Dental Board of South Australia v Reilly - [2007] SASC 389

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DENTAL BOARD OF SOUTH AUSTRALIA v REILLY
[2007] SASC 389
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
9 November 2007
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - DENTISTS - DISCIPLINARY PROCEEDINGS
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - DENTISTS - BOARD, TRIBUNALS, ETC - DISCIPLINARY PROCEEDINGS
Appeal from the Dental Professional Conduct Tribunal - whether the Tribunal erred in finding that the practitioner did not intend to harass his patients - whether the Tribunal erred in finding that the practitioner naively but honestly believed his conduct and statements were humorous or witty and would be regarded as such by his patients - whether the disciplinary orders imposed were inadequate.
Held: the Tribunal erred in finding that the practitoner's conduct and statements were not intended to harass and that he naively but honestly believed they were humorous or witty and would be regarded as so by the patients - the Tribunal erred in accepting the practitioner's explanations - they were illogical, glaringly improbable and contrary to compelling inferences - the disciplinary orders imposed were inadequate - appeal allowed - erroneous findings rescinded and substituted with a finding that the practitioner harassed the patients by intentionally making comments and engaging in conduct knowing it was of a sexual nature and had sexual connotations and that it was likely to offend and embarrass the patients - disciplinary orders set aside and matter remitted to the Tribunal for reconsideration of the disciplinary orders in accordance with the substituted finding and with directions regarding supervision and counselling.

DENTAL BOARD OF SOUTH AUSTRALIA v REILLY
[2007] SASC 389
FULL COURT: Doyle CJ, Nyland and Layton JJ

DOYLE CJ: I agree with the orders proposed by Layton J, and with the reasons that she gives for the making of those orders. There is nothing that I wish to add.
NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Layton J and have nothing to add. I also agree with the orders proposed by her.
LAYTON J:
Introduction
This is an appeal by the Dental Board of South Australia (“the Board”) against the judgment and the penalty orders of the Dental Professional Conduct Tribunal (“the Tribunal”) dated 19 June 2007 and 22 June 2007.
The appellant complains that certain findings of fact by the Board are erroneous. It also complains that the penalty imposed, namely the fine and costs order, was an inadequate disciplinary response to the practitioner’s conduct.
The appeal concerns an orthodontist’s conduct in relation to two adolescent female patients which occurred on two separate occasions a year apart. Before the Tribunal, the Board contended that on each occasion the practitioner, by his conduct and/or words, had intentionally harassed his young patients for his own gratification.
The Tribunal’s findings alleged to be erroneous are:
…
2.In relation to the first charge in the Complaint, the Tribunal finds that the Complainant has not established that the conduct and statements of the practitioner were undertaken and made with the intention of, or for the purpose of harassing the patient.
3.In relation to the second charge of the Complaint, the Tribunal finds that the Complainant has not established that the conduct and statements of the practitioner were undertaken and made with the intention of, or for the purpose of harassing the patient.
4.In relation to both charges, the Tribunal finds that the practitioner naively, but honestly, believed that his conduct and statements were humorous or witty and would be regarded as such by the patients in question.
The Tribunal hearing
The Board made a complaint pursuant to ss 56 and 60 of the Dental Practice Act 2001 (SA). The first count alleged that the practitioner engaged in inappropriate conduct and inappropriate statements in relation to a child, Ms W, on 9 March 2004. The second count alleged that the practitioner made inappropriate statements to another child, Ms P, “between 31 August 2001 and 21 June 2004”. However, in the course of evidence the alleged occasion was narrowed down to having occurred between approximately March 2003 and September 2003.
Before the Tribunal, the practitioner either admitted or did not dispute certain conduct and statements, and also admitted that such conduct was “unprofessional” and constituted a basis for making disciplinary orders. There was a dispute on facts within a limited compass as discussed below, but more importantly there was a challenge as to the practitioner’s intent or purpose in so conducting himself and/or making the statements.
The legislation
Having regard to the issues that arise, I can deal quite briefly with the legislation.
The Dental Practice Act 2001 (SA) (“the Act”) continues the Tribunal in existence: s 24. Seven of the 11 members must be dental practitioners: s 25(b). The Tribunal is constituted in a manner that reflects its role as a professional disciplinary body.
The Board is continued in existence by the Act: s 5. One of the functions of the Board is to lay a complaint before the Tribunal if the Board considers and alleges that there are grounds for disciplinary action against a person: s 60(a1).
By s 50 of the Act there is cause for disciplinary action against a registered person if, among other things, the person is guilty of unprofessional conduct. “Unprofessional conduct” is defined by s 3(1) of the Act to include “improper or unethical conduct in relation to professional practice”.
If a complaint is laid before it, the Tribunal must enquire into the subject matter of the complaint: s 60(1). If the Tribunal is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action, the Tribunal may take disciplinary action and make an order of a kind specified in s 60(2). Without descending to detail, the alternatives are a censure, a fine, conditions on registration restricting the right to provide dental treatment, suspension of registration for a period not exceeding one year, cancellation of registration and disqualification from being registered.
An appeal lies to the Supreme Court against a “decision” made by the Tribunal in proceedings on a complaint: s 66(1)(c).
For the purposes of this appeal I have treated the composite of the challenged findings of fact of the Tribunal as set out above, as “a decision” for the purposes of s 66(1)(c) of the Act; and the disciplinary orders made by the Tribunal as another “decision”. Mr Abbott, counsel for the practitioner, did not suggest any different approach and the appeal proceeded on that basis.
The powers of the Court on appeal are set out in s 66. The relevant provisions are the following:
66    Right of appeal to Supreme Court
…
(4)     The Court must, on an appeal under this section, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(5)     The Court, on an appeal under this section -
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
(6)     The Court may, after hearing an appeal under this section -
(a)    affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court;
(d)make any order as to costs or as to any other matter that the case requires.
Background
At the time of the alleged conduct the practitioner was 54 years of age. He had been an orthodontist since 1981 following completion of his study in England. In 1986 he returned to South Australia to practise and operated from seven suburban practices. He was married and the father of three children who were then aged from 10 to 27. He had tutored at the University of Adelaide.
In relation to both of the young patients, Ms P and Ms W, there were a number of common features. First, both of the girls had seen the practitioner over a period of more than a year on a monthly basis for the fitting and adjustment of bands for their teeth. On the two occasions when the conduct and statements took place, other than the practitioner, no-one else was present in the dental room. In each instance it was the first and only occasion of being alone with the practitioner; usually there was a dental assistant or a family member present. Their ages were close. Both Ms W and Ms P were about 15 years old at the time.
For the purposes of this appeal it is convenient to consider count 2 which occurred first in time, before moving to count 1. This places the conduct in a chronological perspective.
Count 2 - Ms P
The practitioner did not dispute any of Ms P’s allegations and therefore, the issue did not turn on any contested findings. In relation to Ms P, the Tribunal indicated that it had gained a favourable impression of her as a witness. Thus, the Tribunal accepted Ms P’s evidence for the purposes of making its findings and the sole issue was therefore the intent and purpose of the practitioner’s comments.
The Tribunal’s findings of fact are set out in paragraphs [62] to [68] of their reasons. In summary, Ms P had been seeing the practitioner every month to get her braces checked and updated, and had been doing that for close to three years. When she came for her appointments she would wear her “ugg [boots], trackies and a nice big jumper” because the practitioner used to comment in various ways on how beautiful she was, that she had beautiful eyes and when she got her braces off she would be even more beautiful. Ms P agreed that on one occasion, he made similar comments when her mother was present and another time when her father was present. Ms P’s mother, father or brother usually accompanied her to the surgery, although her brother did not come into the room with her.
Ms P gave evidence about one particular occasion when her brother drove her to the practitioner’s rooms, but did not go inside. Ms P went into the treatment room alone and there was no dental assistant present on that day. She asked the practitioner “When am I going to get my braces off?” His response was “Not until you give me a kiss”. She said she felt shocked and extremely uncomfortable and murmured a response like “no” or “I don’t think so”. The practitioner then said “I guess you won’t be getting them off then”. The practitioner added “You’re going to tell your mum and she’s going to report me to the authorities”. Ms P said she did not respond. The practitioner continued to fix her bands and Ms P went home. She said that after she left the surgery she felt angry and uncomfortable, and told her mum about the incident two weeks later.
In evidence, Ms P was asked several times whether or not she thought that the practitioner was joking or whether it was banter, and she responded “definitely not”.
In relation to the practitioner’s intention or purpose in making those comments, there were two sources of the practitioner’s evidence before the Tribunal. The first being a record of interview conducted on 2 November 2005, and the second being the practitioner’s oral evidence before the Tribunal.
In his interview, the practitioner conceded that it was a regular practice to make comments to Ms P about her getting more gorgeous or something along similar lines. He said it was to keep her “self esteem”. He said that he did not recall saying to her that she would not get her braces off until after she had given him a kiss. He also said that he did not recall saying that Ms P would tell her mum and go to the authorities.
When giving evidence before the Tribunal some 15 months later as to why he often made comments about her being beautiful, the practitioner responded:
She is - was not a big smiler and I assumed that was part of her feeling uncomfortable with the whole deal … I was attempting to keep her positive about the event…
When asked about the comment that she could not get her braces off until she had given him a kiss, he did not say that he could not recall saying it, but gave evidence that the words “were spoken in jest” and also that he didn’t “…have an explanation for those particular words”.
In relation to his comment, “You’re going to tell your mum and she’s going to report me to the authorities”, unlike his interview, the practitioner admitted in evidence that he remembered making the statement. He said that it was a bit of “banter”. The practitioner agreed that he should not have said those words even in jest. When asked, “What did you understand to be her reaction to those words?” he responded, “She was appropriately dismayed”.
When asked in evidence about the statement that she would report him to her mother, unlike his interview, the practitioner did not say that he did not recall it. When asked why he made that statement when in his view the previous comments to Ms P were just a joke, his response was:
For exactly the reason you put the previous questions; the implication that there is a threat and a response is inappropriate and I recognised that as soon as I said it.
He also admitted that he felt some guilt at that stage.
In summary, the practitioner gave different information in his interview and evidence about his recall of his comments to Ms P. More importantly, in his oral evidence he recognised the inappropriateness of his comments at the time. He saw that Ms P was dismayed and felt some guilt. Notwithstanding his own acknowledgment that he recognised the inappropriate conduct at the time, about a year later the conduct and conversation alleged by Ms W (Count 1) occurred.
Count 1 - Ms W
The Tribunal was also impressed by Ms W’s evidence. Apart from the differing contentions about the intent and purpose of the practitioner’s conduct, there was only one contested factual issue between Ms W’s evidence and that of the practitioner. This concerned particular 1.8 in Count 1 which alleged that the practitioner placed his head upon Ms W whilst she reclined in the dentist’s chair. Apart from that, the practitioner admitted all other factual allegations of his conduct and statements as set out in the Complaint. I note that there were some differences between the practitioner and Ms W as to the sequence of events but nothing turned on that.
The Tribunal’s findings are contained within paragraphs [19] – [59] of their reasons. In summary, Ms W attended monthly appointments to have her bands adjusted. On 9 March 2004, she was not wearing her school uniform because it was a Sports Day, but instead wore a pair of jeans and a black turtle neck top. On that day she attended the practitioner’s surgery by herself, which was unusual. Apart from the practitioner’s secretary being in her office, there was no one else in the waiting room. According to Ms W, the practitioner first came out and blew her a kiss by raising his hand to his mouth, kissing his hand and then blowing it across at her. She said that she reacted by putting her head down. She thought his conduct was “a bit stupid” and she felt uncomfortable.
The practitioner then called her and she walked down the hallway ahead of him. She wasn’t sure what room to go into and the practitioner then “…caught [her] on the hips and kind of steered [her] into the left room, with his hands on [her] hips…[from] behind...” She estimated that as they went down the corridor and into the room, he had his hands in that position for about five seconds at the most.
She then sat in the dentist’s chair, which was reclined back. The practitioner asked her why she wasn’t in school uniform, and she said it was because it was Sports Day. He then began “…talking about fad diets and how girls ought to be doing exercise if they want to be skinny”. Ms W asked the practitioner when she was going to get her braces off, and he replied that she would be getting her braces off soon. Ms W gave evidence that the practitioner rested his head on her right side between her right shoulder and right breast, with his nose and forehead touching her body. Whilst in that position he was mumbling something she couldn’t hear, and she then heard him say softly in a muffled voice, “If [you] don’t wear my bands [you are] going to have to kiss me”. Ms W said she felt uncomfortable and her body tensed up. Ms W said the practitioner kept his head in that position for some 10 to 15 seconds. In cross-examination, it was suggested to Ms W that the practitioner was simply “talking into her ear” when he made the statement. She denied that, and added that he was not talking into her ear because she couldn’t really hear what he was saying and that was because of the position of his head on her body.
Ms W gave evidence that after that incident the practitioner removed his head and continued to look at her teeth and tightened the bands. Ms W said that the practitioner then told her she would be getting her braces off and added “Not that I don’t enjoy seeing you here, but I’d rather chat you up in a pub”. When cross-examined as to whether she understood the practitioner to be joking or to be engaging in banter, she indicated that she did not. Ms W also said that on that occasion the practitioner stated several times that he would rather chat her up in a pub.
Ms W gave evidence that about the same time as the statement about chatting her up in a pub, the practitioner also stated that “…he’d rather see [her] in the back seat of Nick’s car,” Nick being another young male patient of the practitioner who went to the same school as Ms W. When asked what she understood the practitioner to have meant by that comment about Nick’s car, she said “exactly what he had said” and that she understood him to be trying to coerce her into getting into Nick’s car with the practitioner in preference to seeing her at the surgery. The practitioner followed that up with a statement, “No I shouldn’t really say that” and then laughed. In making that statement, Ms W understood him to mean that he was making an excuse for what he had earlier said.
Ms W then said that the practitioner went on to say that “He’d have a better chance with [your] mum than with [you] unless [you’re] one sick puppy”. She understood that comment to mean a chance by the practitioner to have a sexual encounter with her. Ms W said that the words “unless [you’re] one sick puppy” was said in a questioning way. When asked whether she understood the practitioner to be making a comment about having a “better chance with your mum” to be encouraging her to wear her elastics, she indicated “No”, “[b]ecause there was no mention of [her] wearing [her] elastics”.
Ms W said nothing in response to any of the practitioner’s comments. She said that the comments made her feel “really really uncomfortable”. She said that it was her impression that in making these statements the practitioner was not joking.

When giving his evidence, the practitioner disputed the position of his head. His evidence is summarised in paragraphs [35] – [37] of the Tribunal’s reasons:
35In his evidence, the practitioner described the incident in question in these terms:-
‘…and then I leaned my head down to talk into her ear, to whisper into her ear that she – if she doesn’t wear her rubber bands she’d get a big kiss from me, and I thought that was the end of the appointment.’
36The practitioner said that it was possible that some part of his face, or head, had touched Ms W’s shoulder as he leaned his head down to talk into her ear.
37It was the clear implication of the practitioner’s evidence that his purpose in undertaking the manoeuvre he described was to ensure Ms W could hear what he was to say, by placing his mouth adjacent to her ear. It was further apparent, that on the practitioner’s version of the incident, the practitioner had no intention that any part of his head should touch, let alone rest upon, any part of Ms W. If any such touching had occurred then, on the practitioner’s case, that touching was accidental.
In relation to that contested issue, the Tribunal concluded at [74] – [78]:
74The Tribunal has considered, but rejects, any suggestion that the incident in question occurred as described by the practitioner and was misinterpreted by Ms W.
75That is, the Tribunal believes that, either, the practitioner deliberately and purposefully rested his head on her chest, as Ms W deposed, or, the practitioner merely leaned down to put his mouth closer to the ear of Ms W and, while doing so, some part of his head inadvertently, or accidentally, touched some part of Ms W in or about the area of her right shoulder/chest.
76Having carefully considered the evidence, the Tribunal finds that it is the recollection of Ms W which is the accurate description of what occurred.
77The Tribunal was impressed with the manner in which she gave her evidence, particularly under cross-examination.
78Moreover, the conduct of the practitioner as described by Ms W in this respect, was consistent with the events immediately preceding this incident, being the practitioner blowing Ms W a kiss and then the practitioner placing his hands on the hips of Ms W in order to ‘guide’ her into the consulting room.
This was a significant adverse finding as to the practitioner’s credit and is important to the issue of his intentions at the time and the alleged sexual connotations of his conduct and words.
Intention and purpose of the practitioner’s conduct and actions
Again, two sources of evidence were before the Tribunal as to what the practitioner stated was his purpose or intention of his conduct and statements. Both sources of evidence were relevant, but clearly the practitioner’s sworn oral evidence is more important. I will now consider each of the events which occurred to Ms W on 9 March 2004, first by reference to what the practitioner said in his interview and, secondly, his oral evidence. I will also make some observations as to this evidence in relation to each of the particulars of the count, although the conduct and statements need to be considered as a whole.
Blowing a Kiss – Particular 1.6
When interviewed as to why he blew Ms W a kiss, the practitioner said he did so as he was “…in a good mood at that stage of the day, and this was not a usual procedure …”. In his evidence, he said he made the gesture as a joke “To welcome her in”. When asked how he thought it was funny, the practitioner said, “Because it’s out of place”.
I note that this conduct occurred prior to the consultation. This may have simply been the practitioner in a good mood, being “stupid” as Ms W thought he was. However, the practitioner should have also seen Ms W’s response, which was to put her head down, indicating she was feeling uncomfortable.
Hands on Hips – Particular 1.7
In relation to why he grabbed her by the hips from behind, the practitioner said in his interview that he did not remember doing that, but said “…that would have been a reasonable thing to do … if you were going to have your hands on her hips that would be reasonable to direct her”. In his evidence, the practitioner appeared to recall having done that and said that this was the first time he had even done this, but denied that he intended anything sexual by it. He said it was to show her which way to go as “She had been hesitant as to which way to go”.
In my view, this conduct appears to move from being simply “stupid” to taking on a sexual connotation. The practitioner’s explanation for this conduct as simply directing Ms W to the room because of her hesitancy, appears improbable. Instead, it appears to provide an excuse for what is intimate and unacceptable body contact on this young girl. The creditworthiness of his explanation appears to suffer by virtue of his earlier failure to recall the incident which, he said, was the one and only time he had done that. There were many other ways in which he could have directed her down the corridor to the room, even ways which may have involved some type of physical contact. Further, this conduct does not have any flavour of being “humorous or witty”, or that he could have honestly believed that Ms W would regard this as humorous or witty as the Tribunal found.
You are Going to Have to Kiss Me – Particular 1.9
In relation to the statement, “If you don’t wear your bands you are going to have to kiss me”, in his interview the practitioner admitted making that statement (with a minor difference in that he said “a ‘big kiss’ from me”) and said it was whispered into her ear. The Tribunal rejected that this statement was whispered in her ear as discussed earlier. The practitioner said his statement was all part of “the banter” although he could understand if Ms W “got a wrong message”. He said that the comment was aimed at encouraging her to wear her elastics so that the treatment would be finished as soon as possible.
In his evidence, the practitioner again referred to “a big kiss”. When asked why he said that, he said that he was trying to impress on her the importance of wearing her elastics by making “…an unenforceable threat to do it…”. He said that he expected her to accept that this was him “being silly” and that it was in “jest”. He said that he was trying to give her the full effect of the message, which was not the kiss but the elastics.
The Tribunal accepted Ms W’s account and rejected the practitioner’s evidence. In doing so, the Tribunal accepted that the practitioner mumbled these words whilst he had his head facing into her body, between her shoulder and right breast. The Tribunal also accepted that Ms W felt uncomfortable. The practitioner’s explanation that this was all part of “the banter” and that it was said in “jest” is in my view, quite implausible given what he admitted to saying and his position at the time of saying it. His evidence that he was making an “unenforceable threat” is also telling. In my view, it is implausible that the practitioner honestly believed that Ms W would regard his conduct and accompanying statements to be “humorous or witty”. Ms W was lying back in the dentist’s chair at the time.
Further, this conduct and statement is also to be viewed as cumulative upon the two earlier incidents which I have previously discussed. In my view, this conduct in combination with the words, indicate that the practitioner intended to embarrass Ms W by his sexually suggestive conduct and words. It was not solely a product of naïveté. He is an experienced orthodontist working constantly with adolescents, and has children of his own. In my view, this degree of naïveté completely lacks credibility. Some elements of naïveté may be involved, but not such that would account for his overt sexual comment and behaviour.
I’d Rather Chat You Up in a Pub – Particular 1.10.1
When asked in the interview about the statement, “If you start wearing your bands you will be getting your braces off soon, then you won’t have to come here any more, not that I don’t enjoy seeing you, but I’d rather chat you up in a pub”, the practitioner wasn’t sure about having said “chat you up in a pub”. Instead he said that he told her, “It would be nicer for all of us not to have to meet in here any more so if [she] wears her elastics end of story”. Further, he said that he told her, “I’d rather see you socially than in here”. The practitioner further added in his interview “… it’s not that I wanted to chat her up socially. I would see her from a distance, wave to her and keep going”.
In his evidence on the same topic and contrary to his interview, the practitioner admitted that he had used the words “chat her up in a pub”. He said that this statement followed the previous statement about giving her a kiss and that he was indicating that he would rather see her socially than in his surgery. When asked about what connotation he applied to the words “chat you up”, the practitioner replied, “In that case it was to talk to her but there is obviously a more sexual connotation”. When asked about whether he laughed afterwards, he indicated he did not recall that, but that he had intended it to be a joke, “…even though heavy handed…”. He also said that part of the joke was the unreality of her being in a pub (bearing in mind her age) and being chatted up by him. He also added “She can’t be in a pub, she can see that. She shouldn’t be being chatted up by me, she can see that, therefore it’s an unreal situation”. The practitioner also gave evidence that he had no recollection of referring to chatting her up in a pub on several occasions.
The practitioner was also asked the following questions on this topic in examination-in-chief:
Q.Looking back on it now, do you see the problem with talking to a girl like that.
A.Yes, it’s inappropriate; she shouldn’t be in a pub and she should not be accosted by professional people and by older people.
Q.And, in terms of having to listen to her orthodontist say words like that, what’s your view about that.
A.It’s inappropriate words for her to have to listen to.
Q.Did you realise at the time that it was inappropriate to say something like that to a young patient.
A.Not right at the time that I was saying it, otherwise I suppose you wouldn’t but – it was – I was allowing myself to talk about things that I shouldn’t have and it just flowed without real intent in direction.
Q.Did you expect her to see the jokiness of it.
A.Yes, I did.
Q.Did you realise at the time that she didn’t think it was funny.
A.I’m not sure that I did.
The Tribunal accepted Ms W’s evidence which included that he had mentioned chatting her up in a pub on a number of occasions. There are many unlikely aspects of the practitioner’s evidence when comparing his initial interview and his oral evidence. However, more importantly, the practitioner admitted that the phrase had “a sexual connotation”, but said that it was intended to be a joke and that he expected Ms W to see the jokiness of it. The practitioner’s assessment of the effect on Ms W is, in my opinion, implausible. It followed the previous conduct and the words which had an overt sexual connotation. Again, the nature of the practitioner’s practice and his experience is relevant and, in my view, it is highly implausible that his comments were humorous or witty or that he honestly believed that Ms W would view them as being so. Any perceived naïveté on the part of the practitioner does not sufficiently explain or justify the overt sexual content of his conversation.
Rather See You in the Back of Nick’s Car – Particular 1.10.2
Turning now to the comment about preferring to see her in the back of Nick’s car. In his interview, the practitioner recalled saying that, and added, “…but once again, that’s her driving past in the back of Nick’s car, not me seeing her in the back of Nick’s car … there’s…a lot of ambiguity there”. Later in the interview, he stated that “She didn’t appear to be discomforted at that stage”.
When giving evidence on the same topic, the practitioner said that what he meant was that he would “…see them, see him – see her in the back of the car, driving past”. When asked about why he said the words which followed that comment, namely, “Oh I shouldn’t really say that”, the practitioner said, “Because I had crossed a boundary…of [g]ood taste and professional conduct”. In cross-examination he said he did not know that the expression of seeing someone “in the back seat of a car” was a reference to sex. When later answering questions asked by the Chairman of the Tribunal, he said that he knew of references in popular culture to young people having their first sexual experience in the back seat of a car. Thereafter the following cross-examination took place:
Q.Why is it, when you list the things that she could do outside the dental surgery, you’ve referred to her going past in the back of Nick’s car.
A.Most teenagers like the idea of driving around in cars.
Q.She’s not driving; she’s riding around in the back seat.
A.Does ‘driving around in cars’ have to mean that you are the driver?
Q.I put it to you it is just a particularly unusual example that one might give of the benefit of her coming to see you in a dental surgery.
A.Yes.
Q.In fact, I put it to you that it’s so obscure as to be a ridiculous explanation for what those words mean.
A.No.
Q.Indeed, you saying ‘Oh, I shouldn’t really say that’ means that those words that preceded it, ‘seeing you in the back of Nick’s car’, can’t possibly mean you seeing her as she went past, can they.
A.Of course they can.
Q.Why would you need to say ‘Oh, I shouldn’t say that I’d like to see you as you drove past in the back of Nick’s car whilst you wave’.
A.What was the beginning of the question, sorry?
Q.Why would you need to excuse yourself by saying ‘Oh, I shouldn’t really say that’, if all you were referring to was her going past in the back seat of Nick’s car.
A.I don’t have an answer to that.
Considering the whole of the practitioner’s evidence on the admitted statement, his explanations of what he meant, were in my view, contradictory and implausible. The plain meaning of the words, which is the way in which Ms W interpreted them, was that the practitioner was stating that he would prefer to be with Ms W in the back of Nick’s car than to see her in the surgery. There was no ambiguity and the reference to being in the back seat had well-known sexual connotations which the practitioner reluctantly conceded. His efforts in evidence to distance himself from suggesting that he would prefer to be in the back seat of the car with Ms W, completely lacked credibility. The Tribunal similarly concluded:
81In the view of the Tribunal, the practitioner’s evidence flies in the face of the ordinary and natural meaning of the words. Additionally, the obvious meaning, being that the practitioner would prefer to be with Ms W in the back of a car than treating her in the surgery, is consistent with the nature and tenor of other statements and conduct of the practitioner on that occasion.
Having so found, in my view, the statement could not be interpreted as humorous or witty and nor is it plausible that the practitioner believed that his statement was humorous or witty. His next statement “Oh I shouldn’t really say that”, illustrates this best. Again, any possible naïveté of the practitioner would not negate that this statement amounted to a deliberate intention by the practitioner to embarrass Ms W by his sexually suggestive comments.
Better Chance with Your Mum Unless You’re a Sick Puppy – Particular 1.10.3
Finally, turning to the practitioner’s statement that he would have “…a better chance with your mum unless you’re a sick puppy”. During his interview, the practitioner recalled using the words “sick puppy”, but added that the context was that “She’d have to be a sick puppy to come out with anybody as silly as me and as old as me”. The practitioner said that he “…was going through all of these things [so] as to say why she would like to be better off out in the world without her braces and without having to come and see me”.
When giving evidence on this statement, the practitioner’s response to the question as to what was going through his head at the time was:
A.… I would have thought that it was from her point of view as much as from mine, that she would not want to be talking to me, particularly for any long time at least, in a pub or anywhere else.
Q.Yes.
A.So I was essentially, I suppose, giving her an out that it would be more appropriate for me to be talking to an adult rather than to her.
Later in cross-examination he gave the following answers:
Q.… The statement I’m referring to is the statement ‘Not that I’d have a chance with you. I’d have a better chance with your mum, unless you’re a sick puppy’. You agree you said that.
A.Yes.
Q.And that the words ‘Not that I’d have a chance with you’ means ‘Not that you would let me have sex with you’.
A.No.
Q.What do they mean.
A.They mean that she wouldn’t talk to me. As you mentioned before, chatting up is flirting; she wouldn’t flirt with me.
When asked about the words “sick puppy” the practitioner said:
A.It was a phrase that my daughter and her peers were using at about that time for kids that were not quite doing the right thing. It’s not really what I mean.
Q.Do the words ‘sick puppy’ mean about whether or not a 15-year-old girl would have sexual tastes preferring older men.
A.In that context, yes, or have any relationship with older men.
The practitioner also acknowledged that Ms W looked “a little more tense” at the end and that “she wanted to get out at the end and that’s true”.
In relation to this evidence, the Tribunal contrasted the practitioner’s earlier statements and their possible connection to encouraging Ms W to wear her bands, with this statement, and concluded:
86Conversely, the reference to ‘not that I’d have a chance with you, I’d have a better chance with your mum, unless you are a sick puppy’ was not directly related to any issue of the patient’s treatment and was not an allusion to something that might occur once the treatment was completed.
The Tribunal was correct in considering that this statement had no overt connection with treatment. The practitioner’s convoluted responses to questions in an attempt to explain his statement are not convincing. They appear to be an attempt to turn the ordinary meaning of the words used into an artificial construction to the effect that he was acknowledging that Ms W would not have sex with him. I note that Ms W indicated that the practitioner asked the last words as a question, and the Tribunal accepted her evidence.
The words, on their face were sexually suggestive and intended to embarrass Ms W. Again, they could not be categorised as witty or humorous, nor could the practitioner have honestly believed that Ms W would have seen them in that light. This statement was cumulative upon the previous statements.
The Tribunal’s approach
Having read and heard the evidence and after hearing submissions by the parties, the Tribunal reached the following conclusions. After making its finding on the contested issues, the Tribunal dismissed the practitioner’s approach in deciding the proper meaning to be attributed to the words. The Tribunal said:
87A further difficulty for the practitioner on the proper meaning to be attributed to the various statements he made to Ms W is that they were made following, or shortly after, three instances of conduct by the practitioner which, considered objectively, involved an ascending level of sexually orientated behaviour being:-
·    the practitioner blowing a kiss to Ms W;
·    the practitioner walking behind Ms W and placing his hands on her hips;
·    the practitioner placing his head on the upper chest of Ms W and saying to her in a whisper that he would have to kiss her if she did not wear her bands.
88The first and second of these incidents had no connection with the practitioner encouraging the patient to comply with instructions to wear her bands between visits.
89Similarly, the third incident, insofar as it involved the practitioner placing his head on the patient’s upper chest, had no relation to encouraging compliance with all aspects of treatment.

The Tribunal then summarised the situation:
90The Tribunal accepts that one of the reasons for some of the statements made by the practitioner was to encourage the patient to wear her bands, but that finding does not exclude a further finding, if justified, that the statements in question were also made with the intention of harassing the patient in the way contended for by Mr Jacobi.
The Tribunal then indicated its approach to deciding the true intent of the practitioner:
91The Tribunal proceeds on the basis that, in the circumstances of this matter, the true nature of what the practitioner intended by the words used is not determined, solely, by an acceptance or otherwise, of the evidence of Ms W as to her understanding of what was intended by the practitioner, or by an acceptance or otherwise, of the evidence of the practitioner as to his intention.
92That is, the Tribunal would not decide the issue against the practitioner solely on the basis of accepting, which it does, the evidence of Ms W that she did not believe that the practitioner was joking or was engaging her only in ‘light banter’. Similarly, the Tribunal would not necessarily decide the matter in favour of the practitioner merely by accepting his evidence that he intended to do no more than engage in ‘light banter’. Whilst the evidence of each of Ms W and the practitioner is, of course, highly relevant and must be assessed for the purpose of reaching a conclusion, the evidence of neither, taken alone, should, in the view of the Tribunal, be conclusive. The process which has been undertaken by the Tribunal in reaching a view on this issue has involved careful consideration of the evidence including, in the case of Ms W her perception of what was intended and the effect the words and conduct had on her and, in the case of the practitioner, his stated purpose and intention.
93The Tribunal has also taken into account the ordinary and natural meaning of the words and the surrounding circumstances, including the fact that no other person was present in the consulting room at the relevant time, although, ordinarily, a nurse would have been present.
94The Tribunal has also approached the matter on the basis that the Complainant must prove its case on the balance of probabilities.
This approach taken by the Tribunal in paragraphs [91] to [94] was appropriate, but then the Tribunal stated:
103Whilst all of the facts relevant to the matter have been taken into account, the Tribunal believes that the matter to be accorded the most weight is the impression gained of the practitioner.
In my view, the Tribunal’s statement that their impression of the practitioner was to be accorded the most weight, does not accord with the warning indicated by the majority of the High Court in Fox v Percy[1] which was as follows:[2]
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [Footnotes omitted]
[1] (2003) 214 CLR 118, 129, [31].
[2] Ibid.
Certainly an impression of a witness is a proper consideration, but should not automatically be accorded “the most weight”. As the High Court indicates, it is necessary to try and limit reliance on the appearance of witnesses and instead, reason as far as possible on objectively established facts and the apparent logic of events.
In the present case, the starting point should be the ordinary usage of the words. The practitioner is an experienced and educated man. The Tribunal had before it evidence which it clearly accepted from Ms W and Ms P. The Tribunal did not doubt their credibility and accepted them on all aspects including the way in which they each perceived the practitioner’s comments to have been meant. The Tribunal also had before it the practitioner’s admission to the comments and conduct, save the contested features, which were found against the practitioner. The Tribunal also had before it the practitioner’s explanations for his statements and conduct and what he says he was endeavouring to convey by those statements and conduct. All of these matters were before them. Whilst the impression which the practitioner made on the Tribunal was a relevant matter, it was outweighed in this case by these matters. An important feature was the apparent logic of the events.
Given the fact that the practitioner is a mature-aged educated orthodontist, had children of similar age and had regular contact with young people, namely his patients and university students, in my view his explanations are illogical, glaringly improbable and “contrary to compelling inferences”. As the High Court indicated in Fox v Percy,[3] in such cases:[4]
… the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.
[3] (2003) 214 CLR 118.
[4] Ibid 128, [29].
In my view, the proper inference which should have been drawn from all of the evidence before the Tribunal taken as a whole was that the practitioner appreciated that his comments and conduct were likely to offend Ms W and Ms P because of their sexual nature and they were done for his own benefit. This, in my view, amounts to sexually harassing behaviour. He had the relevant intention and purpose. It follows that I find that the Tribunal erred in concluding that it was not established on the balance of probabilities that his intention was to harass the young girls. It is important to note at this point that it was not suggested before the Tribunal, nor this Court, that the practitioner intended to follow through or carry out any of the sexually suggestive comments.
Further, I consider that the Tribunal erred in finding that the practitioner naively but honestly believed his conduct and statements were “humorous or witty”. First of all, on his own evidence, the practitioner recognised the inappropriateness of his conduct with regard to Ms P a year earlier, and then followed the far more serious conduct with regard to Ms W. In relation to this latter conduct, he acknowledged, even at the time, that his conduct was inappropriate. The acknowledgment in each case gives the appearance of a calculated effort to cover himself in case the victims did make an accusation against him. However, it is not necessary to draw such a conclusion.
Further, the Tribunal’s conclusion that “The Tribunal gained the impression that the practitioner hoped that, by engaging in the conduct and making the statements particularised, his young patients would regard him as ‘cool’ and that was his desired outcome” is erroneous by reason of what the practitioner said; how it was interpreted; the accepted interpretation placed on it by the young girls; and his tortuous efforts to explain his comments and behaviour.
In summary, I consider that the Tribunal fell into appealable error in relation to its decision and that its decision should therefore be varied by the Court as set out hereafter.
Appeal Against Disciplinary Orders
In accordance with their findings, the Tribunal censured the practitioner and imposed a fine of $5,000 and ordered that he pay to the Board its costs of proceedings. The Board argued that the disciplinary action was inappropriate and inadequate, even based on the findings made by the Tribunal.
The powers of the Tribunal, and other similar professional bodies, are not exercised to punish. They are provided and exercised to protect the public. In the present case the Tribunal will do this by doing what is appropriate to ensure that the practitioner observes appropriate standards of professional conduct in the future.
The orders made by the Tribunal in a particular case may have an impact on a dental practitioner that is akin to punishment, but that is not the purpose of the orders. It is for this reason that a consideration of the appropriate orders cannot proceed on the same basis as it would if the issue was punishment of the practitioner. I refer to, without repeating, the observations made by Doyle CJ on this point in Law Society (SA) v Murphy[5] and in Law Society (SA) v Rodda.[6] I also refer to observations to the same effect by Duggan J in Reyes v Dental Board of South Australia.[7]
[5] (1999) 201 LSJS 456, 460-1.
[6] (2002) 83 SASR 541, [20].
[7] (2002) 83 SASR 551, [32].
The Tribunal acknowledged that the practitioner’s misconduct was serious. I agree. The practitioner’s conduct was quite improper as between a dental practitioner and patient. The fact that they were as young as they were is a further cause for concern.
It is of particular concern that in the course of the practice of an orthodontist many of the patients would be teenagers. One would have expected the practitioner to be well aware of how to conduct himself with teenagers.
It seems to me that even on its own findings the Tribunal has given insufficient weight to its finding that the misconduct resulted from naivety and immaturity, and also insufficient weight to the fact that it occurred in the course of dealing with patients of an age that the practitioner will frequently encounter.
The Tribunal in fixing the fine of $5000, indicated that it “will not cause any financial hardship to the practitioner, but as we have said, its purpose is to send an appropriate message to other practitioners”. In my view, a fine of $5000 does not send the appropriate message to practitioners, who on the whole would be earning generous incomes. A fine of $5000 accompanied by a reprimand is an inadequate disciplinary response, even for the found conduct of the Tribunal. Having said that, the fine may not have been inadequate if it had been accompanied by disciplinary orders other than a reprimand.
Furthermore, as a result of the errors which I consider the Tribunal made in relation to its findings of fact, it is even more apparent that the disciplinary order is inadequate. An important consideration in imposing a disciplinary order was that the practitioner was still endeavouring to maintain at the hearing that he had not intended to harass these young girls. A much stronger approach should have been taken in imposing disciplinary action.
The Tribunal was entitled to accept and to be influenced by the practitioner’s acknowledgment that he realised that his conduct had been inappropriate. It was relevant that the practitioner had apologised to Ms W in writing as soon as the complaint was brought to his attention. I understand that the practitioner admitted his misconduct at an early stage, subject to the dispute over one incident involving Ms W. I gather that he also told his staff of the complaints, as well as his wife. He had made arrangements for an adult to be present whenever he treated a teenager.
The Tribunal was told that the practitioner had undergone psychological counselling. I understand that the Tribunal had no report from the psychologist as to the nature and extent of that counselling, or as to the light that it threw on his misconduct and the risk of future misconduct.
These matters indicate that the practitioner acknowledged that his conduct was wrong, and that he had taken steps to minimise the risk of future misconduct attributable to his personality. However, the risk remained, and the Tribunal left the corrective measures under his control.
In making its orders, the Tribunal relied upon assurances by the practitioner, and in my view something more than that was required.
Whilst the practitioner’s improper conduct is to be condemned, I do not consider it of such gravamen as to call for an order cancelling his registration or to suspend his registration. However, I consider that strong corrective measures are required which would allow him to practise, but at the same time protect the public. I consider that a disciplinary order should include some form of supervision and inspection, particularly supervision whilst he is seeing patients.
I consider that the Tribunal should invite the practitioner to provide a report from the psychologist whom he consulted. The report should deal with the practitioner’s understanding of the effects of his behaviour, the risk of a recurrence and the nature of any further counselling which is required. The Tribunal should do more to satisfy itself that the practitioner has appreciated that his conduct was wrong and now has an appropriate understanding of the likely effects on a patient of such conduct, and is likely to be able to manage his own immaturity.
The Tribunal should also consider whether it is practical for the practitioner to have a condition attached to his registration, requiring him to submit to some form of periodic supervision or inspection by another experienced practitioner. The aim of that periodic supervision or inspection would be to ensure that the practitioner is maintaining appropriate practices and standards of behaviour, and in particular is conducting his practice in a manner that will minimise the risk of any further misconduct. Some form of independent supervision or checking is appropriate. In all the circumstances it is not sufficient to rely entirely on the practitioner’s assurances.
I realise that requiring the practitioner to practise with another practitioner, or under regular supervision, is unlikely to be practical. Such a restrictive order is probably not necessary. But the lack of insight that the practitioner displayed is of sufficient concern to call for some form of supervision and inspection for a period of time.
In summary, more is required to enable one to be satisfied that the practitioner now understands that his conduct was unacceptable, and to be satisfied that he is likely to be able to manage his own conduct, and will observe appropriate precautions in his practice.
This Court is not in a position to make appropriate orders. The matter should be remitted to the Tribunal for further consideration in exercise of the power conferred on this Court by s 66(6)(c) of the Act (set out above). The Tribunal should consider its orders afresh and should make such orders as it considers will be appropriate to protect the public interest.
Conclusion
For these reasons, I would make the following orders:
1.     That the appeal be allowed.
2.Pursuant to s 66(6)(b) of the Dental Practice Act 2001 (SA) findings 2, 3 and 4 of the Dental Professional Conduct Tribunal dated 19 June 2007 be rescinded.
3.That for those findings there be substituted a finding which is to follow finding 1 of the Tribunal’s decision:
2.That the practitioner harassed the patients named in the Complaint by intentionally making comments and by conducting himself in a manner which he knew was of a sexual nature and had sexual connotations and was likely to offend and embarrass the patients.
4.Pursuant to s 66(6)(c) of the Dental Practice Act 2001 (SA) the disciplinary orders made by the Tribunal on 22 June 2007 be set aside and that the matter of appropriate disciplinary orders be remitted to the Tribunal for further consideration in accordance with the following directions:
4.1    that the Tribunal invite the practitioner to provide a report from the psychologist whom he has previously consulted, to report on matters which include the practitioner’s understanding of the effect of his behaviour on the patients; the risk of recurrence; the nature of any further counselling required; and such other matters as the Tribunal or the practitioner consider relevant;
4.2    that the Tribunal reconsider the practicality of requiring a form of supervision and inspection of the practice of the practitioner for such period of time as is regarded as appropriate, and in particular to consider the inclusion of a requirement that the practitioner not perform treatment on teenagers without an adult being present;
4.3    that the Tribunal reconsider the orders as a whole to take into account the substituted decision, any further material arising from this order and other material or matters which may be placed before it.