UPON REMITTER FROM THE SUPREME COURT OF VICTORIA BY ORDER OF THE HONOURABLE JUSTICE HARGRAVE, AUTHENTICATED 10 JANUARY 2007

1. The respondent's determination is affirmed in so far as it finds that the applicant has engaged in unprofessional conduct of a serious nature.
2. The respondent's determination is varied such that:
   • (a) the applicant is fined the sum of $4,000 which is to be paid within 30 days of this day;
   • (b) in the event that the applicant fails to pay the fine referred to within the limit set, his registration as a dental care provider is suspended from the date of non-compliance until the date of compliance; and
   • (c) the Tribunal cautions the applicant that in future his advertisements should be the subject of more scrutiny to ensure that his advertisements are not false, misleading or deceptive.

Mr Caleo, SC with Ms Ellyard of Counsel, instructed by DLA Phillips Fox

Mr Pizer of Counsel, instructed by Monahan & Rowell

1. On 17 May 2004 the Dental Practice Board of Victoria, which is the respondent in this proceeding, published a determination with respect to the applicant, Dr Mark Hassed. A panel of the Board found that Dr Hassed had engaged in unprofessional conduct of a serious nature as defined in Section 3 of the Dental Practice Act 1999. It required the practitioner to engage in corrective advertising with the requirement for such corrective advertising to be imposed as a condition of his registration under the statute. The panel fined Dr Hassed $7,500, suspending his registration as a dental care provider should he not pay the fine within the stipulated time frame. Finally, the panel cautioned Dr Hassed:

That in future his advertisements should be the subject of more scrutiny to ensure that his advertisements are not false, misleading or deceptive or create an unreasonable expectation of beneficial treatment.

1. Dr Hassed filed an application with the Tribunal to review the panel's determination on 15 June 2004. After a number of directions hearings, the matter came on for hearing before me on 7 March 2006.
2. In reasons which I published on 24 March 2006, I varied the determination of the panel of the Respondent Board, finding that whilst Dr Hassed had engaged in unprofessional conduct as defined in the Dental Practice Act 1999, such unprofessional conduct was not of a serious nature. In lieu of the sanctions imposed by the panel, I ordered that the doctor be reprimanded and cautioned.
3. The Board appealed to the Supreme Court by leave and Hargrave J allowed the appeal and set aside my determination [2006] VSC 485. In a judgment authenticated on 10 January 2007 His Honour ordered, inter alia:
   1. The question of whether the unprofessional conduct of Dr Hassed found by the Tribunal is or is not unprofessional conduct of a serious nature is remitted to the Tribunal, without the hearing of further evidence, for re-hearing and determination according to law.
   2. In the event that the Tribunal determines that the unprofessional conduct of Dr Hassed is of a serious nature:

(a) the determination of the Board under s.47(2) of the Dental Practice Act 1999 (Vic) is set aside;

(b) the question of the appropriate order to be made under s.47(2) of the Act is remitted to the Tribunal, without the hearing of further evidence, for re-hearing and determination.

1. The remitter came on for hearing on 30 April 2007.
2. With respect to Dr Hassed's conduct and advertising I concluded that in a number of respects it was misleading and deceptive. These findings were not under attack on appeal and none of them has been set aside. The determination upon remitter must be made on the basis of those findings. I incorporate them by reference into the present determination.
3. At paragraph [64] I found that the advertisements in question were not mere lapses but were deliberate. I also found that there had been 'a considered refusal to submit to guidance from the Board' by Dr Hassed with respect to these advertisements. At paragraph [65] I continued:

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 ...

1. The other consideration which led me to the determination which I made for the consideration of the Tribunal's decision in Kozeniauskas v Dental Practice Board of Victoria [2005] VCAT 1058, a decision of Morris J sitting as the President of the Tribunal. The Tribunal concluded that the advertising there in question constituted unprofessional conduct but that such unprofessional conduct was not of a serious nature. At paragraph [66] I said:

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.

1. On appeal Hargrave J concluded that this was an inappropriate approach. At paragraph [46] of his judgment, His Honour said:

Although it was conceded on behalf of the Board that parity was not a totally irrelevant consideration to take into account in determining whether unprofessional conduct is of a serious nature, it is in my view only marginally relevant; and then only in a case where the decision-maker is in doubt as to the case for determination. In my view, principles of parity ought to be considered at the penalty stage, once a determination has been made as to whether the unprofessional conduct in issue is or is not of a serious nature. If principles of parity are allowed to dominate the anterior question, and this leads to a finding that the conduct is not of a serious nature, there is a risk that, at the penalty stage, the decision-maker will be unable to impose a suitable penalty to fit the facts of the case. It is apparent that this is what occurred in this case.

1. Mr Pizer, Counsel for the Board, submitted that I should find, first, that Dr Hassed's unprofessional conduct was of a serious nature and secondly, that in light of such findings more extensive sanctions should be applied to him along the lines of those imposed by the panel of the Board initially. He went further, submitting that in lieu of the fine of $7,500 imposed, the fine should be set at $10,000, the maximum allowable.
2. As to what constituted unprofessional conduct of a serious nature, Mr Pizer referred to the decision of Kellam J as President of this Tribunal in Parr v Nurses Board of Victoria (1998) 16 VAR 118 [16] - [17] and the decision of Ashley J (as he then was) in Domburg v Nurses Board of Victoria [2000] VSC 369. In accordance with the formulation of Kellam J in Parr's case he said that for professional conduct to be of a serious nature:

It must be a departure, in a substantial manner, from the standards which might reasonably be expected [of a practitioner].

1. He noted that again according to the formulation of Kellam J conduct would not be of a serious nature if it were merely trivial, of momentary effect or minor.
2. According to Mr Pizer there were some five considerations which placed this unprofessional conduct into the serious category as judged by Parr's case and Domburg's case. He submitted based upon my original findings:

(a) Dr Hassed's advertisements were misleading or deceptive;

(b) Those advertisements constituted unjustified scaremongering;

(c) The web site advertisement might subject some persons to 'needless and inappropriate fear' and might create 'an inappropriate and unreasonable tension between patients and other practitioners';

(d) Those advertisements were not mere lapses and were steps deliberately taken by Dr Hassed; and

(e) Dr Hassed had behaved in a manner that constituted 'a considerable refusal to submit to guidance from' the Board.

1. He submitted that Section 64 of the Dental Practice Act 1999 made it a criminal offence for a practitioner to engage in misleading or deceptive advertising. He said this evinces a clear statutory intention that misleading or deceptive advertising of a dental care provider's practice or services is, in the ordinary course at least, far from a minor or a trivial matter.
2. He submitted that I should accept that Dr Hassed's unprofessional conduct was of a serious nature and referred to the suite of sanctions which Section 47(2) of the Dental Practice Act 1999 authorised me to impose on Dr Hassed. He said that the authorities relating to professional conduct sanctions:

Emphasise that the jurisdiction is protective in nature rather than punitive, that the likelihood of repetition of the unprofessional conduct is relevant to the question of appropriate penalty, and that the issues of general and specific deterrence are also relevant to that question.

1. He submitted that the finding that the doctor's advertisements were unjustified scaremongering which targeted a vulnerable section of the community were important in judging the proper penalty. There was a clear need to protect the public from misleading or deceptive advertising of dental services. It was necessary, he said, to deter Dr Hassed and other practitioners when publishing these type of advertisements. He noted that Dr Hassed had had previous disciplinary brushes. Finally he said that the fact that Dr Hassed had defended the proceeding to the end meant that there was a likelihood that he would infringe again unless a suitable penalty were imposed.
2. Mr Pizer submitted that Dr Hassed should engage in corrective advertising by placing an announcement on his website for six calendar months, referring to the Tribunal findings of unprofessional conduct and referring readers to my determination on the Austlii system. He submitted that there should be a fine of $10,000 to be paid within 30 days with suspension from practice in the event of non-payment with suspension persisting until payment. Finally, he submitted, that the doctor should be cautioned as to his future advertising.
3. Mr Pizer conceded that if the finding were that Dr Hassed's unprofessional conduct was not of a serious character, the penalties previously imposed of a reprimand and caution would be appropriate.

1. Mr Caleo SC with Ms Ellyard appeared for Dr Hassed upon the remitter. They submitted that Kozeniauskas' case remained important for a number of reasons. First, they noted that Hargrave J had quoted with specific approval the statement at [7] of Kozeniauskas' case [2005] VCAT 1058 where His Honour said in considering whether unprofessional conduct was of a serious nature or not, one had to consider:

Not only the facts of the case, but also an assessment of the conduct in the context of the conduct of professional practice generally.

1. They noted that in quoting the relevant passage Hargrave J italicised the words just quoted, indicating approval of them. It was necessary therefore, they said, to consider not whether this was a serious case of misleading and deceptive advertising but whether these matters were serious in the context of Dr Hassed's entire practice.
2. They noted that Hargrave J recorded a concession by the Board that issues of parity were relevant to the question whether unprofessional conduct was of a serious nature or not, hence they submitted:

The Tribunal was and remains entitled to have regard to the way in which other examples of unprofessional conduct had been viewed by the respondent or by the Courts.

1. They noted that my finding that the advertisements in Dr Hassed's case were far less objectionable than those in Kozeniauskas' case remained undisturbed by the appeal process. They said that there was no evidence that the advertisements caused fear or detriment to any person.
2. Accordingly they submitted that the unprofessional conduct should be characterised as being not of a serious character.
3. Even if it were found to be of a serious character, they said the orders sought by the Board were inappropriate. They noted for instance, that the advertisements of question were published as long ago as 2002 and no further complaints had been made as to the doctor's advertising. [In reply Mr Pizer said that there had been a further complaint in 2005 relative to Dr Hassed's advertising. The Board had elected not to take that matter any further however.] They said that in any event there should be no corrective advertising ordered to rectify any alleged misinformation would be in their submission 'problematic'. It would be hazardous they said, to attempt to summarise the lengthy findings that had been made. Moreover, the length of time that had elapsed since these advertisements had been placed, meant that to raise this issue anew would do as much harm as good.
4. They said it was not appropriate to impose a maximum fine of $10,000. Misleading advertising by dental care providers was dealt with in Section 64 of the Act and a maximum penalty of 50 penalty units was imposed. This would equate to a fine of something a bit over $5,000. In any event they said this was not 'the worst of the worst' unprofessional conduct, hence it was inappropriate to impose a maximum penalty.
5. They submitted in any event that the Tribunal was not empowered in these circumstances to require corrective advertising. First, they said, that corrective advertising was expressly dealt with in Section 67 of the Act in the context of convictions for a criminal offence of misleading and deceptive advertising. They submitted this implicitly excluded any implied entitlement of the Board or the Tribunal on review, to require corrective advertising as a condition of registration. In any event, they said, that the power to impose conditions upon a finding of unprofessional conduct of a serious nature related only to conditions upon registration not upon practice. The provisions from Section 4 onwards of the Act dealt with issues of registration and they did not cover the issue of advertising at all, hence it would be inappropriate and unlawful they submitted, to attempt to impose a condition as to corrective advertising in the context of registration.
6. They noted that not all of the adverse findings made by the Board in its initial determination had been sustained on review, for instance, the Board had found that Dr Hassed's advertising had created 'an unreasonable expectation of beneficial treatment' contrary to Section 64(1)(d) of the Dental Practice Act 1999. I had not sustained that finding on review, hence the findings against Dr Hassed on review were not as damming as those made initially.

1. At the outset I should say that nothing that I have heard would cause me to reconsider my statement that I find the advertising, the subject of the proceeding in Kozeniauskas' case, far more objectionable than the advertising in Dr Hassed's case. As a result of the judgment of Hargrave J it seems I am required to put this matter aside or at least give it relatively minor weight when considering whether Dr Hassed's unprofessional conduct is of a serious nature. As I understood His Honour's judgment, I am urged to concentrate on the facts and circumstances surrounding Dr Hassed as being the most important matters to consider.
2. For the reasons given in my principal determination I regard the doctor's advertisements as being significant transgressions. They were deliberate and were persisted in. To adapt the formulation of Kellam J in Parr's case, they are a departure in a substantial manner from proper standards and so should be characterised as unprofessional conduct of a serious nature. Despite the submissions by Mr Caleo and Ms Ellyard that there is no evidence of any particular individual being misled or put in fear or having his or her relationship with a dental practitioner undermined, the advertising created a danger that these things might occur. Had the Board not acted it is clear that such advertising might have continued for an indefinite period and what were mere risks might have become reality.
3. All this means is Hargrave J correctly observed, that Dr Hassed merits sanctions more extensive than are available upon a finding of unprofessional conduct which is not of a serious nature.
4. The submissions made on penalty on previous occasions stressed that it was an irrelevant consideration to think that a practitioner had 'suffered enough' by reason of the humiliating and burdensome nature of disciplinary proceedings, nevertheless, the Board also contends that both general and specific deterrents is a relevant consideration. So much appears to be correct. I believe however that the very nature of disciplinary proceedings has an intrinsic power of deterrence both for the subject and for other practitioners. What has happened already is in my view a deterrent both specifically to Dr Hassed against engaging in similar conduct in the future and to any other practitioners who might contemplate doing such a thing.
5. Passing then to the issue of penalty, I find it unnecessary to decide the question whether in the circumstances the Tribunal is empowered to require corrective advertising from Dr Hassed by means of a condition upon his registration. The purpose of corrective advertising as Mr Pizer conceded is to dispel untruth. The evidence which I heard at the principal hearing indicated that the issues surrounding the use of amalgam fillings are complex. Dr Hassed got into difficulty in trying to put these issues 'in a nutshell' in his advertisements. Corrective advertising might create the very same difficulty albeit in the opposite direction. Advertising which in the interests of giving the full picture, referred readers to the Tribunal's determination which covers some 21 pages of single spaced typescript and some 66 paragraphs would likely be productive of bafflement rather than enlightenment. When Dr Hassed attempted to justify his advertising by reference to the inclusion of hyperlinks to NH&MRC publications, Counsel for the Board rightly submitted that most readers would not take the trouble to follow the hyperlink. The same would go for corrective advertising which referred to the Tribunal's determination. Moreover, I agree with the submission made by Mr Caleo and Ms Ellyard that after the passage of so long a time to raise the difficult and complex issue of amalgam fillings relative to their alternatives, might in itself, cause concern amongst vulnerable people. In my view the old maxim 'least said, soonest mended' should guide us here. There should be no corrective advertising.
6. I am also conscious that Dr Hassed has on a previous occasion been subject to professional discipline for the use of unqualified persons in his practice.
7. Mr Pizer submitted that a maximum fine of $10,000 should be imposed and that the fine should be to the maximum level because the fine itself was so low. An alternative construction might be that fines in circumstances such as the present should be modest, simply because so low a maximum fine has been chosen. It is unnecessary for me to express a concluded view on this because the point made by Mr Caleo and Ms Ellyard as to the relativity of the proposed fine with the maximum penalty which could be imposed for misleading advertising by a dental care provider, indicates in itself that a $10,000 fine would not be appropriate. Moreover the case which has ultimately been sustained, even following the remitter is not as serious as the one found by the Board. A number of the Board's findings and contentions were not sustained. Being of the view that this is a matter of significance but not as serious as the Board contends, I believe a fine of $4,000 is appropriate. The consequential orders proposed by Mr Pizer with respect to suspension in the event of non-payment and the form of the proposed caution seem to be appropriate.

1. I have heard no submissions on costs and so I will reserve the question. In reserving costs however, I should not be taken to be encouraging any applications for costs.