Tai v Dental Board of Tasmania
[2005] TASSC 37
•13 May 2005
[2005] TASSC 37
CITATION: Tai v Dental Board of Tasmania [2005] TASSC 37
PARTIES: TAI, Kuen Ching
v
DENTAL BOARD OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 24/2005
DELIVERED ON: 13 May 2005
DELIVERED AT: Hobart
HEARING DATE: 5 May 2005
JUDGMENT OF: Evans J
CATCHWORDS:
Professions and Trades – Medical and related professions – Dentists – Discipline and removal from the Register – Misconduct need not be characterised.
Dental Practitioners Registration Act2001 (Tas), s43, "professional misconduct".
In The Matter of S76 Legal Practitioners Act 1959 and in the Matter of Four Legal Practitioners C2/1987; The Law Society of Tasmania v J B Walker, D B Walker and J R Hurburgh A56/1988; Adamson v Pharmacy Board of Tasmania (No 2) [2004] TASSC 82, followed.
Professions and Trades – Medical and related professions – Dentists – Discipline and removal from the Register – Right to be heard as to consequential orders following misconduct finding.
Fisher v Keane (1878) 11 Ch D 353; Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378; Malone v Marr & Anor (1981) 2 NSWLR 894, followed.
Professions and Trades – Medical and related professions – Dentists – Discipline and removal from the Register – Findings to be confined to matters of complaint.
Patterson v The Law Society of Tasmania B15/1990; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204; Archer v Howell (1993) 10 WAR 33; Mahon v Air New Zealand Ltd [1984] AC 808; Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to.
Aust Dig Professions and Trades [206]
REPRESENTATION:
Counsel:
Appellant: B J Morgan
Respondent: S N Allston
Solicitors:
Appellant: Wallace Wilkinson & Webster
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 37
Number of paragraphs: 15
Serial No 37/2005
File No LCA 24/2005
KUEN CHING TAI v DENTAL BOARD OF TASMANIA
REASONS FOR JUDGMENT EVANS J
13 May 2005
The appellant appeals against a finding and consequential orders made against him by the respondent acting in its capacity as a disciplinary tribunal ("the Tribunal") pursuant to the Dental Practitioners Registration Act 2001 ("the Act").
The proceedings against the appellant resulted from a complaint against him made by a patient, Christine Maynard, to the Health Complaints Commissioner. Pursuant to the Health Complaints Act 1995, s58(1), the Commissioner referred the complaint to the respondent for investigation. In accordance with the Act, s46(1), the respondent referred the complaint to an investigation committee which, pursuant to the Act, s50(1) and (3), instituted formal disciplinary proceedings against the appellant by referring the complaint to the respondent in its capacity as a disciplinary tribunal and by giving the appellant notice of the complaint. The only information the notice provided to the appellant in relation to the substance of the complaint was contained in three paragraphs detailing particulars of the complaint. The first particular is the only particular as to which adverse findings were made against the appellant together with consequential orders. That particular is as follows:
"PARTICULARS
1Between the 1st of February 2002 and 25th February 2002 at Hobart in Tasmania you were guilty of professional misconduct in that you were negligent or incompetent as a practitioner, within the meaning of Section 43(1)(e) and Section 43(2)(h) of the Dental Practitioners Registration Act 2001, by failing to diagnose and treat the cause of a toothache being suffered by Ms Christine Maynard, namely in tooth number 37, when the said person presented to you for treatment."
The Tribunal's findings in relation to the allegations made in that particular and the orders it made in consequence of those findings were published in a written decision; they are as follows:
"Particular 1
The Tribunal is satisfied that Dr Tai's clinical examination of Ms Maynard on 1 February 2002 fell short of the standard which the public has a right to expect of a general dental practitioner in such circumstances. He failed to note the obvious fractured filling in tooth 37, despite the fact that it was observable on radiograph. It was also visible on the plaster model taken by Dr Tai in preparation for the making of the replacement crown. As such it would have been obvious on probing. He should also have seen from the radiographs taken that the crown on tooth 25 was not a PFM crown.
However, no definite finding can be made on the role played by the fractured filling and caries in tooth 37 in the presentation of Ms Maynard's dental pain on this date or later in her treatment by Dr Tai. Without doubt this problem was present through her entire treatment with him, and it should have been considered as a potential problem, although it is possible that symptoms from the tooth did not become pronounced until a little later.
The Tribunal is of the view that Dr Tai's decision to embark upon the removal of the crown on tooth 25 was not justified by Ms Maynard's presenting symptoms, and that the decision stemmed from his failure to carry out a proper, detailed examination at the outset. His first approach on being satisfied that her symptoms were coming from tooth 25 should have included the possibility of TMD and it would have been more appropriate to reduce her occlusion (bite). He should also have taken steps at or shortly after the first consultation towards addressing the fracture in tooth 37.
It would seem likely from the evidence given that Ms Maynard presented primarily with left side symptoms of TMD. The fact that Dr Tai's treatment brought about some relief of symptoms is in all probability serendipitous. He appears to have been focused on the faulty margin of the crown on tooth 25 and it was this feature that he felt justified the crown's removal and ultimate replacement. In actuality any improvement of comfort for Ms Maynard was more probably achieved by the improvement in her occlusion (bite) by the removal of the crown and its replacement with a temporary one. The same result could have been accomplished by the considerably more conservative procedure of merely reducing her occlusion.
Nonetheless, Dr Tai's replacement of the crown on tooth 25 was supported as having being necessary in due course by the evidence of Ms Maynard's previous dentist Dr Proud. At least this action by Dr Tai 'did the patient no harm' in the circumstances.
The Tribunal has some sympathy with Dr Tai in that Ms Maynard would have been a very complex and difficult patient to treat.
What cannot be countenanced are the woeful dental records kept by Dr Tai. The quality of these records has made it very hard for Dr Tai to defend his actions.
It follows from the above that the Tribunal does not find Particular 1 proven, in strict terms. It is satisfied that his failure to diagnose and treat the fracture in tooth 37 arose from a failure to carry out his clinical examination with the level of care and skill which the public has a right to expect from a general dental practitioner in his circumstances, and that this also constituted professional misconduct by reason of negligence or incompetence within the meaning of s 43(2)(h) of the Act. (The Tribunal is guided in this respect by the unreported decision of Murray J in the Supreme Court of Western Australia in Ong v Dental Board of Western Australia (25 August 1995).) However, the Tribunal is not satisfied to the required degree that the fracture in tooth 37 was the cause of the symptoms presented by Ms Maynard when she saw Dr Tai on 1 February 2002.
As indicated above, the Tribunal's responsibility is to take such action as it considers appropriate in the light of its findings, and it is not limited by whether or not any of the particulars of complaint are proven. In light of its findings concerning the failure to diagnose the fracture in tooth 37, the failure to observe that the crown on tooth 25 was not a PFM crown before attempting to remove it, and the failure to keep adequate clinical records, the Tribunal -
1reprimands Dr Tai for his failure to observe proper professional standards in each of those respects;
2imposes the following conditions on Dr Tai's registration -
It is a condition of this registration, that during the period 30 April 2005 to 30 April 2006, Dr Tai meet with Dr Grant Ford, or such other practising dentist as the Board may nominate, for the purpose of mentoring, with a view to -
(a) assisting Dr Tai to upgrade his clinical skills and knowledge, most specifically in relation to differential diagnosis and record-keeping standards; and
(b) broadening Dr Tai's awareness of current clinical standards and for the purpose of peer contact and review.
The meetings are to occur at such times and frequency as the mentor may reasonably require.
It is a further condition of this registration that Dr Tai comply with all reasonable recommendations made by the mentor during the period 30 April 2005 to 30 April 2006 in relation to the undertaking by Dr Tai of further study or professional development.
As these requirements indicate, the Board is concerned that Dr Tai is not doing enough to maintain and update his practising knowledge and standards, and would appear to have insufficient contact with his peers. This concern arises in part from answers provided by Dr Tai to the President of the Board during the hearing, when questioned on such matters, and from the content of the curriculum vitae tendered in evidence during the hearing.
Given the significance of the default inherent in these findings, the Board further orders under s 54(1) that Dr Tai pay the amount of $10,000.00 towards the costs and expenses of and arising from these formal proceedings and the preceding investigation."
The Tribunal made and published its findings against the appellant, together with orders in consequence of those findings without first giving the appellant, or for that matter counsel assisting the Tribunal, the opportunity to make submissions on the orders the Tribunal should make in the light of its findings. It is trite that a disciplinary tribunal, in dealing with the alleged misconduct of a practitioner for which it has a power to make consequential orders of a punitive nature, must always distinguish procedurally between its findings as to misconduct and the orders it makes in consequence of those findings. If findings of misconduct are made, the practitioner must be asked to, and must be given an opportunity to, address the disciplinary tribunal on consequential orders. To do otherwise is a denial of natural justice. The right to be heard in palliation of findings of misconduct has been recognised for well over a century, Fisher v Keane (1878) 11 Ch D 353 at 363 and see Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378 at 382 – 383 and 391 and in Malone v Marr & Anor (1981) 2 NSWLR 894. There is no suggestion that the appellant waived this right and accordingly the consequential orders made by the Tribunal cannot stand. As recognised in the two New South Wales cases referred to and in R v The Resource Management & Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8 [26], the invalidity of consequential orders does not ordinarily affect the validity of the findings of misconduct to which the consequential orders relate. The appellant has not contended that the invalidity of the Tribunal's consequential orders in any way contaminates its findings as to misconduct. The appellant's challenge to these findings relates to:
·the finding that the appellant kept woeful dental records when this issue was not the subject of the complaint;
·the finding as to professional misconduct; and
·the adequacy of the Tribunal's reasons for some findings.
The adequacy of the dental records kept by the appellant was not the subject of any complaint made by Ms Maynard or the particulars provided to the appellant of her complaint. However, in the course of the proceedings the adequacy of the records was raised. The appellant was cross-examined on this topic and some conflicting expert evidence was given referable to it. This, however, provided no basis for the Tribunal to make a finding of misconduct against the appellant referable to the dental records. The parameters for the Tribunal's findings were confined by the complaint. Counsel for the respondent sought to justify the Tribunal's finding in relation to the dental records on the basis that it was a "by the way" finding, of no consequence, which was incidental to the Tribunal's core findings. I reject this submission. The Tribunal's finding in relation to the dental records was of real consequence. As to the records, it said:
"What cannot be countenanced are the woeful dental records kept by Dr Tai. The quality of these records has made it very hard for Dr Tai to defend his actions."
and the Tribunal identified this finding as one of the three findings, in the light of which, it proceeded to make consequential orders.
I should say that the Tribunal's concern about the adequacy of the dental records kept by the appellant was quite proper and that concern could have been addressed without invalidating the proceedings. The Act, s9, provides:
"The Board must perform its functions and exercise its powers so as to –
(a) ensure that the dental services provided to the public are of the highest possible standard; and
(b) ensure that persons who practise as dentists, dental therapists and dental hygienists do so according to the highest professional standard; and
(c) guard against unsafe, incompetent and unethical practices in the provision of dental services."
Consistent with those objectives, the Tribunal, like any similar disciplinary tribunal, is obliged to exercise its powers for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the dentistry profession which will continue its good reputation, and so protect, not only the future profession, but also protect its patients from harm. As disciplinary proceedings involve the public interest, which the Tribunal has a duty to protect, there can be circumstances in which the Tribunal has an obligation to intervene in the proceedings in a way which would not ordinarily be regarded as appropriate for a court hearing ordinary civil proceedings which are purely inter partes, Patterson v The Law Society of Tasmania B15/1990 at 17. As to the special nature of disciplinary proceedings, see also Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (NSW) 136 at 141.
Accordingly, whilst the adequacy of the dental records kept by the appellant was not the subject of the complaint before the Tribunal, it would have been appropriate for the Tribunal, in the light of the evidence that came out in relation to this issue, to have raised the possibility of this issue being made the subject of a supplementary complaint. Had that result been achieved, and had the appellant been given a full opportunity to deal with and adduce evidence in relation to the supplementary complaint, the appellant would have had no basis for challenging the making of a finding on the issue. See the course followed in Patterson, which was upheld on appeal, and see also O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 231. It is clear that a person who is the subject of a disciplinary hearing and may be adversely affected by a finding should have notice of that possibility and should be given the opportunity to adduce material that bears on the matter. To make such a finding in the absence of notice is a clear denial of natural justice: Patterson (supra) at 18; O'Reilly v Law Society of New South Wales (supra); Archer v Howell (1993) 10 WAR 33; Mahon v Air New Zealand Ltd [1984] AC 808; Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. As the Tribunal's dental records finding is inextricable from its other adverse finding against the appellant, all the findings will be quashed. I will, however, address other challenges to the findings made by the appellant.
The appellant contends that the Tribunal:
"… misdirected itself as to the test for professional misconduct and/or failed to determine whether the findings of fact which it made amounted to unprofessional conduct or the more serious professional misconduct".
At the outset of its findings in relation to particular 1, the Tribunal said:
"The Tribunal is satisfied that Dr Tai's clinical examination of Ms Maynard on 1 February 2002 fell short of the standard which the public has a right to expect of a general dental practitioner in such circumstances."
and further on, the Tribunal concluded:
"It is satisfied that his failure to diagnose and treat the fracture in tooth 37 arose from a failure to carry out his clinical examination with the level of care and skill which the public has a right to expect from a general dental practitioner in his circumstances, and that this also constituted professional misconduct by reason of negligence or incompetence within the meaning of s 43(2)(h) of the Act. (The Tribunal is guided in this respect by the unreported decision of Murray J in the Supreme Court of Western Australia in Ong v Dental Board of Western Australia (25 August 1995).)"
The following provisions in the Act are relevant to the appellant's contention:
"43 (1) Without limiting the matters about which a complaint may be made, a person may complain that a registered practitioner –
(a) has been registered by reason of a false or misleading statement or declaration; or
(b) no longer holds, or is no longer entitled to hold, a qualification by reason of which the practitioner was registered; or
(c) lacks sufficient physical capacity, mental capacity or skill to practise; or
(d) is not entitled on other grounds to be registered; or
(e) is guilty of professional misconduct.
(2) Without limiting the matters that may constitute professional misconduct, a registered practitioner is guilty of such misconduct if the practitioner –
(a) contravenes section 31 or section 59(4) or Part 6, or a provision of the regulations that is prescribed as a disciplinary regulation; or
(b) contravenes the Dental Code; or
(c) contravenes a foreign practitioners law; or
(d) contravenes a condition of his or her registration; or
(e) fails to pay, within the time specified for payment, a fine imposed on the practitioner under section 53(1)(c); or
(f) fails to comply with a requirement made of the practitioner under section 53(1)(e); or
(g) fails to honour an undertaking given to the Board; or
(h) is negligent or incompetent as a practitioner; or
(i) behaves in a fraudulent or dishonest manner as a practitioner; or
(j) influences or attempts to influence the provision of a dental service in a way that is likely to compromise patient care; or
(k) fails to properly supervise a person employed or engaged by the practitioner; or
(l) provides, without a patient's permission, a dental service that is extravagant or not reasonably necessary for the patient's welfare; or
(m) practises under a specialist title without approval; or
(n) practises from inadequate or inappropriate premises."
"53 (1) After it has conducted any formal disciplinary proceedings, the Board, in its discretion, may take any one or more of the following actions as it considers appropriate in light of its findings:
(a) remove the defendant's name from the relevant register;
(b) suspend the defendant's registration, totally or partially, for a period not exceeding 12 months;
(c) impose on the defendant a fine not exceeding 50 penalty units;
(d) impose a condition on the defendant's registration;
(e) require the defendant to take or refrain from taking specified action;
(f) caution or reprimand the defendant;
(g) dismiss the complaint."
In Adamson v The Pharmacy Board of Tasmania (No 2) [2004] TASSC 82, I had occasion to consider provisions in the Pharmacists Registration Act 2001, which, for relevant purposes, are the same as the above provisions. At pars7 – 10 I said:
"It has long been accepted in relation to legislation governing the discipline of members of a profession that, save as otherwise provided, the kinds of misconduct that justify action by a disciplinary tribunal include criminal conduct, professional misconduct and unprofessional conduct; In the Matter of the Law Society Act 1962 and in the Matter of a Legal Practitioner A105/1982 Cox J (as he then was) at 8 and 9, and Ex parte the Attorney-General for the Commonwealth: re; a Barrister and Solicitor (1972) 20 FLR 234 at 241. Whilst categories of conduct such as those mentioned are often referred to, it is not necessary that the conduct in question falls within any particular category. In The Matter of S76 Legal Practitioners Act 1959 and in the Matter of Four Legal Practitioners C2/1987, Green CJ said at 37:
'I reject the submission that my only function is to determine whether or not the respondents have been guilty of professional misconduct. My function is to consider the allegations and the evidence and make whatever findings about the respondents' conduct which might be appropriate.
However, I am not satisfied that it is appropriate or necessary to characterise the respondents' conduct by the use of some phrase such as "unprofessional conduct". I do not think it necessary to attempt to characterise or categorise their conduct more precisely than I have in the above findings.'
In the course of his reasons for judgment, Green CJ found that some respondents breached their duty as a solicitor and in the light of those findings, he invited the applicant to move that some admonitory, disciplinary or punitive steps should be taken. The course taken by Green CJ was upheld in The Law Society of Tasmania v J B Walker, D B Walker and J R Hurburgh A56/1988. Cox J (as he then was) said, at 31:
'I agree that having failed to be persuaded that there was any professional misconduct his Honour was not required to characterise the failings he found by any other epithet.'
Accordingly, whilst it was not necessary that the complaint specify how the Tribunal might categorise the appellant's conduct, there was nothing improper about the complaint containing that indication.
The distinction drawn in par10 of the complaint between 'professional misconduct' and 'conduct which fails to meet the standards which are expected of a Pharmacist who practices in this State', on its face, reflects the traditional distinction made in disciplinary proceedings between 'professional misconduct' and 'unprofessional conduct'. Besides the inclusive meanings detailed in s43(2), professional misconduct is behaviour on the part of a member of a profession that would reasonably be regarded as disgraceful or dishonest by members of that profession of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1963) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VLR 72 at 73; Re a Solicitor [1960] VR 617 at 620; Law Society of Tasmania v Turner and Kench (2001) 11 Tas R 1 [44]."
Consistent with the above, it was not incumbent upon the Tribunal to categorise the appellant's conduct as professional misconduct, unprofessional conduct, breach of his duty as a dentist or otherwise. Whilst s43(1)(e) makes specific reference to professional misconduct, for good reason the relevant provisions of the Act are drafted in wide and inclusive terms. Section 43(1) expressly does not limit the matters about which complaint may be made against a registered practitioner. This is prudent as it is not possible to identify the wide range of matters that may warrant the attention of the Tribunal. The effect of ss46, 48 and 51(1) is that formal disciplinary proceedings on a complaint must be brought before the Tribunal when an investigation committee "is satisfied, having regard to the objectives in s9, that the complaint has been made on reasonable ground and is of a serious kind". Section 9 is set out in par6 of these reasons.
After the Tribunal has conducted a formal disciplinary proceeding, it may take such of the actions as are detailed in s53(1) as it "in its discretion … considers appropriate in light of its findings". There is no requirement that the findings establish conduct of a particular type or a particular characterisation. What is necessary is that in the light of its findings, the Tribunal considers that a particular action is appropriate. Obviously, in so concluding, the Tribunal would pay regard to the objectives detailed in s9. What is crucial is the substance of the Tribunal's findings in relation to the conduct in question as distinct from its use of any particular term to characterise the conduct. Where, as here, the Tribunal chose to characterise the conduct, it must be apparent what the Tribunal meant by the epithet selected. In the course of its decision, the Tribunal made it plain that it considered the conduct in question fell short of the standard which the public has a right to expect of a general dental practitioner in the appellant's circumstances. The Tribunal did not canvass whether the conduct in question would reasonably be regarded as disgraceful or dishonest by members of the dentistry profession of good repute and it is plain the Tribunal made no finding to that effect. To my mind it is clear that the Tribunal's finding that the appellant's conduct "constituted professional misconduct by reason of negligence or incompetence within the meaning of s43(2)(h) of the Act" does not carry with it a finding that the appellant's failings were disgraceful or dishonest. This conclusion is reinforced by the sentence in parenthesis that follows the above passage, "(The Tribunal is guided in this respect by the unreported decision of Murray J in the Supreme Court of Western Australia in Ong v Dental Board of Western Australia (25 August 1995).)" Ong relevantly deals with misconduct in a professional respect by reason of carelessness and incompetence and no doubt this assisted the Tribunal in its assessment of whether the appellant was negligent or incompetent. Ong did not deal with the issue of whether the conduct of the practitioner in question amounted to professional misconduct. In the context of the Tribunal's decision as a whole, it is quite clear that its finding that the appellant's conduct constituted professional misconduct by reason of negligence or incompetence meant no more than that it was satisfied that the appellant's failure to carry out his clinical examination with a level of care and skill which the public has a right to expect from a general dental practitioner in his circumstances, amounted to negligence and incompetence.
Although what I have said is sufficient to deal with the appellant's contention referable to the finding of professional misconduct, I will make some comments on s43(2), a provision that, in my view, generates considerable uncertainty about what is meant by the expression "professional misconduct" as used in the Act. That provision starts by declaring that it does not limit the matters that may constitute professional misconduct. This I take to mean that, consistent with the common law meaning of professional misconduct, any matter involving behaviour on the part of a registered practitioner that would reasonably be regarded as disgraceful or dishonest by members of the dental profession of good repute and competency will continue to amount to professional misconduct. The provision then proceeds to specify that "a registered practitioner is guilty of such misconduct (professional misconduct) if the practitioner" contravenes in any of the ways designated. On one reading of this portion of the provision, it deems a practitioner to be guilty of professional misconduct regardless of whether the conduct in question would reasonably be regarded as disgraceful or dishonest by members of the dental profession of good repute and competency. Plainly many contraventions encompassed by the matter designated in s43(2) would not amount to professional misconduct at common law, that is, would not be viewed as disgraceful or dishonest by members of the dental profession. To take one example, a contravention of Pt6 is covered by s43(2)(a). Section 66(2)(a), which is in Pt6, requires a registered practitioner to give the Board notice within 14 days of the withdrawal of any proceedings against the practitioner claiming damages or other compensation for alleged negligence by the practitioner in practice. I cannot envisage any circumstances in which it could be held that a practitioner who overlooked giving such a notice had behaved disgracefully or dishonestly. Nevertheless, on one reading of s43(2), such an oversight would be deemed to be professional misconduct. In my view, to so read the provision gives the term professional misconduct a meaning that is so wide and indefinite as to deny its use any utility. A finding that conduct of a practitioner that was not encompassed by any of the matters detailed in s43(2) was professional misconduct, would carry with it the stigma that the conduct was disgraceful or dishonest; whilst a similar finding in relation to conduct encompassed by a matter detailed in s43(2), would not. It seems to me that Parliament could not have intended such a confusing outcome and it should be inferred that a contravention or failure encompassed by any of the matters detailed in s43(2) will only amount to professional misconduct if it is reasonably regarded as disgraceful or dishonest by members of the dental profession of good repute and competency. I express this as a tentative view only as I have not had the benefit of considered submissions from counsel on the question. What is beyond debate is that so long as there is scope for confusion about the meaning to be ascribed to a term such as professional misconduct when used by the Tribunal to characterise the conduct of a practitioner, the Tribunal must take care to spell out what it means by the term adopted.
As I have concluded that the appeal must succeed because of the Tribunal's failure to afford the appellant an opportunity to make submissions in mitigation following the publication of its findings and because of the adverse finding it made in relation to the inadequacy of the appellant's dental records, which was not an issue raised by the complaint, I will not deal with the claim that the Tribunal failed to give adequate reasons for some of its findings in any detail. Suffice it to say that the claim has some substance. An example is the impugned finding as to the adequacy of the appellant's dental records. When summarising the evidence of the appellant in its findings, the Tribunal interpolated:
"During evidence the Tribunal heard of the paucity of records made by Dr Tai in February 2002 and the inability of those records to be applied in clearly describing and/or aiding and/or supporting his recall of treatment procedures included in his Statement of 29 October 2004.
The Tribunal also noted the complete absence of any dental charting among the records made by Dr Tai in February 2002."
An experienced Tasmanian dental practitioner gave evidence to the Tribunal that the appellant's records in relation to the complainant were "a bit hindered … a little bit shorter than I would expect". The Tribunal also received evidence from the current President of the Dental Board of Victoria, who is also the Deputy President of the Australian Dental Council and an accreditor and examiner of the Australian Dental Council. As to the appellant's dental records, he said, "According to the records that I have seen, records of the standard of Dr Tai's would be more common than not." Save for the appellant's evidence in defence of his records, counsel have not been able to refer me to any other evidence that bears on the adequacy of the appellant's dental records. The Tribunal had before it independent evidence to the effect that dental records of the standard of the appellant's were more common than not and that the records were hindered and a little bit shorter than one practitioner would expect. The members of the Tribunal, who were dental practitioners, were, however, entitled to make full use of their experience in evaluating the evidence in relation to the adequacy of the dental records, Kalil v Bray (1977) 1 NSWLR 256 at 261 and Jager v Medical Complaints Tribunal [2004] TASSC 58 at [25]. This entitlement did not, however, absolve the Tribunal from the obligation to give adequate reasons for concluding, contrary to the evidence referred to, that the appellant's dental records were woeful to a degree that could not be countenanced. See Roberts v Barker 137/1998 at 14 and Absolom v Mary Ogilvy Homes Society [2000] TASSC 65 at [35 and 36]. The Tribunal gave no such reasons.
The appeal is allowed. The decision of the Tribunal is quashed and the matter is remitted to the Tribunal for rehearing. I refrain from making directions as to any particular people who should not constitute the Tribunal for the purposes of a rehearing. It could be impossible to convene the Tribunal if all the persons who constituted the Tribunal for the purposes of the decision that has been quashed are excluded from participating in the rehearing. In that situation, members of the Tribunal that made the quashed decision may, consistent with the rule of necessity, sit on the rehearing. See the decision of the five justices who constituted the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 301 and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Mason CJ and Brennan J at 88 – 89 and Deane J at 96; a contrary view is expressed by Gaudron and McHugh JJ at 102.
13
2