VARNAVIDES and DENTAL BOARD OF WESTERN AUSTRALIA - [2009] WASAT 184

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: DENTAL ACT 1939 (WA)

CITATION: VARNAVIDES and DENTAL BOARD OF WESTERN AUSTRALIA [2009] WASAT 184

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)
MR P COCKERILL (SESSIONAL MEMBER)

HEARD: 30 - 31 JULY 2009 & 3 AUGUST 2009

DELIVERED : 6 AUGUST 2009
Edited reasons delivered orally on 6 August 2009

FILE NO/S: VR 98 of 2008

BETWEEN: GEORGE CONSTANTINE VARNAVIDES
Applicant
AND
DENTAL BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Review of decision to refuse registration - History of disciplinary findings in Western Australia and Victoria - Term of imprisonment for contempt - Fit and proper to practise as a dentist - Person of good character

Legislation:

Dental Act 1939 (WA), s 44, s 44(1), s 44(1)(b), s 44(1)(c), s 44(1)(d), s 44(2), s 47, s 47(2), s 49
Mutual Recognition Act 2001(WA), s 19

Books
GE Dal Pont, Lawyers' Professional Responsibility (3rd ed, 2006)

Result:

Application for registration dismissed

Category: B

Representation:

Counsel:

Applicant: Mr W Chesnutt
Respondent: Mr C Hollett

Solicitors:

Applicant: BW Duckham & Co
Respondent: Bowen Buchbinder Vilensky

Case(s) referred to in decision(s):

Shaboodien and the Dental Board of Western Australia [2008] WASAT 102
Tavelli v Johnson (unreported, WASC; Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant in this matter, Dr George Varnavides, applied to the State Administrative Tribunal for review of a decision of the Dental Board of Western Australia declining to register him as a dentist. The Board found that given the history of serious professional complaints filed and proved against Dr Varnavides in Western Australia and Victoria, over a period of 30 years which displayed a consistent pattern of abhorrent behaviour, Dr Varnavides was not a fit and proper person to practise dentistry. Dr Varnavides was no longer on the register as a dentist in Victoria.
Dr Varnavides submitted that these offences occurred in the past, he had been adequately penalised for them and he had been open and honest about his history, and therefore he should be registered as a dentist by the Board.
The Tribunal considered the evidence of Dr Varnavides and his character witnesses in determining whether Dr Varnavides had made the necessary changes and was now a fit and proper person to practise dentistry. The Tribunal determined that, based on the evidence, Dr Varnavides would be expected to have changed as a result of his recent circumstances; however, the necessary changes had not been made and Dr Varnavides was not, at the date the decision was delivered, a person of good character as required by s 44(1)(c) of the Dental Act 1939 (WA). Accordingly, he was not entitled to be registered as a dentist in Western Australia.

Background

The applicant in this matter, Dr George Varnavides, completed his qualifications as a dentist in 1961 and was entered on the register of the Dental Board of Western Australia (Register) until 1989, when his name was removed from the Register for failing to pay the registration fee prescribed under the Dental Act 1939 (WA) (Act). On registration, Dr Varnavides initially worked in regional Western Australia and then in metropolitan Perth. In 1980, Dr Varnavides was the subject of a series of disciplinary findings by the Dental Board of Western Australia (Board).
Subsequently, in 1982 Dr Varnavides moved to Melbourne and was entered onto the register of the Dental Practice Board of Victoria (Victorian Register). When he went to Victoria, Dr Varnavides was refused a certificate of good standing by the Board. The Tribunal is unaware of how Dr Varnavides was registered in Victoria without that certificate.
Between 1997 and 2003, Dr Varnavides was the subject of a series of disciplinary matters in Victoria and was suspended from practice by the Dental Practice Board of Victoria (Victorian Board). He remains under suspension in Victoria and, from what is before us, has not made any application to be reinstated on the Victorian Register. Dr Varnavides also advised us that there are still outstanding fines with respect to his Victorian disciplinary history and registration which prevent him from being re-registered.
In September 2006, Dr Varnavides and his three children moved back to Perth. In July 2007, Dr Varnavides applied to the Board for registration under s 44 of the Act and the Board declined to register Dr Varnavides on the grounds that it concluded he was not a fit and proper person to practise dentistry.
On 20 August 2007, Dr Varnavides lodged an application with this Tribunal to review the Board's determination. He then withdrew that application on 11 September 2007 and in January 2008, submitted a further application to the Board for registration, with a covering letter dated 1 February 2008. In both of those applications, Dr Varnavides disclosed that he had been the subject of disciplinary proceedings in Victoria and had been found guilty of professional misconduct. We heard Dr Varnavides' application over three days and counsel for both parties made opening and closing submissions. We also heard from a number of witnesses, including Dr Varnavides. We then delivered ex tempore reasons for our decision. This is an edited version of those ex tempore reasons for decision.

The Western Australian disciplinary proceedings

In February 1981, the Board handed down its decisions in relation to four separate complaints concerning Dr Varnavides. With regard to the first complaint, the Board found that although Dr Varnavides' conduct fell far short of the standard of conduct the Board would expect of a dentist in similar circumstances, it did not constitute misconduct in a professional respect by reason of impropriety.
In the other three complaints Dr Varnavides was found guilty of misconduct in a professional respect by reason of impropriety. The first of these matters involved impropriety in relation to events leading to his employment of a 16year-old girl and the second involved administering a general anaesthetic to a minor without parental consent and not for the purpose of treatment. The final complaint concerned an argument between Dr Varnavides and a patient regarding payment. The Board found that Dr Varnavides' behaviour was unworthy of a dentist, and his behaviour was such that it 'would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.'
A further complaint had been made by another of Dr Varnavides' patients, but the Board's investigation into this complaint was abandoned as Dr Varnavides had left Western Australia for an indefinite period of time.

The Victorian disciplinary proceedings

On 18 September 1997, the Victorian Board found Dr Varnavides guilty of professional misconduct. It was regarded as a particularly serious case because the conduct occurred over a significant period of time, affecting a patient and her health insurer.
The Victorian Board made a number of what it called 'serious' findings. These findings included that Dr Varnavides abused his position as a dentist for improper personal reasons, that he submitted accounts to a patient for work which he had not done, that he accepted rebate cheques from the patient's insurer for work that he had not done, and that he failed to maintain accurate and appropriate dental records with respect to his work. The Victorian Board also found that Dr Varnavides generally behaved in an entirely inappropriate manner in his dealings as a dentist with his patient. The penalty included a reprimand and a suspension from the practice of dentistry for six months. Dr Varnavides unsuccessfully appealed the suspension.
On 18 February 1998, some five months later, the Victorian Board found Dr Varnavides guilty of professional misconduct. It found that Dr Varnavides had failed to maintain accurate and appropriate dental records relating to the treatment of a patient, submitted accounts to the patient and her health insurer relating to work not done, accepted a rebate cheque from that insurer for the work claimed but that he had not done, and that he provided two conflicting accounts relating to the same work.
The Victorian Board said it was appalled at Dr Varnavides' standard of recordkeeping and that his 'records were so deficient in detail and were inappropriately and significantly altered as to suggest a level of impropriety'. In that case, the Victorian Board fined Dr Varnavides $2,000 and issued a reprimand.
On 11 August 1999, in an inquiry which was held in camera, an agreement was reached whereby Dr Varnavides agreed to refrain from practising dentistry in any Australian jurisdiction for 12 months. Dr Varnavides tells us that the inquiry was held in camera and the deal was done because of an admission of bias held by the Victorian Dental Board.
On 17 November 2003, the Victorian Board made a finding that Dr Varnavides engaged in unprofessional conduct of a serious nature. It found that Dr Varnavides failed to obtain full and appropriately informed consent from two patients in relation to dental treatment; he failed to advise the patients of possible complications arising from the dental treatment; he failed to record the administration of a Schedule 4 poison, namely two antibiotics; he provided dental services and dental work which was in the Victorian Board's words, 'grossly substandard'; and failed to advise a patient of 'vastly preferred' options for their dental treatment.
For this conduct, Dr Varnavides received a suspension of his registration as a dentist for a period of two years and it is essentially as a result of these proceedings that Dr Varnavides' name remains removed from the Victorian Register.
This decision of the Victorian Board to suspend Dr Varnavides for two years was upheld on review by the Victorian Civil and Administrative Tribunal (VCAT). At the commencement of that review, his counsel advised VCAT that Dr Varnavides did not contest the findings of fact or the finding of unprofessional conduct. Dr Varnavides tells us that those admissions were his counsel's decision rather than his and, accordingly, shifts responsibility for that away from himself. However, the Tribunal does find it of some importance that he did not dispute those findings of fact.
During his two year suspension, Dr Varnavides continued to practise dentistry. As a result, he was charged with contempt and three contempt hearings were held. In the first, Dr Varnavides was fined for wilful disobedience of an order not to practise dentistry. In the second, he was committed to prison for wilful disobedience on two occasions of an order not to practise dentistry. In the third, Dr Varnavides successfully appealed against the term of imprisonment imposed, and the Supreme Court of Victoria substituted this custodial sentence with a substantial fine. It is unclear to both the Tribunal and Dr Varnavides whether this fine is part of what remains unpaid in Victoria.
The time for Dr Varnavides' reinstatement to the Register after his two year suspension was also extended from November 2005 to September 2006.
However, Dr Varnavides again continued to practise as a dentist during his suspension and in a 2006 decision of VCAT, Dr Varnavides was found guilty of contempt of VCAT by practising dentistry on six patients on 20 separate occasions while subject to an injunction preventing him from practising as a dentist, and he was ordered by Judge Davis to a term of imprisonment of three months.
Subsequently, Dr Varnavides came to back to Perth. A warrant for his arrest was issued in November 2006 and Dr Varnavides was extradited to Victoria and subsequently served three months imprisonment for contempt.
Finally, in a matter not entirely unrelated to his practising as a dentist, on 1 November 2007 in the Melbourne Magistrates Court, the Transport Accident Commission (TAC) prosecuted Dr Varnavides. Those proceedings related to Dr Varnavides claiming compensation from the TAC whilst working; he was effectively double dipping the system. For this, Dr Varnavides was convicted of obtaining property by deception and fraudulently obtaining a benefit and he was sentenced to six months' imprisonment to be served concurrently with his other sentences.

The decision of the Board

In July 2007, Dr Varnavides applied to the Board seeking registration to enable him to practise as a dentist in Western Australia.
On 16 June 2008, the Board convened to consider Dr Varnavides' application for registration and resolved that it was not satisfied that he met the requirements of s 44(1) of the Act, and in particular s 44(1)(c), which required Dr Varnavides to be a person of good character before he could be put on or remain on the Register. The Board made this finding on the ground that the offences committed by Dr Varnavides in Victoria are some of the more serious offences within the statutory framework of the Act because they related to him carrying out the occupation of dentist.
The Board found that the offences committed by Dr Varnavides occurred both whilst he was registered as a dentist in Victoria and at a time when he was suspended from or ordered not to practise as a dentist. Some of the offences involved dishonesty and all of the offences were serious and represented a course of conduct which demonstrated a disregard for compliance with the requirements of the Victorian Board and for the law. The Board also found that Dr Varnavides' offences were of a recurrent nature and continued over a significant period of time, which indicated a lack of insight and understanding of earlier conduct. Finally, the Board found that Dr Varnavides had not demonstrated genuine remorse. In its written reasons for decision dated 26 June 2008, the Board quoted Dr Varnavides' earlier submissions to the Board:
I believe matters of the past have been resolved, that there is no intention by any authority in Australia to deprive me permanently of my ability to practise dentistry, and that I therefore fall into the category of a fit and proper person to practise.
Whilst the Board expressed its sympathy towards Dr Varnavides' position and personal circumstances in its written reasons for decision, ultimately, the requirements of the Act and the public overrode his personal circumstances. It is this decision of the Board that is the subject of review before this Tribunal.

The relevant provisions of the Act

Section 49 of the Act requires that no person other than a registered dentist is entitled to practise dentistry. Section 44(1) of the Act says that no person shall be registered as a dentist unless, amongst other things, they are a person of good character and s 44(2) of the Act goes on to state that if a person can satisfy the requirements for registration and has paid the prescribed registration fee, the Board must register them as a dentist.

The issue for determination

The characterbased requirements for registration in a profession such as dentistry are based on the premise that the person who is registered can be held out to the public as a person fit to be entrusted by the public with their dental care and that they can rely on the registered person having the necessary competence, skills and ethical foundation to practise dentistry in this state. The person must have a level of integrity that the public can be confident in. The test of good character has been well settled, in our view, and is well summarised by Wheeler J in Tavelli v Johnson (unreported, WASC; Library No 960693, 25 November 1996) (Tavelli). Her Honour says at [7] that:
It must be stressed therefore that there can be no inflexible rules and no policy, but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
Therefore, we have to look carefully at what we think is relevant with respect to Dr Varnavides' application in light of s 44 and the remainder of the Act. Her Honour goes on :
With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
1)They occur in the course of or relate to the carrying out of the occupation …;
2) They are offences of dishonesty broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
3)They occur while the person is the holder of a licence under the Act;
4)They are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
We think that the test Wheeler J puts with respect to reliance on convictions is relevant, but also her test of good character is very relevant to these proceedings. She says at [8]:
Indications that a person may be of good character and a fit and proper person, notwithstanding previous convictions, may be gleaned from the following factors:
1)Where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA, Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as the person's words;
2)If the offences were committed a substantial time ago; I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character, and much will depend on the additional factors I list and, in appropriate cases, on others;
3)Any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
4)A person's character generally, since his commission of the offences, including his lack of offending, age, family support, paid and voluntary work, and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
That is the test that we have relied on. The applicant submits that the previous Western Australian and Victorian offences and findings were all in the past; he has not concealed anything, he has changed. The early death of his wife and moving to Perth combined with being a sole parent for three young children has galvanised him, changed his attitudes completely, and he can now be trusted and relied on to do everything necessary with the required integrity under the Act. The respondent, on the other hand, submits that Dr Varnavides is not a person of good character because of the history of serious complaints filed against him in Western Australia and Victoria, which span a period of 30 years and display a consistent pattern of abhorrent behaviour. He has not demonstrated by evidence that he has changed significantly, either with respect to practising dentistry or generally in his life.
The issue therefore before us, is whether Dr Varnavides is of good character within the meaning of s 44(1)(c) of the Act, and is he therefore entitled to registration under the Act? The onus is on Dr Varnavides to prove that he is.

The evidence

We received statements from and heard the oral evidence of a wide variety of people. We accept the expert evidence of Dr Owen and Professor Abbott with respect to growing ethical standards in the dental profession and what is required of a dentist and generally what they set out in their witness statements, which were uncontested.

We heard from Dr Varnavides and he provided a statement.
We received statements from Father Karalis and Mr Taylor and we do not attach much weight at all to those statements. Father Karalis in particular says that Dr Varnavides is 'courteous and polite', that he helped make church candles in the first half of 2008 this was over a year ago and the Tribunal has received no update since then and that he is currently considering joining the ecclesiastical committee; nothing more. So all that Father Karalis tells us, really, is that Dr Varnavides made some candles in the first six months of 2008.
We have character statements from Professor Kenneally and Professor Henry. All that they could tell us was that they would expect Dr Varnavides would be better than he used to be due to all the things that have happened to him of late; it would, in their view, be a natural result. They could not in fact give clear and concise evidence of the manifestation of this expectation.
We make the point, though, with respect to all the witnesses, including retired Chief Magistrate Mr Zempilas, that no one was a fully informed witness who knew Dr Varnavides' entire history (as required in [4] of Wheeler J's test above). Each witness knew a bit and, if put together, one might have had a full story, but separately and independently, no witness knew the entire story, although Professor Kenneally probably had the best idea as to what had gone on in Dr Varnavides' professional life.
We found them, particularly Professor Kenneally and Professor Henry, to be very open, honest and impressive witnesses. They honestly admitted that they didn't really know what changes Dr Varnavides had actually made and much of their evidence was drawing conclusions and expectations based on behavioural considerations that they concluded would, could and should have occurred.
We noticed that Professor Kenneally has been of enormous support to Dr Varnavides. He looked after Dr Varnavides' children when Dr Varnavides was in prison and he told us that he and his wife 'help out a lot'. He is very impressed by Dr Varnavides' children and their upbringing, although having no children of his own, he clearly takes a very keen interest in the Varnavides children and does a lot with respect to their care.
On that point, we note that Dr Varnavides told us he had returned to Perth for family and family support, but we have had no evidence before us of who that family is and what support is given. The only support we've been told about was Professor Kenneally's and we do not know if he is family he certainly didn't indicate that he or his wife were related to Dr Varnavides in any way. Dr Varnavides has brought no evidence before us as to those family mechanisms his reason for coming back to Perth and we question whether he did return for the well-founded reason of family support. That has some small bearing on what we consider.
We also heard from Dr Pandev, again an impressive witness: honest, open, sincere and quite candid that his decision to employ Dr Varnavides is purely an economic one. It is an economic necessity for him that he employs another dentist two days a week. He wants to expand his practice and unemployed dentists are very difficult to find. Therefore, Dr Varnavides would fill a hole that he has.
That said, it appeared to us that he has slowly become aware of the history that followed Dr Varnavides around and it struck us that even in Dr Pandev's view, things were becoming a little complex and he was perhaps seriously questioning the viability of employing Dr Varnavides.
We certainly query the economic viability of Dr Pandev providing supervision, as proposed by Dr Varnavides' counsel. Dr Pandev was quite candid that he can not be continually on Dr Varnavides' shoulder watching over, and it would seem that it would be a fairly limited supervision, subject to the exigencies of a busy practice, that he would be able to offer Dr Varnavides.

The Tribunal's decision

Our decision therefore falls to an assessment of the applicant, based on all that factual history, based on the evidence that we have from the witnesses and what weight we attach to it, and based on the documentary evidence before us.
Where there is a difference in evidence between what Dr Varnavides told us and what other witnesses and documentary evidence said, we prefer that other evidence. We found Dr Varnavides to be necessarily selfserving in his evidence because he is trying to put his position forward and to become registered under the Act. However, when we apply each aspect of Wheeler J's test with respect to having a conviction in his background, yet still being a fit and proper person, we find that Dr Varnavides is not of good character within the terms of s 44(1)(c) of the Act.
There are a number of reasons for this. Firstly, Dr Varnavides' personal circumstances are not a relevant consideration in determining whether or not he should be registered as a dentist. The Tribunal need only be satisfied that Dr Varnavides has completed the necessary educational requirements and is a person of good character to register him under s 44 of the Act. And in determining whether or not Dr Varnavides is a person of good character, Wheeler J has outlined the relevant considerations to be whether or not Dr Varnavides is remorseful, the time that has passed since he committed the offences and now, his personal circumstances at the time he committed the offences and his character, generally since the perpetration of the offences. These considerations are supported by GE Dal Pont in Ch 2 of Lawyers' Professional Responsibility (3rd ed, 2006) and whilst still specifically relevant to the legal profession, we are of the view that the principles apply equally to registration in other fields, such as dentistry. Whilst the Tribunal is sympathetic towards Dr Varnavides' current circumstances, the death of his wife (after his convictions), his limited income and his role as a single parent are irrelevant in determining whether he is of good character. Instead, we must focus on those four considerations outlined by Wheeler J.
Secondly, there is no evidence before us of any change or remorse. I refer to [2.130] of GE Dal Pont:
The most fundamental part of an applicant's case for readmission is evidence of real efforts made to reestablish herself or himself and to redeem her or his reputation before former colleagues and in the eyes of the general public. The court looks for a 'sufficient period of commendable conduct', bearing in mind that '[t]he greater the fall from grace the more the ground to recover before reinstatement.'
In our view, there was a dramatic fall from grace in Dr Varnavides' case.
The conduct in question must be directed at what led to the applicant's removal in the first place. So, for instance, an applicant struck off for dishonesty must show subsequent evidence of unblemished honesty, usually in an environment where honesty is critical. Here, evidence of work experience conducted with utmost integrity is probative.
The court looks not only for an applicant who has expressed regret for her or his former misconduct, but one who has both understood and acknowledged its wrongfulness. It is an indispensable starting point; a failure to acknowledge the seriousness of behaviour or an attempt to downplay or deflect responsibility for it will singlehandedly deny readmission.
Yet mere frankness in recognition of past errors and sincerity in the intention to avoid them in the future are little more than words. These must be measured against the applicant's original misconduct and his subsequent behaviour. Words of regret can carry little weight if not supported by behaviour that reflects that regret. We lack some real evidence that Dr Varnavides has changed. The evidence before us is that Father Karalis said he made candles a year ago, and his two close friends tell us that they would expect him to have changed. They say, 'Well, there has been some change', but they couldn't give us hard and fast evidence or proof of that change.
After years and years of practising in a certain way, we're not convinced that Dr Varnavides will practise in a completely different way and there are two aspects of Dr Varnavides' evidence where this is made abundantly clear; far from demonstrating change, he actually demonstrated no change at all.
When his counsel, Mr Chesnutt, asked him what he would do in his dental practice today if he found himself in a similar situation to one which had gotten him in trouble in the past, he still could not give us anything but a superficial answer (T: 31-32, 30/7/09). It took a number of questions before he eventually said he would seek a second opinion from a specialist. We do not accept that that evidence would come into play in Dr Varnavides' practice. We're not saying at all that Dr Varnavides lied when he said it; he probably believed it when he said it, but we're not confident that he would remember it when it came to his practice.
Also, with regard to the 2003 determination of the Victorian Board, we asked Dr Varnavides to go through the written reasons for the 2003 determination and to tell us what in those papers he accepted. He told us he accepted the Victorian Board's decision, 'but that there were mistakes made along the way' (T: 10, 31/7/09). Then, at the direction of the Deputy President, he went through the reasons for decision paragraph by paragraph and found fault with many, if not all, of the findings against him set out in it.
Dr Varnavides first took issue with the Victorian Board's determination that he undertake further education in specific areas as approved by the Victorian Board. Dr Varnavides told the Tribunal that he could not complete the educational requirements of the Victorian Board because the courses they required him to complete do not exist. We acknowledge that Dr Varnavides did make three attempts to have a course provided by Dr Alexopoulos approved by the Victorian Board in April, August and September of 2005. We can see that by letter dated 19 September 2005, the Victorian Board resolved that the proposed arrangement with Dr Alexopoulos was not satisfactory. We can also see that on the Victorian Board not approving this course, Dr Varnavides contacted numerous tertiary institutions throughout 2006 in the hope they would provide a program satisfactory to the Victorian Board, all without success.
Ultimately however, this is of little relevance to the issue before this Tribunal; it is not the 2003 determination of the Victorian Board that we are reviewing. In any event, Dr Varnavides was informed by letter from the Victorian Board dated 22 September 2005 that he 'can apply for restoration to the Register at the end of his term of suspension'. Dr Varnavides has not made any such attempt for re-registration in Victoria.
Dr Varnavides also submits that there are a number of mistakes with respect to [1.4] of the Victorian Board's determination. Regarding the finding that Dr Varnavides relied on a dental nurse of limited experience and understanding as a substitute for the provision of proper information to a patient, he said:
Again she didn't solely provide the information. It was a combined effort between her and myself. We were explaining the orthodontic treatment to the patient.
HOLLETT, MR: So if I am to understand what you are saying correctly, you say that you did nothing wrong because you provided that information in concert with the dental nurse. --- I am not saying that at all. I am saying that they are wrong because the girl that the dental nurse of limited experience is incorrect. She had done her course, she had passed her course. I had sent her off for training for three years and she certainly was not a lass of limited experience. This is totally incorrect. She already had her certificate in dental nursing, so there are a lot of things here that they have written that are totally incorrect.
Where VCAT found that Dr Varnavides engaged in unprofessional conduct of a serious nature because of this, Dr Varnavides told us he disagreed with that. Where VCAT found that he accordingly engaged in unprofessional conduct not of a serious nature, Dr Varnavides disagreed with the finding. Dr Varnavides also disagreed with the facts as found concerning the findings that he failed to obtain the informed consent of a patient and failed to keep proper dental records.
Additionally, in making its decision in 2003, the Victorian Board referred to its decisions in 1997, 1998 and 1999. In the 1997 decision, serious findings were made against Dr Varnavides in finding him guilty of professional misconduct and it was found that he misled his patients, issued accounts in an inappropriate manner, submitted accounts for work not done, accepted rebate cheques, abused his position as a dentist, submitted accounts which did not correlate to underlying accounts, et cetera. Dr Varnavides says he does not agree with and he does not accept those findings. He similarly did not agree with and does not accept the findings made in the 1998 and 1999 decisions.
And on it went. We do not need to go through it all. Needless to say, he neither accepted nor agreed with the professional disciplinary findings against him.
It is clear to the Tribunal that as at 30 and 31 July and 6 August 2009, Dr Varnavides is not a person who has accepted the findings made by a tribunal and affirmed on appeal, or accepted that his conduct which constituted those findings was inappropriate. How can we find Dr Varnavides to be of good character when he continues, as at today's date, to deny liability for matters proven after having been through due proper legal process?
Another area of great concern to us is Dr Varnavides' evidence of 30 July 2009. It seems again to the Tribunal that based on this evidence, Dr Varnavides has not made the necessary changes. The Deputy President asked Dr Varnavides:
Now, there has been some discussion today about, you know, you have had this series of contempt hearings, and that eventually you stopped practising and stopped the contempts. What made you stop ? Those three judges, Supreme Court judges, they asked me personally, 'Would you refrain if we knocked this thing out,' and I said, 'Absolutely,' because they knew what they were talking about.
And what, you didn't feel that Morris J or previous ? Morris J said he would bring the sword of Hercules into my throat.
What, you didn't believe that the previous hearings knew what they were doing? Well
What was the difference that suddenly you complied?
We are concerned to note that we felt the need to ask Dr Varnavides this question because we were worried by the contempt proceedings and we wanted to be comforted that Dr Varnavides was a person of sufficiently good character and that he had accepted that he was in contempt as found by the Court. Dr Varnavides said with respect to the three Supreme Court judges:
Maybe their age, they were very old-looking gentlemen and very learned men and they gave me a fair go.
As opposed to Stuart Morris, who you found incredibly annoying? They called him Hitler…
Who's 'they'? The profession… They said he is a fascist.
So you didn't obey the orders because it was basically a personality thing, but once someone who had commanded your respect said it, you were willing to comply. Is that correct? Yes, I couldn't let them down.
Did you feel a bit maybe that those more senior people were more your equal in a way too? That's another thing too. When they asked me to do something I did it. They also said which I thought Judge Nettleton said 'Why should he?' Because Morris said to me you give up dentistry for the rest of your life, I won't send you to jail. You know I thought what sort of a plea bargain is that? Even the three Justices were appalled. They said 'I am appalled at Judge Morris offering the defendant such a plea bargain. It's the most appalling thing we've ever heard.' I thought that goes along with the fascist Morris. But anyways, he said why shouldn't the defendant return to his chosen profession once all these proceedings are done and I thought we are talking to people here we are listening to people here that we know what they are talking about. You don't say Mr Varnavides you are an absolute idiot so I did it. They also said that he was out of his jurisdiction and he shouldn't have given me any jail sentence. And I go and do three months jail in Port Phillip Prison which I should never have done.
…So really, you saw the error of your way through the guidance of the three superior judges? Absolutely.
The issue there is a complete thumbing of his nose to the judicial system. It is saying, 'I'll pick and choose who I agree with because no one will impose authority on me'. That was 30 July 2009. We are of the view that Dr Varnavides still holds that view and that displays, in the general tenor of his evidence, an unwillingness to accept the authority of those who have the authority, despite words and other rhetoric to the contrary. They are, as Wheeler J said in Tavelli, just words. We have no evidence of change; all we have are Dr Varnavides' words.
Thirdly, as Dr Varnavides says, these offences occurred some time ago; however, the Board submits the offences were over a long period of time and display a very entrenched pattern of behaviour; there's a similarity about them. We're not convinced that there has been such a change caused by three judges of the Supreme Court of Victoria that Dr Varnavides will accept the authority of a registrar of the Board, or in fact the requirements of this Tribunal.
In summary, applying the test in Tavelli, Dr Varnavides has not demonstrated 'genuine remorse and contritory true insight and understanding of the earlier turpitudes'; in light of the sustained commission of the offences over a long period of time and when considered in the context of the other criteria, the length of time since the commission of the last offence has little bearing on Dr Varnavides' being of good character; the change in Dr Varnavides' circumstances demonstrate the possibility for change but not actual change. In particular, the change in circumstances does not demonstrate the elimination of the factors giving rise to the offences, and there is little evidence of an actual change of character before us. So we find that Dr Varnavides is not of good character for the purposes of s 44(1)(c) of the Act.
There are four other small matters that arise. First, the Board has advised that it still has to consider s 44(1)(b) and s 44(1)(d) of the Act. We are not convinced that the Board has not done that. In its decision of 26 June 2008, it says: 'You have not satisfied the Board that you meet all of the requirements of s 44(1), in particular s 44(1)(c)'. In any event, it is for the Board's counsel to advise it whether its decision of 26 June 2008 was limited to consideration of s 44(1)(c) only.
Second, with respect to mutual recognition, the respondent took the Tribunal to the case of Shaboodien and the Dental Board of Western Australia [2008] WASAT 102 that says: 'Review of a decision made under the Mutual Recognition (Western Australia) Act 2001 (WA) is to the Administrative Appeals Tribunal'. We agree with this. However, the issue here is whether mutual recognition has been considered at all, and it really is a first step always if you have got someone from another jurisdiction.
The fact of the matter is, the Board did not have an application by Dr Varnavides under s 19 of the Mutual Recognition Act. Also, Dr Varnavides is not on the Register in Victoria, so the Mutual Recognition Act would not apply anyway.
Third, with respect to s 47 of the Act, which requires that a dentist be struck off the Register for failing to pay the prescribed registration fee, we think that Dr Varnavides and the Board need to look carefully at s 47(2) and whether it imparts any discretion at all or whether it requires that a person be a fit and proper person before he or she can be re-registered. However, disciplinary proceedings are a separate issue and we do not think that s 47 goes to our jurisdiction.

Whilst we think that there are some major issues with s 47, we have not dealt with them here because Dr Varnavides' application was made to the Board under s 44 and we were asked to review a decision made under s 44 and we do not have submissions on s 47.
Finally, under the Act, the Board and Tribunal may impose conditions on a dentist's license. Ultimately though, we do not think that defects in character can be overcome by conditions. A person is either of good character or not. If the Board or the Tribunal think it is borderline, then they may well decide in the applicant's favour and impose conditions to secure things. However, in this case the imposition of conditions is not appropriate.

Orders

The Tribunal orders that:
1.The applicant is not qualified for registration as a dentist under the Dental Act 1939 as he is not a person of good character as required by s 44(1)(c) of the Act.
2.There is no order as to costs.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT