That the Applicant be fined $5,000 and that his registration as a dental care provider be suspended for a period of 90 days.

That the Applicant be fined $7,500 and that his registration as a dental care provider be suspended for a period of 180 days.

4. The periods of suspension in relation to Mr Michael Schoenfeld and Mrs Annetta Moussa are to be served concurrently with the period of suspension in relation to the Applicant's failure to respond to correspondence. This means that the total period of suspension of the Applicant will be for a period of 180 days.

5. The Applicant's suspension is to commence on the 3rd January, 2006.

6. In relation to each matter, the Applicant is reprimanded and cautioned in the terms expressed by the Panel as set out in paragraph 38 of my reasons for decision.

Dr I. Freckleton of Counsel, instructed by Phillips Fox, Lawyers

Mr P. Monahan, Solicitor, Monahan & Rowell, Lawyers

1 Before the Tribunal is an application by Leonid Exler ("the Applicant"), a dental practitioner, for review of findings and determinations made, in relation to him, by a panel ("the Panel") appointed pursuant to s.45 of the Dental Practice Act ("the Act") to conduct a hearing into several complaints made against the Applicant. The findings made by the Panel resulted in it determining that the Applicant be suspended from registration as a dental practitioner for six months and that he be fined, in the aggregate, $30,000. He was also reprimanded.

2 The matter comes before the Tribunal by reason of the provisions of s.58 of the Act. In relation to the conduct of the hearing before me, the parties agreed concerning the following matters:-

1. That the hearing proceed by way of reliance by both parties on the three volumes of materials filed pursuant to the provisions of s.49 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").

2. That neither party required oral evidence to be led before me.

3. That as part of the s.49 materials, the parties relied upon the transcript of proceedings before the panel at its hearings on the 4th May and the 29th and 30th September, 2004.

4. That the parties accepted the findings of fact made by the panel in its reasons delivered on the 25th May, 2005.

3 Before the Tribunal, the Applicant has challenged three only of four ultimate findings and determinations made against him by the Panel. There was a fifth finding made by the Panel which was favourable to the Applicant. In summary form I set out the findings made by Panel, the first three being those sought to be reviewed.

The Panel found the Applicant had engaged in unprofessional conduct of a serious nature. Before the Tribunal the Applicant conceded that his conduct was unprofessional, but submitted it was not of a serious nature.

The Panel found that the Applicant had engaged in unprofessional conduct of a serious nature. The Applicant conceded that his conduct was unprofessional but submitted it was not of a serious nature.

The Panel found that the Applicant had engaged in unprofessional conduct of a serious nature. The Applicant does not challenge this finding.

The Panel found that the Applicant had engaged in unprofessional conduct which was not of a serious nature. The Applicant has not challenged this finding.

The Panel found that the Applicant had not engaged in unprofessional conduct.

4 In relation to findings 1, 2 and 3 above, the Applicant has submitted that the penalties imposed were punitive and manifestly excessive and were beyond the power of the Panel to impose.

5 As a matter of completeness I should point out that the Panel had before it also an allegation of unprofessional conduct against the Applicant relating to his treatment of a patient Ann Williams. The Panel did not make any formal finding concerning this allegation. This appears to have been an inadvertent omission, for, at paragraph 34 of its reasons, the Panel said:-

"Dealing specifically with the allegations made concerning Mrs Williams and Ms Loke, they were not upheld not so much because the Panel did not believe either Mrs Williams or Ms Loke, but because the Panel could even not be satisfied according to the Briginshaw Test or, if it was, the shortcomings of Dr Exler could not be properly described as unprofessional conduct within the meaning of the Act."

6 Clearly, the Panel intended to record a finding that the Applicant had not engaged in unprofessional conduct in relation to Mrs Williams' treatment.

7 The Board determined that, consequent upon its findings in relation to the matters identified as 1, 2 and 3 above, the Applicant's registration as a dental care provider be suspended for 180 days from the 1st July, 2005, and that, in each case, he be fined $10,000 and be reprimanded. A reprimand was also imposed in relation to the 4th matter listed above.

8 The following are the grounds set out in the application for review:-

"6. The grounds for review in this review application are:

(a) The Panel's finding that Dr Exler engaged in unprofessional conduct of a serious nature in respect of treatment given to Mr Schoenfeld is in error;

(b) The Panel's finding that Dr Exler engaged in unprofessional conduct of a serious nature in respect of treatment given to Mrs Moussa is in error;

(c) The Panel's determination to suspend Dr Exler's registration as a dentist for 180 days commencing 1 July 2005 is excessive and unwarranted in all the circumstances;

(d) The Panel's determination to suspend Dr Exler's registration as a dentist for 180 days commencing 1 July 2005 is unlawful as it fails to indicate in the determination or the reasons for the determination what period of the suspension applies to any of the individual findings of unprofessional conduct of a serious nature.

(e) The Panel's determination that Dr Exler be fined $10,000 for each of findings 13, 23 and 27 is excessive and beyond power."

9 The functions of the Tribunal on a review such as this are set out in s.51 of the VCAT Act. The authorities have described such a review as one on the merits and, as such, requires the Tribunal to reach the correct or preferable decision in the light of the evidence before it, without making any presumption of the correctness of the decision under review.

10 The manner in which a formal hearing is to be conducted by a panel is to be found in s.46 of the Act. Section 47 of the Act recites the findings and determinations open to the panel. Section 51 of the VCAT Act provides that the Tribunal has all the functions of the Panel as decision-maker. It provides also that the Tribunal may affirm, vary, or set aside the decision under review and, if it be the last, make its own decision or remit the matter to the Panel for reconsideration.

11 The Applicant was born and educated in Russia. He qualified as a dentist at the Moscow Medical Institute in 1980. He came to Australia in 1982 and obtained registration as a dentist in Victoria in 1990. Commencing practice on his own in 1991, over a period of years, he opened practices in several Melbourne suburbs. In 1994, he established his primary practice at 1A Kent Street, Brighton. However, thereafter he continued to see patients in other suburban locations. Over the years he has been the subject of findings adverse to him after appropriate hearings both by the Panel established by the Dental Practice Board and, its predecessor, the Dental Board.

12 On the 4th December, 1996, the Applicant, having been convicted of a breach of the Commonwealth Financial Transactions Reports Act, appeared before the Dental Board. The Board resolved to remove the Applicant's name from the Register of Dental Practitioners for what was a period of 2 months. In July, 1997, the Applicant was found guilty of what I can conveniently call false advertising, and was fined $6,000. He received also a reprimand and had a condition imposed upon him in relation to advertising.

13 In November, 2001, a Panel, appointed under the Act, found the Applicant guilty of a number of charges of present relevance, with findings that he provided dental treatment to a patient without obtaining her prior consent and that he failed to advise that patient that he was not recognised as a dental provider by HBA. Overall, he was on this occasion fined a total of $34,000 and, in relation to findings of professional misconduct and unprofessional conduct of a serious nature, in the aggregate he was suspended from dental practice for a period of three months. In relation to each of two findings that he was guilty of unprofessional conduct not of a serious nature, he was reprimanded. Finally, the Panel addressed a caution to the Applicant in direct, clear and strong terms, which I shall reproduce hereafter.

14 Insofar as concerns this hearing, the following are the matters alleged against the Applicant. The allegations were contained in a letter to the Applicant dated the 20th July, 2004. I have not set out the detail of the allegations concerning the complainants Vakoussevitch, Williams, and Loke.

(a) At all material times, you have been registered as a dental care provider in Victoria.

(b) During the period from November 2002 to December 2003, you provided dental services to various patients:

(vi) Mr Darrell Jennings and Miss Anastasia Giannakis.

(c) During December 1999, you received a letter from AXA Australia Health Insurance Pty Ltd dated 3 December 1999 (copy attached) which informed you that AXA Australian Health Insurance Pty Ltd (trading as HBA Health Insurance) ("HBA") would cease to recognise you as a provider for payment of benefits to HBA members as from 6 December 1999 for a period of three years, at which time you might reapply for recognition.

(d) In that same letter, you were informed by HBA that benefits would no longer be payable by HBA for services rendered by you to HBA Members after 31 December 1999 (a period of g race).

(e) From that date, you accordingly knew that you had been "de-recognised" by HBA until you applied for recognition after 6 December 2002.

(f) You provided dental treatment to Mr Michael Schoenfeld on 23 November 2002.

(g) Before you commenced that dental treatment, you knew that Mr Michael Schoenfeld was an HBA member.

(h) Before you commenced providing dental treatment to Mr Michael Schoenfeld, you failed to inform him that he would not be able to recover from HBA on your account.

(i) You failed to inform Mr Michael Schoenfeld before commencing the dental treatment that you had been "de recognised" by HBA in December 1999 for a minimum of three years and that you had not applied for recognition since that time.

(j) You accordingly misled Mr Michael Schoenfeld about your relationship with HBA and the likelihood that he would without difficulty be able to recover an appropriate rebate from HBA for such treatment.

(k) This conduct was done with knowledge of the true position between yourself and HBA.

(l) Your conduct also had the potential to cause a financial loss to HBA, which would then be faced (as was in fact the case) with a difficult decision as to whether to reimburse its member for your account, notwithstanding the fact that you were "de recognised" by HBA.

(m) Further, this behaviour was particularly serious in the light of the very relevant earlier finding against you at a formal hearing of the Dental Practice Board of Victoria dated 14 November 2001 "that you, whether by act or omission, engaged in unprofessional conduct not of a serious nature" in that "you misled J.... H..... about the procedure which you would follow in regard to payment of your accounts, and about your relationship with HBA".

(n) You have accordingly engaged in unprofessional conduct as defined in Section 3 of the Dental Practice Act 1999.

(o) Such unprofessional conduct was of a serious nature."

(w) When you treated Mrs Moussa during October 2003, you placed her under unreasonable and unprofessional pressure to agree to further treatment and to make a further appointment to see you for such treatment.

(x) During the course of such treatment, you also placed Mrs Moussa under unreasonable and unprofessional pressure to agree to having a particular tooth extracted against her will.

(y) Further, you failed to obtain the consent of Mrs Moussa (fully and appropriately informed) before commencing the dental work which you performed on 2 October 2003 and failed to provide full and appropriate details of the cost of that treatment in a professional manner.

(z) At the conclusion of the treatment on 2 October, you and/or your staff also placed Mrs Moussa under unreasonable and unprofessional pressure to pay your account immediately.

(aa) Further, you failed to return telephone calls/messages left for you by and on behalf of Mrs Moussa to discuss her concerns about the treatment which you had provided and the fees which you had charged.

(bb) You have accordingly engaged in unprofessional conduct as defined in section 3 of the Dental Practice Act 1999.

(cc) Such unprofessional conduct was of a serious nature."

(ss) You failed to respond, promptly and/or adequately, to the following letters of complaint and the following correspondence:

(i) Letter from Mr Michael Schoenfeld dated 31 January 2003;

(ii) Letter from Mr Michael Schoenfeld dated 3 March 2003;

(iii) Letter from the investigative Officer of the Board dated 14 April 2003, concerning Mr Michael Schoenfeld;

(iv) Letter from the Investigative Officer of the Board dated 30 May 2003, concerning Mr Michael Schoenfeld;

(v) Letter from the Investigative Officer of the Board dated 24 June 2003, concerning Mr Michael Schoenfeld.

(vi) Letter from the Investigative Officer of the Board dated 29 April 2003, concerning Mrs Olga Vakoussevitch;

(vii) Letter from the Investigative Officer of the Board dated 28 May 2003, concerning Mrs Olga Vakoussevitch;

(viii) Letter from the Investigative Officer of the Board dated 30 May 2003, concerning Mrs Olga Vakoussevitch.

(ix) Letter from the Investigative Officer of the Board dated 12 November 2003, concerning Mrs Annette Moussa;

(x) Letter from the Investigative Officer of the Board dated 2 December 2003, concerning Mrs Annette Moussa;

(xi) Letter from the Investigative Officer of the Board dated 15 January 2004, concerning Mrs Annette Moussa;

(xii) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Mrs Annette Moussa;

(xiii) Letter from the Investigative Officer of the Board dated 2 April 2004, concerning Mrs Annette Moussa;

(xiv) Letter from the Investigative Officer of the Board dated 13Apr11 2004, concerning Mrs Annette Moussa.

(xv) Letter from the Investigative Officer of the Board dated 4 February 2004, concerning Ms Ann Williams;

(xvi) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Ms Ann Williams;

(xvii) Letter from the Investigative Officer of the Board dated 2 April 2004, concerning Ms Ann Williams;

(xviii) Letter from the Investigative Officer of the Board dated 13 April 2004, concerning Ms Ann Williams.

(xix) Letter from the Investigative Officer of the Board dated 16 December 2003, concerning Ms Joyce Yuet-Moi Loke;

(xx) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Ms Joyce Yuet-Moi Loke;

(xxi) Letter from the Investigative Officer of the Board dated 2 April 2004, concerning Ms Joyce Yuet-Moi Loke;

(xxii) Letter from the Investigative Officer of the Board dated 13 April 2004, concerning Ms Joyce Yuet-Moi Loke.

(xxiii) Letter from the Investigative Officer of the Board dated 30 October 2003, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxiv) Letter from the Investigative Officer of the Board dated 2 December 2003, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxv) Letter from the Investigative Officer of the Board dated 15 January 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxvi) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxvii) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxviii) Letter from the Investigative Officer of the Board dated 24 February 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxix) Letter from the Investigative Officer of the Board dated 2 April 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis;

(xxx) Letter from the Investigative Officer of the Board dated 13 April 2004, concerning Mr Darrell Jennings and Miss Anastasia Giannakis.

(tt) Your failure to respond promptly to such letters of complaint, and letters from the Investigative Officer of the Board, constitutes unprofessional conduct as defined in section 3 of the Dental Practice Act 1999;

(uu) Your failure to respond to such letters appropriately constitutes unprofessional conduct as defined in section 3 of the Dental Practice Act 1999;

(vv) Such unprofessional conduct was of a serious nature."

15 Before the Panel, and again before the Tribunal, the Applicant admitted the allegations contained in Clauses (c), (d), (e), (f), (g), (h), (i) and (ss). The admission relating to (ss) is significant that it accepts that there was a failure on the Applicant's part to reply properly and/or adequately to some thirty letters written to him by either the Complainants or the Board between January, 2003 and April, 2004. As I have noted, the Applicant accepts the findings of fact made by the Panel in its reasons. I set out in summary form a number of those findings.

16 Mr Michael Schoenfeld:

That the Applicant knew that he was "derecognised" by HBA and that Schoenfeld was an HBA member when the Applicant treated him on 23rd November, 2002. That the Applicant misled Schoenfeld about the Applicant's relationship with HBA. That the Applicant's behaviour was "particularly serious" because of an earlier Panel finding that he had misled a patient about his relationship with HBA. In that regard, I refer to the findings of the Panel set out on pages 1 and 2 of its findings, being paragraphs 3 to 12 inclusive.

17 Mrs Annetta Moussa:

That the Applicant placed this patient under unreasonable and unprofessional pressure in relation both to proposed treatment and payment of her account. That the Applicant failed to obtain the patient's full and appropriately informed consent before commencing treatment. That the Applicant failed to return the Complainant's telephone calls. The detail of those findings are set out at pages 1 and 2 of the Panel's reasons and are contained in paragraphs 18 to 22 thereof.

18 Applicant's affidavit - that it was false insofar as it contradicted Schoenfeld's evidence (see reasons, page 20 at paragraph 37).

19 Applicant's patient records - that the Applicant falsified his patient records in relation to Schoenfeld (paragraph 37, page 20) and Moussa (paragraph 41, page 20).

20 Correspondence - that there were numerous letters which raised serious matters to which the Applicant did not respond over a lengthy period. When he did respond, often it was "simply to provide a further excuse as to why he should not respond" (paragraph 42, page 21 reasons).

21 Mr Michael Schoenfeld:

The Complainant attended at the Applicant's surgery on one occasion only, namely on the 23rd November, 2002. The Complainant informed the Applicant prior to treatment commencing that he was an HBA member. The Complainant has made the complaint that the Applicant did not inform the Complainant that he was not recognised by HBA until the Applicant had concluded the Complainant's treatment. By letter dated 3rd December, 1999, HBA informed the Applicant that it would cease to recognise him as a provider for payment of benefits to HBA members from 6th December, 1999 for a period of 3 years, after which time he might apply for recognition.

22 Mrs Annetta Moussa:

This Complainant sought a consultation with the Applicant for the purpose of obtaining advice about cosmetic dentistry. When she sought the consultation, the Complainant was informed that the cost of such an appointment would be $40.00. Whilst the Complainant was at his surgery, the Applicant put the Complainant under sustained pressure to have a tooth extracted. She was at his rooms for some 3 hours and, when pressured to pay an account for $280.00, she did so, so that she might leave his premises. A summary of the facts found by the panel is set out at paragraphs 40 and 41 at page 20 of its reasons.

23 As I have stated above, there were thirty letters to which the Applicant did not respond in a timely or responsive manner.

24 The Applicant has conceded that he engaged in unprofessional conduct. In relation to the Schoenfeld and Moussa complaints, he contended that the conduct was not of a serious nature. In relation to his failure to answer correspondence, he conceded also that it was unprofessional conduct of a serious nature.

25 The Applicant relied, before the Panel, upon an affidavit, sworn on 28th September, 2004. However, although it is clear that he was present during the substantive hearing before the Panel, and, patently, was present at the hearing before the Tribunal, he did not give oral evidence, either before the Panel or before the Tribunal. In his affidavit, he disputes a number of material facts and seeks to excuse his conduct, particularly in relation to his failure to reply to correspondence. He also seeks to excuse his conduct upon the basis that during the relevant period he was suffering health problems, both physical and emotional. He asserted that he was then under the care of a cardiologist, Dr Gelder, and was receiving counselling from a psychologist. As the Applicant did not contest the findings of fact made by the Panel, and as the panel preferred the evidence of the Complainants, tested in cross-examination, to that to be found in the affidavit of the Applicant, the affidavit requires little comment from me, save to say that I regard it as self serving and unsatisfactory as a response to the allegations made against him.

26 Evidence was received, at the Panel hearing on the 4th May, 2004, from Dr Lebeden, the Applicant's general practitioner, and reports were tendered and relied upon by the Applicant from Dr Gelder and the psychologist, Mr Guy Avisar dated 8th December, 2004. None of those materials either satisfy me that he had any health problems before he saw Dr Lebeden on the 26th April, 2004, or that there can be any confident feeling that he realises and intends to correct the errors of his conduct. No attempt was made to put before me any updated material from Mr Avisar notwithstanding that 11 months had passed since the report relied upon was given.

27 As to penalty, Dr Freckleton, counsel for the Applicant, submitted that the suspension of the Applicant's registration for 180 days was excessive and unwarranted and it was unlawful as the Panel did not identify what period of the suspension related to each of the individual findings against the Applicant.

28 Insofar as the monetary penalties were concerned, Dr Freckleton contended that they were excessive and further that s.47 of the Act contemplated the imposition of a single global sum of $10,000, as a maximum monetary penalty, to cover all findings no matter how many findings adverse to the dental practitioner had been made.

29 These submissions contained a significant contradiction between them, concerning the operation of s.47 of the Act, namely, that in relation to suspension there must be a determination directed to each finding, whereas in relation to a monetary penalty the section envisages a single penalty in relation to all findings.

30 The section is in these terms:

47. Findings and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered dental care provider the panel may find that -

(a) the dental care provider has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the dental care provider has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

(c) the dental care provider has not engaged in unprofessional conduct.

(2) If the panel finds that the dental care provider has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations -

(a) require the dental care provider to undergo counselling;

(b) caution the dental care provider;

(c) reprimand the dental care provider;

(d) require the dental care provider to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;

(e) impose conditions, limitations or restrictions on the registration of the dental care provider;

(f) impose a fine on the dental care provider of not more than $10 000;

(g) suspend the registration of the dental care provider for the period specified in the determination;

(h) cancel the registration of the dental care provider.

(3) If the panel finds under sub-section (1)(b) that the dental care provider has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, the panel may make any determinations which a panel at an informal hearing is able to make upon making such a finding.

(4) The panel must not impose a fine where the conduct which is the subject of the finding has resulted in a fine being imposed by another tribunal or court of law.

(5) If the panel has made a determination under sub-section (2)(a), (d) or (f) and the dental care provider has not complied with the determination within the time specified in the determination, the Board may suspend the dental care provider's registration until the determination is complied with.

31 It seems to me that, upon the proper construction of the section, a Panel is required to make a determination separately in relation to each finding it has made against the dental care provider. I propose to adopt that approach, bearing in mind that I am conducting a hearing de novo, albeit in the setting of accepting materials relied upon before, and findings of fact made by, the Panel.

32 Whilst any finding must be related to the factual matrix in which it arises, guidance is obtained from what was said by Kellam J in Re Parr and Nurses Board of Victoria (1998) 16 VAR 118 at 123, paragraph 17, namely:

"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."

There are a number of matters which cause me to determine that the Applicant's conduct is of a serious nature. I am satisfied that the Applicant consciously misled the Complainant. I infer that the Complainant would not have undergone the treatment given to him had he known the true facts and that the Applicant at all times realised this. This conduct cannot be described as trivial or of passing effect. It has the further impact in that there is a prior finding of like conduct against the Applicant. I am satisfied that it is conduct which is blameworthy and deserving of more than passing censure. I consider that the appropriate determinations in relation to this finding are that the Applicant be fined $5,000 and that his registration as a dental care provider be suspended for a period of 90 days.

I am satisfied that the Applicant's admittedly unprofessional conduct was of a serious nature. The Complainant had a singular purpose, for which she was quoted a specific fee, in attending the Applicant. I have recited or referred to the Panel's findings of fact. They identify serious departures from the standards expected of a responsible dental practitioner. The appropriate determinations in this matter are that the Applicant be fined $5,000 and that his registration as a dental care provider be suspended for 90 days.

35 Failing to Respond to Communications:

The Applicant has admitted that his conduct in relation to this matter was both unprofessional and of a serious nature. I consider that the Applicant's conduct represented a very serious departure from accepted standards. The querulous and offensive tone of his letter of 6th April, 2004, to Dr Roseman, characterises his approach both to the Complainants and to the Board. I agree with the comments that the Panel recorded at paragraph 43 of its reasons concerning this matter. I consider that the appropriate determinations in relation to this matter are that the Applicant be fined $7,500 and that his registration as a dental care provider be suspended for 180 days.

36 I have imposed lesser fines than those considered appropriate by the Panel because it seems to me that the Applicant's conduct, serious as it was, did not warrant in any one of the matters before me, the maximum monetary penalty which the section allows. In saying this, I do not intend any criticism of the Panel which had sound reasons to feel that the penalties imposed in 2001, namely 3 months' suspension of registration and fines totalling $34,000, had not had an appropriate cautionary impact upon the Applicant.

37 I have imposed three periods of suspension. The lesser periods, each of 90 days, will be served concurrently with the period of 180 days imposed for the Applicant's failure to respond to correspondence, making a total period of suspension of 180 days. The result is that the Applicant is fined a total of $17,500 and his registration is suspended for 180 days. The period of suspension will commence on 3rd January, 2006.

38 In relation to each matter, the Applicant is reprimanded and cautioned in terms expressed by the Panel, namely:-

"In relation to findings 13, 17, 23 and 27, Dr Exler is reprimanded and cautioned as follows. The seriousness of the matters which have come before the Board on this occasion have been compounded by your history, your repetition of conduct and your willingness to avoid the consequences of your actions by whatever means. These factors compel this Panel to the view that yo will again repeat your mistakes unless the determinations which are imposed by this Panel deter you from such future conduct. What is concerning is the extent to which you are prepared to depart from accepted standards of conduct for the purposes of obtaining a commercial benefit for sums of money which are, relatively speaking, trifling. You have previously been put on notice by a Panel that grave consequences for the status of your registration as a dentist may flow from continuing breaches. This Panel again cautions you that the probability of such grave consequences following from findings of unprofessional conduct of a serious nature by future panels becomes more likely each time. As is evident by the number of patients who are prepared to make complaint about your conduct, it is unlikely that if you continue to act in error, that your breaches will go unnoticed increasing the likelihood that you will again be before this Board facing allegations of unprofessional conduct. If warnings and the imposition of determinations such as that which you have been the subject of in this matter and in 2001 do not convince you of the need to conscientiously comply with the laws, regulations and codes of practice which regulate the practise (sic) of dentistry in Victoria, future panels will have no choice but to impose the harshest of determinations in an effort to protect the public from you."

39 The effect of the determinations I have made is to vary the decisions of the panel.

40 I make the following orders:-

1. Mr Michael Schoenfeld:

That the Applicant be fined $5,000 and that his registration as a dental care provider be suspended for a period of 90 days.

That the Applicant be fined $5,000 and that his registration as a dental care provider be suspended for a period of 90 days.

That the Applicant be fined $7,500 and that his registration as a dental care provider be suspended for a period of 180 days.

4. The periods of suspension in relation to Schoenfeld and Moussa are to be served concurrently with the period of suspension in relation to the Applicant's failure to respond to correspondence. This means that the total period of suspension of the Applicant will be for a period of 180 days.

5. The Applicant's suspension is to commence on the 3rd January, 2006.

6. In relation to each matter, the Applicant is reprimanded and cautioned in the terms expressed by the Panel as set out above.

41 Finally, in relation to this Applicant, I recite with approval the terms of the caution delivered to the Applicant by an earlier Panel on the 14th November, 2001:

In arriving at this caution, the reprimands and the series of conditions listed in the preceding pages, as well as fines totalling $34,000 and a period of suspension of three months in total, the panel was mindful of its duty to consider the protection of the public, and general deterrence; however, in this case, specific deterrence was considered by the panel to be a strong requirement of any penalty. This is your second offence in regard to advertising matters and your third appearance before a formal inquiry of the Dental Practice Board of Victoria or its predecessor. The Panel has carefully considered the principle of totality in having at each of the individual penalties, as well as the Act's serious penalties for continuing breaches of Section 64. Dr Exler, the Panel considers that the penalties here determined are a final attempt to convince you of the need for you to comply conscientiously with the laws, regulations and codes of practice which regulate the practice of dentistry in Victoria. You should be in no doubt that any further breaches of the laws, regulations or codes or practice by you may have grave consequences for the status of your registration as a dentist."