Judge v Chiropractors Board of South Australia - [2004] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Miscellaneous Appeal)
JUDGE AND ANOR v CHIROPRACTORS BOARD OF SOUTH AUSTRALIA
Judgment of The Honourable Justice Perry
27 July 2004
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - CHIROPRACTORS
COMPLAINT OF UNPROFESSIONAL CONDUCT - ADVERTISING
The appellant and his company, both registered chiropractors, appealed against a finding of unprofessional conduct made by the Chiropractors Board - the appellant had previously been employed by another chiropractor practising under the name “Better Back Whyalla” - when he left that employment in order to take up practice elsewhere, he advertised in the local paper that he would be consulting at another address - in the advertisement he described himself as “formerly of Better Back” - consideration of the circumstances in which advertising for custom might constitute unprofessional conduct - held that even if the advertisements should be construed as designed to attract clients from a competing business, they did not constitute unprofessional conduct - finding of the Board quashed - appeal allowed.
Chiropractors Act 1991 s 6(1)(d); Code of Professional Conduct and Practice Published by the Chiropractors Board of South Australia, referred to.
N.E. Perry Pty Ltd v Judge and Anor [2002] SASC 312, Full Court, 3.10.02 (unreported); In re R (1927) SASR 58, considered.

JUDGE AND ANOR v CHIROPRACTORS BOARD OF SOUTH AUSTRALIA
[2004] SASC 214
Miscellaneous Appeal

PERRY J This is an appeal from an order made by the Chiropractors Board of South Australia (“the Board”) on 13 May 2004 following an inquiry by the Board initiated by a complaint made in writing by the Registrar of the Board pursuant to s 41 of the Chiropractors Act 1991 (“the Act”).
The respondents to the complaint were the appellants, that is, AMJ Chiropractors Pty Ltd (“AMJ”) and Dr Allan Judge. Both AMJ and Dr Judge are registered chiropractors.
The grounds upon which the complaint was made were in substantially the same terms with respect to both of them. The complaint alleges that between 29 October 2001 and 27 December 2001 they were
“… guilty of unprofessional conduct in relation to the solicitation of the clients of the chiropractic practice trading as Better Back Whyalla to the new place of practice of …. [AMJ and Dr Judge] … at Access Chiropractic Centre, Bunyarra, 153 Nicolson Avenue, Whyalla …”
contrary to s 41(7)(c) of the Act.
The Board conducted a hearing on 13 May 2004, during the course of which it heard evidence from Dr Judge and received a number of documentary exhibits. It found the charge made out and issued a reprimand to both of the appellants, and awarded costs against them jointly in the sum of $2,000.
Later, on 1 June 2004, the Board delivered written reasons for its decision.
The appellants appeal as of right to this Court pursuant to s 46 of the Act.
Background
Most of the relevant facts were agreed or were proved by the tender of various documents. As I have indicated, the only oral evidence was that given by Dr Judge.
Dr Judge obtained his chiropractic qualifications in 1993. Since 1998, he has practised as a chiropractor in Whyalla. He conducted his practice through the company AMJ, of which he and his wife, Malina Judge, were at all material times the sole directors and shareholders.
Section 18(2) of the Act specifically permits a company to be registered as a chiropractor. As I have said, both the company and Dr Judge were registered as such.
N.E. Perry Pty Ltd (“NEP”) has conducted a chiropractic practice at Whyalla from 1991, under the name Better Back Whyalla.
By a written agreement dated 22 July 1998 (“the contract”), NEP contracted with AMJ for AMJ to provide chiropractic services to patients at NEP’s practice which was conducted at an address known as Bunyarra Clinic at Nicolson Avenue, Whyalla (“the clinic”). The engagement of AMJ to provide chiropractic services at that address was expressed to be for the period from November 1998 until November 2001.
Pursuant to the contract, AMJ provided the services of Dr Judge to conduct the practice at the clinic. During the currency of the contract, Dr Judge was the only chiropractor operating the clinic.
After about two years, at some time in 2000, NEP moved the Better Back Whyalla practice to another address, being an address in Elliott Street, Whyalla. Dr Judge continued to conduct the practice at the new address.
While Dr Judge was continuing to work for NEP, his wife, Malina Judge, commenced a chiropractic practice at Whyalla. She established that practice in the premises which had formerly been occupied by NEP for the purposes of the conduct of the Better Back Whyalla practice, that is, at the clinic.
When the term of AMJ’s contract with NEP expired, which was in November 2001, Dr Judge withdrew his services from the Better Back Clinic and commenced working with his wife at the clinic. The practice which his wife had established at the clinic, in which she was joined by Dr Judge in November 2001, was conducted under the name Access Chiropractic Centre.
The complaint against Dr Judge has its genesis in certain advertisements which Dr Judge placed and AMJ paid for, in ten separate editions of the Whyalla News newspaper which were published on various dates in October, November and December 2001. Copies of two of the advertisements, published respectively on Monday 29 October 2001 and Thursday 1 November 2001, were tendered at the hearing before the Board. Presumably they were tendered on the basis that they were representative of all ten advertisements, in the sense that the words, with particular reference to which the charge was laid, appear in both. Those words are “Dr Allan Judge (formerly of Better Back)”.
The full text of the advertisements in which those words appear on the two dates to which I have referred is as follows:
[Advertisement in Whyalla News Monday 29 October 2001]
CHIROPRACTOR
DR ALLAN JUDGE
(formerly of Better Back)
Wishes to advise that as from 1 November he will
be consulting at Access Chiropractic Centre,
Bunyarra, 153 Nicolson Ave. Whyalla Norrie. For
appointments please phone 8645 0880
[Advertisement in Whyalla News Thursday 1 November 2001]
ACCESS CHIROPRACTIC CENTRE
DR ALLAN JUDGE
(formerly of Better Back)
DR MALINA JUDGE
Bunyarra, 153 Nicolson Ave
Monday - Friday 9.00am to 7.00pm
Most Saturday Mornings
Appointments for day & after hours service
Please phone 8645 0880
The Civil Proceedings
Before the complaint was lodged which resulted in the disciplinary hearing before the Board, NEP brought proceedings against both AMJ and Dr Judge in the District Court, to enforce certain restraints contained in the contract.
The proceedings concerned clause 10 of the contract, which is as follows:
“Non Competition
The Contractor acknowledges that he/she will be introduced to the client list relating to the Clinic. The Contractor agrees that in consideration of this Agreement they will not use the information contained therein for their own benefit and will not seek to induce any client of the Clinic to become a client of the Contractor for a period of 2 years following the termination of this Agreement. The Contractor agrees that they will not practice for 2 years within the township of Whyalla, or within a 30 km radius of the said practice in Schedule 4 (the Clinic).”
That clause contains two restraints. They are a restraint on practice, and a restraint on inducement.
Following the trial in the District Court, the trial judge held both restraints to be invalid at common law.
On appeal to the Full Court of the Supreme Court, the finding in the District Court that the restraint on practice was invalid was upheld. But the Full Court reversed the District Court judge’s ruling on the restraint on inducement, holding that restraint to be valid and enforceable.[1]
[1] N.E. Perry Pty Ltd v Judge and Anor, (unreported) [2002] SASC 312, Full Court, 3 October 2002.
The Full Court further held that publication of the advertisements now in question, more particularly the words “formerly of Better Back”, constituted a breach of the covenant restraining inducement. The reasoning of Doyle CJ which led him to reach that conclusion, appears from the following passage in his reasons for judgment:
“52This is a matter on which minds are likely to differ. In my opinion the inclusion of the reference to ‘Better Back’ draws attention to the fact that Dr Judge was previously involved in that Clinic, and this is something likely to be of significance to, and only to, clients of that Clinic. Just as a telephone call from Dr Judge to a former client, doing no more than informing the former client of Dr Judge’s new place of practice, would, in my opinion, be an inducement, so is a general advertisement placed by Dr Judge which informs the relevant reader that he is the Dr Judge who formerly practised at ‘Better Back’. I consider that the purpose and effect of the information is to make use of the link between Dr Judge and the ‘Better Back’ clinic, and the most obvious use is to encourage former patients of the clinic to follow Dr Judge.”
In separately published reasons Bleby and Besanko JJ reached a similar conclusion.
The Proceedings before the Board
The hearing before the Board was conducted pursuant to s 41 of the Act. Section 41(1) provides, inter alia:
“The Board may, on its own initiative or on receipt of a complaint, conduct an inquiry in order to determine-
(a)…..
(b)whether there is a proper cause for disciplinary action against a registered chiropractor.”
Section 41(7) provides that there is proper cause for disciplinary action against a registered chiropractor if, amongst other things:
“(c)the chiropractor is guilty of unprofessional conduct.”
For the purposes of hearing the complaint, the Board was constituted by a chairperson, who is a lawyer, three chiropractors and a lay member, whom I assume was a person appointed to represent the interests of persons receiving chiropractic services.[2]
[2] See s 6(1)(d) of the Act.
In the course of the evidence which he gave at the hearing, the appellant was asked why he put the words “formerly of Better Back” into the advertisement. The following passage of evidence ensued:
“A.So people wouldn’t think that Better Back was moving, relocating back to their previous premises.
Q.Were you the only chiropractor providing services on behalf of Better Back in Whyalla.
A.That’s correct.
Q.So N.E. Perry Pty Ltd did not have another chiropractor working there whilst you were also there.
A.That’s correct.
…………..
Q.So your concern was that by you personally moving you did not want people to think that Better Back was moving.
A.That’s correct.
Q.And particularly because you were going back to the premises where you had been for two years.
A.That’s right. I’d be very familiar.”
Elsewhere he said that the reason the advertisements were published was because the appellants “didn’t have any representation in the Yellow Pages”.
During the course of his cross-examination, the following passage appears:
“Q.…. Was there any need to include the words ‘formerly of Better Back’.
A.I thought it important to make the distinction, because I didn’t want to induce clients that would want to see Better Back to see me because they might get confused that Better Back was moving.”
It was not suggested to Dr Judge in the course of cross-examination that his motive in putting the advertisement in the paper was to poach clients from Better Back, and neither was he cross-examined in a way to suggest that the reason which he gave in the course of his evidence for the advertisements, was false.
As I have said, the rest of the evidence received by the Board was documentary evidence, which included a copy of the contract, a copy of the reasons for judgment of the Full Court, and a copy of the Code of Professional Conduct (“the Code”) and Practice published by the Board.
In the introduction to the Code, the Board states:
“It must be emphasised that the categories of conduct amounting to unprofessional conduct referred to in this publication are examples only and should not be seen as being a finite definition of unprofessional conduct.”
There follows a statement of “Duties and Responsibilities”, and a section headed “Standard of Professional Conduct”.
Under both headings, almost all of the matters referred to concern dealings between chiropractors and patients. There is very little said about dealings between chiropractors.
The only part of the Code in which there is any reference to soliciting patients is the following sentence, which appears in the section dealing with the investigation of complaints:
“The Board will use its discretion whether or not to investigate complaints from one practitioner against another when the complaint is one of soliciting patients.”
Neither the Act nor the Code contains any definition of unprofessional conduct.
The Board’s Reasons for Decision
After setting out the agreed facts and referring to the exhibits which it had received in evidence, the Board then noted that the Full Court of the Supreme Court had reached the unanimous conclusion that that part of clause 10 of the contract relating to inducement had been breached by Dr Judge.
The Board went on to deal with submissions which had been put to it by Ms Olsson of counsel for the Registrar. As to this, the following passage appears in the Board’s reasons:
“Ms Olsson asked the Board to note that while there was no overt reference to solicitation in the Code of Professional Conduct and Practice issued by the Board, there was a statement in section 5.1 that the Board was to use its discretion whether or not to investigate a complaint from a practitioner against another for soliciting patients.
In the absence of any statutory or common law definition, Ms Olsson directed the Board to the Macquarie dictionary meaning of the word ‘solicit’. The meaning given is ‘to seek, influence, incite to action; to attempt to obtain business …’. She also referred to the Supreme Court’s definition in the New South Wales case of R v Laws namely ‘to ask, call for, make a request, entreat …’ (at page 96).
Ms Olsson submitted that the advertisements placed by Dr Judge fell within both definitions of the word ‘solicit’ because they were intended to incite people to take notice of the changes happening and to come to the new business.
Ms Olsson further submitted that the actions of the Company and Dr Judge fell short of the professional standards expected by members of the chiropractic profession and, as such, amounted to unprofessional conduct.”
The Board then dealt with submissions which had been made by Mr Coppola of counsel for Dr Judge and AMJ, during the course of which they noted that Mr Coppola had drawn attention to Dr Judge’s evidence as to his reasons why he had included the words “formerly of Better back” in the advertisements.
The Board went on to refer to the well known definition of unprofessional conduct made in the context of disciplinary proceedings against a legal practitioner in the case of In re R.[3] The Board quoted the following passage from the judgment of the Full Court (Murray CJ, Angas, Parsons and Richards JJ) in that case:[4]
“In our view ‘unprofessional conduct’ is not necessarily limited to conduct which is ‘disgraceful or dishonourable’ in the ordinary sense of those terms. It includes, we think, conduct which may be reasonably held to violate or fall short of to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.”
[3] (1927) SASR 58.
[4] Ibid 60-61.
The Board expressed its conclusions in the following terms:
“The Board is of the view that the advertisements do amount to solicitation and that the actions of the company and Dr Judge amount to unprofessional conduct because they violate, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency. The Board, therefore, finds that there is proper cause for disciplinary action against the company and Dr Judge.”
The Arguments on Appeal
Mr Coppola, who appeared on the hearing of the appeal for the appellants, contended that the placing of the advertisements did not amount to unprofessional conduct. He contended that there was no evidence of solicitation, in that there is no evidence that any clients of Better Back had, as a result of the advertisements, left Better Back and consulted the appellants.
In my view, if “solicitation” did amount to unprofessional conduct (and it will be seen that I do not think that it necessarily does so), it would not be necessary to show that the solicitation was successful in attracting patients from a competing practice.
However, one difficulty which I have, is that to speak simply in terms of solicitation, does not throw any light on the question which is really central to this case. The act of soliciting custom, that is, by one means or another, attempting to persuade patients to patronise the appellants’ practice, could not ordinarily amount to unprofessional conduct.
The days are long since passed when touting for business by a professional person is to be regarded as unprofessional conduct. Simply to advertise for business, that is, to endeavour to attract customers by advertisement, is an accepted part of ordinary professional life. However, I suppose that the publication of advertisements that are in very poor taste, or which are misleading or deceptive might amount to unprofessional conduct.
Also, an advertisement which reflected in any way on the competence or quality of service provided by a competitor, might amount to unprofessional conduct.
However, none of those things apply in this case. These advertisements did not mislead. They were purely factual. They were not in bad taste. They did not reflect upon any other chiropractor’s practice.
The substance of the case against the appellants was not that they advertised for business or solicited custom, but that they were attempting to poach customers from another practitioner.
The question arises as to whether or not, even viewed in that light, the conduct amounts to unprofessional conduct.
In the context, for example, of the legal profession, it is unlikely that a charge of unprofessional conduct would these days be sustained simply on the basis that a practitioner had endeavoured to induce customers to engage him or her, rather than remain a client of another practitioner.
There is much movement of practitioners in and out of legal firms, and it is a common occurrence for practitioners who leave a firm to take up practice elsewhere, to draw with them clients of the firm which they have left. This is an unexceptional and everyday experience.
Even the regular monthly Bulletin published by the Law Society of South Australia makes public announcements of movements of practitioners from one practice situation to another. No doubt clients of a former practice who may read such publications may be induced to follow a practitioner to a new practice.
Advertisements are commonly inserted in professional publications relating to lawyers, to the effect that a practitioner has left a named practice and taken up practice elsewhere.
When I asked Ms Olsson directly, during the course of argument on the hearing of the appeal, whether advertisements of the kind in question, if publicised by a legal practitioner, would amount to unprofessional conduct, she indicated that she could not suggest that it would.

I accept that what might not amount to unprofessional conduct in the context of one profession, may nonetheless amount to unprofessional conduct in another professional context. But I doubt whether advertisements of the kind in question would amount to unprofessional conduct in the context of any profession.
I do not overlook the fact that the Full Court found on appeal that the advertisements were a breach of the provision in the contract restraining inducement. But that is an entirely different matter. Any lawful contractual provision directed to that end will be enforced by the courts.
But it does not follow that conduct amounting to such a breach of contract will amount to unprofessional conduct.
It must be said, though, that while not binding on the Board, the decision of the Full Court should be regarded as lending weight to the view that the advertisements had the capacity to induce former patients of Better Back to transfer their patronage to the appellants. But for the reasons which I have given, I do not regard that circumstance as supporting the case against the appellants.
Furthermore, I point out that the Board did not address the question whether they accepted the explanation given by Dr Judge in his evidence as to why he inserted the advertisements. Given the fact that there was no serious attack upon his evidence in that respect, it seems to me that there is no reason to suppose that his evidence should not be accepted. If it is accepted, it goes a long way to dispelling any suggestion of unprofessional conduct.
For the reasons which I have given so far, in the circumstances of the case, the proper finding should have been that the complaint of unprofessional conduct was not made out.
If I was to be wrong in that view, there is nonetheless a question of degree to be considered.
In the formulation of what constitutes unprofessional conduct in the decision of the Full Court in In re R, which I accept as an authoritative statement identifying in general terms what may properly be regarded as unprofessional conduct, the expression used by the Full Court was conduct “which may be reasonably held to violate, or to fall short of, to a substantial degree the standard of professional conduct observed or approved of by members of the profession of good repute and competency”. (Emphasis added.)
I hardly think that if, contrary to the conclusion which I have reached, the advertisements should properly be regarded as falling short of an appropriate standard of professional conduct observed or approved of by members of the chiropractic profession, it could be said to do so “to a substantial degree”.
The appeal is allowed.
I order that:
1.The finding of the Board that the appellants were guilty of unprofessional conduct, and the penalty imposed, be quashed.
2.There be substituted an order that the complaint against the appellants be dismissed.