Varnavides v Victorian Civil & Administrative Tribunal & Anor [2005] VSCA 231

Varnavides v Victorian Civil & Administrative Tribunal & Anor [2005] VSCA 231 - VSCA 2005 case summary — Zoe

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The Second Contempt Proceeding

6 On 31 August 2004 (V6 of 2004), the Board commenced a further proceeding, claiming that the applicant had wilfully disobeyed the injunction, and was accordingly, again in contempt of VCAT. This charge was based upon evidence given by Ms Anne Marie, a private investigator engaged by the Board. She said, by way of affidavit and viva voce evidence that, as it was suspected that he may not have been complying with the terms of the injunction, she had been engaged to investigate his activities. She contacted the applicant, by telephone, at a surgery with which he was associated, on 24 August, feigning a dental condition and claiming that she was in distress. She was unsuccessful in making an appointment for that day, but nevertheless attended at the surgery, very shortly afterwards. She told the applicant that she was in pain and he manually applied a substance to the supposedly affected area in order to afford her temporary relief.

7 At the conclusion of a hearing at which the applicant pleaded not guilty, on 22 September 2004, Morris, J. found the charge of contempt proved and sentenced him to imprisonment for six months, the service of the whole of which was suspended until 16 January 2006[2]. His Honour directed that the sentence of imprisonment would be automatically operative, if the applicant were found to have subsequently committed an offence under s.61(1) of the Dental Practice Act 1999[3] or a further contempt of the Order made on 12 August.

8 Although the Notice of Application for Leave to Appeal before the Court contains the contention that the conviction of the applicant, in these circumstances, should be set aside for a number of reasons, and written submissions were filed addressing that aspect, at the hearing, Mr Dunn, who appeared as senior counsel on the applicant's behalf, confined his submissions to the claim that the sentence imposed was manifestly excessive.

The Third Contempt Proceeding

9 In a further proceeding instituted by the Board, on 10 December 2004 (V10 of 2004), the applicant, on 16 March 2005, pleaded guilty to two further charges of contempt committed on 2 September 2004 and 4 January 2005[4]. The bases of these charges are described in the Summary of Evidence with which we have been provided as follows:

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12 Whether he made these remarks in the hope that he might deter the applicant from committing any further breach or he misunderstood the position is unclear. There is no reason whatever to suppose that, unless it can otherwise be seen to have been intended, an order for commitment would not become operative at the time at which it was imposed. There is nothing in his Honour's remarks that suggests that he directed attention to this aspect or to the exercise of discretion concerning concurrency of service or the partial cumulation of the periods of incarceration involved. Although his Honour did not indicate that such a result would be inevitable, when regard is had to comments (set out later), made by him in the third contempt proceeding and the fact that a sentence of six months imprisonment was handed down, his reference to the prospect of a sentence of that precise length being imposed raises the possibility of a measure of prejudgment in these remarks. He certainly appears to have assumed that any later sentence would be served cumulatively.

13 Again, although the Notice of Application for Leave to Appeal and the Outline of Submissions provided to the Court, with respect to the order made on 22 April 2005 are directed to both conviction and sentence, only the application with respect to sentence was pursued.

14 It is apparent that each of the applications against sentence in this case must be allowed.

The Application with respect to the Orders made on 22 September 2004.

15 Setting to one side for the moment the contention advanced on behalf of the applicant that the imposition of a suspended sentence of six months' imprisonment together with a substantial fine was manifestly excessive in the circumstances, in our judgment it is clear that his Honour had no power to impose a suspended sentence of imprisonment.

16 Superior courts of record of plenary jurisdiction, like the Supreme Court of Victoria, have unlimited jurisdiction to punish for contempt[5]. Similarly, superior courts of record of limited jurisdiction, such as, for example, the Federal Court of Australia, have broad implied powers enabling them to respond appropriately to issues arising within their jurisdiction[6]. Contrastingly, however, the power of inferior courts to punish for contempt is restricted at common law to punishing for contempt in the face of the court and to such other jurisdiction as may be conferred by statute[7]; and, in the main, statutory tribunals have even less power to punish for contempt. Indeed it is not only unusual for a statutory tribunal to be accorded any such power, but where it is conferred it is strictly limited to the terms of the statute[8]. Ordinarily, as, for example, with the Commonwealth Administrative Appeals Tribunal, a statute may provide that certain sorts of conduct will constitute contempt which is punishable as an offence, but only by a court following trial and conviction for that offence.[9]

17 Because contempt is a distinctive offence attracting remedies which are sui generis, the Sentencing Act 1991 does not apply in cases of punishment for contempt in the same way as it applies to sentencing for other criminal offences. As Winneke, P. explained in Rich v. Attorney-General (Vic):

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There is no provision for appeal as against a suspended sentence. The expression "a person who is committed to prison ... under section 137" is inapt to embrace a person subjected to an order for a suspended sentence, and, as a matter of statutory interpretation, such (if any) doubt as there is about that must be resolved in favour of the view that it does not.

24 Plainly it cannot be supposed that VCAT was intended to have powers of punishment which were not subject to appeal and, if there were any doubt about it, ordinary principles of statutory construction[14] would dictate that the section be construed in favour of the subject and thus against the notion that the section was intended to confer any wider powers of punishment than those for which it expressly provides.

25 There is of course a measure of flexibility permitted within section 137 directed to the purposes of punishment for contempt, enabling, for example, the contemnor to purge the contempt through apology or other conduct directed to rectifying the situation. VCAT, its authority having been vindicated, can then respond by remission of some or all of the penalty imposed. But the making of an order for commitment, the service of which is suspended and is to be re-activated by some other independent breach, would constitute a different sanction that addresses not only the matter of the appropriate punishment for the proven contempt but the future conduct of an individual, imposing an additional consequence upon that conduct. Doubtless the imposition of a suspended sentence could be seen to have a deterrent effect and might, therefore, as a matter of principle, be seen to be an appropriate disposition in some cases of contempt. But even assuming that VCAT had jurisdiction to make such an order (and, as already explained, it does not) the deterrence of the individual could not of itself provide an adequate basis for an order for commitment in the first place. That disposition would need to be seen to be required as a response to the proven contempt before any question of suspension could arise for consideration. We shall return to this aspect of the matter.

26 His Honour accepted in discussion that the power to suspend an order for commitment did not directly arise under section 137 and that the Sentencing Act provisions, which in terms apply only to courts, had no application. He went on, however, then to hold that he had power to make an equivalent order under section 130 of the Act[15]. But with respect, that is plainly not so. Section 130 confers upon the tribunal what can reasonably be described as the commonplace incidental powers necessary to ensure the efficacy of its ordinary operations[16]. There is no reference or suggestion in the terms, context, or the evident purpose of section 130, that it has any relevance to the power of VCAT to address acts of contempt which are specifically dealt with in another division of the Act. The possibility that the legislature would, through the granting of normal incidental powers, have intended to confer powers of punishment beyond those specifically enacted is altogether unlikely.

27 So much moreover is confirmed by the fact that no court in Victoria could make an order under the Sentencing Act of the self-executing kind that was imposed in this case and even, were the Supreme Court to impose a suspended sentence in a case of contempt (bearing in mind the reservations earlier expressed as to how this would be achieved), it is difficult to conceive of a situation in which it would ever be lawful to make a self-executing order for imprisonment. As Brennan, J. put it in AMIEU v. Mudginberri Station Pty Ltd:

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"HIS HONOUR: Well, [Counsel], last time, at the end of the hearing I made certain observations as to matters that might be relevant as to what I do relating to whether Dr Varnavides is prepared to cease for all time practising dentistry and being associated with the practice of dentistry. I'm not sure that I would have the power to make any orders about that.

COUNSEL: With respect I don't believe your Honour would have the power to make orders of that nature.

HIS HONOUR: But certainly if undertakings were given, that would be highly influential in what course I would follow. So if, for example, without such undertakings the appropriate penalty was imprisonment for six months, which effectively would mean 12 months because of the previous six months.

If, on the other hand, undertakings were given, I might be persuaded to adjourn this proceeding on the conditions that you have outlined, that is conditions relating to further treatment, which not only avoids the six months that I might impose in relation to the matters just found proved, but also avoids triggering the earlier sentence.

COUNSEL: Yes, it would have that effect.

HIS HONOUR: Now, it is important that I be told if such undertakings are going to be forthcoming.

COUNSEL: I would need to obviously speak specifically with Dr Varnavides about those matters.

HIS HONOUR: I mean, I thought I made it fairly clear last time that this was the sort of choice which was facing Dr Varnavides.

COUNSEL: Yes. Perhaps I should indicate that Dr Varnavides has undertaken steps in accordance with the original order suspending his registration that he receive some re-training. He has undertaken steps and he instructs me that I think in July this year the program of re-education that has been sought, and I understand approved by the Dental Practice Board - no? Well perhaps I need to speak to Dr Varnavides about that as well. But the indication is that he is hopeful, ultimately, of being re-registered and again practising as a dentist.

HIS HONOUR: Well ...

COUNSEL: And certainly not before then.

HIS HONOUR: Well if that's - sometimes in life you come to a point, a final point, where you've got to make a choice. I think that for Dr Varnavides today is the point. It might be thought that he's fortunate in that this Tribunal is even contemplating giving him a choice. But if he doesn't take one particular avenue, however unpalatable that may be to him, well then I really would have no choice but to send him down the other avenue. The avenue to imprisonment.

COUNSEL: I think I'd probably need to consider a little bit what your Honour's saying and also, again, to speak to Dr Varnavides.

HIS HONOUR: Well I don't know whether I can make it any clearer.

COUNSEL: No, I understand that. When I say consider, I'm considering whether how I need to respond and what instructions I need to get from Dr Varnavides before I do respond.

HIS HONOUR: Well I'm prepared to give you some time to talk to him one last time.

COUNSEL: Yes, thank you. I certainly - I mean I can't right here and now, obviously, give a considered response to what your Honour's saying. But I need to take instructions and I need also ...

HIS HONOUR: Well, see, it's quite apparent that the Dental Practice Board's view is that not only was Dr Varnavides properly suspended for two years, but his conduct since makes him unsuitable to be a dentist.

COUNSEL: And it may well be of course that no matter what he does, he may never be re-registered. But I suppose I ask the rhetorical question, Is it fair to cut off that possibility entirely? I mean the suspension of registration.

HIS HONOUR: Well it may not be fair but if he wants to preserve the opportunity to be a dentist in the future, well then the absence of undertakings that may give me some comfort will have the consequence that I would have no other choice but to imprison him.

COUNSEL: So just to be absolutely clear. Your Honour is indicating an undertaking of a type which would be that he walk away from dentistry forever.

HIS HONOUR: Yes. And by that I don't just mean undertaking not to practice as a dentist forever, but I would include being associated with any dental practice, owning a dental practice, owning a building in which a dental practice is conducted. I would want it to be in a way that makes it ... very easy for the undertaking to be enforced and very difficult for it to be disobeyed."

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and made the applicant an offer that his Honour appreciated placed him between Scylla and Charybdis, saying that he was "fortunate" that he was being given "a choice" at all.

41 His Honour's function was to exercise the powers under section 137 with respect to two admitted acts constituting contempt of the Tribunal. It was not for him to decide that the applicant would never again pursue his profession as a dentist nor to deny to him the opportunity to gain re-registration. The seeking of an undertaking, supported by the threat of imprisonment for a period of 12 months, directed to the achievement of those objectives fell well beyond the jurisdiction of VCAT. It was not directed to the determination of an appropriate penalty, but to ensuring that the applicant never again practiced as a dentist or even placed himself in a position that he might be tempted to apply for registration. His Honour must have formed the view that regardless, whatever view the Board later formed, the applicant had to retire.

42 The power to imprison for contempt is necessary in order to ensure the status and integrity of the judicial and administrative structures upon which our society depends. But it is an extreme power which must be exercised as infrequently as possible and always with restraint. As a general proposition and where possible, it is also undesirable that contempt proceedings should be conducted before the judge or tribunal member who made the original order so as to avoid the suggestion that there may have been some overreaction to a perceived slight or challenge to the authority of the particular decision maker. It is certainly not a power to be employed for extraneous purposes. In the present case, his Honour misconceived the nature of his role in this respect and, in consequence, the applicant was required to choose between giving up the hope (almost certainly very slim) of resuming the practice of a profession that he had pursued for many years or being sent to prison for the manifestly excessive period of 12 months.

43 This order for commitment must also be set aside.

Re-sentencing

44 Were it not for the necessity to have regard to the principle of double jeopardy and the particular circumstances relating to the making of the Order on 27 April 2005, we would have regarded the imposition of a period of imprisonment as appropriate in the case of the applicant who, having already been found guilty of contempt, then persisted in conduct breaching the injunction prohibiting him from engaging in dental practice.

45 However, in the special circumstances of this case, we consider that for each of the acts concerned a fine of $10,000 would be appropriate.

At a glance

Court

Decision date

Before

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Judgment (47 paragraphs)

Parties