1 Respondent's determination made 17 May 2004 varied by deleting paragraph 5 of the determination and the words 'which is of a serious nature' in paragraph 7 and replacing them with the words 'which was not of a serious nature'.

2 Adjourned to further hearing 10.00 am, 20 April 2006 at 55 King Street, Melbourne, estimated duration half day.

1 Dr Roseman is the Investigative Officer of the Dental Practice Board of Victoria. The Board is established by the Dental Practice Act 1999. Section 69 of that Act bestows certain functions upon the Board including the duty to register persons for practice as dental care providers and to investigate the professional conduct or fitness to practice of dental care providers. Dr Roseman says that in late 2002 he received a telephone complaint about certain advertising by Dr Mark Hassed, a dentist carrying on practice at 285 Canterbury Road, Canterbury. Dr Roseman says he cannot recall the identity of the complainant but believes the complainant was not another dentist.

2 Dr Roseman visited Dr Hassed's computer web site on 17 November 2002 and printed an advertisement from that site. He said he 'noted that it was potentially misleading'. He also noted an advertisement to similar effect, though in somewhat different text by Dr Hassed in the 'Melbourne Weekly Magazine' 17 to 23 November 2002.

3 At the top of the web site screen and to the right-hand corner appeared the words:

4 The site had a head and shoulders photograph of Dr Hassed on the top left hand corner and continued:

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

5 The following line showed some four separate assertions each with a pictorial illustration. The first 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 site contained a hyperlink to the following additional text 'National Health and Medical Research Council (NHMRC) report on amalgam stated:

'But it would be prudent to avoid placement and replacement of dental amalgam fillings in certain population sub-groups such as pregnant women, children and people with kidney disease.

'Such avoidance is based on public health principles of risk avoidance, not on any identifiable risk of harm. It is sensible to reduce the use of dental amalgam fillings where a safe and practical alternative exists' said Professor Spencer.

This was a quotation from a media release, not a report. There was a further hyperlink to the full text of the media release on the NHMRC website.

6 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.

7 The Melbourne Weekly is a full colour 'giveaway' paper or magazine distributed amongst other places in the Canterbury area. It consists largely of full colour advertisements. The magazine includes a number of lifestyle articles, entertainment guides and so forth. In addition to real estate advertising there are an extensive range of homeware advertisements. There are advertisements for cosmetic treatments and at least one other dental advertisement apart from Dr Hassed's advertisement which appeared at page 55. The ad promoted Dr Hassed's practice known as 'Fine Dentistry'. It included a photograph of a smiling Dr Hassed with a quotation in large bold print:

'IF I WOULDN'T PUT IT IN MY MOUTH, I CERTAINLY WOULDN'T PUT IT IN YOURS!'.

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.

9 Following a preliminary investigation the Board determined that a formal hearing should be held into Dr Hassed's conduct relative to these advertisements. On 8 August 2003 the Board's Chief Executive Officer, Mr Peter Gardiner despatched a notice of formal hearing under Section 45 of the Dental Practice Act 1989 to Dr Hassed. The notice alleged that with respect to the advertisements Dr Hassed engaged in unprofessional conduct of a serious nature. The notice further alleged that the placing of the advertisements had breached Section 64(1)(a) and (d) of the Dental Practice Act 1999 and identified the following as 'offending words':

(i) Only 3% of dentists would have amalgam used on themselves if they needed a medium sized filling in a back tooth.

(iv) There is decay under 80% of the fillings we remove;

(v) 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.

10 The formal hearing before the Board took place on 13 October 2003, 30 March 2004, 26 April 2004 and the Board published a decision on 17 May 2004. The Board concluded that the advertisements read as a whole and in particular the 'offending words' were false, misleading and deceptive and that they created an unreasonable expectation of beneficial treatment contrary to Section 64 of the Dental Practice Act. Having found that Dr Hassed had breached the terms of Section 64(1)(a) and (d) of the Act, the Board concluded that he had 'engaged in unprofessional conduct, as defined in Section 3 of the Dental Practice Act 1999, which is of a serious nature.' The doctor filed a review application with the Tribunal on 15 June 2004. There matters lay for approximately 12 months pending the publication of the Board's reasons and the fixing of the penalty which it determined to impose on Dr Hassed. The matter has now come on for hearing before me.

11 According to a brochure published by the National Health and Medical Research Council (NHMRC) 24 October 2002:

Dental amalgam (commonly known as 'silver fillings') is used to repair decayed or broken teeth. It has been in use since the early 1800s and is generally made up of metal, silver and tin, with small amounts of copper and zinc. The use of amalgam for dental work is declining as dental health improves and reasonably priced alternative materials become more widely available.

12 According to Professor Maths Berlin, Professor Emeritus of Environmental Medicine, University of Lund :

Mercury is a multi-potent toxin with effects on several levels of the biochemical dynamics of the cell. (Berlin 'Mercury in Dental Filling Materials - An Updated Risk Analysis and Environmental Medical Terms; An Overview of Scientific Literature published in 1996-2002 and current knowledge' page 25)

13 According to a report by an NHMRC Working Party entitled 'Dental Amalgam and Mercury in Dentistry' (March 1999) dental amalgam is now used in only a minority of dental restoration, (28% in 1997-98 (paragraph 1.5.4).

14 Whilst the Scandinavian nations have determined to phase out the use of dental amalgams no such decision has been made in Australia. In its 2002 brochure the NHMRC said:

There is no support in the scientific literature for the idea that the mercury released from amalgam fillings was harmful to an individual's health.

15 Nevertheless the brochure recommends avoidance of amalgam during pregnancy and breastfeeding or children and for those with kidney disease. The NHMRC working party stated in the summary to its report:

A substantial range of new restorative materials has now become available at costs which are only marginally greater than that of restorations with mercury amalgam. The duration of survival of restorations with these materials is presently less than that of mercury amalgams, creating more significant differences in cost-benefits over the long term.

Dental amalgam is therefore still a desirable restorative material from a cost and longevity perspective and is the material of choice in certain chemical situations where its properties are superior to alternative materials.

16 In the 2002 brochure the NHMRC nominates as an advantage of dental amalgam that:

It is highly durable - apart from gold and some of the new ceramics, amalgam is the best material for teeth that are subject to considerable force during chewing and therefore a lot of wear (such as molars). Any replacement weakens the natural tooth that is being filled, so that the longer a filling lasts the better.

17 As previously noted the Dental Practice Act 1999 establishes the Board and provides for the registration and discipline of dental care providers. Section 100 of the Act repealed the former legislation governing these matters. The Dentists Act 1972 Section 101 provides that the Dental Practice Board is the successor both as to assets, rights, liabilities and obligation and functions of the Dental Board of Victoria established under the Dentists Act 1972. Section 21 of the 1999 Act makes the Board responsible for receiving complaints about the conduct of registered dental care providers. The expression 'dental care' is defined in Section 3 as including dentistry. Dr Hassed is a registered dental care provider. Division 2 of Part 3 of the Act provides for preliminary investigation of complaints against dental care providers and Division 3 provides for the Board to conduct both formal and informal hearings. In the present case the complaint against Dr Hassed was referred to a formal hearing. Section 3 defines 'unprofessional conduct' by reference to some 10 paragraphs. Of those, only four paragraphs (a), (b), (c) and (j) are relevant to this proceeding. The definition including the relevant paragraphs is as follows:

"unprofessional conduct" means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered dental care provider;

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered dental care provider by his or her peers;

(j) the contravention of a provision of this Act or the regulations

18 Section 47 of the Act provides that at a formal hearing conducted under the terms of the Act the Board may find that the relevant dental care provider has engaged in unprofessional conduct of a serious nature or engaged in unprofessional conduct which is not of a serious nature or find that there has been no unprofessional conduct at all. There is no statutory definition of what unprofessional conduct is to be regarded as 'of a serious nature'.

19 Where as here, a finding of unprofessional conduct of a serious nature is made, the Board has a range of sanctions which it may impose according to some eight paragraphs in Section 47(2) ranging from counselling, caution and reprimand through to fine, suspension and cancellation of registration. If the finding is of unprofessional conduct which is not of a serious nature, then the Board's powers even although exercised after a formal hearing are confined to those powers which it could exercise at an informal hearing (Section 47(3)). The determinations which may be made at an informal hearing are laid down in Section 40(2) of the Act and are as follows:

(a) that the dental care provider undergo counselling;

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

20 Section 58(1)(d) of the Act gives a dental provider a right to apply to this Tribunal for review of 'a determination made at a formal hearing under Part 3'. This Tribunal's powers on review are its usual review powers under Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 which include all the powers of the primary decision maker.

21 Mr Monahan appeared on behalf of the respondent to contend for an affirmation of the Board's determination.

22 That determination, he said, depended upon a view that the advertisements in question had been misleading and deceptive according to the appropriate objective analysis and were therefore in violation of Section 63(1)(a) of the Dental Practice Act. Section 64(1) states as follows:

(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

(b) offers a discount, gift or other inducement to attract patients to a dental care provider or dental care provider's practice unless the advertisement also sets out the terms and conditions of that offer; or

(c) refers to, uses or quotes from testimonials or purported testimonials; or

(d) creates an unreasonable expectation of beneficial treatment.

Penalty: 50 penalty units for a natural person or 100 penalty units for a body corporate

23 He further submitted that the advertisements in question created an unreasonable expectation of beneficial treatment in that they left readers with the impression that the non-amalgam alternative restorations used by Dr Hassed's practice would in every instance provide 'optimal' results which he submitted was not the case. Once breach of Section 64(1) was established, he continued, this was per se unprofessional conduct in light of paragraph (j) of the definition of unprofessional conduct quoted above. This latter paragraph of the definition was not relied upon at the hearing before the Board and was not mentioned in the particulars furnished by the Board in response to a request from Dr Hassed's solicitors. I granted the Board leave however to rely upon paragraph (j) for the purposes of the hearing in this Tribunal for reasons which I gave with my ruling.

24 Mr Monahan said questions administered to Dr Hassed by the Board elicited the response that the survey finding that only 3% of dentists would have amalgam fillings for a medium sized restoration in a back tooth was based upon an article entitled 'Conservative posterior tooth restorations' by Gordon J. Christensen at page 11 volume 1 the 'Journal of Aesthetic Dentistry'. This article disclosed that its findings were based upon a survey questionnaire distributed at the August 1992 meeting of the 'American Academy of Esthetic Dentistry' which was distributed 'to 66 members and guests'. The 3% result was derived from question number 23 in the survey which asked:

If I had a moderate-sized MOD lesion (half isthmus of the cusp tip to cusp tip distance) in my own mouth I would prefer (one answer only) ...

25 In the circumstances said Mr Monahan the reference to 3% of dentists in the website advertisement was misleading in that the survey was of American rather than Australian dentists. He contended that in so far as the Melbourne Weekly ad identifies the survey as being of American dentists, this indicated a perception on Dr Hassed's part that it was misleading not to disclose the foreign source of the 'survey'. Moreover, said Mr Monahan, the survey sample was too small. He referred to a report by Professor Tyas of the Dental School of the University of Melbourne, a general dentist with a particular interest in dental material who observed that there were over 150,000 dentists practising in United States. Further, said Mr Monahan, whilst there was no distinct evidence as to exactly how wide a group 'aesthetic' dentists represented within the wider dental profession, reference to a survey based solely on this sub-group would tend to be skewed.

26 Next, said Mr Monahan, the rendition of the survey result in the two advertisements was misleading in so far as the survey question asked what the respondents would 'prefer'. The advertisement spoke of what the dentists would 'have' in their own teeth.

27 It was also misleading said Mr Monahan to describe the survey as 'recent'. The survey was taken in 1992 fully 10 years before the advertisements. The 'Melbourne Weekly' had described the survey as 'recent'. The website advertisement described it as 'a 1995 survey'. Mr Monahan suggested and Professor Tyas supported the view that the survey should have been described as a 1992 one not a 1995 survey.

28 It was also wrong, submitted Mr Monahan, to assert as the website did 'amalgam may be toxic. Government warning'. First, said Mr Monahan, the apparent source of this statement was a report of a working party of the NHMRC. Analysis of hyperlinks on Dr Hassed's website showed that source referred to not to the report itself but to a media release issued by the NHMRC at the time of publication of the report. Mr Monahan said the Working Party was not the NHMRC and the NHMRC was not the Government. Therefore it was wrong to suggest there was a Government warning. In any event, reference whether to the media release or the working party report would not yield, he said, anything that amounted to a warning that amalgams may be toxic.

29 Next, said Mr Monahan, it was misleading and deceptive to say that amalgam breaks teeth by thermal expansion. There was no evidence to support this he said. He referred to the evidence of Professor Tyas which he said agreed with his contention. Professor Tyas, he said, endorsed the conclusions by Dr Michael J. Wahl in an article 'Amalgam - Resurrection and Redemption. Part 1: The Clinical and Legal Mythology of Anti-Amalgam' Quintessence International Volume 32 525 ff. Dr Wahl attacked as 'myth 1: amalgams commonly cause fractured cusps' pp 526-527. At page 527 the learned author stated:

Fact 1: teeth with amalgam restorations have a low incidence of fractured cusps.

30 Moreover there was nothing either in the literature generally or any material produced by Dr Hassed that supported the view that amalgam broke teeth by thermal expansion.

31 Next, Mr Monahan submitted that upon the natural construction of the statement 'there is decay under 80% of the fillings we remove' referred to dentists generally. He rejected the contention that Dr Hassed put that 'we' referred to Dr Hassed and the members of his practice. In so far as Dr Hassed had said that this represented his own clinical experience, Mr Monahan said I should either be sceptical of this or reject it. He noted that when called upon in cross-examination to produce documentation of his clinical experience, Dr Hassed said that whilst he had had documents in the past, he no longer had them.

32 The advertisements in question he said were directed to a vulnerable audience viz people with concerns about their dental health. Healthy amalgams might be removed. He noted that Dr Hassed said that he had read the Board's guidelines as to advertising which had been prepared in light of a publication by the Australian Competition and Consumer Commission entitled 'Fair Treatment: Guide to the Trade Practices Act for the Advertising or Promotion of Medical and Health Services' which invited practitioners to consider a wide variety of issues in connection with advertising including the following:

•

Have you thought about our target audience and how they are likely to receive the promotional message? In particular, have we considered any special characteristics or vulnerability of our target audience?

•

Can our claims be substantiated on any objective basis?

•

Are all material terms and qualifications located in the main text?

33 Mr Monahan said that insofar as the website referred patients to NHMRC material, there must be a significant risk that patients would not take the trouble to follow the hyperlinks. One would be guided solely by the primary website advertisement.

34 Mr Monahan referred me to the observations of Morris J as President of this Tribunal in Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 at [33] where he observed with respect to paragraphs (a) and (b) of the definition of 'unprofessional conduct' in the Medical Practice Act which was in the same terms as the one with which I am dealing that the standard applicable was governed in each case by the adverb 'reasonably' and perfection was not called for. His Honour said:

Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with action on behalf of the State.

35 As to the issue of what unprofessional conduct should be regarded as being of a serious nature, he referred me to the observations of Kellam J as President of the Tribunal in Parr v Nurses Board of Victoria (1998) 16 VAR 118 where His Honour said at [16] and [17] that the question as to whether unprofessional conduct was of a serious nature depended on the facts of each case

and that the departure from proper standards 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.

36 His Honour observed that unprofessional conduct which was not of a serious nature referred to matters 'which were minor and appropriate to be dealt with by the informal hearing process contemplated by the Act'. These observations were, he submitted, endorsed by Ashley J (as he then was) in Domburg v Nurses Board of Victoria [2000] VSC 369. He also referred to the speech of Lord Mackay of Clashfern in the House of Lords in Gee v General medical Council [1987] 1 WLR 564, 570 where His Lordship stressed the importance of persistence in misconduct as an indication of the overall seriousness of what had been done or omitted. Mr Monahan took me to a number of the well known authorities on the concept of misleading and deceptive as digested at [1.52.25] and [1.52.100] of Miller's Annotation of the Commonwealth Trade Practices Act.

37 Mr Caleo, Counsel for Dr Hassed, submitted that the word 'false' in Section 64 of the Act meant 'not correct' or 'inaccurate'. It was appropriate even despite the addition of the word 'false' to analyse Section 64(1)(a) in accordance with the jurisprudence developed by the Federal Court and other courts relative to the concept of misleading and deceptive conduct under Section 52 of the Trade Practices Act 1974 of the Commonwealth. This was, he said, in conformity with the approach adopted by the President in Kozeniauskas v Dental Board of Victoria [2005] VCAT 1058.

38 Mr Caleo said that conduct would only be misleading and deceptive if it conveyed 'a meaning which is inconsistent with the truth', thereby induced or was capable of inducing error. He referred to the judgment of Brennan J (as he then was) in World Series Cricket Pty Ltd v Parrish (1977) 16 ALR 181, 201; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 198 per Gibbs CJ; Johnson Tiles v Esso [2000] FCA 1572; (2000) 104 FCR 564, 589. It would not be sufficient he said to warrant a finding of misleading and deceptive conduct if the conduct merely caused uncertainty, confusion or wonderment. He referred to McWilliams Wines Pty Ltd v Mcdonalds Systems of Australia Pty Ltd [1980] FCA 159; (1980) 49 FLR 455, 458-9, 475-6; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177, 201, Campomar Sociedad Limitadada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45, 87.

39 It was necessary he said to look at the advertisement in its entirety not to take part of it and isolate any representation it might then give rise to. He referred to Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc. [1992] FCA 962; (1992) 38 FCR 1, 4. It was necessary to consider the relevant target audience. Since the present proceeding related to advertisements, any representation cannot be made to identify individuals 'but to the public at large'. It was not appropriate to impose burdens on advertisers for the benefit of persons who failed to take reasonable care of their own interests rather attention should be focussed on ordinary reasonable members of the class of consumers. He referred to Campomar Sociedad Limitadada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45, 85. Where advertisements are concerned a robust approach must be taken and puffery is part of the ordinary stuff of commerce and should not be regarded as misleading and deceptive. He referred to Stuart Alexander and Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 53 FLR 307, 311; Pappas v Soulac Pty Ltd [1983] FCA 3; (1983) 50 ALR 231, 234.

40 As to the allegedly offending words in the advertisements, Mr Caleo submitted that the reference to 'only 3% of dentists would have amalgam used on themselves ...' was an accurate account of the survey relied upon. It was not inconsistent with the truth and was not capable of leading a consumer into error. Mr Caleo referred to and relied upon an answer given by Dr Hassed in cross-examination as to the distinction between the question asked in the survey, namely what respondents would 'prefer' and whether they would 'have' amalgam fillings in a back tooth. He said that Dr Hassed's answer that a dentist would have full and free access to the entire range of dental services was a correct one. So that a dentist would be able to 'have' his preference.

41 As to the reference to the potential toxicity of amalgams, Mr Caleo stressed that the advertisement merely said that amalgams 'may' be toxic, not that they were. Mr Caleo conceded that the NHMRC could not be described as 'the Government' but the hyperlink provided access to NHMRC material and thereby made clear the source of the material. The advertisement 'thereby provides the consumer with an accurate and comprehensive context for the statement made in the advertisement'. Mr Caleo concluded 'it cannot seriously be contended that an erroneous description of the status of the NHMRC is capable of leading any consumer into error'.

42 As to the statement that 'amalgam breaks teeth by thermal expansion' Mr Caleo said 'the gist of this statement is that teeth restored using amalgam suffer breaks'. It was not of significance to a consumer whether those breaks were caused by thermal expansion or some other process. Professor Tyas' analysis he said, concentrated upon causal factors in tooth fracture and was therefore largely beside the point. Mr Caleo said that the scholarly material propounded by Dr Hassed provided a sound basis for the statement 'that teeth restored using amalgam suffer breaks'. He referred to two articles exhibited to the doctor's witness statement, namely one by Arola and Huang 'the influence of simultaneous mechanical and thermal loads on the stress distribution in molars with amalgam restorations' from the Journal of Material Science: Materials in Medicine (2000) Volume 11 pp 133 to 140 and 'type and incidence of cracks in posterior teeth' in Volume 86 of the Journal of Prosthetic Dentistry page 160-172. Mr Caleo said that the tables reproduced at page 172 of the articles demonstrated, if one accepted the reliability of the studies that there is a far greater likelihood that a tooth restored with an amalgam preparation would crack than that a tooth restored with a non-amalgam preparation would crack. Mr Caleo concluded on this point by observing:

Further the statement is not capable of leading a consumer into error; but the evidence reveals that the applicant does not ever use amalgam fillings in his practice, a patient attending at his practice would not be presented with a choice between amalgam and any alternative.

43 As to the statement that 'there is decay under 80% of the fillings we remove'. Mr Caleo submitted that Dr Hassed's interpretation was clearly the correct one, that is, that it referred to the experience of Dr Hassed and the members of his practice in removing teeth and was not an assertion as to the experience of dentists generally. Mr Caleo directed attention to the words at the top right hand corner of the website ad 'we NEVER use amalgam (mercury) fillings'. The 'we' there referred to clearly he said was Dr Hassed and the members of his practice. The 'we' referred to in the later reference to decay under fillings clearly refers to the same persons. Finally on this point, Mr Caleo said there was no evidence which could justify a finding that the statement on the website was a misreporting of the experience which Dr Hassed and his practice had had.

44 Next, Mr Caleo submitted that the offending words 'read in the context of full wording of the advertisements' do not create 'an unreasonable expectation of beneficial treatment' as that expression is used in Section 64(1)(d) of the Act. Mr Caleo noted that the particulars furnished by the Board for the purposes of the initial hearing before it, alleged that the advertisements asserted non-amalgam materials were 'certainly beneficial and advantageous to all patients' and that 'porcelain and/or composite fillings are preferable and desirable in every case' and that they created an unreasonable expectation that patients 'will always receive optimal treatment by the use of porcelain and/or composite fillings'. Mr Caleo stressed that Dr Hassed's advertisements were about amalgam. In so far as they referred to porcelain or composite fillings, 'it is striking that no allegation has been made that such references are false, misleading or deceptive'. He said that the present case should be contrasted with the decision of the President in Kozeniauskas' case where His Honour:

Construed the relevant advertisement as asserting a causal relationship between the treatment of gum disease and a substantial reduction in the risk of suffering life threatening diseases ... in contrast, the applicant's advertisements make no exaggerated claim for the alternatives to amalgam'.

45 In summary he said the statutory test provided for in Section 64(1)(d) is not directed to the drawing of comparisons between treatments, therefore the allegation of breach of that paragraph should be rejected.

46 Mr Caleo concluded that if contrary to his primary submission I found that there had been unprofessional conduct on the part of his client, I should not regard it as being of a serious nature. Whatever view one took of the present advertisement they stood in stark contrast to the extraordinary claim made by the dental advertising in Kozeniauskas' case 'invest in your teeth and LIVE LONGER'.

47 At the outset I can deal with a number of the respondent's submissions which I believe can and should be promptly disposed of. First, in so far as Dr Hassed in his website advertisement referred to decay under 80% of the fillings 'we' removed, the reference in context is in my view clearly to Dr Hassed and the members of his practice. It follows on from the reference to 'we' not using amalgam fillings which appears above it. Therefore in so far as the respondent's case suggests that the advertisement asserts that this is the experience across the dental profession as a whole, I would reject that view of things. Next, I reject any quibbles about the standing of the NHMRC and whether it is to be regarded as 'the Governmental' or not. First, the concept of 'the Government' does not have any fixed meaning. A lay person might speak of 'the Government' meaning a department of state of the Commonwealth of Australia, a department of state of the State or Territory in which he resides or perhaps even the local council. Local councils after all are referred to as 'local government'. In the present context it seems idle to split hairs as to these sorts of meanings. Professor Tyas in his witness statement explained the nature and standing of the NHMRC. It comes within the portfolio responsibility of a Commonwealth minister and is established by a Commonwealth statute. It includes representatives from a variety of scientific and community organisation. In my view in a context such as the present to refer to a warning as 'a Government warning' is to do no more than indicate that it has some sort of official sanction. A body established by the Commonwealth Parliament by statute to discharge the important scientific advisory functions that the NHMRC does in my view clearly merit the description of a 'Government' body even although it would not appear to form part of the Crown in right of the Commonwealth. Nor in my view is there any realistic distinction to be drawn for present purposes between the 2002 brochure which is published by the NHMRC and the report of an NHMRC working party which was published in 1999 by the NHMRC. In the context of an advertisement either in the popular press or on a website it is hair splitting to draw any distinctions about these matters.

48 Likewise, I can dispose of the submission made by Mr Caleo on behalf of the applicant that some or all of the material before me should be treated as mere puffery. Clearly if a motorcar dealership describes itself, as one did in the relatively recent past, as 'the largest Ford dealership in the Free World' the statement is so obviously a piece of extravagant nonsense and that nobody would take it seriously. That in my view is what is to be regarded as puffery. Here, we are dealing with important information about the dental and general health of readers, postulated not by an advertising spruiker but by a member of the dental profession. These are serious matters not mere puffery.

49 I turn first to the fourth group of allegedly offending words, namely 'there is decay under 80% of the fillings we remove'. For the reasons previously given I regard this as purporting to be an account of the clinical experience of Dr Hassed and his practice. In a letter to the Board dated 6 March 2003 with regard to these words, having made the point that they were an account of his personal experience, the doctor gave a tabular account of some 31 consecutive amalgam filling replacements which he conducted from 17 to 27 February 2003. The result was said to show that the fillings with decay underneath counted as 83.9%. I was somewhat surprised when the doctor was unable to produce under cross-examination documentation relative to this group of procedures or any other which would justify in a documentary sense his account of his personal experience. Despite my misgivings on this point, I accept Mr Caleo's submission that there is simply no evidence upon which I could make an adverse finding against the doctor on this point. Therefore a finding that these words were misleading or deceptive cannot be sustained.

50 With regard to the third of the alleged set of offending words, namely 'amalgam breaks teeth by thermal expansion' the evidence is left in a somewhat ambiguous state. Mr Caleo submitted I should proceed on the view that Professor Tyas accepted that amalgam does break teeth but only differed from Dr Hassed in attributing the mechanism of breaking to thermal expansion. Dr Hassed regarded the proposition that amalgam breaks teeth as fairly well established. He accepted that the attribution of the breakage to thermal expansion however was 'contentious'. The studies relied upon by Mr Caleo do provide some support for the contention that amalgam fillings seem to be associated with a higher rate of breakage than non-amalgam fillings. This of course is inconsistent with the views expressed by Wahl in his article referred to above. The present hearing is not the occasion to try and postulate some authoritative solution to or adjudication upon the debate that obviously exists in the dental community between those who believe that amalgam fillings break teeth and those like Wahl who do not. What is I think misleading and deceptive about the words chosen by Dr Hassed is that they state a point of view categorically as if it is universally accepted in the dental world. This is incorrect or contrary to truth. It is likely to mislead whether one concentrates on the statement of asserting that amalgams break teeth or that they break teeth by thermal expansion.

51 The alleged offending words first and last referred to go together viz. 'only 3% of dentists would have amalgam used on themselves if they needed a medium sized filling in a back tooth' and:

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

There is nothing in my view in the point as to whether the survey should be referred to as being a 1992 survey or a 1995 survey. In either event, viewed from the world of 2002, the survey could reasonably be regarded as recent. Certainly if reference were made to a survey carried out in 1952 describing, it as a recent survey the matter would be quite different. The statements are however problematic for other reasons, first the statement on the website makes no distinction between Australian dentists and American dentists, something which the advertisement in the Melbourne Weekly does do. More pertinently it does not disclose the very small size of the sample used and that the sample coming from a particular sub-group of dentistry may not be reflective of the view amongst dentists as a whole. It is important to note that Christensen does not say that 66 dentists participated in the survey, rather he says that 66 people, some of whom were dentists and some of whom were their guests took part in the survey. Who these guests may have been, spouses, boyfriends, girlfriends, 'buddies' remains uncertain. There also does not seem to be any explanation as to whether there was any divergence in findings between those returns from the dentists on the one hand and the 'guests' on the other. Moreover, despite Mr Caleo's submissions to the contrary and the opinion expressed by Dr Hassed, there is a subtle but important distinction between asking what someone would 'have' and what they would 'prefer'. The statement 'I wouldn't have' such and such implies not merely that the subject is not one's preferred choice, but also that it is somehow objectionable or perhaps even dangerous. This I think is what is implied by the language chosen by Dr Hassed. As such it is a misrepresentation of the Christensen article not merely because it changes in a subtle but important way the language used in question 23 but also in light of the answers recorded for a different question, No. 5, which says:

Two-coloured class two restorations are important because of (most important - one answer only)

52 Christensen's comment upon these results is as follows:

Two-coloured restorations are important because of both aesthetic and biologic considerations, but more research is needed to clarify the overall negative biologic potential for metallic restorations. Many respondents were not concerned with biologic questions (57%).

53 I believe these words are misleading and deceptive, both because of the small and ambiguous sample used and because of the change in language. The website version is also misleading because it fails to disclose the foreign source of the survey.

54 The final set of allegedly offending words is also in my view misleading and deceptive. A use of the skull and crossbones symbol on the website advertisement is particularly inflammatory. The use of the phrase 'may be' rather than simply the word 'is' represents an element of prudence and caution in the context of a matter which is the subject of extensive debate. But viewed in its totality, the prudence of this phrase is rather outweighed or negated by the use of the skull and crossbones symbol. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 199 Gibbs CJ said with respect to a prohibition upon misleading and deceptive conduct in trade and commerce under Section 52 of the Trade Practices Act 1974:

Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced and the gullible as well as the astute, the section must in my opinion be regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will of course depend on all the circumstances. The persons likely to be affected in the present case, the potential purchasers of the suite of furniture costing about $1,500, would, if acting reasonably, look for a label, a brand or a mark if they were concerned to buy a suite of a particular manufacturer.

55 In my view, confining one's attention to the reasonable reader of the website and leaving aside the careless and unreasonable on the one hand and the especially astute on the other, a person would be likely to conclude from these allegedly offending words that there was an official warning of the toxicity of amalgam based filling along the same lines as the multifarious official Government warnings about the dangers of smoking. I do not believe that a reasonable reader would necessarily be expected to follow the hyperlinks first to another part of Dr Hassed's site where he quotes part of the NHMRC media release and then to the NHMRC's site itself. As Conti J recently remarked:

It is the first impression conveyed by advertising which normally or more often than not impacts on the reader or viewer, rather than any constituent parts of the advertised message: see for instance Sterling Winthrop Pty Ltd v R & C Products Pty Ltd [1994] FCA 1000; (1994) ATPR 41-308 at 42, 126 (Lockhart J) and 42, 133 (Shepard and Burchett JJ); and Telstra Corporation Ltd v Optus Communications Pty Ltd [1996] FCA 1035; (1996) 36 IPR 515 at 523 (Merkel J). As those and subsequent authorities to similar effect indicate, once a false impression is conveyed, its message will not necessarily be ameliorated for instance by the accuracy of the remaining constituent part or parts of the advertising material accompanying the message complained of. Moreover readers (or viewers as the case may be) may be expected not to make a close study of the totality of advertising media, but merely to absorb the general thrust thereof. I do not think, contrary to Foxtel's submission, that in the circumstances the subject of this complaint, Foxtel can place exculpating reliance to the effect of the following observation made by Lockhart J in Lumley Life Ltd v Independent Order of Odd Fellows of Victoria Friendly Society (1989) 16 IPR 316 at 323-4:

'There is a possibility, and some of the evidence lends support to it, that there might in the minds of some people be temporary and commercially irrelevant confusion, but nothing that constitutes misleading or deceptive conduct ... Section 52 is not concerned with conduct where the risk of infringement is remote.'

Foxtel Management Pty Ltd v Australian Video Retailers Association Limited [2004] FCA 1613; (2004) 214 ALR 554, 596 [117]

56 The effect of the NHMRC material in its totality is that whilst it has not been established that amalgam fillings may damage the health of the users it would be prudent for high risk groups such as children, pregnant women and those with kidney diseases as well as breast feeding mothers to avoid the use of amalgams. For instance, the working party report at paragraphs 4.7.4 and 4.7.5 states:

Of recent studies of exposure to mercury in industry and dental occupational settings, no study was identified which reported clear-cut among those exposed to mercury.

No studies have been completed which have compared the health outcomes among dental patients with and without dental amalgams to determine whether there may be differences in symptoms associated with mercury neuro-toxicity.

57 The working party did observe however in a passage quoted in the media release which was made available through hyper-link on Dr Hassed's site:

However, general public and environmental health principles dictate that where possible exposure to mercury from dental amalgams be reduced where a safe and practical alternative exists. This becomes more prudent in special populations, including children, women in pregnancy and persons with existing kidney disease.

58 Despite a submission by Mr Caleo that there was a detectable move by the NHMRC from its earlier statements which were less unfavourable to amalgam through its 1999 working party report there is no evidence that the NHMRC or any 'Government' authority in Australia has adopted the views expressed by Professor Berlin in his article quoted above which views apparently hold sway in Scandinavia and some other European country. The 2002 pamphlet from the NHMRC does not as far as I can see indicate any change of position from the one enunciated by the working party report in 1999. The NHMRC's position as exemplified in these studies seems to be that mercury is known to be poisoness whilst there are no proven studies showing poisoning from mercury amalgams (for instance at Clause 3.9.3 the Working Party states claims of improvement in health or relief of symptoms upon removal of dental amalgam restorations may be confounded by diet, lifestyle and placebo effects) but in the absence of evidence establishing any clear safe minimum for mercury in the human body it is desirable to take a cautious attitude with regard to high risk populations. All these subtleties are blurred or ignored by Dr Hassed's advertisements. In the end I do not believe that there is anything in Australia which would be regarded as a 'Government warning' in the ordinary use of this phrase.

59 Mr Caleo submitted that there was no evidence, for instance, that Dr Hassed had engaged in the practice of removing mercury amalgams for his patients simply on the basis of their threatened toxicity. If such a thing were to occur, it would, upon the evidence before me, be a threat to health. Professor Berlin at page 26 of his article states:

Removal of amalgam fillings should not be undertaken unless there are medical reasons for doing so. The reason is that the risk of complications from the removal may exceed the risk of side effects from the amalgam. The risk of removal is due mainly to the fact that dental substances are drilled away, which may in itself result in problems with existing teeth.

60 There is no evidence that Dr Hassed has created any dangers of the sort described by Professor Berlin. Nevertheless, to publish the material that the doctor has in his website warning of toxicity with the emotive skull and crossbones symbol creates a risk that persons with apparently stable and satisfactory mercury amalgam will be subjected to needless and inappropriate fear at the very least even if they do not take the unwise step of seeking to have those amalgams removed. The advertisement might also create an inappropriate and unreasonable tension between patients and other practitioners. A patient reading the website may in effect feel that he has been betrayed by or poisoned by another dental practitioner who did employ a mercury amalgam on his teeth.

61 These advertisements are misleading and deceptive whether viewed by reference to individually allegedly offending words or taken as a whole. Taken as a whole the advertisements constitute what is to my mind inappropriate scaremongering. As Mr Caleo observed these advertisements are addressed to the public as a whole. They may be read by persons who do not seek treatment from Dr Hassed. Their capacity to lead into error cannot therefore be regarded as confined by Dr Hassed's clinical practices as Mr Caleo's submissions would have it.

62 It follows that in my view the advertisements are contrary to Section 64(1) of the Dental Practice Act 1999 and hence constitute unprofessional conduct on the part of Dr Hassed in accordance with paragraph (j) of the definition in Section 3 of the Act.

63 The additional allegation by the Board that these advertisements created 'an unreasonable expectation of beneficial treatment' contrary to Section 64(1)(d) of the Act is in my view at best marginal. As Mr Caleo rightly observed these advertisements concentrated themselves, at least in the parts that had been objected to, in attacking the appropriateness of mercury amalgam treatment rather than lauding alternative treatments. The effectiveness of the non-amalgam treatments used by Dr Hassed was touched upon tangentially to the extent that I was referred to findings by the NHMRC in its working party, that amalgams lasted longer than non-amalgam restorations and that there was little if any current research upon potential toxicity from these alternative restorations and that such research should be carried out. Aside from the undoubted indication that mercury amalgams were cheaper than alternatives, there is little said as to the drawbacks, if any, of the non-amalgam treatment. In the circumstances I am not satisfied that these advertisements created any expectation with regard to the effectiveness of non-amalgam restorations which was unreasonable.

64 These advertisements were not mere lapses. They were steps deliberately taken by Dr Hassed. 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. Mr Caleo referred to passages and correspondence between the doctor and the Board in which he offered to modify his approach if it was proven to be wrong. Mr Caleo in effect said that this indicated that the doctor's conduct was not contumelious. On the other hand it does constitute a considered refusal to submit to guidance from the Board. Dr Hassed did on a number of occasions, including, it was said, in one telephone conversation prior to the publication of the advertisements, seek if you like, pre-publication clearance of the text of his advertising in which the Board declined to do. There is no evidence I think that Dr Hassed is prepared to submit to any other form of guidance from the Board.

65 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; 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, 344 [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.

66 Proceedings such as the present, whilst disciplinary are intended for the protection of the public and not for the purposes of punishment of errant practitioners. Nevertheless, in 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.