1 I find Dr George Varnavides guilty of the following charge directed against him:

(a) In VCAT Proceeding V2/2004, on 12 August 2004, Justice Morris, President, ordered that you were ordered not to practice dentistry, as defined in the Dental Practice Act 1999, in Victoria until 16 January 2006 or further order.

(b) You were aware of the above Order of the Tribunal and, in wilful disobedience of the Order, you have continued to practice dentistry at 405 Rathdowne Street, Carlton, subsequent to 12 August 2004.

2 I fine Dr George Varnavides the sum of $10,000, which must be paid to the tribunal within two months of the date of this order.

3 I commit Dr George Varnavides to prison for a term of six months, subject to a condition that the term be suspended until 16 January 2006 (when this order will expire), provided that if Dr George Varnavides is found guilty of an offence under section 61(1) of the Dental Practice Act or he is found guilty of a further contempt of the order made by the tribunal on 12 August 2004 the condition will be inoperative.

4 The respondent must pay the costs of the applicant in this proceeding, to be assessed in accordance with Scale "D" of the County Court scales on a party/party basis by the Principal Registrar.

(given orally at the hearing and subsequently revised)

Reasons given for rejecting first no case submission

1 The Dental Practice Board of Victoria ("the Board") has made application to the tribunal that Dr George Varnavides be held to be guilty of contempt of the tribunal.

2 On 17 November 2003 the Board ordered that Dr Varnavides' registration as a dentist be suspended from 28 November 2003 until 28 November 2005. Dr Varnavides appealed to the tribunal against this order. This order was subsequently varied by the tribunal on 17 December 2003 to be a period of suspension from 16 January 2004 to 16 January 2006.

3 On 12 August 2004 the Board made application to the tribunal in Proceeding V2/2004 for Dr Varnavides to be held in contempt of the order made by the tribunal on 17 December 2003. I declined to make the order sought on that day, and adjourned the proceeding. However I was persuaded to make an alternative order, pursuant to section 123 of the Victorian Civil and Administrative Tribunal Act 1998, in this form:

Dr George Varnavides is ordered not to practise dentistry as defined in the Dental Practice Act 1999 in Victoria until 16 January 2006 or further order.

4 The Board has now made a further application for Dr Varnavides to be held in contempt of the tribunal. This is the current proceeding, V6/2004, in which Dr Varnavides has been charged as follows:

(a) In VCAT Proceeding V2/2004, on 12 August 2004, Justice Morris, President, ordered that you were ordered not to practice dentistry, as defined in the Dental Practice Act 1999, in Victoria until 16 January 2006 or further order.

(b) You were aware of the above Order of the Tribunal and, in wilful disobedience of the Order, you have continued to practice dentistry at 405 Rathdowne Street, Carlton, subsequent to 12 August 2004.

Dr Varnavides has pleaded not guilty to the charge.

5 The Board relies upon affidavits of Patrick Tuohey sworn 31 August 2004, Anthony Maurice Julian Roseman sworn 7 July 2004 and 31 August 2004 and Anne Marguerete Marie sworn 30 August 2004. The critical evidence is that contained in Ms Marie's affidavit. She is a private investigator. She attended at Dr Varnavides' dental surgery on 24 August 2004. It is unnecessary to set out in detail the content of the affidavit of Ms Marie; it is sufficient to summarise the evidence in the following paragraphs.

6 Ms Marie made a phone call to the surgery at 405 Rathdowne Street, Carlton and a man told her that he could see her on the following Thursday. She says that in that phone call the man also advised that the nature of the problem, as described by her over the phone, made it sound like she would need a root canal filling and a crown. The man also suggested that she rinse her mouth with a cup of warm water with half a teaspoon of salt to ease the pain. She says that the man also suggested that, if she needed pain relief, she could drop into the surgery and the man would write out a script for Panadeine Forte and some penicillin. As the evidence currently stands the man who made these statements over the phone would appear to be Dr Varnavides.

7 Ms Marie attended at the surgery at 405 Rathdowne Street, Carlton and was asked to sit in a dental chair where her mouth was examined. As her evidence currently stands, she was told by Dr Varnavides that a filling was missing in her mouth, it was inflamed and an abscess had formed. Dr Varnavides is said to have placed what was described as oil of cloves, impregnated in a gauze, possibly with some other inert substance, into the groove of a tooth. Subsequently Dr Varnavides took an x-ray of Ms Marie's teeth. At the completion of the consultation Dr Varnavides wrote out a prescription for Panadeine Forte and Amoxocyllin, stating that the penicillin was for the infection and the Panadeine Forte was to be taken when Ms Marie was in pain. Subsequently payment was made by Ms Marie for the services rendered; with a bill rendered in the sum of $175. The amount was broken up as follows:

8 Counsel on behalf of Dr Varnavides has submitted that, as the evidence currently stands, I could not be satisfied that dentistry was practised contrary to the order I made on 12 August 2004. Two reasons have been advanced. The first reason turns on the definition of dentistry in the Dental Practice Act 1999.

9 Section 3 of the Dental Practice Act defines "dentistry" to mean:

The diagnosis or management of conditions of the mouth of a person, the performance of any invasive or irreversible procedure on the natural teeth or the parts of a person's body associated with their natural teeth or the provision to a patient or the insertion or intraoral adjustment of artificial teeth or dental appliances for a patient.

10 The definition of dentistry is significant because section 61(1) of the Act provides that a person must not practise dentistry unless he or she is registered as a dental care provider under the Act. A substantial penalty is imposed for breach of that provision.

11 The first no case submission is that the definition of dentistry is confined to the diagnosis or management of genuine "conditions" of the mouth and does not include feigned conditions. Mr Alger contends that the condition presented by Ms Marie was a feigned condition. For the purposes of considering the submission I accept that contention. The second no case submission amounts to this: that what was done really amounted to first aid and did not go beyond that.

12 I propose to deal with the second submission first. Both section 61(1) and my order of 12 August 2004 revolve around the practise of dentistry. There are two key words: "practise" and "dentistry". The second is defined in the Act; the first is not.

13 There is no doubt that a purpose of the Dental Practice Act is to regulate the provision of dental care services in Victoria in order to protect the public. But that objective is not to be achieved at the expense of common sense and circumstances that occur in day to day family life. For example, normal parental care, or care by loved ones, in relation to teeth and conditions of the mouth is not intended to be caught in the net of "practice" of dentistry. Thus I cannot imagine that the application of a cold sore cream by a parent to a child's mouth would constitute the practice of dentistry. Likewise a parent who wobbles a child's first tooth, to see if it is ready to fall out, would not be engaging in the practice of dentistry.

14 Thus it might be said that the application of oil of cloves to a tooth might, in some circumstances, not be within the meaning of the practice of dentistry as defined in the Act. In Gardner; re BWV[1], a case concerned with medical treatment, I observed that there was some force in a submission that whether or not a particular procedure is a "medical" procedure depends upon whether the medical knowledge upon which it is based has become so widespread within the community that it might now be regarded as common knowledge, not medical knowledge. A similar argument could be mounted in respect of the practice of dentistry.

15 The practice of a profession involves a course of conduct. This is why parental first aid does not constitute the practice of dentistry, contrary to the Dental Practice Act. Evidence of one event may or may not be sufficient to demonstrate such a course of conduct. The nature of that event will be crucial.

16 In support of his no case submission, Mr Alger emphasised the treatment using oil of cloves; saying this was no more than first aid. But that treatment can not be considered in isolation. In my opinion, based on the material before me so far, the facts must be considered in total; and each particular fact must be considered in context.

17 Looking at all the facts, in context, there are certain things that stand out to take this case out of the category of first aid, or parental assistance, or loved one's assistance. These include:

* the fact that an appointment was made (albeit the actual treatment on the day in question was, on the facts before me, pursuant to an invitation to come in early if need be, rather than the appointment);

* the place where the examination took place, namely a dental surgery;

* the language which was used by Dr Varnavides in explaining the dental problem;

* the identification of particular circumstances in the mouth;

All these things, considered together, take the matter well beyond the first aid category. I reject the second submission that what was done amounted to no more than first aid or pain relief. In my opinion the events of 24 August 2004, taken together, amounted to the practice of dentistry.

"Conditions" of mouth do not include feigned conditions

18 Turning to the first submission, Mr Alger said that the word "conditions" in the definition only applied to genuine conditions, and did not include feigned conditions. I cannot see any basis for upholding this submission. In its context the word "conditions" simply means "circumstances" or "things". Hence the definition would include the diagnosis or management of things that are in the mouth or circumstances of the mouth. In its context, the word "conditions" is a general word that is all embracing in nature.

19 It might be that the condition of a particular mouth is completely healthy; yet even in that situation an examination of the mouth, in order to detect whether there is something unhealthy or the appropriate method of management of the mouth to continue it to be healthy, would fall within the definition. (It does not follow that every oral inspection or procedure would involve the "practice" of dentistry).

20 Mr Alger could not cite any authority in support of his contention. That is not fatal to his argument; but it certainly does not assist the argument.

21 I find that the evidence before me at this stage is sufficient to conclude that Dr Varnavides did engage in the practice of dentistry.

22 In reaching these findings, at this stage, I have not had to rely on either Exhibit B or Exhibit C. I find it difficult to see how Exhibit C is relevant. I can see how Exhibit B is relevant but it is not necessary to rely on it to reach the conclusions I have reached.

23 Mr Alger has submitted that I should, in my discretion, exclude the evidence given by Ms Marie. He puts that argument on two bases: namely that it would be unfair to Dr Varnavides to allow the evidence to be considered; and, second, that by reason of the improper conduct of Ms Marie in obtaining the evidence, it would be contrary to public policy to allow it to be considered.

24 The tribunal has an obligation to act fairly[2], but it is not bound by the rules of evidence[3]. It is unnecessary to consider whether, in this is a case, the tribunal should nonetheless regard itself as being bound by the rules of evidence, because in the circumstances of this case the obligation to act fairly operates in a similar way to the rules of evidence. In other words an obligation to act fairly has the same general effect as the rules of evidence have in relation to excluding evidence as a matter of discretion on either of the two bases identified by Mr Alger.

25 I do not propose to set out the legal principles in any detail. I was referred to a number of cases, including Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Ridgeway v The Queen [1995] HCA 66; (1995) 129 ALR 41, The Queen v Swaffield [1998] HCA 1; (1997) 192 CLR 159 and DPP v Moore [2003] VSCA 90. I accept the legal principles outlined in those cases for the purposes of the present matter. In my opinion in order to ascertain whether the admission of evidence would be unfair, and hence should be excluded as a matter of discretion, or whether it was improperly obtained and hence should be excluded as a matter of public policy, require one to look at the whole context.

26 Mr Alger relied principally on the fact that Ms Marie stated a number of things which were untrue in order to obtain her appointment and be examined. These included:

* when she rang the surgery she feigned upset and pain;

* when she attended at the surgery she continued to feign upset and pain;

* she told Dr Varnavides she was looking for accommodation;

* she said she had learned about Dr Varnavides in a coffee shop; and

* she told Dr Varnavides that a broken filling in a tooth was causing pain.

But these lies though need to be considered in the wider context, as I have observed.

27 Part of that context is that the Board had a suspicion, based upon reasonable grounds, that Dr Varnavides was continuing to practise dentistry in breach of the order I made on 12 August 2004. Having regard to the history of the making of that order it was reasonable that the Board, holding such a suspicion, take practicable measures available to it to investigate the truth or otherwise of those suspicions.

28 A further relevant factor is that the practising of dentistry, contrary to the order I made, is a serious matter. It is, of course, serious to practise dentistry when registration is suspended. But the seriousness of Dr Varnavides practising dentistry after 12 August 2004 is magnified by the fact that on that occasion I specifically ordered him not to do so. Further, in making that order I strongly warned him of the importance of complying with the order. (I think these factors are more important than the history of the matter going back prior to the time that the tribunal became seized of this case and I have not needed to rely upon that history.) I accept the submissions made by Mr Monahan that the various circumstances that existed at the time Ms Marie conducted her investigations were such that the Board had a real obligation to investigate the matter seriously.

29 Another relevant factor is that the evidence is that the door to the dental surgery was locked; and, further, that the manner of the person who answered the phone at the dental surgery was careful. I infer from these facts that if evidence was to be obtained that Dr Varnavides was acting contrary to the order I made, there would need to be an element of charade or undercover in order to bring that out.

30 I also accept Mr Monahan's submission that dentistry is a practice where the patient usually initiates the contact. What occurred here was that Ms Marie did initiate the contact and, in doing so, she made statements that can be characterised as "white lies". The purpose of those statements was not to trick Dr Varnavides into practising dentistry when he would not practise dentistry upon a real patient who presented at the surgery. But, rather, was to establish whether if a real patient did present, Dr Varnavides would treat that real patient.

31 The sorts of lies that were told were generally innocuous. Perhaps the only lie that I might regard as serious is the lie that Ms Marie was in a state of pain. In some circumstances that might be sufficient to make the evidence unfair. For example if the allegation was that Dr Varnavides and Ms Marie were on a bushwalking trip and were in a remote area of Tasmania when Ms Marie feigned pain and asked for Dr Varnavides to do something about the tooth, I think that circumstance would be entirely different than the one which presented in this case. In that instance it would be unfair to accept the evidence, based upon a false statement about pain, because the circumstances that might exist in a remote location, where there was no other effective way of obtaining relief, would amount to trickery. The circumstances here did not amount to that. Melbourne is a big city and it must have thousands of dentists practicing in it. The refusal of a patient presenting with pain does not mean that the pain would necessarily be suffered for a long period of time. There are other opportunities that would be available to meet that circumstance.

32 I accept the submission made by Mr Monahan that what Ms Marie did was create an opportunity and no more. It was Dr Varnavides who decided to take up that opportunity and then initiate many of the elements that I have already found constituted practising dentistry. These include examining the mouth, treating with cloves, taking the x-ray, writing the prescription and asking for payment.

33 So I do not regard the evidence as requiring exclusion, as a matter of discretion, because it is unfair. Further, I do not regard the conduct of Ms Marie as improper in the sense identified in the authorities. It would not be contrary to public policy to allow the evidence to be considered. The evidence will be taken into account.

[Upon no further evidence being led, Dr Varnavides was convicted of the charge.]

34 Dr Varnavides, I have found that you are guilty of contempt of the tribunal for the reasons that I have already articulated when ruling on the submissions put by Mr Alger.

35 The circumstances of this contempt are that, on 12 August 2004, I ordered that you not practise dentistry, as defined in the Dental Practice Act, in Victoria, until 16 January 2006 or further order. When I made that order I gave reasons, which were recorded in writing. I am satisfied that the order and reasons were brought to your attention. In those reasons I stressed that if the order was disobeyed there was a potential for serious consequences to flow from the breach of the order. I pointed out the penalties that could be imposed for disobedience of an order, including the fact that I could commit you to prison for a term of not more than five years or fine you a sum up to $100,000.

36 I am satisfied that the order, which I made and which you were aware of, was a clear order, an unequivocal order. I am also satisfied that you deliberately disobeyed the order on 24 August. By that I mean you must have known that you were not only putting yourself in breach of the Dental Practice Act, but also you were disobeying the order of the tribunal when you decided to treat Ms Marie on that day.

37 It is important that orders of the tribunal be complied with. If they are not complied with the many orders the tribunal makes each day could be flouted with impunity. When there is a serious case of an order being disobeyed, as this is, it is necessary for the tribunal to do something about it, otherwise future orders may be treated without any seriousness at all.

38 Also, I note that a purpose of the order was to reinforce the provision in section 61 of the Dental Practice Act, in order to achieve the aims of that Act. An underlying purpose of the Act is that the people of Victoria be protected by those who purport to practise dentistry but who, for one reason or another, should not be permitted to do so. In your case the reason was not that you were not qualified as a dentist but, rather, that in practising your dentistry over the years you had been subject to disciplinary proceedings before the Board, which culminated in your being suspended from practice for two years.

39 The importance of reinforcing the authority of the tribunal's orders, and the importance of protecting the public, mean that it is necessary that there be a serious consequence as a result of your disobedience.

40 That said, I find that I must mainly focus upon the events of 24 August 2004, because it is the evidence of what occurred on that day that constitutes the contempt of the tribunal's order. I am not proposing to take into account evidence as to what might have occurred between the time your registration was suspended and 12 August 2004, when I made the order. And although I regard the disciplinary offences before the Board as relevant, they are primarily directed, not at your disobedience of the tribunal, which is the issue for me today, but rather towards your poor record as a dentist. Although relevant, I do not place great weight upon them.

41 There are mitigating factors. The principal one is that you have apologised to the tribunal. You have also said, in strong and passionate language, that you will not practise dentistry again whilst you are suspended. It is possible that these are the empty words of a person who finds that it is convenient to utter them. On the other hand, I am inclined to accept, on balance, that you mean what you said. Although, on balance, I think you mean what you said today, I am worried as to your ability to carry that into effect, or whether temptation, or other circumstances, might be such as to lead you to depart from that promise. Therefore, even though on balance I am inclined to accept that you mean it, I do not think that is sufficient reason not to punish you for the contempt.

42 Another mitigating factor is your age. Age sometimes makes people rigid and unreasonable; sometimes it mellows one. It is hard for me to assess the effect it has on you, but I think it is relevant to take it into account as a mitigating factor, especially combined with three other matters: your poor health; the fact that you are married with three children, all of school age; and the fact that I am told that you have no prior convictions.

43 A further mitigating factor is that the incident that occurred on 24 August 2004 was one where the patient presented in apparent pain. There is a temptation for a person to take action when someone is in pain in order to relieve it. I have found that you should not have given in to that temptation, but you should have obeyed the order. In forming that view, as I have already pointed out, the temptation was of a different nature to temptation that might be placed in front of you in remote circumstances.

44 In all the circumstances, taking into account the seriousness of the matter and then balancing that with the mitigating factors, I have decided that I should impose two penalties upon you, with the second penalty being subject to a condition. The first penalty is that I fine you $10,000. The second penalty, which is subject to a condition, is that I commit you to prison for a term of six months and the condition is that that term be suspended until 16 January 2006 (when the order will expire), provided that you are not found guilty of an offence under section 61(1) of the Dental Practice Act and also provided you are not found guilty of a further contempt of the order made by the tribunal on 12 August 2004.

45 The effect of the first order is that you will be required to pay the sum of $10,000 and I will determine a date by which that must be paid. That is a fine to the consolidated revenue of the State and that is in addition to paying costs.

46 As to the sentence committing you to prison, effectively I have used the power in section 130 of the Victorian Civil and Administrative Tribunal Act 1998. The exercise of this power would appear to be consistent with the decision of the Federal Court of Australia in ACCC v Goldstar Corporation Pty Ltd [1998] FCA 1441.

47 Hence, you are free to leave. But if you are found guilty of breaching section 61(1), which makes it an offence to practise dentistry in Victoria unless you are a registered dental care provider, or alternatively you are found guilty of a further contempt of my order, automatically on either of those two events, the suspension of the gaol term does not operate. Hence, automatically, on either of those two things, a warrant will be issued for your arrest and you will be imprisoned for six months. Further, that will be in addition to any punishment that results from the further offence. So, if you do further offend, it might be that the punishment for the further offence is six months in prison. To that would be added the six months I am now committing you to, on condition, meaning that you would need to serve 12 months in prison.

48 I am taking the course I have taken because it is necessary to impose some real pain immediately upon you by way of fine, although in the scheme of things the amount might be thought to be relatively modest. More importantly, I want the Sword of Damocles hanging over your head. I want you to be in a position where you have every incentive to obey the law and my order; and where there is a strong disincentive for you to disobey the law and my order.

49 The sum must be paid to the tribunal within two months of the date of this order.

[1] [2003] VSC 173, at [75].

[2] Victorian Civil and Administrative Tribunal Act 1998, section 97.

[3] Victorian Civil and Administrative Tribunal Act 1998, section 98(1)(b).