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

1 Consequent upon the receipt of complaints by two patients concerning treatment provided by the applicant, Dr. George Varnavides, the Dental Practice Board of Victoria ("the Board") conducted an investigation into the matter in accordance with the provisions of the Dental Practice Act 1999 ("the Act") and, on 17 November 2003, suspended his registration as a dentist from 28 November 2003 until 27 November 2005.

2 Dr. Varnavides sought a review of that decision by the Victorian Civil and Administrative Tribunal ("VCAT") and, on 16 December 2003, Deputy President Davis varied it to the limited extent that she directed that the period of suspension would commence on 16 January 2004 and conclude on 16 January 2006.

The First Contempt Proceeding

3 On 7 July 2004, the Board initiated a proceeding before VCAT (V2 of 2004), claiming that the applicant had acted in deliberate breach of this order and should be held to be in contempt of the Tribunal.

4 In a directions hearing in that proceeding, on 12 August 2004, the President of VCAT, Morris, J., adjourned the matter, leaving it to the Board to decide what course it proposed to follow[1]. However, he granted an injunction prohibiting the applicant from practising dentistry, as defined in the Act, until 16 January 2006 or further order.

5 Wishing to emphasize the seriousness with which any breach of this injunction would be regarded, his Honour stated:

"I wish to stress that if the order I now make is disobeyed there is a potential for serious consequences to flow from a breach of the order. Section 137 of the Victorian Civil and Administrative Tribunal Act, which makes provision for punishment where a person is guilty of contempt of the tribunal, specifies that if the tribunal finds that a person is guilty of contempt of the tribunal it may, in the case of a natural person such as [the applicant], commit the person to prison for a term of not more than five years or impose a fine of up to $100,000. Moreover if the order I make today is disobeyed it might be properly regarded as a direct and wilful disobedience of a direct and transparent order by the tribunal constituted by the President of the tribunal."

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:

"Mr Eric Morse attended the Carlton House Dental Surgery on 2 September 2004 and was asked by Dr Varnavides to sit in a dental chair. Mr Morse explained to Dr Varnavides that bridge work that Dr Varnavides had previously constructed for Mr Morse had come loose. Dr Varnavides placed his fingers in Mr Morse's mouth and used dental instruments, drills and a needle anaesthetic on Mr Morse. Dr Varnavides performed root canal treatment on one of Mr Morse's teeth and also repaired the posts for Mr Morse's bridge work. Dr Varnavides charged Mr Morse $1,150.00 for this procedure.

Mr Morse attended the Carlton House Dental Surgery on 4 January 2005 and was again placed in the dental chair by Dr Varnavides. Dr Varnavides opened Mr Morse's mouth, examined Mr Morse's teeth, and placed his hands inside Mr Morse's mouth to work upon the bridge with dental instruments. Dr Varnavides placed cement on the bridge. Dr Varnavides did not charge Mr Morse for this work because Mr Morse refused to pay, and no tax invoice was issued."

10 For these offences, Morris, J. committed the applicant for a term of imprisonment for six months. His Honour made no order for cumulation, but clearly contemplated that the suspended sentence, earlier imposed, would become operative and that, consequently, this order created a total sentence of imprisonment for twelve months.

11 As we have pointed out, his Honour made it apparent that he intended that his Order of 22 September 2004 would be self-executing upon it being found that the applicant had committed an offence under section 61(1) of the Dental Practice Act or a further contempt. It also appears from remarks made by him in the course of that hearing that he anticipated that, in the event the applicant offended in either of the fashions designated, a sentence of 12 months imprisonment may well be the consequence. He said, with respect to this prospect:

"Hence, automatically, on either of those two things, a warrant will be issued or can be issued, will be issued for your arrest and you will be imprisoned for six months. Further, that will be in addition to any punishment as a result of the further offence. So, if you do further offend, it might be that the punishment for the further offence is six months imprisonment. So that would be added to the six months that I am now committing you to, on the condition, meaning you would need to serve 12 months in prison."

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):

"...the nature of a criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly would this be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders might be seen to be inconsistent with the court's power to commit for contempt of court. Because the power to commit for contempt has always been regarded as a power to commit for a 'fixed term', it may well be that the legislative discretion given to courts to suspend sentences and to fix 'minimum terms' are also inconsistent with the exercise of the power (compare Morris v. Crown Office ...."[10] (citations omitted)

18 Nevertheless, contempt of court is a serious offence and should be approached, as far as possible, in a way which is consistent with that adopted when dealing with criminal conduct generally. There is no reason to suppose that the provisions of the Sentencing Act were intended to fetter the unlimited jurisdiction of the Supreme Court to punish for contempt of court. But, obviously, the Sentencing Act deals with a range of matters of principle or practical importance to the imposition and operation of sentences - matters, including, for example, the very practical question of the order in which sentences are to be served - and, as a matter of commonsense, a Supreme Court judge would have regard to them when dealing with a case of contempt.

19 As the High Court pointed out in Doyle v. The Commonwealth[11], a proceeding for committal may result in a very serious interference with the liberty of the subject and safeguards similar to those appropriate in criminal proceedings therefore apply. These include not only compliance with the procedural requirements considered in that case but, with necessary modification, a range of principles relevant to the determination of an appropriate disposition in the circumstances[12].

20 Kirby, P., in Registrar of the Court of Appeal v. Maniam [No. 2][13] put the position as follows:

"A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way."

21 VCAT is a statutory tribunal established by section 8 of the Victorian Civil & Administrative Tribunal Act 1998. Exceptionally for such a body, it has been conferred with power to charge and deal with a person found guilty of contempt. But, consistently with the principles which apply to statutory tribunals, its powers to punish for contempt are strictly limited. Section 137 provides that the tribunal may:

"(a) in the case of a natural person, commit the person to prison for a term of not more than five years or impose a fine of not more than $100,000, or do both."

Where such commitment has been ordered, the tribunal may discharge the individual before the end of the term. It may also accept an apology for the contempt, and remit any punishment imposed either wholly or in part.

22 These provisions do not envisage the imposition of a suspended sentence. On their face they do not do so and, read in context, no such power can be implied. The implication is that the only sentence of imprisonment contemplated is one involving immediate incarceration.

23 Section 138 provides for an appeal only as against an order committing a contemnor to prison:

" Appeal against punishment for contempt

(1) A person who is committed to prison or fined under section 137 may, with the leave of the Court of Appeal, appeal to the Court of Appeal in accordance with Part VI of the Crimes Act 1958 against the punishment as if -

(a) they were a person convicted on indictment in the Trial Division of the Supreme Court; and

(b) the punishment imposed were the sentence passed on their conviction."

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:

"The necessity for judicial determination of the facts on which the operation of an order in contempt depends has long been recognized. Thus it has been held to be wrong to direct attachment or sequestration on the occurrence of a future uncertain event (In re Lumley; Ex parte Cathcart_;_ Hulbert & Crowe v. Cathcart), not because of want of jurisdiction to suspend the operation of such an order, but because an order in that form is incorrect: Lee v. Walker. In Doyle v. The Commonwealth, it was held that an order of committal is wrongly made if it leaves to the officer enforcing it the function of deciding which persons are to be committed. The principle is that, when the operation of an order in contempt depends on the occurrence of an event or the existence of some circumstance, the order must reserve to the court and must not leave to the person charged with the execution of the order the function of determining whether that event has occurred or that circumstance exists." [17] (citations omitted)

28 The High Court in Coward v. Stapleton[18] had earlier set out the rationale for the adoption of this approach:

"...it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him... The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations... The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon. (emphasis added)"

29 Furthermore, where a suspended sentence has been imposed by a court under section 27 of the Sentencing Act and the terms of the suspension are breached, the provisions of sections 29 and 31 of the Act are engaged and a charge is laid and a hearing is then conducted. If the charge is found to be proved, the court has a number of options. These range from the restoration of the whole of the sentence or part held in suspense, with an order that it be served cumulatively upon any other sentence previously imposed, to doing nothing at all. But nothing happens of its own accord. The process necessitates an exercise in discretion dependent on the nature or circumstances of the breach involved.

30 Contrastingly, his Honour's order in the present case purports and was clearly intended to be self-executing. All that needed to be established was the commission of a further contempt or a breach of the provisions of the Dental Practice Act. No question of the exercise of any discretion dependent on the nature or circumstances of the breach involved or what would happen in the event of some unanticipated situation arising was seemingly considered, nor was attention apparently directed to any process to give effect to the order.

31 It is further apparent, if we may say so with respect, that his Honour may have misconceived the nature of a suspended sentence. Although a suspended sentence does not involve immediate incarceration for the portion which is suspended, it is a real sentence of imprisonment that may well have to be served in custody. Accordingly, whether or not the position is approached by reference to the Sentencing Act or as a matter of common law, and notwithstanding widespread community perceptions, it is regarded as a much more serious disposition than the imposition of a fine.

32 The following passages from his Honour's reasons for decision demonstrates that he did not approach the matter on that basis:

"I am taking the course I have taken because it is necessary to impose some real pain immediately upon you by way of fine, although in the scheme of things the amount might be thought to be relatively modest.

But more importantly, I want the Sword of Damocles hanging over your head. I want you to be in a position where you have every [incentive] to obey the law."

33 Shortly afterwards in response to a request for a substantial time to pay the fine of $10,000, he said:

"HIS HONOUR: I don't think that is appropriate, because the intent of the fine is to inflict some immediate impact.

COUNSEL: Yes. Well, perhaps your Honour may consider an instalment order of appropriate - - -

HIS HONOUR: I don't think that is appropriate really. Unless there was a lot of evidence, I would think that I should simply order he pay the fine within one month of today.

COUNSEL: Well, I can indicate that - - -

HIS HONOUR: It might be that he has to borrow the money.

COUNSEL: That is a matter which is likely to cause great difficulty, and I also would indicate to your Honour that if in a criminal proceeding the courts, the Sentencing Act does provide that instalment orders are orders which are essentially to be made on request, that it is not something that generally countenances much argument. I don't have a copy of the Sentencing Act with me, I am sorry, I normally carry it around with me.

HIS HONOUR: No, I accept your word for it. It is fairly obvious you know a lot more about the Sentencing Act than I do. But I am not bound by the Sentencing Act.

COUNSEL: Your Honour is not, that is correct.

HIS HONOUR: And one factor that led me to suspend the sentence was that I wanted Dr Varnavides to feel some immediate hip pocket disadvantage, and I might - I am not proposing to bargain on this."

34 Evidently, his Honour regarded the fine as the significant penalty and the suspended sentence simply as a powerful deterrent or a threat held over the applicant's head directed to ensuring future compliance, rather than as punishment for the conduct under consideration.

35 Finally, on this aspect of the matter, it should be observed that even if it had been open to his Honour to deal with the matter as he did, the sentence imposed was manifestly excessive in the circumstances. The applicant was 68 years of age, married with three school age children and with no prior convictions of any kind. The breach consisted of the provision of pain relief of a kind that could have been administered by an ordinary member of the community, to an agent provocateur feigning distress.

36 Neither the imposition of a suspended sentence nor the substantial fine handed down could be regarded as within the range available in the proper exercise of discretion in this case. That order and the order imposing the fine are therefore set aside and in lieu thereof a fine of $5,000 is substituted.

The Application with respect to the Orders made on 27 April 2005

37 We now turn to the order of commitment made by his Honour on 27 April 2005 relating to the applicant's conduct on 2 September 2004 and 4 January 2005.

38 In the course of that hearing, the following exchange occurred:

"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."

39 When handing down his decision, his Honour then said:

"Frankly, in these circumstances the Tribunal has been given no effective choice, especially as certain undertakings that might have kept Dr Varnavides out of prison have not been given. That is, undertakings in relation to never practising or being associated with the practice of dentistry in Victoria in the future.

It follows that the course I propose is to order that Dr Varnavides be imprisoned for a term of six months for the contempt of the Tribunal in practising dentistry on 2 September 2004, 30 September 2004 and 4 January 2005."

40 Those passages of his Honour's reasons for decision are, with respect, plainly indicative of error. There was, at least, a distinct possibility that any application made by the applicant for re-registration would be unsuccessful and that, as a practical proposition, his professional career was almost certainly over. However, the responsibility for dealing with such matters was entrusted to an expert body, the Dental Practice Board, and not to VCAT, although the Tribunal may have later had some role in the process. In any event, as his counsel asked rhetorically, was it fair to deny the applicant the opportunity available to him under the law to seek re-registration. Surprisingly, his Honour stated:

"Well it may not be fair [emphasis added] 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",

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.

I certify that this and the preceding 17 pages are a true copy of the reasons for judgment of Vincent and Nettle, JJ.A. and Harper, A.J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 19 September 2005.

DATED the day of 2005.

[1] His Honour stated in his Reasons for Decision:

"As for the application for contempt in relation to Deputy President Davis' order, it does involve more complex issues because the order made in that case, on one view, was not directly concerned with whether Dr Varnavides could or could not practice dentistry, although it could no doubt be said that it had that effect. But it is unnecessary to pursue that at this stage. Rather the appropriate course is to adjourn that proceeding for about a month to see what action the Dental Board proposes to take. Matters that might be subject to consideration would be the possibility of action under section 61 of the Dental Practice Act or action under section 133 of the VCAT Act, or proceeding with the application itself. Further, the attitude taken by the Dental Board may be influenced by, not only compliance with the injunction I make today, but also the co-operation shown by Dr Varnavides in demonstrating that the order made today is being complied with."

[2] He adjourned proceeding V2 of 2004 sine die.

[3] That section reads:

"(1) A person must not practice dentistry unless he or she is registered as a dental care provider under this Act.

Penalty: 100 penalty units.

(2) Nothing in this section operates to prevent -

(a) a registered medical practitioner from practising dentistry in the ordinary course of his or her practice as such or in any case where the services of a registered dental care provider are not obtainable;

(b) the provision of emergency dental treatment, without fee or reward, if a person is in pain and no registered dental care provider or registered medical practitioner is available;

(c) a registered dental student from providing dental care in accordance with the student's registration as part of a course of study or training at an institution recognised by the Board for the purposes of this Act."

[4] He pleaded not guilty to two other charges and, after a hearing, was acquitted of them.

[5] Bell v. Stewart (1920) 28 C.L.R. 412 at 427-9; John Fairfax & Sons Pty Ltd v. McRae [1955] HCA 12; (1955) 93 C.L.R. 351 at 362-3 and 370.

[6] Victoria v. Australian Building Construction Employee's and Builders Labourers' Federation [1982] HCA 31; (1982) 152 C.L.R. 25 at 42; Australasian Meat Industry Employers' Union v. Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 C.L.R. 98 at 115.

[7] Re. Dunn [1906] VicLawRp 84; [1906] V.L.R. 493 at 499; Bush v. Green [1985] 1 W.L.R. 1143 at 1148-9; R. v. Le Froy (1873) L.R. 8 Q.B. 134 at 137-8.

[8] Halsbury's Laws of Australia at [105] - [108].

[9] Administrative Appeals Tribunal Act 1975 (Com), s. 63.

[10] Rich v. Attorney-General (Vic) [1999] VSCA 14; (1999) 103 A. Crim. R. 261 at 281.

[11] [1985] HCA 46; (1985) 156 C.L.R. 510 at 516.

[12] It is to be observed, in this context, that this Court in Rich found that a judge had fallen into error in fixing a global sentence for discrete acts of contempt rather than dealing with them separately.

[13] (1992) 26 N.S.W.L.R. 309 at 314.

[14] R. v. Adams [1935] HCA 62; (1935) 53 C.L.R. 563 at 567-8; Beckwith v. The Queen [1976] HCA 55; (1976) 135 C.L.R. 569 at 576-577, per Gibbs, J.; Pearce & Geddes, Statutory Interpretation in Australia 5th Ed. at [9.9] and [9.10].

[15] "130. Power to impose conditions and make further orders

(1) A power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit.

(2) Conditions or further orders may include -

(a) an adjournment of the proceeding;

(b) an order for costs;

(c) a condition or order that a party give notice of the proceeding, order or decision to any person specified by the Tribunal;

(d) a condition or order that a person give an undertaking to the Tribunal;

(e) a condition or order necessary or desirable to give effect to an order or other decision."

[16] The Dental Practice Board, for example, under section 69(2) of the Act has "all the powers necessary to enable it to perform its functions", whilst the Sentencing Advisory Council, established under the Sentencing Act 1991 has, (subject to exceptions concerning the acquisition, holding or disposition of real or certain personal property) pursuant to s. 108D:

"power to do all things necessary or convenient to be done for, or in connection with, performing its functions".

[17] [1986] HCA 46; (1986) 161 C.L.R. 98 at 117-8, in dissent, but not on point of principle.

[18] [1953] HCA 48; (1953) 90 C.L.R. 573 at 579-80 (citations omitted). See also Lloyd v. Biggin [1962] VicRp 80; [1962] V.R. 593 at 594.