1. The Applicant breached the undertaking he had given to the Board to "maintain at least that level of coverage whenever I am providing dental care in Victoria" during 2006 because he failed to maintain his Professional Indemnity Insurance Policy throughout that year of his registration (2006), by failing to pay the insurance premium stipulated by Guild for the period of insurance commencing 1 July 2006 until 1 July 2007, and not renewing that Policy after 30 June 2006.
2. In December 2006, the Applicant received a further Application for Renewal of Registration for the Year Ending 31 December 2007, the followed by a Reminder Notice, those documents containing the same declaration set out in paragraph 45 above, and he signed that Declaration on 9 February 2007.
3. Dr Von Schrenk failed to maintain his Professional Indemnity Insurance Policy throughout that year of his registration (2007), by failing during that year to pay the insurance premium stipulated by Guild for either the period of insurance from 1 July 2006 to 1 July 2007, or the period of insurance commencing 1 July 2007. Hence the Applicant breached the undertaking he had given to the Board to 'maintain at least that level of coverage whenever I am providing dental care in Victoria' during 2007.
4. The Applicant was then required to bring a fresh Application for General Registration as a Dental Care Provider in Victoria, which he did by completing the relevant Application Form, and signing it on 27 April 2007. The Applicant subsequently gave a Statutory Declaration before a solicitor named Peter Schwarcz in support of the Application.
5. In his signed Application, and by his Statutory Declaration, both dated 27 April 2007, the Applicant declared (and undertook) as follows:

"I declare, knowing that a person making a false declaration is liable to the penalties of perjury that:

(a) ...

(e) I am aware of the Board's minimum terms and conditions for professional indemnity insurance and undertake to comply with them whenever I am practicing in Victoria. I am aware that if I fail to do so the Board may take disciplinary action against me."

1. At the time he made this declaration, Dr Von Schrenk was aware of the fact that he had failed to maintain his Professional Indemnity Insurance Policy with Guild, and had not paid the insurance premium stipulated by Guild since 1 July 2006.
2. The Applicant then failed to comply with that declaration and/or that undertaking in that, for 10 months thereafter, he did not pay the premium stipulated by Guild to maintain his Professional Indemnity Insurance Policy with Guild in place, or to renew it on 1 July 2007, and has admitted that he only ultimately paid the premium required on 22 February 2008.
3. The Applicant accordingly breached both his declaration and his undertaking to the Board in this respect.
4. However, I note in this context that he did make an attempt to pay the premium in August 2007 when he forwarded payment to the ADA. There was a delay in the ADA forwarding the payment to Guild and by the time it was received his policy had been cancelled and the payment wasn't processed[12].
5. When Dr Von Schrenk appeared before an Informal Hearing of a Panel of the Board on 24 July 2007 he brought with him a cheque for payment of his insurance premium, and was directed by the Panel to pay his insurance premium to his Insurer promptly, and to obtain confirmation from his Professional Indemnity Insurer that he was covered retrospectively from 1 July 2007 until his payment. Dr Von Schrenk failed to do so, and failed to respond positively or at all to that direction.
6. By letter dated 30 July 2007, the Notifications Manager wrote to Dr Von Schrenk confirming his agreement to write to his Insurer seeking written confirmation that he was covered retrospectively from 1 July 2007 until his payment (which he had with him at the Hearing) was cleared, and requested that he confirm that the payment had been sent and to provide the Board with confirmation that he was so covered, all within 5 working days of the date of that letter.
7. Dr Von Schrenk failed to respond at all to either that letter, or a reminder letter written to him by the Notifications Manager on 9 August 2007.
8. By letter dated 19 October 2007, Dr Von Schrenk's solicitors wrote to the Notifications Manger indicating that they had sought from the Applicant proof of indemnity insurance as at that date and also to establish that such indemnity insurance was effective previously over the previous three years. His solicitors indicated that Dr Von Schrenk would obtain a certificate as to the status of his insurance over that period and that it would be provided to the Board.
9. That was not done until Friday 11 April 2008, when Dr Von Schrenk's solicitors provided documentation indicating that:

- the Applicant had failed to pay the premium stipulated by Guild for his Professional Indemnity Insurance Policy for the period of insurance from 1 July 2006 to 1 July 2007 at all during that policy period; and

- the Applicant had failed to pay the premium stipulated by Guild for his Professional Indemnity Insurance Policy for the period of insurance from 1 July 2007 to 1 July 2008 until 22 February 2008 (when he had paid the premium stipulated for the 2006/2007 policy year as well, such payment having been made late).

1. During December 2007, Dr Von Schrenk received a further Application for Renewal of Registration for the Year Ending 31 December 2008. He renewed his registration for 2008 by completing and signing that Application of Renewal of Registration Form, having signed and dated that Application Form on 15 December 2007. In that Application Form, he declared as follows:

"(a) I am aware of the Board's Minimum Terms and Conditions for PROFESSIONAL INDEMNITY INSURANCE and undertake to maintain at least that level of coverage whenever I am providing dental care in Victoria;

(b) I understand that if I fail to comply with any of these undertakings the Board may take disciplinary action against me."

1. At the time he made this declaration, Dr Von Schrenk was aware of the fact that he had failed to maintain his Professional Indemnity Insurance Policy with Guild, and had not paid the insurance premium stipulated by Guild since 1 July 2006. He then failed to comply with that declaration and/or that undertaking in that, for two months thereafter, he did not pay the premium stipulated by Guild to maintain his Professional Indemnity Insurance Policy with Guild in place, and only ultimately paid the premium required on 22 February 2008.
2. Dr Von Schrenk accordingly breached both his declaration and his undertaking to the board in this respect.

1. The DP Act does not contain a definition of the expression 'unprofessional conduct of a serious nature'. The words must be given their ordinary meaning. As Hargave J noted in Dental Practice Board v Dr Hassed:

'... the question of whether unprofessional conduct is of serious nature raises a question of fact; and ... this question involves a qualitative evaluation of all of the relevant facts and circumstances of the case in issue, viewed in the context of professional practice generally."[13]

1. The distinction between 'unprofessional conduct of serious nature' and unprofessional conduct which is not of a serious nature' was considered by Morris J. in Kozeniauskas v Dental Practice Board of Victoria[14] in which his Honour observed:

"Clearly enough, the difference goes to the gravity of the conduct and must depend upon, not only the facts of the case, but also the assessment of the conduct in the context of the conduct of professional practice generally."

1. Drawing such as distinction is a matter of degree and judgment. It depends on the facts of each case. Unprofessional conduct would not be seen as being of a serious nature if it was trivial or of momentary effect; it must be blameworthy and deserving of more than passing censure[15].
2. The Applicant's primary contention was that the three categories of misconduct do not constitute unprofessional conduct of a serious nature. However it was acknowledged that Dr Von Schrenk's failure to obtain professional indemnity insurance for a period of some 20 months was 'undoubtedly serious'.
3. Mr Sala, counsel for Dr Von Schrenk, sought to downplay the significance of Dr Von Schrenk's failure to respond appropriately to correspondence from the Board and his failure to honour his agreement to provide the report of his examination to the Panel. This was characterised as an internal matter which had nothing to do with the protection of the public of Victoria. Mr Sala likened it to an exchange of correspondence with a union. It was submitted that Dr Von Schrenk was simply saying that he would get around to replying to the correspondence but couldn't be bothered at that stage. It was conceded that his conduct was negligent but said that there was no intention to avoid or subvert the process.
4. I am unable to agree with Mr Sala's characterisation of Dr Von Schrenk's failure to respond to the Board's correspondence and his failure to honour his agreement with the Panel.
5. Contrary to Mr Sala's submissions these were not 'internal matters' between a union and one of its members. The Board is established for a public purpose. It is not a union for dentists. One of its functions is:

"... to investigate the professional conduct or fitness to practise of registered dental care providers and registered dental students and impose sanctions where necessary." (s 69(1)(d))

1. The exercise of such a function furthers one of the main purposes of the DP Act namely 'to provide for ... investigations into the professional conduct and fitness to practise of registered dental care providers' (s 1(a)).
2. Two particular matters are relevant in the circumstances of this case.
3. The first is that no satisfactory explanation is advanced for Dr Von Schrenk's conduct. I have reviewed his evidence before the Board[16] and Dr Von Schrenk's explanation amounts to little more than an assertion that he forgot. At one point in his evidence he refers to a 'bad back', but without any particularity[17].
4. The second point goes to the question of intent. Mr Sala says there was no intent to subvert the process of the Board; Dr Von Schrenk was merely negligent. The problem with this submission is that it is inconsistent with the admissions made by Dr Von Schrenk. The Statement of Agreed Facts filed by the parties says:

"40. By reason of such conduct, the Applicant has inappropriately and unreasonably disrupted the conduct of the Informal Hearing and delayed its resolution.

1. By his conduct, the Applicant has sought to frustrate, and has in part frustrated, the investigative and disciplinary functions of the Board." [emphasis added]
2. In my view the Applicant is bound by his admission, that is, by his conduct he sought to frustrate the investigative and disciplinary functions of the Board.
3. The failure to properly or adequately reply to correspondence from the Board or from a complainant is capable of constituting professional misconduct of a serious nature[18]. And I am satisfied, having regard to the Applicant's admissions and the fact that the failure to respond took place over an extended period, that this is such a case.
4. I now turn to the two other categories of misconduct.
5. It is conceded that during the period from 1 April to 19 June 2007 Dr Von Schrenk practised dentistry in Victoria while not a registered dental care provider. It is also apparent that he practised extensively during this period.
6. One health insurance provider paid some $16,210.20 in benefits for dental services provided by Dr Von Schrenk in the period from 1 April to 14 May 2007. These benefits were referable to some 327 separate services incurring total charges of $32,921.80.
7. Engaging in unregistered practise voided Dr Von Schrenk's professional indemnity insurance, thus exposing his patients to financial risk.
8. Engaging in unregistered practice is also in breach of the DP Act.
9. I am satisfied that Dr Von Schrenk's conduct constitutes unprofessional conduct of a serious nature.
10. The final category of misconduct relates to Dr Von Schrenk's failure to maintain a Professional Indemnity Insurance Policy over the 20 month period from 1 July 2006 to 22 February 2008. Dr Von Schrenk's failure to obtain the requisite insurance exposed his patients to financial risk. He also falsely declared to the Board that he undertook to maintain such insurance whenever he was providing dental care in Victoria.
11. A statement by Mr James McConnell, the Regional Manager of Guild Insurance, was admitted into evidence in the Board proceedings, without objection.
12. Mr McConnell's evidence is that Guild Insurance cancelled Dr Von Schrenk's policy on 22 February 2007 with effect from 1 July 2006. The effect of cancellation is dealt with in paragraph 12 of his statement:

"12. Had any claim come in against Dr Von Schrenk before his policy was cancelled, Guild would have considered that on a 'case by case' basis. However, once the policy was cancelled, no further claims could be considered or paid."

1. I am satisfied that Dr Von Schrenk's failure to maintain a Professional Indemnity Insurance Policy for a period of over 20 months between 1 July 2006 and 22 February 2008 constitutes professional misconduct of a serious nature.
2. I now turn to consider the appropriate determination in respect of each finding of professional misconduct of a serious nature.

1. As previously noted s 47(2) provides for the determinations which may be made following a finding that a dentist has engaged in unprofessional conduct of a serious nature. In the context of this matter the most relevant options are:
   • a caution;
   • a reprimand;
   • a fine not exceeding $10 000; and
   • suspending Dr Von Schrenk's registration for a specified period.
2. These were the options canvassed by the parties.
3. In the decision subject to review the Board dealt with the question of disposition on a global basis. That is, the Board dealt with all three findings of professional misconduct of a serious nature in a global way and determined that it was appropriate to reprimand Dr Von Schrenk and suspend his registration for 3 calendar months effective from 1 November 2008. However no party resisted the proposition that s 47 requires a separate determination to be made in relation to each finding made against a dental care provider[19].
4. The Applicant's primary submission was that a fine or reprimand may be appropriate, but that suspension was not warranted. In support of this contention Mr Sala relied on the following matters:
   • the Applicant is a 74 year old with no previous blemish on his record as a practitioner in 42 years of practice;
   • the Applicant wishes to continue to serve the very people the Board wishes to protect, the Victorian public;
   • specific deterrence is not a relevant consideration in the circumstances of this case;
   • the Applicant's present intention is to continue to practise until the end of 2009; and
   • the Applicant has made admissions.
5. In the alternative it is submitted that if the Tribunal felt that a period of suspension was warranted then a period of no more than six weeks should be imposed and the period of suspension should start at the beginning of December 2008.
6. The Board submitted that a 2-3 month suspension was warranted in relation to each separate finding and that the periods determined should be served cumulatively. It was also submitted that there was no warrant for delaying the commencement of any period of suspension. As a consequence of the Board's decision Dr Von Schrenk has been on notice for some time that this registration would be suspended from 1 November 2008. He has not applied for a stay of that decision. Counsel for the Board also submitted that delaying the commencement of Dr Von Schrenk's suspension as contended on behalf of the Applicant would be perceived as providing little more than a Christmas holiday from practise.
7. I propose to deal with the general principles before turning to the particular circumstances in this case.
8. As is the case with professions generally the Tribunal's powers to discipline for misconduct are primarily protective[20]. But its disciplinary orders are punitive as well as protective, as Maxwell P observed in Quinn v Law Institute of Victoria Limited (Quinn):

"The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect."[21]

1. His Honour went on to say that in circumstances where the Tribunal's protective function is paramount it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.
2. His Honour also said that because the Tribunal's disciplinary jurisdiction is punitive, in the service of protecting the public, the principles applicable to sentencing apply by analogy.
3. In sentencing generally it is necessary to balance just punishment; specific and general deterrence; denunciation; the protection of the community; and rehabilitation.[22]
4. In my view the same considerations apply in this matter.
5. As Giles AJA said in Law Society of NSW v Foreman[23]:

"the object of protection of the public included deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practice in the public interest, must be able to repose confidence in legal practitioners, so an element of deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over lightly or put aside, but will be appropriately dealt with."

1. Specific deterrence is directed at the particular offender. The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence.
2. The nature and gravity of the misconduct is central to the process of determining an appropriate sanction. But it is also appropriate to consider the Applicant's past discipline history and whether he has made admissions.
3. The fact that Dr Von Schrenk has admitted these charges is a mitigating factor in his favour. It is important that such admissions be encouraged. Absent the admissions it is likely that the hearing of this matter would have taken some days. I also note that in the proceedings before the Board counsel for the Board noted that Dr Von Schrenk had been 'completely and totally cooperative throughout the entire process'[24] and that his admissions were 'of great assistance to the Panel'[25].
4. Dr Von Schrenk's admissions have resulted in a significant saving of public resources and have spared the relevant witnesses the inconvenience of attending the Tribunal to give evidence. It is appropriate that these matters be taken into account. It also reflects, I think, a degree of remorse on Dr Von Schrenk's part.
5. I note that Dr Von Schrenk has practised for an extensive period without blemish. There is only one recorded instance of a complaint from a patient and that matter was settled. There are no previous adverse disciplinary findings against Dr Von Schrenk.
6. I agree with the Board's assessment that Dr Von Schrenk is unlikely to repeat his conduct and, from that point of view, the public needs no protection. Specific deterrence is not an issue.
7. The nature of the misconduct does however bring the issue of general deterrence into play. In Craig v Medical Board of South Australia[26] Doyle CJ said:

"... the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest."

"the protection of the public has various aspects. The public may be protected by preventing a person practising a profession, by limiting the right to practise, or by making it clear that certain conduct is not acceptable."

1. The three findings in this case of unprofessional conduct of a serious nature call for a general deterrence of the type discussed in Craig.
2. In making each determination I have had regard to:
   • the nature and gravity of the misconduct;
   • the fact that Dr Von Schrenk has admitted the charges;
   • Dr Von Schrenk's previously unblemished record;
   • Dr Von Schrenk's age and his present intention to retire from practise at the end of 2009; and
   • specific deterrence is not an issue in this case as Dr Von Schrenk is unlikely to repeat his conduct.
3. The most serious of the matters before me is the fact that Dr Von Schrenk practised dentistry continuously for a period of 20 months without maintaining a Professional Indemnity Insurance Policy. In relation to this aspect of his misconduct I make the following determination:
   1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
   2. Dr Von Schrenk is fined $2500. Such sum is to be paid into the Dental Practice Board Fund by no later than 4pm Friday 5 December 2008.
   3. Dr Von Schrenk is reprimanded.
4. I now turn to the finding in relation to unregistered practice.
5. During the period from 1 April to 19 June 2007 Dr Von Schrenk practised dentistry in Victoria, and did so extensively, while not a registered dental care provider. Dr Von Schrenk failed to renew his registration despite correspondence reminding him of the need to do so. He was also aware that it was an offence to practise dentistry while unregistered[27] and no acceptable explanation is proffered for his failure to renew his registration. Engaging in unregistered practice exposed his patients to financial risk.
6. In relation to this aspect of his misconduct I make the following determination:
   1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
7. I now turn to the findings made in relation to Dr Von Schrenk's failure to respond appropriately to Board correspondence and his failure to honour his agreement to provide a report of his examination to the Panel. The most serious aspect of this element of Dr Von Schrenk's misconduct is that, by his own admission, the Applicant had sought to frustrate the investigative and disciplinary functions of the Board.
8. In relation to this aspect of his misconduct I make the following determination:
   1. Dr Von Schrenk's registration is suspended for a period of one calendar month.
   2. Dr Von Schrenk is fined $1500. Such sum is to be paid into the Dental Practice Board Fund by no later than 4pm Friday 5 December 2008.
9. Each period of suspension is to be served cumulatively resulting in a total period of suspension of three calendar months and a fine of $4000. The suspension of the Applicant's registration is to commence on 1 November 2008. The effect of the Board's decision was to place the Applicant on notice that any suspension would operate from this date and contrary to Mr Sala's submission I see no need to provide that the suspension not commence until 1 December 2008.

[1] See s 51 of the Victorian Civil & Administrative Tribunal Act 1998; McDonald v Guardianship Board [1993] VicRp 36; [1993] 1 VR 521 at 528; Davidson v Victoria Institute of Teaching [2006] VSCA 193 (6 September 2006)

[2] Ha v Pharmacy Board of Victoria [2002] VSC 322; (2002) 18 VAR 465

[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J

[4] [1992] HCA 66; (1992) 110 ALR 449 at 449-450, footnotes omitted

[5] Document D4 in the Respondent's s 49 material.

[6] Document D5 in the Respondent's s 49 material.

[7] Document D15 in the Respondent's s 49 material.

[8] Document E6 in the Respondent's s 49 material.

[9] Document E7 in the Respondent's s 49 material.

[10] Document E8 in the Respondent's s 49 material.

[11] Document E10 in the Respondent's s 49 material.

[12] See Transcript before the Board 29 April 2008 at pp 60-61 and p 63 at lines 1-14.

[13] (2006) VSC 485

[14] [2005] VCAT 1058 at [7]

[15] In Re Parr and Nurses Board of Victoria (1998) 16 VAR 118 at 123 per Kellam J; Domburg v Nurses Board of Victoria [2000] VSC 369 at [59] per Ashley J

[16] See particularly pages 35 - 38 of the transcript of the Board proceedings on 29 April 2008.

[18] eg. Exler v The Dental Practice Board of Victoria [2005] VCAT 2595, where the applicant failed to reply properly and/or adequately to some thirty letters written to him by either complainants or the Board.

[19] Exler v The Dental Practice Board of Victoria [2005] VCAT 2595 at [31] per Judge Dove

[20] Hanneberry v Legal Ombudsman [1998] VSCA 142; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

[21] [2007] VSCA 122 (14 June 2007) at [30]

[22] R v Mooney, per Young CJ unreported, Supreme Court of Victoria Full Court, 21 June 1978, cited in R v Anderson [1981] VicRp 17; [1981] VR 155; R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398; and R v Verdins [2007] VSCA 102 (23 May 2007); s 5 Sentencing Act 1991

[23] (1994) 34 NSWLR 408

[24] Transcript of Board proceedings on 29 April 2008 at p 14.

[26] [2001] SASC 169

[27] Transcript 29 april 2008 at pp 43 - 44