Joske v Whamond

The appellant, Ernest Joske, appealed to the High Court of Australia from a decision of the Supreme Court of Victoria which had discharged an order nisi to review a dismissal by a Court of Petty Sessions. The dispute concerned an information laid by Joske against F. C. Whamond, alleging that Whamond, not being a registered dentist in Victoria, had practised dentistry for reward between 12 and 28 May 1931, contrary to section 72 of the Medical Act 1928. Whamond held a permit issued by the Dental Board of Victoria, which stated that a dentist could employ him under personal supervision, provided he had practised dentistry under personal supervision for a specified period prior to December 1927. The evidence indicated that Whamond performed dental operations for reward, but not always under the personal supervision of his employer, a registered dentist.

The legal issues before the High Court were whether Whamond's actions constituted practising dentistry for reward contrary to the Medical Act 1928, and if so, whether the permit he held provided a defence. Specifically, the Court had to determine the scope of the exception provided by section 68(3)(a) of the Act, which permitted dentists to employ persons holding a permit, and whether this employment authorised the permit holder to practise dentistry without the direct personal supervision of the employer.

A majority of the High Court (Rich, Evatt, and McTiernan JJ.) held that the permit issued under section 68(3)(a) only authorised employment under the personal supervision of the registered dentist. They reasoned that while the Act permitted a dentist to employ a permit holder in his practice, this employment was only lawful if it occurred under the dentist's personal supervision. The permit itself, and the underlying legislative intent, were interpreted as preserving the right to practise dentistry only to the extent that it was done under such supervision. Since Whamond had performed dental operations without this direct supervision, his actions fell outside the statutory exception and constituted an offence under section 72. Gavan Duffy C.J. and Starke J. dissented, taking the view that the permit, as issued, did not necessarily limit the employment to situations of personal supervision, and that the Dental Board's inclusion of such a limitation in the permit was unwarranted by the Act.

The High Court allowed the appeal, setting aside the decision of the Supreme Court and the order of the Court of Petty Sessions. Whamond was convicted of the offence and ordered to pay a fine.