Bartram v the Dental Board of South Australia No. Scgrg-98-499 Judgment No. S6740

[1998] SASC 6740

BARTRAM V THE DENTAL BOARD OF SOUTH AUSTRALIA

LANDER J

The appellant has appealed pursuant to s75 of The Dentists Act 1984 against a decision of the Dental Professional Conduct Tribunal (The Tribunal) given on 9 January 1998 where it found the appellant guilty of unprofessional conduct in relation to a patient, Mrs Rosemary Druce and against orders made by the Tribunal where it suspended the appellant’s registration by removing his name from the register for a period of six months and made consequential orders.

The appellant was charged on complaint dated 7 November 1996 with unprofessional conduct in relation to his patient, Mrs Rosemary Druce.

The grounds of the complaint were:

“1.In or about the months of March and April 1991 at Hackney Dr Donald Keith Bartram (hereinafter referred to as “the respondent”) conducted a general dental practice at 19 North Terrace Hackney, South Australia.

2.During the said period the respondent treated a patient Rosemary Audine Druce (hereinafter referred to as “the patient”).

3.The respondent had a particular interest in theories of “non-conventional” dentistry and medicine to the effect that various parts of the body are related to various teeth in the jaw.  In particular he believed that if a tooth had inflammation it would affect the energy transmitted to organs of the body on “the same pathway”.

4.The respondent believed that by performing jaw surgery he had benefited women who were undergoing hysterectomies in respect of that gynaecological problem.

5.In or about 1977 the respondent became aware of an instrument called a “dermatron” and used that instrument in his practice as a registered dentist.  The “dermatron” was used by the respondent in the belief that the machine used electrical impulses to make measurements at acupuncture points on his patients.  The respondent used the “dermatron” machine frequently in his general dental practice.

6.The patient first consulted the respondent in 1986 and saw him from time to time as a patient until 1991.

7.On 5 March 1991 the patient consulted the respondent for a routine check-up.  She had no apparent dental problem.

8.The respondent said to the patient that he had an interest in jaw surgery and that he had been successful with such surgery in relation to gynaecological conditions.  The patient mentioned that she had seen a gynaecologist recently and had some “abnormal cells” and that she had been advised not to be concerned and was merely to see a specialist at a later date.

9.Despite the fact that standard clinical practice had revealed no apparent dental problems the respondent then conducted a test using the “dermatron” machine.  He said to the patient that the readings were high.

10.Placing reliance on the “dermatron” machine the respondent then took x-rays of the patient’s teeth.

11.It is alleged that the x-rays of the patient’s teeth and jaw revealed no apparent dental problem.

12.The respondent advised the patient that she had an infection in the gum area and that surgery was urgently required.

13.On the following day, which was 6 March 1991, the respondent again advised the patient that treatment was necessary and urgent and the surgery would be carried out by his employee.   He stated that the operation to be performed was an apicectomy.

14.On 12 March 1991 the respondent carried out root canal treatment to the patient’s upper left lateral incisor.

15.On 25 March 1991 the respondent’s employee carried out further root canal treatment.

16.The patient suffered pain due to the operations conducted by the respondent and his employee and sought pain relief from the respondent.

17.The patient’s dental records held by the respondent contained the information that the patient was allergic to penicillin.

18.The patient also advised the respondent’s receptionist when she sought such pain relief that she was allergic to penicillin.

19.The respondent prescribed amoxyl (a penicillin-related drug) for the patient.  The patient took the medication which caused an allergic reaction.

20.On 4 April 1991 the respondent’s employee carried out two apicectomy procedures at the direction of the respondent.  The first procedure was to the left incisor, the second procedure was to the right incisor.

21.The apicectomy procedures were conducted within too short a time after the root canal treatment to permit adequate assessment of that treatment.  As a result of the procedures carried out by the respondent and his employee the patient’s face became very swollen.  She had considerable pain and sought emergency treatment from another dental practitioner.  The patient has continued to suffer from pain from the treatment.

22.In his treatment of the patient the respondent:

(a)failed to obtain accurate information concerning the patient and developed his treatment plan in part upon an inaccurate understanding that the patient was to undergo a hysterectomy;

(b)did not follow the normal, usual and recommended investigative procedures in his examination and assessment of the patient in that the respondent failed to carry out pulp, vitality, percussive or temperature tests;

(c)placed some reliance for his assessment and treatment of the patient on a “dermatron” machine, use of which equipment was not in accordance with ordinary and usual dental practice and was unscientific;

(d)became so preoccupied with his non-conventional theories and devices that it obscured his clinical objectivity and judgment;

(e)failed to advise the patient that he was placing reliance on an unconventional means of assessment and was not following normal, usual and recommended practice;

(f)wrongly considered that x-rays taken by him indicated infection whereas such x-rays did not show any significant infection and were not a basis for surgical intervention;

(g)made treatment recommendations which were not justified on the information available to him;

(h)treated the patient by causing to be carried out two apicectomies which were unnecessary;

(i)did not follow the normal, usual and recommended practice of not conducting apicectomies until a much longer period of time had elapsed after the conduct of root canal treatment on the same tooth;

(j)having information in his possession that the patient was allergic to penicillin, prescribed the drug amoxyl, which is a related penicillin antibiotic, for the patient.”

Prior to the laying of this complaint Mrs Druce had brought proceedings against the appellant in the District Court of South Australia. In those proceedings Mrs Druce claimed that she suffered damage as a result of the negligence of the appellant in carrying out dental work which was unnecessary and which was carried out in an unprofessional manner.  Judgment was delivered in those proceedings by Judge Lowrie on 6 October 1995.

In his evidence before the District Court the appellant said that the reason he recommended and performed the dental treatment was as a result of a discussion with Mrs Druce about her gynaecological problems.

He told the District Court that Mrs Druce had informed him that she had had a positive smear test and was concerned that she would need to have a hysterectomy.  It was that conversation, he said, which gave rise to the recommendation for the dental treatment.

There was a dispute about whether or not the conversation occurred but that is not so much to the point.  His defence was that the work was necessary because of her gynaecological problems.

In advancing his defence, in the District Court, he said that he relied on a dermatron machine which he said was a recognised form of treatment in Germany and Austria but was only in its experimental stages in the United States and was not acknowledged by mainstream dentistry in Australia.  Indeed he said he was not aware of any other dental practitioner in this State who used a dermatron machine.

He said that as a result of readings on the dermatron machines, as well as conventional x-rays which he had ordered, he concluded there was significant infection present in the subject teeth.  He therefore advised that she should undergo root canal treatment. 

He agreed that ordinarily root canal treatment would relieve a patient of infection within about six to eight months.  He said that, in this case however, he recommended the further treatment of apicectomies ten days later because he understood that the plaintiff would undergo a hysterectomy in perhaps a month or two months and that it was in her interests in relation to that gynaecological surgery that she have the apicectomies.  The apicectomies were carried out by Doctor Pitman at the behest of the appellant.

Judge Lowrie described the appellant as having a significant interest in a “fringe” area of dentistry which is not commonly recognised.  Specifically he found that biogenetic equipment and the dermatron machine has no scientific base and is not equipment used by mainstream dentistry.  He found that the appellant had a preoccupation with the dermatron machine which he used as a diagnostic tool and that preoccupation affected his judgment and treatment.  He accepted the evidence of a Doctor Abbott that the dermatron machine is non scientific and diagnostically unacceptable.  He found that the apicectomies which were carried out were not a necessary part of appropriate treatment. 

There can be no doubt that there were two live issues before the District Court Judge.  The first was whether the dermatron machine was capable of assisting in the diagnosis of dental conditions.  The second issue was whether or not there could be any interrelation between dental health and gynaecological health.

Both issues were decided adversely to the appellant.  In particular Judge Lowrie made it clear that in his view the dermatron machine was of no assistance whatsoever in arriving at a diagnosis of the dental health of a patient.

The matter before the Dental Board, of course, involved the same facts and circumstances which had been the subject of the decision in the District Court.

In these proceedings the respondent tendered the reasons for judgment of Judge Lowrie. Section 72(8) of the Dentists Act 1984 provides:

“(8)   In the course of an inquiry, the Tribunal may—

(a)receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper;

(b)adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.”

The Tribunal did have regard to Judge Lowrie’s decision.

In the proceedings before the Tribunal the appellant took a rather different approach than that which he had taken before Judge Lowrie. 

First, he denied using the dermatron machine as a diagnostic instrument.  He admitted that he used the machine and admitted that it was a machine not used in mainstream dentistry in this State but he said he merely used the machine as an extra test.

In respect of the reasons for carrying out the treatment he said that he did not believe that by performing jaw surgery he would benefit women who were undergoing hysterectomies in respect of that gynaecological problem, but instead said that he believed it may have helped.

His evidence before the Tribunal was in a number of respects inconsistent with the evidence he gave in the District Court.  Mr Stevens, who appeared for the respondent before the Tribunal and on appeal, described the evidence in the Court and the Tribunal as strikingly different.

The Tribunal in due course accepted Mr Steven’s submission.

First, however, it concluded that the evidence called by the respondent should be accepted.  In particular it found Mrs Druce and two experts, Doctor Abbott and Doctor Daenke, to be impressive witnesses.

On the other hand it did not accept the evidence of the appellant.  In particular it determined that his evidence was unreliable and frequently smacked of reconstruction to suit his own purposes.

Specifically it accepted the submission made by Mr Stevens that the appellant’s case in the Tribunal was strikingly different from the case presented in the District Court.   Those inconsistencies, in the opinion of the Tribunal, destroyed his credibility.  In particular the Tribunal noticed that his case in the District Court was that Mrs Druce had sought his help with regard to her gynaecological condition and that his treatment recommendations were made in an effort to treat that condition.  Before the Tribunal the appellant said that the hysterectomy and the gynaecological condition played no part at all in his diagnosis or recommendations for treatment.

There is no doubt, as Mr Stevens submitted to the Tribunal and to this Court, that there were significant differences in the way in which the appellant presented his case on the separate occasions.

Before the Tribunal the appellant tried to minimise the interrelationship of treatment and gynaecological problems and the reliance upon the dermatron machine.  No doubt he did so because Judge Lowrie had been so critical of his conduct in relation to both of those matters.

Notwithstanding the conduct of the appellant’s case before the Tribunal, the Tribunal concluded:

“There can be no doubt on the evidence that the reason why Doctor Pitman carried out the apicectomies was that Doctor Bartram told him they were necessary because of the dermatron readings and the gynaecological condition - two matters about which Doctor Bartram and Doctor Pitman had no knowledge or expertise.  There can be no doubt that these apicectomies were carried out because of Doctor Bartram’s recommendations and his arrangements with and his advice to Doctor Pitman.  We have not the slightest doubt that Mrs Druce would have refused the treatment had she known the basis on which it was recommended.” 

The notice of appeal which was filed on 9 April 1998 contained 22 grounds of appeal, nearly all of which were directed to the Tribunal’s findings in relation to unprofessional conduct.  The final three grounds addressed the penalty imposed by the Tribunal.

The other nineteen grounds of appeal complain about the Tribunal’s preference for the evidence called by expert witnesses by the respondent and complain about the Tribunal’s refusal to accept the evidence of the appellant and a Doctor Pitman.  The notice of appeal also complains about the Tribunal giving insufficient weight to evidence of a Doctor Goodhart.  There is a further complaint about the Tribunal failing to accept the evidence of a Doctor Lovelock and the refusal to accept the tender of an article written by Professor Newman published in “The Journal Of Dental Research”.

It can be seen from that incomplete summary of the grounds of appeal that the thrust of the appeal, as identified in that notice of appeal, is directed to the acceptance of witnesses who appeared before the Tribunal and the weight which the Tribunal attached to the evidence of those witnesses.

When the matter was first called on, Mr Borick, who appeared for the appellant, applied to add additional grounds.  Those grounds were:

“1A.. The Tribunal erred in finding that Doctor Abbot was an expert in the use of the dermatron machine.

2A... The Tribunal erred in finding that the appellant was not an expert in the use of the dermatron technology.”

The application to amend was not opposed and I gave leave to amend the Notice of Appeal to add those two grounds.

The appellant then sought to tender additional evidence on the appeal.  It was conceded immediately by the appellant that the additional evidence which was sought to be tendered was not fresh evidence in that the evidence was available to the appellant at the time of the hearing before the Tribunal.  However it was argued that there were circumstances which rendered the evidence admissible on the appeal.

The circumstances advanced were:

a)     A professional reputation was at stake.

b)..... The Tribunal had no evidence before it to enable any finding to be made as to the validity of the Dermatron technology.

c)..... Doctor Abbott was not qualified to express any opinion on the Dermatron technology and there was no basis for the finding that he was an expert.

d)..... This Court needs to understand the Dermatron technology in order to judge this issue.

e)..... The appellant did not make the decision not to lead evidence about the Dermatron technology.  That decision was forced upon him by his insurer.

The fact that this matter impacted upon the appellant’s professional reputation could not, by itself, be a reason to allow additional evidence, which was available to the appellant to call in the Tribunal, to be called on appeal.  If it was otherwise it would mean that there was some special rule in relation to the admission of additional evidence on appeals in disciplinary matters.

The second and fourth matters may be right, but they are not reasons to admit the evidence on appeal.  There was no evidence because the appellant chose to adduce no evidence.  Again those matters cannot be reasons to admit the evidence on appeal.

The third matter does not give rise to the tender of this additional evidence.  If Doctor Abbott was not qualified to offer an opinion on this matter then that should have been established before the Tribunal.  If it was established then no additional evidence is needed.  The finding can be attacked on the evidence before the Tribunal.

The last mentioned matter is the only matter of significance.  The appellant argued that it was always his wish to lead the evidence which he wished to adduce on this appeal before the Tribunal.  It was submitted that his insurer had informed him that it would not indemnify him in relation to his costs before the Tribunal if he persisted with a defence based upon the evidence which is now sought to be led. 

Mr Borick said that as a result of that intimation by the appellant’s insurer the appellant did not instruct his solicitors to bring that evidence before the Tribunal. 

The evidence, so Mr Borick said, would have been admissible before the Tribunal and would have been such that the Tribunal would have reached a different conclusion in relation to most if not all aspects of the case against the appellant in relation to unprofessional conduct.

When this matter was first raised I put to Mr Borick, who appeared for the appellant on this appeal but who did not appear in the Tribunal, that the respondent would argue that the appellant had made a choice when the matter was before the Tribunal.  He had chosen to be indemnified in relation to his costs at the expense of leading evidence he would otherwise have preferred to have led.  Whilst Mr Borick conceded that to be the case he said that the appellant did not anticipate the extremely adverse findings made by the Tribunal which have had a serious effect on his professional reputation.  He said that the appellant had suffered a miscarriage of justice in that the appellant had received inappropriate advice before and during the hearing before the Tribunal. 

Mr Stevens objected to the tender of any further evidence on appeal.  He pointed out that the appeal had been instituted in April of this year and it was not until two days before this hearing that the respondent had been advised for the first time that the appellant sought to adduce additional evidence.  He said the additional evidence which was sought to be adduced added a new complexion to the case in as much as none of the evidence which is now sought to be tendered had been put to any of the witnesses who gave evidence before the Tribunal.

He said that if it was now the appellant’s case that the appellant had been a victim of a miscarriage of justice by reason of inappropriate or inadequate advice then that should be the subject of evidence not only from the appellant but also from his solicitor and counsel who appeared before the Tribunal.

He submitted that it was inappropriate for me to hear any of the evidence until such time as I had determined whether or not the appellant had been a victim of a miscarriage of justice.  However a practical difficulty arose.  The appellant wished to lead both oral evidence and documentary evidence.  As part of the oral evidence the appellant wished to call a Doctor David Mitchell, a medical practitioner who practices in acupuncture and is a fellow of The Australian Medical Acupuncture Society and who was also a board member and lecturer of the National Bio-Energetic Medicine Association Of Australia.  That second mentioned organisation is a small group of practitioners who practice in complementary and alternative medicine and who train and teach people how better to use bio-energetic instruments.  A bio-energetic instrument is an instrument that measures energy through the body and incorporates acupuncture and electrodermal testing devices.  Included in those testing devices is a Dermatron machine.

Doctor Mitchell was present at the Court.  Rather than waste too much of his time I determined that I would hear his evidence in chief de bene esse.  I heard his evidence in chief upon that basis and adjourned his cross examination to a later time.

I then gave directions for the filing of affidavits in support of the application to call additional evidence on the appeal.  The matter was adjourned and resumed again on 9 June 1998.

At that time the appellant tendered the following:

1...... An application to present additional material being the evidence of Doctor David Mitchell and articles and journals relating to bio energetic medicine.

2...... Affidavits from Doctor Donald Bartram, Mr Alan Hunter, Doctor David Phillips, Ms Fiona Campbell and Mr Gary Hevey.

The evidence in chief of Doctor Mitchell had been heard on the previous hearing and the documents relating to bio energetic medicine had been handed to me at that previous hearing.

The appellant also filed a document entitled “Consolidated Amended Grounds Of Appeal” and included in that document the following additional grounds of appeal which were additional to those in the original notice of appeal of 9 April 1998 and the two further grounds which I allowed to be added on the first hearing.

I set out the additional grounds of appeal in their entirety:

“1..... The appellant was represented at the hearing by Mr R Halliday on instructions from Wallmans.

2...... Wallmans also represented the Medical Protection Society Dental Protection division (hereinafter referred to as “Dental Protection”) who were effectively the appellant’s insurers.

3...... In the initial stages of the preparation of the hearing, the solicitor from Wallmans who had the conduct of the matter was Fiona Campbell.  Ms Campbell, after consultation with Mr G Hevey Esq of counsel, began actively to research the efficacy or otherwise of Dermatron.

4...... Wallmans received their instructions from Dental Protection from a Dr David Phillips who was the General Manager.

5...... On the 15th day of March 1997 the appellant was advised by Dr Phillips to the effect that if he attempted in any way to justify his use of Dermatron Dental Protection would not indemnify him.  The appellant, without further advice from Wallmans, accepted that condition.

6...... Subsequent to that meeting, Mr Allan Hunter of Wallmans assumed control of the matter and continued to act for both Dental Protection and the appellant.  Mr Hunter briefed Mr Halliday to act as counsel.

7...... Neither Mr Hunter nor Mr Halliday gave any advice to the appellant as to whether or not he could effectively present his defence without reference to, and without an attempt to justify, the use of Dermatron.

8...... From on or about the 3rd day of April 1998 Wallmans were in a position of conflict of interest or, at the very least, potential conflict of interest.  (See Ward & Partners v Vercon Cleaning International 1996 189 L.S.J.S. 135).

9...... The appellant was unable to effectively conduct his defence without reference to Dermatron and without attempting to justify his use of Dermatron.

10.... In the course of preparing for the hearing, Dr Phillips obtained a report from Dr Lovelock.

11.... During the hearing, counsel for the appellant cross-examined two of the witnesses called by the Dental Board on the contents of the Lovelock report.  However, the report was never tendered and Dr Lovelock was not called as a witness.

12.... The report and evidence of Dr Lovelock would have materially assisted the appellant in the conduct of his defence.

13.... Dr Lovelock was not called on the instructions of Dr Phillips.

14.... Subsequent to the hearing, the appellant retained Eaton & Associates to act for him and represent him at the appeal.

15.... Prior to the filing of the original notice of appeal, Mr Eaton advised Dr Phillips and Mr Hunter that the appeal against the determination of the Tribunal could not succeed unless additional material was placed before the appellate court relating to Dermatron and the Lovelock report.

16.... From the time Mr Eaton commenced to act until the day before the hearing of the appeal, negotiations took place between Mr Eaton and Dr Phillips relating to the appellant’s costs of the appeal.

17.... On the 12th day of May 1998 Mr Eaton advised the respondent of the intention to apply to place additional material before the appellate court.

18.... At 8.45pm on the 13th day of May 1998, Dr Phillips formally advised Mr Eaton that Dental Protection would not indemnify the appellant for his costs of the appeal from the date of filing the Notice of Appeal herein.

19.... The appeal commenced on the 14th day of May 1998.”

When the matter resumed, Mr Stevens indicated that if I was to allow the amendment to include the additional grounds of appeal that would give rise to a necessity to cross examine each of the deponents in relation to the matters deposed to in their affidavits.  He would also need to cross examine the appellant.

Mr Stevens, therefore, suggested that the proper procedure ought to be that I first consider whether or not I should allow the amendment to the notice of appeal.  Mr Stevens submitted I should not allow the amendment for a number of reasons.  He pointed to the lateness of the application.  He also submitted that on the face of the evidence tendered in support of the proposed grounds, the grounds are doomed to failure for two reasons.  First, because the appellant had elected to conduct his case before the Tribunal in the way that he did.  Secondly, because the Dermatron evidence was unimportant in the context of the case as presented.

He said if I agreed that the application to amend ought to be dismissed that would save the parties the cost and expense of cross examination of the deponents in relation to the ground of appeal.

The parties agreed upon that course.

Whilst I have some sympathy for his submission that the application to amend is late, I would not refuse the amendment upon that ground alone.  If I was to determine that the appellant did suffer a miscarriage of justice by reason of the evidence of his legal practitioners in acting in circumstances where a conflict of interest existed and giving inappropriate advice then I would be reluctant to disallow an amendment which would right that miscarriage of justice simply because the application for the amendment was late.

I will put aside therefore the claim that the application was late and consider the more substantial matters advanced by Mr Stevens in opposition to the amendment.

The proposed amendment claims that the appellant’s solicitors were at all relevant times in a position of conflict, or at the very least potential conflict of interest.

By reason of that conflict or potential conflict the appellant, so it is claimed, did not receive appropriate advice in relation to the presentation of his defence before the Tribunal.  In particular it is claimed that his legal practitioners did not advise him that he should present further evidence in relation to the dermatron machine.  Nor apparently did his legal representatives call evidence from a Doctor Lovelock.

The appellant is a member of the Medical Protection Society Ltd (the Society) which has a “Dental Protection” division.  The Society funds the defence of medical practitioners, and in this case dental practitioners, in relation to actions brought against them by patients to whom they have rendered medical or dental treatment.  It also funds dental practitioners in disciplinary proceedings.  The Society is not an insurer and is not bound to offer indemnity by any contract of insurance.

In this case the Society determined that it would only fund Doctor Bartram in his defence to the complaint in the Tribunal upon the basis that his defence was that the dental elements of the case were clearly in the best interests of the patient.  Specifically the Society determined:

"If he wishes to run the case on the basis that he can defend the use of the dermatron as being the practice of dentistry, then it is clear that we would not or could not fund an action which by definition is bound to fail, because by definition it is without the practice of dentistry.”

Instructions were given to the solicitors acting for the Society to the same effect.  They were instructed that the case would be funded by Dental Protection on the basis that it was kept as a dental case based upon dental diagnosis and treatment. 

Doctor Bartram was advised of the Dental Protection’s decision as to the limits of the funding by letter dated 19 February 1997.

The letter reads:

“We refer to our correspondence and communications last week and confirm that we have now received formal notification from Dr David Phillips, Dental Director and Secretary regarding funding of your defence before the Tribunal.

Dr Phillips advises that DPL will not fund a defence that is predicated on the use of the Dermatron and related techniques.  DPL is however prepared to fund you fully to the extent that your actual treatment of Mrs Rosemary Druce was in her best interests.  By the latter, we interpret DPL’s parameters to amount essentially to a re-trial of the primary evidence before the District Court.  This does not however include the broader issue of the appropriateness or otherwise of the Dermatron and its use in dental practice.
         

In the circumstances you must make an immediate decision regarding the ongoing conduct of the case.  We remain of the view that a meeting between Counsel, yourself and Mr Eaton would assist and we invite you to arrange such a meeting at your earliest convenience.”

On 15 March 1997 the appellant met with Doctor Phillips, the Director and Secretary of Dental Protection, and Lord Colwyn who was Chairman of the Dental Protection, at the Sheraton Hotel in Melbourne. 

The appellant concedes that at that meeting it was made clear to him that Dental Protection would support his defence before the Tribunal only if he did not make the disciplinary proceedings before the Tribunal a test case for dermatron.

On 3 April 1997 the appellant met with Mr Hunter, the senior solicitor involved in the conduct of the proceedings and the appellant further concedes that at that meeting Mr Hunter confirmed with him that there was to be no misunderstanding regarding the way in which the case before the Tribunal would be conducted.  The appellant understood that to mean that the dermatron issue was not to be referred to at the Tribunal hearings. 

Subsequently the appellant was represented by counsel at the Tribunal.  The appellant complains that neither his solicitors nor counsel advised him of the ramifications of not incorporating the issue of dermatron in those proceedings.

He says in those circumstances his legal practitioners failed to give him appropriate advice and as a result his case was not properly conducted before the Tribunal and as a consequence he has suffered a miscarriage of justice.

There are two answers to the appellant’s contention.  The first is that the legal practitioners were never in a position of conflict.  He was told by Dental Protection that they would fund a defence for him before the Tribunal provided that he did not make these proceedings a test case for the dermatron machine.  He agreed with Dental Protection that he would advance his case in that way.  He then instructed his solicitors and counsel accordingly.

True it is that his legal advisers were retained and paid by Dental Protection.  Their retainer in respect of the appellant was upon the terms agreed by the appellant and Dental Protection.  The appellant was under no misunderstanding as to the terms of his legal practitioners’ retainer.  The terms of the retainer were always circumscribed by the agreement which he had reached with Dental Protection.

Moreover, at the time that he reached his agreement with Dental Protection and during all relevant times the appellant sought and obtained advice from a solicitor independent of Dental Protection. 

In early 1997 the appellant instructed a solicitor, Mr Christopher Eaton in relation to this matter. 

Mr Eaton was acting for him in other matters.  Mr Eaton spoke to the Dental Protection solicitors who were investigating dermatron.

On the first occasion on which the appellant and Mr Eaton spoke, Mr Eaton made it quite clear to the appellant that the appellant could instruct either Wallmans or himself to act on the Tribunal.  Mr Eaton said the appellant was always aware that option was open.

The appellant later told Mr Eaton that he had met with Dental Protection.  He said that Dental Protection and Wallmans had made it quite clear to him that the Dental Protection would only finance and Wallmans would only act in circumstances where the appellant did not run “the dermatron defence” as a positive part of his case.

He told Mr Eaton that he was “going with Wallmans”.

Mr Eaton’s evidence was:

“Q.... He says he attended a meeting with Dr Phillips on 15 March 1997.

A      No, it could very well have been early March.  My recollection was that he was only in America for about four days, and that he had only been back for a day or so because there was a meeting in Adelaide that he couldn’t attend because he was in America.

Q..... He says that at this Sheraton meeting with Dr Phillips, Dr Phillips made it clear to him that the Dental Protection would support his defence provided he did not mention the word dermatron.  Did he tell you that.

A      In those words.

Q..... Something to that effect.

A      Yes, the words that he’s always used is that the dermatron would not be an issue.

Q..... He says he was told by Dr Phillips that they would support the defence provided he did not mention the word dermatron, that he did not make a test case for dermatron, and that the dermatron machine was to form no part of the hearing.

A      Yes.

Q..... Did he tell you all that.

A      He told me all that subsequently when I took instructions for the affidavit, but my recollection of what he told me after the Melbourne meeting was that the dermatron was not to be an issue, and that Wallmans were continuing to act in the matter, and with one other piece of information that he couldn’t afford to deal with it himself.

Q..... Dealing with it step by step: did he say something to the effect of what I’ve said, that he said Dr Phillips said.

A      Yes.

Q..... You understood after the meeting in Melbourne on 15 March that Dental Protection would run the defence provided that he did not make dermatron an issue.

A      Yes.

Q..... And that was consistent with your understanding after you received the letter of 21 February.

A      Yes.

Q..... Having been told that after 15 March, did you tell him that he had to make that decision.

A      Yes, in the context that he could always pay for it out of his own pocket and do whatever he wanted to do in that sense, yes.

Q..... Exactly so.

A      Yes.

Q..... Did he say something to the effect that the financial considerations drove him into Wallmans’ arms, as it were.  I withdraw that, that’s not appropriate.

A      It was the financial considerations that he could not at all fund it out of his own resources meant that he had to go the way it was being, in effect, dictated to him, and he used those words, dictated to him.”

Of course I accept Mr Eaton’s evidence.  The appellant received independent advice.  He knew of the alternatives available to him.  He elected to take the alternative that was to his financial advantage.

Having received advice from his solicitor he entered into the arrangement which he had agreed with Dental Protection and accepted that those who were acting for him and who were to appear for him at the Tribunal had limitations upon their retainer.

I do not think the solicitors who were acting both for the Dental Protection and for himself were, in the circumstances, in a position of conflict.  I do not think that they breached their obligations to the appellant.

The appellant relied upon the decision in Ward and Partners v Vercon Cleaning International (1996) 189 LSJS 135. However, the facts of that case were quite different. In that case the solicitors were retained by the insurer to act on behalf of the insurer and the insured and accepted a retainer on behalf of both parties. Whilst acting for both parties the insurer sought advice from those solicitors regarding some conduct of the insured. The advice which was sought put the solicitors in a position of conflict of interest.

That is not the case here.  In this case the appellant, who was separately represented by a solicitor, reached an agreement with a third party whereby that third party agreed to pay the costs of his defence upon terms.

In this matter neither the solicitors nor counsel, in my opinion, were in a conflict of interest.

There is another answer to the appellant’s contention.

Whilst the appellant was, of course, entitled to come to any arrangement he wished in relation to the manner in which his defence would be conducted before the Tribunal, he was not entitled to come to any arrangement whereby he would tailor his own evidence to suit the circumstances.

By that I mean he was not entitled to claim that the dermatron machine played no part in the diagnosis which he reached and the advice which he gave if in fact it did.  He was obliged to give a truthful account of the circumstances giving rise to the diagnosis and the treatment advice.  He could not say a particular matter played no part in his diagnosis and advice if in fact that was not true.  He had the same obligation as any other witness and that was to tell the truth.

I must assume that he has told the truth.  His evidence before the Tribunal was that the dermatron machine played an insignificant part in the diagnosis of Mrs Druce’s condition and the treatment advice which he gave.

In those circumstances the evidence which the appellant now wishes to call and which he says should have been called before the Tribunal is hardly relevant.  It means, of course, that the legal practitioners were under no obligation to advise him to call this evidence before the Tribunal because the evidence was not relevant.

That is a further reason for concluding that his legal advisors were not in a position of conflict.

Moreover, that is a good reason for concluding that this evidence ought not to be called upon appeal.  The evidence would not be consistent with the manner in which the appellant chose to present his case before the Tribunal.

I agree with Mr Stevens that it would be inappropriate to allow the proposed amendments because the proposed amendments are bound to fail.

I therefore refuse the appellant’s application to amend the notice of appeal to include the grounds set out on page 10 of these reasons.

I will hear the parties further.