DENTAL BOARD OF AUSTRALIA -v- TRAIANOU [2011] WASC 293 (27 October 2011)

6 On 18 August 2008, the State Administrative Tribunal (SAT) made orders to the following effect:

(b) suspending Mr Traianou from the Dental Board Register for six months; and

(c) requiring Mr Traianou to provide a number of undertakings to the Dental Board, including not to practise on his own account as a principal for at least one year following the conclusion of the period of suspension.

7 SAT's order recited various allegations that had been made by the Dental Board which were admitted by Mr Traianou.

8 Following the conclusion of Mr Traianou's period of suspension, he sent a signed undertaking in the required form to the Dental Board.

9 Mr Traianou breached his undertaking on a number of occasions. Among other things, he practised on his own account as a principal. Further, he acted carelessly or incompetently in performing some dental procedures.

10 On 9 December 2009, SAT ordered, by consent, that Mr Traianou be struck off the Dental Register.

11 On 1 April 2010, Mr Traianou practised as a dentist notwithstanding that he had been struck off the Dental Register by SAT's order in December 2009.

12 In April 2010, the Dental Board commenced proceedings in this action for an injunction restraining Mr Traianou from practising dentistry (and related acts). On 22 April 2010, Mr Traianou swore an affidavit admitting that he had been practising dentistry and consenting to an injunction restraining him from practising dentistry or holding himself out as being entitled to practise dentistry.

13 On 23 April 2010, by consent, orders were made, including an order (the Order)

restraining [Mr Traianou] from doing any of the following, namely practising dentistry or performing any act of dentistry or holding himself out directly or by implication as practising or being prepared to practise dentistry in any of its branches unless and until [Mr Traianou's] name is entered on the Register maintained by the Registrar of [the Dental Board] pursuant to section 17 of the Dental Act 1939 (WA).

14 The order was indorsed with a penal notice stating that if Mr Traianou:

(A) refuse[d] or neglect[ed] to do any act within the time specified in this order for the doing of the act; or

(B) disobey[ed] the order by doing an act which the order requires [Mr Traianou] abstain from doing,

[Mr Traianou] will be liable to imprisonment, sequestration of property or other punishment.

15 The Order was personally served on Mr Traianou on 18 May 2010.

16 Mr Traianou was not entered on the Register maintained by the Registrar of the Dental Board of Western Australia pursuant to s 17 of the Dental Act 1939 (WA) between 23 April 2010 and 18 October 2010 inclusive.

17 On 18 October 2010 the Dental Act 1939 was repealed by s 14(b) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the National Law).

18 By s 296(1)(a) of the schedule to the National Law, the Register is deemed to be a record of the Dental Board of Australia.

19 Since 18 October 2010 to the date of issue of these proceedings Mr Traianou has not been entered on the Register of Dental Practitioners maintained by the Dental Board of Australia pursuant to s 222 of the schedule to the National Law.

20 Mr Traianou's numerous admitted breaches of the Order are set out in pars 12 42, 43(a) and 45 51 of the grounds in the schedule to the Dental Board's amended chamber summons dated 19 August 2011. I will not recite them in detail. The following features of the admitted breaches should be noticed:

(1) there are over 150 instances of Mr Traianou practising as a dentist in breach of the Order;

(2) there are also over 150 distinct instances of Mr Traianou holding himself out as practising dentistry in breach of the Order (although there is substantial overlap between these two categories);

(3) Mr Traianou's conduct in breach of the Order commenced on 23 April 2010, the day the Order had been made with his consent. (In saying this, I do not overlook that the extracted order was served on 18 May 2010);

(4) from no later than early July 2010, Mr Traianou regularly engaged in acts in breach of the Order, including performing a number of dental procedures and prescribing medication;

(5) Mr Traianou's acts in breach of the Order continued until January 2011, when he was contacted by the Dental Board or its solicitors; and

(6) Mr Traianou earned his income by his acts in breach of the Order from April 2010 until January 2011.

21 When contacted by an officer of the Australian Health Practitioner Regulation Agency (responding to a message from Mr Traianou) he said that he had been deregistered a year or two earlier, but two months ago had started working, in November 2010. Mr Traianou's contact followed his receipt of a letter from the Dental Board's solicitors.

22 Mr Traianou wrote by letter of 25 January 2011. In his letter, he stated that he had been deregistered in December 2009 for what he 'thought' was for 12 months, until 2010. He stated that 'prior to December 2010' he started to work again. His letter stated that he knew he was in the wrong and 'showed great remorse for this given the penalties that may arise from this point'. The letter stated that the only reason for recommencing work was for financial difficulties. He appealed to the Board to accept his sincere apologies.

23 In fact, Mr Traianou had engaged in the practice of dentistry in April 2010 when the Order had been made, and had done so regularly from June or July onwards.

The Dental Board's contempt application and Mr Traianou's admissions

24 By chamber summons dated 14 July 2011, the Dental Board applies for an order that Mr Traianou was guilty of contempt and that he be punished for his contempt. The schedule to the chamber summons set out detailed grounds on which the orders in the chamber summons were sought.

25 Following inspection by the Dental Board of documents subpoenaed from Medicare Australia and Medibank Private Ltd, the Dental Board amended the chamber summons and attached schedule.

26 By submissions and a schedule of facts admitted by the defendant, Mr Traianou admitted the facts I have outlined above.

27 By its submissions dated 12 September 2011, the Dental Board submitted that the numerous instances of breaches of the Order from April 2010 to 2011 could properly be dealt with as a single act of contempt from the continued course of conduct: see par 6. By written submissions on penalty dated 6 October 2011, Mr Traianou accepted that: see par 1. At the hearing on 25 October 2011, counsel for Mr Traianou confirmed this.

28 I turn to the legal principles relevant to determining the appropriate punishment for Mr Traianou's contempt.

29 Criminal contempt of court is the only common law criminal offence in Western Australia: R v Lovelady; Ex parte Attorney General [1982] WAR 65, 66; Briggs v Lunt [No 4] [2011] WASCA 145 [34].

30 By s 97 and s 98 of the Civil Judgments Enforcement Act 2004 (WA), a person who disobeys a judgment requiring the person not to do an act (with the exception of certain acts not relevant in this case) is guilty of a contempt of court.

31 Section 98(4) provides that a person entitled to the benefit of a judgment may request the court to deal with the natural person guilty of contempt under s 98 for that contempt. Unlike contempt by disobedience of a time for payment order (as to which see s 88 s 90), the Act does not regulate the exercise of the power to punish for a contempt under s 98.

32 Order 55 r 4 requires that an application for punishment for contempt of court must be made by a motion on notice to the contemnor for an order that he be committed to prison for his contempt. Rule 4(2) provides that an application for committal for contempt consisting of disobedience to an order of the court may be made by summons to a judge in chambers.

33 By O 55 r 7, the court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine. By O 55 r 8, execution of an order of committal may be suspended.

34 The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107; Miller v Eurovox Pty Ltd [2004] VSCA 211 [29]; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 314.

35 The submissions of the parties invite attention to the distinction between criminal contempt and civil contempt.

36 Generally speaking, contempt by the breach of an injunction is a civil contempt. However, in some circumstances it is a criminal contempt. The distinction between civil and criminal contempt is often difficult to draw and has been described by the High Court as 'in significant respects, illusory': Witham v Holloway (1995) 183 CLR 525, 534. Nevertheless, a distinction has been important in some cases. For example, the distinction has been significant in relation to:

(a) whether the Federal Court had power to make contempt orders under its legislation: AMIEU v Mudginberri;

(b) whether an appeal lay against an order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117; Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231;

(c) whether the contempt application was interlocutory, so that hearsay evidence was admissible: Briggs v Lunt [No 4];

(d) whether there was a right of appeal without leave: R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59; Briggs v Lunt [No 4] [38].

37 However, in my view, in determining the appropriate punishment of Mr Traianou for his contempt, an analysis of whether the proceedings are civil or criminal in nature is not of great assistance.

38 In particular, whether imprisonment is an available option is not controlled by whether the proceedings are criminal. Committal is available in civil proceedings. Counsel for all parties accepted this. Counsel also rightly agreed that it is not necessary to find that the contempt by Mr Traianou was contumacious before a power of imprisonment is available. A contrary approach would be inconsistent with many cases. See, for example, Chief Executive Officer, Department of Environment and Conversation v Szulc [2010] WASC 195; ASIC v Matthews [2009] NSWSC 285. It would also be inconsistent with the generality of O 55 r 7.

39 The determination of the appropriate punishment for contempt is entirely a matter within the discretion of the court. There is no maximum penalty applicable: Kennedy v Lovell [2002] WASCA 226 [5]; Szulc [35]; Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26 [8], [34].

40 Section 6 of the Sentencing Act 1995 (WA) does not apply to the punishment of a person for contempt of court. However, it is established by authority that what is said in that section provides a sound guide in determining the appropriate punishment for contempt: Kennedy v Lovell [6]; Szulc [36], Allbeury [16]. Thus for contempt, as in other spheres, imprisonment is the sentence of last resort.

41 The authorities establish that matters to be taken into account in considering the punishment for contempt of court by disobeying an order of the court include:

(d) whether the contemnor has received or tried to receive a benefit from the contempt;

(e) whether there has been any expression of genuine contrition by the contemnor;

(f) the character and antecedents of the contemnor;

(i) the need for denunciation of contemptuous conduct.

42 See, for example, Wood v Staunton (No 5) (1995) 86 A Crim R 183; Kennedy v Lovell [14]; Szulc [37]; Allbeury [16], [22].

43 The generally applicable legislative provisions about parole do not apply to a sentence of imprisonment for contempt. Thus, a contemnor serves the full term of any sentence imposed.

44 Recently, Martin CJ has observed that not all deliberate or wilful breaches of a court order will attract a custodial sentence, but the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court: Szulc [44].

45 The breadth of the circumstances giving rise to contempt mean there is no tariff: Allbeury [34].

46 The parties' submissions referred to a number of cases. I have taken into account the dispositions of those cases, in their circumstances, in determining the appropriate punishment in this case. But, in the end, every case must be determined on its own facts and circumstances.

47 I will now consider the matters relevant to the punishment for contempt as I have listed them.

Relevant considerations (a) and (b) the seriousness of the contempt and the contemnor's culpability

48 Counsel for Mr Traianou rightly concedes that this is a serious contempt. The breaches of the Order were wilful and deliberate; they were repeated and sustained, not isolated; they commenced immediately following the making of the Order and continued until his contemptuous conduct was discovered.

49 Further, the Orders were granted in favour of a professional regulatory body for the protection of the public.

50 Mr Traianou knew that he was acting in breach of the Order of the court. He signed a consent to the court's Order and swore an affidavit the day before the Order was made, expressing his consent to the injunction granted. The Order was endorsed with the penal notice set out at [14].

51 Mr Traianou says in his letter to the court that he was 'unaware of the seriousness and the consequences of defying a court order'. That may be so. But it is clear that, as his counsel admitted, Mr Traianou knew that what he did for more than eight months involved direct contravention of the Order. Mr Traianou made a decision to, in effect, ignore the Order and to earn his living from the practice of dentistry - the very thing the Order prohibited him from doing.

(c) and (d) the reason or motive for the contempt and whether the contemnor benefited from it

52 Mr Traianou says that there were several reasons that he committed the contempt. Primarily, he says that it was borne of financial stress. He was responsible for three households, as he had to provide support to his mother and his exwife. He characterises the reason for his contemptuous conduct as 'need not greed'.

53 Since his contemptuous conduct was discovered, Mr Traianou has sold his house and is progressing alternative means of earning an income. There is no satisfactory explanation for why he did not take these steps in April 2010.

54 Mr Traianou also says that he was too embarrassed and ashamed to tell patients and family that he had been deregistered. That is not a satisfactory excuse for flouting the Order of the court. Further, he says that patients pressured him to continue treating them and that he was 'motivated by genuine concern for their ongoing treatment'. I am unable to accord significant weight to the latter proposition. I do not accept that Mr Traianou felt that his former patients had no acceptable alternatives for dental treatment. If he did, he is misguided in that respect.

55 Mr Traianou benefited significantly from his contemptuous conduct. It was the source of his income for the period of that conduct.

56 Mr Traianou submits that from the earliest date he made full admissions and apologised for his conduct, referring to his letter of 25 January 2011. I do not accept that that letter involved full admissions and a 'profuse' apology. As I have said, in the letter and the conversation that preceded it, Mr Traianou did not admit the extent of his conduct in breach. I accept the Dental Board's submission that the language of the expression of remorse is instructive. It is expressed as being remorse 'given the penalties that may arise'.

57 Mr Traianou made full admissions of his contempt on this application. I give him credit for that, and accept that it is an indication of his remorse.

58 Mr Traianou has now given a full apology to the court. I accept its genuineness. However, it is not to be overlooked that this has come after the detection of his conduct, for which he faces the prospect of imprisonment.

(f) and (g) personal antecedents and personal circumstances

59 Mr Traianou was a dentist from 1992 until 2008. He has no prior criminal record. He has never been punished for contempt. However, his conduct in breaching his undertaking (see [9]), and in practising dentistry after he was struck off (see [11]), is significant background to this contempt.

60 The numerous character references provided to me demonstrate that many of Mr Traianou's former patients hold him in extremely high regard.

61 Mr Traianou has a 16yearold daughter who will undoubtedly be disadvantaged if he is imprisoned. That is not a matter to which I give great weight. Regrettably, the families of those who engage in conduct that calls for imprisonment will often suffer from the need to punish such conduct appropriately.

(h) and (i) the need for personal and general deterrence, and denunciation

62 Counsel for Mr Traianou submits that the need to deter Mr Traianou from further breaches of court orders is a paramount consideration in sentencing. Against the background of Mr Traianou's conduct in 2008, 2009 and 2010, I agree with that submission.

63 General deterrence and the need for denunciation are also of significant weight in determining the appropriate punishment for contempt by breach of an injunction in circumstances where the breach was wilful, deliberate and sustained over more than six months.

64 In my view, a fine is an inappropriate punishment in this case. It does not reflect the serious nature of the contemptuous conduct and its deliberate and sustained character.

65 Further, in circumstances where Mr Traianou has recently been made bankrupt, a fine would not be appropriate. In any event, regardless of Mr Traianou's means, I do not consider a fine would be appropriate in this case.

66 To my mind, the question is whether execution of any committal should be suspended. That occurred in the first instance in ASIC v Matthews, in National Australia Bank Ltd v Juric (No 2) [2001] VSC 398, Commissioner for Fair Trading v Holz [2006] WASC 202 (S) and in Commissioner for Consumer Protection v Healy [2011] WASC 36. In none of those cases was the contemptuous conduct as serious as this case.

67 With considerable hesitation, I have come to the view that execution of the order for imprisonment should be suspended. There is room for the view that the wilful and sustained character and the scale of the contemptuous conduct, in the context of Mr Traianou's earlier conduct in breach of his undertaking and following his striking off, and the need to vindicate the authority of the court's orders, weigh decisively against suspension. However, in the end, I have come to the contrary view. A suspended term of imprisonment is a sentence of a term of imprisonment nonetheless, and is only imposed when a term of imprisonment is warranted: R v GP (1997) 18 WAR 196, 233. Under the Sentencing Act 1995 (WA), a suspended term of imprisonment is the second most serious sentencing option; see R v Liddington (1997) 18 WAR 394. As I have said, the Act does not apply to punishment for contempt. Nevertheless, I think the seriousness of a suspended sentence is reflected in its place in the hierarchy of sentencing dispositions.

68 Further, a suspended imprisonment will serve the important object of personal deterrence. Should Mr Traianou breach the Order during the period of suspension, he would be required to serve the suspended term of imprisonment, as well as facing additional punishment for that further breach.

69 In my view, Mr Traianou should pay the Board's costs on an indemnity basis. This application is brought about by Mr Traianou's deliberate and sustained conduct in breach of the Order. The character of the conduct seems to me to warrant the exercise of the exceptional power to order costs on an indemnity basis.

(1) Mr Traianou be committed to prison for 3 months for his contempt;

(2) execution of Mr Traianou's committal be suspended for a period of two years subject to his compliance with the Order during that period; and

(3) Mr Traianou pay the Dental Board's costs of the application on an indemnity basis.