, only a consideration which the tribunal member took into account in reaching his conclusion on the facts of the case before him.

42 I do not accept these submissions. The tribunal member did not, in his reasons, draw attention to any statement of legal principle by Morris J in Kozeniauskas. He referred to the facts of Kozeniauskas; compared those facts to the facts of this case; concluded that the conduct of Dr Hassed was "far less objectionable" than that of Dr Kozeniauskas; concluded that a fortiori the conduct of Dr Hassed "cannot" constitute unprofessional conduct of a serious nature; and accordingly concluded that he "must" find that Dr Hassed's unprofessional conduct was not of a serious nature.

43 In my view, the use of the words "cannot" and "must" unambiguously demonstrate that the tribunal member was of the view that, if he considered that the conduct of Dr Hassed was less serious than the conduct of Dr Kozeniauskas described by Morris J, he was bound by the decision in Kozeniauskas to conclude that the unprofessional conduct of Dr Hassed was not of a serious nature. That was an error of law. By this process of reasoning, the tribunal member was diverted from his statutory task of evaluating the facts and circumstances of the case before him. As a result, he impermissibly replaced his statutory task with a comparison between the facts of this case and his own view of the facts in Kozeniauskas.

44 Further, the tribunal member characterised the advertising in Kozeniauskas as "flagrantly false".[42] In my view, this characterisation was inconsistent with the finding of Morris J in that case, that the advertisement was not inconsistent with the truth or otherwise misleading.[43]

45 It was also submitted on behalf of Dr Hassed that the tribunal member's reasons do not indicate that, in the absence of his view as to the binding nature of the decision in Kozeniauskas, the tribunal member would have concluded that Dr Hassed's unprofessional conduct was of a serious nature. I do not accept this submission. The words used by the tribunal member give a very clear indication that the tribunal member was of this view. It is clear that the only consideration which caused the tribunal member to depart from this view, which "uninstructed by other considerations [he] would have thought" was the appropriate conclusion, was his belief that he was obliged to follow the factual conclusion in Kozeniauskas. As I have said, this was an error of law.

46 The tribunal member also referred to "the principle of parity of sentencing which is followed in the criminal justice system" as a basis for his reliance upon Kozeniauskas.[44] Although it was conceded on behalf of the Board that parity was not a totally irrelevant consideration to take into account in determining whether unprofessional conduct is of a serious nature, it is in my view only marginally relevant; and then only in a case where the decision-maker is in doubt as to the result in the case for determination. In my view, principles of parity ought be considered at the penalty stage, once a determination has been made as to whether the unprofessional conduct in issue is or is not of a serious nature. If principles of parity are allowed to dominate the anterior question, and this leads to a finding that the conduct is not of a serious nature, there is a risk that, at the penalty stage, the decision-maker will be unable to impose a suitable penalty to fit the facts of the case. It is apparent that this is what occurred in this case.

47 At the penalty stage, the parity principle may play a role in assisting a decision-maker to arrive at a just penalty. But even at that stage, principles of parity should not override the need to consider the unique facts and circumstances of the case at hand.

CONCLUSION

48 The appeal is allowed. The order that Dr Hassed engaged in unprofessional conduct which is not of a serious nature is set aside. I will hear the parties as to the form of orders, including as to any questions to be remitted to the Tribunal, and as to costs.

[1] Dental Practice Act 1999 (Vic) s 1.

[2] Dental Practice Act 1999 (Vic) s 23.

[3] Dental Practice Act 1999 (Vic) pt 3, div 3.

[4] Dental Practice Act 1999 (Vic) s 47(1).

[5] Dental Practice Act 1999 (Vic) s 47(2).

[6] Dental Practice Act 1999 (Vic) s 40(2).

[7] Dental Practice Act 1999 (Vic) s 58(1)(d).

[8] Hassed v Dental Practice Board of Victoria [2006] VCAT 443, [5]-[6].

[9] Emphasis in original.

[10] Hassed v Dental Practice Board of Victoria [2006] VCAT 443, [49].

[11] Ibid [50].

[12] Ibid [53].

[13] Ibid [54]-[62].

[14] Ibid [54].

[15] Ibid [60].

[16] Ibid [61].

[17] Ibid [63].

[18] Ibid [64].

[19] Ibid.

[20] Ibid.

[21] Ibid (emphasis added).

[22] Ibid [65] (emphasis added).

[23] Ibid.

[24] Ibid [66] (underlining added for emphasis).

[25] [2005] VCAT 1058.

[26] Dr Mark Hassed v Dental Board of Victoria (Unreported, VCAT, 20 April 2006) [1].

[27] Ibid [9].

[28] (1998) VAR 118.

[29] Ibid [17].

[30] [2000] VSC 369.

[31] Ibid [59].

[32] [2005] VCAT 1058, [7] (emphasis added).

[33] [2005] VCAT 1058.

[34] Ibid [26].

[35] Ibid [35], [36].

[36] Ibid [37].

[37] Hassed v Dental Board of Victoria [2006] VCAT 443, [65].

[38] (2000) 16 VAR 354.

[39] Ibid [26].

[40] Ibid (emphasis added).

[41] Kozeniauskas v Dental Practice Board of Victoria [2005] VCAT 1058, [7].

[42] Hassed v Dental Practice Board of Victoria [2006] VCAT 443, [66].

[43] Kozeniauskas v Dental Practice Board of Victoria [2005] VCAT 1058, [26]-[32].

[44] Hassed v Dental Practice Board of Victoria [2006] VCAT 443, [66].