Joske v Lubrano

[1906] HCA 55

4 CLR 71

[ ] JOSKE LUBRANO

ON APPEAL FROM THE SUPREME COURT OF Dentists Act 1898 (Vict.) (No. 1595), sec. 7* - -Unregistered person using words im-

plying that he is carrying on practice of dentistry.

L., who was neither a legally qualified medical practitioner nor a registered dentist, practised dentistry in a house outside of which were displayed various signs one of them being " D., Dentist," and another 'Teeth extracted." D. was a registered dentist who was absent from Victoria. L.'s name did not appear on any of the signs, but he was the only person who practised dentistry

Held, that L. was properly convicted of the offence of using at his place of business words implying that he was carrying on the practice of dentistry, contrary to the provisions of sec. 7 of the Dentists Act 1898, notwithstanding *Sec. 7 of the Dentists Act 1898 is as

pital' or 'dental college' or college or follows:- "(1) No person other than a

school of dentistry' or 'mechanical legally qualified medical practitioner or

dentist or any name title word letters other than a person registered under the

addition or description implying or Dentists Act 1887 or under this or the

tending to the belief that he or such Principal Act shall, nor shall any com-

company is registered under the Dentists pany (other than an association consist-

Act 1887 or under this or the Principal ing wholly of registered dentists), take

Act or that he or such company is or use or by inference adopt the name

qualified to practise dentistry or is title word letters addition or descrip-

carrying on the practice of dentistry or tion, of dentist' or dental practi-

is entitled to or to use such name title tioner' or dental surgeon' or surgeon

word letters addition or description. dentist,' or use or have attached to or

(2.) Any person or company guilty exhibited at his or its place of business

of a contravention of this section shall or residence (either alone or in com-

on conviction be liable to a penalty not bination with any other word or words

exceeding Twenty pounds for every or letters) the words ' dental company'

such offence," &. or dental institute' or dental hos-

4 CLR 72

that, in reply to questions put to him by a witness who visited the house and asked for D., L. said that D. was absent, that his name was L., and that he acted for D. and was carrying on the business for him.

Decision of Supreme Court, (Joske v. Lubrano (1906) V.L.R., 407 28 A.L.T., 40) reversed.

APPEAL from the Supreme Court of Victoria pursuant to special leave.

At the Court of Petty Sessions at Footscray on 12th April 1906, an information was heard whereby Ernest Joske, Registrar of the Dental Board of Victoria, charged that Ernest Vistrani Lubrano, not being a legally qualified medical practitioner, nor a person registered under the Dentists Act 1887, nor under the Dentists Act 1898, nor under the Medical Act 1890, Part II., did, on the 19th March 1906, at 92 Nicholson Street, Footscray, use at his place of business words implying that he was carrying on the practice of dentistry, contrary to the provisions of the Dentists Act 1898.

At the hearing evidence was given that one Edward Walter Dermer, of 92 Nicholson Street, Footscray, was, and that the defendant Lubrano was not, a registered dentist, and also that the defendant was not a legally qualified medical practitioner. Evidence to the following effect also was given :-Joseph Lane, a senior constable, said that he knew the defendant's place of business at 92 Nicholson Street, Footscray; that on October 26th 1905, he called on the defendant there and had a conver- sation with him; that he asked the defendant if he was a registered dentist, and that the defendant said "I am a registered dentist in New South Wales"; that he asked the defendant to pro- duce his certificate of registration in New South Wales; that the defendant produced certain papers purporting to be an acknow- ledgment of an application for registration, but did not produce the certificate; that the defendant said "I am carrying on this business for my brother-in-law Mr. Dermer. He is residing in Western Australia at present and has been away for nearly eighteen months"; that the surgery contained appliances usually used in the practice of dentistry; and that the name of 'E. W. Dermer, Dentist," appeared on the premises in three or four places and inscriptions such as "Teeth Extracted " in various places, implying that dentistry was carried on there. On cross-

4 CLR 73

OF AUSTRALIA examination Lane said that the defendant's name did not appear anywhere on the premises, nor did the defendant hold himself out to him (Lane) as a dentist, and that the defendant said he was Mr. Dermer's representative.

Thomas Hamilton said that he went to 92 Nicholson Street, Footscray, on 19th March, and saw the defendant, and had the following conversation with him -Hamilton. - Is Mr. Dermer in ?"

The defendant.-' Not at present, but I am acting for him." Hamilton.--" Are you a dentist ?" The defendant.-

Yes." Hamilton.-'' What is your name?" The defendant.-- "Lubrano. I am acting for Mr. Dermer. I am his brother-in- law." The defendant (after examining Hamilton's teeth).- "Who sent you to me?" Hamilton.-" Mrs. Wilson." The defendant.--" I thought so, she is one of my best patients. She has sent a lot of people to me." Hamilton also said that on the window of the room and on the side of the wall there were the words "E. W. Dermer, Dentist," and that this or similar signs appeared in three or four places.

The defendant, having been convicted, obtained an order nisi to review the conviction on the ground (interalia) that "there was no evidence to support the said conviction inasmuch as it did not disclose that the defendant used the said words at his place of business."

The order nixi coming on for hearing before àBeckett A.C.J., was made absolute Joske v. Lubrano 1.

The informant, having obtained special leave, now appealed to the High Court.

Isaues A.G. and Mackey, for the appellant. There is ample evidence that the respondent used at his place of business words implying that he was carrying on the practice of dentistry, which is an offence under sec. 7 of the Dentists Act 1898. The facts that the words 'E. W. Dermer, Dentist" were displayed outside the house, and that the respondent practised as a dentist inside and was the only person who practised as a dentist there, were evidence of that offence: See Brown v. Whitlock 2; Panhaus v. Brown (3); Royal College of Veterinary Surgeons V.

1(1906) V.L.R., 407; 28 A.L.T., 219 T.L.R., 524. 4 CLR 74

Robinson 1; Dentists Act 1878 (England) (41 &42 Vict. C. 33),

S. 3: Encyclopredin of the Laws of England. vol. IV., p. 217; Carpenter v. Hamilton (2); Pharmaceutical Society v. London and Provincial Supply Association Ltd. 3; Pharmaceutical Society v. Wheeldon 4. The last case shows that an offence is committed notwithstanding that the defendant is carrying on the business for some one else who is a registered dentist. There was evidence that the place in question was the defendant's place of business. He was the only person carrying on dentistry there. It is however immaterial whether it was the defendant's place of business, for the offence of using words implying that the person using them is a dentist is independent of any place of business.

Arthur, for the respondent. There is only one offence disclosed by the evidence, and that is taking the title of dentist, which is made a specific offence by the Act. What happened inside the house between the defendant and the witnesses is relevant to the question whether the defendant did use the word "dentist." If the sign outside had nothing to do with the representation which is made inside, the offence is not complete. The implication to be drawn from the sign is rebutted by the defendant telling the patients that he is not the person referred to in the signs. The case of Panhaus v. Brown (5) came directly within the words of the Statute (41 &42 Vict. C. 33.) It is con- sistent with the evidence that the signs were not put up by the defendant at all but were left up by Dr. Dermer. All the cases referred to in the Encyclopcedia of the Laws of Enyland are cases where the defendant himself had put up the sign. There is no evidence that the defendant carried on this business. It is necessary to show that he carried it on for his own profit: Pedgrift v. Checallier 6.

Isaucs A.G. in reply.

GRIFFITH C.J. Sec. 7 of the Dentists Act 1898 provides that no person not being duly qualified shall "take or use or by inference

1(1892) 1 Q.B., 557. 35 App. Cas., 857. 424 Q.B.D., 683. 68 C.B.N.S., 240. 4 CLR 75

adopt the name title word letters addition or description, of dentist' or dental practitioner' or 'dental surgeon' or surgeon dentist," -that is one prohibition; then follows another-" or use or have attached to or exhibited at his

place of busi- ness or residence (either alone or in combination with any other word or words or letters)

any name title word letters addition or description implying or tending to the belief that he

is qualified to practise dentistry or is carrying on the practice of dentistry," &. The respondent was charged that he, not being a legally qualified medical practitioner, nor a person registered under the Dentists Act 1887, nor under the Dentists Act 1898, nor under Part II. of the Medical Act 1890, did at Footscray, on 19th March 1906, use, at his place of business, words implying that he was carrying on the practice of dentistry. The facts were that the respondent was the occupier of a house outside of which were placards with the words ". E. W. Dermer, Dentist" on them, and two or three other signs, "Teeth Extracted," &. As matter of fact he did carry on the practice of dentistry at that house, and was the only person who did SO. The justices were of opinion that he had used, at his place of business, words implying that he was carrying on the practice of dentistry, and they con- victed him. It is to be observed that the offence is "using" the words, which must mean having written or printed words affixed to some place SO as to be seen. Beckett J., in the course of his judgment, said: 1-" I do not at all mean to say, supposing the evidence were of a man carrying on business in a place, and the plate and placards, whatever they might be, outside indicating that the business of a qualified dentist was carried on there by a qualified dentist-that might not be enough. In the absence of evidence negativing the inference which would be drawn from these facts, an unqualified person might rightly be charged with using at the place at which he carried on his business words within the section inducing the belief that he was a qualified person." That opinion of the learned Judge is exactly in accord with that of the King's Bench Division in the case of Panliuus v. Brown (2), decided in 1904. In that case the charge was slightly different, but the finding of fact was that the defendant carried

1(1906) V.L.R., 407, at p. 413. 4 CLR 76

on the practice of dentistry in the house, that outside he had on the door-plate the words, "West Central Dental Institute, Limited," and " Dental Institute, Limited, West Central Registered Zah- naerztliches Institut." The magistrate came to the conclusion that the description on the door-plate and in an advertisement implied that the person who in fact practised dentistry at the house was a person specially qualified under the Dentists Act 1878, or other Acts, and that such was the impression which would be left on the mind of any ordinary person reading the advertise- ment or the words on the door-plate. He was of opinion that the appellant, being the only person who actually practised dentistry on these premises, did avail himself of and use the description on the door-plate and the description in the advertisement implying that he was a person specially qualified under the Dentists Act 1878, and SO on. On appeal to the King's Bench Division, Lord Alverstone C.J. said (1) :- am clearly of opinion that the magistrate has come to the only conclusion that he could come to, and that there is abundant description to infringe the Dentists Act 1878." Beckett J. intimated that that was the only conclusion the magistrates could have come to in this case-and I quite agree with him in that-but for the point upon which he allowed the appeal. He thought that the offence, which is completed by using the words outside the house SO as to be seen by the public and SO induce the belief, could be qualified by something said by the respondent inside the building. The learned Judge calls that "administering the antidote." It appears that the respondent, on being asked by a witness " Are you Mr. Dermer?" said, No, I am not." But the question is, not whether the respondent induced the belief in the mind of that witness that he was a qualified dentist, but whether he used words in public implying that he was practising dentistry at that place. I think there can be no doubt that he did, and that what he did afterwards is irrelevant, and could not qualify the use of the words outside the house. That is where, in my opinion, the learned Judge made a mistake.

I think that the appeal should be allowed.

BARTON J. I am of the same opinion. The Act in question

4 CLR 77

shows that its scope is not the protection of registered practitioners but the protection of the public. Now, the thing which tended to injure the public was the representation by the respondent, who was not registered as a dentist, that he was the person carrying on business at the place outside which the name of " E. W. Dermer, Dentist," was displayed. To use the analogy of àBeckett J., the poison laid for the public was the notice outside the door, and it does not excuse the laying of it, that the anti- dote was administered to one person who happens to have taken the poison. The evidence is perfectly clear that the respondent was carrying on the business referred to in the notice outside, and that he was getting the benefit of that notice for the pur- pose of carrying on that business in a manner contrary to the Act. Under the circumstances I think that the magistrates could have come to no other conclusion than they did, and that the appeal should be allowed.

O'CONNOR J. I am of the same opinion, and have nothing to add.

Appeal allowed. Order nisi discharged

with costs. Respondent to pay the costs of the appeal. Solicitor, for appellant, E. Joske, Melbourne. Solicitor, for respondent, A. E. Secomb, Melbourne.